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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

VELARMINO ESCOBAR-AYALA,

Defendant.

Case No.17-cr-00068-EJD-1 (VKD)

ORDER RE DEFENDANT MARTINEZFLORES’S MOTION TO COMPEL 

PRODUCTION OF DISCOVERY

Re: Dkt. No. 139

Defendant Alexander Martinez-Flores seeks an order compelling the United States to 

produce discovery in compliance with Rule 16 of the Federal Rules of Criminal Procedure and the 

government’s disclosure obligations under Brady v. Maryland. Dkt. No. 139. All other 

defendants join in Mr. Martinez-Flores’s motion. Dkt. Nos. 142, 149. The government opposes 

the motion, arguing that it is already in compliance with its discovery obligations and that the 

Court lacks authority to order production of some of the material at issue. Dkt. No. 148. The 

Court held a hearing on the motion on September 12, 2018.1 Dkt. No. 168.

Having considered the parties’ papers and the arguments presented by counsel at the 

hearing, the Court grants in part and denies in part Mr. Martinez-Flores’s motion and orders

further proceedings as described below.

I. BACKGROUND

In February 2017, the United States charged Mr. Martinez-Flores and six co-defendants 

with one count of conspiracy to commit extortion. Three other co-defendants were charged with 

 

1 Counsel for all defendants attended the hearing. Counsel for Mr. Martinez-Flores represented 

that he was authorized to argue the motion on behalf of all defendants.
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conspiracy with intent to distribute methamphetamine. Dkt. No. 1. The grand jury returned 

superseding indictments on April 5, 2018 and August 16, 2018. Dkt. Nos. 101, 147. The second 

superseding indictment charges Mr. Martinez-Flores with six counts, including racketeering 

conspiracy, conspiracy to commit extortion, conspiracy to commit murder and murder in aid of 

racketeering, and firearms offenses. Dkt. No. 147. Eleven other defendants are also charged in 

the second superseding indictment. Three defendants, including Mr. Martinez-Flores, are charged 

with offenses that carry a potential penalty of death. Id.

The Unites States represents that the discovery in this matter consists of electronic 

documents, audio, video, and other files that comprise approximately 315 gigabytes of data, as 

well as physical and forensic evidence relating to a burned vehicle. Dkt. No. 140. In addition, 

counsel for the government stated at the hearing that an unknown quantity of physical evidence, 

potentially including paper documents, also exists that may also need to be reviewed for purposes 

of discovery. At least some portion of the material that has been collected for discovery has been 

in the United States’ possession since at least February 2017, the date of the original indictment. 

On February 22, 2017, counsel for Mr. Martinez-Flores sent a written request for discovery 

to the government. Dkt. No. 139-1, Ex. 1. As of the date of the hearing, the United States had 

produced approximately 17,000 pages of documents and a number of media files, which include

photographs, audio recordings,2surveillance images, cell phone records, incident reports, 

laboratory reports, records from a prior case against one defendant, immigration detainers, jail 

notebook writings of one defendant, a news article, summaries of witness interviews, and fifteen

recorded witness interviews. See Dkt. No. 83; Dkt. No. 139 at 3; Dkt. No. 139-1, Ex. 2; Dkt. No. 

148-1, Exs. A and B; Dkt. No. 150 at 2. 

Mr. Martinez-Flores seeks the following relief:

The government should be required to produce all materials in its 

possession or control that do not involve [Jencks Act] witness 

statements. In addition, the government should be ordered to 

produce any and all summaries and non-verbatim recitations of 

 

2 Mr. Martinez-Flores contends that the audio recordings the United States has produced are of 

such poor quality that their contents are difficult to understand without the aid of transcripts, some 

of which the government has provided. Dkt. Nos. 83, 139-1, Ex. 2.
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witness statements contained in reports or memoranda prepared by 

local law enforcement agencies. To the extent any such reports or 

memoranda contain verbatim witness statements (or statements 

expressly adopted by a witness), the government should produce 

those reports or memoranda in redacted form. In addition, the 

government should produce all statements by witnesses whom the 

government reasonably knows it will not call to testify at trial.

