Statement of Facts and Memorandum of Points and Authorities — United States v. Denny Bhakta (Document 13-1)

Summary

This is a Statement of Facts and Memorandum of Points and Authorities filed by Sandra Resnick, attorney for defendant Denny Bhakta, supporting a motion to compel discovery. The Statement of Facts says the government filed an Indictment on December 1, 2021, charging Bhakta with Securities Fraud in Count One and Money-Laundering in Count 2, with a Forfeiture Allegation, and that the discovery process is ongoing. The memorandum cites Federal Rule of Criminal Procedure 16 and Brady v. Maryland and lists categories of requested material, including the defendant's statements, Brady material, expert witnesses, Jencks Act material and law enforcement personnel files. It asks that the prosecutor review the files under Henthorn, and is signed /S/ Sandra Resnick, dated January 2, 2022.

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          Case 3:21-cr-03352-JLS Document 13-1 Filed 01/02/22 PageID.62 Page 1 of 10



 1 SANDRA RESNICK
   California State Bar No. 89901
 2 270 East Douglas Avenue
   El Cajon, CA 92020
 3 Office: (619) 401 4067
   Fax: (619) 442-7439
 4
     Attorney for Defendant
 5   Denny Bhakta
 6
 7                           UNITED STATES DISTRICT COURT
 8                        SOUTHERN DISTRICT OF CALIFORNIA
 9                          (HON. JANIS L. SAMMARTINO)
10
     UNITED STATES OF AMERICA,               ) CASE NO. 21 CR 3352-JLS
11                                           )
                    Plaintiff,               ) STATEMENT OF FACTS AND
12                                           ) MEMORANDUM OF POINTS AND
     v.                                      )   AUTHORITIES
13                                           )
     DENNY BHAKTA,                           )
14                                           )
                                             )
15                 Defendant.                )
                                             )
16
17                               STATEMENT OF FACTS
18            On December 1, 2021, the government filed a 2 count Indictment,
19 charging Denny Bhakta with, in Count One, Securities Fraud; and in Count
20 2, Money- Laundering. The Indictment also contains a Forfeiture
21 Allegation. The discovery process is ongoing.
22
23                  MEMORANDUM OF POINTS AND AUTHORITIES
24                                           I.
25                          MOTION TO COMPEL DISCOVERY
26           The government must disclose the information requested in this
27
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 1 motion for discovery under the obligations of Federal Rule of Criminal
 2 Procedure 16 and Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194, 10 L.
 3 Ed. 2d 215 (1963). Moreover, a defendant's entitlement to due process of
 4 law, guaranteed by the Fifth Amendment to the United States Constitution,
 5 as well at his Sixth Amendment right to effective assistance counsel,
 6 impose additional requirements on the Court and prosecution to ensure the
 7 production of fair discovery.
 8       All of the requests are for items within the possession, custody, or
 9 control of either state or the federal government. This, of course, includes
10 attorneys for the government, agents of the Federal Bureau of Investigation,
11 the Drug Enforcement Administration, the U.S. Customs, the Immigration
12 and Naturalization Service and in this case, other government agents,
13 officials, employees, or informants participating in the investigation or
14 prosecution of the matters involved in this case whether under state or
15 federal authority. It has been held repeatedly that the government's
16 discovery obligations extend to materials in the possession, custody or
17 control of all its agencies and agents. See, e.g. United States v. Beasley,
18 576 F.2d 625, 632 (5th Cir. 1978); United States v. Bryant, 439 F.2d 642,
19 650 (D.C. Cir. 1971); United States v. James, 495 F.2d 434, 436 (5th Cir.
20 1974); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973). This
21 request is not limited to those items that the prosecutor knows of, but rather
22 includes all discovery listed below that is in the custody, control, care, or
23 knowledge of any "closely related investigative [or other] agencies" under
24 United States v. Bryan, 868 F.2d 1032 (9th Cir.), cert. denied, 493 U.S. 858
25 (1989):
26       This proposition was further reiterated in the United States Supreme
27
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 1 Court case of Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L. Ed. 2d
 2 490 (1995) in which the court stated:
 3
 4         “[T]he prosecution, which alone can know what is undisclosed,
           which alone can know what is undisclosed, must be assigned
 5         the consequent responsibility to gauge the likely net effect of all
           such evidence and make disclosure when the point of
 6         "reasonable probability" is reached. This in turn means that the
           individual prosecutor has a duty to learn of any favorable
 7         evidence known to the others acting on the government's behalf
           in the case, including the police. But whether the prosecutor
 8         succeeds or fails in meeting this obligation (whether, that is, a
           failure to disclose is in good faith or bad faith, see Brady, 373
 9         U.S. at 87), the prosecution's responsibility for failing to disclose
           known, favorable evidence rising to a material level of
10         importance is inescapable.” Id. 115 S.Ct. at 1567.
11
12
           (1) The Defendant's Statements Under Fed. R. Crim. P. 16 (a)(1)(A)

