FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EVE MAZZARELLA,

Defendant-Appellant.

No. 12-10171

D.C. No.

2:08-cr-00064-

RLH-GWF-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EVE MAZZARELLA,

Defendant-Appellant.

No. 13-10401

D.C. No.

2:08-cr-00064-

RLH-GWF-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EVE MAZZARELLA,

Defendant-Appellant.

No. 13-10658

D.C. No.

2:08-cr-00064-

RLH-GWF-2

OPINION
2 UNITED STATES V. MAZZARELLA

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted

November 17, 2014—San Francisco, California

Filed April 20, 2015

Before: Ronald M. Gould, Paul J. Watford,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Gould

SUMMARY*

Criminal Law

The panel vacated the district court’s orders denying the

defendant’s motions for a new trial, and remanded for further

proceedings, in a case in which the defendant was convicted

of twelve felony counts related to a complex mortgage fraud

scheme.

After her conviction, the defendant filed two motions for

a new trial, contending that the government withheld material

exculpatory evidence in violation of Brady v. Maryland and

violated her right to be free from unreasonable searches under

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. MAZZARELLA 3

the Fourth Amendment. The defendant requested discovery

and an evidentiary hearing on these issues. 

The panel held that based on the record before the district

court, the court erred in concluding that the defendant’s rights

under Brady and the Fourth Amendment had not been

violated. 

The panel held that the defendant has not shown prejudice

based solely on the Brady disclosures, first revealed after her

trial and sentencing. But the panel remanded the Brady

issues for the district court to reconsider them on an open

record, in conjunction with the additional disclosure with

which the defendant sought to augment the record on appeal,

the Fourth Amendment issue, and any further impeachment

or exculpatory evidence that comes to light from discovery.

The panel held that the district court erred in concluding

on the record before it that an employee’s copying of

documents from the defendant’s real estate and investment

offices was not a search implicating the Fourth Amendment. 

The panel wrote that more discovery is required to determine

whether an unlawful search occurred and whether there were

evidentiary fruits of an unlawful search. The panel wrote that

after making these determinations on remand, the district

court should consider again the cumulative effect of the

impeachment evidence it considered before, and the

additional impeachment evidence that the defendant sought

to place before this court. The panel wrote that this material

must be considered together with any evidence that should

have been excluded from trial under the Fourth Amendment

to determine whether any of the defendant’s convictions must

be vacated and a new trial granted.
4 UNITED STATES V. MAZZARELLA

The panel also held that the district court abused its

discretion in denying the defendant’s requests for an

evidentiary hearing and for discovery. The panel wrote that

more findings, which will require reasonable discovery and

an evidentiary hearing, are needed to resolve whether there

was an immunity agreement in place for a prosecution

witness, and whether there was an unlawful search that

resulted in tainted evidence being used at trial. The panel

wrote that the district court should also consider an additional

disclosure with which the defendant sought to supplement the

record before this court. The panel rejected the defendant’s

argument that the district court should have imposed the very

detailed discovery guidelines from a 2010 Department of

Justice memorandum to federal prosecutors.

The panel addressed other issues in a concurrently filed

memorandum disposition.

COUNSEL

John D. Cline (argued), Law Office of John D. Cline, San

Francisco, California; Mark H. Allenbaugh, Law Offices of

Mark H. Allenbaugh, Cleveland, Ohio, for DefendantAppellant.

Daniel G. Bogden, United States Attorney, Elizabeth O.

White, Appellate Chief, Peter S. Levitt (argued), Assistant

United States Attorney, Las Vegas, Nevada, for PlaintiffAppellee.
UNITED STATES V. MAZZARELLA 5

OPINION

GOULD, Circuit Judge:

Eve Mazzarella was convicted of twelve felony counts

related to a complex mortgage fraud scheme. After her

conviction, Mazzarella filed two motions for a new trial,

contending that the government had withheld material

exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963), and had violated her right to be free from

unreasonable searches under the Fourth Amendment. 

