Gerald M. Needham, OSB #96374

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

Tel: 503-326-2123

Fax: 503-326-5524

Email: jerry_needham@fd.org

Attorney for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

JASON MICHAEL KEATING,

Defendant.

Case No. 3:14BcrB00282-KI

REQUEST TO DISCOVER EVIDENCE

This request is issued in accordance with Rule 16 of the Federal Rules of Criminal 

Procedure, which is Aintended to prescribe the minimum amount of discovery to which the parties 

are entitled. It is not intended to limit the judge=s discretion to order broader discovery in 

appropriate cases.@ United States v. Armstrong, 517 U.S. 456, 475 (1996) (Breyer J., concurring) 

(quoting Advisory Committee=s Notes on Fed. R. Crim. P. 16, 18 U.S.C. App., p. 761); see also 

United States v. Burnes, 15 F.3d 211, 215 n.2 (1st Cir. 1994).

Moreover, under the principles of Brady v. Maryland, 373 U.S. 83 (1963), Athe individual 

prosecutor has a duty to learn of any favorable evidence known to the others acting on the 

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government=s behalf in the case, including the police.@ Kyles v. Whitley, 514 U.S. 419, 437 (1995) 

(emphasis added); United States v. Hanna, 55 F.3d 1456, 1461 (9th Cir. 1995) (same); see United 

States v. Alvarez, 86 F.3d 901, 905 (9th Cir. 1996) (Abetter practice is for the prosecutor herself to 

review [surveillance notes for Brady material]@); see also U.S. ATTY=S MANUAL, §§ 9:5.000 &

9:5.001 (as revised eff. Oct. 19, 2006) (AUpon a defendant=s request, the government must make 

available all information that is known to the attorney for the government or agents of law 

enforcement involved in the investigation of the case that is either exculpatory or impeaching.@).

The defendant requests discovery of the following:

1. All state or federal reports relating the circumstances of any search involving the 

defendant or his property, or any other search related to this case, listing the items seized and the 

information obtained as a result of these searches. This information is necessary to enable to the 

defendant to prepare motions to suppress evidence. Rule 16(a)(1); 12(b)(4)(B); 41(h).

2. All written or recorded statements of the defendant (including but not limited to 

grand jury testimony, telephone calls, depositions, etc.); see Rule 16(a)(1)(B); United States v. 

Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982) (A[g]overnment should disclose any statement 

made by the defendant that may be relevant@), receded from on other grounds by United States v. 

Miller, 874 F.2d 1255 (9th Cir. 1989); United States v. Alex, 788 F. Supp. 1013, 1016 (N.D. Ill. 

1992) (where government Aoffered no compelling explanation@ for non-disclosure of statements of 

co-defendant, court exercises discretion to order disclosure). 

3. The substance of all oral statements of the defendant to any government agent. 

Rule 16(a)(1)(A). United States v. Alex, 788 F. Supp. 1013, 1016 (N.D. Ill. 1992); United States 

v. Camargo-Vergara, 57 F.3d 993, 998-999 (11th Cir. 1995) (reversible error to fail to disclose 

defendant=s post-arrest statement where defense strategy affected).

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4. Any agent=s underlying rough notes of the statements requested in items 2 and 3 

above. See United States. v. Harris, 543 F.2d 1247, 1253 (9th Cir. 1976) (rough notes of 

interviews, especially with the accused, are discoverable and must be preserved); United States v. 

Layton, 564 F. Supp. 1391, 1395 (D. Or. 1983) (court exercises discretion under Rule 16 to order 

disclosure of notes of interview with defendant).

This request includes all entries in officers= field notebooks or equivalent. United States 

v. Harris, 543 F.2d 1247, 1253 (9th Cir.1976) (Athe original interview notes, especially relating to 

an FBI agent=s interview with the accused, must be preserved@ because potentially discoverable); 

United States v. Boshell, 952 F.2d 1101, 1105 (9th Cir. 1991) (defendant=s Aconfirmation of the 

facts in the notes before they were dictated on tape makes the notes and the tape producible under 

Jencks@); United States v. Wicktor, 403 F. Supp. 2d 964, 967 (D. Ariz. 2005) (officer who testifies 

at a preliminary hearing based on written reports of other detectives adopts those detectives= reports 

as his Astatements@ for Jencks Act purposes); United States v. Riley, 189 F.3d 802, 803 (9th Cir. 

1999) (reversible error to destroy notes from interview when there Awas no substitute for the notes 

except the recollections of the agent and the witness, which differed in several respects@); United 

States v. Alvarez, 86 F.3d 901, 904 n.2 (9th Cir. 1996) (AUnder the Jencks Act, witness statements, 

including reports prepared by testifying officers, must be turned over to the defense; Goldberg v. 

United States, 425 U.S. 94, 98 (1976) (Aa writing prepared by a Government lawyer relating to the 

subject matter of the testimony of a Government witness that has been >signed or otherwise adopted 

or approved= by the Government witness is producible under the Jencks Act@); United States v.

