IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

Plaintiff,

VS.

xxxxxxxxxxxx,

Defendant. F96-026 CR.

DEFENSE DISCOVERY BRIEF REQUESTING

STATE POLICE MATERIAL OR AN EVIDENTIARY HEARING

I. ISSUE PRESENTED

What material is the United States Attorney required disclose to the defense pursuant to Rule 16 and Brady in a capital case investigated by the state, but controlled by federal authorities?

II. SUMMARY

The defense believes that the Ruby robbery/homicide of Agnes Wright is primarily a federal postal homicide investigation with subordinate cooperation from the state. It is not a "pass-through" case where state police simply send information to federal authorities. C. f. United States v. Hanna, 55 F. 3d 1456, 1460 (9th Cir. 1995). It is not a "joint federal state" investigation with joint control. C.f., United States v. Shakur, 543 F.Supp. 1059 (S.D.,N.Y. 1982); United States v. Guerrerio, 670 F.Supp. 1215, 1219 (S. D. , N. Y. 1987) . Rather, the instant prosecution is a state initiated homicide investigation, where most of the physical and verbal evidence was collected by state troopers. However, once xxxxx xxxx was arrested July 16, 1996 after the Ester post office robbery, the case became one of primary federal jurisdiction with state assistance.

Most of the "on-the-scene" evidence here was created, collected, or retained by Alaska state troopers, despite the federal control. Thus the United States Attorney, but not the defense, has ample access to the "nuts & bolts" of the investigation. The United States Attorney can technically, (but not reasonably) respond "not in my control or custody" to most of defendant's Rule 16 and Brady requests. On the other hand, the state troopers' materials and reports are readily accessible to the United States Attorney.

II. III. RELIEF REQUESTED

The defense requests disclosure of state police notes, reports and inventory concerning the Ruby and Ester incidents. In he alternative, the defense requests an evidentiary hearing on the

discovery issues, so that xxxxx xxxx can utilize his Sixth amendment rights and subpoena powers pursuant to Criminal Rule 17 prior to trial.

The defense believes that the discovery and other pretrial issues, such as possible suppression, should be litigated at a pretrial evidentiary hearing to avoid complicating or retracting the trial. The state troopers with most of the information in this case are amenable to subpoena. See, e.g., United States v. Vought, 69 F.3d 1498, 1501 (9th Cir. 1995).

IV. STATEMENT OF FACTS

In May of 1996, xxxxxxxx was a 23-year old home schooled trapper who canoed into McGrath on the Kuskokwim River from his family cabin. He appeared depressed to McGrath friends and officials. Although xxxxxx had lived a peaceful, scholarly and secluded life, he now faced minor burglary charges or stealing a furnace and household furnishings from unoccupied McGrath homes. He took these items to assist his girlfriend Geri Hooper and her two small children through a rough winter.

Maurice Reichel -- the Village Public Safety Officer to whom xxxxx xxxx confessed the burglaries -- tried to console him. Reichel noted that Abram was a first offender, the crime was nonviolent, the goods were recovered, and the sentence would not be harsh. Jack Smith, an elderly former employer, counseled xxxxx xxxx not to worry, as did Rick Hodgson, for whom xxxxx xxxx had babysat. All these persons, and many other McGrath residents, considered that xxxxx xxxx was a gentle person who was not prone to violence. Their consistent opinion was that violence by xxxxx xxxx would be an aberration.

Nevertheless, xxxxx xxxx appeared despondent, and staged his own death by drowning on the Nixon fork of the Takotna River in May. After dumping his canoe, xxxxx xxxx began a long, solitary journey through the brushy, buggy forest north from the Kuskokwim to the Yukon River. His short life had been lonely at the homestead and on the traplines. As a result, xxxxx xxxx was preoccupied with his inability to communicate with Geri. He made camp near Ruby, thinking that he would send a $450 postal money order to Geri.

On June 20, 1996, about 6:30 p.m., the daughter of Agnes Wright, the Ruby postmaster, found her in the Ruby post office. Ms. Wright had been shot. There was evidence such as bruises suggesting a struggle. Emergency workers, unknown to the defense, removed Ms. Wright, but lifesaving measures were unsuccessful. The circumstances in the post office at the time of her removal are unknown to the defense.

