United States v. Prochilo

United States Court of Appeals
For the First Circuit

No. 09-1450

UNITED STATES OF AMERICA,

Appellant,

v.

JOSEPH PROCHILO,

Defendant, Appellee.

No. 09-1523

UNITED STATES OF AMERICA,

Appellant,

v.

ELVIS GUERRERO,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Howard, Circuit Judge.

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 Cynthia A. Young, Assistant United States Attorney, with whom
Michael K. Loucks, Acting United States Attorney, was on brief, for
appellant.
Bernard Grossberg for Joseph Prochilo.
George F. Gormley, with whom Stephen P. Super was on brief,
for Elvis Guerrero.

January 13, 2011
 HOWARD, Circuit Judge. In these interlocutory appeals in

two unrelated criminal cases, the government challenges the

district court's orders excluding cooperating witnesses from

testifying at trial. In each case, the district court excluded a

key prosecution witness after concluding that the government had

failed to meet its disclosure obligations under Brady v. Maryland,

373 U.S. 83 (1963). Under Brady, the government has a duty to

disclose evidence in its possession that is favorable to the

accused and material to guilt or punishment. Id. at 87. We

address the two appeals below.

I. Joseph Prochilo

A sting operation set up by agents of the Bureau of

Alcohol, Tobacco, Firearms and Explosives ("ATF") resulted in the

indictment of Joseph Prochilo for being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). The case against

Prochilo relies almost solely on the expected testimony of a

government cooperator. The cooperator had played a central role in

the sting, both arranging and consummating the purchase of the

firearm. Prochilo seasonably sought from the government

exculpatory and impeachment information and materials relating to

the cooperator. The discovery request focused on evidence that

Prochilo might use to impeach the witness, and cited eighteen

different categories of evidence. Essentially, Prochilo requested

all cooperator-related evidence in the government's possession,

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including: (1) all cooperation agreements between the witness and

government agencies; (2) copies of reports or documents relating to

the witness's "contacts" with those agencies; and (3) the complete

files that any government agency had on the witness.

At a hearing on the discovery motion, the government

maintained that it had reviewed the cooperator-related files and

had turned over any Brady material in its possession. Among other

things, the government had disclosed to Prochilo:

all payments the government [had] made to the
[cooperating witness (CW)]; the CW's
cooperation agreement and confidential
informant authorization request with the ATF;
the CW's criminal record; that the CW was in
the witness protection program and had
violated a rule of that program by making an
unauthorized trip to a prohibited area; that
the CW worked for, and was paid by, the DEA
for information, services, and security; that
the CW wrote a movie script that discussed his
use of oxycontin and criminal activities; an
account of the CW's illicit drug use and
involvement in illegal drug sales; that [the]
ATF had notified certain law enforcement
authorities of the CW's relationship with
[the] ATF, which had led to the dismissal of
state criminal charges against him; and that
the CW had worked as an informant for and
received promises, rewards, and inducements
from the United States Secret Service, the
Essex County [Massachusetts] Sheriff's
Department, the DEA [Drug Enforcement Agency],
and the FBI [Federal Bureau of Investigation].1

1
Most of the evidence that the government provided to
Prochilo is not part of the record on appeal because it was
exchanged between the parties and not filed with the district
court. Various pleadings filed by the parties, however, discuss
what evidence the government gave Prochilo and there is no dispute
that Prochilo received the materials mentioned here.

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The district court initially denied Prochilo's motion for

production as moot, with the explicit provision that he could renew

his motion after reviewing the materials disclosed by the

government.

Not long after the hearing, Prochilo filed a renewed

motion for production of exculpatory and impeachment information

and materials. In this motion, Prochilo asked the district court

to order the government to disclose the witness's "entire

relationship with the government." Prochilo requested: (1) details

regarding the witness's work with the United States Secret Service,

the Essex County Sheriff's Department, the DEA, and the FBI; (2)

information regarding the other ATF cases on which the cooperator

worked; (3) the witness's cooperation agreements with government

agencies other than the ATF; (4) a description of other firearms

seized by the government as a result of the witness's cooperation;

(5) information about the cooperator's contacts with other

government agencies as they related to other matters or other

investigations; and (6) a list of all benefits the witness received

as a result of these contacts. The district court granted

Prochilo's motion.

