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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Michael Lacey, et al.,

Defendants.

No. CR-18-00422-001-PHX-SMB

ORDER 

Pending before the Court is Defendants’ Motion to Compel Production of Brady 

Material.1(Doc. 777, “Mot.” or “Motion”.) The Government responded, (Doc. 810, 

“Resp.”), and Defendants replied, (Doc. 825, “Reply”). Defendants requested oral 

argument, but the Court elects to resolve the motion without it. See L.R. Civ 7.2(f). After 

considering the motions, their attached exhibits, and relevant case law, the Court enters the 

following Order: 

I. BACKGROUND

Defendants are former officers, executives, and employees of Backpage.com, a 

classified advertisement website that specialized in “adult” services and largely served as 

a forum for soliciting prostitution.2(See generally Doc. 230, “Superseding Indictment” or 

“SI”.) On July 25, 2018, a federal grand jury returned a 100-count Superseding Indictment 

1 Defendants Larkin, Lacey, Brunst, Spear, Padilla, and Vaught move jointly to compel 

production of Brady materials. (Mot. at 1.) 

2 As this Court previously established, the Superseding Indictment’s factual allegations are 

taken as true at this stage. (See Doc. 793, “Order” (citing United States v. Boren, 278 F.3d 

911, 914 (9th Cir. 2002))).

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against Defendants alleging their commission of numerous criminal acts—conspiracy, 

violations of the Travel Act, and money laundering—in the operation of Backpage.com 

(“Backpage”).3

The instant dispute is far from fresh. Defendants’ Motion relates to a previous order 

issued by the Honorable Steven P. Logan, United States District Judge of the District of 

Arizona. (Doc. 339, “J. Logan Order”.) At core, that order concerned Defendants’ attempt 

to compel the Government to sift through voluminous, previously disclosed discovery, and 

furnish Defendants with an itemized list of exculpatory documents pursuant to Brady v. 

Maryland, 373 U.S. 83, 87 (1963) and Giglio v. United States, 405 U.S. 150, 154 (1972). 

(Id. at 1-2.) After reviewing the relevant precedent, Judge Logan concluded that the 

Government was “under no obligation to identify Brady or Giglio material within 

voluminous discovery” and denied the motion. (Id. at 5.) In so doing, Judge Logan 

reminded the Government to abide by earlier stipulations and “turn over any Brady/Giglio

material it comes across in the future to Defendants within 10 days.” (Id. at 6.) That order 

did not end the parties’ disagreements over what Brady required. In subsequent 

correspondence with the Government, Defendants identified thirty-one (31) categories of 

information they believed the Government was required to disclose to satisfy its obligations 

under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1969) and Giglio 

v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). (Mot., Ex. 1.) 

Unsatisfied with the Government’s response, Defendants sought the Court’s intervention 

and filed the current motion.

II. LEGAL STANDARD

As a general rule, a defendant has no constitutional right to discovery in a criminal 

case. Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). But 

under Brady v. Maryland and its progeny, a prosecutor has an obligation, imposed by the 

Due Process Clause, to disclose “evidence favorable to an accused upon request . . . where 

the evidence is material either to guilt or to punishment.” 373 U.S. 83, 87, 83 S.Ct. 1194. 

3 This Court’s prior order explains the Superseding Indictment’s charges in greater detail. 

(See generally Doc. 793.)

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Favorable evidence is “any evidence” that “tend[s] to call the government’s case into 

doubt” including “both exculpatory and impeachment material that is relevant to either 

guilt or punishment.” Milke v. Ryan, 711 F.3d 998, 1012 (9th Cir. 2013) (citing Strickler 

v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d (1999)). The failure to disclose 

such evidence violates due process “irrespective of the good faith or bad faith of the 

prosecution.” Strickler, 527 U.S. at 280, 119 S.Ct. 1936 (quoting Brady, 373 U.S. at 87). 

“[E]vidence is material only if there is a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been different.” 4 United 

States v. Cano, 934 F.3d 1002, 1022 (9th Cir. 2019) (quoting United States v. Bagley, 473 

U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). 

Unlike other discovery obligations,5the duty to disclose Brady material is an 

affirmative, self-executing duty that exists irrespective of a defendant’s request. Paradis 

v. Arave, 240 F.3d 1169, 1176 (9th Cir. 2001) (citing United States v. Bagley, 473 U.S. 

667, 682 (1985)). But Brady does not oblige the government “to produce information 

which it does not possess or of which it is unaware.” Sanchez v. United States, 50 F.3d 

1448, 1453 (9th Cir. 1995). Nor does it require the government to open its files merely 

4 Although at times Defendants use Federal Rule of Civil Procedure 16’s materiality 

standard, (Reply at 3 (citing United States v. Soto-Zuniga, 837 F.3d 992, 1003 (9th Cir. 

2006) (emphasizing that materiality under Rule 16 requires production of “information . . 

. [that] would have helped to prepare a defense.”), interchangeably with Brady’s more 

exacting standard, it is Brady and not Rule 16 that is the moving force behind Defendants’ 

motion. In fact, Defendants’ Motion does not cite or mention Rule 16 once. (See generally

Mot.)

5 For example, Rule 16 requires the Government, upon a defendant’s request, to provide or 

allow the defendant access to documents and objects in the Government’s possession. Fed. 

R. Civ. P. 16(a)(1)(E). To obtain discovery under Rule 16, a prima facie showing of 

materiality is required. United States v. Zone, 403, F.3d 1101, 1107 (9th Cir. 2005); United 

States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995). That, in turn, “requires a presentation 

of ‘facts which would tend to show that the Government is in possession of information 

helpful to the defense.’” Santiago, 46 F.3d at 894. (quoting United States v. Mandel, 914 

F.2d 1214, 1219 (9th Cir. 1990)). While Rule 16 encompasses all information “material 

to preparing the defense,” Brady requires the Government disclose information in its 

possession, custody, or control if “favorable to an accused . . . [that] is material either to 

guilt or punishment.” Brady, 373 U.S. at 87 (emphasis added). Thus, “[t]he Brady standard 

for materiality is higher than Rule 16’s, and its scope narrower.” United States v. Pac. Gas 

& Elec. Co., No. 14-cr-001785-TEH, 2016 WL 3185008, at *2 (N.D. Cal. June 8, 2016) 

(citing United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013) (“Rule 16 is 

thus broader than Brady. Information that is not exculpatory or impeaching may still be 

relevant to developing a possible defense.”)).

