United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

MARCUS ETIENNE, ELIZABETH

GOBERT, CRAIG MARSHALL, and

MARIO ROBINSON 

Defendants. /

No. CR 17-00093 WHA

ORDER RE MOTION

TO COMPEL

INTRODUCTION

In this prosecution under the Racketeer Influenced and Corrupt Organizations Act, the

Violent Crimes in Aid of Racketeering Act, and other penal statutes, defendants move to compel

the disclosure of certain evidence. For the reasons below, the motion is DENIED.

STATEMENT

According to the ten-page superseding indictment, defendants Marcus Etienne and Mario

Robinson were members of the “Etienne Enterprise,” a criminal organization that ran a

marijuana-trafficking operation from California to Louisiana and Texas. In March 2016,

defendants allegedly murdered Trice Thibodeaux (“T.T.”) in furtherance of their marijuanatrafficking operation (Dkt. No. 37). 

In September 2018, litigation ensued in this case regarding Etienne’s subpoena to the

Oakland Police Department. Throughout that litigation, the government argued that Etienne

sought to use Rule 17(c) as an end-run around the discovery rules. The government invited
United States District Court

For the Northern District of California

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defense counsel to instead “meet and confer if they have additional requests” and asked for an

order quashing the subpoena so that the parties “could pursue a normal discovery proceeding

under Rule 16, under which the defense would have to meet and confer with us so we could

avoid coming back for multiple hearings.” After the defense attempted to take the government

up on this offer, the parties’ attempts to convene for a telephone conference fell apart. A week

later, defendants filed the instant motion to compel (Dkt. Nos. 230, 270 at 39:18–23, 280 at

4:14–18, 296). This order follows full briefing and oral argument. 

ANALYSIS

1. RULE 16.

Subject to certain exceptions, Rule 16(a)(1)(E) requires the government to provide, upon

a defendant’s request, information that is “within the government’s possession, custody, or

control” and “material to preparing the defense.” Defendants’ motion to compel includes a

seven-page chart of “items and information” requested from the government. Some of these

requests arguably seek documentary evidence that falls within the scope of Rule 16(a)(1)(E). 

Also included in the chart, however, are certain “requests for information” that amount to

questions regarding the scope of the government’s Brady obligations and whether or not the

government possesses certain documents. While defendants may be correct that responses to

these questions could avoid unnecessary motion practice, neither Rule 16 nor Brady obligates the

government to answer these questions. To the extent defendants move to compel answers to

these questions, the motion is DENIED. As to the remaining evidentiary items raised in

defendants’ motion, counsel for the parties shall meet and confer by DECEMBER 21, following

which defendants may renew their motion with respect to any outstanding issues.

2. BRADY.

“[T]he suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). 

“[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.” Kyles v. Whitley, 514 U.S.
United States District Court

For the Northern District of California

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419, 437 (1995). The operative scheduling order provides for the government’s disclosure of

Brady-Giglio material by December 21 (Dkt. No. 215). In opposing the instant motion, the

government represents that it understands its Brady obligations and that (with the exception of

Jencks Act statements) it has turned over all information it recognizes to be exculpatory (Dkt.

No. 315). The undersigned will accordingly not order the government to produce Brady material

within its possession, but does make two observations.

First, in his opposition papers and meet-and-confer correspondence, government counsel

argues that the defense has not provided a basis as to why certain requests constitute Brady

material. This order disagrees. Defense counsel’s meet-and-confer correspondence clearly

explains that counsel seeks categories of information which would tend to prove “suspect T.T.’s”

participation in the homicide to establish a third-party culpability defense. Defense counsel’s

correspondence also explains counsel’s belief that information within the government’s

possession tends to prove that Etienne was not a “shot-caller” who could have “green-lighted”

the murder of T.T. These explanations sufficiently afford the government notice of the types of

exculpatory materials requested. Second, the government’s opposition brief does not respond to

defendants’ argument that the government should be compelled to locate and disclose all Brady

material in the possession of OPD given the central role OPD officers played in the investigation

of this case. By DECEMBER 21, the government shall file a supplemental brief, not to exceed

five pages, addressing this specific issue. 

CONCLUSION

For the foregoing reasons, the motion to compel is DENIED. With the guidance provided

in this and prior orders, counsel for all parties shall meet and confer regarding the issues raised

in defendants’ motion by DECEMBER 21. Following that meet and confer, defendants may

renew their motion as to any disputes that remain.

IT IS SO ORDERED.

Dated: December 14, 2018. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE