F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

E V E M A Z Z A R

E L L A , Defendant-Appellant

. N o. 12-10171

D.C. No. 2:08-cr-00064- RL H-GW F -2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

E V E M A Z Z A R

E L L A , Defendant-Appellant

. N o. 13-10401

D.C. No. 2:08-cr-00064- RL H-GW F -2

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

E V E M A Z Z A R

E L L A , Defendant-Appellant

. N o. 13-10658

D.C. No. 2:08-cr-00064- RL H-GW F -2

OPI NI ONU N I T E D S T A T E S V

. M A Z Z A R E L L A 2

A ppeal from the United States District Court

for the District of Nevada Rog er L . Hunt, Senior District J udg e, Presiding

Arg ued and Submitted November 17, 2014—San F rancisco, California

F iled April 20, 2015

B efore: Ronald M. Gould, Paul J . W atford, and Michelle T. F riedland, Circuit J udg es.

O pinion by

J udg e Gould

SUMMARY *

Crim inal Law

The panel vacated the d istrict court’s orders deny ing t he defendant’s motions for a new trial, and remanded f or f urther proceeding s, in a case in which the defendant was convicted of twelve felony counts related to a complex mortg ag e fraud scheme.

After her conviction, the defendant filed two motions for

a new trial, c ontending that the g overnment withheld material

ex c u lpatory e vidence in violation of Brady v

. Maryland a nd violated h er rig ht to be f

ree f rom u nreasonable searches under

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M A Z Z A R E L L A 3

the F ourth Amendment. The defendant requested discovery and an evidentiary hearing on these issues.

The panel held that based on the record before the district court, the court erred in concluding that the defendant’s rig hts under Brady and the F ourth Am e ndment had not been violated.

The panel held that the defendant has not shown prejudice based solely on the Brady disclosures, first revealed after her trial and sentencing

. B ut t h e p a n el remanded the Brady issu e s f o r t he district court to r e c onsider them on an open record, in conjunction w ith the a dditional di sclosure with which the defendant soug ht to aug ment the record o n appeal, the F ourth Amendment i s s ue, and any further impeachment

or ex culpatory

evidence that comes to lig ht from discovery

. The panel held that the district court erred in concluding

o n t h e r ecord b efore it that an employ ee’s c opy ing o f documents from the defendant’s real est a t e and investment offices was not a search implicating the F ourth Amendment. The p anel w rote that more discovery is required to determine whether an unlawful search occurred and whether there were evidentiary fruits of an unlawful search. The panel wrote that after making these determinations on r emand, the district

cour t should consider ag a in the cumulative effect of the impeach ment evidence it considered before, a nd the additional impeachment evidence that the defend a n t soug ht
to place before this court. The panel wrote that this material
must be considered tog e ther w ith any e vidence that should have been ex cluded from trial under the F ourth Amendment
to d etermine whether any of the defendant’s convictions must be vacated and a new trial g ranted.U N I T E D S T A T E S V

. M A Z Z A R E L L A 4

The panel also held that the d i s t r ict court abused its discret i o n in deny ing the defendant’s requests for an evident i a r y h earing and for discovery

. The panel wrote that

more finding s, which will require reasonable discovery and

an evidentiary hearing

, are needed to resolve whether there

was an immunity ag reemen t i n p lace for a prosecution witness, and whet h e r there was an unlawful search that resulted in tainted evidence being used at t r i a l

. The panel
wrote that the district court should also consider an additional disclosure with which the defendant soug ht to supplement the record before this c ourt. The panel rejected the defendant’s
arg ument that the district court should have imposed the very detailed dis co very g uidelines f rom a 2010 Department o f J ustice memorandum to federal prosecutors.

The panel addressed other issu e s in a concurrently filed memorandum disposition.

COUNSEL

J o h n D. Cline (arg

ued), L aw Office o f J ohn D. Cline, Sa n F rancisco, California; Mark H. Allenbaug h, L aw Of f i c es o f Mark H. Allenbaug h, Cleveland, Ohio, for D efendantAppellant.

