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PICCARRETA DAVIS KEENAN FIDEL PC

2 East Congress Street, Suite 1000

Tucson, AZ 85701

(520) 622-6900

Michael L. Piccarreta

State Bar No. 003962

Email: mlp@pd-law.com

Attorney for Defendant Andrew Padilla

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff,

vs.

6. Andrew Padilla,

 (Counts 1-51)

 

 Defendant.

NO. CR-18-00422-06-PHX-SPL (BSB)

REPLY TO RESPONSE TO MOTION 

FOR ITEMIZATION OF BRADY/GIGLIO

MATERIAL (DOCS. 273, 294)

INTRODUCTION

It is well settled that the government has the affirmative constitutional, legal, and 

ethical duty to examine its files, identify any Brady/Giglio material that is favorable to the 

defense, and disclose it to the defense. The government does not aver in its response that it 

has not conducted such a review of its files for Brady/Giglio material, nor does the 

government aver that it conducted such a review but did not find any exculpatory materials, 

anything that may undermine the government’s factual bases or legal theories of the case, or 

any materials favorable to the defense. Accordingly, the defendants are not asking the 

government to do anything that it has not already done. The defendants are just requesting 

the disclosure of the government’s Brady/Giglio review now. The defendants are certainly 

not asking the government to take any additional steps to conduct the defendants’ 

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investigation, assist in the presentation of the defense case, or assign prosecutors and 

investigators to make additional efforts to sift through the files. The defendants are simply 

requesting the government to disclose the results of its Brady/Giglio review now, rather than 

hiding it in the midst of massive discovery that the defendants (as the government well 

knows) simply do not have the technical capabilities and resources to effectively search.

This is a simple, straightforward, workable proposal to attempt to alleviate at least 

some of the difficulties posed by the nature of the government’s disclosure. Moreover, it is 

a proposed partial solution that is well within this Court’s discretion under the circumstances 

of this case and under settled Ninth Circuit law recognizing the district court’s authority to 

order disclosure beyond that which may be otherwise specifically required under the 

applicable rules, statutes, and other discovery requirements. It will require very little 

additional effort for the government to simply disclose the results of its mandated 

Brady/Giglio review. But the government protests this simple, workable, partial solution, 

solely in an apparent attempt to maintain tactical advantage, especially if the defendants are 

unable to find the Brady/Giglio material. Again, the government’s conduct here must be 

considered against the backdrop of its other efforts to disadvantage the defendants, such as 

massive pre-trial seizures of assets, to name just one. From the defendants’ standpoint, the 

government’s attempt to portray itself as going above and beyond its duties in order to assist 

the defendants rings particularly hollow. Rather, the government’s actions have required the 

defendants to seek the assistance of the courts, simply in an effort to prepare this case for 

trial. The present motion is one such effort. This Court clearly has the authority to order the 

relief requested, rather than approve the government’s effort to evade its responsibilities by 

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concealing Brady/Giglio materials in the midst of massive discovery that the defendants 

cannot effectively search.

FACTUAL BACKGROUND

The present motion addresses material in the government’s possession that is 

favorable to the defense. The Travel Act and money laundering offenses charged in the 

indictment are both specific intent offenses requiring the government to prove that the 

defendants knew that their conduct was unlawful. Defendant Andrew Padilla was a salaried 

employee at the website Backpage.com (“Backpage”), a website that sold classified 

advertisements in a wide variety of areas, including adult categories. Some of Mr. Padilla’s 

duties included attempting to ensure that third-party posters complied with Backpage’s terms 

of use. With regard to the defendants’ beliefs that their conduct was lawful, i.e. their lack of 

specific intent to violate the law, Mr. Padilla and others at Backpage had received assurances 

in a string of cases from across the country that their actions with regard to these third-party 

postings were protected under the First Amendment to the United States Constitution and 

could not be criminally prosecuted.1 The defendants also received assurances from high-

 1 To name just three of these cases, Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 963 (M.D. 

Ill. 2009), dismissed a lawsuit claiming that “Craigslist makes it easier for prostitutes, pimps, 

and patrons to conduct business” in violation of state laws and the Travel Act; M.A. v. Village 

