USA v. Thoms et al

Filing 141

Order on Motion to Compel

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
TRACE RAE THOMS, and
JENNIFER ANNE THOMS,

3:10-cr-069-JWS-JDR
ORDER
REGARDING
MOTION TO COMPEL
DISCOVERY
(Docket No. 95)

Defendants.

Defendant Trace Thoms seeks an order compelling discovery on the
written methodology governing the inclusion and exclusion of State investigations
of marijuana grow operations included in Investigator Young’s study referenced in
his affidavit for search warrant of the Thoms’ residence. Thoms seeks a list of
investigations where the scent of marijuana was purportedly detected in outside air
and no warrant was request, as well as statistics relating to the detection of
marijuana in those investigations.
The discovery is sought to aid in the defendant’s attack upon the
sufficiency of Search Warrant 3PA-10-56-SW which was issue by the Palmer District
Court Judge Zwink. The defendant relies upon Federal Criminal Rule 16(a)(1)(F)

which provides that the government must permit a defendant to inspect and/or copy
or photograph the results or reports of any scientific text or experiment with items
which are material to preparing a defense if the government intends to use the item
in its case-in-chief at trial.
Thoms is entitled to a Franks1 hearing on his allegation that Trooper
Young knowingly presented a flawed study only if he can meet the threshold
showing of that claim for a Franks hearing. In Franks the Supreme Court carefully
balanced the right of a defendant to demonstrate that an affiant intentionally or
recklessly presented false information or left out material information from his
affidavit with the desire of the defendant to seek discovery or an opportunity to
cross-examine the affiant.
The magistrate judge has concluded that Trooper Young’s study is not
necessary for the affidavit on its face to contain probable cause. Thus, the claim that
Trooper Young’s study was flawed is readily dispensed with in the suppression
motion. Essentially, the motion to compel discovery seeks to conduct a fishing
expedition to see if Trooper Young’s study contains flawed methodology. Because
the study can be disregarded in a review of the affidavit, there is no longer a need
to demonstrate that the study was flawed.

1

Franks v. Delaware, 438 U.S. 154 (1978).

10-cr-069-JWS-JDR THOMS, Trace @95 Order Re Motion for Discovery_mtd.wpd

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The production of the materials sought is not probative of whether the
trooper knowingly presented false data to the State court. Rule 16(a)(1)(F) does not
require the production of investigative and police reports concerning the underlying
data in Investigator Young’s marijuana smell study. The State Investigator’s report
of prior cases were not prepared for use in the underlying federal prosecution. The
federal prosecutor is not intending to use Trooper Young’s study in the government’s
case-in-chief.
Federal Rule of Criminal Procedure 16(a)(2) provides that the discovery
or inspection of reports, memoranda, or other internal government documents made
by an attorney for the government in connection with the investigating or prosecuting
the case are not subject to disclosure. See United States v. Fort, 472 F.3d 1106 (9th
Cr. 2007) (holding that an investigator’s report prepared by a local police department
prior to a federal prosecutor’s involvement qualified for protection from discovery
under Rule 16(a)(2) F.R.Cr.P.). In Fort, the court noted that the government’s
disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963) or other
disclosure rules was not at issue.
The defendant’s need for the discovery sought is not heightened as a
result of his motion to suppress. The underlying materials to support Young’s study
are no longer relevant because the government does not rely upon the study to

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demonstrate the validity of the search warrant.2 No showing has been made that
the items requested are materials upon which a government expert witness intends
to rely at trial.
The defendant, of course, can gather information to cross-examine
Trooper Young should he testify at trial. Under Rule 16 of the Federal Rules of
Criminal Procedure the defendant is not entitled to require the government to
prepare and produce all such information that might be used at trial. The United
States is not required to produce as discovery documents in the hands of a State
agency such as investigative reports in unrelated cases. Should the defendant
issue a subpoena for such documents the State would then have an opportunity to
assert any privilege it may have against their production.
For the foregoing reasons the Motion to Compel Discovery is hereby
DENIED.
DATED this 11th day of January, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

2

The defendant might be entitled to the materials upon a showing that the
United States intends to call Trooper Young as an expert witness rather than
merely as an investigating officer to present the facts of the case.
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