United States v. Joshua Lucas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10103
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-00197-EMC-1

JOSHUA LUCAS,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding

Argued and Submitted March 16, 2016
San Francisco, California

Filed November 8, 2016

Before: M. Margaret McKeown, Kim McLane Wardlaw,
and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman
2 UNITED STATES V. LUCAS

SUMMARY *

Criminal Law

The panel affirmed a conviction for being a felon in
possession of a firearm and ammunition in a case in which
the defendant, who was previously convicted in California
state court for the same conduct, moved to compel
information he contends will support a motion to dismiss the
federal indictment under the Double Jeopardy Clause.

The panel held that the district court did not err in
denying the defendant’s request for that information because
the defendant failed to make the requisite showing of
materiality under Fed. R. Crim. P. 16 and failed to
adequately challenge the government’s representation that it
does not have any Brady material.

COUNSEL

Daniel Blank (argued), Assistant Federal Public Defender;
Carmen A. Smarandoiu, Research and Writing Attorney;
Steven G. Kalar, Federal Public Defender; Office of the
Federal Public Defender, San Francisco, California; for
Defendant-Appellant.

Anne M. Voigts (argued), Assistant United States Attorney;
Barbara J. Valliere, Chief, Appellate Division; Brian J.
Stretch, Acting United States Attorney; United States

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 UNITED STATES V. LUCAS 3

Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.

OPINION

TALLMAN, Circuit Judge:

Joshua Lucas appeals his federal conviction for being a
felon in possession of a firearm and ammunition after his
earlier California conviction for the same conduct. His
appeal turns on a discovery issue: whether the district court
erred by denying his motion to compel information he
contends will support a motion to dismiss the federal
indictment under the Double Jeopardy Clause of the United
States Constitution. See Petite v. United States, 361 U.S.
529, 530–31 (1960); Abbate v. United States, 359 U.S. 187,
189–96 (1959). Because Lucas failed to either make the
requisite showing of materiality under Federal Rule of
Criminal Procedure 16 or adequately challenge the
government’s representation that it does not have any Brady
material, we affirm.

I

On October 15, 2013, two Bay Area Rapid Transit
(“BART”) police officers saw Lucas and two others evade
the fare to ride a BART train at the Powell Street Station in
San Francisco, California. One of the officers approached
Lucas, who admitted he did not have a BART ticket. When
the officer turned to speak to the second officer, Lucas
started to run. The officers chased after him and warned him
that he would be tased if he did not stop. Lucas kept running.
One of the officers then activated his taser, striking Lucas in
the back. As Lucas fell to the ground, a Taurus PT738 .380-
caliber handgun fell out of his shorts. The pistol, the officers
4 UNITED STATES V. LUCAS

discovered, was loaded with four rounds of .380-caliber
Hornady ammunition 1 and two rounds of 7.65-millimeter
ammunition. During the incidental search of Lucas
following his arrest, officers found a second handgun—a
stolen Colt firearm—loaded with one round of .380-caliber
Hornady ammunition, five rounds of .32-caliber PAC
ammunition, and one round of 7.65-millimeter ammunition.
Subsequent investigation established that both firearms and
the ammunition had previously traveled in interstate
commerce.

California state authorities charged Lucas by
information with being a felon in possession of a firearm in
violation of California Penal Code section 29800. Lucas
pleaded guilty to this charge on October 31, 2013. On
December 9, 2013, he was given a two-year suspended
sentence, one year in county jail, and three years of
probation. Because he had earned good-time credits and
credit for time served, Lucas was set for release from state
custody on April 15, 2014.

On April 3, 2014, a federal grand jury returned a one-
count indictment against Lucas, charging him with being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). The federal charge was based on the same
October 15, 2013 BART incident for which Lucas had been
prosecuted and punished in state court. On April 14, 2014,

1
The government describes this ammunition as “hollow point,” a
type of ammunition that expands inside the target’s tissue to “increase
its effective diameter” and “greatly increase[ ]” the “wounding
performance” of a bullet. Tom Warlow, Firearms, the Law, and
Forensic Ballistics 212 (3d ed. 2012), https://books.google.com/books/
about/Firearms_the_Law_and_Forensic_Ballistics.html?id=1jHNBQA
AQBAJ (book sample).
 UNITED STATES V. LUCAS 5

the district court issued a writ of habeas corpus ad
prosequendum directing state authorities to bring Lucas
before the district court to face his federal criminal charge.
On April 16, 2014, Lucas completed his state sentence and
was taken directly from state custody to the district court for
an initial appearance on his federal charge. 2

