Petition for Writ of Certiorari — Kendall Streb, Petitioner v. United States

No.

3fn Wife

Supreme Court o! tfie ®ntteb States:

KENDALL STREB,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Parrish Kruidenier Dunn Gentry

Brown Bergmann & Messamer, L.L.P.

Alfredo Parrish

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email:

aparrish@parrishlaw.com

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

1

QUESTION PRESENTED FOR REVIEW

When the government intentionally conceals

Brady evidence (payments and benefits to witnesses)

on the eve of trial - in violation of DOJ policy, ABA

Standards for the Prosecutorial Function, and Federal

Rules of Criminal Procedure - is an evidentiary hear­

ing required?

11

PARTIES TO THE PROCEEDINGS

1.

Kendall Streb, Petitioner

2.

United States of America, Respondent

3.

Human Trafficking Institute, Amicus Curiae be­

low.

RELATED PROCEEDINGS

I.

United States v. Kendall Streb, Southern District

of Iowa No. 4:19-CR-00076-SMR-CFB, Order on

Motion for New Trial, 477 F. Supp. 3d 835 (S.D.

Iowa 2020).

II. United States v. Kendall Streb, Southern District

of Iowa No. 4:19-CR-00076-SMR-CFB; Judgment

entered September 24, 2020.

III. United States v. Kendall Streb, Eighth Circuit

Court of Appeals No. 20-8007; Judgment entered

July 31, 2020.

IV. United States v. Kendall Streb, Eighth Circuit

Court of Appeals No. 20-3028; 36 F.4th 782 (8th

Cir. 2022); Judgment entered June 7, 2022; Cor­

rected Opinion filed July 1, 2022.

V.

United States v. Kendall Streb, Eighth Circuit

Court of Appeals No. 20-3028; 2022 WL 2378976

(8th Cir. Jul. 1, 2022); Petition for Rehearing De­

nied June 30, 2022.

Ill

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW..........

1

PARTIES TO THE PROCEEDINGS....................

11

RELATED PROCEEDINGS..................................

11

TABLE OF AUTHORITIES............................. .....

v

OPINIONS BELOW................................................

1

JURISDICTION,

.............................................

1

STATUTORY PROVISIONS..................................

1

STATEMENT OF THE CASE................................

2

REASONS RELIED ON FOR ALLOWANCE OF

THE WRIT............................................................

9

A United States Court of Appeals has entered

a decision that sanctions a departure from the

accepted and usual course of judiciaLproceedings, calling for an exercise of this Court’s su­

pervisory power...................................................

9

1. The evidence of payments by the prosecu­

tors were exculpatory evidence, required

to be disclosed............................................... 9

2. The disclosure was unfairly and prejudi­

cially delayed................................................ 10

3. The prosecutors were personally involved

in the payments to complaining witnesses,

raising ethical concerns............................... 13

IV

TABLE OF CONTENTS - Continued

Page

4.

Even under the abuse of discretion standard

governing discovery violations, it was error

to deny a hearing into the government’s

misconduct.................................................... 18

CONCLUSION

20

APPENDIX

App. A: United States v. Kendall Streb, 8th Cir.

No. 20-3028; Revised Opinion Dated July 1,

2022................................................................... App. 1

App. B: United States u. Kendall Streb, 8th Cir.

No. 20-3028; Opinion & Judgment entered

June 7, 2022

App. 16

App. C: United States v. Kendall Streb, S.D. Iowa

No. 4:19-cr-00076-003; Amended Judgment in

a Criminal Case entered October 13, 2020 ....App. 31

App. D: United States v. Kendall Streb, 8th Cir.

No. 20-3028; Order Denying Petition for Re­

hearing entered July 1, 2022

App. 52

App. E: United States u. Kendall Streb, S.D. Iowa

No. 4:19-cr-00076-003; Excerpts of Trial Tran­

script from January 21, 2020

S. App. 1

App. F: United States v. Kendall Streb, S.D. Iowa

No. 4:19-cr-00076-0003; Excerpts of Trial Tran­

script from January 22, 2020

S. App. 36

-V

TABLE OF AUTHORITIES

Page

United States Supreme Court Cases

Franks v. Delaware, 438 U.S. 154 (1978).......

19

United States v. Bagley, 473 U.S. 667 (1985)

9

Federal Cases

United States v. Albanese, 195 F.3d 389 (8th Cir.

1999) . ......................................................................

14

United States v. Anty, 203 F.3d 305 (4th Cir.

2000) . ......................................................................

14

United States v. Barnett, 197 F.3d 138 (5th Cir.

1999).................................. ......... ............................