Da n i e l G. B o g den, United States Attorney
, Eliz abeth O

. W h ite, A ppellate Chief

, P e t er S. L e vitt (arg

ued), Assistant U n ited States Attorney
, L as V eg as, Nevada, f or Plaintif

f

Appellee.U N I T E D S T A T E S V

. M A Z Z A R E L L A 5

OP INION

GOUL D, Circuit J udg e :

Eve Maz z a

rell a was convicted o f twelve felony c ounts related to a complex mortg ag e fraud scheme. A fter her conviction, Maz z arella fil ed t wo motions for a new trial, contending that the g overnment had withheld ma t e rial

ex c u lpatory evidence in v iolation of Brady v. M a r y l a nd

, 373 U .S. 83 ( 1963), and had violated her rig ht to be free from unreasonable se a r ches under the F o urth Amendment. Maz z a rella requested discovery and an evidentiary hearing on these issues. The district court denied both m o t i ons, a nd Maz z a rella’s appeal from those orders is before us. 1 We have jurisdiction u nder 28 U.S.C. § 1291. W e hold that based on the record before the district court, the court erred in concluding that Maz z a

r ella’s righ t s under Brady a nd the F ourth Amendment had not been violated. W e also hold that the district court abus e d its discretion in deny ing Maz z a rella’s r equest for an evidentiary h earing a n d for discovery

. W e vacate the d istrict court’s orders and remand.

1 Mazzarella also ch allen g es h er u n d erly i n g co n v i ctio n s a n d s e n ten ce d irectly

, raisin g an in ef f ectiv e assistan ce o f co u n sel ch al l en g e, a

su f f icien cy o f th e ev i d en ce ch allen g e, an d ch allen g es to th e d istrict co u rt’ s

ev id en tiary ru lin g s, j u ry in stru ctio n s, an d s en ten c i n g d e cisio n s

. W e d ism iss th e in ef

f ectiv e assistan ce claim an d af f irm th e d istrict co u rt o n all th e o t h er i ssu es ex cep t th e sen t en cin g ch all e n g e in a co n cu rren tly f iled

m em o ran d u m disp o s i t i o n

. W e d o n o t reach Mazzarella’ s co n ten tio n s related to sen ten c i n g erro r, w h ich sh e m ay raise ag ain i f on rem an d th e d istrict co u rt do es n o t v acate an y o f h er co n v ictio n s an d re- sen ten ce h er.U N I T E D S T A T E S V

. M A Z Z A R E L L A 6

I

Maz z a rella, a real estate a g ent and principal of Distinctive Real Estate & I nvestments (“DREI ”), was accused o f conspiring w ith Steven Grimm, Melissa B eecroft, and others
to defraud federally insured banks a nd private citiz ens. The scheme involved recruiting straw buy ers with ex cellent credit histories to acquire full o r nearly f u l l f inancing to purchase homes. The straw b u y ers’ loan applications contained materially f

alse statements rela t e d t o their income, assets, employ ment, and inten t t o u se the home as a primary residence.

The h o mes to b e p u rchased by the straw b uy ers were offered for sale at d istressed prices b e low fair market value, but the mortg ag es and the p u r c h a se offers were for fair market value. The difference betwee n the two fig ures was paid at c losing to business entities controlled by Maz z arella and her co-defendants. The g overnment calls these pay ments “third party disbursements.” The g o ver n m e n t c harg ed that defendants created numerous limited liability compan i e s (“L L Cs”) and c aused straw buy ers to transfer their interest in the purchased properties to th e L L Cs in ex chang e for a fee. Defendants control l e d the bank accounts for those e ntities a nd eventually defaulted on mortg ag e pay ments on the properties,

resu l t i n g in sig nificant losses to the lender, while the defendants retained much of the money from the third party disbursements.

The k ey u nlawful component of the scheme was the false information in the loan a

p plications. Testimony at trial, much of which came from cooperating witnesses, showed that Maz z a rella knew that the straw b uy ers were submitting false information. One such w i t ness, Skip Young
, testified: (1)U N I T E D S T A T E S V

. M A Z Z A R E L L A 7

that he had eng ag ed in “fraudulent transactions for Eve M a z z a r e l l a ” ; ( 2 ) t h a t M a z z ar e l l a p e r s o n a l l y g a v e misinformation to lenders by sug g esting a fake job title at DREI and inflated income for one of her employ e es who was recruited as a straw buy er; and (3) that Maz z arella developed

a plan to c reate spreadsh e e t s to track which straw buy ers applied to which banks after problems arose with buy ers seeking loans from the s am e b a nk on multiple homes a nd indicating an intent to r esid e in each as a primary residence. Another cooperating witness, Shauna L abee, testified that Maz z a rella had p ersonally induced h er to ag ree to be a straw buy er and that Maz zarella observed L abee sig ning blank loan application forms in Maz zarella’ s o ffice. There was also testimony about Maz z arella’s knowing involvement in other aspects o f the plan that would h ave b een la w fu l a bsent the fraudulent applications.

