USA v. Rosier, et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
NATHAN PEACHEY and JOHN RICK
WINER,
Defendants.
4:19-CR-40097-KES
ORDER DENYING MOTION FOR ORDER
PERMITTING REVIEW OF SEARCH
WARRANT, LETTER ROGATORY AND
SUPPORTING DOCUMENTS
(UNDER SEAL)
Defendant, Nathan Peachey, moves for an order permitting his counsel to
review and make and maintain copies of the above-captioned file in its entirety,
including the motion or application and any supporting affidavits, exhibits,
memoranda of law, or other documents filed by the United States in connection
with its motion for letter of rogatory or search warrant. Docket 63 at 1. The United
States opposes the motion. Docket 65. For the following reasons, the court denies
Peachey’s motion.
BACKGROUND
In May 2019, the United States filed a motion and memoranda requesting
the issuance of a letter rogatory to Norway to aid the government’s investigation of
Nathan Peachy. In re Letter Rogatory to Norway, MC 19-00033-KES, Dockets 1, 2.
The court granted the government’s motion and signed a letter rogatory to be
transmitted to the Norwegian government on May 17, 2019. Id. at Dockets 3, 4.
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The letter rogatory contained a request for assistance from the Norwegian
government; the court never transmitted an actual search warrant to Norwegian
authorities. Id. at Docket 4. In January 2020, the United States filed a superseding
indictment in the above-captioned case charging Peachey with conspiracy to
commit wire fraud, conspiracy to launder monetary instruments, wire fraud, and
laundering monetary instruments. Docket 6.
Peachey moves to permit his counsel to “review and make certain copies of
[case number 4:19-mc-00033] in its entirety, including the motion or application
and any supporting affidavits, exhibits, memoranda of law, or other documents
filed by the United States in connection with its application for a letter of rogatory
or search warrant[.]” Docket 63 at 1. Peachey makes this request in order to
“ascertain whether [his] Fifth Amendment rights were violated by the issuance of
the warrant or subsequent search[,]” and to “ascertain whether any of the
evidence, testimony, or exhibits submitted in support of the application for search
warrant and letter of rogatory is exculpatory of Defendant or could lead to the
discovery of exculpatory evidence.” Id. ¶¶ 8-9. John Rick Winer moves to join in
Peachey’s motion. Docket 69.
LEGAL STANDARD
Discovery in a criminal case is governed by the Federal Rules of Criminal
Procedure. Rule 16 states, in relevant part:
Upon a defendant’s request, the government must permit the defendant
to inspect and to copy or photograph books, papers, documents, data,
photographs, tangible objects, buildings or places, or copies or portions
of any of these items, if the item is within the government’s possession,
custody, or control and: (i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial;
or (iii) the item was obtained from or belongs to the defendant.
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Fed. R. Crim. P. 16(a)(1)(E). Rule 16 also states that “reports, memoranda, or other
internal government documents made by an attorney for the government or other
government agent in connection with investigating or prosecuting the case” are not
subject to disclosure. Fed. R. Crim. P. 16(a)(2).1
In addition to the rules of discovery, the prosecution is required to disclose
certain information to protect a defendant’s due process rights under the Fifth
Amendment. Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v.
Santisteban, 501 F.3d 873, 877 (8th Cir. 2007). “Under Brady v. Maryland,
‘suppression by the prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.’ ” United States v.
Pendleton, 832 F.3d 934, 940 (8th Cir. 2016) (quoting Brady, 373 U.S. at 87
(1963)). “To comply with due process, the government need only ‘disclose all
material or potentially exculpatory evidence before the trial ends.’ ” United States v.
Polk, 715 F.3d 238, 249 (8th Cir. 2013) (quoting United States v. Altman, 507 F.3d
678, 680 (8th Cir. 2007)). This applies both to exculpatory evidence and “evidence
that the defense might [use] to impeach the Government’s witnesses by showing
bias or interest.” United States v. Bagley, 473 U.S. 667, 676 (1985).
1 The Advisory Committee Notes to Rule 16 discuss confusion arising from earlier
amendments to the rule. Fed. R. Crim. P. 16 advisory committee’s note to 1997,
2002, and 2013 amendments; see also United States v. Armstrong, 517 U.S. 456,
463 (1996). When read together, these two parts of Rule 16 “make[] it clear that a
defendant’s pretrial access to books, papers, and documents under Rule
16(a)(1)(E) remain[] subject to the limitations imposed by Rule 16(a)(2).” Fed. R.
