Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 811

Cygnus Systems, Inc. v. Microsoft Corporation, et al

Doc. 811

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court notes that Defendant has not requested the material pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963). Brady and due process requires a prosecutor to disclose material exculpatory evidence on its own motion and without request. Singh v. Prunty, 142 F.3d 1157, 1161 (9th Cir.) (citing Kyles v. Whitley, 514 U.S. 419, 432-34 (1995) and United States v. Agurs, 427 U.S. 97, 107-08 (1976)). However, Brady only applies to materials within the government's control. United States v. Achiele, 941 F.2d 761, 764 (9th Cir. 1991), citation omitted. Because the requested materials do not exist, disclosure pursuant to Brady is not appropriate.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA, Plaintiffs, vs. IRVIN LAZARO MALBOA-PENA, Defendants.

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No. CR 07-756-TUC-CKJ ORDER

Pending before the Court is Defendant's Motion for Disclosure [Doc. # 65]. Defendant has requested documents upon which Agent Heston will rely during the government's case-in-chief to support his bases and reasons for his expert opinion on tandem driving. Specifically, Defendant seeks statistics from the Department of Homeland Security regarding incidents of tandem driving that result in stops but no arrest. The government has filed a response in which it asserts that the Border Patrol does not maintain statistics relating to "in tandem" driving.1

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The government is required to disclose, upon a defendant's request, not only expert witnesses it intends to use in its case in chief, but also a summary of the expected testimony and the bases and reasons for the opinion. United States v. W. R. Grace, 493 F.3d 1119, 1131 (9th Cir. 2007). The government asserts that the Border Patrol does not maintain statistics relating to "in tandem" driving. Although not specifically stated by the government, the Court concludes, therefore, that Agent Heston does not rely on such statistics as a basis or reason for his opinion. Accordingly, IT IS ORDERED the Motion for Disclosure [Doc. # 65] is DENIED. DATED this 10th day of October, 2007.

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