USA v. Dawson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES,
Plaintiff,
vs.
DUANE F.K. DAWSON, and
ZACHARY KEANE,
Defendants.
Crim. No. 24-00089 MWJS
ORDER REGARDING THE
GOVERNMENT’S EX PARTE
SUBMISSION OF MATERIALS FOR THE
COURT’S IN CAMERA REVIEW
INTRODUCTION
The government has submitted materials to the court ex parte for its in camera
review. In its submission, the government notes that it intends to produce certain
items, but requests that it be allowed to make this disclosure on an attorneys’ eyes only
basis and under a protective order. The government also asks for a ruling that the
remainder of the materials submitted for in camera review need not be produced.
Having conducted an in camera review of the relevant materials, the court grants
the government’s request. The court enters a protective order (with terms spelled out
below), orders that the disclosed materials must be handled by defense counsel
consistently with that protective order and on an attorneys’ eyes only basis, and rules
that the government need not produce any of the materials the court reviewed in camera
beyond those it has marked for production.
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These rulings are, however, without prejudice to defense counsel asking the
court to revisit them once they have had an opportunity to review the materials the
government has agreed to produce.
And while the government need not produce any of the in camera materials apart
from what it has already agreed to produce, the court reserves ruling on a different
question: whether the government must produce information that the materials suggest
is readily available to it. That information—namely, the identities of certain law
enforcement officials who appear under pseudonyms or redactions in the materials to
be disclosed—is at least possibly material, and the court will reserve ruling on whether
it must be produced until defense counsel have had an opportunity to be heard.
BACKGROUND
A. 	Applicable Law
In criminal cases, the government has a constitutional obligation to search the
personnel files of testifying law enforcement officers and “disclose information
favorable to the defense that meets the appropriate standard of materiality.” United
States v. Henthorn, 931 F.2d 29, 30-31 (9th Cir. 1991) (quoting United States v. Cadet, 727
F.2d 1453, 1467 (9th Cir. 1984)). To ensure that the United States Department of Justice
complies with these critical constitutional requirements, it has “encouraged” its
prosecutors “to provide discovery broader and more comprehensive” than needed—for
example, to produce information even if it would not meet the constitutional standard
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of materiality. Justice Manual, § 9-5.000 (Issues Related to Discovery, Trials, And Other
Proceedings).1
But there are occasions when the government concludes it has good reason not to
produce more than what the constitution requires.2 When that happens, the
government risks having its cleats hit the chalk. Materiality is a notoriously difficult
standard to assess—it requires prosecutors and their agents to think carefully and
imaginatively about the possible arguments and lines of investigation the defense might
conceivably pursue—and a failure to adequately perform this delicate task can imperil
an otherwise appropriate prosecution.
The Ninth Circuit has offered some relief: when “the prosecution is uncertain
about the materiality of information within its possession,” it may “submit the
information to the trial court for an in camera inspection and evaluation.” Henthorn, 931
F.2d at 31 (quoting Cadet, 727 F.2d at 1467-68); see also United States v. Garg, No. CR21-
0045, 2023 WL 2459615, at *1 (W.D. Wash. Mar. 10, 2023) (explaining that “[a]lthough
defendants have no right to review materials to determine if they are exculpatory or
1 	The relevant section of the Justice Manual is available here:
https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-court-
proceedings#9-5.002 (last visited on June 23, 2026) [https://perma.cc/L5WM-JFXX].
2 	And there are, of course, occasions when the government only realizes, after the
fact, that it has not made the prophylactic disclosures that its internal policies call for.
In those cases, the government puts itself in the unenviable position of having to defend
a decision or verdict based on the argument that previously undisclosed information
was not material.
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have impeachment value, the Government may submit such materials to the Court for
in camera review if it believes the materiality determination is a close call”).
This in camera review process helps to promote the dual aims of “safeguarding
the privacy interests of testifying law enforcement officers while allowing the court to
inspect” for materials that must be constitutionally produced. United States v. Padilla-
Lopez, No. 20-50302, 2023 WL 8594402, at *2 (9th Cir. Dec. 12, 2023). But the task of
assessing the materiality of information favorable to the defense is no easier for a court
to perform—and, indeed, may often be more difficult, because a court generally will
know far less about the granular details of a case than the government. And, to
complicate matters further, the in camera review process only works if the materials
submitted to the court ex parte remain under seal. For that reason, the Ninth Circuit has
held that when a district court agrees that the government need not disclose to the
defense materials submitted ex parte for the court’s in camera review, the district court
may properly “maintain[] the application under seal”; the Ninth Circuit may then
conduct its own “independent review of the ex parte application” in the event of any
appeal. Id. This all means, however, that the district court is called on to make rulings
on the scope of discovery obligations without the usual benefit of adversarial briefing
and argument.
A healthy respect for the difficulties of this task should, ordinarily, lead a district
court to be circumspect in its ability to offer an answer when the government makes an
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ex parte submission. But when it is possible to perform the role that the Ninth Circuit
has required us to play, we should do so.
B. 	Procedural History
On May 29, 2026, the government moved for permission to invoke the Ninth-
Circuit-approved in camera review process. Dkt. No. 191. The court granted that
request on June 1, 2026, Dkt. No. 192, and the government made an ex parte submission
of materials for the court’s in camera review that same day, Dkt. No. 204 (sealed). The
court sought additional information, Dkt. No. 193 (sealed), and the government timely
responded on June 18, 2026, Dkt. No. 205 (sealed). Consistent with the Ninth Circuit’s
guidance, these materials will remain under seal, but have been made a part of the
formal court record and will be available for the Ninth Circuit’s independent review in
the event of any appeal.