Well, 572 F.2d 1383, 1384 (9th Cir. 1978) (tape recordings of interviews). Although an officer=s 

>rough notes= need not be disclosed pursuant to the Jencks Act as witness statements, United States 

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v. Andersson, 813 F.2d 1450, 1459 (9th Cir.1987), they must be disclosed pursuant to Brady if 

they contain material and exculpatory information.@)

5. A copy of the defendant=s record of prior convictions and the FBI rap sheet. Rule 

16(a)(1)(D); see United States v. Audelo-Sanchez, 923 F.2d 129, 130 (9th Cir. 1991) (per curiam). 

Both national and local criminal records should be searched. See United States v. Perdomo, 929 

F.2d 967, 970 (3rd Cir. 1991); United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1998) 

(prosecution Adeemed to have knowledge of and access to anything in the possession, custody or 

control of any federal agency participating in the same investigation@).

6. All books, papers, documents, tangible objects, photographs, buildings or places 

which are Amaterial to preparing the defense.@ Rule 16(a)(1)(E)(i); United States v. CedanoArellano, 332 F.3d 568, 571 (9th Cir. 2003) (where reasonable suspicion was based on the alert of 

a narcotics detection dog, the dog=s training and certification records were material and 

discoverable); United States v. Bergonzi, 216 F.R.D. 487, 501 (N.D.Cal. 2003) (in securities fraud 

prosecution, the company=s internal report and interview memoranda were material to the defense 

because the documents were prepared with an eye toward discovering who was culpable for the 

crime).

7. All items in request 6 above which Abelong[] to@ the defendant. Rule 

16(a)(1)(E)(iii). 

8. All items in request 6 above which were Aobtained from@ the defendant. Rule 

16(a)(1)(E)(iii).

9. Any evidence, including but not limited to the items in request 6 above which are 

intended for use by the government as evidence in its case in chief. Rule 16(a)(1); see Rule 

12(b)(4)(B); United States v. de la Cruz-Paulino, 61 F.3d 986, 992-995 (1st Cir. 1995) 

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(government=s failure to designate evidence was violation of Rule 12(b)(4)(B) which Acreates a 

notice requirement@).

10. Any and all results or reports of physical or mental examinations and of scientific 

tests or experiments, including but not limited to, chemical analysis, fingerprints, voice prints, and 

handwriting. Rule 16(a)(1)(F). 

11. A written summary of all expert-witness testimony the government intends to offer 

in its case-in-chief, whether or not the expert has prepared a written report, describing Athe 

witnesses= opinions, the bases and reasons therefor, and the witnesses= qualifications.@ Rule 

16(a)(1)(G); United States v. Richmond, 153 F.R.D. 7, 8 (D. Mass. 1994) (disclosure of existing 

summaries of experts must occur Aforthwith@; others [written summaries of experts] no later than 

45 days before trial); United States v. Barrett, 703 F.2d 1076, 1081 (9th Cir. 1983) (Afairness 

requires that adequate notice be given to the defense to check the findings and conclusions of the 

government=s experts@); United States v. Edwardo-Franco, 885 F.2d 1002, 1009 (2d Cir. 1989) 

(defendants could not hire their own expert Auntil they were informed of the adverse report of the 

government expert@).

12. A description of any prior conviction or prior Asimilar act@ you will seek to 

introduce at trial. Fed. R. Evid. 404(b) (requiring Areasonable notice in advance of trial . . . of the 

general nature of any such evidence@); United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979) 

(en banc) (A[t]rial by ambush@ is Acounterproductive in terms of judicial economy@), overruled in 

part on other grounds by Luce v. United States, 469 U.S. 38 (1984). 

13. The personnel files of each law enforcement agent who will testify in the case. 

The Assistant U.S. Attorney should direct that such files be examined for evidence of any 

allegations that any officer has ever made a false statement or has a reputation for dishonesty. 

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United States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991); Kyles v. Whitley, 514 U.S. 419, 437 

(1995) (Aprosecutor has a duty to learn of any favorable evidence known to the others acting on 

the government=s behalf@); see United States v. Calise, 996 F.2d 1019, 1021 (9th Cir. 1993) (error 

not to disclose magistrate=s characterization of agent=s testimony as Aabsolutely incredible@ which 

was in personnel file); see United States v. Kiszewski, 877 F.2d 210, 216 (2nd Cir. 1989) (court 

must conduct in camera review of agent=s personnel file to determine if impeachment matter 

[allegations that agent accepted bribes] should be disclosed).

14. Reports and records relating to any eavesdropping, wiretapping, electronic 

recording or an kind relating to this case. See 18 U.S.C. '' 2511- 2522.

15. All notes or other writings or documents used by a prospective government witness 

before the grand jury. United States v. Wallace, 848 F.2d 1464, 1470-71 (9th Cir. 1988) (by 

referring to and using the notes during testimony before the grand jury, witness Aadopt[ed] or 

approv[ed] of the statements as her own).

16. The names and addresses of all percipient witnesses interviewed by the government 

whom the government does not intend to call at the trial. United States v. Cadet, 727 F.2d 1453, 

1469 (9th Cir. 1984).

