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U.S. v. CAPUTO

June 10, 2005.

UNITED STATES OF AMERICA
v.
ROSS A. CAPUTO and ROBERT M. RILEY.



The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

MEMORANDUM OPINION AND ORDER

This opinion addresses three criminal discovery motions: (1) Defendants Ross Caputo and Robert Riley's motion to compel discovery under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1963); (2) Defendants' motion for a rule to show cause why four government hospitals have not complied with subpoenas issued pursuant to Federal Rule of Criminal Procedure 17; and (3) the prosecution's motion to quash those same subpoenas. The relevant facts associated with these motions are explained in this Court's earlier opinions. See United States v. Caputo, 288 F.Supp.2d 912 (N.D. Ill. 2003), and United States v. Caputo, 313 F.Supp.2d 764 (N.D. Ill. 2004). For the reasons provided below, we partially grant and partially deny Defendants' motion to compel discovery, (R. 151-1), deny Defendants' motion for a rule to show cause, (R. 150-1), and partially grant and partially deny the prosecution's motion to quash the four subpoenas, (R. 154-1).

LEGAL STANDARDS

  I. Brady v. Maryland

  Brady requires the prosecution to disclose "evidence favorable to an accused." 373 U.S. at 87. "Evidence favorable to an accused" is exculpatory and impeachment evidence that is material to either the issue of guilt or punishment. Strickler v. Greene, 527 U.S. 263, 280 (1999). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). The prosecution must disclose, even in the absence of a request from the defendant, all such evidence known by all individuals acting on its behalf in the case at hand. Kyles v. Whitley, 514 U.S. 419, 437 (1995).

  II. Federal Rule of Criminal Procedure 16

  Federal Rule of Criminal Procedure 16(a)(1)(E)(i) requires the prosecution to permit a defendant to inspect documents and objects that are "within the government's possession, custody, or control" and "material to preparing the defense." Documents are within the government's possession, custody, or control if the prosecution has knowledge of and access to them. See United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995). Documents are "material to preparing the defense" if they could "significantly help? in `uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment and rebuttal.'" United States v. Gaddis, 877 F.2d 605, 611 (7th Cir. 1989) (quoting United States v. Felt, 491 F. Supp. 179, 186 (D.D.C. 1979)); see also United States v. Marshall, 132 F.3d 63, 67-68 (D.C. Cir. 1998) (holding that even damaging inculpatory evidence can be material if it enables the defendant to alter significantly the quantum of proof in his favor by enabling him to prepare a strategy to confront the damaging evidence, conduct an investigation to discredit the damaging evidence, or present a defense that would not be undercut by the damaging evidence).

  A defendant, however, is only entitled to the production of these documents if he makes at least a prima facie showing of materiality. United States v. Thompson, 944 F.2d 1331, 1341 (7th Cir. 1991). To make a prima facie showing, a defendant cannot rely on general descriptions or conclusory arguments, but must convincingly explain how specific documents will significantly help him uncover admissible evidence, prepare witnesses, or corroborate, impeach, or rebut testimony.*fn1 The court should also consider the materials that have already been produced, the availability of the requested materials from other sources, and the defendant's own knowledge. Ross, 511 F.2d at 763.

  III. Federal Rule of Criminal Procedure 17

  Federal Rule of Criminal Procedure 17(c) permits the use of subpoenas to "order the witness to produce any books, papers, documents, data, or other objects the subpoena designates" and permits the court to "quash or modify the subpoena if compliance would be unreasonable or oppressive." A defendant is entitled to subpoena documents if he shows:
(1) that the documents are evidentiary and relevant [sic]; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general `fishing expedition.'
United States v. Nixon, 418 U.S. 683, 699-700 (1974). It is the duty of this Court to ensure that a "subpoena is good in its entirety and it is not upon the person who faces punishment to cull the good from the bad." Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951). ANALYSIS

  I. Brady v. Maryland

  The parties dispute the applicability of Brady to the issues presented in this motion to compel discovery. The prosecution correctly asserts that Brady is only a rule of disclosure. See United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996) ("Brady thus is a disclosure rule, not a discovery rule."). Defendants, nonetheless, assert that the prosecution is obliged to "produce" two broad categories of discovery: (1) all documents related to an alleged FDA policy or practice of permitting manufacturers to continue to market medical devices pending the resolution of modification issues and (2) all documents related to any government hospital's evaluation or purchase of a Sterrad sterilizer that refer to or relate to the Plazlyte sterilizer or AbTox. (R. 151, Defs.' Mot. to Compel Discovery.) We disagree.

  The prosecution is only obliged by Brady to disclose all favorable evidence known by all individuals acting on its behalf in the case at hand. Kyles, 514 U.S. at 437. The documents that Defendants are requesting are not in the possession of anyone acting on behalf of the prosecution; they are in the possession of the FDA or government hospitals.*fn2 (R. 153, Defs.' Mem. in Support of Mot. to Compel Discovery at 4-7.) Furthermore, it is unknown whether any of the requested documents contain exculpatory or impeachment evidence that is material to either the issue of guilt or punishment. For both of these reasons, Brady is not applicable to this motion to compel discovery. II. Federal Rule of Criminal Procedure 16

  Defendants request the production of two broad categories of discovery: (1) all documents related to an alleged FDA policy or practice of permitting manufacturers to continue to market medical devices pending the resolution of modification issues and (2) all documents related to any government hospital's evaluation or purchase of a Sterrad sterilizer that refer to or relate to the Plazlyte sterilizer or AbTox. (R. 151, Defs.' Mot. to Compel Discovery.) For the reasons provided below, we find that Defendants have not made a prima facie showing that the requested ...


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