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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)

MOTION FOR ITEMIZATION OF

BRADY/GIGLIO MATERIAL

(First Request) 

(Oral Argument Requested)

Defendant Andrew Padilla, by and through his undersigned attorney, hereby moves

this Court for an order requiring the government to itemize documents and other materials 

pursuant to the principles set forth in Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United 

States, 405 U.S. 150 (1972), and their progeny. This motion is based on the legal reasoning 

and authoritiesset forth in the attached Memorandum of Points and Authorities.

It is expected that excludable delay under 18 U.S.C. § 3161(h)(1)(D) may occur as a 

result of this motion or an order based thereon, as explained more fully below.

Case 2:18-cr-00422-DJH Document 273 Filed 08/20/18 Page 1 of 11
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RESPECTFULLY SUBMITTED this 20th day of August, 2018.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Andrew Padilla

MEMORANDUM OF POINTS AND AUTHORITIES

BACKGROUND

Defendant Andrew Padilla and his co-defendants stand charged with various offenses 

set forth in the government’s 100-count superseding indictment. The indictment alleges 

conspiracy, Travel Act violations premised upon underlying state law misdemeanor

prostitution offenses, conspiracy to commit money laundering, and money laundering. The 

charges arise out of the operations of the website Backpage.com (“Backpage”). 

The government began its investigation of Backpage over five years ago and 

instituted grand jury proceedings in the Western District of Washington. Prosecutors in this 

district subsumed the investigation after the district court in Washington quashed grand jury 

subpoenas there, rejecting the government’s novel theory of prosecution -- the same novel 

theory underpinning the current superseding indictment obtained on July 25, 2018. Over the 

course of its investigations, the government has amassed voluminous information and 

evidence. On May 29, 2018, the government disclosed to defendants’ counsel two external 

hard drives comprising approximately three terabytes of information. (Correspondence from 

government counsel to defense counsel, May 24, 2018, attached hereto as Exhibit A).

The government’s voluminous disclosure is largely useless to the defendants. The 

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government has advised that the disclosure has been provided in this form for use in the 

Relativity data review platform. (Email correspondence between government counsel and 

defense counsel, attached hereto as Exhibit B). This poses additional difficulties for the

defendants because, among defendants’ counsel, only the law firm of Davis Wright 

Tremaine, LLP (“DWT”) has the Relativity platform. The government, recognizing the 

importance of DWT to the defendants, has engaged in affirmative steps to remove DWT

from the case, which would not only deprive defendants of DWT’s expertise and raise

serious Sixth Amendment issues, it would eliminate what access and hosting capabilities 

they currently have for use of Relativity. 

In any event, the sheer size of the government’s disclosure likely would require use 

of a litigation support vendor for data hosting and access, the costs of which would be 

upwards of $800,000.

1 Moreover, having to review all of the documents and data provided 

by the government would require several million dollars more in costs and fees. These costs 

must be considered against the backdrop of the government’s massive pre-conviction seizure 

of key defendants’ assets, starving them of resources to fund defense of this case generally, 

much less money to fund a massive document review effort. 

 1 DWT does not have sufficient infrastructure to host and support Relativity databases as 

large as those for the Backpage-related materials. Counsel have learned from a litigation 

support vendor that setting up and hosting a Relativity database for the government’s 

production would have an initial cost of approximately five cents per page to load the 

materials into the platform (approximately $450,000.00 for nine million pages), plus a 

monthly fee of approximately $20,000.00 - $30,000.00 per month to host the data, and fees

of $95.00 per month per user to access the data. Using the lower end of these estimates, and 

with only one user per defendant, the cost of setting up and using the Relativity platform 

would be $791,615.00 by the time of the trial date.

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Defendants have sought to address these problems with the government, and, after 

meeting and conferring, the parties have reached agreement regarding certain items of 

government disclosure. For example, the government has produced some documents it 

believes support the allegations in the indictment, and some others it views as “hot” 

documents (yet reserving rights to supplement later, so that defendants do not know how 

complete or incomplete these disclosures are). The government has also agreed to provide 

the ads that were placed on Backpage.com that relate to individuals identified as alleged 

“victims” in the indictment (although this has not yet happened). However, the government 

has indicated that it will not identify or itemize any Brady materials within its voluminous 

disclosure. (Exhibit B). Under circumstances such as these, courts have repeatedly ordered

additional disclosure pursuant to the principles set forth in Brady and its progeny, and have

required the government to specifically identify materials within voluminous disclosures in 

order to fulfil its Brady obligations.