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     the defendant is entitled to disclosure of all copies of any written or

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     recorded statements made by the defendant; the substance of any

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     statements made by the defendant which the government intends to offer in

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     evidence at trial; any recorded testimony of the defendant before the grand

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     jury; any response by the defendant to interrogation; the substance of any

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     oral statements which the government intends to introduce at trial, and any

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     written summaries of the defendant's oral statements contained in the

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     handwritten notes of the government agent; any response to any Miranda

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     warnings which may have been given to the defendant (see United States

22
     v. McElroy, 697 F.2d 459 (2d Cir. 1982)); and any other statements by the

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     defendant that are discoverable under Fed. R. Crim. P. 16(a)(1)(A). The

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     Advisory Committee Notes as well as the 1991 amendments to Rule 16

25
     make it clear that the Government must reveal all the defendant's

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     statements, whether oral or written regardless of whether the Government

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     intends to introduce those statements;

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 1       (2) Arrest Reports, Notes and Dispatch Tapes The defendant also
 2 specifically requests that all arrest reports, notes and dispatch or any other
 3 tapes that relate to the circumstances surrounding his arrest or any
 4 questioning, if such reports have not already been produced in their
 5 entirety, be turned over to him. This request includes, but is not limited to,
 6 any rough notes, records, reports, transcripts or other documents in which
 7 statements of the defendant or any other discoverable material is
 8 contained. This is all discoverable under Fed. R. Crim. P. 16(a)(1)(A) and
 9 Brady v. Maryland, 373 U.S. 83 (1963). See also United States v. Johnson,
10 525 F.2d 999 (2d Cir. 1975), cert. denied, 424 U.S. 920 (1976); United
11 States v. Lewis, 511 F.2d 798 (D.C. Cir. 1975); United States v. Pilnick, 267
12 F. Supp. 791 (S.D.N.Y. 1967); Loux v. United States, 389 F.2d 911 (9th
13 Cir.), cert. denied, 393 U.S. 867 (1968). Arrest reports, investigator's notes,
14 memos from arresting officers, dispatch tapes, sworn statements, and
15 prosecution reports pertaining to the defendant are available under Fed. R.
16 Crim. P. 16(a)(1)(B) and (C), Fed. R. Crim. P. 26.2 and 12(I);
17       (3) Reports of Scientific Tests or Examinations Pursuant to Fed. R.
18 Crim. P. 16(D), Mr. Bhakta requests the reports of all tests and
19 examinations conducted upon any evidence in this case;
20       (4) Brady Material The defendant requests all documents, statements,
21 agents' reports, and tangible evidence favorable to the defendant on the
22 issue of guilt and/or which affects the credibility of the government's case.
23 Impeachment as well as exculpatory evidence falls within Brady's definition
24 of evidence favorable to the accused. United States v. Bagley, 473 U.S.
25 667 (1985); United States v. Agurs, 427 U.S. 97 (1976);
26       (5) Any Information that May Result in a Lower Sentence under the
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 1 United States Sentencing Guidelines (U.S.S.G.) As discussed above, this
 2 information is discoverable under Brady v. Maryland, 373 U.S. 83 (1963).
 3 This request includes any cooperation or attempted cooperation by the
 4 defendant, as well as any information that could affect any base offense
 5 level or specific offense characteristic under Chapter Two of the U.S.S.G.
 6 Also included in this request is any information relevant to a Chapter Three
 7 adjustment, a determination of the defendant's criminal history, or any other
 8 application of the U.S.S.G.;
 9       (6) The Defendant's Prior Record Evidence of prior record is
10 available under Fed. R. Crim. P. 16(a)(1)(B).
11       (7) Any Proposed 404(b) Evidence. Evidence of prior similar acts is
12 discoverable under Fed. R. Crim. P. 16(a)(1)(C) and Fed. R. Evid. 404(b)
13 and 609. In addition, under Fed. R. Evid. 404(b), "upon request of the
