United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court on the defendant, Rodney
Mazzulla's, Motion to Disclose Brady/Giglio
Materials (filing 115) and Motion in Limine
(filing 124). The government has also filed its own
Motion in Limine (filing 129) seeking to exclude
evidence related to the defendant's Brady/Giglio
request. For the reasons discussed below, the defendant's
Motion to Disclose and Motion in Limine will be denied, and
the government's Motion in Limine will be granted.
defendant claims that the personnel file of the primary
investigating officer in this case, Special Agent Gratz,
contains potential Brady/Giglio information. As
such, the defendant moves the Court to review the personnel
file in camera. Filing 116 at 5. The Court
will deny that motion.
Supreme Court's decision in Brady v. Maryland,
373 U.S. 83 (1963), requires the government to disclose
material, exculpatory evidence to the defendant. This
requirement was extended in Giglio v. United States,
405 U.S. 150 (1972), which held that "evidence tending
to impeach the credibility of prosecution witnesses may be
subject to the disclosure requirements of
Brady." Pederson v. Fabian, 491 F.3d
816, 826 (8th Cir. 2007); see also Blair v.
Armontrout, 916 F.2d 1310, 1338 (8th Cir. 1990). In
other words, under Giglio, the government must
disclose matters that affect the credibility of prosecution
witnesses. United States v. Beckman, 787 F.3d 466,
492 (8th Cir.), reh'g denied (June 17, 2015),
cert. denied, 136 S.Ct. 160 (2015).
speaking, it is the government's duty to determine what
evidence in its possession is subject to
Brady/Giglio disclosures. United States v.
Pou, 953 F.2d 363, 366 (8th Cir. 1992); see
also United States v. Presser, 844 F.2d 1275, 1281 (6th
Cir. 1988). After all, if the government fails to disclose
relevant material, "it acts at its own peril."
Presser, 844 F.2d at 1281.
the government has represented that it conducted a review of
Special Agent Gratz's personnel file, and determined that
it does not contain relevant Giglio information.
Filing 126 at 2. Despite this representation, the
defendant maintains that the personnel file may contain
impeachment material. Filing 116 at 3. In support of
that assertion, however, the defendant has provided the Court
with no meaningful evidence as to why the government's
representation remains inadequate. Instead, the
defendant's motion rests on "mere speculation"
surrounding the contents of the file. Filing 116 at
5. But that speculation does not compel the Court to
conduct an in camera review. See United
States v. Van Brocklin, 115 F.3d 587, 594 (8th Cir.
1997); see also Pou, 953 F.2d at
366. And absent a colorable showing that the file
contained relevant Giglio material or allegations
that the government has somehow acted in bad faith, the
defendant's motion to disclose will be denied.
See United States v. Willis, 89 F.3d 1371,
1381 n.6 (8th Cir. 1996).
Defendant's Motion in Limine Next, the defendant's
Motion in Limine seeks to exclude evidence of several
cooperating witnesses expected to testify that they
"became aware of" or "learned" that the
defendant was selling methamphetamine. Filing 125 at
1. The defendant argues that these statements are
out-of-court statements excluded by the rule against hearsay,
irrelevant, immaterial, cumulative, or lack adequate
foundation. Filing 124 at 2.
extent any of these statements constitute
"co-conspirator" statements made in the course of
and in furtherance of the alleged conspiracy, the Court will
follow the procedure set forth in United States v.
Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). And to the
extent the statements warrant other objections relating to
hearsay, relevance, materiality, or adequate foundation, the
defendant may raise those objections at trial. But for now,
the defendant's motion will be overruled without
prejudice to reasserting his objections at trial.
Government's Motion in Limine As a final matter, the
government's Motion in Limine seeks to exclude testimony
or argument suggesting that Special Agent Gratz left his
employment at the Lincoln Police Department as a result of
various accusations of misconduct. Filing 129 at 1.
In particular, the government moves to exclude evidence of
the allegations made against Special Agent Gratz in two
federal civil cases: Nos. 4:17-cv-3051 and 4:16-cv-3056.
Filing 129 at 1. That motion will be sustained: the
allegations are not relevant to what the Court understands to
be Gratz's expected testimony in this case, nor is
evidence of those allegations consistent with Fed.R.Evid.
Court's ruling does not, however, preclude the defendant
from questioning Special Agent Gratz on cross-examination
about specific bad acts if those acts are probative
of Gratz's character for truthfulness. See Rule
608(b). For instance, the defendant may inquire as to whether
Special Agent Gratz was disciplined-or fired-as a result of
lying on an affidavit, but may not question Special Agent
Gratz concerning whether he was accused of having sexual
relations with his confidential informant. And whatever
608(b) questioning is permitted will require the defendant to
"take [Officer Gratz's] answer, " because the
Court will not allow the defendant to introduce extrinsic
evidence of specific bad acts absent a showing of materiality
or bias. See United States v. Martz, 964 F.2d 787,
789 (8th Cir. 1992).
defendant's Motion to Disclose (filing 115) is denied.
defendant's Motion in Limine (filing 124) is ...