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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CR-20340-WILLIAMS

UNITED STATES OF AMERICA,

vs.

MASPHAL KRY,

Defendant.

_________________________________/

DEFENDANT MASPHAL KRY’S MOTION TO COMPEL

Defendant Masphal Kry respectfully moves the Court to compel the government to: (1) 

identify for defense counsel a discrete subset of documents consistent with government’s 

obligations under Brady v. Maryland, Giglio v. United States and their respective progeny; (2) 

produce early witness and exhibit lists; (3) produce records of payments and information pertaining 

to benefits provided to the government’s principal cooperating witness (the “Cooperating 

Witness”); (4) produce all transcripts, statements, or records of statements reflecting statements 

made by the Cooperating Witness, including grand jury testimony, FD-302s, and ROIs, as well as 

all evidence of wrongdoing, criminal conduct, or participation in the conspiracy by the 

Cooperating Witness; and (5) produce all communications related to the agreement between the 

Cooperating Witness and the government.

BACKGROUND

The superseding indictment (the “Indictment”) in this case was returned by a federal grand 

jury on November 3, 2022, and was unsealed on November 16, 2022, following the arrest of 

Defendant Masphal Kry. The Indictment alleges that between December 19, 2017 and January 30, 

2022, Mr. Kry, seven other codefendants, and two unindicted co-conspirators: (i) conspired to 

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import and smuggle long-tailed macaques (Macaca fascicularis) from Cambodia into the United 

States in violation of the Lacey Act; and (ii) imported wild caught long-tailed macaques into the 

United States through the presentation of false and fraudulent CITES Permits and FWS Form 3-

177s. See generally, Indictment, ECF No. 9 (“Ind.”). Specifically, the government alleges that 

Mr. Kry delivered 92 long-tailed macaques over four separate visits to a Vanny Bio-Research 

Corporation (“VBRC”) facility in Pursat, Cambodia. Ind. at 13, 15. After the long-tailed 

macaques were delivered to VBRC, certain wild-caught macaques were allegedly reclassified by 

VBRC as captive bred and illegally exported from Cambodia to the United States by falsely 

reporting that some of the long-tailed macaques within the shipments were captive-bred, when 

they were actually wild-caught. Ind. at 8. 

The Cooperating Witness entered into a Cooperating Private Individual Agreement 

(“CPIA”) with the U.S. Department of Interior – U.S. Fisheries and Wildlife Service (“USFWS”) 

on October 22, 2018, nearly a year after the conspiracy allegedly began. The CPIA was valid for 

one year, and renewed on September 10, 2019, August 17, 2020, August 13, 2021, and October 6, 

2022. According to the CPIA, the Cooperating Witness received “reasonable compensation” in 

exchange for information furnished to the USFWS. The government has represented that the 

Cooperating Witness received hundreds of thousands of dollars in payments and that the 

government is assisting the Cooperating Witness in “normalizing” his residency status in the 

United States in payment for his cooperation in the prosecution of Mr. Kry. 

The Cooperating Witness will be the primary government witness at trial, and will provide 

the only testimony tying Mr. Kry to the alleged conspiracy. Defense counsel expects that the 

Cooperating Witness will testify regarding a video recording that he apparently made on 

September 1, 2019. Ind. at 13; Apr. 21, 2023 Hr’g Tr. at 38:1-39:8, 43:13-19. Documents 

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produced by the government further indicate that the Cooperating Witness “marked” crates of 

allegedly wild-caught long-tailed macaques for discovery by the United States government.

The testimony offered by the government, at the recent evidentiary hearing on Mr. Kry’s 

Motion to Suppress, confirms that the Cooperating Witness’s testimony is central to the 

government’s case-in-chief at trial. At the April 21, 2023 hearing, the government’s agent testified 

that the Cooperating Witness provided video footage of Mr. Kry in Cambodia, contact information 

for Mr. Kry, and photographs of Mr. Kry. Apr. 21, 2023 Hr’g Tr. at 14:6-8, 18:23-2, 43:13-17, 

52:18-24, 53:21-54:5, 56:10-21. And, based on discovery produced by the government, it appears 

that the Cooperating Witness testified before the grand jury and made repeated trips to Miami and 

Thailand to meet with USFWS agents. The government has not, however, produced any 

transcripts, statements, or records of statements from these meetings. 

