PAGE 1 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

NOTE TO USER: SEARCH FOR * 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 vs. 

WESLEY KJAR, 

 Defendant. 

No. 3:16-CR-00051-BR-18 

REQUEST FOR DISCOVERY 

 Defendant Wesley Kjar respectfully requests the following documents and things 

pursuant to FRCrP 16 and the Fifth and Sixth Amendments to the United States 

Constitution. This request seeks all items of the kinds described below, whether in the 

form of documents or electronically stored information--including writings, drawings, 

graphs, charts, photographs, sound recordings, images, and other data or data 

compilations -- stored in any medium from which information can be obtained either 

directly or, if necessary, after translation by the responding party into a reasonably 

usable form -- and also any items as described below in the form of tangible things. 

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

the defendant or his property, each codefendant and his property, or any other search 

James F. Halley, OSB 91175 

JAMES F. HALLEY, P.C. 

The Strowbridge Building 

735 SW First Ave. 

Portland, OR 97204 

503/295-0301; 503/228-6551 (fax) 

jimhalley@halleylaw.com

Attorney for Defendant Wesley Kjar 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 1 of 14
PAGE 2 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

related to this case, listing the items seized and the information obtained as a result of 

these searches. F.R.Crim.P. 16(a)(1)(E). 

 2. The substance of all oral statements of the defendant and any codefendant to 

any government agent. F.R.Crim.P. 16(a)(1)(A); United States v. Bailleux, 685 F.2d 

1105, 1114 (9th Cir. 1982) ("government should disclose any statement made by the 

defendant") (emphasis added). 

 3. All written or recorded statements of the defendant and any codefendant 

(including but not limited to grand jury, depositions, etc.) See F.R.Crim.P. 16 (a)(1)(B); 

United States v. Alex, 788 F. Supp. 1013, 1016 (N.D. Ill. 1992) (where government 

"offered no compelling explanation" for non-disclosure of statements of codefendant, 

court exercises discretion to order disclosure). 

 4. Any agent's underlying rough notes of the statements requested in item 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 to order disclosure of notes of interview with defendant under F.R.Crim.P. 

16). This request includes all entries in officers' field notebooks or their equivalent. 

 5. A copy of the defendant's and codefendants' record of prior convictions and 

the FBI rap sheet. F.R.Crim.P. 16 (a)(1)(B); see United States v. Audelo-Sanchez, 923 

F.2d 129, (9th Cir. 1991). Both national and local criminal records should be 

searched. See United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991). 

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

places which are material to the preparation of the defense. F.R.Crim.P. 16 (a)(1)(E). 

 7. All items in request 6 above which belong to the defendant. F.R.Crim.P. 16 

(a)(1)(E). 

 8. All items in request 6 above which were obtained from the defendant. 

F.R.Crim.P. 16 (a)(1)(E). 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 2 of 14
PAGE 3 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

 9. All items in request 6 above which are intended for use by the government as 

evidence in its case in chief. F.R.Crim.P. 16 (a)(1)(E). 

 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. F.R.Crim.P. 16 (a)(1)(F). 

 11. A written summary of all expert-witness testimony you intend to offer in your 

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

witness's opinions, the bases and reasons therefor, and the witnesses" qualifications." 

F.R.Crim.P. 16(a)(1)(G); United States v. Barrett, 703 F.2d 1076, 1081 (9th Cir. 1983) 

("fairness requires that adequate notice be given to the defense to check conclusions 

and findings of experts"); United States v. Eduardo-Franco, 885 F.2d 1002, 1009 (2d 

Cir. 1989) (defendants could not hire their own expert "until they were informed of the 

adverse report of the government expert"). 

 12. A description of any prior conviction or prior "similar act" you will seek to 

introduce at trial. F.R.Ev. 404(b); United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 

1979 (en banc) ("trial by ambush" is counterproductive and "advance planning" for ruling 

on motion in limine ... helps both parties and the court), cert. denied, 444 U.S. 1034; 

United States v. Foskey, 636 F.2d 517, 526 n. 8 (D.C. Cir. 1980) (government should 

give defense adequate notice of 404(b) evidence). 

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

case. The government should be ordered to examine such files for evidence of any 

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

dishonesty. United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991); United States v. 

Calise, 996 F.2d 1019, 1021 (9th Cir. 1993) (error not to disclose magistrate's 

characterization of agent's testimony as "absolutely 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). 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 3 of 14
PAGE 4 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

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

recording of an kind relating to this case. See 18 U.S.C. Sec. 2511 et. seq. 

 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 (9th Cir. 

1988). 

 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 1984). Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 

1555, 131 L.Ed.2d 490 (1995) (habeas relief granted where murder defendant showed 

that state withheld favorable eyewitness information and other evidence). 