ARGUMENT

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the 

prosecution must turn over to the defense any information within its possession material to 

either the defendant’s innocence or his punishment. In Giglio v. United States, 405 U.S. 150 

(1972), the Supreme Court made clear that this duty to disclose extends to any information 

that may tend to impeach a witness or discredit the witness’ testimony. This duty to disclose 

extends to any information within the possession of any attorney or agent of the prosecutor’s 

office, and any known information within the possession and/or control of cooperating law 

enforcement personnel. See, e.g., United States v. Brooks, 966 F.2d 1500, 1502-03 (D. C. 

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Cir. 1992) (collecting cases); Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997) (“the 

prosecution has a duty to learn of any exculpatory evidence known to others acting on the 

government’s behalf”).

In cases involving voluminous and unwieldy government disclosures, courts have 

required the government to specifically identify the Brady materials within the disclosures.

For example, in United States v. Hsia, 24 F.Supp.2d 14, 29 (D. D. C. 1998), the court 

specifically noted that “open-file discovery does not relieve the government of its Brady

obligations. The government cannot meet its Brady obligations by providing [the defendant] 

with access to 600,000 documents and then claiming that she should have been able to find 

the exculpatory information in the haystack.” Rather, “it is the government’s responsibility 

in the first instance to determine whether information in its possession is Brady material.” 

Id. at 30.

The concerns expressed in Hsia -- a traditional “paper” case -- are obviously 

exacerbated in cases involving the government’s disclosure of voluminous electronically 

stored information. In United States v. Salyer, 2010 WL 3036444 (E. D. Cal. 2010), the court

recognized these concerns and rejected the government’s argument that it satisfied its Brady

obligations by “simply disclosing everything” to the defendant. Id. at *2. The court ordered 

the government to specifically identify the Brady/Giglio materials in its voluminous 

disclosure to the defendant under circumstances similar to the present case where “[o]ver the 

course of approximately five years before indictment, the government collected, i.e., 

subpoenaed, acquired through warrant, or other means, a massive amount of documentary 

information ... consist[-ing] of multiple gigabytes, pages numbering into the millions.” Id. 

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at *3.

The court, “as a matter of case management (and fairness),” ordered the government 

to specifically identify the Brady/Giglio documents contained in its voluminous discovery 

production. Id. at *2.2

In light of the above, and to return to the real problem here, it bears repetition 

to emphasize that the ultimate issue is whether there is “disclosure” in the 

letter and spirit of Brady/Giglio simply by turning over a mountain of 

“everything” acquired over half a decade, and telling defense counsel nothing 

about where exculpatory/impeaching information can be found....Or, as the 

undersigned put it in the initial order: “[A]t some point (long since passed in 

this case) a duty to disclose may be unfulfilled by disclosing too much; at 

some point, “disclosure,” in order to be meaningful, requires “identification” 

as well.

Id. at *6 (emphasis in original).

The court explained in detail why the government could not satisfy its Brady

obligations under such circumstances by simply disclosing everything without conducting 

an independent Brady/Giglio review and identifying 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 well-established 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 

 2 The court acknowledged that “[t]he 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.” Id. (emphasis in original). See, e.g., 

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

(6th Cir. 2010). However, the court held “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.

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be considered Brady exculpatory and Giglio impeaching.” Id. at *3 (emphasis in original). 

The court further noted that the DOJ guidelines “command that 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).

3

It must also be remembered that the government has repeatedly emphasized that it is 

devoting more resources to the present prosecution than to virtually any other prosecution in 

this district. In its five-plus years of investigating this case, the government is certainly aware 

of the documents that are favorable to its case. Likewise, unless the government has turned 

 3 The court found only “some general, but ultimately inconsequential, support for that 

proposition.” Id. at *4 and *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)). In addition to the authorities the court found unpersuasive, other district court 

opinions denying requests for Brady/Giglio itemization are equally unpersuasive and easily 

distinguishable. For example, in United States v. AU Optronics Corp., 2011 WL 6778520 

(N.D. Cal. 2011), the court denied the defendants’ request for itemization of Brady/Giglio

material, finding that “the defendants here are well-resourced, have interests that are largely 

aligned, and perhaps more importantly, have the benefit of years of participation in the civil 

cases.” Id. at *2. In the present case, the government is actively attempting to deprive the 

defendants of virtually all of their resources, while at the same time attempting to disqualify 

the most capable and experienced attorneys in the country who have participated in prior 

civil litigation.