The government continued to resist additional disclosure,

and in response Prochilo argued that the requested materials would

support his claim that the witness had set him up, and they would

enable him to explore bias arising from the cooperator's

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relationship to the government. The district court reaffirmed its

earlier ruling, ordering the government "to produce all files

related to the [witness's] relationship with the Government,

including the CW's relationship with the Government in all other

cases."

In motions for reconsideration, the government maintained

that Prochilo had failed to provide any "plausible indication" that

the materials he sought contained evidence that was both favorable

to him and material. The government did, however, provide

additional information about the cooperator's work with various

federal law enforcement agencies, noting that the witness had

provided assistance in twelve cases or investigations by the ATF

(two of which also involved the DEA), four cases or investigations

by the DEA alone, and two investigations by the FBI. The

government explained that the cooperator had assisted these

agencies by either providing information or playing a direct role

in arranged transactions. The government continued to maintain,

however, that it had already turned over all Brady material

relating to the witness. It also asked the court to exclude the

witness from testifying at trial in the event that the court denied

reconsideration. The district court reaffirmed its order and

excluded the witness. This appeal ensued.

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 Discussion

"[W]e review Brady determinations for abuse of

discretion." United States v. DeCologero, 530 F.3d 36, 65 (1st

Cir. 2008). Under Brady, the government has a duty to disclose

evidence in its possession that is favorable to the accused and

material to guilt or punishment. 373 U.S. at 87; Strickler v.

Greene, 527 U.S. 263, 280 (1999). Evidence is "favorable to the

accused" if it is either exculpatory or impeaching in nature and

"material" if there is a reasonable probability that, had it been

disclosed, the result of the proceeding would have been different.

Strickler, 527 U.S. at 280; Kyles v. Whitley, 514 U.S. 419, 435

(1995) (evidence is material if it "could reasonably be taken to

put the whole case in such a different light as to undermine

confidence in the verdict").

The government is primarily responsible for deciding what

evidence it must disclose to the defendant under Brady.

Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987). And at least

where a defendant has made only a general request for Brady

material, the government's decision about disclosure is ordinarily

final - - unless it emerges later that exculpatory evidence was not

disclosed. Id. at 59.

When the defendant seeks access to specific materials

that the government maintains are not discoverable under Brady,

however, a trial court may in some instances conduct an in camera

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review of the disputed materials. See Ritchie, 480 U.S. at 58

n.15; United States v. Caro-Muniz, 406 F.3d 22, 29-30 (1st Cir.

2005); 6 Wayne R. LaFave et al., Criminal Procedure § 24.3(b) (3d

ed. 2007). To justify such a review, the defendant must make some

showing that the materials in question could contain favorable,

material evidence. Ritchie, 480 U.S. at 58 n.15 (explaining that

the defendant must establish a "basis for his claim" that what he

seeks "contains material evidence"); United States v. Brandon, 17

F.3d 409, 456 (1st Cir. 1994); LaFave, supra, § 24.3(b). This

showing cannot consist of mere speculation. United States v.

Navarro, 737 F.2d 625, 631 (7th Cir. 1984); see also Brandon, 17

F.3d at 456. Rather, the defendant should be able to articulate

with some specificity what evidence he hopes to find in the

requested materials, why he thinks the materials contain this

evidence, and finally, why this evidence would be both favorable to

him and material. United States v. Rosario-Peralta, 175 F.3d 48,

55-56 (1st Cir. 1999) (illustrating the kind of showing required);

Caro-Muniz, 406 F.3d at 30 (similar).