Alaska state troopers arrived later that evening. They saw blood spatters and pools of blood in the small office. Some of the furniture may have been moved in the struggle. Various items such as postal orders and imprinters may have been dislodged or dropped. The defense does not know who was in the post office between Wright's shooting and the crime scene video taken by Alaska state troopers.

The state troopers began a visual inventory of the circumstances. Before the audio was turned off, one trooper stated, "This is going to be fast... just dust for prints ... these Guys f --- ed up any kind of crime scene that we had ... " The crime scene video, including overturned waste baskets, moved furniture and paper debris -- gauze pads and money orders -- contains the commentary, "This is going to be hard to sort out what is incidental [to removal of the body] ... Various items and substances were collected by the troopers and sent to state and federal labs.

After lifesaving efforts for Ms. Wright failed, the state moved the body to the medical examiner's office in Anchorage. Norman H. Thompson, M.D., State of Alaska medical examiner, conducted an autopsy and examination from June 21 until June 24, 1996. Autopsy photos were taken. Troopers also searched items rom Agnes Wright's vehicle.

The initial investigation did not focus on the robbery. Statement of John Myers, Alaska State Trooper, Anchorage Daily News, Ex. A). A few money orders and imprinters were gone, but the post office never had much cash, and the money orders were traceable. An Anchorage Daily News article of June 27, 1996 (Ex. B ) said "postal inspectors assisting in the investigation still have not determined if the post office was robbed."

On July 12, 1996, the post office in Ester near Fairbanks as burglarized. A money order imprinter was taken. On July 16, man fitting xxxxxxx xxxxxxx description confronted an Ester postal worker. The robber demanded that the safe be opened, placed the worker in a back room, and left with money orders.

Outside the Ester post office the K-9 state trooper discovered a "hide-a-key" case to a Pontiac LeMans vehicle. This key matched a vehicle recently stolen in a burglary in Nenana. The Troopers obtained a description of the vehicle.

On July 16, state trooper Ridling stopped xxxxxx driving the Lemans on the Parks Highway. He was arrested and placed in state custody for Nenana burglaries. Troopers took him to Alaska state troopers headquarters in Fairbanks.

State troopers Ray Gary and Anna Sanders interrogated xxxxx beginning at 12:05 p.m. They gave an incomplete Miranda warning, stating just the right to remain silent, but nothing about the right to counsel. Troopers claimed that the warning was the same as on "television", which xxxxx xxxx did not watch. This interrogation lasted several hours.

While Gary and Sanders were interrogating xxxx, state trooper Jim McCann was traveling to Fairbanks from Delta, or the purpose of interviewing xxxxx. McCann began interviewing xxxxx at 4:00 p.m. McCann gave lengthy Miranda warnings and obtained narrative assurances of voluntariness from xxxxxx. The statements are videotaped and transcribed.

At a break in the interview, xxxxxxxxx drove to Nenana with Trooper McCann to point out various residences he burglarized, and a Fairbanks location where he changed clothes.

In the McCann interview, xxxxxxx admitted robbing the Ruby post office, and stated he shot Ms. Wright after she grabbed his gun. The McCann interview lasted more than five hours. Trooper McCann's contact with xxxxx xxxx ended about 11:30 p.m. The defense has no police reports from the troopers about conducting the interviews, so it is unknown whether there was any planning or orchestration between McCann and the earlier interviewers.

The state charged xxxxx xxxx with the Nenana burglaries and thefts on July 16. After the confession gleaned by state troopers, state prosecutor Jeff O'Bryant commented at Walter's state arraignment July 17, 1996 in Fairbanks that Walter would be charged with murder. (Anchorage Daily News, July 19, 1996, Ex. C) A state public defender was appointed on July 18, 1996.