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because a defendant requests or “permit a defendant to sift through information held by the 

government to determine materiality.” United States v. Lucas, 841 F.3d 796, 807 (9th Cir. 

2016); see also Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837 (“There is no 

general constitutional right to discovery in a criminal case, and Brady did not create one.”). 

Instead, Brady imposes a duty on the government to turn over only material, exculpatory 

or otherwise helpful to the defense, in its possession.6“Possession,” however, is not 

limited to a prosecutor’s personal knowledge. Browning v. Baker, 875 F.3d 444, 460 (9th 

Cir. 2017), cert. denied, — U.S.— , 138 S.Ct. 2608, 201 L.Ed.2d 1014 (2018); United 

States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989). That is because prosecutors’ “unique 

position to obtain information known to other agents of the government,” obliges them to 

“disclos[e] what [they] do not know but could have learned. Carriger v. Stewart, 132 F.3d 

463, 480 (9th Cir. 1997) (en banc); see also Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 

1555, 131 L.Ed.2d 490 (1995) (describing the individual prosecutors “duty to learn of any 

favorable evidence known to [those] acting on the government’s behalf”). This 

requirement extends to information held by subordinates, see Kyles, 514 U.S. at 438; 

United States v. Price, 566 F.3d 900, 908-09 (9th Cir. 2009), and at times, information held 

by other executive branch agencies, see United States v. Santiago, 46 F.3d 885, 893 (9th 

Cir. 1995); United States v. Jennings, 960 F.2d 1488, 1490-91 (9th Cir. 1992). Ultimately, 

these duties are unequivocally the Government’s alone. “It is the government, not the 

defendant or the trial court, that decides prospectively what information, if any, is material 

and must be disclosed under Brady.” Lucas, 841 F.3d at 807 (emphasis in original). 

III. DISCUSSION

Defendants accuse the Government of withholding approximately forty-two

separate categories of Brady material. Outside of rehashing a dormant discovery dispute,

Defendants argue (1) that the Government misunderstands its Brady obligations in the 

6 Brady’s “possession” element “is treated as coextensive with that of Rule 16.” United 

States v. Cano, 934 F.3d 1002, 1023 n.16 (9th Cir. 2019) (citing United States v. Bryan, 

868 F.2d 1032, 1037 (9th Cir. 1989); and United States v. W.R. Grace, 401 F.Supp.2d 1069, 

1076 (D. Mont. 2005) (“Whether exculpatory information is in the government’s 

possession for Brady purposes is measured by the same . . . test used under Rule 16(a)(1)(E) 

for discovery.”)). 

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context of a pretrial request; (2) that its obligations require disclosure of materials in 

possession of the National Center for Missing and Exploited Children (“NCMEC”); and 

(3) the Attorneys General of California and Texas— organizations that they argue function 

as an arm of the government. (Mot. at 14-17.)

Before parsing Defendants individual claims, the Court briefly addresses the 

circumstances underlying this Motion and the effects of resolution of other discovery 

disputes on the Motion. First, as a procedural matter, the Motion violates orders of this 

Court. In August 2018, Defendant Padilla moved to compel the government to furnish 

Defendants with an itemized list identifying specific Brady and Giglio materials within the 

Government’s voluminous production of discovery materials. As discussed previously, by 

that time the Government’s discovery productions were extensive, (see generally Doc. 

294),

7

and the Court subsequently affirmed that the Government had no obligation to 

itemize Brady and Giglio material. (Doc. 339 at 5-6.) Since then, the Government has 

disclosed vast amounts of additional material in more functional format. Discovery 

disputes in this case have been numerous, constant, and consuming—to date, the Court has 

considered seven separate motions to compel, (see e.g. Docs. 352, 400, 643, 662, 665, 740, 

777), and their associated responsive motions. To better manage the emergent discovery 

disputes, the Court assumed a more active role in managing discovery and, in an August

19, 2019 motions hearing, (considering Doc. 679, “Motion for Sanctions”, Doc. 561, 

“Motion to Dismiss”, Docs 662, 665 “Motions to Compel,” and Doc. 531, “Motion for 

Discovery”), the Court expressly “prohibit[ed] the parties from filing any further motions

to compel or motions for discovery until the parties contact the Court to discuss,” (Doc. 

728 at 2)—a prohibition Defendants ignored entirely in filing the instant Motion.8 The 

imposition of sanctions, to include possible dismissal of Defendants’ Motion, is justified

on this ground alone. See State Farm Fire and Cas. Co. v. ex rel. Rigsby, 137 S.Ct. 436, 

7 Among other things, the Government’s response to Defendants prior motion, (Doc. 273), 

details the manner and scope of discovery production at that early stage—to include over 

10.4 million pages of documents in electronically searchable format. (Doc. 294 at 5.) 

8

Including the Motion to Compel Production of Brady Material now before the Court, 

Defendants have ignored that order twice. (See Docs. 740, 777.)

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444, 196 L.Ed.2d 340, 85 USLW 4011 (2016) (“District courts have inherent power, 

moreover, to impose sanctions short of dismissal for violations of court orders.”) (citing 

Chambers v. NASCO, Inc., 501 U.S. 32, 43-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). 

Without condoning their documented disregard for this Court’s instructions, the Court 

nonetheless considers the merits of Defendants’ arguments to ensure that this issue is not 

further delayed. 

Second, many of Defendants’ requests are now moot.9 Defendants also seek 

production of “any and all witnesses, documents and information” along three broad 

categories: (1) Backpage ads reported to NCMEC; (2) exculpatory information relating to 

Backpage’s moderation practices and alleged mens rea; and (3) information related to user 

posts (or attempts) of lawful adult categories. (See Mot. at 9.) The Court finds those 

requests satisfied by Government disclosures subsequent to the filing of this Motion. (See 

Doc. 839.) Much of the material requested by the Motion is either currently impossible to 

produce or material that Defendants now possess. For example, Defendants request for

disclosure of every ad ever posted on Backpage is largely moot. (See Mot. at 8-9.) Because 

Backpage users regularly posted ads for “lawful adult services,” Defendants argue that 

“each and every such ad” is Brady material insofar as it contradicts the Government’s 

position that the “vast majority” of Backpage ads were for illegal prostitution. (Id.) But 

Defendants now have “each and every such ad”—at least those that still exist. As the 

Court previously found after carefully considering Defendants’ first motion to compel 

discovery,

10 (Doc. 643): “Defendants possess all the ad data held on Backpage at the time 

of seizure” and “are further aware of cost-free, effective tools to analyze the data.” (Doc. 

