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“NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX PEOPLE OF THE VIRGIN ISLANDS, Plaintiff, | SX-10-CR-271 Vv. LEODEL ILES, Defendant. MEMORANDUM OPINION THIS MATTER came before the Court on Defendant’s Request for Specific Kyles and Brady Information and Defendant’s Motion to Compel Disclosure of the Personnel Records, Internal Affairs Records and Records of Any Law Enforcement Agent Who Participated in the Investigation, Arrest and Prosecution of Defendant Whether or not the Government Intends to Call the Agent as a Witness in This Case, both filed on August 11, 2010. On August 16, 2010, the People filed a Response to Defendant’s Motion to Compel. Defendant did not file a Reply to the People’s Response. FACTS On or about May 12, 2010, Leodel Iles (hereinafier, “Defendant”) was driving in the vicinity of Estate Princess in St. Croix, U.S. Virgin Islands, according to Officer Jason Viveros (hereinafter, “Officer Viveros”), when Defendant was pulled over by the Police for not wearing a seat belt as required by law. Such an assertion was denied by Defendant. According to Officer Viveros, upon inquiring Defendant for his driver’s license, proof of insurance and registration, he detected a strong odor of marijuana coming from Defendant’s vehicle. Officer Viveros further alleged that Defendant advised him that he had smoked a “joint” earlier but that he did not have any other drugs on him or in the vehicle. According to Officer Viveros, Defendant gave him and Officer G. Bennerson, Jr. permission to search his vehicle. Further, according to Officer Viveros, it was Defendant who unlocked the doors and pulled the trunk release for the officers. Defendant denies any assertion that he gave consent to search his vehicle, much less unlock the People of the Virgin Islands v. Leodet Iles SX-10-CR-271 Memorandum Opinion door and pull the trunk release. Officer Viveros further alleged that he observed Defendant begin trembling and become very nervous and sweaty. Defendant remained outside of the vehicle while the officers searched his vehicle. According to Officer Viveros, Officer G. Bennerson Jr. was searching in the back seat when he observed a brown teddy bear back pack with the zipper slightly open with the handle of a gun in plain view. At that point, Officer Viveros alleged that Defendant was immediately restrained, advised of his Miranda Rights and asked if he had a license to carry a firearm. Defendant responded no. Subsequently, an inquiry was made with the Firearms Bureau and it was determined that Defendant did not have a license to possess a firearm. Accordingly, Defendant was arrested for possession of an unlicensed firearm. DISCUSSION In his Motion to Compel, Defendant requests the People to disclose, pursuant to Brady v. Maryland,' Giglio v. United States? and Fed. R. Crim. P. 16, the entire personnel and/or internal affairs file maintained by any government agency in any and all law enforcement agents who participated in the investigation, arrest and prosecution of Defendant, whether or not the People intends to call the agent as a witness in this case, to include but not limited to the following: (1) Citizen complaints; (2) Disciplinary actions; (3) Internal affairs reports; (4) Criminal Investigation Reports; and (5) All other material, written and oral, revealing acts of dishonesty, misconduct, official malfeasance, etc., bearing on their character for truthfulness and honesty as well as their propensity for illegal behavior beyond the scope of their official duties as law enforcement agents:-Defendant argues that he has a legitimate interest in any and all exculpatory 1373 U.S. 83 (1963). 2 405 U.S. 150 (1972). People of the Virgin Islands v. Leodel Iles SX-10-CR-271 Memorandum Opinion and impeaching material contained in each officer’s personnel file since the trial in this matter wil] include critical testimony from law enforcement agents. In his Request for Specific Kyles and Brady Information, Defendant also moved for the Court to order the Government to disclose and provide a list of “specific information and materials known or that with the exercise of due diligence should be known to the Government [regarding the cooperating witness(es)].” Defendant argues that he is entitled to information favorable to him on the issues of guilt or punishment, including impeachment information and other material and evidence tending to discredit the People’s witnesses and other exculpatory or favorable evidence to Defendant. See Kyles v. Whitley, 514 U.S. 419 (1995); Brady, 373 U.S. 83. In its Response to Defendant’s Motion to Compel, the People moved to prohibit Defendant from obtaining names and records of witnesses and from obtaining general personnel files of police officers. According to the People, the controlling cases on the issue of discovery with regard to personnel files are found in the Seventh and Eleventh Circuits, which are followed in our local jurisdiction. In United States v. Quinn, the Eleventh Circuit Court of Appeals stated: “Mere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial. A due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the District Court.” (Quoting United States v. Navarro, 737 F.2d 625, 631 (7th Cir.). The Sixth Circuit also has rejected the argument, citing Andrus and Pitt. See United States v. Driscoll, 970 F.2d 1472, 1482 (6th Cir. 1992) (upholding government refusal to disclose testifying officers’ personnel files based only on defendant’s speculation that files contained material useful to impeach officers’ credibility). Quinn, 123 F.3d 1415, 1422 (11th Cir. 1997). 