On July 18, 1996 federal and state investigators obtained items from xxxxx xxxx's camp near Ruby which he described in the taped statements. State trooper Dahlke found a broken .44 Ruger. Apparently federal prosecutors decided later on July 18, 1996 to file charges" against xxxxx xxxx for the robbery/homicide in Ruby and the Ester post office robbery, assuming "the evidence bears out that he is in fact the killer." (Statement attributed to Robert Bundy, Anchorage Daily News, July 18, 1996, Ex. D).

On July 19, 1996 federal postal authorities obtained a search warrant for the LeMans impounded by troopers. The warrant was based on the affidavit of postal investigator Karrie Leaverton. The affidavit describes two areas of federal involvement in this case: (1) postal authorities audited the Ruby post office on June 1, 1996; and (2) Anchorage postal authorities received reports of the Ester post office burglary and robbery. Magistrate Judge John Roberts signed the search warrant on July 19, 1996 at 12:05 p.m.

The state grand jury indicted xxxxx xxxx for burglary and theft on July 24, 1996. On August 6, Trooper McCann, postal gents, Fairbanks state public defender Susan Carney, federal public defender Richard Curtner and xxxxx xxxx went to Nenana to locate evidence from a camp and area where xxxxx xxxx capsized a canoe.

In mid-August at the Fairbanks Correctional Center, a false friend Mark Loyd approached xxxxx xxxx. Loyd was incarcerated on a state charge. The defense knows nothing of Loyd's criminal circumstances, recruitment and incentives. Loyd obtained statements and a map from xxxxx xxxx. Loyd was debriefed frequently by Trooper McCann and other state officials. The troopers followed Loyd's directions and obtained evidence fort he federal case, including a .22 with a primitive silencer which may have fired the fatal shot.

The federal prosecutors indicted xxxxx xxxx for murder of a postal worker in Ruby and robbery of the Ester post office on October 17, 1996. The federal charges included numerous guns, clothing and tangible objects seized by the troopers. A central piece of evidence is the confession to Trooper McCann.

V. ARGUMENT

AN EVIDENTIARY HEARING TO ASCERTAIN THE NATURE

OF THE INVESTIGATION AND DISCOVERY OBLIGATING

IS REQUIRED HERE.

This complex case presents a discovery problem which is becoming increasingly common in state/federal prosecutions. Although the state troopers did extensive physical surveys of various crime scenes here, including the Roby post office, the defense I this capital case received most of its transactional information form newspaper accounts. The prosecution claims state police reposts, which would describe the events and scenes in Roby and Ester, are not in its "custody and control."

In an investigation and prosecution controlled by the federal government, the prosecutor must provide material where it has Knowledge of and assess to the material sought by the defense. See, United State v. Bryan, 868 F. 2d 1032, 1036 (9th Cir.) cert. denied, 493 U.S. 858 (1989). "Actual possession," or a mechanical, narrow definition of government, is NOT the standard. Id.

The Ninth Circuit Court of Appeals reiterated that the prosecutorial responsibility to provide Rule 16 and Brady material does not turn on a mechanistic definition of possession:

This personal responsibility cannot be evaded

by claiming lack of control over the files or

procedures of other executive branch agencies.

See, United States v. Muse, 708 F.2d 513, 516

(10th Cir. 1983) (prosecutor must produce for

examination Brady matter in personnel files of

government agents even if in possession of other

agency) (dictum) ; Martinez v. Wainwright,

621 F.2d 184, 186 (5th Cir. 1980) (prosecutor

responsible for production of victim's "rap sheet"

even if in possession of other government agency).

United States v. Jennings, 960 F.2d 1488, 1490 (9th Cir. 1992).

United States v. Higginbotham, 539 F 2d 17, 20-22 (9th Cir. 1976) and Beavers v. United States, 351 F.2d 507 (9th Cir. 965) are frequently cited by the government for the proposition that current physical custody is required for disclosure. These older cases involve a retrospective glance at who was at fault for loss of known material. This case involves a prospective attempt to avoid mid-trial delays and Brady problems.