Mazzarella requested discoveryand an evidentiaryhearing on

these issues. The district court denied both motions, and

Mazzarella’s appeal from those orders is before us.1 We have

jurisdiction under 28 U.S.C. § 1291. We hold that based on

the record before the district court, the court erred in

concluding that Mazzarella’s rights under Brady and the

Fourth Amendment had not been violated. We also hold that

the district court abused its discretion in denying

Mazzarella’s request for an evidentiary hearing and for

discovery. We vacate the district court’s orders and remand.

1 Mazzarella also challenges her underlying convictions and sentence

directly, raising an ineffective assistance of counsel challenge, a

sufficiency ofthe evidence challenge, and challenges to the district court’s

evidentiary rulings, jury instructions, and sentencing decisions. We

dismiss the ineffective assistance claim and affirm the district court on all

the other issues except the sentencing challenge in a concurrently filed

memorandum disposition. We do not reach Mazzarella’s contentions

related to sentencing error, which she may raise again if on remand the

district court does not vacate any of her convictions and re-sentence her.
6 UNITED STATES V. MAZZARELLA

I

Mazzarella, a real estate agent and principal of Distinctive

Real Estate & Investments (“DREI”), was accused of

conspiring with Steven Grimm, Melissa Beecroft, and others

to defraud federally insured banks and private citizens. The

scheme involved recruiting straw buyers with excellent credit

histories to acquire full or nearly full financing to purchase

homes. The straw buyers’ loan applications contained

materially false statements related to their income, assets,

employment, and intent to use the home as a primary

residence.

The homes to be purchased by the straw buyers were

offered for sale at distressed prices below fair market value,

but the mortgages and the purchase offers were for fair

market value. The difference between the two figures was

paid at closing to business entities controlled by Mazzarella

and her co-defendants. The government calls these payments

“third party disbursements.” The government charged that

defendants created numerous limited liability companies

(“LLCs”) and caused straw buyers to transfer their interest in

the purchased properties to the LLCs in exchange for a fee. 

Defendants controlled the bank accounts for those entities and

eventuallydefaulted on mortgage payments on the properties,

resulting in significant losses to the lender, while the

defendants retained much of the money from the third party

disbursements.

The key unlawful component of the scheme was the false

information in the loan applications. Testimony at trial, much

of which came from cooperating witnesses, showed that

Mazzarella knew that the straw buyers were submitting false

information. One such witness, Skip Young, testified: (1)
UNITED STATES V. MAZZARELLA 7

that he had engaged in “fraudulent transactions for Eve

Mazzarella”; (2) that Mazzarella personally gave

misinformation to lenders by suggesting a fake job title at

DREI and inflated income for one of her employees who was

recruited as a straw buyer; and (3) that Mazzarella developed

a plan to create spreadsheets to track which straw buyers

applied to which banks after problems arose with buyers

seeking loans from the same bank on multiple homes and

indicating an intent to reside in each as a primary residence. 

Another cooperating witness, Shauna Labee, testified that

Mazzarella had personally induced her to agree to be a straw

buyer and that Mazzarella observed Labee signing blank loan

application forms in Mazzarella’s office. There was also

testimony about Mazzarella’s knowing involvement in other

aspects of the plan that would have been lawful absent the

fraudulent applications.

The jury found Mazzarella guilty of the conspiracy, bank

fraud, mail fraud, and wire fraud counts, and Mazzarella

appealed.

While the appeal from her convictions and sentence was

pending, the district court twice denied motions for a new

trial for which Mazzarella moved on the basis of post-trial

government disclosures under Brady v. Maryland. The

government disclosures involved information potentially

helpful to Mazzarella about Kim Brown, Alicia Hanna, and

Jennifer Wolff, who had all testified as prosecution witnesses

in Mazzarella’s trial.

After the Mazzarella trial, Brown, one of Mazzarella’s

employees at DREI who had testified regarding the

conspiracy charge and one of the mail fraud charges, testified

during the trial of another person connected to the mortgage
8 UNITED STATES V. MAZZARELLA

fraud scheme. In her testimony at that later trial, she said that

while the federal investigation of Mazzarella was pending,

she had, at the request of either the FBI or the IRS, copied

thousands of pages of documents from the DREI offices and

given them to the government. During that related trial, the

government’s statements and Brown’s own testimony

indicated that Brown had received an informal promise from

the government that she would not be prosecuted if she

cooperated. The information about the copied documents and

the informal immunity promise had not been disclosed to

Mazzarella before or at her trial.