The district court's order that the government disclose

all cooperator-related material in its possession directly to

Prochilo was not faithful to these principles. Prochilo's motions

were general and speculative in nature. To be sure, many of the

materials he requested could, depending on the facts of a

particular case, contain material impeachment evidence. The

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government, however, maintained that it had already disclosed all

such evidence in Prochilo's case. At this juncture, it was up to

Prochilo to put that representation into question by identifying

specific materials he wanted the court to inspect in camera and by

showing them to be favorable and material. He failed to do so.

Accordingly, there was no basis for the court to conduct an in

camera inspection, much less order disclosure directly to Prochilo.

Prochilo's four primary arguments in support of the

court's order are unpersuasive. First, he speculates that the

undisclosed materials might reveal that the cooperating witness is

"flawed" or that the government's investigative techniques were

flawed. Where, as here, however, the government maintains that it

has turned over all material impeachment evidence, speculation is

insufficient to permit even an in camera review of the requested

materials.

Second, Prochilo appears to suggest that the materials

that he desires could help substantiate an entrapment defense. For

starters, Prochilo has yet to assert an entrapment defense. But

even if he had, Brady already requires the government to disclose

all favorable and material evidence in its possession to the

defendant; this includes any evidence indicating that the witness

had improperly induced Prochilo or others to commit crimes.

Nothing in the record of this case suggests that the government has

failed to turn over such evidence.

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 Third, Prochilo claims that at a hearing the government

stated that this is the only ATF investigation on which the witness

worked that has resulted in a prosecution. This "lack of

prosecution," he contends, "begs for disclosure as it is certainly

relevant to the issue of [the witness's] credibility regarding the

reasons that the other matters were not prosecuted." The

government never made such a statement, however. At the hearing,

the government stated only that none of the other cases had

resulted in a trial. When questioned at oral argument in this

court, the government stated that some of the investigations did in

fact result in prosecutions.

Fourth, Prochilo makes the familiar argument that he is

entitled to the requested materials because only his counsel, not

the government or the district court, will be able to judge what

evidence is both favorable to him and material. The Supreme Court

has already rejected this argument. Ritchie, 480 U.S. at 59

("Defense counsel has no constitutional right to conduct his own

search of the [government's] files to argue relevance."). Brady

did not create a broad rule of discovery in criminal cases. See

id. at 59-60.

In sum, the district court's approach shifted from the

government to the defendant the primary authority to assess whether

material in the government's possession must be disclosed, and in

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so doing endorsed a broad rule of discovery in criminal cases;

Brady permits neither. See Navarro, 737 F.2d at 631.

II. Elvis Guerrero

In this case a sting operation set up by federal agents

resulted in the arrests and indictments of Elvis Guerrero and two

others for attempting to purchase cocaine. The government charged

all three with conspiring to distribute cocaine and with attempting

to possess cocaine with the intent to distribute. See 21 U.S.C. §§

846, 841(a)(1); 18 U.S.C. § 2.

The government's case against Guerrero hinges almost

exclusively on the testimony of a long-time government cooperator

who had played an integral role in the sting. The government

disclosed to Guerrero impeachment evidence that it considered

discoverable under Brady. This evidence included information that

the witness had been paid $5,000 for her work on the case, a

redacted report of her criminal and probation record, and

information indicating that she had worked for the government for

many years.

Not satisfied with the extent of the disclosure, Guerrero

filed a motion to compel further discovery, requesting that the

court order the government "to produce all information in its

possession, custody, or control, regarding the [witness]," and

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identifying several categories of information.2 The motion also

explained generally how each category of evidence could contain

useful impeachment evidence.

The motion to compel was addressed at a final pretrial

conference, during which the government maintained that it had

reviewed the witness's voluminous file and had turned over all

Brady material in its possession. Despite this representation, the

district court granted the defendant's motion in its entirety,

telling the government to "give him everything." The court further

ruled that, to the extent that the government had doubts about

particular materials, it could ask the court to review those

materials in camera.