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a blind eye, it is certainly aware of the documents and items of evidence that contradict or 

undermine its positions and are not helpful to its case, and documents which therefore likely 

constitute Brady/Giglio material. It belies reason that not one document in over 10,000,000 

files would qualify under Brady/Giglio, and yet none have been identified by the government 

and, as previously explained, cannot be searched or identified by the defendants. Under these 

circumstances, courts have repeatedly recognized that the government cannot fulfill its 

Brady/Giglio obligations by simply ignoring them.

For example, in United States v. Blankenship, 2015 WL 3687864 (S. D. W. Va. 

2015), the court recognized that: “the United States, having determined the nature of the 

charges and having knowledge of the evidence and witnesses it intends to produce to prove 

those charges, is in a far better position than the Defendant to know what evidence might be 

exculpatory and/or impeachment material under Brady.” Id. at *7. The court therefore 

granted the defendant’s motion and ordered the government “to designate and disclose to 

defense counsel any and all Brady material.” Id. at *8. 

Again, Salyer is directly on point:

the prosecution knows, as any litigator would know, what evidence, on its 

face, significantly detracts from the factual elements which must be proven in 

a particular case....When the prosecution, in good faith, determines that a 

piece of evidence, on its face, significantly tends to controvert what it is 

intending to prove, disclosure (and in this case, identification as well) is 

mandated.

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2010 WL 3036444 at *5.4 See also United States v. Cutting, 2017 WL 132403, *10 (N. D. 

Cal. 2017) (relying on Salyer and Blankenship and ordering “the government to identify by 

Bates number the Brady/Giglio material in the discovery that has been produced” where “the 

government’s production has not only been voluminous, but its electronic production has 

been marred by technical problems that seriously impede defendants’ ability to search the 

ESI”). Identical circumstances exist here.

Based on these authorities, this Court should also order the government to specifically 

identify Brady/Giglio material in its present disclosures and subsequent disclosures, as well 

as any subsequent Brady/Giglio material of which the government becomes aware. 

Defendant Padilla requests that the Court set a deadline for the government to identify such 

materials, with specificity, within 45 days.

CONCLUSION

For the foregoing reasons, Andrew Padilla, by and through his undersigned attorney, 

respectfully requests this Court, pursuant to the principles set forth in Brady/Giglio and their 

 4 The court further noted that:

During the course of the years long investigation in this case, the 

government personnel seemed to be able to segregate that evidence which 

would be useful in the prosecution in terms of guilt, but apparently made 

no efforts to segregate that evidence which runs counter to the 

charges...[T]he reviewing personnel apparently made no note of the 

evidence, or merely having noted it, “stuck it back” in the ever-increasing 

pile to be an inevitably hidden part of the mass disclosure.

Id. at *4.

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progeny, to issue its order requiring the government to specifically itemize the Brady/Giglio 

material in its present disclosures and any subsequent disclosures, as well as any subsequent 

Brady/Giglio material of which the government becomes aware.

RESPECTFULLY SUBMITTED this 20th day of August, 2018.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Andrew Padilla

On August 20, 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

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CERTIFICATION

I have personally consulted with the government in a good faith and sincere effort to 

resolve this discovery dispute without the filing of a motion. Those efforts were unsuccessful. 

I therefore certify, pursuant to LRCrim12.1 and LRCiv7.2(j), that after personal consultation 

and sincere efforts to do so, counsel have been unable to satisfactorily resolve this matter.

PICCARRETA DAVIS KEENAN FIDEL PC

By: /s/ Michael L. Piccarreta

Michael L. Piccarreta

Attorney for Andrew Padilla

Case 2:18-cr-00422-DJH Document 273 Filed 08/20/18 Page 11 of 11