UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA 

v. 

HEON SEOK LEE 

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Case No. 12 CR 109 

 Judge Sharon Johnson Coleman 

GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR DISCLOSURE

 The United States of America by its attorney, Zachary T. Fardon, United 

States Attorney for the Northern District of Illinois, respectfully submits this 

response to Defendant Heon Seok Lee’s Motion for Disclosure of Exculpatory 

Evidence, Including Impeachment Information (R. 47). For the reasons set forth 

below, the government submits that the motion should be denied. 

I. BACKGROUND

 Defendant Heon Seok Lee, President of KTURBO and KTURBO USA, has 

been charged by indictment with five counts of wire fraud, in violation of 18 U.S.C. 

§ 1343 (Counts 1-5), and three counts of importing goods contrary to law, in 

violation of 18 U.S.C. § 545 (Counts 6-8). The indictment was filed February 16, 

2012, and remained under seal until defendant’s extradition from South Korea was 

completed in April 2015. R. 2. Defendant’s case is set for trial on June 1, 2016. 

R. 40. On January 7, 2016, defendant filed his motion for disclosure of exculpatory 

evidence, including impeachment information. R. 47. 

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II. ANALYSIS

A. Defendant’s Request for Immediate Disclosure of Brady and 

Giglio Material Should Be Denied. 

 Defendant asks for material covered by Brady and Giglio to be disclosed “at 

the time they are discovered by the Government rather than two weeks before 

trial.” R. 47, Pg. 2. The government acknowledges its disclosure obligations under 

Brady and Giglio, but objects to defendant’s belief that immediate disclosure of such 

materials is required by law. 

 It is important to note, at the outset, that Brady does not mandate disclosure 

of exculpatory or impeaching material at a specific time prior to trial, let alone 

immediate disclosure. United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir. 

1979). Disclosure must occur within such time as will allow the defendant to make 

effective use of the material at trial and thus ensure that defendant’s right to a fair 

trial is not prejudiced. Id. The government will ensure that disclosure of exculpatory 

and impeachment evidence material to guilt or innocence be made in sufficient time 

to permit the defendant to make effective use of that information at trial. See, e.g., 

Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United States v. Farley, 2 F.3d 645, 

654 (6th Cir. 1993). In this case, the government will ensure that exculpatory 

information will be disclosed reasonably promptly after it is discovered. 

 The government’s production of exculpatory and impeachment information 

reasonably promptly is consistent with Department of Justice policy and the law. 

Defendant’s request for immediate disclosure, on the other hand, finds no support in 

the law. Indeed, defendant has offered no case law support for her argument, much 

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less a rationale rooted in the facts of this case to support her motion. In United 

States v. Beckworth, No. 86 CR 848, 1987 WL 8630 (N.D. Ill. Mar. 17, 1987), then 

District Court Judge Rovner faced a similar motion by a defendant. The court 

rejected the argument for immediate disclosure, holding that, “[i]n the absence of 

exceptional circumstances, none of which are apparent in this action, tender of 

Brady material one week prior to trial meets the government’s obligation under 

Brady.” Id. at *1. Consistent with this authority, the government asks that the 

Court deny defendant’s motion for immediate disclosure of Brady and Giglio

material. 

B. Defendant’s Overly Broad Discovery Requests Are Inconsistent 

with Brady and Giglio, Requiring Their Denial. 

 Defendant’s motion, much of which appears to be boilerplate,1 seeks a 

laundry list of information about the government’s anticipated witnesses in this 

case. There are several problems with defendant’s motion. First, while styled as a 

motion under Brady and Giglio, defendant has not offered any case law or legal 

analysis suggesting that any of the requested categories of information ought to be 

disclosed. To be sure, the government acknowledges its duty to disclose at the 

appropriate time information bearing directly on the credibility of its witnesses. 

Second, as defense counsel is undoubtedly aware, Brady and Giglio set limits on 

what material must be disclosed; that precedent is not a mechanism to explore the 

government’s case files. See Giglio, 405 U.S. at 154 (“[a] combing of the prosecutors’ 

 

1 As far back as 2005, in United States v. Sullivan, 05 CR 644, defense counsel filed a 

motion for disclosure that was substantially similar to the one filed in this case. 

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files” is not required; rather, “a finding of materiality of the evidence is required” for 

disclosure); United States v. Bagley, 473 U.S. 667, 675-76 (1985) (only “material” 

impeachment information need be disclosed under Giglio); United States v. Merlino, 

349 F.3d 144, 155 (3d Cir. 2003) (affirming the denial of a defense request to turn 

over all recorded telephone conversations of prosecution witnesses while they were 

incarcerated; “[t]he fact that some percentage of the tapes that were turned over 

contained information favorable to the defense is not enough, in light of Brady's 

materiality requirement”). 

 Third, defendant requests information beyond the members of the 

prosecution team. Such overbroad discovery requests should be rejected out-of-hand 

as beyond the scope of Brady and Giglio. Under the Constitution, the government 

has an affirmative obligation “to learn of any favorable evidence known to the 

others acting on the government’s behalf in the case.” Kyles v. Whitley, 514 U.S. 