DISCUSSION
A. 	The Protective Order and Attorneys’ Eyes Only Handling
Part of the government’s ex parte submission concerns materials it intends to
produce to the defense: a letter to defense counsel dated June 18, 2026 (and marked as
Exhibit 4 in the government’s June 18, 2026, supplemental ex parte submission), and an
additional document attached to that letter as “Exhibit 1.” Dkt. No. 204. The
government requests permission to produce these materials to the defense under the
terms of a protective order and for handling on an attorneys’ eyes only basis.
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District courts have broad authority to order to enter protective orders and
otherwise to “restrict” and prescribe “appropriate” conditions for the handling of
discovery in criminal cases. Fed. R. Crim. P. 16(d)(1); see also Seattle Times Co. v.
Rhinehart, 467 U.S. 20, 36 (1984) (recognizing that restrictions on the handling of
discovery productions are not subject to “heightened First Amendment scrutiny”). And
the court is satisfied that the government’s ex parte submissions have shown sufficient
“good cause” for this relief, at least at this stage. Id.
The court therefore orders that the materials the government produces under this
order be handled by defense counsel in this case on an attorneys’ eyes only basis, and
with the following protective order terms: defense counsel are prohibited from
providing any written materials relating to the disclosure to either Defendant, are
prohibited from disclosing the written materials or any information therein to anyone
not a member of the defense team (and any member of the defense team who receives
the written materials or information are bound by these same restrictions), and are
prohibited from using the written materials or information in any proceeding other
than this case. Finally, defense counsel are ordered to return the written materials to
the United States Attorney’s Office or destroy them upon conclusion of this proceeding.
Defense counsel have not been heard on these restrictions. Accordingly, the
court’s ruling is made without prejudice to a future application to modify or lift them.
Once defense counsel have had an opportunity to review the produced material, they
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may raise any objections they see fit to these restrictions. They may also request
additional restrictions if they wish.
B. 	The Remaining in Camera Materials
The government’s ex parte submission also provided the court with additional
materials, beyond those identified above for production to the defense. And the
government seeks the court’s ruling that it need not produce any of those additional
materials. Having conducted an in camera review of the remainder of the materials, the
court agrees that they are not material and need not be produced. That is to say, the
court concludes that the government will satisfy its constitutional discovery obligations
by producing its draft letter dated June 18, 2026, and the letter’s “Exhibit 1,” under the
terms of the protective order this court has entered. Given what the government has
already agreed to produce, the court concludes that the remainder of the in camera
materials is not constitutionally material.
The court cautions that it makes this ruling based on the information currently
available to it. If the government becomes aware of additional information or
developments that might alter the significance of information the court is authorizing it
not to produce, it must reassess the in camera materials and consider afresh whether
they must be produced. It may also seek the court’s further in camera review in the
event of future developments. But the government cannot rest on this ruling if
circumstances materially change.
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That said, this is a case in which at least one of the defendants—Defendant
Duane F.K. Dawson—has been unusually open, in pretrial conferences, about the
expected nature of his defense at trial. And the court has already held an evidentiary
hearing in connection with Dawson’s suppression motions, in which the court heard
evidence concerning the charged offenses. All of this has allowed the court to assess the
materiality of the information it reviewed in camera to a degree that might not typically
be possible.
Nonetheless, recognizing that an assessment of this sort is challenging for a
court—which invariably has less information about a case than the government—the
court emphasizes that it remains possible that, in the face of additional information, the
court will revisit this ruling. Furthermore, once defense counsel have had an
opportunity to examine the disclosures the government does make, they are free to
argue that additional disclosures should be made, and the court will consider any such
arguments with an open mind.
C. 	The Additional Information
There is, however, one matter on which the court reserves ruling. Some of the
materials the government submitted for this court’s in camera review (including
materials it will be disclosing to the defense under the terms of the court’s protective
order) include pseudonymous or redacted names for certain law enforcement officers.
Although the prosecutors handling this matter represent that they do not know all the
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identities of these shielded officers, it appears that one of the government’s case agents
knows who they are. And the government has not interviewed any of these law
enforcement officers, and has not sought to determine whether they would be willing to
speak to the defense. It follows that the government does not know whether these
individuals would, if interviewed, provide additional information that would be
favorable to the defense—and possibly material in a constitutional sense.
On this record, the court cannot rule out that the government’s constitutional
discovery obligations require it to produce to the defense the one name of which the
prosecutors are already aware, as well as to have their case agent disclose the additional
names of which the prosecutors are not currently aware. At a minimum, it is
conceivable that the government must determine whether any of these officers would
be willing to speak to the defense. (If they are not, then disclosure of their identities
may not constitute material information under the circumstances).
Given these uncertainties in the record, the court defers ruling on this issue, and
invites further briefing once defense counsel have had an opportunity to review the
materials the government has committed to produce.
CONCLUSION
For the foregoing reasons, the court enters the protective order requested by the
government, with the terms outlined above and with the requirement that the disclosed
materials be handled consistent with those terms and on an attorneys’ eyes only basis.
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The court further rules that—based on the information currently available to the court—
the government need not make any further disclosure of the materials it submitted to
the court for its in camera review. The court reserves ruling on the question of whether
the identities of pseudonymous individuals mentioned in these materials should be
disclosed.
Defense counsel are invited to contact the courtroom manager to set a time for a
status conference once they have had sufficient time to review the government’s
disclosure.
IT IS SO ORDERED.
DATED: June 24, 2026, at Honolulu, Hawai‘i.
Crim No. 24-00089 MWJS, United States v. Duane F.K. Dawson et al.; ORDER
REGARDING THE GOVERNMENT’S EX PARTE SUBMISSION OF MATERIALS FOR
THE COURT’S IN CAMERA REVIEW
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