The government also disclosed to Mazzarella information

concerning Alicia Hanna, who had testified at Mazzarella’s

trial about the materiality of the false statements to the

lending banks and that one of the defrauded banks was

federally insured at the time of the transactions. At the time

of trial, Hanna was a former employee of a defrauded lender

bank. After trial, the government gave Mazzarella a copy of

an email exchange between Hanna and an FBI agent from

before Mazzarella’s trial. Hanna’s email contained a

statement indicating that she might wish to work for the FBI

one day, and asking the agent to keep an eye out for job

openings in the Charlotte field office. That statement may

have been a literal hope or a casual joke, but in either event

it might have been urged by Mazzarella as a basis to crossexamine Hanna and undercut her credibility.

The district court denied Mazzarella’s first motion for a

new trial, which was based on the disclosures related to

Brown and Hanna. The district court determined that the

evidence was not necessarily impeaching, because the

government’s alleged promise to Brown that she had nothing

to worry about if she cooperated was in response to a
UNITED STATES V. MAZZARELLA 9

question asked by another witness cooperating in the

investigation against Mazzarella, and could not reasonablybe

construed as a promise to Brown specifically. Also, any

agreement would not impeach her because Brown had

testified that she initially contacted the FBI out of a desire to

do the right thing, belying the notion that her cooperation was

motivated by a desire to avoid prosecution. The district court

deemed the email from Hanna innocuous and unlikely to

serve as impeachment evidence. The district court further

ruled that even if the evidence was impeaching, there was no

prejudice because the jury would likely have found Brown

and Hanna credible despite any impeachment evidence. Also

there was substantial other evidence of Mazzarella’s guilt,

and Hanna’s testimony had been verified by independent

documentation and the testimony of several other witnesses. 

The district court additionally ruled that Brown was not a

government actor and that her copying of documents did not

implicate the Fourth Amendment, and further that there was

no evidence that any copied documents were given to the

government, or that any were used by the government at trial. 

Mazzarella timely appealed the district court’s order denying

her motion.

Later, the government made yet another disclosure to

Mazzarella. Jennifer Wolff, who had testified against

Mazzarella, testified on cross-examination during the trial of

another person in the scheme that she understood that she

would not be prosecuted in return for testifying. The

government told Mazzarella that it was aware of no such

promise.

Mazzarella moved a second time for a new trial based on

the Brady disclosures. The district court concluded that the

notion that Wolff was promised immunity in exchange for
10 UNITED STATES V. MAZZARELLA

testimony against Mazzarella was “tenuous at best,” because

it was unclear even from Wolff’s testimony whether she was

referring to an agreement that was for her testimony in

Mazzarella’s trial, or only in the later trial of Mazzarella’s coschemer. Moreover, the government had filed an affidavit

explaining that Wolff’s belief arose from a misunderstanding

and that she was never actually promised immunity. Once

again, the district court concluded that even if there had been

an immunity agreement and even alongside the earlier

disclosures, the additional evidence against Mazzarella was

so substantial that there was no prejudice that would

undermine confidence in the verdict.2

II

We review de novo a district court’s denial of a new trial

motion based on a Brady claim, as well as the issue of

materiality under Brady. United States v. Sedaghaty,

728 F.3d 885, 899–900 (9th Cir. 2013).

We review de novo a district court’s legal conclusion that

a search did not violate the Fourth Amendment because it was

private. United States v. Reed, 15 F.3d 928, 930 (9th Cir.

1994).

