UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 14-20797

v. Hon. Gerald E. Rosen

KEMEPAUDOR EKIYOR,

Defendant.

_________________________________/

OPINION AND ORDER DENYING DEFENDANT’S

MOTION REQUESTING DISCLOSURE OF BRADY MATERIAL

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on March 4, 2015 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

I. INTRODUCTION

Defendant Kemepaudor Ekiyor is charged in a December 16, 2014 indictment

with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(A)(ii), and one count of importation of cocaine in violation of 21

U.S.C. §§ 952 and 960(b)(1)(B). These charges stem from allegations that as Defendant

was traveling from Nigeria to his home in Ottawa, Canada with connections in

Amsterdam and at the Detroit Metropolitan Airport, federal law enforcement agents at

the Detroit airport discovered more than six kilograms of cocaine in a locked suitcase

bearing a luggage tag with Defendant’s name, with Defendant subsequently found to be

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in possession of a key that opened this locked suitcase.

Through the present motion filed on February 11, 2015, Defendant seeks to

compel the Government to disclose information purportedly in the possession of the

United States Drug Enforcement Administration (“DEA”) and other federal agencies

relating to the smuggling of drugs by baggage handlers. In Defendant’s view, the

Government’s disclosure of this information is required under the authority of Brady v.

Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), Giglio v. United States, 405 U.S. 150, 92

S. Ct. 763 (1972), and their progeny, where this information either will help to exculpate

Defendant or will assist in the impeachment of Government witnesses. The Government

filed a response in opposition to this motion on February 25, 2015, observing that

Defendant has been given the names and docket numbers of two recent cases in this

District in which airport baggage handlers have been charged with drug smuggling

activities, and arguing that any further disclosures sought in Defendant’s motion would

exceed the scope of the Brady materiality standard.

On March 2, 2015, the Court addressed this matter on the record during the

opening day of Defendant’s trial. For the reasons stated on the record at the March 2

hearing, as supplemented by the rulings below, the Court denies Defendant’s motion.

II. FACTUAL AND PROCEDURAL BACKGROUND

According to the criminal complaint and accompanying affidavit through which

the Government commenced the present proceeding, federal agents of the Department of

Homeland Security (“DHS”) and Customs and Border Protection (“CBP”) were

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inspecting baggage that had arrived on a September 26, 2014 Delta Airlines flight from

Amsterdam to Detroit Metropolitan Airport when they came across a locked travel bag

with a Delta Airlines luggage tag affixed to it bearing the name of Defendant

Kemepaudor Ekiyor. Upon cutting the lock to gain access to the bag, the agents found six

bundles of a white powdery substance that field-tested positive for cocaine, with the

combined weight of these bundles equaling approximately 6.9 kilograms.

The agents reviewed Defendant’s travel records and determined that he was

scheduled to depart later that same day on a flight from the Detroit airport to Ottawa,

Canada. The agents proceeded to the departure gate and took Defendant and his

possessions into custody. A search of a black laptop bag in Defendant’s possession

revealed three small keys that were found to match the lock on the travel bag containing

the suspected cocaine. Upon advising Defendant of his rights under Miranda v. Arizona,

384 U.S. 436, 86 S. Ct. 1602 (1966), and interviewing him, the agents were told that

Defendant was traveling from Nigeria to his home in Ottawa via Amsterdam and Detroit,

and that he had purchased the lock affixed to his travel bag while he was in Amsterdam.

In the wake of this incident, a grand jury handed down a December 16, 2014

indictment charging Defendant with one count of possession with intent to distribute

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii), and one count of

importation of cocaine in violation of 21 U.S.C. §§ 952 and 960(b)(1)(B). Through his

present motion, Defendant seeks an order compelling the Government to produce a wide

range of materials and information in the possession of the DEA and other federal

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agencies “relating to the smuggling of drugs by baggage handlers,” (Defendant’s Motion

at 2), presumably in aid of a defense theory that the bundles of cocaine found in