The jury found Maz z arella g u ilty of the c onspiracy

, bank fraud, mail fraud, and w ire f raud count s , and Maz z arella appealed.

W h ile the appeal from her convictions and sentence was pending

, the district court twice d e n ied motions for a new trial for which Maz z arella moved o n the basis of post-trial
g overnment disclosures un d er Brady v. Maryland

. The
g overnment disclosures involved information potentially helpful to Maz z arella about Kim B rown, Alicia H anna, a nd J ennifer W olff, who had all testified as prosecution w itnesses in Maz z a rella’s trial.

After the Maz z arella tr i a l

, B rown, one of Maz z arella’s employ e es at DREI who h ad tes tified reg arding the conspiracy c harg e and o ne of the mail fraud c harg es, testified during the trial of another person connected to the mortg ag eU N I T E D S T A T E S V

. M A Z Z A R E L L A 8

fraud scheme. I n her testimony a t that later trial, she said that

w h i le the f

ederal investig ation o f Maz z arella was pendin g, she had

, at t h e request of either the F B I or the I RS, copied thousands of pag es of documents f rom the DREI offices a

nd
g iven them to the g overnment. D u r i n g that related trial, the
g overnment’s statements and Br o wn’s own testimony indicated that B rown had received an informal promise from the g o vernment that she w o u l d not be prosecuted if she cooperated. The information about the copied documents a nd the informal immunity promise had not been disclosed t o Maz z a rella before or at her trial.

The g overnment also disclosed to Maz z arella information concerning Alicia Hanna, w ho h ad testified at Maz z arella’s trial about the materiality of the f alse statements to the lending banks and that one o f t h e defrauded banks was federally insured at the time of the transactions. At the time of trial, Hanna was a former employ ee of a defrauded lender bank. After trial, the g overnment g ave Maz z arella a c opy o f

an email e x chang e between Hanna and an F B I a g ent from before Maz z arella’s t rial. Hanna’s email contained a statement indicating that she mig ht wish to work for the F B I

one day

, and asking the ag ent to k eep an ey e out fo r job opening s in the Charlotte f i e l d office. That statement may have been a l i t eral hope or a casual joke, but in either event it mig ht have b een ur g ed b y Maz zarella as a basis to crossex a mine Hanna and undercut her credibility

.

The district court denied Maz zarella’s first mot ion for a

new trial, w hich was based on the disclosures related to B rown and H anna. T h e d i s t rict court determined that the evidence w as not necessarily impeaching

, because the
g overnment’s alleg ed promise to B rown that she had nothing
to worry about if she cooperated w as in response to aU N I T E D S T A T E S V

. M A Z Z A R E L L A 9

question asked by ano t h e r witness cooperating in the investig ation ag ainst Maz z arella, and could not reasonably be construed as a promise to B rown specifically

. A l s o , a n y ag reement would not impeach her b ecause B rown h ad testified that she initially contacted the F B I out of a desire to do the rig ht thing

, bely ing the notion that her cooperation was motivated by a desire to avoid prosecution. The district court deemed t h e e m ail from Hanna innocuous and u nlikely to

serve a s impeachment evidence. The district cour t f urther ruled that even if the evidence was impeaching

, there was no prejudice becau s e the jury would likely have found B rown and Hanna c redible despite any impeachment evidence. Also there was substantial other evidence of Maz z arella’s g uilt, and Hanna’s t e s timony had been v erified by independent documentation and the testimony of several other witnesses. The district court additionally ruled that B rown was n ot a g overnment actor and that h er copy ing o f documents did not implicate the F ourth Amendment, and further that there was

no evidence that any copied d ocuments were g iven to the
g overnment, or that any w ere used by the g overnment at trial. Maz z a rella timely appealed the district court’s order deny ing her motion.

L ater, the g o v ernment made y et another disclosure to Maz z a rella. J ennifer Wolff, who ha d t e stified ag ainst Maz z a rella, testified on c ross-ex a mination during the trial o f another person in the scheme that she understo o d that she

wo u l d n ot be p rosecuted in return for testify ing

. The
g overnment told Maz z arella that it w as aware of no such promise.