II

After Lucas was federally charged, his defense counsel
asked the federal prosecutor whether she had obtained a
waiver of the government’s Petite policy, which generally
precludes a successive federal prosecution after a state
prosecution based on the same conduct unless (1) the case
involves a substantial federal interest; (2) the prior
prosecution left that substantial federal interest
unvindicated; (3) the defendant’s conduct constitutes a
criminal offense and the government believes sufficient
evidence exists to sustain a conviction; and (4) the
subsequent prosecution has been approved by the
appropriate Assistant Attorney General. See U.S. Attorneys’
Manual § 9-2.031 (1997) (“Petite policy”). 3 The prosecutor
replied that she had obtained a Petite waiver and that the
substantial federal interest was two-fold: the incident had
2
Although the federal prosecutor at Lucas’s initial appearance
represented that Lucas had three months remaining on his state sentence,
she later confirmed and agreed with defense counsel that Lucas had
served his entire state sentence.

3
The Petite policy is a set of internal guidelines promulgated by the
Department of Justice “for the exercise of discretion by appropriate
officers of the Department of Justice in determining whether to bring a
federal prosecution based on substantially the same act(s) or transactions
involved in a prior state or federal proceeding. See Rinaldi v. United
States, 434 U.S. 22, 27 (1977); Petite v. United States, 361 U.S. 529
(1960).” U.S. Attorneys’ Manual § 9-2.031.
6 UNITED STATES V. LUCAS

taken place in a BART station, and Lucas had not received
an adequate state sentence.

Lucas’s defense counsel later sent the prosecutor a
discovery request, seeking information that he hoped would
demonstrate that federal and state authorities had colluded in
prosecuting Lucas in violation of the Double Jeopardy
Clause of the Fifth Amendment. Citing Brady v. Maryland,
373 U.S. 83 (1963), defense counsel specifically requested:

any and all information regarding the
coordination of firearm investigations and
prosecutions between the federal government
here in the Northern District of California and
state law enforcement authorities in the City
and County of San Francisco, California, for
the past 10 years and particularly in the
instant case of Joshua Lucas.

The prosecutor refused to provide the information, asserting
that neither Federal Rule of Criminal Procedure 16 nor
Brady authorized counsel’s request. She further contended
that Rule 16 expressly barred the disclosure of internal
memoranda and reports between the various authorities.

Lucas then moved to compel the production of five
categories of evidence:

• Any formal policy or memorandum of
understanding between the U.S.
Attorney’s Office and the San Francisco
District Attorney’s Office, Sheriff’s
Department or Police Department
regarding coordination in the
investigation or prosecution of firearm
 UNITED STATES V. LUCAS 7

cases, including the “Trigger Lock”
program, that may have played a role in
the successive charging of Mr. Lucas in
this case. . . .

• All letters, emails, memoranda or other
existing documentation regarding any
informal agreement, understanding or
practice of coordination between the U.S.
Attorney’s Office and the San Francisco
District Attorney’s Office, Sheriff’s
Department or Police Department in the
investigation or prosecution of firearm
cases that may have played a role in the
successive charging of Mr. Lucas in this
case. . . .

• Any state/federal cross-designation 4 of
law enforcement officials involved in
firearms cases in San Francisco, that may
have played a role in the successive
charging of Mr. Lucas in this case. . . .

• All letters, emails, memoranda or other
existing documentation showing the
point at which federal authorities became
aware of the state prosecution against Mr.
Lucas and what communications

4
“Cross-designation” refers to the practice of swearing in a state law
enforcement officer as a special deputy United States marshal to assist
in joint state/federal task forces. It also includes administering a similar
oath to federal officers assisting in state prosecutions.
8 UNITED STATES V. LUCAS

occurred between federal and state
authorities, when they occurred and who
initiated them. . . .

• Any record of the claimed Petite waiver
in Mr. Lucas’s case, including when it
was obtained.

A

The district court referred the motion to United States
Magistrate Judge Laurel Beeler, who denied it after a
hearing. In her written order, Judge Beeler concluded that
Lucas had failed to make a preliminary showing of
inter-sovereign collusion to obtain discovery under Federal
Rule of Criminal Procedure 16, as required by United States
v. Zone, 403 F.3d 1101 (9th Cir. 2005). 5 Judge Beeler also
found that the first three categories of evidence Lucas sought
would establish only cooperation and could not establish
collusion. She further rejected Lucas’s argument that he was
entitled to the requested evidence under Brady and noted in
her written order that the government had represented that
no Brady material existed. Lucas timely objected to the
magistrate judge’s ruling.

