Everhart v. United States of America

Filing 42

ORDER denying 34 Motion to Bifurcate and denying 36 Motion to Compel. Signed by Judge Benjamin H. Settle. (MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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KYLE ANDREW EVERHART,
Petitioner,

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v.
UNITED STATES OF AMERICA,
Respondent.

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CASE NO. C16-5405 BHS
ORDER DENYING
RESPONDENT’S MOTION TO
AMEND SCHEDULING ORDER
AND DENYING WITHOUT
PREJUDICE PETITIONER’S
MOTION TO COMPEL

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This matter comes before the Court on the Government’s motion to continue

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and/or bifurcate the evidentiary hearing. Dkt. 34. Also before the Court is Petitioner’s

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motion to compel disclosure of a supplemental briefing that the Government filed under

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seal. Dkt. 36. The Court has considered the pleadings filed in support of and in opposition

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to the motions and the remainder of the file and hereby denies the motions for the reasons

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stated herein.

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I.

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BACKGROUND

On September 24, 2014, a jury found Petitioner guilty of Possession of

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Methamphetamine with Intent to Distribute under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),

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and 18 U.S.C. § 2. Cause No. CR13-5512, Dkt. 120. On December 15, 2014, the Court

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entered judgment in Petitioner’s case. Id., Dkt. 139. On December 17, 2014, Petitioner

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gave notice of appeal. Id., Dkt. 140. On February 11, 2016, the Court of Appeals for the

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Ninth Circuit affirmed Petitioner’s conviction. Id., Dkts. 216, 218.

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On May 26, 2016, Petitioner filed a petition under § 2255, presently before the

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court. Dkt. 1. On July 8, 2016, the Government responded. Dkt. 7. On August 1, 2016,

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Petitioner replied to the government’s response to his § 2255 petition. Dkt. 10. On

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August 9, 2016, he moved for appointment of counsel and for leave to amend his petition.

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Dkt. 11. On August 16, 2016, the Government responded to Petitioner’s motion for

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counsel and leave to amend. Dkt. 12.

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On September 13, 2016, the Court requested additional briefing on the issue of

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whether Petitioner had selectively waived his Miranda rights prior to being questioned

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about his involvement with suspected drug trafficking in Washington. Dkt. 13. On

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September 23, 2016, the Government filed supplemental briefing. Dkt. 14. On October

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17, 2016, Petitioner filed his supplemental brief. Dkt. 17.

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On November 1, 2016, the Court denied the § 2255 petition on most of its claims,

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but reserved ruling in part on the issue of “selective waiver.” Dkt. 18. The Court also

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ordered an evidentiary hearing and granted Petitioner’s motion for leave to amend and to

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appoint counsel. Id.

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On April 5, 2017, the Government filed a motion to amend the scheduling order

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by either bifurcating the proceeding or continuing it entirely. Dkt. 34. Additionally, the

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Government filed under seal an ex-parte supplemental briefing in support of its motion

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that describes information that the Government believes may be subject to disclosure
ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 2

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under Brady/Giglio if the case proceeds as scheduled. Dkt. 35. On April 10, 2017,

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Petitioner moved to compel production of the Government’s sealed supplemental

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briefing. Dkt. 36. Petitioner also responded in opposition to the Government’s motion for

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a bifurcation, and stated that an assessment of the motion to continue was impossible

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without access to the justifications for seeking a continuance set forth in the

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Government’s sealed pleading. Dkt. 37. On April 10, the Government responded in

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opposition to Petitioner’s motion to compel. Dkt. 38.

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II.
A.