Crim. P. 16 advisory committee’s note to 2013 amendment.
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DISCUSSION
A letter rogatory is a formal request made by a court for the aid of a foreign
court in discovery or investigation. Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241, 247-48 (2004). “[A]ll courts of the United States[] [have] inherent power
to issue Letters Rogatory.” United States v. Reagan, 453 F.2d 165, 172 (6th Cir.
1971) (quoting United States v. Staples, 256 F.2d 290, 292 (9th Cir. 1958)). A letter
rogatory may be issued pre-indictment upon an ex parte motion, such as the
“issuance of search warrants to aid possible criminal prosecutions.” Id. at 173 n.4.
Because there is no special right on the part of criminal defendants to inspect a
letter rogatory, courts analyze such requests under the rules of discovery and
Constitutional due process. See generally United States v. Hutchins, 2018 WL
1695499 (E.D. Wis. Apr. 6, 2018); United States v. Saltsman et al., No. 07-CR-0641
(E.D.N.Y. Mar. 22, 2011), ECF No. 170.
Here, the United States argues that the material requested for discovery or
inspection is shielded because it is a “report[], memoranda, or other internal
government document[] made by an attorney for the government or other
government agent in connection with investigating or prosecuting the case.”
Docket 65 at 2-3; Fed. R. Crim Pro. 16(a)(2). The United States asserts that all of
the documents submitted to the court to obtain the letter rogatory were prepared
by the government’s counsel. Docket 65 at 3.
Peachey initially asserts that he and his counsel need to inspect the letter
rogatory and any supporting documentation in order to determine if any of the
information is exculpatory. But under Brady, the United States is already required
to disclose exculpatory information. Essentially, granting Peachey’s motion would
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allow criminal defendants to inspect all of the information in the government’s
case file, confirm the existence of exculpatory information that the government is
already required to disclose, and reap the benefit of having also inspected
inculpatory information to be used against the defendant. “The defendant’s
constitutional right is to know the offense with which he is charged, not to know
the details of how it will be proved.” United States v. Kendall, 665 F.2d 126, 135
(7th Cir. 1981) (citing United States v. Freeman, 619 F.2d 1112, 1118 (5th Cir.
1980)). Peachey never alleges a Brady violation, nor does he cite authority
authorizing a defendant’s inspection of records to determine for himself whether
material is exculpatory. Thus, the motion is denied as to Peachey’s due process
argument.
Next, Peachey argues that Rule 16(a)(1)(E) permits inspection of the
requested material because it is “material to preparing a defense for [Peachey], and
may be used in the government’s case-in-chief[.]” Docket 63 ¶ 10. This argument,
though, ignores the government work product exception found in Rule 16(a)(2).
See Armstrong, 517 U.S. at 463 (1996) (“[A] defendant may examine documents
material to his defense, but, under Rule 16(a)(2), he may not examine Government
work product[.]”). Peachey did not reply to the government’s assertion of the
government work product exception. Thus, Peachey’s motion is denied based on
the exemption from disclosure asserted by the government.
Finally, Peachey notes that the government has already “provided counsel
with discovery, including a Search and Seizure Report from the execution of the
search warrant” including “some of the seized documents.” Docket 63 ¶ 7. He also
notes that a motion for a bill of particulars or a motion for discovery are available
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options to obtain information he believes he has a right to inspect. Id. ¶ 10.
Peachey’s motion cannot be granted based on a broad request for inspection of
documents without establishing a right to inspection.
CONCLUSION
The prosecution is required to disclose certain information to defendants
under the Federal Rules of Criminal Procedure and the due process clause of the
Fifth Amendment. Peachey fails to identify any right under these requirements to
inspect and copy the letter rogatory and its supporting documentation. Thus, it is
ORDERED, that Peachey’s motion for order permitting review of search
warrant, letter of rogatory, and supporting documents (Docket 63) is denied. It is
FURTHER ORDERED that John Rick Winer’s motion to join in Peachey’s motion
(Docket 69) is also denied.
Dated September 24, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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