2 Before oral argument in this case, Mazzarella filed a motion to

supplement the record with the details of another Brady disclosure. We

deny that motion in an order filed simultaneously with this opinion. Even

in combination with the other disclosures on the existing record, we would

not reverse the district court. Rather, as we explain below, we vacate the

district court’s orders denyingMazzarella’s newtrial motions, and remand

for further proceedings. The district court should consider the additional

disclosure in the first instance on remand, and assess any cumulative

effect of the combined Brady disclosures and Fourth Amendment issues.
UNITED STATES V. MAZZARELLA 11

We review discovery rulings for an abuse of discretion. 

United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir.

2013). A denial of an evidentiary hearing is also reviewed for

an abuse of discretion. United States v. Olsen, 704 F.3d

1172, 1178 (9th Cir.), reh’g en banc denied, 737 F.3d 625

(9th Cir. 2013), cert. denied, 134 S. Ct. 2711 (2014).

III

Mazzarella argues that the government’s failure to

disclose the Brown immunity agreement and document

copying, the Hanna email about job openings at the FBI, and

the possible immunity agreement for Wolff violated Brady. 

Mazzarella also argues that Brown’s copying documents from

the DREI offices and turning them over to the government

violated her rights under the Fourth Amendment. Finally,

Mazzarella contends that the district court abused its

discretion by not granting discovery or holding an evidentiary

hearing on those issues. We agree with the last contention. 

We conclude that we cannot vacate any of Mazzarella’s

convictions on the present record. But the district court erred

in denying her motions for a new trial without correctly

analyzing the Fourth Amendment issue and then deciding

whether any evidence submitted was the fruit of an illegal

search, and then considering in light of those decisions,

whether there was prejudice from the challenged failures to

disclose. We vacate the challenged orders and remand so that

the district court, after allowing reasonable discovery and

conducting an evidentiary hearing, may decide on an open

record whether to grant Mazzarella’s request for a new trial.
12 UNITED STATES V. MAZZARELLA

A. Mazzarella has not shown prejudice based on the

Brady disclosures alone

The Fifth Amendment’s Due Process Clause requires the

government to produce exculpatory information to the

defense. Brady, 373 U.S. at 86–87. This includes

information that may be used to impeach prosecution

witnesses. Giglio v. United States, 405 U.S. 150, 152–54

(1972). A prosecutor has a duty under Brady to learn of and

disclose evidence known to others acting on the government’s

behalf, including the police. See Kyles v. Whitley, 514 U.S.

419, 432, 437 (1995).

In the post-trial context, a Brady violation has three

components: (1) the information must be favorable to the

defense; (2) it must not have been disclosed by the

government before or at trial; and (3) there must have been

resulting prejudice. See United States v. Wilkes, 662 F.3d

524, 535 (9th Cir. 2011). Prejudice ensues “if there is a

reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been

different.” United States v. Kohring, 637 F.3d 895, 902 (9th

Cir. 2011) (internal quotation mark omitted). “A reasonable

probability is one that is sufficient to undermine confidence

in the outcome of the trial.” Olsen, 704 F.3d at 1183 (internal

quotation marks omitted). “The need for disclosure is

particularly acute where the government presents witnesses

who have been granted immunity from prosecution in

exchange for their testimony. We have previously recognized

that criminals who are rewarded by the government for their

testimony are inherently untrustworthy, and their use triggers

an obligation to disclose material information to protect the

defendant from being the victim of a perfidious bargain
UNITED STATES V. MAZZARELLA 13

between the state and its witness.” Carriger v. Stewart,

132 F.3d 463, 479 (9th Cir. 1997) (en banc).

We conclude that the Brown and Hanna disclosures, first

revealed after Mazzarella’s trial and sentencing, were

favorable to Mazzarella and that to the extent the district

court ruled otherwise, that conclusion was error. As to

Brown, the district court reasoned that a prosecutor’s

statement to two people, one of whom was Brown, that there

was “nothing to worry about” if the truth were told could not

reasonably be construed as a promise of immunity to Brown

specifically. But that conclusion is belied by the

government’s own statements: in the later trial at which

Brown testified, the same prosecutor who prosecuted

Mazzarella told the court that he had promised Brown that

she would not be prosecuted. The district court’s analysis of

the Brown disclosure collapsed the distinction between the

favorable prong and the issue of prejudice by concluding that

Brown’s testimony that she had approached the FBI out of a

desire to do the right thing meant the immunity agreement

was not favorable. The same is true of the district court’s

characterization of Hanna’s statements about jobs at the FBI

as innocuous. It is potential impeachment evidence to

suggest that a government witness has a bias—here, seeking

government employment—that might color the witness’s

testimony.