Maz z a rella moved a second time for a new trial based on the Brady d isclos u res. The district court concluded that the notion t h a t W olff w as promised immunity in ex chang e forU N I T E D S T A T E S V

. M A Z Z A R E L L A 10

testimony a g ainst Maz zarella w as “tenuous at best,” because it was unclear e ven from W olff’s testimony whether she was referring to a

n a gr e em en t that was f or her testimony in Maz z a rella’s trial, or only in the later trial of Maz z arella’s coschemer. Moreover, the go v e rnment had filed an affidavit

ex p laining that W olff’s b e lief arose from a misunderstanding and that she was never actually promised immunity

. Once
ag ain, the district court concluded that even if there had been

an im m u nity ag reement and even along side the earlier disclosures, the additional evidence ag ainst Maz z arella was

so substantial that there was no pr ej u dice that would undermine confidence in the verdict. 2

II

W e review de novo a district court’s denial of a new trial motion based on a Brady claim, as w e l l as the issue o f materiality under Brady

. U nited States v. Se d

a g h aty , 728 F .3d 885, 899–900 (9th Cir. 2013).

W e review de novo a district c o urt’s leg al conclusion that

a search did not violate the F ourth Amendment because it was private. United States v. Ree d

, 15 F .3d 928, 9 3 0 (9th Cir. 1994).

2 B ef o re o ral arg u m en t in th is c a s e , M a z z a r ella f iled a m otio n to

su p p lem en t t h e reco rd w ith th e d etails o f an o th er Bra d y d isclo su

re. W e d en y th at m o tio n in an o rd er f iled sim u ltan eo u sly w ith th is o p in io n

. Ev en in co m b in atio n w i th th e o th er d isclo su res o n th e ex istin g reco rd

, w e w ou ld

n o t rev erse th e d istrict co u rt. Rath er, as w e ex p l ain b elo w , w e v acate th e d istrict co u rt’ s o rd ers d en y in g Mazzarella’ s n ew trial m o tio n s , an d rem an d f o r f u rth er p ro ceed in g s. T h e d istrict co u rt sh o u ld co n sid er th e ad d itio n al d isclo su re in th e fi r s t in stan ce o n rem an d

, an d assess an y cu m u lativ e ef f ect o f t h e co m b in ed Bra d

y d isclo su

res an d Fo u rth A m en d m en t issu es.U N I T E D S T A T E S V

. M A Z Z A R E L L A 11

W e revi e w d i s covery r

uling s for an abuse of discretion. United States v. M

uniz-Jaquez
, 718 F .3d 1180, 1183 ( 9th Cir. 2013). A denial o f an evidentiary hearing is also reviewed for

an abuse o f discretion. U n i t ed S tates v. Olsen

, 7 04 F .3d 1172, 1 178 ( 9 th Cir.), r e h ’ g e n banc denied

, 737 F .3d 625 (9th Cir. 2013), cert. denied , 134 S. Ct. 2711 (2014).

III

Ma z z a r ella arg ues that the g overnment’s failure to disclose the B row n i mmunity a g reement a nd document
copy ing

, the Hanna email about job o pening s at the F B I
, a nd the possible immunity ag reement for W olff violated Brady

. Maz z a rella also arg ues that B r own’s copy ing d o c u m e n ts from the D REI offices and turnin g them over to the g overnment violated her rig hts under the F ourt h A m endment. F inally

, Maz z a rella contends that the d ist r i c t court abused its discretion by not g ranting discovery o r holding a n evidentiary hearing o n those issues. W e ag ree with the las t c o n t e ntion. W e conclud e t h a t we cannot vacate any of Maz z arella’s convictions on the present r ecord. B ut the district court erred in deny ing her motions for a n ew trial w ithout c o r r e ctly analy z ing the F o urth Amendment issue and then deciding whether any evidence submitted was t h e f r uit o f an illeg al search, and then considering in lig ht of tho s e d ecisions, whether there was pre

j u d i c e from the challeng ed failures to disclose. W e vacate the c halleng ed orders and remand so that the district co u r t , after a llowing r easonable d iscovery a nd conducting an e v i dentiary h e a ring

, may decide on a

n open record whether to g

rant Maz z arella’s request for a new trial.U N I T E D S T A T E S V

. M A Z Z A R E L L A 12

A. Mazzarella has not shown prejudice based o n the B r ady disclosures alone

The F ifth Amendment’s D ue Process Clause requires the
g overnment to produce ex culpatory information to the defense. Brady

, 3 73 U.S. at 86–87. T his i n c ludes information that may be used to impeach prosecution witnesses. Giglio v. U

nite d S tates , 4 05 U.S. 150, 152–54 (1972). A prosecutor has a duty under Brady to learn of and disclose evidence known to other s a cting on the g overnment’s behalf, including the police. S ee Kyles v. W

h itl e y , 514 U.S. 419, 432, 437 (1995).