Here the defense suffers from the two sovereigns, segregation of discovery materials, which pertain immediately to different cases, but ultimately to all cases. The first crucial vent was the Ruby robbery/homicide on June 20. State troopers investigated the Ruby crime scene, no doubt ascertained the prior movement of the body and interviewed the defendant. The postal agents showed up later for a financial audit. Despite provision of various pieces of physical evidence and lab reports pertaining to Ruby, the defense has no transactional accounts of who did what and how the body was moved. This information is likely to be in state police reports.

Next the Nenana burglaries and thefts occurred -- between June 28 and mid-July, according to the state indictment. xxxxx xxxx was arrested for these offenses on July 16, arraigned and appointed a state public defender Susan Carney in mid-July. During xxxxx xxxx's arrest on these burglary charges, Trooper McCann interviewed him and obtained his confession to the Ruby incident. The state public defender received police reports for the Nenana incidents and the arrest, and grand jury tapes. She has provided these items to the federal defense.

Then the Ester burglary and robbery occurred, again investigated by the state. This time the federal authorities took jurisdiction. No federal attorney was formally appointed until after the federal grand jury charged xxxxx xxxx with the Ester and Ruby incidents in mid-October 1996.

It is apparent that the post office robberies are not simple "pass-through" cases, where the state authorities send a case to the federal government and end their activity. C.f., United States v. Hanna, 55 F.3d 1456, 1459-61 (9th Cir. 1995). Nor is this a true "joint" investigation where both federal and state authorities share responsibility. C.f. United States v. Heath, 80 F. 2d 1011, 1019, n. 1 (10th Cir. 1978) ; United States v. Paternina-Vergara, 749 F.2d 993, 996-998 (2nd. Cir. 1984).

Rather, this is almost an agency case where the state troopers functioned as initial assistants for the federal government. See, United States v. Shakur, 543 F.Supp. 1059 (S.D.,N.Y. 1982). Accordingly, the United States Attorney should make available all crime-scene material and witness statements for he Ruby and Ester incidents collected by his agents, the state troopers.

In the alternative, this Court should order an evidentiary hearing on the federal government's discovery obligations in a case of this nature. The defendant has a right under the Sixth Amendment of the United States Constitution to present a defense and defense witnesses. Criminal Rule 17, addressing subpoena power, gives practical effect to this important right. Courts have recognized that Rule 17 is a reasonable method for a defendant to try to obtain documentary material where he government claims the material is not in its control. See, United States v. Vought, 69 F. 3d 1498, 1501-5102, (9th Cir. 1995) Beavers v. United States, 351 F.2d 507, 508 (9th Cir. 1965).

In this case, the state troopers have numerous documents which would be discoverable if in the control of the federal government -- for example, descriptions of the tangible aspects of he Ruby crime scene and identification of persons who may have moved the body. There are no doubt police reports describing the false friend's underlying charges and the "deals" made with him to extract evidence from xxxxx xxxx.

If the federal government is excused from providing state police reports and inventories

in the Ruby and Ester incidents, then the Court should set up an evidentiary hearing -- well in

advance of trial and substantive suppression motion practice. This earing would determine which

agents of the state hold information. Defendant could subpoena Troopers Ridling, McCann, Sanders,

Gary and Dahlke for trial, but their testimony might be irrelevant to trial issues. However, their

testimony may be germane only to preliminary issues such as discovery, suppression of the statement

or suppression of material provided by the false friend. It makes legal and practical sense to begin

the trial with discovery and suppression issues resolved.

V I. CONCLUSION

For the foregoing reasons, the defense requests all Rule 6 and Brady material in the

possession of the state troopers, of which the prosecutor has knowledge, and which he can access.

In the alternative, the defense requests an evidentiary hearing on the location of discovery materials,

with full subpoena power so that the defense can learn who did what and where the information is

located. This procedure will greatly facilitate orderly suppression litigation and trial.

Dated this day of March, 1997.

Sue Ellen Tatter

Attorney for Defendant

Abram Paul Walter

GOVERNMENT TO DEFENSE

DISCOVERY BRIEF

REQUESTING STATE POLICE

MATERIAL OR AN EVIDENCE HEARING

Defendant moves for production of state police notes, state police reports, and an inventory concerning the Ruby murder and the Ester robbery and burglary (p.2 of defendant's motion).