The district court determined that the notion that Wolff

had an immunity agreement in place was “tenuous at best,”

but did not hold an evidentiary hearing to settle the matter,

nor permit discovery on the issue. In light of our conclusions

on the Fourth Amendment issue, which we discuss below,

this was an abuse of discretion.
14 UNITED STATES V. MAZZARELLA

On the record as it now stands, we agree with the district

court’s conclusion that even assuming all of the disclosed

evidence was favorable impeachment evidence, no prejudice

resulted from the government’s not disclosing the

impeachment evidence. More than 50 witnesses testified, and

there were more than 1300 exhibits introduced at trial. Skip

Young testified extensivelyabout Mazzarella’s knowledge of,

and involvement in, the use of false information in the loan

applications. Shauna Labee offered testimony that she had

signed blank loan applications in Mazzarella’s presence and

at Mazzarella’s urging. While both Young and Labee were

co-schemers testifying in exchange for deals, their detailed

testimony, coupled with the ample evidence of Mazzarella’s

involvement in all the other aspects of the business plan,

suggests that even after accounting for the disclosures, on the

record before us, there is not a fair probability that a jury

would have reached a contrary result. The strength of the

prosecution’s case, coupled with the relative weakness of the

proffered impeachment evidence, leads us to conclude that

there was no prejudice.3

But we must remand the Brady issues for the district court

to reconsider them on an open record, in conjunction with the

additional disclosure with which Mazzarella sought to

augment the record on appeal, the Fourth Amendment issue

discussed below, and anyfurther impeachment or exculpatory

evidence that comes to light from discovery. If the district

court again denies the new trial motion, it should provide a

3 There is some uncertainty, on the record before us, about whether

Mazzarella’s conviction for mail fraud under Count 11 could stand if, in

light of the immunity agreement, the jury had wholly discounted Brown’s

testimony, and also about how Wolff’s testimony merely duplicated or

corroborated other evidence at trial.
UNITED STATES V. MAZZARELLA 15

specific explanation for its conclusion that confidence in the

verdict is not undermined.

B. The district court erred in concluding on the record

before it that there was no search implicating the

Fourth Amendment

One or more of Mazzarella’s convictions may need to be

vacated if there was evidence admitted at trial that should

have been suppressed as the fruit of an unlawful search. But

more discovery is required to determine whether an unlawful

search occurred and whether there were evidentiary fruits of

an unlawful search. The district court should make those

determinations in the first instance on remand.

We have held that whether a private individual acts as a

government agent for Fourth Amendment purposes requires

an inquiry into whether the government knew of or

acquiesced in the intrusive conduct, and whether the party

performing the search intended to assist law enforcement

efforts or further his or her own ends. United States v. Reed,

15 F.3d 928, 931 (9th Cir. 1994). In Reed, a hotel manager

called the police to report suspected drug activity by one of

the hotel’s guests and asked for police protection as he

searched the guest’s room, which the police provided. Id.

We held that the search fell within the Fourth Amendment’s

ambit. Id. at 932. We also rejected crime prevention as an

independent private motive, reasoning that if crime

prevention were deemed a private motive, searches by private

parties would never implicate the Fourth Amendment. Id.

If an unwarranted search did occur—and there is no

dispute that Brown’s copying was not pursuant to a

warrant—our precedents establish that such a search would
16 UNITED STATES V. MAZZARELLA

generally be unreasonable, absent an exception such as valid

consent. See United States v. Ziegler, 474 F.3d 1184, 1191

(9th Cir. 2007) (upholding search of employee’s workplace

computer where employer gave consent). A third party with

“common authority over or other sufficient relationship to the

premises or effects sought to be inspected” may consent to a

government search without the search violating the Fourth

Amendment. Id.; see also United States v. Kim, 105 F.3d

1579, 1582 (9th Cir. 1997) (holding that consent may be

given by person with actual or apparent authority to do so,

and that defendant, by authorizing associate to rent storage

unit for defendant in associate’s name, assumed the risk that

associate would consent to a search of the unit).

