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2052

Contacts with the Intelligence Community Regarding Criminal Investigations or Prosecutions

  1. Definitions

    Discovery material: Material and information, including evidence to be offered at trial, that each party in a criminal case is obligated to provide to the opposing party in advance of trial pursuant to Fed. R. Crim. P. 16 and the case law, including Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).

    The discussion that follows in this chapter covers some very basic legal principles, with which most prosecutors will already be very familiar, as well as certain complex and developing areas of the law. It should be read in the context of how those well-known issues should be viewed when classified information, and therefore national security issues, are at stake in a criminal case. The Criminal Division's Internal Security Section is available to all Assistant United States Attorneys (AUSAs) for consultation on these important matters.

    In pertinent part, Rule 16(a)(1) requires the government "(A) . . . [to] disclose to the defendant . . . any relevant written or recorded statement made by the defendant . . . within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government;" and "(C) . . . [to] permit the defendant to inspect and copy . . . papers, documents, photographs, tangible objects . . . which are within the custody or control of the government, which are material to the preparation of the defendant's defense or which are intended for use by the government as evidence in chief.

    Prudential Search: A search of Intelligence Community (IC) files, usually prior to indictment, for pre-existing intelligence information undertaken because the prosecutor and the Department have objective articulable facts justifying the conclusion that the files in question probably contain classified information that may have an impact upon the government's decision whether to seek an indictment and, if so, what crimes and defendants should be charged in that indictment. A prudential search should include a search for Brady material and other information that would be subject to the government's post-indictment discovery obligations. Upon an appropriate threshold showing of necessity by the prosecutor, a prudential search may include a narrowly drawn request for specific investigative leads to assist the prosecutor to reduce or eliminate the relevance of classified information to his/her case.

  2. When is the prosecutor compelled to search for discovery material within IC files?

    Whether the IC files must be reviewed for discovery material in a particular criminal case is a function of several queries. The first is:

    1. Whether the IC has been an active participant in the investigation or prosecution of the case.

      It is well-settled that a prosecutor must search at least the files within the prosecutor's own office for Brady material. Giglio, 405 U.S. at 154. That affirmative obligation also applies to the files of the investigative and other prosecutorial agencies that comprise the "prosecution team" in a given case. United States v. Antone, 603 F.2d 566 (5th Cir. 1979). Prosecutors must be aware that the scope of their duty to search is not measured by that of the prosecutor's personal knowledge. Knowledge of discoverable information unknown to the prosecutor but known to a law enforcement agent on the prosecution team may be imputed to the prosecutor. United States ex rel Smith v. Fairman, 769 F.2d 386, 391-92 (7th Cir. 1985) (knowledge of police ballistic report reflecting inoperability of gun defendant ...charged with shooting at police officers imputed to prosecutor); Cary v. Duckworth, 738 F.2d 875,878 (7th Cir. 1984)(knowledge of cooperation agreement between informant/witness and DEA agents imputed to prosecutor).

      Some courts have advanced, as a theory for defining the membership of the "prosecution team," the principle of "alignment." E.g., United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir. 1992); United States v. ex rel. Smith v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985). Under that theory, an investigative or prosecutive agency becomes aligned with the government prosecutor when it becomes actively involved in the investigation or the prosecution of a particular case. When that occurs, the agency's files are subject to the same requirement of search and disclosure as the files of the prosecuting attorney or lead agency. E.g., United States v. Antone, 603 F.2d at 570 (in joint Federal-state prosecution, knowledge of state agents assigned to case will be imputed to the Federal agents and prosecutor United States v. Burnside, 824 F. Supp. 1215, 1257-58 (N.D. Ill. 1993) (Federal prison personnel's knowledge of government witness' drug use while in witness protection program imputed to prosecutor).

      On the other hand, the mere fact that an agency has been solicited to produce documents generated independently of the criminal case does not necessarily result in the alignment of that agency with the prosecutor. United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986) (Federal prosecutor not attributed knowledge of two documents that state agency failed to produce in response to request from Federal prosecutor). For practical purposes, the alignment principle is merely another articulation of the "prosecution team" argument and offers little additional guidance to prosecutors and agencies seeking to define their discovery obligations to a defendant prior to trial. Like the "prosecution team" theory, alignment has been used less to determine in advance the necessary scope of a prosecutor's search and more to establish an arbitrary point at which a prosecutor will be held responsible after the fact for discoverable information unknown to him before or during trial. Moreover, a government agency does not necessarily fall into alignment with the prosecutor's office, thus requiring a search of its files, simply because it is an agency of the same government and arguably could have exculpatory evidence regarding the defendant. See United States v. Trevino, 556 prepared by probation office).

      When an IC component has actively participated in a criminal investigation or prosecution -- that is, has served in a capacity that exceeds the role of providing mere tips or leads based on information generated independently of the criminal case -- it likely has aligned itself with the prosecution and its files are subject to the same search as would those of an investigative law enforcement agency assigned to the case. For example, alignment likely exists where an intelligence agency has provided information to a law enforcement agency or to the prosecution, which information serves independently as a factual element in support of a search warrant, arrest warrant, indictment, etc.