14

United States v. Devin, 18 F.2d 280 (1st Cir.

1990)............................................ ....... ....................

12

United States v. Febus, 218 F.3d 784 (7th Cir.

2000).......................................................................

14

United States v. Harris, 210 F.3d 165 (3d Cir.

2000)........................................................................

14

United States v. Ihnatenko, 482 F.3d 1097 (9th

Cir. 2007)................................................................

13

United States u. Losing, 539 F.2d 1174 (8th Cir.

1976)........................................................................

19

United States v. Mojica-Baez, 229 F.3d 292 (1st

Cir. 2000)................................................................

13

United States v. Osorio, 929 F.2d 753 (1st Cir.

1991)

11,12,17

United States v. Sims, 776 F.3d 583 (8th Cir.

2015)........................................;...............................

18

VI

TABLE OF AUTHORITIES - Continued

Page

Rules

Federal Rule of Criminal Procedure 16(d)(2).... 1, 8,18

Other Authorities

ABA Standards for the Prosecutorial Function

Standard 3-3.4...................................................

16

DOJ, Justice Manual 9-5002................................

16

DOJ, Justice Manual 9-5001...... ................. ........

11

Johnson, Vida B., When the Government Holds

the Purse Strings but Not the Purse: Brady,

Giglio, and Crime Victim Compensation Funds,

38 N.Y.U. Rev. L & Soc. Change 491 (2014).....

9

1

OPINIONS BELOW

On June 7, 2022, the Eighth Circuit affirmed the

district court for the Southern District of Iowa’s rul­

ings regarding the late and inadequate disclosure of

benefits paid to the victims, and regarding cross ex­

amination. United States v. Streb, No. 20-3028; 36

F.4th 782 (8th Cir. June 7, 2022; revised July 1, 2022).

(App. 1). The petition for further review was denied.

United States v. Streb, 8th Cir. No. 20-3028 (July 1,

2022). (App. 52).

JURISDICTION

Jurisdiction of the district court was pursuant to

18 U.S.C. §3231. Jurisdiction of the Eighth Circuit was

pursuant to 28 U.S.C. §1291. This Court has jurisdic­

tion pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISIONS

FEDERAL RULE OF

CRIMINAL PROCEDURE 16(d)(2)

Failure to Comply. If a party fails to comply with

this rule, the court may:

(A) order that party to permit the discovery

or inspection; specify its time, place, and

manner; and prescribe other just terms

and conditions;

2

(B) grant a continuance;

(C) prohibit that party from introducing the

undisclosed evidence; or

(D) enter any other order that is just under

the circumstances.

STATEMENT OF THE CASE

Kendall Andrew Streb was charged by supersed­

ing indictment on August 13, 2019, with the following

offenses:

Count 12: Sex Trafficking of Children in viola­

tion of 18 U.S.C. §§ 15941(a)(1) and 1591(b)(2),

regarding Minor Victim A [hereinafter “MVA”].

Count 13: Distribution of a Controlled Sub­

stance to a Person Under Age 21 in violation

of 21 U.S.C. §§ 841(a)(1) and 859, regarding

MVA.

Count 14: Sex Trafficking of Children in viola­

tion of 18 U.S.C. §§ 1591(a)(1) and 1591(b)(2),

regarding Minor Victim B [hereinafter “MVB”].

Count 15: Coercion and Enticement of a Minor

in violation of 18 U.S.C. § 2422(b), regarding

MVB.

Count 16: Distribution of a Controlled Sub­

stance to a Person Under Age 21 in violation

of 21 U.S.C. §§ 841(a)(1) and 859.

3

Count 17: Possession with Intent to Distribute

Methamphetamine in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C).

Count 18: Possession of a Firearm in Further­

ance of a Drug Trafficking Crime in violation

of 18 U.S.C. § 924(c)(l)(A)(i).

Count 19: Unlawful User in Possession of a

Firearm, 18 U.S.C. §§ 922(g)(3) and 924(a)(2).

Count 26: Sex Trafficking of Children in viola­

tion of 18 U.S.C. §§ 1591(a)(1) and 1591(b)(2),

regarding Minor Victim E [hereinafter “MVE”].

Count 32: Distribution of a Controlled Sub­

stance to a Person Under Age 21 in violation

of 21 U.S.C. §§ 841(a)(1) and 859, regarding

MVE.

He entered a plea of not guilty. Count 15 was dismissed

by the government prior to trial, and the remaining

counts proceeded through pretrial litigation.