17. The arrest and conviction record of each prospective government witness. United 

States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988) (criminal records of witnesses must be 

disclosed even if contained in witness=s probation file); United States v. Auten, 632 F.2d 478, 481-

82 (5th Cir. 1980). The government is required to search both national and local criminal record 

files. See United States v. Perdomo, 929 F.2d 967, 970 (3rd Cir. 1991); United States v. Alvarez, 

358 F.3d 1194, 1207-08 (9th Cir. 2004) (entitled to disclosure of Brady material in presentence 

reports); Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (when star witness had long 

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criminal record, it was Athe state’s obligation to turn over all information bearing on that witness=s 

credibility@). 

18. Any evidence that a criminal case has recently been dismissed against any 

prospective government witness. See United States v. Smith, 77 F.3d 511, 514-15 (D.C. Cir. 

1996) (dismissal of two felony cases pending against prosecution witness were material to 

impeachment and should have been disclosed pursuant to Brady); United States v. Anderson, 881 

F.2d 1128, 1138-39 (D.C. Cir. 1989). See also Giglio v. United States, 405 U.S. 150 (1972) 

(credibility of witness).

19. Any evidence that any prospective government witness has any criminal charge 

pending against him. United States v. Fried, 486 F.2d 201, 203 (2d Cir. 1973); United States v. 

Maynard, 476 F.2d 1170, 1174 (D.C. Cir. 1973) (pending indictment can be relevant to bias and 

motive of witness).

20. Any evidence that any prospective government witness is under investigation by 

federal or state authorities. United States v. Chitty, 760 F.2d 425, 428 (2d Cir. 1985).

21. Reports, records, or memoranda of federal or state agencies which describe, refer 

to, or otherwise comment upon their relationship with any informant involved in this case. 

Roviaro v. United States, 353 U.S. 53 (1957); U.S. Const. amend. VI.

22. Any evidence of express or implicit understandings, offers of immunity, special 

treatment while in custody, or of past, present, or future compensation between the government or 

any of its agents and any prospective government witness or his agent. See Giglio v. United 

States, 405 U.S. 150, 152-55 (1972) (agreement not to prosecute); United States v. Shaffer, 789 

F.2d 682, 689 (9th Cir. 1986) (moneys paid for ongoing undercover cooperation in another case); 

United States v. Butler, 567 F.2d 885, 889 (9th Cir. 1978) (prosecutor=s Aassurances@ of future 

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benefits); United States v. Risken, 788 F.2d 1361, 1375 (8th Cir. 1986) (implied contingent fees); 

United States v. Edwardo-Franco, 885 F.2d 1002, 1010 (2nd Cir. 1989) (earnings of informant in 

past cases Ahighly relevant to the question of his potential bias and interest@ (quoting United States 

v. Leja, 568 F.2d 493, 499 (6th Cir. 1977)); United States v. Partin, 493 F.2d 750, 759 (5th Cir. 

1974) (Aprotective@ custody status, per diem and special privileges); Brown v. Wainwright, 785 

F.2d 1457, 1465 (11th Cir. 1986) (implicit understanding must be disclosed even if no Apromise@

and even if conditional); United States v. Boyd, 55 F.3d 239 (7th Cir. 1995) (reversible error not 

to disclose favors to cooperating witnesses including use of illegal drugs, regular unsupervised 

access to female visitors which facilitated sex and drugs in United States Attorney=s office, and 

gifts of money, beer cigarettes, etc.); United States v. Burnside, 824 F. Supp. 1215, 1259 (N.D. Ill. 

1993) (Adefendants . . . [are] entitled to know . . . the government=s lenient security measures, the 

absence of drug testing and the other benefits, all of which pointed to an implicit and illicit deal 

between the government and its witnesses@).

23. Any evidence that any prospective witness has applied for, or requested from, the 

government any consideration or benefit including but not limited to any special consideration in 

immigration proceedings, plea bargain, dismissal of any charge, sentence reduction or early parole, 

whether or not the government agreed to such a request. Reutter v. Solem, 888 F.2d 578, 581 (8th 

Cir. 1989); Brown v. Dugger, 831 F.2d 1547, 1558 (11th Cir. 1987).

24. Any evidence of any discussion about, or advice concerning, special consideration 

in immigration proceedings, any plea bargain or requested benefit between the government and 

any prospective witness. United States v. Kojayan, 8 F.3d 1315, 1322 (9th Cir. 1993) (conviction 

reversed and case remanded to consider dismissal as sanction for government=s failure to disclose 

deal between witness and government, which witness government chose not to call at trial); Haber 

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v. Wainwright, 756 F.2d 1520, 1523-24 (11th Cir. 1985) (government Aadvice@ to witness must be 

disclosed); Campbell v. Reed, 594 F.2d 4, 7 (4th Cir. 1979) (agreement between the prosecutor 

and the witness=s attorney, where witness was informed that Aeverything would be all right,@ must 

be disclosed); DuBose v. Lefevre, 619 F.2d 973, 978-79 (2d Cir. 1980) (prosecutor=s statement to 

the witness that he would Ado the right thing@ must be disclosed to the defense even if the witness 

is unaware of its exact meaning). United States v. Blanco, 392 F.3d 382, 392 (9th Cir. 2004) 

(Aspecial immigration treatment by the INS and the DEA was highly relevant impeachment 

material@); Silva v. Brown, 416 F.3d 980, 986 (9th Cir. 2005) (government should have disclosed 

Athe full extent of the prosecution=s deal@ with the witness); Horton v. Mayle, 408 F.3d 570, 578-

79 (9th Cir. 2005) (failure to disclose leniency deal with witness was material).

