302 F.R.D. 300
S.D.N.Y.2014Background
- Defendant Johnny Morgan indicted under 18 U.S.C. § 922(g) for being a felon in possession of a firearm; first trial ended in a mistrial; retrial scheduled for November 3, 2014.
- Low copy number (LCN) DNA results from the firearm were a contested issue; the government agreed not to introduce DNA evidence at the first trial; Morgan moved to exclude LCN DNA evidence and requested a Daubert hearing, which the court held.
- Morgan sought broad FBI records about the FBI’s views and policies on LCN DNA testing, arguing the FBI is part of the DOJ prosecution team and that such records are subject to disclosure under Rule 16, Brady, and Giglio.
- The government produced all communications in its possession between the U.S. Attorney’s Office (SDNY) and FBI personnel concerning LCN testing and represented it had no additional FBI documents in its possession.
- The court reviewed email exchanges and call notes showing limited consultations: FBI scientists and counsel provided general information about LCN practices and CODIS policy but did not analyze case-specific evidence or make prosecutorial strategic decisions.
Issues
| Issue | Morgan's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether FBI (or DOJ-wide FBI lab) is part of the prosecution team such that its materials are Brady/Rule 16/Giglio material | FBI is an arm of DOJ; its records on LCN testing are material and must be produced | FBI personnel consulted only as subject-matter experts; entire FBI is not part of prosecution team; obligation limited to materials in prosecutors' possession | Court held FBI was not a member of the prosecution team for purposes of broad imputation; limited imputation only to the specific FBI employees’ communications with prosecutors |
| Scope of disclosure: Must DOJ produce all FBI records about LCN policy, methods, and deliberations | Morgan sought production of all FBI records about LCN testing, communications with OCME, SWGDAM, and policy decisions | Government produced communications in its possession between SDNY prosecutors and FBI; it need not produce broader FBI documents not in prosecutors’ possession | Court denied motion to compel broad production; limited disclosure obligation to communications between prosecutors and consulted FBI employees |
| Whether the government satisfied its disclosure obligations by producing communications | Morgan argued he lacked essential facts and that prosecutors may possess additional notes or calls | Government represented it produced all documents in its possession concerning communications with FBI on LCN; no evidence FBI employees accessed broader FBI files or participated in prosecution strategy | Court accepted government’s representation and found disclosure duties satisfied as to communications in prosecutors’ possession; denied motion to the extent it sought broader FBI materials |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose favorable material evidence to the accused)
- Giglio v. United States, 405 U.S. 150 (1972) (impeachment information must be disclosed under Brady principles)
- United States v. Avellino, 136 F.3d 249 (2d Cir. 1998) (prosecutor presumed to know evidence gathered by office; imputation limited to certain circumstances)
- United States v. Meregildo, 920 F. Supp. 2d 434 (S.D.N.Y. 2013) (whether another agency is part of the prosecution team depends on level of interaction)
- United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (government employee serving limited expert role not part of prosecution team)
- United States v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) (close collaboration between agencies can render materials Brady/Rule 16)
- United States v. Ghailani, 687 F. Supp. 2d 365 (S.D.N.Y. 2010) (participation in key decisionmaking can render officials part of prosecution team)