    2. Assuming that the IC had no active involvement in the criminal investigation, when must the IC files nevertheless be included in a prosecutor's discovery search?

      The question, stated more broadly, is, in addition to the agencies immediately involved in a criminal case, what is the required scope of a prosecutor's search for discoverable material? Some courts have answered this query, in general, by holding that the government's search must extend to sources that are readily available to the government and that, because of the known facts and nature of the case, should be searched as a function of fairness to the defendant. United States v. Perdomo, 929 F.2d 967, 970-71 (3d Cir. 1991); United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980); United States v. Burnside, 824 F. Supp. 1215 (N.D. Ill. 1993).

      In the context of a defense demand for discovery, one court has held that the breadth of such a duty is to be measured against a sliding scale. United States v. Brooks, 966 F.2d 1500 (D.C. Cir 1992). Under Brooks, the government is required to conduct a search if the defendant has made an explicit request that certain files be searched, and there is a non-trivial prospect that the examination of those files will yield material exculpatory information. Id. at 1504. As the connection between the case and the files that the defendant wants searched becomes less clear, the court must increasingly weigh the burden that the requested search will impose upon the government, and the violence that may be done to the government's interest in limiting access to files containing relevant information, against the prospect that the search will reveal exculpatory information. Id.; United States v. Robinson, 585 F.2d 274, 280-81 (7th Cir. 1978 (en banc), cert. denied, 441 U.S. 947 (1979).

      It follows that the broader the request and the greater the difficulty to perform the requested search, the greater the requestor's burden is to demonstrate that the search will be fruitful. Mere speculation that a government file may contain Brady material is never sufficient to meet that burden. United States v. Navarro, 737 F.2d 625, 631 (7th Cir. 1984).

      1. Brady

        Assuming no demand for specific discovery, there remains the question of when the prosecutor is nevertheless required to search IC files. The relevant factors for answering that query are:

        1. whether the prosecutor has direct or reliable knowledge of potential Brady and/or other discovery material in the possession of the IC; or

        2. assuming no such knowledge by the prosecutor, whether there nevertheless exists any reliable indication suggesting that the IC possesses evidence that meets the Brady case law standard of materiality.

        A positive answer to either of these questions means that the prosecutor "needs to know" and must conduct a suitable search of the IC files. If both queries can be answered in the negative, there is no justification for a search of IC files.

        In Brady, the Supreme Court held that a prosecutor's suppression "...of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court extended the rule announced in Brady to situations in which the defense had made no specific request, but at most a general request for exculpatory material.

        Under Agurs, materiality of particular information turned on whether it pertained to perjured testimony at trial, would have been responsive to a specific or general request from the defense, or, in the absence of a request, should have been disclosed to avoid violating the defendant's right of due process. Id. at 108. The Supreme Court revisited and modified the Agurs materiality thresholds in United States v. Bagley, 473 U.S. 667 (1985). In Bagley, the Court, after agreeing that one standard of materiality should govern both the "specific request" and the "no request" situations discussed in Agurs, held that "...a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Id. at 678. Thus, regardless of the specificity of the defendant's request, after Bagley, the defendant seeking post-trial relief for violation of Brady bears the burden of showing that the suppressed evidence would have raised a reasonable doubt as to guilt. The Bagley court also re-emphasized that Brady did not create a constitutionally required right of discovery in favor of the defendant or any obligation of the prosecutor to allow defense counsel to review his files. Rather, the prosecutor need only disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial. Id. at 675. That necessarily does not include inculpatory evidence, no matter how helpful such evidence might be to the defendant in preparing his/her defense. See United States v. Polowichak, 783 F.2d 410, 414 (4th Cir. 1986). Nor is the government required to search for or disclose to the defendant exculpatory evidence of which the defendant is aware or should be aware. See United States v. Ramirez, 810 F.2d 1338, 1343 (5th Cir.), cert. denied, 481. U.S. 1072 (1987); Gov't Of The Virgin Islands v. Martinez, 831 F.2d 46, 49-50 (3d Cir. 1987). However, the government should produce as Brady material the transcript of its witness' prior testimony as a defendant if that testimony is inconsistent with that witness' anticipated testimony as a government witness. See United States v. Isgro, 974 F.2d 1091, 1093-95 (9th Cir. 1992).

        In Kyles v. Whitley, 115 S.Ct. 1555 (1995), the Supreme Court, reversing a murder conviction, defined the Bagley test as follows: "Bagley held that regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the results of the proceeding would have been different." (Citations omitted.) Id. at 1565.

        In elaborating on the meaning of reasonable probability, the Court stated:

          Bagley's touchstone of materiality is a 'reasonable probability' of a different result and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the Government's evidentiary suppression 'undermines confidence in the outcome of the trial.' Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

          . . . One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

        Id. at 1566.

        The Court, after defining the Bagley standard, stated the prosecutorial duty:

          While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. (Emphasis added.) But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87, 83 S.Ct. at 1196-1197), the prosecution's responsibility for failing to disclose known, favorable evidence rising to a material level of importance is inescapable.

        Id. 1567-1568.