839 at 15.) And because “Backpage did not use versioning . . . Defendants cannot expect 

to find all historical versions” versions of Backpage ads “if later deleted.” (Id. at 15-16.) 

In many ways, the Government’s disclosures have far exceeded what Brady requires. The 

9 This Order addresses those requests that remain. See discussion infra pages 19-21 

(concerning the dispute over disclosure of the thirty-one separate categories of material 

that gave rise to this Motion). 

10 The Court heard nearly fourteen hours of testimony relating to Doc. 643 alone. (See

Doc. 839 at 8.)

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Government’s disclosures allow Defendants to identify every Backpage ad reported to 

NCMEC, exculpatory information related to Backpage’s moderation practices, and user 

post information related to ads posted in lawful adult categories. Thus, Defendants have 

both the material (in a searchable format) and the means to “search for exculpatory . . . 

practices.” (Id. at 15 (finding that “[c]ombined with the earlier hot document production . 

. . the Government’s disclosures meet their Rule 16 obligations.”)). With that 

understanding, the Court considers Defendants’ request for the categories of Brady

material the Government has allegedly withheld.

a. Brady’s Materiality Requirement

Failure to disclose information only constitutes a Brady violation if the requested 

information is material to the defense. Sanchez v. United States, 50 F.3d 1448, 1454 (9th 

Cir. 1995). So, to compel contested Brady disclosures Defendants must establish the 

requested information is “material.” The parties disagree over just what “material” means 

in the context of a pretrial motion. Citing Brady’s standard definition of materiality, the 

Government contends “[t]he test . . . is whether the requested evidence might affect the 

outcome of the trial.” (Resp. at 3 (citing United States v. Alvarez, 358 F.3d 1194, 1211-12 

(9th Cir. 2004)); see also United States v. Nagra, 147 F.3d 875, 881 (9th Cir. 1998) 

(discussing Brady’s pre-trial disclosure requirements) (quoting United States v. Hanna, 44 

F.3d 1456, 1459 (9th Cir. 1995)). Defendants argue that definition conflates a post-trial 

with a pretrial materiality standard, (see Reply at 3 (citing United States v. Acosta, 357 

F.Supp.2d 1228 (D. Nev. 2005) and United States v. Sudikoff, 36 F.Supp.2d 1196 (C.D.

Cal. 1999)), and instead urge the Court to adopt the more expansive standard articulated in

United States v. Sudikoff which interprets Brady to require “disclosure of exculpatory 

information that is either admissible or is reasonably likely to lead to admissible evidence.” 

36 F.Supp.2d at 1200. Effectually, this means producing any evidence that “will ‘assist 

[Defendants] in formulating a defense.’” (Reply at 4 (citing Soto-Zuniga, 837 F.3d at 

1003).)

This incongruity reflects a tension inherent in applying Brady’s materiality 

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standard—a backwards looking standard that contemplates a post-trial judicial decision—

to a pretrial prosecutorial judgment. See Agurs, 427 U.S. at 108 (finding a “significant 

practical difference” between pretrial and post-trial application of the “inevitably 

imprecise” Brady standard). Unsurprisingly, trial courts have wrestled with applying

Brady materiality standard’s in the pretrial context—with uneven results.11 See e.g., United 

States v. Lischewski, No. 18-cr-00203-EMC-1, 2019 WL 2211328, at *2 (N.D. Cal. May 

22, 2019) (finding it “clear that a defendant must do more than provide mere speculation 

that Brady material exists, but it is not clear that the Court must apply the post-trial 

materiality standard when reviewing a motion to compel Brady material”); United States 

v. Heine, 314 F.R.D. 498, 504 (D. Or. 2016) (defining materiality according to “Ninth 

Circuit law” as “whether the requested evidence might affect the outcome of the trial”)

(emphasis added); Acosta, 357 F.Supp.2d at 1243 (characterizing Sudikoff as “a significant 

departure from the Supreme Court’s articulation of the prosecutor’s constitutional Brady 

obligations” to emphasize “[t]he Supreme Court and Ninth Circuit have held prosecutors 

must turn over material exculpatory evidence in pretrial discovery, not all exculpatory 

evidence however insignificant.”); Sudikoff, 36 F.Supp.2d at 1200 (rejecting materiality as 

applied in the appellate context in favor of a pretrial standard requiring disclosure of 

“evidence that may reasonably be considered favorable to the defendant’s case and that 

would likely lead to admissible evidence”) (citing Bagley, 473 U.S. at 696); United States 

v. McVeigh, 954 F. Supp. 1441, 1449-50 (D. Colo. 1997) (“[t]here is no established 

procedure for due process disclosures required by Brady . . . [because] it is not possible to 

11 This difficulty is equally evident at the appellate level. See United States v. Coppa, 267 

F.3d 132, 140 (2d Cir. 2001) (“Although the government’s obligations under Brady may 

be thought of as a constitutional duty arising before or during the trial of a defendant, the 

scope of the government’s constitutional duty—and, concomitantly, the scope of a 

defendant’s constitutional right—is ultimately defined retrospectively, by reference to the 

likely effect that the suppression of particular evidence had on the outcome of the trial.”); 

United States v. Neal, 27 F.3d 1035, 1050 (5th Cir.), cert. denied, 513 U.S. 1008 (1994) 

and 513 U.S. 1179 (1994) (finding no prejudice to the defendant when the government 

disclosed Brady information during its case-in-chief); United States v. Jordan, 316 F.3d 

1215, 1252 (11th Cir. 2003) (“[U]nder Brady, the government need only disclose during 

pretrial discovery . . . evidence which, in the eyes of a neutral and objective observer, could 

alter the outcome of proceedings.”). 

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apply the materiality standard . . . before the outcome of the trial is known”). 

The Ninth Circuit’s guidance on this narrow issue is somewhat vague.