5
Prior to issuing her ruling, the magistrate judge reviewed the
following discovery produced by the government: (1) a record of
proceedings in state court; (2) the BART police reports, which identify
the transit agency police officers involved in the investigation;
(3) witness statements; (4) the indictment in the federal case; (5) Lucas’s
criminal history; and (6) the firearm analysis showing that the firearms
recovered from Lucas had an interstate commerce nexus.
 UNITED STATES V. LUCAS 9

B

District Judge Edward Chen then held a hearing on
Lucas’s objections. At the hearing, Lucas’s counsel
acknowledged that he had to make “some kind of threshold
showing” to obtain the requested discovery. He contended,
however, that he had made the required showing. His proffer
included a 2005 news article on federal “intervention” into
state firearm prosecutions, which described San Francisco’s
initiative to lower gun violence by referring convicted felons
who were caught with guns to the U.S. Attorney’s Office for
prosecution under federal “Trigger Lock” laws that provided
for extended sentences. See Jaxon Van Derbeken, ‘Trigger
Lock’ Law Helps Cut Gang-Related Killings in Half,
SFGATE (July 21, 2005, 4:00 AM) (“Trigger Lock”),
http://www.sfgate.com/bayarea/article/SAN-FRANCISCO-
Trigger-Lock-law-helps-cut-2621421.php.

Lucas also presented an affidavit attesting to the unique
circumstances of his case and highlighting the fact that he
was taken from state custody directly to federal court upon
completing his state sentence. The prosecutor represented at
the hearing that no state district attorney or law enforcement
officer had been cross-designated in this matter. This
representation was responsive to Lucas’s request for
information about whether officers involved in the federal
and state prosecutions were cross-designated. The
prosecutor reported at the hearing that the case agent in
Lucas’s federal case was an FBI agent.

Judge Chen overruled Lucas’s objections at the hearing
and later in a written order, concluding that Lucas had failed
to make a preliminary showing of inter-sovereign collusion
under Rule 16 as required under Zone. The district court
rejected Lucas’s claim that he was entitled to discovery
under Brady, finding that Lucas had not shown a “substantial
10 UNITED STATES V. LUCAS

basis for claiming materiality exists” to justify his discovery
requests under Brady. The court also found that Lucas was
not entitled to an in camera review of the government’s files.
The district court relied upon the government’s
representation that no Brady material regarding
inter-sovereign collusion existed and the government’s
promise that such evidence would be produced if it were
discovered.

To perfect the discovery issue for appeal, Lucas filed a
motion to dismiss the indictment under the Double Jeopardy
Clause. In his motion, Lucas conceded that he could not
meet his burden to obtain relief without the requested
discovery that the district court ostensibly denied him. The
district court denied Lucas’s motion to dismiss.

On December 17, 2014, Lucas was convicted of being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1) following a stipulated-testimony bench trial that
preserved Lucas’s right to appeal the district court’s
discovery ruling. On March 4, 2015, he was sentenced to
twenty-two months’ imprisonment and three years’
supervised release. Lucas filed a timely appeal of his
judgment and sentence. On January 26, 2016, Lucas was
released from federal custody. See Fed. Bureau of Prisons,
Inmate Locator, https://www.bop.gov/inmateloc/ (results for
“Joshua Lucas” or BOP Register Number 19687-111) (last
visited Oct. 19, 2016); see also United States v. Basher,
629 F.3d 1161, 1165 & n.2 (9th Cir. 2011) (taking judicial
notice of publicly-available information from the BOP
Inmate Locator).

III

We have jurisdiction to review the order denying Lucas’s
discovery requests under 18 U.S.C. § 1291 because a final
 UNITED STATES V. LUCAS 11

judgment has issued. See United States v. Doe, 705 F.3d
1134, 1149–50 (9th Cir. 2013). We review alleged Brady
violations de novo. Id. Lucas, however, does not present a
standard Brady claim, which would require him to show that
he was prejudiced by the government’s willful or inadvertent
suppression of favorable evidence. Id. at 1152; see also
Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[S]trictly
speaking, there is never a real ‘Brady violation’ unless the
nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have
produced a different verdict.”). Here, Lucas cannot point to
any existing favorable evidence to support his speculation.
Instead, he asserts that he is entitled to more information to
prove his suspicions under Brady or, in the alternative, under
Federal Rule of Criminal Procedure 16. 6 Lucas requests,
however, that we remand to the district court to conduct
further review to confirm that the government has
discharged its Brady obligations.