25. The full scope of any witness=s past cooperation with the government including but 

not limited to all monies, benefits and promises received in exchange for cooperation, the full 

extent of the witness=s assets, and the status of the witness=s present and past income tax liability. 

United States v. Shaffer, 789 F.2d 682, 688-89 & n.7 (9th Cir. 1986); United States v. EdwardoFranco, 885 F.2d 1002, 1009-10 (2nd Cir. 1989) (evidence of past services highly relevant to bias 

and interest). Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986) (reversible error to fail to 

disclose contracts that would give impeachment evidence against key witnesses who were hired 

by government to investigate the defendant); United States v. Blanco, 392 F.3d 382, 392 (9th Cir. 

2004) (special immigration treatment from INS and DEA); Singh v. Prunty, 142 F.3d 1157, 1161-

62 (9th Cir. 1998) (prosecutor=s failure to disclose cooperation agreement with key witness against 

defendant).

26. All statements of any prospective witness relevant to his testimony or relevant to 

impeachment or bias. See Kyles v. Whitley, 514 U.S. 419, 454 (1995) (reversible error not to 

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disclose evidence of misidentification by crucial witness); United States v. Brumel-Alvarez, 991 

F.2d 1452, 1463-64 (9th Cir. 1993) (informant=s recantation of earlier statement to D.E.A. had to 

be disclosed under the Jencks Act, 18 U.S.C. ' 3500 (2000), as it bore on credibility); United 

States v. Tincher, 907 F.2d 600, 602 (6th Cir. 1990) (reversible error for prosecutor to withhold 

grand jury testimony of witness that could contradict his trial testimony). United States v. Abel, 

469 U.S. 45, 52 (1984) (AProof of bias is almost always relevant because the jury, as finder of fact 

and weigher of credibility, has historically been entitled to assess all evidence which might bear 

on the accuracy and truth of a witness= testimony.@); United States v. Wicktor, 403 F. Supp. 2d 

964, 967 (D. Ariz. 2005) (officer who testifies at a preliminary hearing based on written reports of 

other detectives adopts those detectives= reports as his Astatements@ for Jencks Act purposes); 

United States v. Service Deli Inc., 151 F.3d 938, 942-43 (9th Cir. 1998) (summary of interview 

notes not appropriate when it fails to disclose material information in the notes); United States v. 

Riley, 189 F.3d 802, 803 (9th Cir. 1999) (reversible error to destroy notes from interview when 

there Awas no substitute for the notes except the recollections of the agent and the witness, which 

differed in several respects@); United States v. Ogbuehi, 18 F.3d 807, 811 (9th Cir. 1994) (where 

notes taken during interview with co-defendant were read back from time to time to confirm their 

accuracy, trial court should have reviewed the notes in camera to determine whether they were a 

statement); United States v. Boshell, 952 F.2d 1101, 1105 (9th Cir. 1991) (defendant=s 

Aconfirmation of the facts in the notes before they were dictated on tape makes the notes and the 

tape producible under Jencks@); United States v. Steinberg, 99 F.3d 1486, 1491 (9th Cir. 1996) 

(requiring disclosure that witness was involved in ongoing criminal activities while working as 

government informant and that witness owed defendant money), disapproved of on other grounds 

by United States v. Foster, 165 F.3d 689, 692 n.5 (9th Cir. 1999).

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27. Any evidence that any prospective witness has made an inconsistent statement to 

the government or any of its agents with respect to his or her proposed testimony. See Kyles v. 

Whitley, 514 U.S. 419, 454 (1995) (reversible error not to disclose evidence of misidentification 

by crucial witness); United States v. Cuffie, 80 F.3d 514, 518 (D.C. Cir. 1996) (reversible error not 

to disclose evidence that prosecution witness had lied under oath in a previous court proceeding 

involving same drug conspiracy); United States v. Isgro, 974 F.2d 1091, 1099 (9th Cir. 1992) 

(although dismissal of indictment was not warranted, the court found Aintolerable@ misconduct 

where prosecutor to failed to disclose prior grand jury testimony of witness which was inconsistent 

with his trial testimony; McDowell v. Dixon, 858 F.2d 945, 949 (4th Cir. 1988) (reversible error to 

withhold victim=s prior inconsistent statement to police about description of attacker); Lindsey v. 

King, 769 F.2d 1034, 1041-43 (5th Cir. 1985) (reversible error to withhold eyewitness=s original 

statement to police that he could not identify assailant); Chavis v. North Carolina, 637 F.2d 213, 

223 (4th Cir. 1980) (contradictory statements of witness must be disclosed); Powell v. Wiman, 287 

F.2d 275, 279-80 (5th Cir. 1961) (same). United States v. Sudikoff, 36 F. Supp. 2d 1196, 1202 

(C.D. Cal. 1999) (Aany variations in an accomplice witness=s proposed testimony could be 

considered favorable to the defense and the existence of such differences should be disclosed under 

Brady@). 