DISCUSSION

Motion to Continue or Bifurcate
In this case, the Government seeks either a bifurcation or continuance of the

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evidentiary hearing on the basis that it possesses three pieces of information that may be

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of value to impeach the credibility of witnesses favorable to the Government, thus

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requiring Brady/Giglio disclosures, and that a bifurcation or continuance may obviate the

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need for disclosure. Under the Government’s argument in favor of bifurcation, it claims

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that the disclosure of these materials could be rendered moot if the testimony of

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Petitioner and his trial counsel reveal that counsel’s oversight of the “selective waiver”

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issue falls short of the ineffective assistance of counsel standard. Additionally, in support

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of its requests for either bifurcation or a continuance, the Government argues that the

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extended period before its witnesses are required to testify might allow an ongoing

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investigation to be resolved in a manner favorable to a potential witness, such that the

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resolution of the investigation obviates any need for a Brady/Giglio disclosure.

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ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 3

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In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the

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suppression of material evidence violates due process and will necessitate a new trial. 373

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U.S. at 87. “When the reliability of a given witness may well be determinative of guilt or

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innocence, nondisclosure of evidence affecting credibility falls within this general rule.”

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Giglio v. United States, 405 U.S. 150, 154 (1972) (internal quotation omitted). See also

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Ayala v. Chappell, 829 F.3d 1081, 1106 (9th Cir. 2016) (“’Evidence favorable to [the]

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accused’ includes evidence that would help a defendant impeach prosecution

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witnesses.”). When the Government is unsure of the impeachment value of certain

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information, the Ninth Circuit has required that it submit the information for in camera

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review. See United States v. Henthorne, 931 F.2d 29, 30–31 (9th Cir. 1991). As for the

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timing of such disclosures, “Brady requires pretrial disclosure of exculpatory information

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in time for it to be a value to the accused.” United States v. Acosta, 357 F. Supp. 2d 1228,

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1245 (D. Nev. 2005) (emphasis in original).

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To address the Government’s request, the Court addresses the Government’s

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duties under Brady/Giglio and whether the requested relief would be of convenience,

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avoid prejudice to a party, or expedite and economize in this case. See Fed. R. Civ. P. 42.

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In particular, the Court assesses (1) the Brady/Giglio information that has already been

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disclosed to Petitioner’s counsel regarding Agent Brady, and (2) currently undisclosed

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information that may implicate the credibility of another potential witness.

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1.

Agent Brady Materials

First, the Government addresses information regarding an investigation of Agent
Brady that was already disclosed in a Giglio letter sent to Petitioner’s counsel. That letter
ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 4

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describes an investigation by the Office of the Inspector General (“DOJ-OIG”) into

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missing evidence, namely a MacBook Air computer that was seized in Petitioner’s case.

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In that letter, the Assistant United States Attorney in this case noted that “DOJ-OIG has

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credible evidence that former FBI TFO Evan Brady took a laptop computer that was

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seized as evidence in the Everhart/Chalmers investigation,” and “[b]ased on DOJ-OIG’s

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investigation to date, it appears that Mr. Brady gave the computer to a former colleague

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in exchange for clothing items and equipment.” Dkt. 35-1 at 2.
Because this disclosure has already been made, the Court does not see how it is

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relevant to the Government’s argument in favor of a bifurcation or continuance. The

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Government’s argument for a continuance is based on the premise that, “[s]hould the

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Court move forward . . . as currently scheduled, the Government will have to determine

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the scope of its Giglio obligation . . . without the benefit of having all the information that

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may become available.” Dkt. 35 at 6. Considering that the Government has apparently

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already decided that the scope of its Giglio obligations encompasses the DOJ-OIG

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investigation of Agent Brady, the Government’s stated reason for requesting a bifurcation

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or continuance lacks a nexus with the cited evidence that can be used to impeach Agent

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Brady.

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2.

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Other Brady/Giglio Materials

The Government next discusses potential Brady/Giglio information that stems

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from a pending investigation. The Government has described the information and

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presented it to the Court under seal in support of its motion to bifurcate or continue the

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evidentiary hearing. Dkt. 35. However, despite describing to the Court the information
ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 5

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that the Government may be required to disclose if the Court orders that the parties

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proceed as scheduled, the Government has not expressly requested that the Court assess

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whether the information requires a Giglio disclosure. See Henthorne, 931 F.2d at 30–31.