Lucas’s appeal thus presents questions about a ruling on
discovery, which we review for an abuse of discretion.
United States v. Alvarez, 358 F.3d 1194, 1210 (9th Cir.
2004) (“We review discovery questions, including alleged
Brady and Jencks Act rulings, for abuse of discretion.”); see
also United States v. Michaels, 796 F.2d 1112, 1115 (9th Cir.
1986) (reviewing denial of request for discovery under
Brady for abuse of discretion). “To find an abuse of
discretion, we must ‘have a definite and firm conviction that

6
“Although we are dealing here with [Lucas’s] discovery request
rather than his motion to dismiss, the two are clearly related: The
purpose of the discovery request is to [find evidence to] provide a basis
for the motion to dismiss. [Lucas] seeks information that, he hopes, will
establish his right, by virtue of the Double Jeopardy Clause, not to be
tried.” Zone, 403 F.3d at 1106.
12 UNITED STATES V. LUCAS

the district court committed a clear error of judgment.’”
Doe, 705 F.3d at 1150 (citation omitted). We cannot say this
standard is met on the record before us.

IV

The Double Jeopardy Clause provides that no person
shall be “subject for the same offence to be twice put in
jeopardy of life and limb.” U.S. Const. amend. V. This
clause does not prohibit successive prosecutions by separate
sovereigns—such as the federal government and the State of
California—arising out of the same acts:

“Every citizen of the United States is also a
citizen of a State or territory. He may be said
to owe allegiance to two sovereigns, and may
be liable to punishment for an infraction of
the laws of either. The same act may be an
offence or transgression of the laws of both.”

Bartkus v. Illinois, 359 U.S. 121, 131 (1959) (quoting Moore
v. Illinois, 55 U.S. 13, 20 (1852)). There is, however, a
narrow exception to this dual-sovereign doctrine.

In Bartkus, the Supreme Court warned that the Double
Jeopardy Clause might proscribe consecutive federal and
state prosecutions when a later state prosecution is “a sham
and a cover for a federal prosecution, and thereby in essential
fact another federal prosecution.” Id. at 124. We have
adopted the Bartkus exception and found that, while
cooperation between prosecuting sovereigns does not
implicate the Double Jeopardy Clause, “collusion between
federal and state authorities could bar the second
prosecution.” United States v. Bernhardt, 831 F.2d 181, 182
(9th Cir. 1987); see also Zone, 403 F.3d at 1104.
 UNITED STATES V. LUCAS 13

In short: Cooperation is constitutional; collusion is not.
Impermissible collusion may be found when the prosecutors
of one sovereign “so thoroughly dominate[ ] or manipulate[
]” the prosecutorial machinery of the other sovereign “that
the latter retains little or no volition in its own proceedings.”
Zone, 403 F.3d at 1105 (alterations in original) (quoting
United States v. Guzman, 85 F.3d 823, 827 (1st Cir. 1996)).
Such collusion may occur when a second prosecution “is not
pursued to vindicate the separate interests of the second
sovereign, but is merely pursued as a sham on behalf of the
sovereign first to prosecute.” United States v. Guy, 903 F.2d
1240, 1242 (9th Cir. 1990).

We have recognized that, under Bartkus, “it is extremely
difficult and highly unusual” for a defendant to show that a
prosecution by one government was a “tool, a sham or a
cover for the other government.” United States v. Figueroa-
Soto, 938 F.2d 1015, 1019 (9th Cir. 1991). Indeed, in
Figueroa-Soto, we found that the Bartkus exception did not
apply when: (1) the state prosecuted the defendant at the
request of federal authorities; (2) federal agents assisted with
the state prosecution, sitting at the prosecutor’s table at trial
and testifying as witnesses; (3) the federal authorities
provided evidence against the defendant for use during the
state trial; (4) the federal sentencing hearing of a key witness
was delayed until after the witness testified in the state trial
against the defendant; (5) a federal forfeiture proceeding was
delayed so the state prosecution would not be adversely
affected; (6) federal agents contacted the state’s witnesses
before trial; and (7) the state prosecutor was cross-
designated as a special assistant U.S. attorney to prosecute
the defendant in federal court and was paid by the state for
his role in the federal prosecution. Id. at 1018–19. We noted
that Bartkus permits “very close coordination in the
prosecutions, in the employment of agents of one sovereign
14 UNITED STATES V. LUCAS

to help the other sovereign in its prosecution, and in the
timing of the court proceedings so that the maximum
assistance is mutually rendered by the sovereigns.” Id. at
1020.