28. Any evidence that any prospective government witness has made a statement 

inconsistent with or contradictory to any statement by any other person whether or not a 

prospective witness. See United States v. Minsky, 963 F.2d 870, 874-76 (6th Cir. 1992) 

(witness=s statement to FBI contradicted by third party); Hudson v. Blackburn, 601 F.2d 785, 789 

(5th Cir. 1979) (statement of police officer refuting witness=s statement that he identified defendant 

at lineup); Hudson v. Whitley, 979 F.2d 1058, 1064 (5th Cir. 1992) (statement of witness 

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identifying another person as killer); United States v. Galvis-Valderamma, 841 F. Supp. 600, 607-

10 (D.N.J. 1994) (new trial granted where statements made by arresting officer to FBI agent that 

bag of heroin found in car not in plain view should have been disclosed); United States v. Hibler, 

463 F.2d 455, 460 (9th Cir. 1972) (information may be material even if it speaks only to 

defendant=s credibility).

29. Any evidence that any government witness has threatened another government 

witness in an attempt to influence his testimony. United States v. O=Conner, 64 F.3d 355, 359-60 

(8th Cir. 1995).

30. Any evidence that a witness has engaged in crimes even though he has not been 

convicted of those crimes. See United States v. Osorio, 929 F.2d 753, 761 (1st Cir. 1991) 

(prosecutor Ausing a witness with an impeachable past has a constitutionally derived duty to search 

for and produce impeachment information requested regarding the witness@); Giglio v. United 

States, 405 U.S. 150, 154 (1972) (evidence that witnesses might not be credible is material). 

Powell v. Wiman, 287 F.2d 275, 280-81 (5th Cir. 1961) (admission of witness to prosecutor that 

he engaged in several crimes should have been disclosed); United States v. Boffa, 513 F. Supp. 

444, 500 (D. Del. 1980) (prior bad acts of witness discoverable); United States v. Burnside, 824 F. 

Supp. 1215, 1271-72 (N.D. Ill. 1993) (reversible error not to disclose ongoing illegal drug use by 

cooperating witnesses).

31. Any evidence that any prospective government witness has ever made any false 

statement to law enforcement authorities. United States v. Bernal-Obeso, 989 F.2d 331, 336-7 

(9th 1993) (informant=s lie to DEA about his criminal record); United States v. Brumel-Alvarez, 

991 F.2d 1452, 1458 (9th Cir. 1993) (D.E.A. agent=s opinion of informant credibility); United 

States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988) (probation file listing instances of the witness 

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lying to authorities); United States v. Minsky, 963 F.2d 870, 875 (6th Cir. 1992) (error not to 

disclose witness=s false statements to FBI). Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) 

(when star witness had long criminal record, it was Athe state’s obligation to turn over all 

information bearing on that witness=s credibility@). Benn v. Lambert, 283 F.3d 1040, 1056 (9th 

Cir. 2002) (failure to disclose evidence that key witness had previously falsely accused defendant 

of murder).

32. Any evidence that any witness has a tendency to lie or exaggerate his testimony. 

United States v. Brumel-Alvarez, 991 F.2d 1452, 1458 (9th Cir. 1993) (D.E.A. agent=s negative 

view of informant=s credibility); United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988) 

(must disclose probation file of witness showing tendency to lie or Aovercompensate@).

33. Any evidence that any prospective witness has consumed alcohol or drugs prior to 

witnessing or participating in the events that gave rise to his testimony or any time prior to 

testifying in court. See United States v. Butler, 481 F.2d 531, 534-35 (D.C. Cir. 1973) (drug use 

impairs memory judgment and credibility); People v. Santos, 2003 Guam 1, at *9 (2003) (witness=s 

drug use relevant for impeaching perception and memory); Benn v. Lambert, 283 F.3d 1040, 1056 

(9th Cir. 2002) (Aevidence that [witness] was using drugs during the trial would reflect on his 

competence and credibility@); Creekmore v. District Court of Eighth Judicial Dist. of State of 

Mont., 745 F.2d 1236, 1238 (9th Cir. 1984) (A[t]he goal of cross-examination is to expose flaws 

in a witness=s memory, perception and narration@); United States v. Burnside, 824 F. Supp. 1215, 

1265 (N.D. Ill. 1993) (reversible error to fail to disclose witnesses drug use because illegal drug 

use by the cooperating witness was relevant to the witnesses= abilities to recollect and relate events 

and Aclear inducements from which a fact finder could infer that these witnesses may have wanted 

to stay on the government prosecutors= good side@ and adjusted their testimony accordingly).

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34. Any medical, psychological or psychiatric evidence tending to show that any 

prospective witness=s ability to perceive, remember, communicate, or tell the truth is impaired. 

See Bailey v. Rae, 339 F.3d 1107, 1114-15 (9th Cir. 2003) (when consent was at issue, government 

should have disclosed reports that developmentally delayed alleged victim knew the difference 

between appropriate and inappropriate touching); United States v. Lindstrom, 698 F.2d 1154, 

1163-68 (11th Cir. 1983) (psychiatric records relevant to credibility); Chavis v. North Carolina, 

637 F.2d 213, 224 (4th Cir. 1980) (psychiatric records reflecting on the competency or credibility 

of witness); United States v. McFarland, 371 F.2d 701, 705 (2d Cir. 1966) (prior hospitalizations 

of witness for mental illness); Powell v. Wiman, 287 F.2d 275, 279 (5th Cir. 1961) (same).