 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), cert. denied, 

109 S.Ct. 1170 (1989); Perkins v. Lefevre, 691 F.2d 616 (2nd Cir. 1982); 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 (3rd Cir. 1991). 

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

prospective government witness. See United States v. Anderson, 881 F.2d 1128, 1138-

39 (D.C. Cir. 1989). 

 19. 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. 

 20. Any evidence that any other prospective government witness has any 

criminal charge pending against him. United States v. Fried, 486 F.2d 201 (2nd Cir. 

1973), cert. den. 416 U.S. 983 (1975); United States v. Maynard, 476 F.2d 1170, 1174 

(D.C. Cir. 1973) (pending indictment relevant to bias and motive of witness). 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 4 of 14
PAGE 5 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

 21. Any evidence that any prospective government witness is under investigation by federal or state authorities. United States v. Chitty, 760 F.2d 425, 428 (2nd Cir.), 

cert. den., 474 U.S. 945 (1985). 

 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 (1972) (agreement not to prosecute); 

United States v. Schaffer, 789 F.2d 682, 689 (9th Cir. 1986) (failure to disclose 

impeaching evidence regarding moneys paid to a prosecution witness for ongoing 

undercover cooperation in another case violated Brady’s due process duty to disclose); 

United States v. Butler, 567 F.2d 885, 889 (9th Cir. 1978) (prosecutor's "assurances" of 

future benefits); Benn v. Lambert, 283 F.3d 1040 (9th Cir. 2002) (Brady violation for 

failure to disclose impeaching evidence resulted in grant of habeas relief); United States 

v. Risken, 788 F.2d 1361, 1375 (8th Cir. 1986) (the government “should have disclosed 

the implied understanding that existed between [its witness] and the FBI about the 

possibility of a post trial payment”, but failure to disclose not sufficiently material to 

require reversal); United States v. Eduardo-Franco, 885 F.2d 1002, 1010 (2nd Cir. 

1989) (earnings of expert in past cases highly relevant to the question of potential bias 

and interest); United States v. Partin, 493 F.2d 750, 759 (5th Cir 1974) (error not to 

allow defense to show full amount paid in the form of protective custody status, per 

diem and special privileges); Brown v. Wainwright, 785 F.2d 1457, 1465 (11th Cir. 

1986) (accomplice witness’s false testimony that no promise of immunity had been 

made required habeas relief); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 

1993) (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 U.S. Attorney's office, and gifts of money, beer, cigarettes, etc.). 

 23. Any evidence that any prospective witness has applied to, or requested 

from, the government any consideration or benefit including but not limited to any plea 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 5 of 14
PAGE 6 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

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. 1986). 

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

bargain or requested benefit between the government and any prospective witness. 

United States v. Kojayan, 8 F.3d 1315 (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 v. Wainwright, 756 F.2d 1520, 1523-24 (11th Cir. 1985) (government "advice" to 

witness must be disclosed); Campbell v. Reid, 594 F.2d 4, 7 (4th Cir. 1979) 

(prosecutor's statement to the witness that he "would do the right thing" must be disclosed to the defense even if the witness is unaware of its exact meaning); Dubose v. 

Lefevre, 619 F.2d 973, 978-79 (2nd Cir. 1980) (same). 

 25. The full scope of any witness' 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' assets, and the status of the witness' present 

and past income tax liability. United States v. Shafer, 789 F.2d 682, 688-89 and n. 7 

(9th Cir. 1988); United States v. Eduardo-Franco, 885 F.2d 1002, 1010 (2nd Cir. 1989) 

(evidence of past services highly relevant to bias and interest). 

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

relevant to impeachment or bias. See United States v. Brumel-Alvarez, 991 F.2d 1452 

(9th Cir. 1992) (informant's recantation of earlier statement to D.E.A. had to be 

disclosed as Jencks Act as it bore on credibility); United States v. Tincher, 907 F.2d 600 

(6th Cir. 1990) (reversible error for prosecutor to withhold grand jury testimony of 

witness that contradicted his trial testimony). 

 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 United States v. Isgro, 974 F.2d 1091 (9th Cir. 1992) (gross misconduct 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 6 of 14
PAGE 7 – REQUEST FOR DISCOVERY 

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James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

where prosecutor 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), cert. denied, 109 S.Ct. 1172 (1989) (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' 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). 

 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-

77 (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' statement that he identified defendant at lineup); United States v. Hibler, 463 

F.2d 455, 460 (9th Cir. 1972) (statement of police officer casting doubt on story of 

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

identifying another person as killer); United States v. Galvis-Valderamma, (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). 

 29. 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 (1st Cir. 

