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 

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 hereby respectfully moves this Court

pursuant to the principles of Brady v.Maryland, 373 U.S. 83 (1963) and Giglio

v.United States, 405 U.S. 150 (1972), for disclosure of all of the following described

materials within the possession, custody or control of the Government, or the

existence of which is known or by the exercise of due diligence could become known

to the Government.

To date, the Government, by Assistant United States Attorney Patrick

Otlewski has provided Rule 16 discovery materials to the Defendant as well as

additional discovery requested by the Defendant. While primarily documentary in

nature, the discovery provided has also included reports of statements of some

potential witnesses that would be covered by 18 USC §3500. 

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In its initial Rule 16 discovery letter, the Government stated that two weeks

before trial it would provide “materials required by 18 USC §3500 and Giglio v.

United States for those witnesses we intend at that time to call” except for

materials discovered later or involving issues of witness safety. 

Given the necessity of investigating and preparing for trial, Defendant

requests that this Court order that any materials or information covered by, or

arguably covered by, Brady v. Maryland, 373 U.S. 83 (1963) or Giglio v.United

States, 405 U.S. 150 (1972), be disclosed to defense counsel at the time they are

discovered by the Government rather than two weeks before trial. This will better

insure adequate time for the defense to investigate and prepare for use of 

such information at trial and avoid the necessity of a request to delay the trial

because of newly disclosed information.

In addition, Defendant hereby requests that this Court order production of

the following specifically requested materials pursuant to Brady v. Maryland, 373

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

 The following requests for information are not limited to information

memorialized in written form, but include information in any form, whether

written, oral or recorded. Where the identity of persons is requested, name and last

known address should be given, if known. 

 For purposes of this motion, the term "witness" includes any person who may

be called to testify by the Government, any expert witness who may be called by the

Government, any person whose information or opinion is relied on by any expert

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witness who may be called by the Government, as well as any alleged

co-conspirator, co-schemer, or person whose hearsay declarations the Government

will seek to introduce at trial. Under Rule 806 of the Federal Rules of Evidence, the

credibility of a non-testifying declarant may be attacked by any evidence which

would be admissible for those purposes if that declarant had testified as a witness. 

Therefore, material going to the credibility of a non-testifying hearsay declarant is

relevant to the trial of this case.

1 . Plea Agreements, Non-Subject and Non-Target Letters, Immunity,

 and Other Benefits

 (a) Any and all consideration given to or promises made to any witness or

expected or hoped for by the witness. By "consideration" defendant refers to

absolutely anything, whether bargained for or not, which arguably could be of value

or use to a witness or to persons of concern to the witness, such as family members. 

Such “consideration” includes but is not limited to plea agreements, non-subject

letters; non-target letters; criminal, civil or tax immunity grants; favorable

treatment or recommendations or other assistance with respect to any pending or

potential criminal, civil, tax, immigration, administrative, disciplinary or other

proceeding with the Government, or with any other authority or any other parties;

relief from forfeiture; payments of money, rewards or fees, witness fees or special

witness fees; provision for food, clothing, shelter, transportation, legal services or

other benefits; placement in a "witness protection program"; informer status of the

witness; immigration status of the witness or persons of concern to the witness,

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including family members; and anything else which arguably could reveal an

interest, motive or bias in the witness in favor of the Government or against the

defense or act as an inducement to testify or to color testimony.

 (b) Copies of statements, if any, submitted by the Government or intended

for submission by the Government to the pretrial services department of the 

United States District Court on behalf of any witness who has been sentenced or

who is presently awaiting sentencing.

2. Potential Prosecutions and Other Issues or Proceedings.

 Any and all information regarding criminal prosecutions, investigations or

potential prosecutions pending or which could be brought against the witness or

persons of concern to the witness, including family members; any probationary,

parole, deferred prosecution or custodial status of the witness or persons of concern

to the witness, including family members; any immigration, residency, or

citizenship issues involving the witness or persons of concern to the witness,

including family members; and any civil, tax-related, court of claims,

administrative, licensing, regulatory, disciplinary or other pending or potential

legal disputes or transactions with the federal Government, State of Illinois, City of

Chicago, or any other government or regulatory entity. 

3. Criminal Records

 Any and all records and information revealing prior arrests and/or 

convictions, whether felony or misdemeanor, of any witness.

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 4. Other Misconduct or Bad Acts

 Any and all records and information, whether written, oral, or contained in

documents, regarding any misconduct or bad acts of or attributed to the witness,

regardless of whether the witness admits the misconduct or bad acts. Such acts are

not limited to violations of criminal law but would include acts which could affect,

involve, or be considered probative of credibility or truthfulness, including but not

limited to false statements of any kind, whether written or oral, perjury, tax

liability, immigration, licensing, business, employment, regulatory compliance,

administrative and disciplinary issues.

5. Personnel Information and Disciplinary Information 

Any and all records and information, whether written, oral, or contained in

documents, regarding any complaint, allegation, investigation, criticism, or

disciplinary matter, regardless of whether such matter resulted in discipline, 

including but not limited to personnel records, disciplinary records, or internal

investigations, of any person who may be called as a witness for the Government,

including but not limited to witnesses who were previously or are presently 

employees of the federal, state, or local government, including the City of Chicago,

or law enforcement officers or agents.