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Nonetheless, having received the information, the Court does not see how it can review

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the materials for the purpose of a requested continuance or bifurcation without

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simultaneously assessing whether the materials require a Giglio disclosure to Petitioner.

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As Petitioner has now objected to the filing of the information under seal and moved to

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compel disclosure, see Dkt. 36, the Court finds that determining whether Giglio requires

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the disclosure of the information filed under seal—a question that should generally be

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decided by the Government itself, see United States v. Acosta, 357 F. Supp. 2d 1228,

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1245 (D. Nev. 2005)—is now unavoidable.

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Having reviewed the information described by the Government, the Court

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concludes that the Government must provide further Brady/Giglio disclosures as to the

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witness identified in the Government’s motion. The information presented by the

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Government weighs directly on the credibility of a Government witness that will very

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likely be required to testify. If neither Agent Brady nor the other potential witness

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identified in the Government’s sealed motion testify, it may be difficult for the

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Government to adequately oppose Petitioner’s factual contentions regarding the scope of

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his “Rule 5” and Miranda waiver. Moreover, by requesting that the Court bifurcate or

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continue the evidentiary hearing, the Government has tacitly acknowledged that it already

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intends to offer testimony for the witness identified in its sealed briefing, despite its

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desire to avoid doing so. Accordingly, the information described by the Government is
ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 6

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undeniably evidence that would impeach an important government witness, “and

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evidence that would impeach a central prosecution witness is indisputably favorable to

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the accused.” United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009).

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Because the information at issue weighs directly on the credibility of a key

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Government witness, and testimony by that witness is practically unavoidable, a

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Brady/Giglio disclosure is required. See United States v. Blanco, 392 F.3d 382, 387 (9th

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Cir. 2004) (“Brady/Giglio information includes material that bears on the credibility of a

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significant witness in the case.”) (internal quotation omitted). Although the information

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described by the Government in its sealed briefing deals with an ongoing investigation, it

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is still impeachment evidence that the Government must disclose. See United States v.

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Olsen, 704 F.3d 1172, 1182 (9th Cir. 2013) (The Ninth Circuit “repeatedly has held

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materials from ongoing investigations to be favorable under Brady.”). The fact that the

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investigation is ongoing can be taken into consideration by the trier of fact, in this case

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the Court, when weighing the impeachment value of the evidence.

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The Government is correct that it could potentially prevail by relying exclusively

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on the testimony of Petitioner and his trial counsel. However, this does not mean that

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bifurcating the evidentiary hearing will allow the Government avoid its Brady/Giglio

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obligations. While not yet addressed by the Ninth Circuit, other courts “have held that

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Brady/Giglio applies to testifying and non-testifying witnesses.” United States v. Alcazar-

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Barajas, 513CR00726EJD1HRL, 2017 WL 550238, at *2 (N.D. Cal. Feb. 10, 2017). See

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also United States v. Rodriguez, 482 Fed. Appx. 231, 236 (9th Cir. 2012) (“There is

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persuasive authority for the proposition that Brady and related obligations extend to nonORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 7

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testifying witnesses.”) (citing United States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003);

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United States v. Flores, No. CR 08–0730 WHA, 2011 WL 1100137, at *1 (N.D. Cal.

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Mar. 24, 2011)). The Court notes that the record already contains testimony by the

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Government’s witness that pertains directly to the factual circumstances surrounding

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Petitioner’s “Rule 5” and Miranda waiver. Therefore, it appears that the presence of this

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witness’ testimony already on the record necessitates a Brady/Giglio disclosure of any

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impeachment evidence, regardless of whether the Government calls the witness to testify

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during the evidentiary hearing.