Defendants in other cases have faced similar difficulty in
seeking remand for an evidentiary hearing on their double
jeopardy defense. In United States v. Koon, for example, a
defendant’s “conclusory allegations” of collusion were
insufficient to obtain an evidentiary hearing despite evidence
that:

(1) the federal investigation began when the
crime occurred and remained active during
the state investigation and prosecution;
(2) federal and state authorities cooperated
with each other, and the state delivered
evidence and investigative reports to federal
authorities after the state prosecution;
(3) witnesses who testified in the federal trial
were interviewed by the federal authorities
soon after the incident; and (4) [a] videotape
[recording of testimony in the state trial] was
admitted into evidence in the federal trial.

34 F.3d 1416, 1439 (9th Cir. 1994), rev’d in part on other
grounds, 518 U.S. 81 (1996). We held that such evidence
“at most show[s] cooperation between federal and state
authorities” and does not justify remand for an evidentiary
hearing. Id.

A

Lucas contends that, to the extent it applies, Federal Rule
of Criminal Procedure 16 authorizes his requests for
discovery regarding the degree to which federal and state
 UNITED STATES V. LUCAS 15

authorities cooperated in his case. Subject to the exemptions
described in Rule 16(a)(2), Rule 16(a)(1)(E) requires that,
upon a defendant’s request, the government must “disclose
any documents or other objects within its possession,
custody or control” that are “material to preparing the
defense.” United States v. Hernandez-Meza, 720 F.3d 760,
768 (9th Cir. 2013) (quoting Fed. R. Crim. P. 16(a)(1)(E)).
“[T]o obtain discovery under Rule 16, a defendant must
make a prima facie showing of materiality.” Zone, 403 F.3d
at 1107 (quoting United States v. Mandel, 914 F.2d 1215,
1219 (9th Cir. 1990)). This “low threshold” is satisfied if
the information requested would have “helped” Lucas
prepare a defense. Hernandez-Meza, 720 F.3d at 768.
“Neither a general description of the information sought nor
conclusory allegations of materiality suffice; a defendant
must present facts which would tend to show that the
[g]overnment is in possession of information helpful to the
defense.” Mandel, 914 F.2d at 1219. Lucas’s assertion that
he met this threshold for materiality under Rule 16 is
foreclosed by Zone.

In Zone, we applied Rule 16 to facts nearly identical to
those in Lucas’s case and found that the district court did not
abuse its discretion in denying Zone’s request for discovery
to develop his double jeopardy defense. 403 F.3d at 1107. 7
Similar to the facts here, after Zone pleaded guilty to a
firearm charge in state court, he was indicted in federal court
for being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). Id. at 1103. Like Lucas, Zone’s

7
We reject the government’s argument that Lucas waived any
reliance on Rule 16 in his discovery efforts. The district court applied
Zone and Rule 16 to Lucas’s discovery requests. Lucas contends on
appeal that, if Rule 16 does apply, he has met the required showing of
materiality. Therefore, the Rule 16 argument is properly before us.
16 UNITED STATES V. LUCAS

federal charge was based on the same conduct as his state
charge. Id. Suspecting that federal prosecutors had sought
to secure a guilty plea in state court to use in the federal case,
Zone asked for discovery to develop a double jeopardy
defense. Id. at 1103–06. Specifically, Zone requested
records from the weekly meetings of a federally-funded task
force comprising the U.S. Attorney’s Office, federal agents,
county deputy district attorneys, and local police department
investigators. Id. at 1103. The task force was formed to
address gun violence by “promot[ing] cooperation and
information-sharing” and “discuss[ing] and coordinat[ing]
participants’ activities” for gun-related offenses. Id.

The district court denied Zone’s discovery request and
subsequently denied Zone’s motion to dismiss after
concluding that he had not established a prima facie double
jeopardy claim. See id. at 1105. In support of his motion to
dismiss, Zone had proffered newspaper articles about the
task force. Id. We held that Zone’s proffered articles
contained “general information that at most suggest[ed] that
federal and state prosecutors collaborate[d] as equal,
independent partners in the task force’s weekly strategy
sessions.” Id. We further held that Zone failed to “make a
prima facie showing of materiality” under Rule 16 because
he did not make “a preliminary showing of ‘inter-sovereign
collusion,’ as opposed to mere ‘inter-sovereign
cooperation.’” Id. at 1107 (quoting Mandel, 914 F.2d at
1219). We therefore upheld the district court’s denial of
Zone’s discovery request and motion to dismiss and denied
Zone’s “request that we remand for an evidentiary hearing
and further discovery.” Id.