14 accused, the prosecution . . . shall provide reasonable notice in advance of
15 trial . . . of the general nature . . ." of any evidence the government
16 proposes to introduce under Fed. R. Evid. 404(b) at trial. The defendant
17 requests that such notice be given three weeks before trial in order to give
18 the defense time to adequately investigate and prepare for trial;
19       (8) Evidence Seized Evidence seized as a result of any search, either
20 warrantless or with a warrant, is discoverable under Fed. R. Crim. P.
21 16(a)(1)(C);
22        (9) Request for Preservation of Evidence The defendant specifically
23 requests the preservation of any and all physical evidence that may be
24 destroyed, lost, or otherwise put out of the possession, custody, or care of
25 the government and which relate to the arrest or the events leading to the
26 arrest in this case. This request includes but is not limited to, the
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 1 defendant’s personal effects, the defendant’s computer or cell phone and
 2 related media storage devices, and any evidence seized from the defendant
 3 or any third party in relation to this case;
 4       (10) Tangible Objects The defendant requests, under Fed. R. Crim. P.
 5 16(a)(2)(C), the opportunity to inspect and copy as well as test, if
 6 necessary, all other documents and tangible objects, including
 7 photographs, books, papers, documents, photographs, or copies of
 8 portions thereof which are material to the defense or intended for use in the
 9 government's case-in-chief, or were obtained from or belong to the
10 defendant; Specifically, to the extent that it was not produced, the
11 defendant requests copies of all media evidence in the government’s
12 possession.
13       (11) Expert witnesses. Mr. Bhakta requests the name, qualifications,
14 and a written summary of the testimony of any person th the government
15 intends to call as an expert witness during its case in chief. Fed.R.
16 Crim.P.16(a)(1)(E). The defense requests that notice of expert testimony be
17 provided at a minimum of 6 weeks before trial so that the defense can
18 properly prepare to address and respond to this testimony. The defense
19 also requests a hearing in advance of trial to determine the admissibility of
20 qualifications of any expert.
21       (12) Evidence of Bias or Motive to Lie The defendant requests any
22 evidence that any prospective government witness is biased or prejudiced
23 against the defendant, or has a motive to falsify or distort his or her
24 testimony. Pennsylvania v. Ritchie, 480 U.S. 39 (1987); United States v.
25 Strifler, 851 F.2d 1197 (9th Cir. 1988), cert. denied, 489 U.S. 1032 (1989);
26       (13) Impeachment Evidence The defendant requests any evidence
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 1 that any prospective government witness has engaged in any criminal act,
 2 whether or not resulting in a conviction, and whether any witness has made
 3 a statement favorable to the defendant. See Fed. R. Evid. 608, 609 and
 4 613. Such evidence is discoverable under Brady v. Maryland, 373 U.S. 83
 5 (1963). See United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988) (witness'
 6 prior record); Thomas v. United States, 343 F.2d 49 (9th Cir. 1965)
 7 (evidence that detracts from a witness' credibility);
 8       (14) Evidence of Criminal Investigation of Any Government Witness
 9 The defendant requests any evidence that any prospective witness is under
10 investigation by federal, state or local authorities for any criminal conduct.
11 United States v. Chitty, 760 F.2d 425 (2d Cir.), cert. denied, 474 U.S. 945
12 (1985);
13       (15) Evidence Affecting Perception, Recollection, Ability to
14 Communicate, or Truth Telling The defense requests any evidence,
15 including any medical or psychiatric report or evaluation, tending to show
16 that any prospective witness' ability to perceive, remember, communicate,
17 or tell the truth is impaired; and any evidence that a witness has ever used
18 narcotics or other controlled substance, or has ever been an alcoholic.
19 United States v. Strifler, 851 F.2d 1197 (9th Cir. 1988); Chavis v. North
20 Carolina, 637 F.2d 213, 224 (4th Cir. 1980);
21       (16) Witness Addresses The defendant requests the name and last
22 known address of each prospective government witness. See United
23 States v. Napue, 834 F.2d 1311 (7th Cir. 1987); United States v. Tucker,
24 716 F.2d 576 (9th Cir. 1983) (failure to interview government witnesses by
25 counsel is ineffective); United States v. Cook, 608 F.2d 1175, 1181 (9th Cir.
26 1979) (defense has equal right to talk to witnesses), cert. denied, 444 U.S.
27
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 1 1034 (1980). The defendant also requests the name and last known