12 The Ninth 

Circuit has recognized that the “significant practical difference between the pretrial 

decision of the prosecutor and the post-trial decision of the judge” is borne from unease in

relying on a “trial prosecutor’s speculative prediction[s] about the likely materiality of 

favorable evidence.” United States v. Olsen, 704 F.3d 1172, 1183 n.3 (9th Cir. 2013) 

(noting trial courts’ divergent approaches) (quoting United States v. Agurs, 427, U.S. 97, 

108 (1976)). The circuit once noted Sudikoff with approval, but stopped short of explicitly 

adopting Sudikoff’s exceptionally broad conception of pretrial materiality.13 See United 

States v. Price, 566 F.3d at 913 n.14 (“For the benefit of trial prosecutors . . .we note 

favorably the thoughtful analysis set forth by two district courts in this circuit: ‘[T]he 

materiality standard usually associated with Brady . . . should not be applied to pretrial 

discovery of exculpatory materials. . . .”) (quoting Acosta, 357 F.Supp.2d at 1239-40) 

(alterations in original). What is clear since that thoughtful approval, however, is that 

“[t]he mere possibility that an item of undisclosed information” might help a defense or 

affect the outcome of a trial, “does not establish ‘materiality’ in the constitutional sense.” 

Olsen, 704 F.3d at 1184 (quoting Barker v. Fleming, 423 F.3d 1085, 1099 (9th Cir. 2005)). 

As other courts have recognized, this nod to Sudikoff does not obviate a district

court’s mandate to follow settled Ninth Circuit law. See e.g., United States v. Heine, 314

F.R.D. 498, 504 (D. Ore. 2016); United States v. DeLeon, No. CR 15-4268 JB, 2017 WL 

12 Defendants deceptively characterize United States v. Soto-Zuniga, 837 F.3d 992, 1003 

(9th Cir. 2016) as “expressly rejecting application of the post-trial materiality standard to 

the government’s pretrial disclosure obligations” in the Brady context. Again, Soto-Zuniga

concerned the appropriate scope of Rule 16’s materiality standard. See discussion supra 

note 4. While analytical treatment of Rule 16 and Brady is identical in some areas, see 

Cano, 934 F.3d at 1023 n. 16 (“The possession element of Brady is treated as coextensive 

with that of Rule 16.”) (citation and internal quotation marks omitted), their respective 

standards for materiality are an exception. See also United States v. Muniz-Jaquez, 718 

F.3d 1180, 1183 (9th Cir. 2013) (“Rule 16 is thus broader than Brady. Information that is 

not exculpatory or impeaching may still be relevant to developing a possible defense.”)).

13 The Ninth Circuit’s hesitance is perhaps telling. As other courts have noted, Sudikoff’s 

exceptionally broad encapsulation of materiality “create[s] a general and impermissible 

right to conduct discovery and impose[s] ‘an oppressively heavy burden on prosecutors 

[that] would drastically undermine the finality of judgments.” United States v. Izunza, No. 

03cr2434 JM, 2004 WL 7334066, at *3 (S.D. Cal. Jul. 8, 2004) (quoting Spicer v. Roxbury 

Correctional Institute, 194 F.3d 547, 555 (4th Cir. 1999)). 

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2271430, at *48 (D.N.M. Feb. 8, 2017); United States v. Izunza, No. 03cr2434 JM, 2004 

WL 7334066, at *3 (S.D. Cal. Jul. 8, 2004); see also United States v. Hopkins, 427 U.S. 

123, 125 (1976) (“[C]ourts should refrain from legislating by judicial fiat.”) (citation 

omitted). “[I]n a case like this, in which the defendant requests specific evidence under 

Brady, he must show that it is material.” Alvarez, 358 F.3d at 1211-12. The clunky 

application of Brady’s materiality standard-- whether the requested evidence might affect 

the outcome of the trial”—in the pretrial context may counsel more expansive Government 

disclosure where doubt exists as to the usefulness or impeachment value of evidence, but 

does not transform Brady into an expansive discovery device. Id.; see also United States 

v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986) (finding a district court did not abuse its 

discretion in denying a pretrial request for specific Brady material because “in a case in 

which a specific request is made, ‘the test for materiality is whether the requested evidence 

might affect the outcome of the trial.’”) (quoting United States v. Agurs, 427 U.S. 97, 104, 

96 S.Ct. 2392, 49 L.Ed.2d 342 (1975)). Thus, the Court cannot adopt Defendants’ position 

that, in the pretrial context, Brady compels the Government to produce any material that a 

defendant believes will assist formulation of a defense. And regardless, Defendants’ broad

requests speculating that Brady material exists does not satisfy another baseline Brady 

requirement. “‘Mere speculation about materials in the government’s files’ [does] not 

require the district court to make those materials available, or mandate an in camera

inspection.” United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir. 2009) (quoting 

Michaels, 796 F.2d at 1116); see also Lucas, 841 F.3d at 808 (“to challenge the 

government’s representation that it does not have Brady evidence, [a defendant] must do 

more than speculate that Brady material exists”). “The mere possibility that an item of 

undisclosed information might have helped the defense, or might have affected the 

outcome of trial, does not establish ‘materiality’ in the constitutional sense.” Agurs, 427 

U.S. at 109-10 (internal quotations and citations omitted), reversed on other grounds by 

Bagley, 473 U.S. 667.

Of course, where doubt exists as to the materiality of favorable evidence, the 

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Government should resolve such doubts in favor of full disclosure. See Olsen, 704 F.3d at 

1183 n.3; U.S. v. Van Brandy, 726 F.2d 548, 552 (9th Cir. 1984) (emphasis added) (citing 

Agurs, 427 U.S. at 104). But that does not “alter the fundamental construct of Brady.” 