1991) (prosecutor "using a witness with an impeachable past has a constitutionally 

derived duty to search for and produce impeachment information requested regarding 

the witness"); Powell v. Wiman, 287 F.2d 275, 279-80 (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 (D.C. Del. 1980) (prior bad acts of witness 

discoverable); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993) (reversible 

error not to disclose ongoing illegal drug use by cooperating witnesses). 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 7 of 14
PAGE 8 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

 30. 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, 337 (9th 1993) (informant's lie to DEA about his criminal record); United States v. 

Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992) (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 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). 

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

testimony. Brumel-Alvarez, 991 F.2d 1452 (9th Cir. 1992) (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 over-compensate). 

 32. 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, 534-535 

(D.C. Cir. 1973) (drug use impairs memory judgment and credibility); United States v. 

Burnside, 824 F. Supp. 1215 (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 clear inducements from 

which a fact-finder could infer witnesses wanted to stay on government prosecutor's 

good side"). 

 33. 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 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); Butler, supra, 481 F.2d at 534-535 (drug use); United States v. McFarland, 

371 F.2d 701, 705 (2nd Cir.) (prior hospitalizations of witness for mental illness), cert. 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 8 of 14
PAGE 9 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

denied, 387 U.S. 906 (1966). Powell v. Wiman, 287 F.2d 275, 279 (5th Cir. 1961) 

(same). 

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

against the defendant or has a motive to falsify or distort his testimony. See United 

States v. Strifler, at 1202 (motive to inform discoverable). 

 35. Any impeaching or bad character evidence relating to any informant. United 

States v. Becerra, 992 F.2d 960 (9th Cir. 1993). 

 36. Any evidence that a prospective government witness has taken a polygraph 

examination, and the result thereof. Carter v. Rafferty, 826 F.2d 1299, 1305 (3rd Cir. 

1987), cert. denied, 484 U.S. 1011 (1988); United States v. Lynn, 856 F.2d 430, 432-33 

(1st Cir. 1988). 

 37. 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 

(1963) (statement of accomplice that he, not defendant, did actual shooting); Hudson v. 

Whitley, 979 F.2d 1058 (5th Cir. 1992) (for 25 years state suppressed evidence that 

crucial witness identified photograph of person other than defendant, which person was 

arrested but released); 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), cert., denied, 109 S.Ct. 224 (1988); Bowen v. Maynard, 799 F.2d 

593, 613 (10th Cir.) (reversible error not to disclose existence of suspect who 

resembled defendant), cert. denied, 107 S.Ct. 458 (1986); Walker v. Lockhart, 763 F.2d 

942 (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), cert. denied, 106 S.Ct. 3332 (1986); Sellers v. Estelle, 651 F.2d 1074, 

1076-77 (5th Cir. 1981) (failure to disclose police reports suggesting guilt of another 

reversible error); James v. Jago, 575 F.2d 1164, 1168 (6th Cir. 1978) (error not to 

disclose statement of witness not mentioning defendant). 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 9 of 14
PAGE 10 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

 38. 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 (9th Cir. 1992). 

 39. 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 James 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 (5th Cir. 1968) (prosecution 

must disclose statement of witness casting doubt on defendant's identity); United States 

v. Wilkins, 326 F.2d 135 (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). 

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

or tending to mitigate punishment. See Miller v. Pate, 386 U.S. 1 (1967) (evidence that 

clothing was covered with paint, not blood); United States v. Spagnoul, 960 F.2d 990 

(11th Cir. 1992) (psychiatric report raising question as to defendant's sanity and 

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

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

cert. denied 106 S.Ct. 3332 (1986); United States v. Poole, 379 F.2d 648 (7th Cir. 1967) 

(medical exam showing no evidence of sexual assault); Barbee v. Warden, Maryland 

Penitentiary, 331 F.2d 842 (4th Cir. 1964) (ballistics report showing gun in evidence was 

not the assault weapon); Ashley v. Texas, 319 F.2d 80 (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 

co-conspirator which lessened amount of drugs attributable to the defendant). 

 41. Any evidence mitigating the punishment of the defendant whether or not the 

sentence is pursuant to the guidelines. Brady v. Maryland, 373 U.S. 83 (1963) 

(accomplice statement that he, not defendant was actual shooter mitigates punishment 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 10 of 14
PAGE 11 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

of defendant); Blazak v. Ricketts, F.2d (9th Cir. August 2, 1993) (due process 

violated where prosecution suppressed psychiatric reports questioning defendant's 

competence to stand trial); United States v. Spagnoulo, 960 F.2d 990 (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); Lewis v. Lane, 832 F.2d 1446 (7th Cir. 1987) (evidence 

that defendant did not have valid prior conviction which made him death eligible). 

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

defendant. In Re Grand Jury, 903 F.2d 180 (3d Cir. 1990). 