Dkt. No. 139 at 7–8. The United States responds that no such relief is necessary because the 

government is producing documents in compliance with its Rule 16 and Brady obligations, and 

will make disclosures, when appropriate, under the Jencks Act. In addition, the United States 

argues that the Court may not compel production of witness statement summaries or material that 

falls under the purview of the Jencks Act. Dkt. No. 148 at 2.

II. LEGAL STANDARDS

Rule 16 requires the government to produce five categories of discovery upon a 

defendant’s request: the defendant’s written and oral statements, the defendant’s prior criminal 

record, documents and objects that are material to preparing the defense and/or that the 

government intends to use in its case-in-chief, reports of examinations and tests, and summaries of 

expert witness testimony. Fed. R. Crim. P. 16(a)(1). However, a defendant is not entitled to pretrial discovery of “reports, memoranda, or other internal government documents made by an 

attorney for the government or other government agent in connection with investigating or 

prosecuting the case [,] . . . or statements made by prospective government witnesses . . . .” Fed. 

R. Crim. P. 16(a)(2). The government has a continuing duty promptly to disclose additional 

evidence or material to the defendant as it is discovered. Fed. R. Crim. P. 16(c).

Independent of its obligations under Rule 16, the United States has a constitutional 

obligation to disclose exculpatory evidence and impeachment evidence of prosecution witnesses 

when such evidence is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 

(1963); Giglio v. United States, 405 U.S. 150, 154 (1972); Kyles v. Whitley, 514 U.S. 419, 432–33 

(1995).

3

 

 

3

In this order, the Court refers to the obligations described in the Supreme Court’s decisions in 

Brady and its progeny as the government’s Brady obligations.
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Finally, this Court’s local rules require the government and defense to confer regarding a 

schedule for the disclosure of the information subject to discovery in Rule 16 and any other rule, 

statute, or case authority. Crim. L.R. 16-1(a). If the parties cannot agree on a schedule, the Court 

may set a schedule for the disclosure of such information. Crim. L.R. 16-1(b). Neither the 

government nor Mr. Martinez-Flores disputes that, as a general matter, the Court has authority to 

issue orders managing pre-trial disclosure of documents and information required to be disclosed 

under Rule 16 and Brady. See, e.g., United States v. Cerna, 633 F. Supp. 2d 1053, 1055–58 (N.D. 

Cal. 2009) (discussing relevant authority).

III. DISCUSSION

Mr. Martinez-Flores has two primary concerns. First, he says that the discovery that the 

government has produced so far is of relatively marginal value and does not include the 

documents and information that will allow him to prepare his defense. Dkt. No. 150 at 1. In 

particular, Mr. Martinez-Flores asks the Court to require the government to produce reports from

local, state, and federal law enforcement (especially those reflecting the investigation after the date 

of the September 22, 2016 murder charged in the case), statements of non-testifying witnesses,

and forensics evidence. Dkt. No. 139 at 7–8; Dkt. No. 168. Second, he says that the government 

has not produced discovery in a timely manner. He seeks an order requiring the government to 

identify the universe of material subject to disclosure, to comply with a timetable for its 

production, and to identify the basis for withholding any materials the government does not intend 

to produce. Dkt. No. 150 at 5. 

A. Disclosure of Material Evidence

Mr. Martinez-Flores says that the government’s production to date omits “the mainstays of 

criminal discovery that the government routinely turns over to the defense in cases of this sort.” 

Dkt. No. 150 at 2. He says this discovery typically includes a complete set of the reports of 

investigation prepared by the responsible federal and state agencies; forensic evidence and lab 

reports (including lab notes) analyzing such evidence; “A-files” documenting defendants’ alleged 

ties to criminal organizations; immigration files; discovery from related criminal cases; a complete 

set of jail recordings; expert reports; and Brady materials. Id. Mr. Martinez-Flores contends that 
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the government has not produced the discovery that connects many of the crimes described in the 

indictment to the defendants who allegedly committed them. Id. He says the government’s failure 

to make this production violates both Rule 16 and Brady.