35. Any evidence that a prospective government witness is biased or prejudiced against 

the defendant or has a motive to lie, exaggerate, falsify or distort his testimony. See United States 

v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988) (motive to inform discoverable); United States v. 

Bagley, 473 U.S. 667, 683 (1985) (failure to disclose that witnesses might have been biased against 

defendant).

36. Any impeaching or bad character evidence relating to any government witness, 

especially informants. United States v. Bernal-Obeso, 989 F. 2d 331, 335 (9th Cir. 1993) (Ait is 

essential that relevant evidence bearing on the credibility of an informant-witness be timely 

revealed . . . to defense counsel as required by Giglio@); Carriger v. Stewart, 132 F.3d 463, 497-

80 (9th Cir. 1997) (A[t]he prosecution has a duty to learn of any exculpatory evidence known to 

others acting on the government=s behalf@); Giglio v. United States, 405 U.S. 150, 154 (1972) 

(evidence affecting credibility of witnesses is material).

37. Any evidence that a prospective government witness has not passed a polygraph 

examination or had inconclusive results. Carter v. Rafferty, 826 F.2d 1299, 1305-09 (3rd Cir. 

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1987) (oral reports of polygraph examination); United States v. Lynn, 856 F.2d 430, 432-34 (1st 

Cir. 1988).

38. Any evidence that someone other than the defendant committed, or was ever 

suspected of committing, the crime charged. Brady v. Maryland, 373 U.S. 83, 85 (1963) 

(statement of accomplice that he, not defendant, did actual shooting); United States v. Crosby, 75 

F.3d 1343, 1346 (9th Cir. 1996) (reversible error not to admit evidence that implied person other 

than defendant was the guilty party); United States v. Perkins, 937 F.2d 1397, 1400 (9th Cir. 1991) 

(A[a] defendant is entitled to introduce evidence which tends to prove someone else committed the 

crime@); Banks v. Reynolds, 54 F.3d 1508, 1517-18 (10th Cir. 1995) (reversible error not to disclose 

to defense than another person had been arrested for same crime); Smith v. Sec=y of N.M. Dep=t of 

Corr., 50 F.3d 801, 834 (10th Cir. 1995) (defendant denied fair trial by failure to disclose police 

reports, physical evidence, and witness statements that pointed to a different murder suspect); 

Hudson v. Whitley, 979 F.2d 1058 (5th Cir. 1992) (required to disclose impeachment evidence 

about conflicting testimony of pretrial line-up); Miller v. Angliker, 848 F.2d 1312, 1321-23 (2nd 

Cir. 1988) (reversible error not to disclose evidence suggesting that person other than defendant 

committed murders); Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir. 1986) (reversible error not 

to disclose existence of suspect who resembled defendant); Walker v. Lockhart, 763 F.2d 942, 955 

(8th Cir. 1985) (en banc) (due process violated when police suppressed statement by prisoner 

arguably admitting that he committed the shooting for which the defendant was convicted); Sellers 

v. Estelle, 651 F.2d 1074, 1076-77 (5th Cir. 1981) (remanded for failure to disclose police reports 

suggesting guilt of another reversible error); Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978) 

(error not to disclose statement of witness not mentioning presence or participation of defendant).

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39. Any evidence that the government or any of its agents has ever viewed a 

prospective government witness as not truthful. United States v. Brumel-Alvarez, 991 F.2d 1452, 

1458 (9th Cir. 1993).

40. The name of any person, whether or not he will be a witness, who could not identify 

the defendant or was unsure of his identity or his participation in the crime charged, and the content 

of any such statement. See Kyles v. Whitley, 514 U.S. 419, 454 (1995) (reversible error not to 

disclose evidence of misidentification by crucial witness); Jones v. Jago, 575 F.2d 1164, 1168 (6th 

Cir. 1978) (statement of eyewitness to crime which did not mention defendant must be disclosed); 

Jackson v. Wainwright, 390 F.2d 288, 298 (5th Cir. 1968) (prosecution must disclose statement of 

witness casting doubt on defendant=s identity); United States v. Wilkins, 326 F.2d 135, 138 (2nd 

Cir. 1964) (reversible error to fail to disclose names of two witnesses who said that the defendant 

was not the bank robber after viewing him at police station).

41. Any physical evidence tending to exculpate the defendant in whole or in part, 

tending to mitigate punishment, or tending to impeach a government witness. See Miller v. Pate, 

386 U.S. 1, 6 (1967) (reversible error not to disclose evidence that clothing was covered with paint, 

not blood); United States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995) (government had duty to 

disclose results of company research which would have been useful in impeaching government 

witnesses). United States v. Park, 319 F. Supp. 2d 1177, 1179 (D. Guam 2004) (A[s]ummaries of 

conversations prepared by the government are not the equivalent of actual notes@ for Brady

purposes); United States v. Bergonzi, 216 F.R.D. 487 (N.D. Cal. 2003) (same); Paradis v. Arave, 

240 F.3d 1169, 1173 (9th Cir. 2001) (Brady obligates prosecutor turning over notes taken during 

interview when government witness gave exculpatory information for defendant).