I n the post- t r i a l contex t, a Brady violation has three components: (1) the informa t ion must be favorable to the defense; (2) it must not have been d i sclosed by the
g overnment before or at trial; and (3) there mus t h a v e been resulting prejudice. See United States v. W i l k e s , 662 F .3d 524, 535 (9th Cir. 2011). Prejudice en s u e s “if there is a reasonable probability that, had the e v ide nce been disclosed to the defense, the result of the proceeding would have been different.” United States v. Kohring

, 637 F

. 3d 895, 902 (9th Cir. 2011) (internal quotation mark omitted). “A reasonable probability is o ne that is sufficient to undermine confidence in the outcome of the trial.” O lsen

, 704 F .3d at 1 183 (internal quotation marks omitted). “The need for d i s c l o s ure is particularly acute w here the g o v ernment presents w itnesses who have b een g ranted i mmunity f rom prosecution in

ex c h a ng e for their testimony

. W e have previously recog niz ed that criminals who are rewarded by the g overnment for their testimony are inherently untrustworthy

, a nd their use trig g ers

an oblig ation to disclos e material information to protect the defendant f

rom being the victim o f a perfidious b arg ainU N I T E D S T A T E S V

. M A Z Z A R E L L A 13

between the state an d its witness.” Carriger v

. Stewart
, 132 F .3d 463, 479 (9th Cir. 1997) (en banc).

W e conclude that the B rown and Hanna disclosures, first

rev e aled after Maz z a

rella’s trial and sentencing

, were favorable to Maz z arell a and that to the ex tent the district
court ruled otherwise, that c onclusion was error. A s to B rown, the district cour t reasoned that a prosecutor’s
statement to two people, o ne of whom was B rown, that there

was “nothing to worry about” if the truth were told could not reasonably be construed a s a promise of immunity to B rown specifically

. B ut that conclusion i s belied by the
g overnment’s own statements: in the later trial at which B rown tes t i f

ied, the same prosecutor who prosecuted Maz z a rella told the court that he h a d promised B r own that she would not be prosecuted. T h e district court’s analy sis o f the B rown disclosure c ollapsed the distin c tion between the favorable prong and the issue of prejudice by concluding that B rown’s testimony

that she had approached the F B I out of a desire to do the rig ht thing meant the i m m u nity ag reement

was n ot favorable. The same is true of the district court’s characteriz ation of Hanna’s statements about jobs at the F B I

as innocuous. I t is p o tential impeachment evidence to sug g est that a g overnment witness has a bias—here, seeking
g overnment employ

ment—that mig ht color the witness’s testimony

.

The distri c t c o urt d etermined that the notion that W o lff had an immunity ag reement in place w as “tenuous at best,” but did not hold an evidentiary hearin g t o s e t tle the matter,

nor p ermit discovery on the issue. I n lig ht of our conclusions

on the F o u rth Amendment issue, w hich we discuss below, this was an abuse of discretion.U N I T E D S T A T E S V

. M A Z Z A R E L L A 14

On the r ecord as it now stands, we ag ree with the district court’s conclusion that e v e n a ssuming all of the disclos e d evidence was f

avorable impeachment evidence, no prejudice resulted from the g overnment’s not disclosi ng the impeachment evidence. More than 50 w itnesses testified, a nd there were more than 1300 e x hibits introduced at trial. Skip Y o u n g t e s tified ex tensively about Maz z arella’s k n o w l e d g e o f

, and involvement in, the use of false infor m a tion in the loan applications. Shauna L abee offered testimony tha t she h ad sig ned blank loan applications in Maz z a rella’s presence and
at Maz z arella’s u r g ing

. W hile both Young and L abee were co-schemers testify ing i n e x chang e for deals, their detailed testimony