419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). That said, the Seventh Circuit has 

held that Kyles cannot “be read as imposing a duty on the prosecutor’s office to learn 

of information possessed by other government agencies that have no involvement in 

the investigation or prosecution at issue.” United States v. Morris, 80 F.3d 1151, 

1169 (7th Cir.1996). Indeed, certain of defendant’s requests would require the 

government to conduct a separate investigation on behalf of the defense, and into 

matters that have, at best, the most tenuous relevance to this case. But the 

Constitution certainly does not require the government to do defense counsel’s work 

for them. See United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998) (“The 

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government has no Brady burden when the necessary facts for impeachment are 

readily available to a diligent defender, as they were here.”). 

 The government’s specific responses and objections to the categories of 

information sought by defendant follow. 

1. Witness Benefits 

The government specifically agrees to provide information concerning grants 

of immunity, plea agreements, and other material favors or promises to testifying 

witnesses. The government agrees that under Giglio, it must (and has or will) 

disclose any threats made against witnesses that were relevant to their decisions to 

cooperate, if any such threats were made. To the extent defendant seeks more, the 

request is overbroad and inconsistent with Giglio, requiring denial of the request. 

2. Potential Prosecutions, Criminal History, Pending 

Criminal Charges, Other Bad Acts 

 The government will disclose prior felony convictions and other evidence that 

may be used to impeach government witnesses under Federal Rule of Evidence 

608(b). The government objects to disclosure of arrests, non-prosecuted criminal 

activity, and general “misconduct or bad acts” attributed to a witness that do not 

bear on the witness’s truthfulness. United States v. Beverly, 87 CR 521, 1998 WL 

48291, *2 (N.D. Ill. May 11, 1988) (Williams, J.) (denying defendant’s request for 

government disclosure of each witness’s “prior acts of misconduct,” to the extent not 

required by Giglio); United States v. Abadie, 879 F.2d 1260, 1267 (5th Cir. 

1989)(arrests not proper basis for impeachment and thus not required to be 

produced). 

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3. Personnel and Disciplinary Information 

 Defendant’s request for all records relating to any complaint, allegation, 

investigation, criticism or disciplinary matter in the personnel file or disciplinary 

file of any witness is overbroad. 

 In compliance with the Department of Justice’s policy, members of the 

prosecution team are in the process of contacting legal counsel for the law 

enforcement agencies that employ the law enforcement officials who will testify at 

trial. Agency counsel will review the agency’s personnel files of every prospective 

law enforcement witness in this case to determine if the files contain any 

information that would bear adversely on the credibility of that person. If they do, 

the prosecutors in this case will review that information to determine whether it 

must be disclosed to the defense, erring on the side of disclosure. If the government 

is uncertain about whether any particular information should be disclosed, the 

government will submit the information to the Court in camera for a ruling 

 As to other witnesses, the government will supply any such records it 

receives from a municipality or another source in response to subpoenas, if the 

records are subject to production under Brady and Giglio. To the extent defendant 

seeks documents not within the government’s custody or control, the request should 

be denied. 

4. Alcoholism, Mental Health and Drug Abuse 

 To the extent the government is in possession of information regarding a 

witness’s alcoholism, mental health, and/or drug abuse, and to the extent the 

information is probative of a witness’s perception, ability to recall events, and 

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truthfulness, it will be produced as required by Giglio in advance of trial. Although 

the government is required to disclose material impeachment information in 

possession of the prosecution team regarding the mental or physical impairment of 

a witness at either the time of trial or when the events about which the witness will 

testify took place, it has no affirmative obligation to find such information. See 

United States v. Skorniak, 59 F.3d 750, 755-56 (8th Cir. 1995) (“while Brady

requires the Government to tender to the defense all exculpatory evidence in its 

possession, it establishes no obligation on the Government to seek out such 

evidence”) (internal citation omitted, emphasis in original). The prosecution team is 

not presently aware of any such information, but will produce it if and when it 

becomes available. 

5. Inconsistent, Exculpatory Witness Statements 

 Defendant’s request for statements inconsistent with a witness’s predicted 

trial testimony and inconsistent with the witness’s actual trial testimony are 

impractical, overbroad, and inconsistent with requirements of Brady and Giglio. 

The government will disclose information that either casts a substantial doubt upon 

the accuracy of any evidence—including but not limited to witness testimony—the 

government intends to rely on to prove an element of any crime charged, or might 

have a significant bearing on the admissibility of prosecution evidence. This 

information will be disclosed regardless of whether it is likely to make the 

difference between conviction and acquittal of the defendant. Moreover, if the trial 

testimony of a prosecution witness is materially inconsistent with a prior statement 

of that witness to a member of the prosecution team, and that inconsistency is not 

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apparent from discovery materials produced to the defense, the government will 

bring the inconsistency to the attention of the defense. 