Defendant’s travel bag were placed there by baggage handlers without Defendant’s

knowledge.1

III. ANALYSIS

The Supreme Court’s familiar ruling in Brady, 373 U.S. at 87, 83 S. Ct. at 1196-

97, imposes upon the Government the duty to disclose “evidence favorable to an accused”

that is “material either to guilt or to punishment.” The Sixth Circuit has emphasized that

the decisions in Brady and its progeny do not confer a right to discovery, but instead are

meant to safeguard a defendant’s due process right to a fair trial:

As a general proposition, there is no general constitutional right to

discovery in a criminal case, and Brady did not create one. Rather, Brady is

concerned only with cases in which the government possesses information

which the defendant does not, and the government’s failure to disclose the

information deprives the defendant of a fair trial. Reversal [for a Brady

violation] is only required, therefore, where there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine the confidence in the outcome.

United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994) (internal quotation marks,

alterations, and citations omitted).

The threshold question implicated by Defendant’s present motion is whether the

1

In its response to Defendant’s motion, the Government states that it has made a more

limited disclosure to Defendant, providing the names and docket numbers of two recent cases in

this District involving allegations that airport baggage handlers participated in drug trafficking

activities. The Government further states its belief that Defendant agreed to this more limited

disclosure, (see Gov’t Response Br. at 2 n.1), but the present motion indicates otherwise.

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information he seeks is “material” within the meaning of Brady and its progeny. “[T]he

issue of materiality for Brady purposes pertains only to the question of a defendant’s guilt

or innocence, not to the issue of a defendant’s ability or inability to prepare for trial.” 

United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991). Moreover, information is not

“material” under this standard unless it “consists of, or would lead directly to, evidence

admissible at trial for either substantive or impeachment purposes.” Phillip, 948 F.2d at

249. A court’s determination that inadmissible evidence might lead to the discovery of

evidence admissible at trial may not rest on “mere speculation.” Wood v. Bartholomew,

516 U.S. 1, 6, 116 S. Ct. 7, 10 (1995); see also Wogenstahl v. Mitchell, 668 F.3d 307, 325

n.3 (6th Cir. 2012).

In his present motion, Defendant does not suggest how the information he seeks

might be admissible at his forthcoming trial or, at a minimum, might lead to the discovery

of admissible evidence. To the contrary, the Court harbors serious doubts that the avenue

Defendant proposes to explore will result in evidence that he may offer at trial for either

substantive or impeachment purposes. As noted earlier, Defendant’s request broadly

encompasses “all reports, documents, surveys, studies, etc. in the possession of the DEA

or other federal agencies relating to the smuggling of drugs by baggage handlers.” 

(Defendant’s Motion at 2.) Defendant evidently seeks this information in support of a

defense theory that the drugs found in his travel bag were placed there by baggage

handlers without his knowledge, and he states that he “has been informed and believes

that the government is aware of other cases in which the allegations by the defense in this

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case are supported by the facts in other cases and internal materials in the possession of

the government.” (Id. at 3.) Defendant further states that he “is informed and believes

that the DEA has a database of cases and other nonpublic information in which baggage

handlers have . . . engaged in smuggling activities.” (Id.)

Assuming that federal government agencies have information responsive to

Defendant’s request, Defendant is likely to encounter significant evidentiary obstacles to

the admission at trial of any such materials the Government might provide. Defendant’s

request, if construed literally and without any limitation, would reach (i) all cases, without

temporal limitation, brought by federal prosecutors anywhere in the country in which a

baggage handler is allegedly involved to any extent in a charged drug trafficking offense,

(ii) all documents — spanning from pleadings and exhibits filed on the public docket to

internal investigative materials — possessed by the prosecution team in each such case,

and (iii) all materials compiled by any federal agency, without temporal limitation, in any

investigation into the possible involvement of baggage handlers in drug trafficking

activities, regardless of whether these investigations resulted in the bringing of criminal

charges, and regardless of whether these investigations have concluded or remain

ongoing. Plainly, the breathtaking scope of this request would sweep in materials that

could not possibly be viewed as relevant to any theory of innocence that Defendant might

wish to pursue in this case. To take an obvious example, Defendant’s request would

encompass materials from an investigation in which the Government elected not to pursue

any charges or a grand jury declined to return an indictment. Yet, the absence of charges

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brought against a baggage handler who was the target of a federal government

investigation into suspected drug trafficking activity surely cannot be viewed as evidence

that would tend to negate the charges brought against Defendant here. See United States

v. Agurs, 427 U.S. 97, 109 n.16, 96 S. Ct. 2392, 2400 n.16 (1976) (expressing doubt that

the government “has an obligation to communicate preliminary, challenged, or

speculative information” (internal quotation marks and citation omitted)); United States v.