6. Alcoholism, Drug Use, Psychiatric History

 Any and all information, records, or documents, whether oral or recorded,

regarding any witness, as to the following: 

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 1. mental, emotional, or behavioral problems, symptoms, treatment, or

examinations, or hospitalizations, including but not limited to psychiatric or

psychological disorders; 

 2. alcoholism or use of alcohol, including but not limited to symptoms,

examinations, treatment, or hospitalization for alcoholism, alcohol abuse, use of

alcohol, or any alcohol related disorder, whether physical, mental or behavioral;

 3. drug addiction or use of drugs, including but not limited to heroin, 

cocaine, marijuana, amphetamines, prescription or non- prescription drugs,

including but not limited to use of, abuse of, symptoms of, examination for,

treatment for, or hospitalization for use or abuse of such substances.

7. Inconsistent or Exculpatory Statements of Witnesses

 (a) Identify any and all occasions on which a witness made:

 1. a statement inconsistent with any other statement made by that witness;

 2. a statement inconsistent with the witness’s predicted trial testimony;

 3. a statement inconsistent with the witness’s actual trial testimony;

 4 a statement that the witness had no knowledge of the alleged criminal

 activity described in the indictment or the subject matter of his or her testimony;

5. a statement that the witness was not involved in any criminal activity;

 6. a statement that the Defendant Heon Seok Lee was not involved in any

criminal activity, including but not limited to the alleged criminal activity described

in the indictment;

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 7. a statement that any other person referred to in the Indictment was not 

involved in any criminal activity, including but not limited to the alleged criminal

activity described in the indictment; 

8. a statement inconsistent with any other statement made by any other

person or any other witness, irrespective of whether that person or witness will be

called to testify by the Government;

9. a statement inconsistent with the charges in the Indictment; or 

10. a statement inconsistent with the Government’s legal or factual theory of

the case.

 (b) As to each occasion above, identify and provide any notes, written

statements, summaries of statements, or memoranda of such statements. Where no

written record or evidence of such statement exists, identify the date, place and

persons present for the statement and set forth a summary of the statement.

8. Exculpatory Statements of Any Persons, Regardless of Their Status as A

Witness

 

 a) Identify the name and last known address of any person, regardless of

their status as a witness, who has exculpatory information, including information

that could be used to impeach the credibility of Government witnesses, including

but not limited to the following: 

1. Any person who has denied having knowledge of any criminal activity on

the part of the Defendant Heon Seok Lee or any person referred to in the Indictment

as having been involved in alleged criminal activity; 

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 2. Any person who has attested to the honesty, good character, lack of

knowledge, and/or lack of involvement in criminal wrongdoing by Defendant Heon

Seok Lee;

3. Any person who has made a statement inconsistent with the charges in

the Indictment;

4. Any person who has made a statement inconsistent with the Government’s

legal or factual theory of the case;

5. Any person who has made a statement inconsistent with any statement,

the predicted trial testimony, or the actual trial testimony of any Government

witness;

6. Any person who has denied knowledge of or the existence of the alleged

criminal activity described in the Indictment;

7. Any person who has given an

 expert, lay or other opinion favorable to the Defendant or contrary to the opinion of

any expert, lay, or other opinion of any witness for the Government;

8. Any person who has any negative information regarding the qualifications

of any expert for the Government; 

9. Any person with information that could be favorable to the Defendant, 

consistent with his innocence, inconsistent with the Defendant's guilt, inconsistent

with the testimony of any witness, impeaching of the credibility of any witness,

inconsistent with the opinions of any expert witness, impeaching of the

qualifications of any expert witness, inconsistent with the charges in the Indictment, 

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or inconsistent the Government’s legal or factual theory of the case.

(b) As to each person above, identify and provide any notes, written

reports, summaries of statements, or memoranda of such information. Where no

written record or evidence of such information exists, set forth the source of an a

summary of the information. 

9. Exculpatory Documents, Data or Other Information

 Identify and produce any documents, data, records, recordings, or information

 in any form, oral or written, which could be favorable to the Defendant, consistent

with his innocence, inconsistent with the Defendant's guilt, inconsistent with the

testimony of any witness, inconsistent with the opinions of any expert witness,

impeaching of the qualifications of any expert witness, impeaching of the credibility

of any witness, or inconsistent with the charges in the Indictment or the

Government’s legal or factual theory of the case, including but not limited to:

1. reports of interviews by investigating agents, attorneys, or others;

2. notes of interviews by investigating agents, attorneys, or others; 

3. documents of any person, entity, organization, or institution connected in

any way with the allegations of the Indictment; 

4. recordings, including but not limited to consensual recordings and

recordings made pursuant to eavesdropping or wiretapping;

5. computer records and computer data, 

6. correspondence, texts, and e-mails;

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7. social media including but not limited to Facebook, Twitter, Linked-In, 

Instagram, and Snapchat;

8. analysis or summaries, data compilations, test results, reports, results of

experiments, results of examinations, results of review of records or other data, by 

any person, entity, organization, or institution; 

 In support of the instant motion, defendant asserts that suppression of such

material and relevant information will effectively deprive him of his ability to

adequately prepare for defense, and the failure or refusal by the Government to

produce the foregoing materials would constitute suppression of evidence favorable

to the accused and an unconstitutional deprivation of the defendant’s right to due

process of law. 

WHEREFORE, Defendant Heon Seok Lee respectfully moves this Honorable

Court to enter an order (1) that the Government must disclose to defense counsel 

any materials or information covered by, or arguably covered by, Brady v. Maryland,

 373 U.S. 83 (1963) or Giglio v.United States, 405 U.S. 150 (1972), at the time they 

are discovered by the Government and (2) that the Government produce the

materials specifically requested in this Motion.

 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 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 January 7, 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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