Lucas, 841 F.3d at 809. It remains the case that the prosecutor, not a defendant, “make[s]

judgment calls about what would count as favorable evidence” and that “the character of a 

piece of evidence as favorable will often turn on the context of the existing or potential 

evidentiary record.” Kyles, 514 U.S. at 439. This responsibility does not, as Defendants 

seem to imply, translate into an “open file policy.”14 Weatherford, 429 U.S. at 559; see 

also Kyles, 514 U.S. at 439 (recognizing that Brady “requires less of the prosecution than 

the ABA Standards for Criminal Justice, which call generally for prosecutorial disclosures 

of evidence tending to exculpate or mitigate”). Insofar as Defendants’ disclosure requests 

rely on application of their chosen pretrial materiality standard, the requests will be denied. 

b. Possible Brady Material Possessed By NCMEC

Defendants seek to bring materials in possession of the NCMEC under the 

Government’s Brady umbrella because NCMEC, they argue, is an agent and arm of the 

government, serves a traditional police function and, here, operated as a member of the

Government’s “prosecution team” 15 for Brady purposes. (Mot. at 14-15.) They first point 

14 A comprehensive assessment of Defendants’ positions reveals a view of Brady that 

contravenes settled precedent. Taking their positions together, it is clear Defendants see 

Brady as a discovery tool that creates an open file policy. Contra Weatherford, 429 U.S. 

at 559. Their core demand is that the Government produce identified categories of Brady

material, or alternatively, search for and certify that such materials do not exist. That 

material, they argue, is any material that may be helpful to formulating a defense. (Reply 

at 3-4 (applying Rule 16’s materiality standard to the Brady context).) But they “will not 

be limited to asserting only those defenses approved by the government.” (Id. at 7.) Thus, 

“the government must produce [such] evidence . . . even if the government disagrees.” (Id.) 

This flips Brady on its head, turning a self-executing prosecutorial duty designed to satisfy 

minimum due process standards into a “broad, constitutionally required right of discovery 

[that] ‘would entirely alter the character and balance of our present systems of criminal 

justice.’” Bagley, 473 U.S. at 675 n.7.

15 It is unclear exactly what the “prosecution team” concept means to Defendants. In the 

Ninth Circuit, there is no “prosecution team” requirement. W.R. Grace, 401 F.Supp.2d at 

1078 (observing the “‘prosecution team’ concept . . . is a product of case law from other 

circuits” and “has not been embraced by the Ninth Circuit”). Instead, the scope of the 

government’s obligation in this regard turns on “the extent to which the prosecutor has 

knowledge of and access to the documents” in question. Bryan, 868 F.2d at 1036.

“Knowledge and access” are imputed when considering materials in the “custody or control 

of any federal agency participating in the same investigation of the defendant.” Bryan, 868 

F.2d at 1036.

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to cases from other circuits finding that NCMEC acted as a government entity or agent for 

Fourth or Sixth Amendment purposes and ask the Court to hold similarly concerning 

Brady. Defendants then highlight facts that purportedly establish this. (Mot. at 16.) The 

Government counters that NCMEC is a private, non-profit organization beyond the scope 

of Brady’s disclosure requirements. And while, admittedly, NCMEC was found to have 

acted as a government entity or agent in other cases, the Government contends such cases 

are factually distinguishable, limited to Fourth and Sixth Amendment inquiries, and do not 

incorporate recent responsive statutory amendments. (Resp. at 6-7.) The Government 

argues that Defendants’ position is premised on an unjustifiable expansive reading of case 

law “which no court has endorsed.” (Id. at 6.) The Government is correct—Defendants 

offer little to persuade the Court to extend out-of-circuit rulings to hold that NCMEC is a 

governmental entity for Brady purposes or show that NCMEC’s involvement in the instant 

investigation triggers the Government’s Brady obligations. 

At the outset, the Court reiterates that Brady does not require a prosecutor “to 

produce information which it does not possess or of which it is unaware.” Sanchez v. 

United States, 50 F.3d 1448, 1453 (9th Cir. 1995). Instead, prosecutors are obligated to 

turn over only material, exculpatory or otherwise helpful to the defense, that it has in its 

possession. What is in a prosecutor’s “possession” extends beyond what the prosecutor 

personally knows to include information held by subordinate investigating police officers 

or other executive branch agencies participating in an investigation. See Cano, 934 F.3d 

at 1023. An agency’s participation in an investigation is sufficient, but not necessary, to 

establish that the Government has access the agency’s information. United States v. 

Santiago, 46 F.3d 885, 893-94 (9th Cir. 1995). So while there remains “no obligation to 

turn over documents maintained by independent third parties who are not part of the 

investigation team,” United States v. Lankford, No. 10-CR-00398 AWI BAM, 2013 WL 

2295988 at *1 (E.D. Cal. May 24, 2013) (citing Santiago, 46 F.3d at 894), courts may deem 

the Government has “knowledge and access” of materials held by separate governmental 

divisions with no responsibility for the investigation or prosecution of the crime in 

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question.16 See e.g., Santiago, 46 F.3d at 893-94. United States v. Blanco, 392 F.3d 382, 

393-94 (9th Cir. 2004) (finding the prosecution had knowledge and access of material in 

custody of the investigating agency); United States v. Wood, 57 F.3d 733, 737 (9th Cir. 

1995) (holding that an “agency charged with administration of the statute, which has 

consulted with the prosecutor in the steps leading to prosecution, is to be considered as part 

of the prosecution in determining what information must be made available to the 

defendant charged with violation of the statute.”). This factual determination is necessarily 

made case-by-case and agency-by-agency. W.R. Grace, 401 F.Supp.2d at 1078. 

Broadly, Defendants make three related claims: (1) that NCMEC is a governmental 

entity; (2) that, in relation to this case, NCMEC acted as an agent of the government and/or 

(3) acted as a member of the prosecution team. Defendants support their position with four 

out-of-circuit cases—United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016); United 

States v. Cameron, 699 F.3d 621 (1st Cir. 2012); United States v. Keith, 980 F.Supp.2d 33 

(D. Mass. 2013); and United States v. Coyne, Nos. 5:16-cr-154-01, 5:17-cr-21-01, 2018 

WL 8667649 (D. Vt. Apr. 10, 2018). Chief among them is United States v. Ackerman. The 

Ackerman court recognized that NCMEC’s authorizing statutes mandated collaboration 

with all levels of law enforcement and granted the organization law enforcement powers 

that extended far beyond those enjoyed by primary citizens, to conclude that, in the Fourth 

Amendment context, NCMEC is a governmental entity, and, at minimum, served as a 

government agent in that case.17 Id. at 1296-1302. Defendants’ arguments largely rehash

Ackerman’s analysis.

18 Compare Mot. at 15-16 (providing five justifications to assert 

16 This principle is not, however, without limit. See United States v. Avellino, 136 F.3d 

249, 255 (2d Cir. 1998) (“[K]knowledge on the part of persons employed by a different 

office of government does not in all instances warrant the imputation of knowledge to the 

prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other 

offices not working with the prosecutor’s office on the case in question would 

inappropriately require us to adopt ‘a monolithic view of government’ that would 

‘condemn the prosecution of criminal cases to a state of paralysis.’”) (quoting United States 

v. Gambino, 835 F. Supp. 74, 95 (E.D.N.Y. 1993)). 

