IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA )

 )

v. ) CRIMINAL NO. 13-0117-WS

 )

DAVID PETERSEN, )

 )

Defendant. )

ORDER

This matter comes before the Court on defendant David Petersen’s pro se filing styled 

“Motion for Reconsideration and Clarification of the Denial of the Motion for Immediate 

Disclosure of Favorable Evidence and to Enforce the Court’s Discovery Order” (doc. 208).

On December 29, 2015, the undersigned entered an Order (doc. 207) denying Petersen’s 

motion for disclosure of 13 categories of what he termed “exculpatory materials.” The 

December 29 Order chronicled multiple procedural and substantive defects in Peterson’s motion, 

whereby he effectively asked to go on a post-trial fishing expedition under the auspices of Brady. 

The December 29 Order is clear in terms of both reasoning and conclusions; therefore, 

Petersen’s present Motion for Clarification is denied.

In his Motion for Reconsideration, Petersen focuses on just one of the 13 categories of 

information demanded in his previous motion for disclosure. In that original motion, Petersen 

sought “all of the information the Securities and Exchange Commission (‘SEC’), in their sole 

discretion, indicates [sic] the defendant was a party to the named securities violations, and 

related charges in this case.” (Doc. 202, at 11.) In his Motion for Reconsideration, Petersen 

amplifies this request by explaining (for the first time) that it centers on the SEC’s investigation 

of a person named Stephen L. Kirkland. Petersen indicates that he “did have direct 

communicaiton [sic] with Kirkland,” and theorizes that the SEC’s decision not to prosecute 

Petersen in connection with the Kirkland investigation is exculpatory in this case.

Notwithstanding Petersen’s belated modification of and elaboration on his Brady

argument as it relates to SEC records, the December 29 Order’s conclusions remain fully intact

for several reasons. First, Petersen has admitted that “evidence provided in Discovery to date ... 

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shows the SEC has investigated this case and determined no criminal or civil violations or intent 

to violate any security laws by the defendant.” (Doc. 202, at 13.) Thus, it appears that he has 

previously received “in Discovery” the very information he now claims was suppressed. 

Second, Petersen says he wants access to SEC records that will confirm “communications by the 

defendant to Mr. Kirkland, warning him to cease and decist [sic] any and all communications 

relating to Westover.” (Id. at 4.) Obviously, Petersen should possess his own written or 

electronic communications with Kirkland, and could have testified to any communications at 

trial to the extent that such information was in any way exculpatory of and relevant to the 

charges on which he was tried herein. Third, Petersen appears to be assuming (with no factual 

basis whatsoever) that the SEC made some express, formal determination in its own 

investigation that Petersen was not culpable in the Kirkland matter. He offers neither facts nor 

evidence to support such speculation. Even if Petersen had made such a showing, he has not 

explained (and the Court does not perceive how) an SEC finding of “no culpability” as to 

Petersen in the Kirkland matter would be exculpatory, admissible evidence as to the criminal 

charges against Petersen here, which were not predicated on any fraudulent activities by 

Kirkland. On its face, Petersen’s theory that the SEC’s finding (if there was one) that he did not 

participate in the Kirkland fraud is somehow evidence that he did not perpetrate the fraud with 

which he was charged in the Indictment is meritless. Fourth, Petersen’s suggestion that an SEC 

administrative decision not to sue or prosecute him deprives this Court of jurisdiction is 

frivolous.

The bottom line is this: The December 29 Order set forth in detail the elements that a 

defendant must prove to establish a Brady violation. Nothing in the Motion for Reconsideration 

alters that Order’s conclusion that Petersen has failed to demonstrate the existence of these 

elements as to the challenged SEC records. There are significant questions as to whether the 

SEC records that Petersen seeks (specifically, a SEC determination that exonerates him) even 

exist. At least some of the evidence Petersen requests is, by his own admission, in his 

possession, and was available to him at trial. And there is no reasonable probability that the 

outcome of Petersen’s trial would have been different had the subject SEC records been 

disclosed, given the significant evidentiary and relevancy obstacles identified above. In short, 

Petersen seeks to use Brady as a post-trial discovery device to obtain SEC records pertaining to a 

different investigation, looking for a final agency determination that likely does not exist, and 

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that would be neither relevant nor admissible on any cognizable theory at trial in this case even if 

it did exist, all after failing to use at trial related evidence that he admits he did have. 

For all of the foregoing reasons, as well as those set forth in the Order entered on 

December 29, 2015, the Motion for Reconsideration and Clarification (doc. 208) is denied.

DONE and ORDERED this 29th day of January, 2016.

s/ WILLIAM H. STEELE 

CHIEF UNITED STATES DISTRICT JUDGE

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