, c oupled with the ample evidence of Maz z arella’s involvement in all the other aspects of the b u s i n e ss plan,
sug g ests that even after accounting for the disclosures, on the record b efore u s , t h ere is not a fair p robability that a jury would have reached a contrary result. Th e streng th of the prosecution’s case, coupled with the relative weakness of the proffered impeachment evidence, leads us to conclude that there was no prejudice. 3

B u t we must remand the Brady issues for the district court to reconsider them on an open record, in c onjunction with the additional disclosure with which Maz z arella so ug h t to

a u gm e n t the r ecord on appeal, the F ourth Amendment issue discussed below, and a

n y further impeachment or ex culpatory evidence that comes to lig ht from discovery

. I f the distri ct

co u r t ag a in denies the new trial motion, it should provide a

3 T h ere i s so m e u n c ertain ty , o n th e reco rd bef o re u s, ab o u t w

h eth er Mazzarella’ s co n v ictio n

f o r m ail f rau d u n d er Co u n t 1 1 co u ld stan d if

, in lig h t o f th e i m

m u n ity ag reem en t, th e j u ry h ad w h o lly d isco u n ted Bro w

n ’ s testim o n y , an d also ab o ut ho w W o lf f ’ s testim o n y m erely du

p licated or

co rro b o rated o th er ev id en ce at trial.U N I T E D S T A T E S V

. M A Z Z A R E L L A 15

specific ex planation for its conclusion that confidence in the verdict is not undermined.

B. Th e d i strict court e rred in concluding on the record before it that there was no search implicating the Fourth Amendment

One o r more of Maz zarella’s convictions may need to be vacated if th er e was evidence admitted at trial that should have been suppressed as the fruit of an unlawful search. B ut

more discovery is required to determine w hether an unlawful search occurred a

nd whether there were evidentiary fruits of

an unlawful search. The distric t c o u r t should make those determinations in the first instance on remand.

W e have held that whether a pr ivate individual a cts as a g overnment ag ent for F o u rth A men dment purposes requires

an inquiry into whether the g overnme n t knew of o r acquiesced in the intrusive conduct, a n d whether the party performing the search intended to assist l aw enforcement efforts or further his or her own ends. United States v. Reed

, 15 F

. 3d 928, 931 (9th Cir. 1994). I n R eed

, a h otel manag er called the police to repor t s u s p e cted drug activity by one o f
t he hotel’s g uests and asked for police p r otection as h e searched the g uest’s room, which t h e p o l ice provided. Id. W e held that the search fell within the F ourth Amendment’s ambit. I d

. a t 9 32. W e also rejected crime prevention as an independent private motive, reasoning t h at if crime prevention were deemed a private motive, searches by private parties would never implicate the F ourth Amendment. Id.

I f an unwarranted search did occ u r

— a n d there is no d i s p ute that B rown’s c o py ing was not pursuant t o a warrant—our precedents establish that such a search w o u ldU N I T E D S T A T E S V

. M A Z Z A R E L L A 16

g enerally be unreasonable, absent an ex c eption such as valid
consent. See United States v

. Zieg l er , 474 F .3d 1184, 1191 (9th Cir. 2 007) ( uphol d i n g search of employ ee’s workplace computer w here employ er g ave consent). A third party with “common authority over or other sufficient relationship to the premises or effects soug h t to be inspected” may consent to a g overnment search without the search violating the F ourth Amendm en t

. I

d

. ; see also U

nited States v. Kim
, 105 F .3d 1579, 1582 (9th Cir. 1 997) ( holding that consen t may be
g iven by p e r s on with a ctual or apparent authority to do so, and that defendant, by authoriz ing associate to rent storag e unit for d efendant in associate’s name, assumed the risk that associate would consent to a search of the unit).

Here, B r o wn testif

i ed a t another trial that a fter she

a p p r o a c h ed t h e a u t h o r i t i e s d u r i n g t h e M a z z a r e l l a investig ation, either the F B I or the I RS told he r t o g et a s much d ocumentation from DREI as she c o u l d

, a nd that she did so. She testified that she ag r eed she w o u l d g ather documents, and made “a v e r y hug e stack” of copies o f documents without Maz z arella’s knowledg e, and g ave it to “the proper p eople to g ive it to

. ” T h e re was also testimony from that same trial that the investig atin g FB I ag ent w ho i n vestig ated Maz z arella testified that he did not r eca l l receiving any documents taken from DREI

.