Defendant also moves (id., p. 12) for production of "crime scene material" (tangible evidence?) and witness statements collected by state agents.

Defendant moves further (id., p. 12) for state trooper reports describing "the tangible aspects" of the Ruby crime scene, and identifying potential witnesses who moved the body.

Defendant further requests an arrest history on Mark Loyd who obtained information from defendant in jail and passed it on to police, and requests substance of any "deals" with Loyd.

Finally, defendant characterizes all of the requested material as falling in Rule 16, Federal Rules of Criminal Procedure, and Brady requirements, except that the material is possessed by the state troopers (id., p. 13).

I

The State did not act as plaintiff's agent in the investigation. It investigated matters within

its jurisdiction, for potential state prosecution. It started taking the lead in the investigation and acted

independently of federal investigators.

This point is not material, however, as shown below.

II

The State has shared with plaintiff all evidence and reports relevant to this case. Plaintiff

does not claim that any of these materials are not in its control. Plaintiff has them, and has already

produced the tangible evidence and other discoverable material for defendant.

Defendant appears, however, to assert that case law requires plaintiff to go yet further and

search state officers' personnel files and other state files, both for evidence material to the defense and

potential Brady material. The cases do not so hold. Defendant's assertion is based on nothing but the

erroneous and totally unsupported conclusion that the State was plaintiff's agent in the investigation.

Evidence material to the defense is producible under Rule 16(a)(1)(C), Federal Rules of Criminal Procedure, if the United States Attorney "has knowledge and access to" it. The prosecution is deemed to have knowledge of and access to "anything in the possession, custody or control of any federal agency participating he same investigation of the defendant." United States v. Bryan, 868 F.2d 1032, 6 (9th Cir. 1989)(emphasis added); see United States v. Gonzalez-Rincon, 36 F 2d 859, 865 (9th Cir. 1994). Here a state agency participated in the same investigation - in fact took the lead in that investigation and for a time conducted it independently of federal authorities. The government has no "knowledge of and access to" all the vast files and records of the State. What the government has already done, however, is more than could be compelled and is commensurate with at defendant asks. The government has sought and obtained from the State all its evidence and reports relating to the case, and from this material it has produced all hat Rule 16 requires.

Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-1197, 10 Ed. 2d 215 (1963), reaches farther than Rule 16(a)(1)(C). It imposes on the prosecution

[A] duty to learn of any favorable evidence known

to others acting on the government's behalf in the

case, including the police.

Kales v. Whitey, 514 U.S. 419, 115 S. Ct. 1555, 1567-1568, 131 L. Ed. 2d 490 95). See also United States v. Hanna, 55 F.3d 1456, 1461 (9th Cir. 1995). This standard does not require plaintiff affirmatively to learn of such evidence in the hands of others who have not acted in plaintiff s behalf in the case, or evidence held by entities other than federal agencies participating in the same investigation. United States v. Sanchez, 50 F.3d 1448, 1453 (9th Cir. 1995). Although the State not was not acting on behalf of the United States in this case, the United States has affirmatively fulfilled its Brady obligation as if the State were within the scope of obligation by requesting all information about this case in the possession of the State. And plaintiff fully intends to continue to proceed in that manner. The State already produced for plaintiff all it has on this case, and there is no ground for assuming it will not continue to do so at any time on request.

Defendant is simply in error, however, in contending that the Brady obligation requires plaintiff to search state law enforcement personnel files for initially impeaching material. Defendant offers no authority that so holds. Specifically in cases of this type, i.e., involving potential testimony from both state federal investigators, the Ninth Circuit holds that the government's review of personnel files required by United States v. Henthom, 931 F.2d 29 (9th Cir. 199 1), ends only to the files of government law enforcement agents who are witnesses, to "state law enforcement files not within its possession or control." United States v. Dominguez-Villa, 954 F.2d 562, 566 (9th Cir. 1992). Plaintiff has neither possession nor control of state personnel files.