DISCOVERY PRODUCED BY THE GOVERNMENT

During the discovery process, the government produced over five million native, non-Bates 

stamped files, which—after the defense spent weeks processing the material—ultimately resulted 

in a corpus of 1.2 million unique files. Although the government has characterized this dump of 

data as “virtually open-file” discovery, the reality is that the government has effectively sought to 

outsource its Brady and Giglio obligations to the defense while simultaneously tasking the defense 

with finding the proverbial needles in the haystack. While this case is presently set for trial the 

week of June 20, 2023, given the sizable volume of discovery produced by the government, the 

defense has filed a motion to continue trial until the week of September 11, 2023. ECF No. 119. 

But even if the Court grants the motion to continue, the government cannot shift its burden of 

identifying possible Brady or Giglio to the defense by requiring the defense to sift through millions 

of non-relevant files, video and audio recordings for those materials which are possibly relevant 

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to Mr. Kry. Defense counsel accordingly asks that the Court order the government to immediately 

take the steps necessary to comply with its discovery obligations. This includes ordering the 

government to identify a subset of discrete documents consistent with government’s obligations 

under Brady and Giglio, and produce early witness and exhibit lists. 

On January 20, 2023, the government made its first document production to defense 

counsel (the “First Production”). The First Production included a production index and contained 

242 native, non-Bates stamped files, including video recordings, investigation reports, emails, and 

an audio recording. 

On February 17, 2023, the same day the parties’ pretrial motions were due, the government 

made a second document production to defense counsel (the “Second Production”). The Second 

Production did not include a production index and consisted of roughly five million native, nonBates stamped files, which took weeks to process before they were in a condition to be adequately

reviewed by defense counsel. The Second Production also contained hundreds of gigabytes of 

encrypted data that were inaccessible, as the government failed to provide passwords for this data.1 

After processing the Second Production by de-duplicating files and removing the hundreds of 

thousands of junk system files, the defense was left with more than 1.2 million unique files, totaling 

over 3 terabytes of data and including some 12,750 audio and video files. A cursory review of the 

materials reveals that the government has clearly padded the production with an overwhelming 

quantity of duplicative and extraneous files in a transparent effort to stymie the efforts of defense 

counsel to understand and act upon the evidence in this case. 

1 The government provided working passwords for some of these files on April 12, 2023, 

but approximately ten gigabytes of data still remained encrypted. On May 8, 2023, the government 

provided an unencrypted copy of this data. 

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On April 19, 2023, the government made a third production of documents to the defense 

(the “Third Production”). These files were again encrypted and the defense was not immediately 

able to access them. On April 28, 2023, the government provided the defense with a flash drive 

containing an unencrypted version of the Third Production and a production index. The Third 

Production includes approximately 2,000 additional files. Like the other productions made in this 

case, the government produced native, non-Bates stamped files.

The government’s productions contained vast quantities of superfluous data, such as spam 

emails from dating sites, WebMD, Microsoft Office 365, and thousands of other email domains. 

See Exhibit A [Domains Spreadsheet] (listing 17,516 email domains in the government’s 

production set). The government’s production also inexplicably includes more than 850,000 files

that pre-date December 19, 2017—the day the alleged conspiracy is claimed to have begun. The 

defense can weed out a portion of these extraneous materials by electronically searching file names 

and including date filers. Such a methodical effort is time consuming and the defense is still left 

with hundreds of thousands of files to review before trial. Moreover, thousands of the audio and 

video files produced by the government bear only numeric or generic file names that in no way 

describe the contents of the recordings. And since the government has not produced transcripts of 

these recordings, they must be opened one-by-one. In sum, notwithstanding the technical 

resources available to defense counsel to sift through the government’s productions, hundreds of 

thousands of records will require manual review.

The practical problem with this volume is that, despite the government’s representations to 

the contrary, the defense has found critical material buried within the productions. By way of 

background, during earlier correspondence with the government over the defense’s concerns about 

the volume of discovery, the government asserted that (a) its First Production was essentially “the 

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‘hot document’ file with the most relevant material required to be produced” and (b) the 

government did not believe that any “Brady material” or “impeachment material” was in the 

Second Production. See Exhibit B [April 11-19, 2023 Email Chain with AUSA Watts-FitzGerald].

This claim by the government was not true. On April 28, 2023, the defense identified—within the 

Second Production—what any objective reviewer would deem to constitute critical Giglio

material, essential to the question of credibility of one or more of the government’s central trial 

witnesses. In short, the defense’s concern that Giglio or Brady may well be lurking within the 

million-plus documents of produced discovery is well founded. 

