In United States v. Saffarinia, 2020 U.S. Dist. LEXIS 6735 (D. D.C. 2020), CL here, the court dealt with that issue in a general white collar crime context (not a tax crime context). (See Slip Op. 72-95.) I include certain excerpts leading to the Court’s conclusion to order the Government to identify the known Brady material and then offer that conclusion (cleaned up):
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Between June and August 2019, the government made five productions of documents to Mr. Saffarinia, which included, among other things, nearly all of the FBI's investigative case file, interview reports (i.e. FD-302s), agent notes, and witnesses' statements pursuant to the Jencks Act, 18 U.S.C. § 3500. A large portion of the electronic data consists of electronic communications, including 264,800 e-mails and over 223,000 documents from the FBI's case file, that span roughly a four-year period. And the government's production includes hard drives from two different computers allegedly owned by Person B, which contain 394 [*75] gigabytes of data. . The discovery here, consisting of more than one million records and 3.5 million pages of documents, is massive.
The government produced the documents to Mr. Saffarinia with production logs, Bates-stamping, and metadata in an electronic and searchable format that is accessible through "Relativity," an electronic database. The government included a cover letter with each production and a basic, one to two page chart summarizing the Bates-stamped [*78] numbers covered in each production. And the government represents that it explained its theory of the case to Mr. Saffarinia and defense counsel at two reverse proffer sessions.
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The government notes that Mr. Saffarinia can conduct searches for certain information using the Relativity platform, and those searches will yield the requested information and documents. The government points out that the electronic indices containing the metadata for the entire electronic production can be searched and sorted by document type, e-mail senders and receivers, date, and subject line, and can be keyword searched [*79] in either the searchable, load-ready format, or in the [Microsoft] Excel format, both of which have been provided to Mr. Saffarinia. The government highlights a "hot documents" binder containing e-mails, forms, and records that it provided to Mr. Saffarinia, which purportedly outlines the government's case. And the government notes that the production logs are the loadable, electronic at files that contain all of the metadata and underlying information.
Characterizing the government's efforts as simply dumping millions of pages on Mr. Saffarinia along with barebones production logs, Mr. Saffarinia contends that nowhere in the [*77] metadata or production logs does the government designate anything as Brady material, much less direct the defense to locations where Brady might be found.
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[*79]
In response to the Court's question if the government had any problems with Mr. Saffarinia's Brady request, the government stated that "because it is a very voluminous production . . . I think I am hesitant to say [we will] identify all the Brady by going through 1.2 million documents." The government also stated that we will do our best to identify in 302 reports and "e have tried to identify exculpatory information with respect to some of the interviews and inculpatory information. According to Mr. Saffarinia, the government has not identified a single instance of exculpatory information from among the 302s.
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[*81]
Depending on the facts and circumstances of a case, it may be appropriate to require the government to identify the Brady material in the discovery that has been produced. n15 The Government cannot hide Brady material as an exculpatory needle in a haystack of discovery materials.
n15 Persuasive authority has articulated a general rule that the government is under no duty to direct a defendant to exculpatory evidence within a larger mass of disclosed evidence. However, that case law does not preclude the Court as a matter of case management (and fairness) in ordering identification of Brady material to be done.
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[*83]
Here, the Court agrees with Mr. Saffarinia that the government's Brady obligations require it to identify any known Brady material to the extent that the government knows of any such material in its production of approximately 3.5 million [*84] pages of documents. The government attempts to distinguish Hsia [United States v. Hsia, 24 F. Supp. 2d 14 (D.D.C. 1998)] from this case. First, the government argues that Judge Friedman's order to the government in Hsia to identify Brady material within its open-file discovery, to the extent that it knew of any such documents or statements, did not require the government to "sift through the evidence in search of anything that could help the defense, as is requested here." But the Court agrees with Mr. [*84] Saffarinia that he simply asks the government to identify Brady material already known to it based on its existing knowledge of the documents it collected and reviewed in the first instance. Indeed, one of Judge Friedman's several basic propositions of Brady jurisprudence and general warnings includes it is the government's responsibility in the first instance to determine whether information in its possession is Brady material.The Court concluded (*95):
Under the circumstances of this case, this Court adopts the approach taken in Hsia and other decisions, as discussed above, directing the government to identify exculpatory information within its voluminous production. This Court exercises its discretion, in the interest of fundamental fairness and as a matter of case management, to grant Mr. Saffarinia's request that the government specifically identify any known Brady material contained in its previously-disclosed production of approximately 3.5 million pages of documents.JAT Comments:
1. The opinion mentions a reverse proffer session. There are three categories of proffer sessions--(i) the general proffer session, where the defendant (with counsel) presents a case for nonprosecution and answers questions posed by the prosecutors, (ii) defense attorney proffer sessions where the defendant is not present but used to present the case for nonprosecution, and (iii) reverse proffer where the prosecutors lay out their case (evidence and potential charges), often to set the stage to negotiate a plea deal. See generally What is a Reverse Proffer (Kropf Mosely Grand Jury Target 5/13/16), here (discussing regular defendant proffers, defense attorney proffers and reverse proffers).
2. Although not a tax crimes case, the Saffarinia Court does discuss Marinello v. United States, ___ U.S. ___, 138 S. Ct. 1101, 1107, 1110 (2018). (See Slip Op. 63 n. 12.) The context is discussing whether a criminal statute with broader text than the legislative history indicated was the reason for the statute must be constricted to the reason rather than the broader application within the plain meaning of the statute. In the footnote, after reviewing Marinello, the Court says:
Marinello is inapposite. See United States v. Luminaire Envtl. & Techs., Inc., 358 F. Supp. 3d 829, 833-34 (D. Minn. 2018) (denying defendant's argument that Marinello warrants dismissal of § 1519 charges because "[t]he language of the statute in Marinello, 26 U.S.C. § 7212(a), employs much broader language than that of 18 U.S.C. § 1519"). "Marinello simply does not plow new ground." Id. at 834.3. Prior blogs on this subject are:
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