The government filed a motion for reconsideration,

stating that it had supplemented its disclosure, turning over "the

CW's [(cooperating witness's)] criminal history; a detailed listing

2
The motion to compel encompassed the following categories:
(1) information about the government's prior use of the cooperator,
including the case name and number of each prosecution in which she
had been used by any federal, state, or local law enforcement
agency as a witness, a cooperating individual, or source of
information; (2) all agreements between the witness and any
federal, state, or local law enforcement entity, all documents
reflecting payments made to her or on her behalf, and any
information regarding promises, rewards or inducements (including
preferential treatment) to the witness, her family, or her friends
and associates; (3) the witness's arrest and conviction record and
all information concerning any unauthorized criminal activity or
misconduct by her, as well as any prison records; (4) information
regarding any assets the cooperator had obtained from criminal
activity over the last 15 years; and (5) information reflecting her
bad character or matters relevant to her credibility, including
evidence of impairments, poor memory, and bias.

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of payments the CW received in this case as well as in other

investigations and/or cases over the past 17 years, reflecting both

the years of payment and number of cases; information about the

CW's immigration status; and four cooperation agreements between

the Drug Enforcement Administration ('DEA') and the CW, including

the cooperation agreement in force during this case and one

currently in force as the CW continues to work with the DEA." The

government maintained that no other material in its possession was

discoverable under Brady. As in Prochilo's case, the prosecutors

asked the court, if it were to deny reconsideration, to also

exclude the witness from testifying so that an immediate appeal

would lie. The district court denied the motion for

reconsideration and excluded the witness.

Discussion

Applying the same standards as we have applied in

reviewing the government's appeal in Prochilo's case, we cannot

discern a basis for concluding that Guerrero met his burden of

articulating with some specificity what evidence he hopes to find

in the requested materials, why he thinks the materials contain

this evidence, and why this evidence would be both favorable to him

and also material. Rosario-Peralta, 175 F.3d 48, 55-56.

The motion to compel discovery broadly requested access

to all cooperator-related materials in the government's possession

and merely speculated that these materials could contain material

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impeachment evidence. Such a showing is insufficient to permit

even an in camera review of the disputed materials. Nevertheless,

the district court once again ordered the government to disclose

all cooperator-related materials directly to the defendant.

Consequently, the court erred both in its disclosure ruling and to

the extent that it agreed to conduct an in camera review of certain

cooperator-related materials.

We do not, however, completely rule out in camera review

here. On remand, Guerrero should be allowed to request access to

specific materials and to make a case for in camera inspection of

those materials. In his appellate brief, Guerrero does endeavor to

make the necessary particularized showing. In support of his

request for the files of unrelated cases on which the cooperator

worked, Guerrero says that he has evidence showing that she was

paid widely varying amounts for her work (e.g., $18,700 in one case

and $100 in another). He argues that the case files may reveal

that the witness worked on a commission basis, that is, payments to

her were dependent on how many defendants she implicated. Access

to the case files, Guerrero claims, will allow him to determine

whether or not this commission theory is accurate and, if it is,

will provide him with further grounds for impeachment. Whether

such a showing is sufficient to justify an in camera review of

certain files is committed to the discretion of the district court

in the first instance.

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 A couple of loose ends remain. First, Guerrero's

suggestion that the Confrontation Clause of the Sixth Amendment

provides an independent ground for upholding the district court's

order is incorrect. The Supreme Court has thus far only evaluated

disclosure claims like Guerrero's under the Due Process Clause of

the Fifth and Fourteenth Amendments. United States v. Bagley, 473

U.S. 674-78 (1985); see also Ritchie, 480 U.S. at 51-54. Second,

his argument about the government's handling of a videotape of the

alleged drug transaction is not properly before us.

III. Conclusion

We reverse the exclusion order in No. 09-1450 (Prochilo),

vacate the exclusion order in No. 09-1523 (Guerrero), and remand

both cases for further proceedings consistent with this opinion.

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