        In summary, the government prosecutor's affirmative obligation to search the IC files for Brady material is not triggered merely by the defendant's (or the prosecutor's) speculation that such files contain discoverable information. Nor is the government required to search the files of every intelligence agency that conceivably,may have exculpatory information. United States v. Trevino, 556 F.2d at 1270-72. On the other hand, where there is an explicit request for discovery that has been approved by the court, the scope of the search may have to be broadened. It may not reasonably be confined to merely the prosecution team if there are known facts that support the possible existence elsewhere of the requested information. See, e.g., United States v. Brooks, 966 F.2d at 1504 (scope of government's search must include anywhere there is non-trivial prospect of finding exculpatory information in response to specific defense request); United States v. Perdomo, 929 F.2d at 970 (prosecutor may not be excused from providing discoverable information that is readily available to it); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973) (prosecutor cannot avoid disclosing personnel file of a government employee/witness merely by avoiding actual possession of the file), rev'd on other grounds, United States v. Henry, 749 F.2d 203 (5th Cir. 1984). But cf., United States v. Sanchez, 917 F.2d 607 (1st Cir. 1990) (finding of harmless error where AUSA was unaware of local police department's payments to FBI informant/government witness and therefore did not provide them in discovery).

      2. Other discovery material.

        If the prosecutor has actual or implied knowledge that the IC files contain Rule 16, Jencks, Brady, or Section 3504 materials, the prosecutor must search the IC files.

    3. When a search of IC files is not constitutionally compelled or merely prudent, are there other circumstances when a prosecutor must initiate contact with the IC?

      An event which requires that contact with the IC is when the prosecutor, whether pre- or post-indictment, acquires information that suggests the defendant may have had, or as part of his/her defense at trial will assert that he has had, contacts with the IC or with an intelligence component of the LEC. The experience of recent prosecutions suggests that the defense will likely be some derivative of the public authority defense as recognized by Fed. R. Crim. P. 12.3. See 9-90.260. In these circumstances, the prosecutor should assume that national security issues will be implicated and ask his/her office's National Security Coordinator to notify the ISS in accordance with 9-90.101 (the September 21, 1994, memorandum by the DAG regarding National Security), and 9.90-103 (the May 5, 1995, memorandum by the DAG identifying focal points for contacts with the IC), and USAM 9-90.210 (Contacts with the Intelligence Community Regarding Criminal Investigations or Prosecutions).

    4. Other circumstances in which a prosecutor should consider initiating a search of IC files.

      As a general rule, a prosecutor should not seek access to IC files except when, because of the facts of the case, there is an affirmative obligation to do so. There are, however, certain types of cases that may fall outside of that rule in which issues relating to national security and/or classified information are likely to be present, e.g., those targeting corrupt or fraudulent practices by middle or upper officials of a foreign government; those involving alleged violations of the Arms Export Control Act or the International Emergency Economic Powers Act; those involving trading with the enemy, international terrorism, or significant international narcotics trafficking, especially that if they involve foreign government or military personnel; and those in which one or more targets are, or have previously been, associated with an intelligence agency. The National Security Coordinators in each office should carefully educate the prosecutors in their respective offices regarding cases that should be proactively reviewed for a possible nexus to the IC.

      In these and similar cases, a careful consideration of the facts of the case may lead a prosecutor to conclude that he/she should seek contact through ISS with one or more of the components of the IC to initiate a "prudential search," i.e., one based not upon a known duty to the defendant or to a known nexus to national security matters but rather on the fact that the case meets a certain profile of cases likely to implicate such issues. Properly used, the prudential search will assist the prosecutor in identifying and managing potential classified information problems before indictment and trial. It may also permit the prosecutor to tailor the indictment in a way that will reduce or eliminate the relevance of any classified information, and thereby reduce or eliminate the likelihood of having to face a "disclose-or-dismiss" dilemma after the indictment.

      The prosecutor must recognize that, with rare exceptions, information gathered by the IC is not intended to support a criminal prosecution, but rather to satisfy other needs of the intelligence community's clientele, needs that are likely to be significantly divergent from those of the prosecutor. Accordingly, law enforcement techniques to ensure admissibility of evidence at trial will likely not have been used by the intelligence officer. It follows that requesting the IC to search its files will ordinarily not be done for the purpose of obtaining evidence-in-chief. Rather, it will be done (1) to assist the prosecutor in drafting his/her case to avoid implicating classified sources and methods, (2) when legally necessary to ensure that the prosecution team has met its legal obligations to an indicted defendant, or (3) under certain circumstances, to provide investigative leads to law enforcement for use in obtaining other admissible evidence.

    5. Classified Information Procedures Act (CIPA) Section 5 Notice

      Upon the filing of the defendant's CIPA section 5 notice, which contains a brief description of the classified information the defendant reasonably expects to disclose in connection with a trial or pretrial proceeding, the prosecutor, in consultation with the ISS, must request the intelligence agency, or law enforcement agency, whose information is at issue, to review the Notice and conduct a search of its files to determine if classified information is involved in the case.

[updated April 2002] [cited in USAM 9-90.210]