Taylor, No. 07-3975, 471 F. App’x 499, 520 (6th Cir. June 21, 2012) (noting the

government’s “compelling” argument in that case that “unsubstantiated allegations are

not material under Brady”). 

Even in cases where criminal charges have been brought against baggage handlers

for their alleged involvement in drug trafficking activities — e.g., the two cases from this

District identified in the Government’s limited response to Defendant’s discovery request

— Defendant has failed to suggest how information pertaining to these cases, if produced

by the Government, could be admitted into evidence at Defendant’s forthcoming trial. 

Evidence of the drug trafficking activities of a baggage handler in another case, if offered

by Defendant here to suggest that a baggage handler likewise might have been

responsible for the drugs found in his travel bag, would run afoul of the prohibition under

Federal Rule of Evidence 404(b)(1) against the admission of “[e]vidence of a crime,

wrong, or other act” to “prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” As the Sixth Circuit has

explained, Rule 404(b) safeguards against the introduction of so-called “other acts”

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evidence that is offered “merely to show propensity.” United States v. Clay, 667 F.3d

689, 693 (6th Cir. 2012).

More specifically, the information that Defendant seeks from the Government

here, concerning the activities of baggage handlers in other cases, has been termed by the

courts as “reverse 404(b)” evidence — that is, “evidence of a prior act by another [that] is

offered as exculpatory evidence by the defendant, instead of being used by a prosecutor

against a defendant.” United States v. Lucas, 357 F.3d 599, 605 (6th Cir. 2004). Other

circuits have adopted a more lenient standard for determining whether a defendant should

be permitted to introduce reverse 404(b) evidence, noting that “the principal policy

consideration underlying Rule 404(b)’s exclusionary rule is to protect the parties in an

action, and in particular, criminal defendants, from the danger of unfair prejudice,” and

reasoning that this danger “does not exist” where “the defendant offers evidence of other

crimes or bad acts of a third party exculpatorily.” See Lucas, 357 F.3d at 612-14 (Rosen,

D.J., concurring) (surveying the standards applied by other circuits in determining the

admissibility of reverse 404(b) evidence, and advocating that the more lenient standard

should be adopted in this Circuit). The Sixth Circuit, however, has held that “the standard

analysis of Rule 404(b) evidence should generally apply,” regardless of whether the

Government seeks to introduce other acts evidence against a defendant or a defendant

wishes to offer such evidence “with respect to an absent third party, not charged with any

crime.” Lucas, 357 F.3d at 606. Under the rule adopted by the Sixth Circuit, therefore,

reverse 404(b) evidence of other acts by a third party is inadmissible if it is offered only

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to support a propensity inference — that is, to suggest that it is more likely that the third

party conducted himself on another occasion in accordance with the character evidenced

by the other act.

The Court fails to see how the information sought by Defendant could have any

probative value at his trial apart from its use to support an impermissible propensity

inference — namely, to suggest that because baggage handlers in other cases were

accused or convicted of drug trafficking activities, it is more likely that a baggage handler

is responsible in this case for the drug smuggling activity that the Government seeks to

attribute to Defendant. Indeed, such a propensity inference would be particularly

attenuated and inappropriate in this case, because absent evidence that the same baggage

handler charged in another case also might have been in a position to plant drugs in

Defendant’s luggage without his knowledge, the materials sought by Defendant from

other cases would tend to show only the propensity of an entire class of employees in the

travel industry (baggage handlers) to engage in drug trafficking activities. If there is a

theory of admissibility for such evidence, the Court is not aware of it, and Defendant

certainly has not identified one. Thus, although this Court continues to believe that the

broader use of reverse Rule 404(b) evidence approved in other circuits better reflects the

policies underlying Rule 404(b), the baggage handler material sought in Defendant’s

present motion would not be admissible even under this more generous standard.