Voice Media Holdings, LLC, 809 F.Supp.2d 1040, 1054 (E.D. Mo. 2011), held that 

“allegations of Backpage aiding and abetting [defendant convicted of violating the Travel 

Act] do not describe the specific intent required for aiding and abetting” under 18 U.S.C. § 

2; and Backpage.com, LLC v. Dart, 807 F.3d 229, 230-31 (7th Cir. 2015), held that the 

county sheriff was “using the power of his office to threaten legal sanctions against the creditcard companies for facilitating future speech, and by doing so he is violating the First 

Amendment unless there is no constitutionally protected speech in the ads on Backpage’s 

website – and no one is claiming that.” (Emphasis in original). 

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ranking Department of Justice officials that then-existing federal criminal laws could not be 

used to prosecute websites like Backpage for the contents of ads posted by third parties, 

absent some evidence of actual involvement with the third parties’ illegal activities.2 Indeed, 

while the grand jury was in session and a little over one month before it handed down the 

original indictment in the present case, key legislators admitted that “current federal criminal 

law...lacks proper prosecutorial tools to combat these websites...general knowledge that sex 

trafficking occurs on a website will not suffice as the knowledge element must be proven as 

to a specific victim.”3 In the course of its investigation, the government no doubt encountered 

similar information supporting the defendants’ beliefs that their conduct was lawful and 

constitutionally protected. The question is what additional material in the government’s files 

is favorable to the defendants. There is no doubt that such Brady/Giglio material exists, and 

the government has not claimed otherwise.

The proceedings in the Western District of Washington where the government began

its investigation of Backpage and instituted grand jury proceedings five years ago now also 

made it clear that such Brady/Giglio material exists in the government’s files. United States 

District Judge Richard Jones specifically noted the government’s same novel theory of 

 2 “I am not aware of any laws that would make them [criminally] liable [for third-party 

postings], unless there was evidence that Craigslist was a participant...conspiring with those 

who were misusing their site, that is, knowingly conspiring to violate laws....I am not aware 

of anything that shows us that Craigslist might be criminally liable....” Testimony of DOJ’s 

National Coordinator for Child Exploitation, Prevention, and Interdiction, Francie Hakes, 

Domestic Minor Sex Trafficking: Hearing Before Subcommittee on Crime, Terrorism, & 

Homeland Security of the House Committee on the Judiciary, 111th Cong. 215-16 (2010).

3 House of Representatives Report 115-572 Part 1, p. 5, February 20, 2018.

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prosecution and quashed the grand jury subpoenas there. (See Exhibit A which will be filed 

under seal). The fact that the grand jury investigation terminated there demonstrates that the 

government presumably came across documents, witness statements, and similar materials

that it recognized were problematic to its case and led it to abandon the prosecution there.

The defendants are entitled to these exculpatory materials as they bear directly on the 

defendants’ lack of specific intent.

The government’s response correctly notes that the government met with Mr. 

Padilla’s counsel and discussed documents the government believed were favorable to its 

case, and later provided those documents to Mr. Padilla’s counsel. The government also 

notes that the United States Senate’s Permanent Subcommittee on Investigations’ January 

2017 Report contains information about Mr. Padilla that the government believes is 

favorable to its case. The government further correctly notes that it has provided “hot” 

documents that the government believes support the allegations in the indictment. (Doc. 294, 

pp. 1-3).4 While the defendants appreciate these efforts, they clearly do not fulfil the 

government’s Brady/Giglio obligations to disclose and provide to the defendants materials 

that are not favorable to its case.

The government’s response also notes that it provided its 10 million plus pages of 

discovery in a format that is searchable using the Relativity platform, in conformance with 

the “ESI Protocol.” (Doc. 294, pp. 2-6). However, the ESI protocol clearly contemplatesthat 

 4 However, the government has still not produced the ads referenced in the indictment as 

promised.

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the parties will be on relatively equal footing when it comes to possessing the resources to 

engage in e-discovery, which is simply not the case here, as the government well knows. 