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Additionally, in this particular case, the likelihood that Petitioner’s counsel was

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adequately placed on notice of the potential “selective waiver” concerns is inextricably

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tied to the factual question surrounding the actual scope of Petitioner’s “Rule 5” and

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Miranda waiver. The veracity of Petitioner’s claims that he was repeatedly assured that

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his interview would address only a Louisiana murder investigation and not the

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Washington drug investigation (see Dkt. 10 at 5, Dkt. 17 at 4) directly affects the

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likelihood that the issue was brought to the attention of Petitioner’s trial counsel. In other

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words, if Petitioner indeed established repeatedly that his waiver was “selective” at the

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time of his interview with law enforcement, as he contends, it becomes difficult to

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believe that Petitioner would subsequently fail to raise this issue to his counsel. Because

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the factual questions regarding the scope of Petitioner’s waiver and the effectiveness of

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his counsel are so interwoven, the credibility of both Petitioner and his trial Counsel

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depends in large part on the evidence that the parties present on the actual scope of

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Petitioner’s waiver. Accordingly, the motion to bifurcate is denied.
ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 8

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The Government also argues that, because the information at issue is part of a

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pending investigation, a continuance could possibly allow the matter to be resolved in a

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manner favorable to the Government’s potential witness, thereby obviating any need for a

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Brady/Giglio disclosure. However, as stated earlier, the Ninth Circuit “repeatedly has

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held materials from ongoing investigations to be favorable under Brady.” United States v.

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Olsen, 704 F.3d 1172, 1182 (9th Cir. 2013). Moreover, practical concerns also militate

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against the Government’s request for a continuance. The Government has failed to

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provide any details on the likelihood that the investigation will be quickly resolved in

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favor of the Government witness or how long of a continuance might be necessary to

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allow the investigation to be completed. Instead, the Government is seeking any

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extension with the hope that a pending investigation may yield information that would

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justify a decision that the information it presently possesses is not Brady/Giglio material.

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The Court declines to continue this matter based on such a speculative basis.

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The Court also notes that the Government’s argument that a favorable resolution

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of the investigation may remove the need for disclosure actually cuts against its stated

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justification for requesting a continuance. The Government argues that premature

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disclosure could irreparably harm the reputation of the witness identified in its motion.

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Dkt. 35 at 6. However, if a favorable resolution would sufficiently remove the need for

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disclosure in this case, the Court does not see how it would not also remove the need for

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disclosure in any future cases. The greatest concern that the Government raises is that

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premature disclosure could affect the integrity of the ongoing investigation. Dkt. 35 at 6.

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Nonetheless, the Court finds that this is insufficient reason to justify a continuance when
ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 9

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the possible benefit of the continuance is so speculative and the time required for the

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benefit to accrue is indeterminate.

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B.

Motion to Compel

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Finally, the Court notes that, despite its determination that a Brady/Giglio

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disclosure will be immediately necessary, as the evidentiary hearing is set for April 17,

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2017, the Court declines to compel the unsealing of the Government’s supplemental

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briefing at this time. To be clear, the Court orders that the Government immediately

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provide Petitioner with the Brady/Giglio information discussed in the Government’s

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supplemental briefing. However, to do so by unsealing the filings presently before the

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Court may deprive the Government of an opportunity to weigh countervailing interests

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that may lead it to pursue a course of action that has not been presented to the Court, such

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as conceding any factual disputes on the scope of Petitioner’s waiver. Therefore, while

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the Court orders that the Government immediately disclose to Petitioner the information

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that is the subject of its supplemental briefing, the Court denies without prejudice

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Petitioner’s motion to compel disclosure to the extent that it would require an unsealing

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of the Government’s supplemental briefing.

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ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 10

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III.

ORDER

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Therefore, it is hereby ORDERED that the Government’s motion to bifurcate or

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continue (Dkt. 34) is DENIED and Petitioner’s motion to compel (Dkt. 36) is DENIED

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without prejudice. The Government shall immediately disclose to Petitioner the

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Brady/Giglio information discussed in its sealed supplemental briefing.

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Dated this 12th day of April, 2017.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER DENYING RESPONDENT’S MOTION
TO AMEND SCHEDULING ORDER AND
DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION TO COMPEL - 11