17 Other cases, including one cited by Defendants, disagree with Ackerman’s assessment. 

See United States v. Coyne, 387 F.Supp.3d 387, 398-99 (D. Vt. 2018) (recognizing 

NCMEC’s statutory authorizations but finding that it “performs its clearinghouse function 

without governmental supervision” and “no evidence that NCMEC is controlled by federal 

or state law enforcement agencies”). 

18 Defendants’ remaining cases deal explicitly with NCMEC’s CyberTipline function and 

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NCMEC is an agent of the government) with Ackerman, 831, F.3d 1296-99 (listing the 

same).19 But as the Government’s emphasizes, the NCMEC functions cited by Defendants, 

and which in Ackerman “illustrat[ed] and “confirm[ed] the special law enforcement duties 

and powers [NCMEC] enjoys”—primarily, the CyberTipline—are not at issue here. 

Ackerman, 831, F.3d 1296-99. Thus, while much of the Ackerman court’s reasoning

remains generally relevant, its specific application outside the Fourth Amendment context 

to the instant prosecution is more questionable. Put otherwise, “just because an entity is a 

government entity or agent for purposes of a Fourth Amendment analysis does not 

necessarily mean that it is part of the prosecution team for discovery purposes in a 

particular case.” United States v. Rosenschein, No. 16-4571 JCH, 2019 WL 2298810, at 

*6 (D.N.M. May 30, 2019). At the least, this distinction gives the Court pause before 

adopting Ackerman’s holding wholesale in the Brady context. This is especially so when,

unlike in Defendants’ cases, there is little to indicate that the prosecution of Backpage 

directly implicated the investigatory functions (like the CyberTipline) that in Ackerman

confirmed NCMEC’s “special law enforcement duties.” Ackerman, 831 F.3d at 1296. And 

Defendants do not identify any additional statutory functions—outside of those operative 

in Ackerman but not at issue here—to persuade the Court to hold that NCMEC is a 

governmental entity for Brady purposes. A quick look at the Superseding Indictment 

further undermines Defendants’ argument here. As the Government observes, the 

Superseding Indictment scarcely mentions NCMEC—the organization appears in a mere 

four of 211 paragraphs within the 92-page, 100-count Superseding Indictment. At most, 

the Superseding Indictment shows NCMEC’s involvement in a handful of previous 

are distinguishable. See Cameron, 699 F.3d at 644 (finding that “[a]lthough NCMEC is 

not officially a government entity,” it “effectively acted as an agent of law enforcement” 

by receiving a “government grant to accept reports of child pornography and forward them 

along to law enforcement”); Keith, 980 F.Supp.2d at 41 (“In examining the contents of the 

emailed image file from the defendant’s computer that was uploaded to its CyberTipline 

server, NCMEC was acting as an agent of federal law enforcement, and the Fourth 

Amendment applied.”)

19 Defendants mistakenly apply the Ackerman analysis holding that NCMEC was a 

governmental entity to affirm that, here, “NCMEC is an agent of the government.” (See 

Mot. at 15.) Unlike in Ackerman, Defendants’ cursory analysis hardly establishes the 

existence of an agency relationship between NCMEC and the Government regarding the 

instant prosecution.

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attempts to persuade Backpage executives to adopt safeguards to combat sex trafficking. 

(SI ⁋⁋ 89, 97, 134, 140.) Not once does the Superseding Indictment implicate the statutory 

functions central to Ackerman’s holding. Nor do Defendants address the effect of postAckerman changes to NCMEC’s authorizing statutes.20 See The CyberTipline

Modernization Act of 2018, Pub. L. No. 115-395, 132 Stat. 5287 (Dec. 21, 2018) 

(emphasizing NCMEC serves it’s “clearinghouse role as a private, nonprofit 

organization”); The Missing Children’s Assistance Act, Pub. L. No. 115-267, § 2, 132 Stat. 

3757-3760 (Oct. 11, 2018) (setting forth NCMEC’s statutory duties and responsibilities). 

The facts matter here. W.R. Grace, 401 F.Supp.2d at 1078. That NCMEC generally 

fit the definition of a government agent or entity in other cases does not, contrary to 

Defendants’ position, automatically place NCMEC within the ambit of the Government’s

Brady requirements in this case.

21 The Government’s Brady requirements are not 

limitless.22 Even assuming Defendants are correct to characterize NCMEC as a 

government entity, the Government’s Brady obligation to “learn of any favorable evidence 

known to [those] acting on the government’s behalf”, Kyles, 514 U.S. at 437, only extends 

to those entities “participating in the same investigation of the defendant”—something 

20 Ignoring the import of the statutory changes since Ackerman, Defendants seem to argue 

the statutory language is of no consequence as it does not “immunize NCMEC from being 

found to operate as an arm of the government.” (Reply at 6.) That may be so. But 

Defendants fail to provide sufficient evidence that, as relates to the Government’s 

investigation in this case, NCMEC “exceeded its role as a purported ‘private, nonprofit 

organization.’” (Id; See also discussion infra at 16-17.)

21 Defendants are correct that other courts’ rulings finding that NCMEC operated as an arm 

of the government in the Fourth and Sixth Amendment context are relevant. (Reply at 4.) 

It does not follow, however, that such analysis can substitute for a Brady inquiry, or 

establish that, in this case, NCMEC acted as a member of the prosecution team. See 

Ackerman, 831 F.3d at 1302 (reviewing the distinct tests adopted by the Courts of Appeal 

to analyze agency relationships for Fourth Amendment purposes). 

22 A prosecutor is “under no obligation to turn over materials not in its control.” United 

States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). These Brady obligations do sometimes 

extend to information held by other executive branch agencies, particularly agencies that 

participated in the investigation. “Documents held by another executive branch agency are 

deemed to be ‘in possession of the government’ if the prosecutor has ‘knowledge and 

access to the documents.’” Cano, 934 F.3d at 1023 (quoting Bryan, 868 F.2d at 1036)). 

When the agency participates in the same investigation, knowledge and access are 

presumed. Id. This case-by case determination turns on “the extent to which the prosecutor 

has knowledge of and access to the documents sought by the defendant,” not whether “the 

prosecutor has knowledge that certain facts might exist.” Id. at 1024 (quoting Bryan, 868 

F.2d at 1036) (emphasis in original). 