Here, Brown testified at another trial that after she

approached the authorities during the Mazzarella

investigation, either the FBI or the IRS told her to get as

much documentation from DREI as she could, and that she

did so. She testified that she agreed she would gather

documents, and made “a very huge stack” of copies of

documents without Mazzarella’s knowledge, and gave it to

“the proper people to give it to.” There was also testimony

from that same trial that the investigating FBI agent who

investigated Mazzarella testified that he did not recall

receiving any documents taken from DREI.

The district court concluded that: (1) the Fourth

Amendment was not implicated because Brown testified that

she was motivated by a desire to do the right thing; (2) there

was no evidence that any documents were given to the

government; and (3) there was no evidence that any

documents that were turned over were used by the

government at trial. But we cannot affirm any of the district

court’s conclusions on this issue on the present record.
UNITED STATES V. MAZZARELLA 17

First, the desire to “do the right thing” that the district

court identified here is indistinguishable from the crime

prevention motive that we rejected in Reed. Also, per

Brown’s testimony, the government did not merely acquiesce

but asked Brown to gather evidence. If Brown’s testimony is

accurate, her copying may have implicated the Fourth

Amendment. We cannot say on the present record whether

Brown had actual or apparent authority to turn over the

documents to the government. Testimony from the related

trial from a DREI employee who apparently assisted Brown

with the copying that “Eve [Mazzarella] would have gone

insane if she knew that we were . . . copying old investor

files,” at least suggests that Brown lacked actual authority to

copy and disclose the documents. But there is no further

evidence on this issue in the record, no evidence at all related

to Brown’s apparent authority or the other DREI employee’s

apparent authority, and the district court made no findings on

the issue.

Second, the district court’s conclusion that there is no

evidence that documents were actually disclosed to the

government is not supported by the record. That finding is

contradicted by Brown’s sworn testimony that she turned

over her copies to the appropriate people. While one FBI

agent testified that he did not recall receiving any copied

documents from Brown, further discovery is necessary to

resolve the issue, and the district court should make findings

of fact on this issue.

Third, the government’s declaration that none of the

exhibits introduced at trial were from documents obtained by

Brown, even if true, does not resolve the potential Fourth

Amendment problem. The exclusionary rule bars the

introduction of “derivative evidence, both tangible and
18 UNITED STATES V. MAZZARELLA

testimonial, that is the product of the primary evidence, or

that is otherwise acquired as an indirect result of the unlawful

search, up to the point at which the connection with the

unlawful search becomes so attenuated as to dissipate the

taint.” Murray v. United States, 487 U.S. 533, 536–37 (1988)

(internal quotation marks omitted). After determining

whether a search within the meaning of the Fourth

Amendment occurred and whether any documents from that

search were given to the government, the district court must

also determine what trial evidence, if any, was the fruit of an

unlawful search such that it should have been suppressed.

After making these determinations, the district court

should consider again the cumulative effect of the

impeachment evidence it considered before, and the

additional impeachment evidence that Mazzarella sought to

place before this court. This material must be considered

together with any evidence that should have been excluded

from trial under the Fourth Amendment to determine whether

any of Mazzarella’s convictions must be vacated and a new

trial granted.

C. The district court abused its discretion in denying

Mazzarella’s requests for discovery and an

evidentiary hearing

Mazzarella contends that the district court abused its

discretion by not permitting discovery or holding an

evidentiary hearing on the Brady and Fourth Amendment

issues. We agree to an extent. More findings, which will

require reasonable discovery and an evidentiary hearing, are

needed to resolve whether there was an immunity agreement

in place for Wolff, and whether there was an unlawful search

of the DREI offices that resulted in tainted evidence being
UNITED STATES V. MAZZARELLA 19

used at trial. Finally, the district court should also consider

the additional disclosure with which Mazzarella sought to

supplement the record before us.