 43. 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 245 (9th Cir. 1980) (prerequisites to valid 

indictment are that "every grand jury session was attended by at least 16 jurors" and 

that "at 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). 

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

Arizona v. Maypenny, 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, 955 

(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) ("both sides have right to 

interview witnesses before trial"). 

 45. Any and all jail communications intercepts involving the Defendant or others 

linked to the Defendant’s prosecution or investigation. All logs and notes related to jail 

intercepts, times and dates and persons involved with monitoring or reviews of jail 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 11 of 14
PAGE 12 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

intercept materials and delineation of any jail intercept materials now or in the future 

identified or sequestered for possible use at trial. 

 The defendants also request that the government confer with its agents to ensure 

that these agents are aware of their responsibilities to comply with discovery requests. 

United States v. Osorio, 929 F.2d 753 (1st Cir. 1991) ("the prosecutor is duty bound to 

demand compliance with disclosure responsibilities by all relevant dimensions of the 

government"); 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 participating in same investigation even if outside district 

of prosecution); Demjanjuk v. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993) (in not 

disclosing exculpatory evidence, government perpetrated fraud on the court by taking 

attitude that "the right hand did not know what the left hand was doing"); United States 

v. Perdomo, 929 F.2d 967, 969-971 (3rd Cir. 1991) (U.S. 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. Bailleaux, 685 F.2d 1105, 1113 (9th Cir. 1982) (tape in custody of F.B.I. 

is deemed in custody of U.S. Attorney); United States v. Brooks, 996 F.3d 1500 (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 files of federal agency is deemed in 

possession of prosecutor); United States v. Jackson, 780 F.2d 1305, 1308 n. 2 (6th Cir. 

1986) (FBI's knowledge attributable to prosecutor); Martinez v. Wainwright, 621 F.2d 

184, 186 (5th Cir. 1980) (rap sheet in medical examiner's file is deemed in custody of 

prosecution); Barbee v. Warden, 331 F.2d 842, 846 (4th Cir. 1964) (exculpatory ballistics report known only to police deemed in possession of prosecutor); United States v. 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 12 of 14
PAGE 13 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

McCord, 509 F.2d 334, 342 n.14 (D.C. Cir. 1974) (en banc) ("prosecutor" includes "all 

agencies of the federal government involved in any way" in the case). 

 The defendant also requests that the government make continuing disclosure of 

the discovery requested. 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 

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

accept immunity offer). 

 The Ninth Circuit does not hesitate to "condemn" any prosecutorial breach of 

trust respecting its duty to disclose arguably favorable evidence. United States v. 

McLintock, 748 F.2d 1278, 1285 (9th Cir. 1984). Any doubt about the need to disclose 

such evidence must be resolved "in favor of disclosure." United States v. Ramirez, 608 

F.2d 1261, 1265 n.6 (9th Cir. 1979). Should the government have a good faith doubt 

whether evidence should be disclosed, you are required to ask the court for in camera 

review. See United States v. Bailleaux, 685 F.2d 1105, 1114-15 (9th Cir. 1982) 

(F.R.Crim.P. 16 discovery); 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); United States v. Cadet, 727 

F.2d 1453, 1470 (9th Cir. 1984). 

 Respectfully submitted April 13, 2016 

 JAMES F. HALLEY, P.C. 

 /s James F. Halley_______________ 

 James F. Halley, OSB #91-175 

 Attorney for Wesley Kjar 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 13 of 14
PAGE 14 – REQUEST FOR DISCOVERY 

h:\kjar, wesley - 1285\discovery request.docx 4/13/2016 

James F. Halley, P.C. 

Attorney At Law 

The Strowbridge Bldg.  735 S.W. First Ave., 2d. Floor 

Portland, OR 97204-3326 

Tel: (503) 295-0301 Fax: (503) 228-6551 

CERTIFICATE OF SERVICE 

 I hereby certify that on April 13, 2016, I served the attached REQUEST FOR 

DISCOVERY on: 

Ethan D. Knight 

Geoffrey A. Barrow 

Craig Gabriel 

Assistant United States Attorney 

United States Courthouse, 6th Floor 

1000 SW Main Street 

Portland, OR 97204 

 by ___ having deposited in the United States Mail at Portland, Oregon a full, true 

and correct copy in a sealed envelope with postage prepaid, addressed as shown 

above, the last known address for the addressees listed; 

 by ___ having hand delivered to the attorneys shown above a full, true, and 

correct copy of the original. 

 by  electronic filing. 

 /s James F. Halley 

 James F. Halley, OSB #91175 

 The foregoing is a true, correct and complete copy of the original. 

 

 James F. Halley, OSB #91175 

Case 3:16-cr-00051-BR Document 401 Filed 04/13/16 Page 14 of 14