Here, the district court properly found that Zone is
indistinguishable from Lucas’s case and that Lucas failed to
make the threshold showing of materiality. Lucas’s
 UNITED STATES V. LUCAS 17

arguments to the contrary are unpersuasive. The Trigger
Lock article that Lucas presented to the district court, like the
news articles in Zone, merely describes the cooperation
between federal and state authorities in attempting to reduce
gun violence in San Francisco. 8 Lucas’s defense counsel
even acknowledged to the district court that the cooperation
described in the article “seems benign and seems just
cooperative.” See Trigger Lock, supra at 9 (“The number of
killings in San Francisco attributed to gangs . . . has dropped
by more than 50 percent so far this year from 2004, thanks
in part to intervention by federal law enforcement . . . to
identify the city’s most violent predators and subject them to
federal prosecution . . . .”).

In addition to the Trigger Lock article, Lucas’s proffer
included: (1) an affidavit from his defense counsel stating
that it was exceedingly rare for a firearm case to be charged
federally after an individual had completed a state court

8
Neither the appellate excerpts of record nor Lucas’s motions before
the district court include the Trigger Lock article upon which Lucas
relies. See Fed. R. App. P. 10(a) (stating that the record on appeal
includes original papers and exhibits filed in the district court, the
transcript of proceedings, and a certified copy of the district court’s
docket entries). At the hearing on Lucas’s motion to compel, however,
the district judge asked to see a copy of the Trigger Lock article, noting
that it had not been attached to Lucas’s motion to compel. Lucas’s
defense counsel then gave a copy of the article to the court and discussed
its contents with the court. Both the district court’s order denying the
motion to compel and the government’s brief on appeal provide the
website address for the article. The Trigger Lock article is thus part of
the record and we may consider it here. See Townsend v. Columbia
Operations, 667 F.2d 844, 849 (9th Cir. 1982) (holding that documents
were properly part of the appellate record when “they were submitted at
the request of the district judge, were physically in the courtroom at the
argument, were referred to and relied on by both sides in that argument,
and were the basis of the opinion dictated by the court at the end of the
argument”).
18 UNITED STATES V. LUCAS

sentence for the same conduct; (2) an argument that the
“weak” federal interest in this case—the incident’s
occurrence at a mass transit station—demonstrated that the
federal prosecution sought to vindicate state, rather than
federal, interests in violation of the Petite policy; and (3) a
claim that the federal prosecution’s “perfect timing” with the
end of Lucas’s state sentence evidenced that federal and state
authorities engaged in more than mere cooperation.

We hold that the district court did not abuse its discretion
in finding that Lucas’s proffer failed to meet the threshold
for materiality under Rule 16. As the district court noted, the
prosecutor represented that an informal poll of federal
prosecutors in her office revealed that, in the previous five
years, five federal cases like Lucas’s were prosecuted after
the defendant had completed a state sentence for the same
conduct. Lucas contends that this informal poll actually
supports his argument that his prosecution was unusual. But
an unusual prosecution is not enough to meet the threshold
for materiality under Rule 16.

Lucas’s claim of collusion based on the “weakness” of
the federal interest in this case and the inadequacy of his state
sentence is similarly unavailing. As Lucas acknowledges,
the Petite policy does not confer substantive rights upon him.
See United States v. Snell, 592 F.2d 1083, 1087 (9th Cir.
1979). Thus, while he may quarrel with the strength of the
federal interest asserted in this case, our review does not
extend to revisiting the wisdom of the internal prosecutorial
decisions made by the Department of Justice. It is perfectly
sensible that federal authorities sought to prosecute Lucas
after his comparatively light state sentence for possessing a
firearm as a convicted felon. Their decision to do so is not
emblematic of any undue influence by state authorities.
 UNITED STATES V. LUCAS 19

The allegedly “perfect timing” of the federal prosecution
also fails to establish the threshold materiality showing
under Rule 16. Lucas argues on appeal that, because of
California’s complicated scheme for awarding good-time
credits, release dates for state inmates are difficult to predict.
According to Lucas, the fact that he was transferred from
state custody directly to federal court is “suspicious[ ]” and
“indicates an unusually close relationship between the state
and federal authorities.” We find nothing unusual about the
federal prosecutor’s petition for a writ of habeas corpus ad
prosequendum and the district court’s issuance of that writ
just prior to Lucas’s release from state custody.
Additionally, at the time, the federal prosecutor believed that
Lucas had three months remaining on his state sentence. Her
mistaken belief suggests that federal and state authorities
were not operating as one collusive machine, but
permissively communicating—and even miscommunicating
—about Lucas’s release date.