3 According to the People, the controlling cases on the issue of discovery with regard to personnel files are found in the Seventh and Eleventh Circuits, which are followed in our local jurisdiction. The Court disagrees. Our local jurisdiction follows the Third Circuit. People of the Virgin Islands v. Leodel Iles SX-10-CR-271 Memorandum Opinion The People also argues that the courts have broad discretion to limit a request for the discovery of personnel files and should consider the “totality of the circumstances weighing the value of the material sought against the burden of providing it” and taking into account society’s interest in further the truth-seeking function in the particular case before the court. Brunker v. Schwan's Home Service, Inc., 583 F.3d 1004, 1010 (2009).* The People further argues that this line of reasoning have been followed in the U.S. Virgin Islands. See Sabin v. St. Croix Basic Services, WL23218491, *2 (D.V.I. 2003) and George v. Industrial Maintenance Corp., 305 F.Supp2d 537, 541 (D.V.I. 2002).° Although, the People did not file a response to Defendant’s Request for Specific Kyles and Brady Information, the Court will apply the People’s arguments in its Response to Defendant’s Motion to Compel to Defendant’s Request for Specific Kyles and Brady Information. The Brady/Giglio/Kyles Issue The Supreme Court of the United States held in Brady that, the failure of the prosecution to turn over evidence favorable to the defendant on the issue of guilt violates due process. Brady, 373 U.S. at 87. In Giglio, the Supreme Court clarified that Brady obligates the prosecution to disclose evidence affecting credibility. Giglio, 405 U.S. at 154. On the other hand, in Weatherford v. Bursey, the Supreme Court made it clear that the Brady rule does not grant broad discovery powers to a defendant when it stated that “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one...” Weatherford, 429 U.S. 545, 559 (1977). In Kyles, the Supreme Court held that the cumulative effect-of-all- suppressed evidence; rather than the-itemize individual effect of the suppressed 4 The Court does not find Brunker to be relevant in this matter — Brunker is a civil matter, which adheres to different rules of procedure. 5 The Court also does not find the two local cases cited by the People, Sabin and George, to be relevant in this matter — Sabin and George are civil matters, which adhere to different rules of procedure. People of the Virgin Islands v. Leodel Iles SX-10-CR-271 Memorandum Opinion evidence, favorable to the defendant is considered when determining whether evidence not disclosed by the government was “material,” in violation of Brady. Kyles, 514 U.S. 419 (1995). In his Motion to Compel, Defendant requested the Court to order the People to disclose personnel information for potential exculpatory and impeaching material. In United States v. Dent, the Third Circuit—whose jurisdiction includes the U.S. Virgin Islands—found that the district court had satisfied the Brady requirements by conducting an in camera inspection of arresting officer’s personnel file in order to determine whether it contained information that could be used to impeach his credibility at trial. 149 F.3d 180, 191 (3d Cir. 1998). The Third Circuit held that: [A]lthough Brady mandates that the prosecution to disclose impeachment material that is exculpatory to the defendant, it does not require that the prosecution make the file available for the defendant’s general perusal. Instead, the government need only direct the custodian of the files to inspect them for exculpatory evidence and inform the prosecution of the results of that inspection, or alternatively, submit the files to the trial court for in camera review. Id. The Third Circuit reiterated in United States v. Woods® that “[T]his [Brady] obligation is not to be used, however, to permit a defendant to obtain wholesale discovery of the government’s principal case.” 2008 WL 2622902, *1, *3 (3d Cir. 2008). The Court finds the paint brush Defendant wishes to use in this matter to be overly broad. Accordingly, the Court will grant in part and deny in part Defendant’s Motion to Compel. The Court will grant an in camera review of the files/records/information listed in Defendant’s Motion to Compel with respect to only Officer Jason Viveros and Officer G. Bennerson, Jr., and not “all law enforcement agents who participated in the investigation, arrest, and prosecution of Defendant” as requested by Defendant. Defendant needs to justify his reasoning further if he wants the 6 In United States v. Woods, the defendant requested the immediate production of all forms of Brady and Brady-type impeachment material, inter alia, any information in the police officers’ personnel files. The government agreed, inter alia, to have the pertinent officers undertake a review of their personnel files for all material within the scope of defendant’s proper requests. Accordingly, the }”oods court never directly addressed the defendant’s request of the police officers’ personnel files. pas People of the Virgin Islands v. Leodel Iles SX-10-CR-271 Memorandum Opinion files/records/information with respect to “all law enforcement agents who participated in the investigation, arrest, and prosecution of Defendant.” Similarly, along the same line of reasoning, the Court will also grant in part and deny in part Defendant’s Request for Specific Kyles and Brady Information. The Court will grant an in camera review of the files/records/information listed in Request for Specific Kyles and Brady Information and all Brady material with respect to only Officer Jason Viveros and Officer G. Bennerson, Jr., and not “all cooperating witnesses” as requested by Defendant. Defendant also needs to justify his reasoning further if he wants the files/records/information with respect to “all cooperating witnesses.” CONCLUSION The Court will issue an order consistent with this Memorandum Opinion, in accordance with the Supreme Court’s analysis in Brady, Giglio, Weatherford and Kyles, and consistent with the Third Circuit’s rulings. DONE and so ORDERED this / say of February, 2011. “HAROLD W. L. WILLOCKS Judge of the Superior Court CERTIFIED TO BE A TRUE Copy This ay of Le 20 “7 VENETIA H. VELAZQUE CLERK OF T PESO. By uO Court ClerkZZ-