DOJ-OGR-00022042.jpg

Case 1:19-cr-00830-AT Document 33 Filed 04/09/20 Page 19 of 38 “favorable” under Brady and must be disclosed by the government. Jd. at 676-77; see also Giglio v. United States, 405 U.S. 150, 154-55 (1972); In re Sealed Case No. 99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 1999). Moreover, the defense is already in possession of witness statements that one or both of the defendants in this indictment may have conducted rounds or inmate counts on August 10, 2019. Accordingly, there is a logical assumption that there might be additional exculpatory statements contained in the Inspector General’s report or certain internal reports maintained by the BOP internal affairs division or other government agencies that were conducting a contemporaneous investigation with FBI. The prosecution must produce to the defense not only all favorable evidence that is admissible, but also all evidence “that is likely to lead to favorable evidence that would be admissible.” Safavian, 233 at 17 (quoting United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198- 99 (C.D,Cal, 1999)). Just as with Rule 16 disclosure, the government must interpret its Brady obligations broadly. “Where doubt exists as to the usefulness of the evidence to the defendant, the government must resolve all such doubts in favor of full disclosure.” fd. (citing United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir. 1988). Without question, the Brady disclosure obligation is broader than Rule 16 because it requires production not just of documents, but also of information known to the government that has been documented in some fashion. In Safavian, the court explained the materiality standard under Brady that applies to pretrial discovery: [T]he government must always produce any potentially exculpatory or otherwise favorable evidence without regard to how the withholding of such evidence might be viewed-- with the benefit of hindsight--as affecting the outcome of the trial. The question before trial is not whether the government thinks that disclosure of the information or evidence it is considering withholding might change the outcome of the trial going forward, but whether the evidence is favorable and therefore must be disclosed. 15 DOJ-OGR- 00022042