Having concluded that the district court abused its

discretion in denying an evidentiary hearing and not

permitting any discovery on these issues, we will not as an

appellate panel impose unduly onerous specifications related

to the scope of discovery. We reject Mazzarella’s argument

that the district court should have imposed the very detailed

discovery guidelines from a 2010 Department of Justice

memorandum to federal prosecutors. See David W. Ogden,

Dep. Att’y General, Memorandum for Department

Prosecutors: Guidance for Prosecutors Regarding Criminal

Discovery (Jan. 4, 2010). The Ogden Memorandum says that

it “is not intended to have the force of law or to create or

confer any rights, privileges, or benefits.” Id. at 1. 

Mazzarella has pointed to no authority suggesting that an

appellate court can or should impose such specific

requirements on a question governed by the district court’s

discretion, especially based on a document only meant to

provide policy guidance. Cf. United States v. Canori,

737 F.3d 181, 183–85 (2d Cir. 2013) (rejecting an argument

that another Justice Department memorandum, which gave

guidance for federal prosecutors in states that have

decriminalized marijuana, in any way prevented those

prosecutors from enforcing federal drug laws); In re Grand

Jury Subpoena, Judith Miller, 438 F.3d 1141, 1152 (D.C. Cir.

2006) (as amended) (rejecting argument that a contempt

finding against a journalist for not disclosing a source had to

be reversed because the government did not comply with the

procedures set out in 28 C.F.R. § 50.10, governing subpoenas

for reporters, in part because the government guidelines state

that they do not create an enforceable right for any person).
20 UNITED STATES V. MAZZARELLA

* * *

We vacate the orders denying Mazzarella’s motions for a

new trial. On remand, the district court should authorize

appropriate discovery and hold an evidentiary hearing to

determine whether an unlawful search occurred and, if so,

what evidence was obtained by the government or derived

from the unlawful search. In addition, the district court

should determine whether Wolff was promised immunity in

exchange for testimony against Mazzarella. Finally, based on

the result of these determinations, the district court should

consider anew whether the cumulative effect of the Brady

disclosures and the suppression of unlawfully obtained

evidence requires vacating Mazzarella’s convictions and

ordering a new trial.

There is a serious need for constant vigilance in both

prosecutors’ offices and federal courtrooms to safeguard

individuals’ Fifth Amendment rights as explained in Brady

and Giglio. This is no less true of the Fourth Amendment,

and the important individual interests in privacy and personal

security that it protects.

Those charged with crime deserve a fair shake from

government prosecutors. The prosecutors’ duty is not to gain

conviction at any cost but rather to help ensure that justice is

done. Prosecutors have a critical role in the criminal justice

system. Of course, we expect prosecutors to be able and

aggressive advocates, in the best traditions of the American

bar, and they may enlist many of the tools used by private

advocates as they put the government’s case in its most

appealing form. But our system maintains important

safeguards of individual rights and this constrains the actions

of the government. Prosecutors cannot withhold from
UNITED STATES V. MAZZARELLA 21

disclosure information that it has that is favorable to the

accused, nor knowingly present false testimony.

Similar principles constrain law enforcement. Although

we want vigorous enforcement of the law, we insist that law

enforcement honor the constitutional rights of those suspected

of crime. We place limits on searches for evidence to

preserve individual privacy, with the Constitution generally

requiring probable cause for searches of a private business

and a warrant preceding the search except in defined

circumstances. We impose a broad mandate for fair

procedure implemented through many particular

requirements.

On remand, the district court should permit discovery

suitable to ensure that the prosecutors in this case have

respected Mazzarella’s constitutional rights. If it is shown

that they have not, and that those failures were neither

harmless nor immaterial under our court’s precedents,

Mazzarella is entitled to a new trial on one or more of the

charges against her.

IV

For the foregoing reasons, we vacate the district court’s

orders denying Mazzarella’s motions for a new trial. This

case is remanded for further proceedings consistent with this

opinion.

VACATED and REMANDED.