 To the extent defendant seeks statements by witnesses that do not mention 

the defendant or which indicated that the defendant was not involved in criminal 

activity, the request is overbroad. Defendant requests any witness statement 

omitting mention of him, regardless of whether the witness had reason to know 

whether defendant was engaging in wrongdoing or reason to mention defendant in 

the context of a given statement. The government will, however, ensure the 

production of statements that affirmatively indicate defendant was not engaged in 

wrongdoing, or omit mention of defendant and were made by a witness in a position 

to know whether defendant was engaged in illegal conduct in a context in which the 

witness likely would have mentioned defendant if the witness believed defendant 

committed criminal acts. See United States v. Deleo, No. 90 CR 1044, 1991 WL 

111172, at *2 (N.D. Ill. June 5, 1991) (Rovner, J.). 

 Furthermore, defendant’s request for all notes, written statements, 

summaries of statements, and memoranda is overly broad and not required by 

Brady and Giglio. As the Court is well aware, the government is not required to 

disclose those materials to the defense on demand. United States v. Brown, 303 F.3d 

582, 590 (5th Cir. 2002); United States v. Muhammad, 120 F.3d 688, 699 (7th Cir. 

1997). 

6. Exculpatory Statements and Records 

 The government acknowledges that disclosure of material exculpatory 

evidence is part of the constitutional guarantee to a fair trial. See Brady v. 

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Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). 

Because this is a Constitutional obligation, the government has been keen to its 

obligations to disclose Brady material regardless of defendant’s request. Kyles v. 

Whitley, 514 U.S. 419, 432-33 (1995). Nonetheless, the Constitution does not create 

a general discovery right for trial preparation or plea negotiations, which is 

essentially what defendant seeks. United States v. Ruiz, 536 U.S. 622, 629 (2002); 

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). 

 Defendant’s requests covered in these categories are overly broad, not based 

in the specifics of this case, and are inconsistent with the law. See United States v. 

Navarro, 737 F.2d 625, 631-32 (7th Cir. 1984) (”“A due process standard which is 

satisfied by mere speculation would convert Brady into a discovery device and 

impose an undue burden upon the district court‘’); United States v. Milikowsky, 896 

F.Supp. 1285, 1309 n.38 (D.Conn. 1994) (”“Were this court to grant the Defendants' 

motion, it would set an absurd precedent, allowing defendants to scour the working 

notes of prosecutors upon the mere accusation that the government has not 

sufficiently disclosed every potentially exculpatory detail.‘’). 

 As the Court is well aware, the standard under Brady and Giglio is whether 

the evidence in question is material to a finding of guilt, that is, when there is a 

reasonable probability that effective use of the evidence will result in an acquittal. 

United States v. Bagley, 475 U.S. 667, 676 (1985). The government recognizes that 

sometimes it may be difficult to assess the materiality of evidence before trial. As a 

result, the government generally takes a broad view of materiality and will err on 

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the side of disclosing exculpatory and impeaching evidence, particularly if 

admissibility is a close question. Kyles, 514 U.S. at 439. 

 The government will ensure disclosure of exculpatory and impeachment 

information beyond that which is constitutionally and legally required. A fair trial 

will often include examination of relevant exculpatory or impeachment information 

that is significantly probative of the issues before the court, but that may not, on its 

own, result in an acquittal or, as is often colloquially expressed, make the difference 

between guilt and innocence. As a result, the government will disclose information 

beyond that which is “material” to guilt as articulated in Kyles v. Whitley, 514 U.S. 

419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-81 (1999). However, the 

government will remain vigilant to ensure that the trial in this case will not involve 

consideration of irrelevant information and information not significantly probative 

of the issues before the court. Consistent with the foregoing, the government will 

disclose information that is inconsistent with any element of any crime charged 

against the defendant or that establishes a recognized affirmative defense, 

regardless of whether the government believes such information will make the 

difference between conviction and acquittal of the defendant for a charged crime. 

 

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IV. CONCLUSION

 For the foregoing reasons, the government respectfully submits that 

Defendant Heon Seok Lee’s Motion for Disclosure of Exculpatory Evidence, 

Including Impeachment Information (R. 47) should be denied. 

Respectfully submitted, 

ZACHARY T. FARDON 

United States Attorney 

By: s/ Patrick M. Otlewski

PATRICK M. OTLEWSKI 

 RAJNATH LAUD 

Assistant U.S. Attorneys 

219 South Dearborn St., Rm. 500 

Chicago, Illinois 60604 

(312) 353-5300 

Dated: January 19, 2016 

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CERTIFICATE OF SERVICE 

 The undersigned Assistant United States Attorney hereby certifies that this 

document was served on January 29, 2016, in accordance with Fed. R. Crim. P. 49, 

Fed. R. Civ. P. 5, LR 5.5, and the General Order on Electronic Case Filing (“ECF”) 

pursuant to the district court’s system as to ECF filers. 

 

 s/ Patrick M. Otlewski 

 PATRICK M. OTLEWSKI 

 Assistant United States Attorney 

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