While the government claims that the defendants’ assertions about the costs of setting up and 

using Relativity are insufficiently supported (Doc. 294, p. 12), the government cannot

seriously dispute that those costs will be in the hundreds of thousands.5 Again, and more to 

the point, the government’s compliance with the ESI Protocol does not relieve it of its 

independent and specific Brady/Giglio obligations.

ARGUMENT

This Court Clearly Has The Authority To Order The Itemization Of

Brady/Giglio Material To Facilitate The Preparation Of This Case For Trial.

It is well settled that district courts, in the effective management of their cases, have 

the authority to order itemization of Brady/Giglio materials, especially in cases involving 

massive government disclosures and defendants who do not stand on equal footing with the 

government in their ability to access and search discovery materials. See, e.g., United States 

v. Salyer, 2010 WL 3036444 (E. D. Cal. 2010); United States v. Hsia, 24 F.Supp.2d 14 (D. 

 5 If actually contested, the defense will provide to the Court estimates from vendors relating 

to the costs. In that regard, undersigned counsel previously incorrectly asserted that only the 

law firm of Davis Wright Tremaine (“DWT”) had the Relativity platform but lacked 

sufficient infrastructure to host and support Relativity databases as large as those for the 

Backpage-related materials (Doc. 273, p. 3). Undersigned counsel has recently learned that 

the law firm of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow, PC, 

representing Defendant Brunst, has the ability to use Relativity. The Bird/Marella firm has 

received estimates from vendors indicating costs of processing and storing the government’s 

disclosure would exceed $350,000. DWT has received additional similar estimates ranging 

from approximately $445,000 to approximately $560,000. Again, these estimates do not 

include the additional costs and fees that would be incurred in reviewing all of the documents 

and data provided by the government. (See Doc. 273, p. 3 and n. 1).

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D. C. 1998); United States v. Cutting, 2017 WL 132403 (N. D. Cal. 2017); United States v. 

Blankenship, 2015 WL 3687864 (S. D. W. Va. 2015). Of course, because these matters are 

committed to the discretion of the district courts, there are cases in which the courts have not 

ordered the government to specifically itemize Brady/Giglio materials. However, none of 

the authorities cited in the government’s response preclude this Court from ordering the 

requested relief, and the Ninth Circuit Court of Appeals has specifically acknowledged the 

district court’s authority to order similar disclosure, as the district court in Salyer explained:

The case law is established, as a general rule, that if Brady/Giglio were disclosed to 

the defense, the fact that the government did not identify it as such will not cause 

the conviction to be reversed. However, that case law does not preclude the 

undersigned as a matter of case management (and fairness) in ordering the 

identification to be done.

2010 WL 3036444 at *2 (emphasis in original).

The court noted the similar general rule that a conviction will not be reversed due to 

the government’s failure to identify its witnesses pretrial, and added:

However, that fact does not preclude a court from ordering such identification and 

disclosure prior to trial as a matter of case management where appropriate. United 

States v. W. R. Grace, 526 F.3d 499, 509-510 (9th Cir. 2008) (en banc). The 

undersigned is doing nothing that the Grace case does not approve of in general 

principle as a matter of case management in this particular case. See also Advisory 

Committee Notes, Rule 16, 1974 amendment: “The rule is intended 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.” See 

also Fed. Crim. P. 2. In sum there is no authority which prohibits the court’s exercise 

of discretion here.

Id.

It is therefore clear that this Court has the authority to order the relief requested, and 

the government’s response relies entirely on reasoning that the Salyer court correctly found 

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“ultimately inconsequential” and unpersuasive. Id. at *4; see also id. at *7 (rejecting as 

unpersuasive cases from outside the Ninth Circuit such as United States v. Mmahat, 106 F.3d 