We conclude on this record that, under Zone and the high
evidentiary standard in double jeopardy claims, the district
court did not abuse its discretion in ruling that Lucas failed
to make a sufficient showing of materiality under Rule 16.

B

Seeking to avoid Rule 16’s materiality requirement,
Lucas argues that he is not required to make a preliminary
showing of materiality because he brought his discovery
requests under Brady. However, Lucas has yet to identify
any Brady material that supports his claim.

1

Under Brady, the government must disclose information
favorable to the accused that “is material either to guilt or to
20 UNITED STATES V. LUCAS

punishment.” 373 U.S. at 87. Evidence is material for Brady
purposes if a “reasonable probability” exists that the result
of a proceeding would have been different had the
government disclosed the information to the defense. United
States v. Bagley, 473 U.S. 667, 682 (1985). A reasonable
probability is one that is “sufficient to undermine confidence
in the outcome” of either the defendant’s guilty plea or trial.
Id.; see Smith v. Baldwin, 510 F.3d 1127, 1148 (9th Cir.
2007) (en banc) (citing Sanchez v. United States, 50 F.3d
1448, 1454 (9th Cir. 1995)). “The government has a duty to
disclose Brady material even in the absence of a request by
the defense.” United States v. Blanco, 392 F.3d 382, 387
(9th Cir. 2004).

Here, the government affirmatively represented that it
did not possess evidence of inter-sovereign collusion. Lucas
contends that this “conclusory representation” did not
discharge the government’s obligations under Brady
because the government must either produce information
responsive to his discovery requests or submit whatever it
possesses to the district court for an in camera review to
confirm that no such evidence exists. Lucas’s argument,
however, is flawed.

It is the government, not the defendant or the trial court,
that decides prospectively what information, if any, is
material and must be disclosed under Brady. While we have
encouraged the government to submit close questions
regarding materiality to the court for in camera review, the
government is not required to do so. See Milke v. Ryan,
711 F.3d 998, 1016 (9th Cir. 2013). And, as the Supreme
Court has explained, Brady does not permit a defendant to
sift through information held by the government to
determine materiality:
 UNITED STATES V. LUCAS 21

A defendant’s right to discover exculpatory
evidence does not include the unsupervised
authority to search through the
[government’s] files. Although the eye of an
advocate may be helpful to a defendant in
ferreting out information, this Court has
never held . . . that a defendant alone may
make the determination as to the materiality
of the information. Settled practice is to the
contrary. In the typical case where a
defendant makes only a general request for
exculpatory material under Brady, it is the
State that decides which information must be
disclosed. . . . Defense counsel has no
constitutional right to conduct his own search
of the State’s files to argue relevance.

Pennsylvania v. Ritchie, 480 U.S. 39, 59–60 (1987)
(footnote and citations omitted); see also Weatherford v.
Bursey, 429 U.S. 545, 559 (1977) (“There is no general
constitutional right to discovery in a criminal case, and
Brady did not create one.”).

“Unless defense counsel becomes aware that other
exculpatory evidence was withheld and brings it to the
court’s attention, the prosecutor’s decision on disclosure is
final.” Ritchie, 480 U.S. at 60 (footnote omitted). To
challenge the government’s representation that it lacks
Brady information, Lucas must either make a showing of
materiality under Rule 16 or otherwise demonstrate that the
government improperly withheld favorable evidence. See,
e.g., id. at 58 n.15 (“[Defendant], of course, may not require
the trial court to search through [a statutorily-protected child
22 UNITED STATES V. LUCAS

abuse] file without first establishing a basis for his claim that
it contains material evidence.”). He has not done so here. 9

For example, in United States v. Michaels, we upheld a
denial of the defendant’s motion to compel certain interview
notes under Brady where the defendant “offer[ed] no reason
for believing that the notes contain[ed] significant material
that [was] not contained in the typed [interview] summaries”
the government had already provided. 796 F.2d at 1116. We
also observed that “Brady does not establish a ‘duty to
provide defense counsel with unlimited discovery of
everything known by the prosecutor’” or permit the
defendant to “compel production of the notes so that he
could search through them for anything useful.” Id. (citation
omitted).

Similarly, in United States v. Mincoff, we affirmed the
district court’s denial of a Brady motion where the defendant
had “not identified any potentially exculpatory evidence that
was not disclosed to him.” 574 F.3d 1186, 1199–2000 (9th
Cir. 2009). We held that “‘mere speculation about materials
in the government’s files’ [does] not require the district court
to make those materials available, or mandate an in camera
inspection.” Id. at 1200 (quoting Michaels, 796 F.2d at
1116).