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Defendants fail to establish. Bryan, 868 F.2d at 1036. What Defendants offer to prove 

NCMEC’s participation is weak. Namely, Defendants cite: (1) the public statements of 

NCMEC’s former President urging the Department of Justice to prosecute Backpage; (2) 

NCMEC’s voluntary compliance to the Government’s request for information; and (3) the 

fact that four current or former NCMEC employees are listed as possible Government 

witnesses. (Mot. at 16-17.) 

First, Defendants argue the statements of NCMEC Co-founder and Director John 

Walsh from a DOJ-sponsored event confirm that NCMEC acted as “an arm of the 

government with respect to this specific case.” (Reply at 5 (emphasis in original)). Mr. 

Walsh’s comments alone are insufficiently probative of NCMEC’s degree of participation 

to merit the imposition of expansive discovery obligations on the prosecution nor are they 

properly attributable to the government merely because the government sponsored the 

event. Rather, his remarks focus on NCMEC’s mission generally. (See Reply. at 5 (citing 

Video of Oct. 4, 2019 Event, available at https://www.justice.gov/opa/video/lawful-accesssummit).) Where the comments do implicate Backpage.com, Mr. Walsh focuses on 

NCMEC’s congressional advocacy designed to shed light on Backpage’s alleged illegal 

activities. The Court cannot draw any conclusions from NCMEC seeking congressional 

action on an issue that falls squarely within nonprofit mission to “lead[] the fight against 

abduction, abuse and exploitation.” NATIONAL CENTER FOR MISSING AND EXPLOITED 

CHILDREN, https://www.missingkids.org/ (last visited June 26, 2020). Only one brief 

comment indicates any NCMEC involvement in this case. And while, admittedly, Walsh’s

laudatory representation that a single employee “helped [the Government] prepare the 

case” might indicate some NCMEC involvement in the instant prosecution, it hardly 

indicatesthe level of that involvement. (Reply at 5.) The degree of NCMEC’s involvement 

is pivotal to this inquiry. A single off-hand comment by a former NCMEC executive is 

insufficient to support expanding the Government’s Brady obligations as Defendants 

request.23

23 Defendants’ argument concerning the meetings and emails of another former NCMEC 

President, Ernie Allen with Department of Justice officials fail for similar reasons. (See 

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Second, Defendants fail to show how complying with the Government’s request for 

information transforms an entity into “agent of the government.” (Mot. at 17.) Mere 

compliance with a government request for information that squarely falls within NCMEC’s 

nonprofit mission does not indicate an agency relationship with the government in a 

specific case. See United States v. DiTomasso, 932 F.3d 58, 69 (2d Cir. 2019) (holding 

that NCMEC’s “forwarding of reports to law enforcement” was no foundation the 

“contention that there was an action by NCMEC that violated [defendant’s] Fourth 

Amendment rights”). 

Lastly, Defendants’ remaining justification—that an identifying former NCMEC 

employees as possible witnesses makes NCMEC an arm of the Government—is not 

supported. Of course, the inclusion of witnesses in some instances could add weight to a 

well-developed argument supported by probative facts indicating that an organization like 

NCMEC acted as an arm of the government. But here, Defendants’ argument is not well 

developed and is lacking facts. Like each argument Defendants raise, the Government’s 

inclusion of four current or former NCMEC employees as possible witnesses is not, by 

itself, sufficiently probative to deem information held by NCMEC is within the knowledge 

and access of the Government.24 

Non-profit organizations like NCMEC “do not become government entities simply 

because they are engaged in work of public significance,” have a mission coextensive with 

a government investigation, and then cooperate with that investigation. United States v. 

Coyne, 387 F.Supp.3d 387, 397 (D. Vt. 2018). Without more to establish NCMEC’s 

participation in the instant investigation and affirm the materiality of the information 

sought, the Court will not order the Government to search a non-profit organizations 

coffers for Brady material neither party knows exists. It remains the case that “a federal 

prosecutor need not comb the files of every federal agency which might have documents” 

regarding the defendant. Zuno-Arce, 44 F.3d at 1427.

Mot. at 16-17.)

24 None of the above facts are particularly surprising given the obvious overlap between 

NCMEC’s mission and the Government’s charges; all seem likely to occur regardless of 

NCMEC’s involvement in the instant prosecution.

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c. Brady Material Held by the California and Texas Attorneys General 

In the closing paragraphs of their motion, Defendants tack on a final, sparsely 

worded request for disclosure of any Brady evidence in possession of the Attorneys 

General of the States of California and Texas. (Mot. at 17.) As discussed, the Government 

is required to disclose materials beyond that in physical possession of the prosecution team 

itself. See United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1089) (citing United State 

v. Robertson, 634 F.Supp. 1020 (E.D. Cal. 1986), aff’d, 815 F.2d 714 (9th Cir.), cert. 

denied, 484 U.S. 912, 108 S.Ct. 258, 98 L.E.2d 215 (1987) (“Limiting ‘government’ to the 

prosecution alone unfairly allows the prosecution access to documents without making 

them available to the defense.”)). But a prosecutor is “under no obligation to turn over 

materials not in its control,” United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991), 

including materials held exclusively by state agencies. The Ninth Circuit has consistently 

held “that prosecutors are never deemed to have access to material held by state agencies.”

U.S. v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995) (citing Aichele, 941 F.2d at 764).