ARGUMENT

I. The Court Should Order the Government to Identify Exculpatory and 

Impeachment Discovery.

It is a well-settled constitutional principle that the government must disclose exculpatory 

and impeachment evidence. See Brady v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United 

States, 405 U.S. 150, 154 (1972). Brady and Giglio evidence must be disclosed regardless of 

whether a defendant makes a request for exculpatory or impeachment evidence. See Kyles v. 

Whitley, 514 U.S. 419, 432–33 (1995). 

The government does not satisfy its disclosure obligations by unnecessarily flooding a 

defendant with extraneous materials. See, e.g., United States v. Salyer, 271 F.R.D. 148, 155 (E.D. 

Cal. 2010) (“[P]rosecutors can go to the extreme of disclosing everything as possible Brady/Giglio 

material such that a pearl of exculpatory or impeaching information is inevitably lost in the sea of 

the mundane . . . . [A] duty to disclose may be unfulfilled by disclosing too much . . . .”) (emphasis 

in original), aff’d as modified, 2010 U.S. Dist. LEXIS 77617 (E.D. Cal. Aug. 2, 2010); United 

States v. Maxwell, No. 05-20571-CR, 2006 U.S. Dist. LEXIS 114125, at *15 (S.D. Fla. Jul. 12, 

2006) (“[O]pen-file discovery does not relieve the government of its Brady obligations . . . . To 

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the extent the government knows of any documents or statements that constitute Brady material, 

it must identify that material to [the defendant].”) (quoting United States v. Hsia, 24 F. Supp. 2d 

14, 29–30 (D.D.C. 1998) (alterations in original)). 

In cases where voluminous and extraneous discovery is produced to the defense, courts 

routinely require the government to affirmatively designate Brady material within a document 

production. See, e.g., United States v. Saffarinia, 424 F. Supp. 3d 46, 88 (D.D.C. 2020) (“[T]he 

government’s argument—that it does not have an independent obligation to ‘comb through the 

discovery to identify materials that [defendant] may find valuable in building his case,’ . . . is 

unavailing. The government has an affirmative duty to disclose Brady material . . . .”); United 

States v. Blankenship, No. 5:14-cr-00244, 2015 U.S. Dist. LEXIS 76287, at *15–16 (S.D. W. Va. 

June 12, 2015) (“[T]he [government] should specifically designate any known Brady material as 

such and disclose the same to defense counsel.”); Salyer, 271 F.R.D. at 155 (ordering the 

government to specifically identify by Bates number “the information which a reasonable 

prosecutor would view as exculpatory or impeaching”). 

Here, the defense asks that the Court order the government to do two things to comply with 

its Brady and Giglio obligations. 

First, to specifically identify within the produced discovery any and all material that 

mentions, depicts, or otherwise makes reference to Mr. Kry.

Second, to specifically identify within the produced discovery any and all material that 

mentions, depicts, or otherwise makes reference to Omaliss Keo (Mr. Kry’s alleged coconspirator), the Cambodian Ministry of Agriculture, Forestry, and Fisheries, or the Government 

of Cambodia.

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II. The Court Should Order the Government to Produce an Early Witness and Exhibit 

List.

Under Rule 16(d)(1) of the Federal Rules of Criminal Procedure, “[a]t any time the court 

may, for good cause . . . grant . . . appropriate relief” with respect to discovery. Fed. R. Crim. P. 

16(d)(1). Where, as here, the government has produced voluminous documents to the defense, 

such relief may include ordering the government to specifically identify documents that it intends 

to use at trial. United States v. Perraud, No. 09-60129-CR, 2009 U.S. Dist. LEXIS 123150, at 

*33–34 (S.D. Fla. Dec. 24, 2009) (ordering, where the government produced 3 million 

documents to the defense, that the government produce an early exhibit list to the defense); 

United States v. Upton, 856 F. Supp. 727, 746–47 (E.D.N.Y. 1994) (ordering, where the 

government had produced thousands of pages of discovery, that the government identify 

documents it plans to rely upon at trial). 

Here, the government has dumped over 3 terabytes of data on the defense. Even if defense 

counsel reviewed an average of 500 documents per day, it would take a team of ten lawyers 240 

days to review just the 1.2 million documents in the three productions. Additional resources would 

be necessary to review the other 12,750 video and audio records included in the production, which 

amount to roughly 250 hours of recordings. In light of this volume of discovery, the defense asks 

the Court to order the government to produce a witness and exhibit list to the defense three weeks 

before trial.