By contrast, in United States v. Blanco, we remanded to
the district court to “order full disclosure by the government
of any and all potential Brady . . . material” related to a

9
Lucas correctly observes that we have yet to decide whether Brady
applies to evidence that is relevant to a double jeopardy claim. We need
not decide that question here because, even assuming that Brady applies
to such evidence, Lucas still has not met the requisite showing to
challenge the government’s contention that it does not possess evidence
of inter-sovereign collusion.
 UNITED STATES V. LUCAS 23

particular trial witness where the defendant showed that the
government had suppressed Brady material concerning that
witness. 392 F.3d at 392–95. Likewise, in United States v.
Doe, we remanded to the district court to determine whether
the government violated its Brady obligations in responding
to the defendant’s discovery requests after the defendant had
made the required showing of materiality under Rule 16.
705 F.3d at 1150–53.

2

Relying on United States v. Agurs, 427 U.S. 97 (1976),
Lucas argues that the government must disclose all relevant
material in response to a defendant’s specific request for
information because Brady’s materiality standard is more
lenient in this circumstance than it is when the defense
makes no request or only a general request. Lucas
recognizes, however, that although Agurs “suggested that
the standard [of materiality] might be more lenient [where
the defense makes a specific request and the prosecutor fails
to disclose responsive evidence] than . . . [where] the
defense makes no request or only a general request,” Bagley
later set forth a single test for materiality that applies
regardless whether there was a specific request, a general
request, or no request for Brady material. Bagley, 473 U.S.
at 681–82 (modifying Agurs, 427 U.S. at 106). Under
Bagley’s standard, “evidence is material only if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” Id. at 682. The government’s obligation under
Brady thus does not change simply because Lucas made a
“specific” request for information.

Lucas further attempts to redefine the government’s
obligations under Brady by citing dicta discussing the
difficulty that prosecutors face before trial in determining
24 UNITED STATES V. LUCAS

what information will be material after trial. In United
States v. Olsen, we stated in a footnote that a “prosecutor’s
speculative prediction about the likely materiality of
favorable evidence . . . should not limit the disclosure of
such evidence, because it is just too difficult to analyze
before trial whether particular evidence ultimately will prove
to be ‘material’ after trial.” 704 F.3d 1172, 1183 n.3 (9th
Cir. 2013). Relying on this observation, Lucas asserts that
the government here should not be permitted to speculate
about whether the district court may find certain evidence
sufficient to support a double jeopardy claim. Instead, Lucas
argues that the government must disclose all of the evidence
in its possession responsive to Lucas’s discovery requests.

While Olsen encouraged prosecutors to err on the side of
disclosure, it did not alter the fundamental construct of
Brady, which makes the prosecutor the initial arbiter of
materiality and disclosure. See Ritchie, 480 U.S. at 60.
Thus, unless Lucas can make a showing of materiality or
demonstrate that the government has withheld favorable
evidence, he must rely on “the prosecutor’s decision
[regarding] disclosure.” Id. Lucas has not made the
requisite showing under Brady to contest the prosecutor’s
assertion that the government lacks any evidence of inter-
sovereign collusion.

Nor has Lucas shown that he is entitled to an evidentiary
hearing regarding the degree of cooperation between federal
and state authorities. In Zone, we denied the defendant’s
“request for remand and an evidentiary hearing because [the
defendant had] not presented any evidence of undue
coercion or collusion by federal authorities.” 403 F.3d at
1106 (citing Koon, 34 F.3d at 1439). Moreover, in Koon, we
held that the defendants’ proffered evidence did not warrant
remand for an evidentiary hearing where the defendants
 UNITED STATES V. LUCAS 25

provided more evidence of cooperation between federal and
state authorities than Lucas has here. Compare Koon,
34 F.3d at 1439, and supra at 14, with supra at 16–18.
Accordingly, the evidence Lucas has submitted does not
warrant remand for an evidentiary hearing.

V

For nearly forty years, the Supreme Court has reminded
us that “[t]here is no general constitutional right to discovery
in a criminal case, and Brady did not create one.”
Weatherford, 429 U.S. at 559. To obtain discovery under
Rule 16, Lucas must make the requisite showing of
materiality. And to challenge the government’s
representation that it does not have Brady evidence, Lucas
must do more than speculate that Brady material exists.
Because Lucas’s proffer is insufficient to compel the
government to provide the information he seeks, the district
court did not err in denying his request for that information.

AFFIRMED.