The United States does not claim to have completed its production of all Rule 16 and 

Brady material. It embraces its obligation to produce such material before trial such that the 

material can be effectively used by the defense, and insists that it has made— and will continue to 

make—the required disclosures. Dkt. No. 148 at 2. With respect to Mr. Martinez-Flores’ specific 

demands, the government says that, under Rule 16(a)(2), a defendant may not ask the Court to

compel the production of reports by state and local law enforcement agencies that have been 

turned over to the government for use in federal prosecution. Regardless, the government asserts 

that it has already produced voluntarily some of the very law enforcement reports Mr. MartinezFlores seeks, as well as forensic evidence, and will continue to do so, rendering defendant’s 

motion on those points moot. Id. at 4–5. In addition, the United States contends that, to the extent 

Mr. Martinez-Flores seeks production of witness statements for non-testifying witnesses, there is 

no legal authority for the Court to order such production, and, in any event, the government “will 

not know for some time who it will call at trial.” Id. at 5. 

Under Rule 16(a)(1)(E), the government must produce documents and information in its 

possession, custody, or control that are “material to preparing the defense,” subject to the 

provisions of Rule 16(a)(2). Information is material if it will help Mr. Martinez-Flores prepare his 

defense or event if it merely informs the strategy he plans to take in his defense. See United States 

v. Hernandez-Mesa, 720 F.3d 760, 768 (9th Cir. 2013). Brady likewise requires the government 

to produce material exculpatory and impeachment evidence, although the Brady materiality 

standard is narrower than Rule 16’s standard. See United States v. Muniz-Jaquez, 718 F.3d 1180, 

1183 (9th Cir. 2013). 

The parties dispute whether particular investigative reports are subject to discovery at this 

time under Rule 16 or Brady. While the United States is correct that Rule 16(a)(2) precludes an 

order requiring disclosure of incident reports created by state or local law enforcement when they 

are turned over to the federal prosecutor for use in the federal prosecution of the same acts by the 
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same people, United States v. Fort, 472 F.3d 1106 (9th Cir. 2007), the government is not correct 

that its invocation of Rule 16(a)(2) with respect to such material has no implications for its 

compliance with Brady. As Judge Orrick explained in United States v. Williams, “Rule 16(a)(2) 

does not, in itself, trigger additional Brady or other disclosure obligations. However the 

government’s cooperation with [local law enforcement], and access to its files, nonetheless 

impacts the government’s Brady obligations.” Case No. 13-cr-00764 WHO, 2015 WL 3830515,

at *4 (N.D. Cal. June 19, 2015); see also Cerna, 633 F. Supp. 2d at 1060 (describing in detail 

Brady obligations of federal prosecutor who has been given access to files of state police). 

With respect to the investigative reports in this case, the Court does not have sufficiently 

specific information about the documents or document categories at issue and the reasons why 

they have not been produced to determine whether the United States must disclose particular 

material now, or whether the government has legitimate reasons to withhold it, in whole or in part, 

or to delay its production. This is a difficulty that extends to the Court’s evaluation of Mr. 

Martinez-Flores’s other specific demands for production. The Court does not fault Mr. MartinezFlores for this lack of specificity. At this stage of the case, only the government knows what 

material it has and what material it has not yet reviewed or produced. 

The Court is persuaded that the United States’ review and production of discoverable 

material in its possession, custody, or control should be prioritized to address Mr. MartinezFlores’ and other defendants’ concerns about the lack of meaningful evidence produced to date. 

As explained below, the Court orders further proceedings to that end.