The d istrict court concluded that: (1) the F ourth Amendment was not implicated because B rown testified that she was motivated by

a desire to do the rig ht thing ; (2) there

was no evidence that a ny doc u m ents were g iven to the
g overnment; and ( 3) there was no evidence that any documents that were turned o ve r w e re used by the
g overnment at trial. B ut we cannot affirm any of the district court’s conclusions on this issue on the present record.U N I T E D S T A T E S V

. M A Z Z A R E L L A 17

F irst, the desire to “do the rig ht th ing ” that the district
court identified here i s indisting uishable from the crime prevention motive that we rejected in Reed

. Also, per B rown’s testimony

, the g overnment did not merely a cquiesce but asked B rown to g ather evidence. I f B rown’s testimony is accurate, her copy ing ma y h a ve implicated the F ourth Amendment. W e cannot say on the present record whether B rown had actual or apparent authority to t urn o ver the documents t o t he g overnment. Testimony from the r elated trial from a D R E I employ ee who apparently assisted B rown wi t h the copy ing that “Eve [ Maz z arella] would have g o ne insane if she k

new that we were

. . . c opy ing old investor files,” at least sug g ests that B rown lacked actual authority to copy a nd disclose the documents. B ut there is no f urther evidence on this issue in the record, no evidence at all r elated
to B rown’s apparent authority or the other DREI e mploy ee’s apparent authority

, and the district court made no finding s on the issue.

Second, the district c o urt’s conclusion th at there is no evidence that documents w ere actually d isclosed to the
g overnment is not supported by th e r e co r d

. That finding is contrad i c t e d by B rown’s sworn testimony that she turned

over her copies to the appropriate people. W h i le one F B I
ag ent testified that h e d i d n ot recall receiving any copied documents from B rown, f u r t her discovery is necessary to resolve the issue, and the d istrict court should make finding s of fact on this issue.

Third, the g overnment’s decl a r a t ion that none of the

ex h ibits introduced at trial were from documents obtained b y B rown, even if true, does n o t resolve the potential F ourth Amendment p roblem. The e x clusionary rule bars the introdu c t ion of “derivative evidence, both tang ible a ndU N I T E D S T A T E S V

. M A Z Z A R E L L A 18

testimonial, that is the product of the p rimary e vidence, o r that is otherwise acquired as an indirect result of the unlawful search, up to the p oint at which the connection w i t h t h e unlawful search becomes s o a ttenuated as to dissipate the taint.” Murray v. United States
, 487 U.S. 533, 5 36–37 (1988) (internal quotation marks omitted). After d etermining

w hether a search within the meaning of the F o u r t h Amendment occurred and whether any documents from that search were g iven to the g o vernment, the district court must also determine what trial evidence, if any , was the fruit of an unlawful search such that it should have been suppressed.

After making these determinations, the district court should consi d er ag ain the c umulative effect of the impeachment evidence it con sidered before, a nd the additional impeachment evidence tha t Maz z arella soug ht to place before this court. This material m u st be considered tog ether with a

ny evidence that shoul d h a v e been ex cluded from trial under the F ourth Amendment to determine whether
any of Maz z arella’s convictions must be vacated and a new trial g ranted.

C. The district c ourt a buse d its discretion in denying Mazz arella’s requests for discovery and an evidentiary hearing

Maz z a rella c ontends that the district court a buse d its discre tion by n ot p ermitting discovery or holding an evidentiary hearing on the B rady and Fo u r t h A mendment issues. W e ag ree to an ex te n t

. M o r e finding s, which will require reasonable discovery and an evidentiary hearing

, a re needed to resolve whether there w as an immunity ag reement in place for W olff, and whether there was an unlawful search

o f the DREI offices that resulted in tainted evidence be i n gU N I T E D S T A T E S V

. M A Z Z A R E L L A 19

u s e d at trial. F inally

, the d istrict court should also consider the additional disclo s u r e with w hich Maz z arella soug ht to supplement the record before us.