Normally, the federal government’s Brady obligations do “not extent to ‘files that were 

under the exclusive control of state officials,’” Amado v. Gonzalez, 758 F.3d 1119, 1137 

(9th Cir. 2014) (quoting Benn v. Lambert, 283 F.3d 1040, 1061 (9th Cir. 2002)), but in 

special circumstances, federal prosecutors can be so obligated. For instance, when federal 

and state authorities pool investigative energies to a considerable extent and state 

investigators function as agents of the federal government under the principles of agency 

law, a court may require federal prosecutors to disclose related Brady material. See United 

States v. Naranjo, 634 F.3d 1198, 1212 (11th Cir. 2011) (citing United States v. Antone, 

603 F.2d 566, 569-70 (11th Cir. 1989)).

As far as the Court can tell, this is not a like circumstance. Defendants cite no case 

law or substantively address the Government’s response on this matter. Instead, 

Defendants point to a single DOJ press release that praises state law enforcement for its 

assistance. Defendants claim this “admission of partnership” throws open the doors of 

discovery and obliges the Government to produce any Brady material in the possession of 

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those state law enforcement agencies.25 (Mot. at 17.) It does not. Defendants’ claims are 

unavailing. Defendants brief argument cites no other facts indicating the state agencies 

pooled their investigative resources with the prosecution or functioned as agents of the 

federal government. (Reply at 6.) Instead, they imply that it is Government’s burden to 

deny their unsupported allegations. (Id.) That is simply not the case. Given the paucity 

of evidence supporting Defendants’ claim and the clear weight of case law against granting 

their request, the Court concludes that Defendants fail to adequately challenge the 

Government’s representation that it has complied with its Brady obligations regarding the 

Attorneys’ General of Texas and California. See Lucas, 841 F.3d at 808. This does not, 

of course, affect the Government’s continuing duty to comply with its Brady obligations, 

prior stipulations, and representations to this Court. See United States v. Fort, 478 F.3d 

1099, 1100 (9th Cir. 2007) (order denying reh’g en banc) (clarifying that “evidence 

gathered by state and local actors becomes subject to the disclosure obligation established 

by Rule 16 when it passes into federal possession for the purposes of a federal prosecution 

of the same defendants for the same acts that were initially subject to the state or local 

investigation”); see also United States v. Cerna, 633 F.Supp.2d 1053, 1060 (N.D. Cal. 

2009) (“When state police gives a federal investigator access to its files for the purpose of 

pulling items of interest to a federal investigation, Brady requires that the prosecution team 

review as well for Brady materials within the same universe of files.”).

d. Defendants’ Specific Requests

The above debate obscures the fact that the Government has already responded to 

Defendants’ request for the disclosure of thirty-one categories of Brady materials. (Mot. 

at 10-14; Resp., Exh. A.) Finding many of these responses infirm, (Reply at 7), Defendants 

25 The DOJ press release is far less probative of the level of partnership between the federal 

and state authorities than Defendants represent. “Partner” is used twice in the document. 

In the first instance, it modifies “the IRS Criminal Investigation,” not “the Texas and 

California Attorney Generals’ offices.” In the second, it is used prospectively to signal 

future cooperation on human trafficking with law enforcement agencies generally. See 

April 9, 2018 DOJ Press release, available at https://www.justice.gov/usao-cdca/pr/justicedepartment-leads-effort-seize-backpagecom-internet-s-leading-forum-prostitution (last 

visited Jan. 16, 2020) ([S]ex trafficking will not be tolerated. Together with our law

enforcement partners, the FBI will continue to vigorously combat this activity and protect 

those who are victimized.”). 

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take particular issue with specific responses where they conclude the Government has 

improperly restricted production to only material relevant “to the defenses that the

government has decided Defendants can assert,” (see Resps. 1, 2, 6, 10, 11, 13, 24, 27), or 

responses where the Government improperly “qualif[ies] its duty to disclose by what it 

understands to be its ‘obligations under Rule 16, Brady, and 18 U.S.C. § 3500’ (see Resps. 

4, 6, 7, 9, 12, 15, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29.).” (Reply at 7-8.) Accordingly, 

their defense “will not be limited to asserting only those defenses approved by the 

government” and, “[c]onsequently, the government must produce any evidence that may 

‘assist in formulating a defense’ even if the government disagrees about the viability of a 

defense.” (Reply at 7.) As discussed, the Court does not endorse Defendants’ view of 

Brady’s pretrial materiality obligations and, while counseling the Government to err on the 

side of disclosure where doubt exists as to the usefulness of possible favorable evidence, 

finds the Government responses satisfactory. (See Resps. 4, 6, 7, 9, 12, 15, 17, 18, 19, 20, 

21, 22, 23, 25, 26, 28, 29.) Furthermore, while some of Defendants’ requests seek access 

to specific material they believe in the Government’s possession, the remaining requests 

are both overbroad and unsupported. Such conclusory allegations do not satisfy the 

threshold showing of materiality required under Brady. Merely alleging the Government 

has failed to disclose favorable evidence is not enough; such a rule “would impose an 

impossible burden on the prosecutor and would undermine the interest in the finality of 

judgments.” Bagley, 475 U.S. at 675 n.7. 

Defendants’ also ask this Court to ignore well-settled precedent. “It is the 

government, not the defendant or the trial court, that decides prospectively what 

information, if any, is material and must be disclosed under Brady.” Lucas, 841 F.3d at 

807. Contrary to Defendants’ representations, Brady’s constitutional mandates are selfexecuting and fall exclusively within the province of a prosecutor. Paradis, 240 F.3d at 

1176. Brady is not an evidentiary rule granting broad powers to a defendant. Weatherford, 

429 U.S. at 559; see also Bagley, 473 U.S. at 675 n. 7 (holding a defendant’s right to 

disclosure of favorable evidence does not “create a broad, constitutionally required right 

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of discovery.”). Defendants cite no case that “alter[s] th[is] fundamental construct of 

Brady, which makes a prosecutor the initial arbiter of materiality and disclosure.” Lucas, 

841 F.3d at 809 (citing Ritchie, 480 U.S. at 60). True, the Government cannot restrict 

Defendants strategy of defense, but it remains a prosecutor’s duty to comply with Brady 

and prospectively decide what information is material. This discretionary obligation may 

be vexing to Defendants and difficult to administer for the Government, but Defendants

simply do not provide enough to rebut the Government’s positions regarding its Brady 

compliance. Although the lack of support for their challenge to Government’s 

representations on all the above questions is fatal to Defendants Motion, the Court leaves 

the Government with a cautionary note—it is the Government that is best placed to 

understand the degree to which NCMEC and state law enforcement was involved in the 

investigation of this case. The continuing duty to meet the minimum constitutional 

standards of due process enshrined by Brady belongs to the Government. It is there too, 

that the risks of incomplete disclosure squarely fall. 

IV. CONCLUSION

Accordingly, 

IT IS ORDERED DENYING Defendants’ Motion to Compel Production of Brady 

Material. (Doc. 777.)

Dated this 26th day of June, 2020.

Case 2:18-cr-00422-DJH Document 1028 Filed 06/26/20 Page 21 of 21