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Separately, and as a postscript, the defense has been unable to find any documents in either 

of the three productions which support the allegations contained in Overt Act paragraphs 17, 19, 

23, 27, and 35 of the Indictment―notwithstanding the government’s evidently untrue 

2 Should the Court grant Defendant’s Motion to Continue Trial until September 11, 2023, 

this would require the government to produce its witness and exhibit list by August 21, 2023. 

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representation that such materials were included in the First Production. For this reason, the 

defense asks the government to identify those documents. 

III. The Court Should Order the Government to Produce Discovery Involving the 

Cooperating Witness.

There is no legitimate reason for the government to delay production of Giglio material 

relating to the Cooperating Witness. See U.S. Dep’t. of Just., Just. Manual § 9-5.001 D (2020). 

The only reason for the government to artificially withhold production of this obvious Giglio

discovery is to hinder and delay the work of Mr. Kry’s counsel in developing an effective trial 

defense. Given the scope and structure of the Indictment, preparation of an effective defense in 

this case requires counsel for Mr. Kry to conduct extensive fact investigations outside the United 

States―primarily in Asia and Mr. Kry’s home country of Cambodia. That work is difficult and 

time consuming under the best of circumstances. By continuing to delay production of exculpatory 

and impeachment evidence relating to its key witness, the government creates the very practical 

risk that Mr. Kry’s counsel will complete material aspects of their investigation, only to learn that 

the same investigative work must be repeated once the relevant Giglio discovery is finally 

produced.

First, information relating to benefits provided to the Cooperating Witness must be 

produced pursuant to Giglio and this Court’s Standing Discovery Order. Consistent with Giglio,

Local Rule 88.10 requires that after the entry of the Standing Discovery Order (entered in this case 

on January 10, 2023, ECF No. 46), the “government shall disclose to the defendant the existence 

and substance of any payments, promises of immunity, leniency, preferential treatment, or other 

inducements made to prospective government witnesses, within the scope of Giglio v. United 

States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959)” and “supply the defendant 

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with a record of prior convictions of any alleged informant who will testify for the government at 

trial.” S.D. Fla. Local R. 88.10(d) and (e). 

The Standing Discovery Order similarly requires the production of information relating to

any payments, promises of leniency, preferential treatment, or other inducements made to 

prospective government witnesses. See ECF No. 46; S.D. Fla. Local R. 88.10(d). The government 

has confirmed that the Cooperating Witness has received hundreds of thousands of dollars in 

payments and the government is providing assistance to “normalize” his residency status in the 

United States. The government has produced a schedule confirming some payments made directly 

to the Cooperating Witness, but has not produced any additional information about benefits, such 

as payment for trips to/from the United States or Thailand or any information surrounding its effort 

to “normalize” the Cooperating Witness’s residency status in the United States. Thus, the Court 

should order the government to immediately produce all information pertaining to benefits being 

provided to the Cooperating Witness, including communications regarding efforts to “normalize” 

his residency status in the United States.

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Second, all transcripts, statements, or records of statements reflecting statements made by 

the Cooperating Witness, including grand jury testimony, FD-302s and/or ROIs or other reports of 

contact with the Cooperating Witness, as well as all evidence of wrongdoing, criminal conduct, or 

participation in the alleged conspiracy by the Cooperating Witness, either before or after entering 

into the CPIA with the USFWS, must be produced pursuant to Giglio. 

Any statements provided by the Cooperating Witness regarding the alleged conspiracy,

including any role he played in that alleged conspiracy before the entry of the CPIA, including the 

3 The defense also understands that the Cooperating Witness has family in Cambodia or 

Thailand, and specifically requests any information pertaining to the government’s assistance in 

normalizing their residency status in the United States. 

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receipt of the long-tailed macaques at the VBRC facility, would tend to incriminate the 

Cooperating Witness—who acted as an agent for VBRC in receiving the long-tailed macaques. 

Thus, the Cooperating Witness’s testimony regarding (a) the delivery of the long-tailed macaques, 

and what he and VBRC did with those long-tailed macaques following their delivery, as well as 

(b) independent evidence collected by USFWS or the government regarding the Cooperating 

Witness’s participation in the alleged conspiracy, would indicate that the government declined to 

prosecute him and therefore constitute impeachment evidence under Giglio. See Giglio v. United 

States, 405 US. 150, 154–55 (1972) (“[E]vidence of any understanding or agreement as to a future 

prosecution would be relevant to [the witness’] credibility and the jury was entitled to know of 

it.”).