Having concluded that the d istrict court abused its discretion in deny ing an e v identiary hearing and not permitting a

ny disc o very on these issues, we will not as an appellate panel impose unduly onerous specifications r elated to the scope of discovery

. W e reject Maz z arella’s arg ument that the district court should have imposed the very det a i l e d discovery g u idelines from a 2010 Department o f J u stice

memoran d u m t o federal prosecutors. See David W

. Og den, Dep. A tt’y General, M emorandum f

o r D ep artment Prosecutors: Guidance for Prosecutors Regarding Criminal Discovery (J a

n. 4, 2010). The Og den Memorandum say s that it “ i s not intended to have the f orce of law or to create o r confer any rig hts, privileg es, or benefits.” Id. at 1. Maz z a rella has pointed to no authorit y s u gg esting that an appellate court can or should impose s u c h specific requirements on a q

uestion g o verned by t h e district court’s discretion, especially based on a document on l y meant to provide policy gu i d a nce. Cf. United States v

. Canori
, 737 F .3d 181, 183–85 (2d Cir. 2013) (rejecting an arg ument that a nother J ustice Departm e n t memorandum, which g ave g uidance for federal pros e cu t ors in states that have decriminaliz ed marijuana, in any w ay p revented those prosecutors f

r om enforcing fede r a l drug laws); In re G rand Jury Subpoena, Judith Miller

, 438 F

. 3d 1141, 1152 (D.C. Cir. 2006) (as a m e n ded) ( rejecting arg ument that a contempt finding ag ainst a journalist for not disclosing a source had to be reversed because the g overnment did not comply with the procedures set out in 28 C.F .R. § 50.10, g overning subpoenas for reporters, in p art because the g overnment g uidelines state that they do not create an enforceable rig ht for any person).U N I T E D S T A T E S V

. M A Z Z A R E L L A 20

* * *

W e vacate the o rders deny ing Maz zarella’s motions for a

n e w trial. On remand, the district court should autho r i z e appropriate discovery and h old an evidentiary hearing to determine whether a

n unla w fu l search occurred and, if so, what evidence was obtained by the g ov e r n ment or derived from the unlawful search. I n addition, the distri c t c o u rt should determine whether Wolff was promised immunity in

ex c h a ng e for testimony ag ainst Maz z arella. F inally

, based on the result of these determinations, the district c o u r t should consider anew whet h er the cumulative effect of the Brady discl osures and the suppression of unlawfully obtained evidence r equires vacating Maz zarella’s c onvictions a nd orderinga new trial.

There is a serious need for const a n t v ig ilance in both prosecutors’ offices and federal cou r t rooms to safeg uard individuals’ F ifth Amendment rig hts as e x plained in Brady and Giglio

. This is no less true o f t h e Fourth Amendment, and the important individual interests in privacy and personal security that it protects.

Those c harg e d w ith crime deserve a fair shake from
g overnment p r osecutors. The prosecutors’ duty is not to g ain conviction at any cost but r ather to help ensure that justice is done. Prosecutors have a critical role in the criminal justice
sy stem. O f c ourse, we ex pect prosecutors to b e able a nd
ag g r essive a dvocates, in the best traditions of the Ameri c an bar, and they may enlist man y o f t h e tools used b y private advocates as they put the g overnment’s case in i t s most appealing form. B ut our sy stem maintai n s important safeg uards of individual rig hts and this constrains the actions of the g overnment. P r o s ecutors cannot withhold fromU N I T E D S T A T E S V

. M A Z Z A R E L L A 21

disclosure information that it has th a t is favorable to the accused, nor knowing ly

present false testimony

. Similar principles constrain law enforcement. Althoug h we want vig orous enforcement of the law, we insist that law

e n f o r c ement honor the constitutional rig hts of those sus p e c t e d of crime. W e pla c e limits o n searches for e vidence to preserve individual privacy

, with the Cons t i t u tion g enerally requiring pro b a b l e cause f or searches of a private business and a warrant pr e ce d i ng the search ex cept in defined circumstances. W e i m p o se a broad mandate for fair
p r o c e d u r e i m p l e m e n t e d t h r o u g h m a n y p a r t i c u l a r requirements.

On remand, the dis t r i c t court should permit discovery suitable to ensure that the prosecu t o rs in this c ase have respect e d M a z z arella’s constitutional r ig hts. I f it is shown that they have not, and that those f a i l u r e s were neither h armless nor immaterial under o ur court’s precedents, Maz z a rella is entitled to a new trial o n o n e or more of the charg es ag ainst her.

IV

F or the foreg oing reasons, we vacate the dis trict court’s orders deny ing Maz z arella’s moti o n s f o r a new trial. This

case is remanded for further proceeding s consistent w ith this opinion.

VACATED and REMANDED.