With regard to defendant's Brady requests specifically directed at the inmate Mark Loyd, plaintiff has already answered defendant's present requests Loyd's record and any "deals" he may have had to provide information about defendant. In plaintiff's Response to Motions for Discovery, etc., filed January 2 1, 97, plaintiff stated at p. 3:

Plaintiff has already disclosed all it has on the one witness, Mark Loyd, who obtained information and documents from defendant and provided them to the State Troopers. Loyd was never a government informant and

did not cooperate with the United States. No promises have been made to him by the United States. His record may be included in the material already produced, and will be supplemented with any and all further criminal history obtained by plaintiff. Plaintiff knows of no further information subject to disclosure under Brady, but recognizes its continuing obligation to make any required disclosures. Defendant's request in this category is therefore moot.

To this should be added the fact that Loyd had no "deals" with the State either.

With regard to all aspects of defendant's Brady requests it must be

observed that:

Brady does not overcome the strictures of the Jencks Act. When the defense seeks evidence which qualifies as both Jencks Act and Brady material, the Jencks Act standards control.

United States v. Jones, 612 F.2d 453, 454-55 (9th Cir. 1979), cert. denied, 445 U.S. (1980); United States v. Barnard, 623 F.2d 551 (9th Cir. 1979).

Efforts to override the clear mandate of the Jencks Act as to the timing he production of statements have been systematically rejected. See United State v. Taylor, 802 F.2d 1108 (9th Cir. 1986); United States v. Grandmont, 680 d 867, 874 (I st Cir. 1982); United States v. Carter, 621 F.2d 238, 240 (6th Cir.), denied, 449 U.S. 858 (1980); United States v. McMillen, 489 F.2d 229 (7th 1972); United States v. Campagnuolo, 592 F.2d 852, 858 (5th Cir. 1979).

III

Plaintiff does not posses or control the personal notes of state police officers. Defendant already

moved for the preservation of such notes. Motion for Order Directing Preservation and Production of (in Camera if Necessary) Notes of Investigative and Law Enforcement Officers as Possible Jencks Act Materials, dated and served December 31, 1996. Plaintiff, on January 21, 1997, filed its response to Motions for Discovery of Impeachment Information, 404(b) Evidence, evidence for Inspection and Scientific Analysis, and For Preservation of investigative Notes. Plaintiff did not resist the motion, and noted that plaintiff had already asked all the officers and agents to preserve their notes. The notes, being Jencks Act material, are not producible at this time. 18 U.S.C. § 3500.

IV

Inasmuch as plaintiff already possesses the state materials defendant seeks, there is no need or occasion for seeking a subpoena for such materials under rule 17(c), Federal Rules of Criminal Procedure. See United States v. Vought, 60 d 1498, 1501 (9th Cir. 1995). With the exception of state personnel files and officers' personal notes, the state materials are to be had, if at all, from plaintiff. The only issues are whether and when plaintiff must produce them.

Statements of potential witnesses, including police officers and crime scene investigators as well as other citizens who are fact witnesses, may not be made the subject of subpoena, discovery or inspection until the witness has testified at trial. 18 U.S.C. § 3500. Defendant's requests for police notes and police reports, ether of the crime scene or of other phases of the investigation, and witness statements, are all beyond the scope of Rule 16 and are contrary to 18 U.S.C. § 3500. They may not be granted. These requests are no different than if defendant sought production of federal investigative reports and witness statements or interview summaries. Such production may not be ordered at this time.

Defendant's obligation is to

plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry.

United States v. Hanna, supra, 55 F.3d 1456, 1459 (9th Cir. 1995)(emphasis added the court in Hanna),

quoting United States v. Burke, 506 F.2d 1165, 1168 (9th 1974), quoting Ogden v. United States, 303

F.2d 724, 733 (9th Cir. 1962), cert. ,376 U.S. 973, 84 S. Ct. 1137, 12 L. Ed. 2d 86 (1964). The

requests must be denied.