Even assuming that Defendant could satisfy the Rule 404(b) criteria for admitting

evidence of the crimes, wrongs, or other acts of baggage handlers, exclusion would

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nonetheless be called for under Fed. R. Evid. 403 if the probative value of this evidence

would be “substantially outweigh[ed]” by the “risk of unfair prejudice, confusion of the

issues, misleading the jury, or undue delay.” United States v. Qin, 688 F.3d 257, 263-64

(6th Cir. 2012). In this case, Defendant’s introduction of evidence of drug trafficking by

baggage handlers would spawn a mini-trial to explore such matters as when and where

these activities occurred, the precise nature of the activities, and whether these activities

had any conceivable bearing on or relation to the events giving rise to the charges here,

just so that the jury could meaningfully determine what weight, if any, to give to this

evidence in assessing Defendant’s guilt or innocence of the charged offenses. Given that

the probative value of this baggage handler evidence would surely be modest, at best, and

would rest on a number of tenuous inferences, the Court has no difficulty in concluding

that this dubious probative value would be substantially outweighed by the risk of

confusing the pertinent issues, misleading the jury, and unduly delaying the proceedings. 

In addition to the obstacles posed by Rules 403 and 404(b) to the admissibility of

any evidence Defendant might obtain as a result of the disclosure sought in his motion,

this requested disclosure also runs afoul of another aspect of the Brady materiality

standard. As noted earlier, information is not “material” under Brady unless it “consists

of, or would lead directly to, evidence admissible at trial for either substantive or

impeachment purposes,” Phillip, 948 F.2d at 249 (emphasis added), and this link between

a Brady disclosure and evidence admissible for a proper purpose “cannot be based on

speculation,” Wogenstahl, 668 F.3d at 325 n.3 (internal quotation marks and citation

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omitted). The Government’s duty of disclosure does not extend to information that is

directly “relevant to neither guilt nor credibility,” but rather might merely be claimed to

be “of use to the defendant in acquiring exculpatory or impeachment evidence that the

defendant had thought was unavailable.” Mullins, 22 F.3d at 1372. As the Tenth Circuit

has observed:

The Government has no obligation to disclose possible theories of the

defense to a defendant. If a statement does not contain any expressly

exculpatory material, the Government need not produce that statement to

the defense. To hold otherwise would impose an insuperable burden on the

Government to determine what facially non-exculpatory evidence might

possibly be favorable to the accused by inferential reasoning. We are

confident that the Supreme Court did not intend the Brady holding to sweep

so broadly.

United States v. Comosona, 848 F.2d 1110, 1115 (10th Cir. 1988); see also Harris v.

Kuba, 486 F.3d 1010, 1016 (7th Cir. 2007) (“Brady does not require that police officers

or prosecutors explore multiple potential inferences to discern whether evidence that is

not favorable to a defendant could become favorable.”); United States v. Marrero, 904

F.2d 251, 261 (5th Cir. 1990) (holding that Brady “does not place any burden upon the

Government to conduct a defendant’s investigation or assist in the presentation of the

defense’s case”).

The Court finds that just such inferential reasoning would be necessary to forge a

link between the information sought by Defendant and admissible exculpatory evidence. 

Assuming, for the moment, that the requested disclosure would reveal instances of

baggage handlers engaging in drug trafficking activity — and assuming that Defendant

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could overcome the evidentiary hurdle discussed earlier — this by itself, of course, would

not tend to show that Defendant is innocent of the charges brought against him in this

case. Rather, depending on a number of factors bearing upon the probative value of the

Government’s disclosure — e.g., the airports at which baggage handlers engaged in drug

trafficking, the precise nature of these activities, and the dates on which these activities

occurred — various inferential leaps would be necessary to cull admissible exculpatory

evidence from the materials sought by Defendant. The foregoing authorities make it clear

that the Government has no such obligation to produce information that, at best and

through inferential reasoning, would merely assist in the pursuit of a defense theory that

baggage handlers were responsible for the drugs giving rise to the charges in this case.

