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ORDER ON MOTION FOR 

DISCLOSURE OF EXCULPATORY

SENTENCING INFORMATION- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

UNITED STATES OF AMERICA,

Plaintiff,

vs.

MARTIN LYNN GUITARD,

Defendant.

Case No. CR06-0069RSL

ORDER ON MOTION FOR

DISCLOSURE OF EXCULPATORY

SENTENCING INFORMATION

This matter comes before the Court on defendant Martin Guitard’s “Motion for

Disclosure of Exculpatory Sentencing Information.” (Dkt. # 128). Guitard requests an order

compelling the government to disclose certain information regarding co-defendants Neil Kikuchi

and James Ito. The information requested includes: (1) “the existence and substance of all

promises of immunity, leniency or preferential treatment, including any written PLEA

AGREEMENTS and transcripts of plea proceedings,” and (2) certain portions of the codefendants’ presentence investigation reports including all of Parts A and B, along with the

“Personal Characteristic Section” of Part C “dealing with drug usage and mental health.”

(Motion at pp. 1-2). 

With respect to Guitard’s first request, the government responds that all promises of

“leniency or preferential treatment” are contained in Kikuchi’s and Ito’s plea agreements and 

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ORDER ON MOTION FOR 

DISCLOSURE OF EXCULPATORY

SENTENCING INFORMATION- 2

that Kikuchi and Ito received no “promises of immunity” other than “the standard

agreement...for ‘Non-Prosecution of Additional Offenses.’” (Response at p. 2). Contrary to

Guitard’s mistaken representation, the co-defendants’ plea agreements are not sealed and do not

require a court order to obtain them. The Court therefore denies this aspect of defendant’s

motion to compel. 

The government also opposes Guitard’s request for certain portions of the co-defendants’

presentence investigation reports. The government contends it has no authority under Local

Rule 32(b)(7) to disclose Kikuchi’s and Ito’s confidential presentence reports to Guitard. The

Court agrees. Rule 32(b)(7) expressly provides that a presentence report “constitutes a

confidential court document and shall be presumed to remain under the continuing control of the

court during the time that such presentence report is in the temporary custody of any...agenc[y].”

Rule 32(b)(7). Because the co-defendants’ reports remain under the Court’s control, the

government may not disclose them. 

The defendant is correct, however, that Brady v. Maryland, 373 U.S. 83 (1963) requires

disclosure of exculpatory evidence contained in a key witness’s presentence report. See United

States v. Alvarez, 358 F.3d 1194, 1207 (9th Cir. 2004) (“While a criminal defendant has no

constitutional right to examine presentence reports, he is nevertheless entitled to disclosure of

Brady material contained therein.”). To conform with Brady’s requirements, the Ninth Circuit

has stated that “trial judges have discretion either to make an in camera inspection of the

materials or to rely on an examination by a probation officer.” Id. at 1207-1208 (citing United

States v. Chavez-Vernaza, 844 F.2d 1368, 1375 (9th Cir. 1988)). Accordingly, this Court has

reviewed drafts of Kikuchi’s and Ito’s presentence reports in camera to determine whether they

contain any exculpatory information to be disclosed to Guitard.

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ORDER ON MOTION FOR 

DISCLOSURE OF EXCULPATORY

SENTENCING INFORMATION- 3

For the foregoing reasons, defendant Guitard’s “Motion for Disclosure of Exculpatory

Sentencing Information” (Dkt. # 128) is DENIED. The Court has a packet of portions of the

presentence reports which the Court finds should be disclosed to Guitard’s attorney. Defense

Counsel and the Assistant U.S. Attorneys can pick up these packets in chambers. 

DATED this 18th day of January, 2007.

A

Robert S. Lasnik

United States District Judge

Case 2:06-cr-00069-RSL Document 130 Filed 01/18/07 Page 3 of 3