 2 address of every witness to the crime or crimes charged (or any of the overt
 3 acts committed in furtherance thereof) who will not be called as a
 4 government witness. United States v. Cadet, 727 F.2d 1453 (9th Cir.
 5 1984);
 6        (17) Name of Witnesses Favorable to the Defendant The defendant
 7 requests the name of any witness who made an arguably favorable
 8 statement concerning the defendant or who could not identify him or who
 9 was unsure of his identity, or participation in the crime charged. Jackson v.
10 Wainwright, 390 F.2d 288 (5th Cir. 1968); Chavis v. North Carolina, 637
11 F.2d 213, 223 (4th Cir. 1980); Jones v. Jago, 575 F.2d 1164, 1168 (6th
12 Cir.), cert. denied, 439 U.S. 883 (1978); Hudson v. Blackburn, 601 F.2d 785
13 (5th Cir. 1979), cert. denied, 444 U.S. 1086 (1980);
14        (18) Statements Relevant to the Defense The defendant requests
15 disclosure of any statement that may be "relevant to any possible defense
16 or contention" that he might assert. United States v. Bailleaux, 685 F.2d
17 1105 (9th Cir. 1982);
18        (19) Jencks Act Material The defense requests all material to which
19 defendant is entitled pursuant to the Jencks Act, 18 U.S.C. § 3500,
20 reasonably in advance of trial, including dispatch tapes. A verbal
21 acknowledgment that "rough" notes constitute an accurate account of the
22 witness' interview is sufficient for the report or notes to qualify as a
23 statement under §3500(e)(1). Campbell v. United States, 373 U.S. 487,
24 490-92 (1963). In United States v. Boshell, 952 F.2d 1101 (9th Cir. 1991),
25 the Ninth Circuit held that when an agent goes over interview notes with the
26 subject of the interview the notes are then subject to the Jencks Act. The
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 1 defense requests pre-trial production of Jencks material to expedite cross-
 2 examination and to avoid lengthy recesses during trial;
 3       (20) Giglio Information Pursuant to Giglio v. United States, 405 U.S.
 4 150 (1972), the defendant requests all statements and/or promises, express
 5 or implied, made to any government witnesses, in exchange for their
 6 testimony in this case, and all other information which could arguably be
 7 used for the impeachment of any government witnesses;
 8       (21) Personnel Records of Government Officers Involved in the
 9 Arrest The defendant requests all citizen complaints and other related
10 internal affairs documents involving any of the immigration officers or other
11 law enforcement officers who were involved in the investigation, arrest and
12 interrogation of him, pursuant to Pitchess v. Superior Court, 11 Cal. 3d 531,
13 539 (1974). Because of the sensitive nature of these documents, defense
14 counsel will not be able to procure them from any other source; other
15 source;
16       (22) Government Examination of Law Enforcement Personnel Files
17 Mr. Bhakta requests that the government examine the personnel files and
18 any other files within its custody, care or control, or which could be obtained
19 by the government, for all testifying witnesses, including testifying officers.
20 Mr. Bhakta requests that these files be reviewed by the government
21 attorney for evidence of perjurious conduct or other like dishonesty, or any
22 other material relevant to impeachment, or any information that is
23 exculpatory, pursuant to its duty under United States v. Henthorn, 931 F.2d
24 29 (9th Cir. 1991). The obligation to examine files arises by virtue of the
25 defense making a demand for their review: the Ninth Circuit in Henthorn
26 remanded for in camera review of the agents' files because the government
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 1 failed to examine the files of agents who testified at trial. This Court should
 2 therefore order the government to review all such files for all testifying
 3 witnesses and turn over any material relevant to impeachment or that is
 4 exculpatory to Mr. Bhakta prior to trial. He specifically requests that the
 5 prosecutor, not the law enforcement officers, review the files in this case.
 6 The duty to review the files, under Henthorn, should be the prosecutor's and
 7 not the officers'. Only the prosecutor has the legal knowledge and ethical
 8 obligations to fully comply with this request.
 9
                                          II.
10
                                  CONCLUSION
11        For the foregoing reasons, defendant requests that this motion for
12 discovery be granted.
13
     Dated: January 2, 2022
14
15                                /S/ Sandra Resnick
                                  SANDRA RESNICK
16                                Attorney for Defendant
                                  DENNY BHAKTA
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