However, defendant has already been amply supplied with all things material to the defense, i

including a complete and detailed listing of all evidence seized, showing the description, item number,

date seized and present location. All the items that are in custody locally and not unavailable by

reason of being in a laboratory or in transit have been produced. Laboratory reports have been

included, as have also numerous photographs, video tapes, audio tapes, officers' notes and reports

containing summariesof defendant's oral statements, writings and drawings made by the defendant -

in short, all required discovery which is available production has been produced. Defendant points

to no deficiency in the discovery required by law, but seeks only those things which the Court cannot

order produced, namely, Jencks Act statements, non-existent Brady material, and state personnel files.

CONCLUSION

For all the foregoing reasons, defendant's request for state police reports, notes, witness

statements and personnel files must be denied.

Defendant's request for an inventory of evidence seized, and for records and any cooperation

agreements with Mark Loyd, must be denied as moot.

The Evil Government

DEFENSE REPLY TO PROSECUTIONS

DISCOVERY OPPOSITION

The defense seeks two important types of potentially exonerating evidence, among other material, in this capital case. The defense first seeks the state police records of contact with Mark Loyd, a "false friend" in the Fairbanks jail. Mark Loyd gave police material gleaned from contacts with xxxxx xxxx. This material led police to discover a silencer. The silencer was discovered shortly before the federal government indicted Mr. Walter. The silencer is a significant piece of the evidence against Mr. Walter, and could well be important in the trial of this case, as well as in the capital sentencing phase.

The second type of evidence sought is crime scene evidence by which the defense can learn how the body of Agnes Wright was treated prior to its removal from the post office. The blood pattern evidence is important here to determine how the incident occurred. There are myriad potential scenarios, ranging from mutual combat (exculpatory on the mitigation issue) to torture (a statutory aggravator.) The missing facts in the crime scene and autopsy evidence -- from a point of view of a forensic pathologist reconstructing the scene -- are where the body was found and in what condition, and how it was moved. The defense has no material on this issue. It seeks the records of the medics, 911 or other dispatch, and state police or village public safety officers about treatment and removal of Ms. Wright from the post office. In fact, the crime scene video conducted by the state troopers contains words to the effect that, "someone has f --- ed up this scene. Obviously, the defense ability to reconstruct the incident is important to the nature and degree of the homicide, and could impact current decision-making as well as trial presentation.

I. APPELLATE COURTS CONSIDER MATERIALITY UNDER BRADY MORE CAREFULLY IN A CAPITAL CASE, PARTICULARLY AFTER KALES V. WHITLEY.

The information sought in defense discovery requests, and particularly the information described above, is material to the guilt and punishment of xxxxx xxxx. It should be disclosed. Brady v. Maryland, 373 U.S. 83 (1963). The landmark case of Kales v. Whitley, _U.S._, 115 S.Ct. 1555, 1560 (1995) reversed a conviction in a capital case where the cumulative effect of suppressed evidence favorable to the accused "raised a reasonable probability that its disclosure would have produced a different result... " As the Ninth Circuit Court of Appeals has stated, the test is whether the missing favorable evidence "mattered" to the outcome of the case. United States v. Steinberg, 99 F.3d 1486, 1490 (9th Cir. 1996).

A prosecutor fails to disclose exculpatory evidence at is peril, particularly in a capital case. As the Supreme Court stated in Burger v. Kemp, 483 U.S. 776, 785, 107 S.Ct. 3114, 3121 (1987), and again in Kales v. Whitley, supra, 115 S.Ct. at 1560, "(o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case."

The evidence withheld in Steinberg, supra, 99 F.3d at 1491, is similar to the type of evidence sought here about Mark Loyd. Steinberg complained about missing discovery of the criminal activities of the informant Schultz, and his potential motives to lie. The missing information, said the Ninth Circuit, would have cast the government's evidence in a "different light," and so reversal was required.

II. THE GOVERNMENT CANNOT AVOID DISCLOSURE OF THIS MATERIAL BY ALLEGING STATE CUSTODY.

This robbery-homicide case originated with the Alaska state troopers. Although the postal authorities became involved, state troopers secured the crime scene, interviewed witnesses,

collected evidence, located xxxxx xxxx, arrested him for state burglaries, and procured a taped confession. As the government has recognized here, if the state acts on the government's behalf, the government must preserve and produce state police reports and other state documents. United States v. Higgenbotham, 539 F.2d 17, 21 (9th Cir. 1976).