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See also United States v. Alzate, 47 F.3d 1103, 1109-10 (11th Cir. 1995) (new trial granted 

where prosecutor failed to correct his misstatement of fact which prejudiced defendant); Ballinger 

v. Kerby, 3 F.3d 1371, 1376 (10th Cir. 1993) (due process violated by failure to produce possibly 

impeaching photos of crime scene which would have buttressed defense that witness could not 

have seen out of windows in order to identify defendant); United States v. Spagnoulo, 960 F.2d 

990, 994 (11th Cir. 1992) (psychiatric report raising question as to defendant=s sanity and 

competence); Walker v. Lockhart, 763 F.2d 942, 955 (8th Cir. 1985) (en banc) (transcript of 

prisoner conversation in which he arguably admitted crime for which defendant on trial); United 

States v. Poole, 379 F.2d 645, 648 (7th Cir. 1967) (medical exam showing no evidence of sexual 

assault); Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 845 (4th Cir. 1964) (ballistics report 

showing gun in evidence was not the assault weapon); Ashley v. Texas, 319 F.2d 80, 85 (5th Cir. 

1963) (psychologist=s report that defendant was incompetent to stand trial); United States v. 

Weintraub, 871 F.2d 1257, 1264 (5th Cir. 1989) (sentence vacated where prosecutor failed to 

disclose testimony of coconspirator which lessened amount of drugs attributable to the defendant).

42. Any evidence mitigating the punishment of the defendant. Brady v. Maryland, 

373 U.S. 83, 85 (1963) (accomplice statement that he, not defendant was actual shooter mitigates 

punishment of defendant); Blazak v. Ricketts, 1 F.3d 891, 897 (9th Cir. 1993) (due process violated 

where psychiatric reports questioning defendant=s competence to stand trial were not properly 

considered by trial court); United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir. 1992) 

(psychiatric report raising question as to defendant=s sanity and competence); United States v. 

Weintraub, 871 F.2d 1257, 1264 (5th Cir. 1989) (sentence vacated where prosecutor failed to 

disclose testimony of co-conspirator which lessened amount of drugs attributable to defendant); 

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Lewis v. Lane, 832 F.2d 1446, 1459 (7th Cir. 1987) (evidence that defendant did not have valid 

prior conviction which made him death eligible).

43. The commencement and termination date of the grand jury that indicted the 

defendant. In Re Grand Jury Investigation, 903 F.2d 180, 182 (3d Cir. 1990). See also 28 U.S.C. 

' 1867(a) (Athe defendant may move to dismiss the indictment or stay the proceedings against him 

on the ground of substantial failure to comply with the provisions of this title in selecting the grand 

or petit jury@); Fed. R. Crim. P. 6(b)(2) (A[a] party may move to dismiss the indictment based on 

an objection to the grand jury@).

44. The number (not names) of grand jurors attending each session of the grand jury 

and the number of grand jurors (not names) voting to indict. See United States v. Leverage 

Funding Systems, Inc., 637 F.2d 645 (9th Cir. 1980) (prerequisites to valid indictment are that 

Aevery grand jury session was attended by at least 16 jurors@ and that Aat least 12 jurors voted to 

indict@); United States v. Alter, 482 F.2d 1016, 1029 n.21 (9th Cir. 1973) (ministerial matters like 

court’s legal instructions to grand jury must be disclosed).

45. The name of every prospective government witness to be called at trial. See

Arizona v. Manypenny, 672 F.2d 761, 765 (9th Cir. 1982) (court has inherent authority to order 

discovery of names of witnesses); United States v. Armstrong, 621 F.2d 951, 954-55 (9th Cir. 

1980) (same); United States v. Tucker, 716 F.2d 576, 583 (9th Cir. 1983) (ineffective assistance 

of counsel to fail to interview government witnesses before trial); Callahan v. United States, 371 

F.2d 658, 660 (9th Cir. 1967) (A[b]oth sides have the right to interview witnesses before trial@).

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The Prosecutor Has A Duty Of Inquiry

The prosecutor is requested to make personal and specific inquiry of each government 

agent and agency in any way connected to the case for each of the above items, even if the agent 

or agency is outside the District of Oregon. Kyles v. Whitley, 514 U.S. 419, 437 (1995) (Athe 

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@); United States v. Alvarez, 86 F.3d 901, 

905 (9th Cir. 1996) (Athe better practice is for the prosecutor herself to review [surveillance notes 

for Brady Materials]@); United States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995) (prosecutor has 

duty to consult with FDA for Brady material; United States v. Bryan, 868 F.2d 1032, 1036-37 (9th 

Cir. 1989) (prosecutor deemed to have knowledge of, and access to, anything in possession, 

custody or control of any federal agency evidence if outside district of prosecution); United States 

v. Santiago, 46 F.3d 885, 893-894 (9th Cir.) (government has access to Bureau of Prisons files on 

inmates). United States v. Colima-Monge, 962 F. Supp. 1337, 1341 (D. Or. 1997) (documents held 

by an interjurisdictional agency deemed within the possession, custody, or control of the federal 

government). A[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure.@ 

Kyles, 514 U.S. at 439 (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)); Carriger v. 

Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (Athe prosecution has a duty to learn of any 

exculpatory evidence known to others acting on the government=s behalf@). 

See also Demjanjuk v. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1994) (in not disclosing 

exculpatory evidence, government perpetrated fraud on the court by making a Athe-right-hand-didnot-know-what-the-left-hand-was-doing argument@); United States v. Osorio, 929 F.2d 753, 762 

(1st Cir. 1991) (Athe prosecutor is duty bound to demand compliance with disclosure 

responsibilities by all relevant dimensions of the government@); United States v. Perdomo, 929 

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F.2d 967, 969-971 (3rd Cir. 1991) (United States Attorney responsible for locating criminal record 

in local jurisdiction as well as NCIC records); United States v. Endicott, 869 F.2d 452, 455-56 (9th 

Cir. 1989) (knowledge of additional payments to witness imputed to prosecutor); United States v. 

Butler, 567 F.2d 885, 891 (9th Cir. 1978) (prosecutor responsible for promise by agent even if 

prosecutor did not know of it); United States v. Bailleux, 685 F.2d 1105, 1113 (9th Cir. 1982) (tape 

in custody of F.B.I. is deemed in custody of U.S. Attorney), receded from on other grounds by 

United States v. Miller, 874 F.2d 1255 (9th Cir. 1989); United States v. Brooks, 966 F.2d 1500, 

1503 (D.C. Cir. 1992) (prosecutor must search police files for information affecting credibility of 

police officer who was key witness and who, after first trial, was found shot in her apartment with 

revolver in presence of another police officer); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 

1980) (information in file of federal agency is deemed in possession of prosecutor); United States 

v. Jackson, 780 F.2d 1305, 1308 n. 2 (7th Cir. 1986) (FBI=s knowledge attributable to prosecutor); 

Martinez v. Wainwright, 621 F.2d 184, 186-87 (5th Cir. 1980) (rap sheet in medical examiner=s 

file is deemed in custody of prosecution); Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846 

(4th Cir. 1964) (exculpatory ballistics report known only to police deemed in possession of 

prosecutor); United States v. McCord, 509 F.2d 334, 342 n.14 (D.C. Cir. 1975) (en banc) 

(Aprosecution@ includes Aall agencies of the federal government involved in any way@ in the case).

The Prosecutor Has A Duty Of Continuing Discovery

The government has a continuing duty to disclose the foregoing evidence as soon as the 

government or any of its agents discovers its existence. See Mooney v. Holohan, 294 U.S. 103, 

108 (1935) (prosecutor must disclose that witness had committed perjury even when he first learns 

this at trial); United States v. Chestang, 849 F.2d 528, 532 (11th Cir. 1988) (continuing duty to 

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disclose breached when prosecutor did not disclose fact that witness would soon accept immunity 

offer).

The Ninth Circuit does not hesitate to Acondemn@ any prosecutorial breach of trust 

respecting its duty to disclose arguably favorable evidence. United States v. McClintock, 748 F.2d 

1278, 1285 (9th Cir. 1984). Any doubt about the need to disclose such evidence must be resolved 

Ain favor of disclosure.@ United States v. Ramirez, 608 F.2d 1261, 1266 n.6 (9th Cir. 1979); Kyles 

v. Whitley, 514 U.S. 419, 439 (1995); United States v. Agurs, 427 U.S. 97, 108 (1976).

The duty to disclose encompasses even those documents and statements the defense might 

already have. Gantt v. Roe, 389 F.3d 908, 913 (9th Cir. 2004) (AThough defense counsel could 

have conducted his own investigation, he was surely entitled to rely on the prosecution=s 

representation that it was sharing the fruits of the police investigation.@); United States v. Howell, 

231 F.3d 615, 625 (9th Cir. 2000) (A[t]he availability of particular statements through the defendant 

himself does not negate the government=s duty to disclose@).

Disclosure is required even if, in the government=s view, the evidence is not admissible at 

trial. Spence v. Johnson, 80 F.3d 989, 1005 n.14 (5th Cir. 1996). United States v. Sudikoff, 36 

F. Supp. 2d 1196, 1201 (C.D. Cal. 1999) (Brady requires Athe disclosure of information that is 

likely to result in admissible evidence that would give the jury a court a more complete basis for 

judging guilt or punishment@). 

///

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Should the prosecutor have a good faith doubt whether evidence should be disclosed, he or 

she is required to ask the court for an in camera review. See United States v. Scafe, 822 F.2d 928, 

936 (10th Cir. 1987) (good faith belief that defendant=s statements not discoverable does not excuse 

failure to disclose); United States v. Lehman, 756 F.2d 725, 729 (9th Cir. 1985) (prosecution must 

either disclose the material or submit it to the court).

RESPECTFULLY SUBMITTED this July 23, 2014.

/s/ Gerald M. Needham

Gerald M. Needham

Attorney for Defendant

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