89 (5th Cir. 1997) and United States v. Skilling, 554 F.3d 529 (5th Cir. 2009), aff’d in part, 

rvs’d in part, Skilling v. United States, 561 U.S. 358 (2010)).6

But the government’s reliance on its cited authorities is unavailing for one simple 

additional reason. All of the authorities relied upon by the government7 rely on the 

assumption (as with the ESI Protocol) that the parties are on relatively equal footing with 

respect to their access to technical capabilities and resources necessary to process and search 

massive government disclosures, i.e. that the defendants have the “same access to the 

information that the Government does.” United States v. Dunning, 2009 WL 3815739, *1 

(D. Ariz. 2009). Again, as the government well knows, that is not the case here due to the 

 6 Significantly, the government’s response omits the fact that the “hot documents” in Skilling

included “hot documents” on both sides. “The government produced a set of ‘hot documents’ 

that it thought were important to its case or were potentially relevant to Skilling’s defense.” 

554 F.3d at 557 (emphasis added). This is precisely what the government refuses to do in 

this case.

7 Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011); United States v. Warshak, 631 F.3d 266 

(6th Cir. 2010); United States v. Skilling, 554 F.3d 529 (5th Cir. 2009); United States v. 

Pelullo, 399 F.3d 197 (3d Cir. 2005); United States v. Mmahat, 106 F3d 89 (5th Cir. 1997); 

United States v. Parks, 100 F.3d 1300 (7th Cir. 1997); United States v. Marrero, 904 F.2d 

251 (5th Cir. 1990); United States v. Toomer, 2018 WL 3745815 (D. Nev. 2018); United 

States v. McGill, 2016 WL 48214 (E. D. Penn. 2016); United States v. Weaver, 992 

F.Supp.2d 152 (E. D. N. Y. 2014); United States v. Mohammad, 2012 WL 1605472 (N. D. 

Ohio 2012); United States v. AU Optronics Corp., 2011 WL 6778520 (N. D. Cal. 2011); 

United States v. Rubin-Chambers, Dunhill Ins. Servs., 825 F.Supp.2d 451 (S. D. N. Y. 2011); 

United States v. Ohle, 2011 WL 651849 (S.D.N.Y. 2011); United States v. Simpson, 2011 

WL 978235 (N. D. Tex. 2011); United States v. Dunning, 2009 WL 3815739 (D. Ariz. 

2009); United States v. W. R. Grace, 401 F.Supp.2d 1069 (D. Mont. 2005); United States v. 

Ferguson, 478 F.Supp.2d 220 (D. Conn. 2007); United States v. Eisenberg, 773 F.Supp. 662 

(D. N. J. 1991); United States v. Shoher, 555 F.Supp. 346 (S.D.N.Y. 1983).

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government’s actions.

As the court in Salyer also correctly recognized, the authorities relied upon by the 

government give short shrift to the government’s affirmative duties under Brady/Giglio to 

conduct an independent review of its files for the purpose of identifying and disclosing 

specific documents for the defendant. The court noted that, under the Brady/Giglio 

guidelines set forth in the Department of Justice’s own memorandum, and under wellestablished case law, “the prosecution has the duty to affirmatively scour those records of the 

agencies considered the ‘government’ for purposes of the criminal case in order to determine 

and acquire those materials which would be considered Brady exculpatory and Giglio

impeaching.” 2010 WL 3036444 at *3 (emphasis in original).8 The court further noted that 

the DOJ guidelines “fashioned after some embarrassing non-disclosures in other cases,[9]

command an actual review of the materials acquired during investigation of a criminal case 

for the purpose of disclosing Brady/Giglio materials.” Id. (emphasis in original). “Tellingly, 

nowhere in the memorandum does it even suggest that in lieu of affirmatively looking for 

Brady/Giglio the prosecutor may determine not to look at all and simply disclose the entire 

discovery file.” Id. Finally, the court rejected the government’s argument “that it performs 

its Brady/Giglio duties as set forth above, by not looking for the required information as the 

cases seem to direct, but by just disclosing everything.” Id. at *4 (emphasis in original).

The United States Attorneys’ Manual also sets forth specific directives for federal 

 8 See also ABA Standards for Criminal Justice, Prosecution Function, Standard 3-3.11 

(Third Edition).