The material about Mark Loyd would include police reports drawn up by Sgt. McCann and other state officers who dealt with Mark Loyd, Loyd's state plea bargain, presentence report and criminal record. By the time Loyd was providing information (late August 1996), the federal government was preparing for the September grand jury. If the government did not instigate or coordinate Loyd's activities, it must have known about them. The federal government included the silencer in its indictment.

The material about the crime scene, including dispatch and medical records, was probably collected by state troopers. Since the troopers have turned over trunkloads of physical evidence which they collected, as well as stacks of police reports, to federal authorities, it stretches credibility to assume Mr. Cooper does not have access to the Loyd material. He could certainly obtain it with a single call, as he probably has obtained much of the discovery already provided, such as the state tapes of the confession.

The Ninth Circuit Court of Appeals has recognized that the federal government's Brady obligations do not disappear because a state or local agency has developed material before the case was accepted by federal prosecutors. In United States v. Hanna, 55 F.3d 1456, 1460-61 (9th Cir. 1995), the court remanded a firearms conviction for an evidentiary hearing about when the federal government learned the full circumstances of the San Francisco police arrest of the federal defendant. In particular, the court was concerned about the disparity between a police report by a local officer, and the officer's trial testimony in light of Brady. Although Hanna's case "passed through" the local police on its way to federal court, the government attorney had the obvious duty to make Hanna's attorney aware of discrepancies, including those in state police reports, which could be exonerating. The court held the government "should have inquired" about material supporting the discrepancies. 55 F.3d at 1461.

In United States v. Bryan, 868 F.2d 1031, 1037 (9th Cir. 1989) the court held that the government's obligation under Rule 16 extended to items "which the prosecution has knowledge of and access to the documents sought by the defendant in each case." There the prosecutor sought to avoid production of items in the possession of out-of-district federal agencies. Here the prosecutor seeks to avoid material located down the street, in the possession of a state agency working closely with the federal government. See also, United States v. Wood, 57 F.3d 733 (9th Cir. 1995).

The state troopers and the federal government here have cooperated and interacted constantly. State troopers have collected much evidence for the federal authorities. Therefore, this Court should not accept a blanket assertion that the federal government cannot obtain all of the requested materials with a minimum of due diligence. At the very least, a hearing into the custody issue is required if the government indeed maintains it does not possess, and cannot easily obtain, the requested material. This inquiry is required especially in light of the capital nature of the case, and the stringency with which the government's lack of provision of exculpatory material will be reviewed. Kales v. Whitley, supra, 115 S. Ct at 1560, Burger v. Kemp, 107 S.Ct at 3121.

III. THE REQUESTED MATERIAL IS RELEVANT TO PRETRIAL MATTERS.

Brady and Kales apply to guilt at trial and punishment. Here the death penalty decision will be made pre-trial, so punishment is partially a pre-trial matter. The presence and admissibility of a silencer, as well as the way the crime scene demonstrates how the incident occurred, thus should be ascertained before trial.

The Loyd material will be relevant to pretrial suppression motions. Receipt of the requested material will obviate the need for lengthy pre-trial evidentiary hearings and subpoenas duces tecum. Concerns about efficient preparation for trial, including a meaningful trial schedule, will be furthered by early disclosure of the crime scene evidence. The defense can then prepare with forensic experts and give this Court a reasonable date of readiness for trial.

The last thing that should occur here is a mid-trial continuance, with a Fairbanks jury impanelled, while the defense researches how the body was moved or investigates whether Mark Loyd lied for leniency. This Court cannot force this prosecutor to provide early Brady material. But the earlier the requested material is received, the more organized and predictable the trial will be.

Dated this 31st day of January, 1997 at Anchorage, Alaska.

Sue Ellen Tatter

Attorney for Defendant

Richard F. Curtner

Federal Defender

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