B. Timing of Disclosures

Local Rule 16-1(a) directs the parties to confer within fourteen days of arraignment in 

order to agree to a schedule for Rule 16 discovery. Crim. L.R. 16-1(a). It is unclear from the 

record before the Court whether such a schedule was ever discussed after the arraignments of any 

of the defendants. 

The United States observes that “[r]acketeering cases of this complexity do not generally 

resolve in this district for 3 or 4 years.” Dkt. No. 148 at 1. According to counsel for the 

government, among the reasons for this delayed time to trial is the long time it takes for the United 
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States to review and provide discovery to the defense and for the Court to resolve disputes about 

that discovery. Undue delay does not serve the interests of fairness and justice, and at this stage of 

the case, where the government has substantially all of the relevant information, unnecessary 

discovery delay disproportionately prejudices the defense. 

The Court appreciates the difficulty the United States faces in responding to (possibly 

conflicting) demands for production of discovery from twelve different defendants. In addition, 

the Court is mindful of the government’s need to produce documents and information in a manner 

that protects the safety of witnesses. However, those concerns must be weighed against the need 

for defendants to prepare their cases for trial. This need is particularly pressing for defendants, 

like Mr. Martinez-Flores, who are charged with death-eligible offenses.

The United States’ review and production of Rule 16 and Brady material has been too 

slow. The sheer volume of evidence the government says it has, compared to the relatively 

meager amount that it has reviewed and produced to date, means that it must do much more than it 

has done so far to review the material for production. In addition, the government must also take 

steps to determine what information relevant investigative agencies have so that it may timely

comply with its Brady obligations.4 See Kyles, 514 U.S. at 437 (“[T]he 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.”); Cerna, 633 F. Supp. 2d at 1060; see also United States Attorney 

Manual, sec. 9-5.002 (Criminal Discovery).

For these reasons, the Court concludes that compliance with a discovery schedule for the 

government’s production of Rule 16 discovery and Brady material will facilitate the timely 

disclosure of evidence in this case. In aid of that effort, the parties shall proceed as follows:

1. On or before October 17, 2018, the United States shall provide to defendants an 

inventory of the potentially discoverable material (i.e., material that must be reviewed for possible 

production) in its possession, custody, or control. The inventory must include the material to 

 

4 At the hearing, government counsel acknowledged that he had not yet reviewed documents and 

information held by some investigative agencies and did not know what material might be 

discoverable. Dkt. No. 168.
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which the government refers in its August 13, 2018 status report as “documents, audio, video and 

other files making up approximately 315 gigabytes of data.” Dkt. No. 140 at 1. The inventory 

must also include paper documents, physical evidence, and forensics evidence in the possession, 

custody, or control of the United States or to which it has access as a result of its investigation of 

the charged offenses. The inventory need not identify potentially discoverable material on an 

item-by-item basis, but it should be sufficiently informative so that defendants may know the 

categories of material that the United States has and that may be discoverable. 

2. Within twenty-one days after receipt of the government’s inventory, defendants 

shall jointly identify with respect to the inventory which particular materials or categories of 

materials they wish the government to prioritize for review and production, and shall communicate 

that identification to the government. Counsel for defendants shall confer in advance in order to 

reach a consensus, to the extent possible, regarding the materials they wish the United States to 

prioritize for review and production. 

3. Within fourteen days after defendants have identified the materials for priority 

review and production, counsel for all parties shall confer regarding a schedule for the 

government’s production of such materials.

4. Within fourteen days after the conference of counsel in paragraph 3, the parties 

shall file an agreed proposed discovery schedule for the Court’s review. If the parties do not agree 

on a proposed schedule, they shall instead file their respective proposed schedules with the Court, 

accompanied by an explanation in support of their respective positions.

After receiving the parties’ submission(s) regarding a proposed discovery schedule, the 

undersigned will convene a discovery status conference to discuss any matters in dispute and to set 

a schedule. Such a schedule will be subject to review and approval by Judge Davila.

IT IS SO ORDERED.

Dated: September 17, 2018

VIRGINIA K. DEMARCHI

United States Magistrate Judge