IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) No. 12 CR 109

) Hon. Sharon Johnson Coleman

HEON SEOK LEE, )

)

Defendants. )

 DEFENDANT HEON SEOK LEE’S 

REPLY TO GOVERNMENT RESPONSE TO DEFENDANT’S

MOTION FOR DISCLOSURE OF EXCULPATORY EVIDENCE,

INCLUDING IMPEACHING INFORMATION 

 

 Now comes the Defendant, HEON SEOK LEE, by his attorneys SUSAN 

SHATZ and CYNTHIA GIACCHETTI, and in reply to the Government’s Response

to Defendant’s Motion for Disclosure pursuant to the principles of Brady

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

states as follows. 

First, in its Response the Government has now indicated that it will produce

exculpatory and impeachment information “reasonably promptly after it is

discovered.” P. 2-3. If followed by the Government in good faith, Defendant does

not object to that timing of disclosure. “Reasonably promptly after it is discovered”

does not appear to be much different than what the Defendant requested in his

motion: that such materials be produced “at the time they are discovered by the

Government.” Moreover, the Government’s present proposal is more reasonable

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than its earlier position, which was that such materials would not be disclosed until

two weeks before trial. 

Second, the essence of the Government’s objections appears to be to the

scope of the materials requested by the Defendant pursuant to Brady and Giglio.

There is no question that the requests are both broad and specific and cover

numerous categories of information. However, requests pursuant to Brady and

Giglio must be so if they are going to effectively protect the Defendant’s

constitutional rights as well as put the Government on notice as to the materials

being requested. 

Brady and Giglio requests are by their nature anticipatory. The Defense

cannot look into the future so as to know what form exculpatory or impeachment

information may take in a particular case. However, the categories requested in the

Defendant’s motion, if they exist, are the classic types of information that are likely

to constitute exculpatory or impeaching information. All of the categories will

obviously not exist in every cases, but some will likely exist in each case. 

Third, contrary to the Government’s claim, Defendant has not requested that

the Government “conduct a separate investigation on behalf of the defense”.

However, the prosecutor has an affirmative duty to learn of and disclose any

exculpatory or impeachment evidence known to others acting on the government’s

behalf in the case, including any agents, investigators, or officers involved in the

investigation. See,e.g., Youngblood v. W.Va., 547 U.S. 867, 869-70 (2006), Kyles v.

Whitney, 514 U.S. 419, 437 (1995). Moreover, should the Government receive

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information that has exculpatory or impeachment potential but needs further

investigation, it is the Defendant’s position that the Government must provide such

information to the Defendant under Brady and Giglio so that the Defendant can

perform the necessary investigation.

Fourth, it is Defendant’s position that the Government should not be the

final arbiter of whether any of the requested information is “exculpatory” or

“impeaching.” In the event the Government obtains any of the types of information

requested by the Defendant but believes it does not have to be produced to the

Defense because in the Government’s view the information is not “exculpatory” or

“impeaching”, Defendant requests that this Court order that any such materials or

information be provided to the Court in camera to determine whether that

information should be produced to the Defense. 

Wherefore, Defendant respectfully moves this Court to grant Defendant’s

Motion for Disclosure of Exculpatory Evidence, Including Impeaching Information,

and to order that, in the event the Government obtains such information but does

not believe it needs to be disclosed, that such information be submitted to the Court

in camera for review and judicial ruling as to disclosure. 

Respectfully submitted,

/s/Cynthia Giacchetti____

One of the Attorneys for the Defendant 

Heon Seok Lee 

Cynthia Giacchetti

53 West Jackson--Suite 1460

Chicago, Illinois 60604

312-939-6440

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CERTIFICATE OF SERVICE

Cynthia Giacchetti, one of the attorneys for the Defendant Heon Seok Lee

hereby certifies that Defendant Heon Seok Lee’s Reply to Government’s Response to

Defendant’s Motion for Disclosure of Exculpatory Evidence, Including Impeaching

Information, was filed electronically using the Court’s CM/ECF system and was

served on all parties on February 5, 2016, by operation of the Court’s electronic

filing system 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/ Cynthia Giacchetti

. 

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