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United States v. Loewen

United States District Court, D. Kansas

January 9, 2015

TERRY L. LOEWEN, Defendant.


MONTI L. BELOT, District Judge.

Before the court are defendant's motion for discovery and the government's response (Docs. 65, 66, 71 and 73). The court requested clarification by the government on two points in its response and the government has done so (Docs. 71 and 74). The court is now prepared to rule.


The court and the parties are familiar with the charges, the general background of the case and its present posture. Specific aspects of the case will be discussed, as necessary, as well as applicable law.

The court compliments counsel on their present submissions and the professional way they are handling this case.

Redacted Materials

Defendant seeks disclosure of FBI electronic communications which have been redacted by "blacking out" parts of documents. Defendant has identified three categories[1] of documents: (1) background information; (2) "session notes" and (3) factual information relating to the "session notes." With a couple of exceptions, the documents in each category are dated prior to defendant's arrest.

Defendant has announced his intention to pursue an entrapment defense. Presumably because the majority of documents predate his arrest, defendant postulates that the unredacted documents may reveal how the government began its investigation of defendant, the goals of the investigation and how the FBI planned to "manage" defendant. In other words, defendant believes that the unredacted documents should be produced under Fed. R. Crim. P. 16(a)(1)(E)(i) or (iii) and Brady v. Maryland because they may disclose information material to the issue of predisposition. (See Tenth Circuit Pattern Instruction 1.27).

The government opposes defendant's demand for unredacted documents. It asserts that there was no "preinvestigation" of defendant; rather it conducted a "full investigation" from the start. It points out that it already has disclosed much "unredacted" information as well as how defendant first came to the government's attention. It acknowledges its awareness of its Brady obligations and denies that Rule 16 requires disclosure of the unredacted documents.

The court has reviewed the redacted documents. The majority of the documents appear to monitor defendant's email and Facebook postings. One of the exhibits reports the names of persons who have contacted defendant's son. Another document reflects that the government provided defendant with a laptop computer in the course of the investigation. Finally, several documents summarize contacts with defendant's prior employer, Beechcraft, and officials at Mid-Continent Airport.

Insofar as defendant bases his request for disclosure on Brady, it always has been, and remains, this court's position and practice that in pretrial discovery disputes (as opposed to post-trial allegations of Brady suppression), it is the government's job to search its files for Brady material and to provide that material to defendant without specific orders from the court. (See this court's General Order of Discovery (Doc. 10)). Even when, as here, the government has offered to provide the unredacted material for ex parte inspection, the court has declined the offer. The court's reasons are straightforward: first, the government knows its obligations under Brady and also knows what will happen if it fails to meet those obligations. (United States v. Kobagaya, case number 09-10005, was dismissed by this court at the government's request because of a Brady violation, even though this court is satisfied that the violation was unintentional.) Second, except in the most obvious situations, (e.g., a statement by a person that he, not the defendant, committed the crime) the court is not in a position to know what information a defendant's counsel might consider to fall within Brady.

Turning to Rule 16 and specifically sections (a)(E)(i) and (iii), the documents in question, with the exception of the email and Facebook postings, were not obtained from, nor did they belong to, defendant. Thus, they are documents expressly not subject to disclosure in accordance with Rule 16(a)(2).

The court acknowledges that the word "documents" appears in Rule 16(a)(1)(E) [which requires disclosure] and (a)(2) [which exempts disclosure]. Clearly though, the rule is not talking about the same documents. The word "documents" in Rule 16(a)(1)(E), when read in context with the other items named, covers documents created by a defendant, including documents which memorialize a defendant's statements. The government represents that these have been provided. The documents in section (a)(2) are those created by the government, as discussed in the Advisory Committee Notes to the 2013 amendments. The documents in which the redactions appear fall with section (a)(2) and are not subject to disclosure.

Defendant nevertheless argues for disclosure under section (a)(1)(E)(i), claiming that the unredacted government documents may be "material" to his announced defense of entrapment. To be "material, " a defendant must demonstrate "some indication that the pretrial disclosure would have enabled the defendant to significantly alter the quantum of proof in his favor." United States v. Scott, No. 92-6272, 1993 WL 411596 (10th Cir. Oct. 8, 1993) (applying the previous version of the rule) (internal citations omitted). The same showing is required today by other courts of appeal. See, e.g., United States v. Clingman, No. 11-6263, 2013 WL ...

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