9 See, e.g., United States v. Stevens, 2009 WL 6525926 (D. D. C. 2009).

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prosecutors to comply with their affirmative Brady/Giglio obligations, including specifically 

identifying and disclosing any information that would negate the required mens rea. USAM, 

§ 9-5.001(C)(1) (“A prosecutor must disclose information that is inconsistent with any 

element of any crime charged....”). Federal prosecutors are directed to conduct a “review 

process” of investigative agency files, witness files, evidence and information gathered 

during the investigation, substantive case-related communications, potential Giglio

information relating to witnesses, and information obtained in witness interviews. Id., § 9-

5.002(B). Then, “[h]aving gathered the information described above, prosecutors must 

ensure that the material is reviewed to identify discoverable information.” Id. Like the 

Department of Justice memorandum discussed in Salyer, “nowhere in the [U.S. Attorney’s 

Manual] does it even suggest that in lieu of affirmatively looking for Brady/Giglio the 

prosecutor may determine not to look at all and simply disclose the entire discovery file.” 

2010 WL 3036444 at *3.

Accordingly, the defendants are not requesting the government to do anything that is 

not already constitutionally, legally, and ethically mandated to do. It is simply impossible to 

believe that this is the only case (incidentally the case to which the government claims it has 

devoted more resources than virtually any other in this district) in which the government’s 

scores of agents and lawyers have not examined the evidence and determined which parts 

may be problematic for their case and/or may constitute exculpatory evidence, and made 

note of that fact somehow. The defendants are merely asking the government to comply with 

its clear obligations under Brady/Giglio and disclose the results of the its Brady/Giglio

review now, in an attempt to partially address some of the problems created by the 

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government’s disclosure, and to prepare this case for trial. The defendants certainly are not, 

as the government contends, requesting the government to “conduct the defendants’ 

investigation or assist in the presentation of the defense case.” (Doc. 294, p. 6, citation 

omitted).

Finally, this Court should reject the government’s suggestion that this Court should 

authorize the payment of hundreds of thousands of dollars in Criminal Justice Act funds, 

(Doc. 294, pp. 12-13), to rectify the Brady/Giglio problem that the government, itself, caused 

by the nature of its massive disclosure and its failure to specifically disclose Brady/Giglio

materials. The government can easily rectify this problem, assist in trial preparation, and 

ensure the fairness of the process by simply disclosing the results of its Brady/Giglio review 

now. Indeed, the fact that the government is attempting to fill its coffers with its massive 

pretrial seizures of defendants’ assets on one hand, while suggesting that defendants resort 

to the government’s resources for indigent defense services on the other, speaks volumes 

about the government’s real motives here.10

CONCLUSION

For the foregoing reasons, the defendants respectfully request this Court to exercise 

its discretion and order the government to itemize its Brady/Giglio material within 45 days.

 10 See Luis v. United States, 578 U.S. __, __ 136 S.Ct. 1083, 1095 (2016) (noting the 

“overworked and underpaid” system of indigent defense services under the Criminal Justice 

Act and recognizing the “substantial risk that accepting the Government’s views 

would...render less effective the basic right the Sixth Amendment seeks to protect”).

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RESPECTFULLY SUBMITTED this 18th day of September, 2018.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Andrew Padilla

On September 18, 2018, a PDF version

of this document was filed with the

Clerk of Court using the CM/ECF

System for filing and for Transmittal

of a Notice of Electronic Filing to the

following CM/ECF registrants:

Reginald Jones, reginald.jones4@usdoj.gov

Peter Kozinets, peter.kozinets@usdoj.gov

Margaret Perlmeter, margaret.perlmeter@usdoj.gov

Kevin Rapp, kevin.rapp@usdoj.gov

Andrew Stone, andrew.stone@usdoj.gov

Paul Cambria, pcambria@lglaw.com

Tom Bienert, tbienert@bmkattorneys.com

Bruce Feder, bf@federlawpa.com

Michael Kimerer, mdk@kimerer.com

Stephen Weiss, sweiss@karpweiss.com

Case 2:18-cr-00422-DJH Document 310 Filed 09/18/18 Page 12 of 12