Consequently, because Defendant has failed to explain how the information he

seeks “consists of, or would lead directly to, evidence admissible at trial for either

substantive or impeachment purposes,” Phillip, 948 F.2d at 249, he cannot satisfy the

standard of materiality established in Brady and its progeny. To the extent that Defendant

wishes to offer evidence for the more modest purpose of establishing that the federal

government has charged baggage handlers in other cases with engaging in drug

trafficking activities, the Government has already provided him with sufficient

information — i.e., names and docket number of other cases in this District featuring such

charges — to enable him to make this showing, and any additional information sought by

Defendant would be merely cumulative on this point. It follows that Defendant’s appeal

to Brady is unavailing as a basis for the production of the wide range of materials

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identified in his motion.

Finally, even if Defendant could satisfy the Brady standard for materiality, he must

also show that the information he seeks is “within the control of the Government,”

because the duty imposed on the prosecution under Brady and its progeny extends only to

“material evidence . . . over which the prosecution team has control.” United States v.

Graham, 484 F.3d 413, 417 (6th Cir. 2007). As the Supreme Court has explained, an

“individual prosecutor has a duty to learn of any favorable evidence known to the others

acting on the government’s behalf in the case, including the police.” Kyles v. Whitley,

514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (emphasis added); see also Jamison v.

Collins, 291 F.3d 380, 385 (6th Cir. 2002) (finding that the duty of disclosure under

Brady “extends to information in the possession of the law enforcement agency

investigating the offense” (emphasis added)). Thus, the scope of a prosecutor’s active or

constructive “possession” of information subject to the disclosure mandate of Brady is

limited to the context of the particular case in which disclosure is sought:

An individual prosecutor is presumed . . . to have knowledge of all

information gathered in connection with his office’s investigation of the

case . . . . Nonetheless, knowledge on the part of persons employed by a

different office of the government does not in all instances warrant the

imputation of knowledge to the prosecutor, for the imposition of an

unlimited duty on a prosecutor to inquire of other offices not working with

the prosecutor’s office on the case in question would inappropriately require

us to adopt a monolithic view of government that would condemn the

prosecution of criminal cases to a state of paralysis.

United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998); see also United States v.

Morris, 80 F.3d 1151, 1169 (7th Cir. 1996) (reasoning that “neither Kyles nor [a prior

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Seventh Circuit ruling] can 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. Meregildo, 920 F. Supp.2d 434,

440 (S.D.N.Y. 2013) (explaining that “[t]he constructive knowledge of the prosecutor is

not limitless,” and “does not encompass every agency and individual within the federal

government”).

Defendant’s request here surely exceeds any such notion of information known to

the federal prosecution team and investigators involved in this particular case. Most

notably, he states his belief that the DEA maintains a “database of cases and other

nonpublic information in which baggage handlers have . . . engaged in smuggling

activities.” (Defendant’s Motion at 3.) Nothing suggests, however, that the prosecution

team in this case has had any occasion to consult this purported database or learn of its

contents. Even more far afield is Defendant’s reference in his motion to newspaper

articles and other materials suggesting that baggage handlers in Amsterdam might be

involved in drug smuggling activities. Even under the broadest possible notion of a

monolithic federal government that is charged with constructive knowledge of any and all

information known to any of its myriad agencies, the Government surely cannot be said to

possess or have control over information uncovered in law enforcement investigations by

foreign governments or agencies. Accordingly, the Court rejects Defendant’s request on

the additional ground that he has failed to show that the information he seeks is “within

the control of the Government,” Graham, 484 F.3d at 417, as this requirement has been

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construed in cases applying the Brady standard for disclosure.

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IV. CONCLUSION

For the reasons stated in open court on March 2, 2015, as supplemented by the

rulings set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s February 11,

2015 motion requesting production of Brady material (docket #26) is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: March 4, 2015

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on March 4, 2015, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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