Further, any statements provided by the Cooperating Witness after entering into the CPIA 

must also be produced. The government seeks to defer this production, maintaining that the 

statements are Jencks material. However, absent complete alignment among all statements, 

including the Cooperating Witness’s grand jury testimony, these statements collectively would 

constitute Giglio material. The defense must have the opportunity to investigate any 

inconsistencies in the Cooperating Witness’s rendition of the facts. Thus, all statements, testimony, 

or records of statements made by the Cooperating Witness, who, by the government’s own 

acknowledgement, played a role in the alleged conspiracy, must be produced under Giglio.

Third, all communications related to the CPIA between the Cooperating Witness and the 

government must be produced. As set forth in Mr. Kry’s Motion to Dismiss, ECF No. 92, the 

Indictment seeks to connect specifically-authorized conduct by a Cambodian official with 

allegedly criminal conduct by VBRC. Discovery produced to date confirms that the Cooperating 

Witness began working with USFWS agents almost a year after the alleged conspiracy began. 

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Thus the Cooperating witness likely took at least one overt act in furtherance of the conspiracy

prior to signing the CPIA, and that he engaged in conduct to further the conspiracy after signing 

the CPIA. See United States v. Garcia, 2017 U.S. Dist. LEXIS 66498, *177 (D. N. M. May 2, 

2017) (requiring disclosure of impeachment evidence regarding confidential informant’s role in 

case); United States v. Cousin, No. 20-10071-ADB, 2022 U.S. Dist. LEXIS 18646, at *97-98 (D. 

Mass. Feb. 2, 2022) (finding that disclosure of materials related to a confidential informant is 

appropriate where it “is relevant and helpful to the defense of an accused, or is essential to a fair 

determination of a cause”). Thus, communications between the Cooperating Witness and the 

government regarding the scope of the CPIA, what conduct by the Cooperating Witness would 

constitute entrapment, and the U.S. government’s goals in securing the Cooperating Witness’s 

assistance, are highly relevant to Mr. Kry’s defense and must be produced under Brady and Giglio.

CONCLUSION

For all of the reasons set forth herein, Defendant Masphal Kry respectfully submits that the 

Court should order the government to: (1) identify for defense counsel a discrete subset of 

documents consistent with government’s obligations under Brady v. Maryland, Giglio v. United 

States and their respective progeny; (2) produce early witness and exhibit lists; (3) produce records 

of payments and information pertaining to benefits provided to the Cooperating Witness; (4) 

produce all transcripts, statements, or records of statements reflecting statements made by the 

Cooperating Witness, including grand jury testimony, FD-302s, and ROIs, as well as all evidence 

of wrongdoing, criminal conduct, or participation in the alleged conspiracy by the Cooperating 

Witness; and (5) produce all communications related to the agreement between the Cooperating 

Witness and the government. 

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CERTIFICATE OF CONFERRAL

Pursuant to Local Rules 7.1 and 88.9, counsel for Mr. Kry has conferred with the 

government several times over the government’s productions. In short, the government opposes 

the specific relief that Mr. Kry is requesting in this motion. 

Dated: May 26, 2023 Respectfully submitted, 

By: Mark J. MacDougall

Mark J. MacDougall (Pro Hac Vice)

Stacey H. Mitchell (Pro Hac Vice)

Allison T. Coffin (Pro Hac Vice)

Dakota L. Kann (Pro Hac Vice)

Jane M. Mahan (Pro Hac Vice)

Counsel for Masphal Kry

Akin Gump Strauss Hauer & Feld LLP

2001 K Street NW

Washington, DC 20006

Telephone: (202) 887-4000

Fax: (202) 887-4288

E-mail: mmacdougall@akingump.com

 shmitchell@akingump.com

 acoffin@akingump.com

 dkann@akingump.com

 jmahan@akingump.com

John R. Byrne

John R. Byrne (Fla. Bar Number: 0126294)

john@maderalbyrne.com

Counsel for Masphal Kry

Maderal Byrne & Furst PLLC

2800 Ponce de Leon Boulevard, Suite 1100

Coral Gables, FL 33134

Telephone: (305) 520-5690

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