On January 19, 2020, 48 hours before trial, the

Government provided a letter to the defense stating:

Throughout the entirety of this case,

meetings and/or prep sessions were individu­

ally held with Minor Victims A, B, and E. Dur­

ing these meetings and/or prep sessions,

lunch was sometimes provided by staff with

the U.S. Attorney’s Office, the Iowa City Bu­

reau of Investigation, or other non-profit or

law enforcement agencies. Additionally, some­

times Minor Victims A, B, and/or E were pro­

vided items to help them care for their basic

4

needs, such as shampoo, body wash, soap, and

basic items of clothing. Minor Victim A was

once given a gift card to assist her with pur­

chasing school supplies. All of these items

were provided by either members of the U.S.

Attorney’s Office, the Iowa City Police Depart­

ment, the Federal Bureau of Investigation,

and/or other non-profit or law enforcement

agencies.

(District Court Docket Number [hereinafter “DCD”]

353 at 2). This was the first time that the government

had disclosed any witness benefits. (Id. at 5).

Trial began on January 21,2020, without the Gov­

ernment providing any additional detail regarding the

witness benefits. Defense counsel raised the issue with

the court, which agreed the lack of disclosure was “a

serious problem,” and commented “this comes close to

what I would consider misconduct.” (S. App. 3). The

court did not give defense counsel the opportunity to

question those involved in the benefits. (S. App. 3-13).

Instead, the court asked a few follow-up questions to

the prosecutor. (S. App. 5-8). The prosecutor was unable

to provide necessary detail or documentation, so the

court adjourned the hearing and instructed the prose­

cution to obtain further information about the benefits.

(S. App. 5-8,10).

The prosecution’s information regarding witness

benefits continued to shift. When the parties recon­

vened, the prosecution provided a bullet-point list of

witness benefits. (DCD 353 at 7-8). Among other

things, the list revealed that the prosecutor and victim

5

specialist had taken Minor Victim A (MVA) shopping

at Target and given her $50 in gift cards. (DCD 353 at

7). Defense counsel asked for an evidentiary hearing to

question the parties involved in providing the benefits,

in order to develop information regarding the benefits

and why the information was not disclosed earlier. (S.

App. 10-15). The court declined, and again engaged in

its own questioning of the prosecution and the case

agent, Detective Gonzalez. (S. App. 10-12). The prose­

cution still could not provide the necessary detail. The

court repeated its order to the Government to gather

documentation regarding the witness benefits, but de­

cided to move forward with jury selection.

After the jury was selected and excused for the

day, the prosecution provided a report authored by De­

tective Gonzalez with additional detail and different

information from its first bullet-point list. (DCD 353 at

12-14). The report confirmed the prosecutors had been

aware of the witness benefits - and were personally in­

volved in providing those benefits - for months. (DCD

353 at 12). Inexplicably, there were no receipts for any

of these transactions. (DCD 353 at 12-14).

In light of the continuing problems with the pros­

ecutor’s incomplete and inadequate disclosures, de­

fense counsel repeated its request for an evidentiary

hearing to develop the underlying facts of the benefits

and explore why the information was not timely dis­

closed. (S. App. 15-18). As defense counsel pointed out,

“you don’t make these kinds of mistakes for nine

months, Judge, and claim that it was accidental.” (S.

App. 17). The court again refused this request and

6

instead engaged in its own questioning of the prosecu­

tor, the witness coordinator, and Detective Gonzalez none of whom were placed under oath or subjected to

cross-examination. (S. App. 17-23). Notably the prose­

cutor told the court that she had provided the first, in­

accurate letter to the defense upon consultation with

the United States Attorney, Marc Krickbaum:

I described generally the types of things

that were given here, and I asked him is that

something that we need to disclose and how to

disclose it, and he suggested doing a generic

letter the way that we did it.

(S. App. 31). The refenced “generic letter” was incon­

sistent with later disclosures and omitted significant

benefits paid to the victims. (DCD 353 at 2). Given the

prosecutor’s direct participation in the provision of

those benefits, the prosecution should have been well

aware of the inaccuracies in the disclosure.

Defense counsel moved to dismiss the prosecution

or, in the alternative, suppress the testimony of wit­

nesses who received late-disclosed benefits. (DCD 324).

The court denied the motion. (S. App. 33-34). Instead,

the court indicated it would allow “liberal cross-exam­

ination” on the witness benefit issue. The court further

ruled that it would overlook what it viewed as deficien­

cies in Streb’s Rule 16 expert disclosures, though the

court would still consider relevancy and other objec­

tions to the proposed expert testimony. (App. 4). The

parties recessed for the day, with the plan to begin with

opening statements the next day.

7

That night, at 9:09 pm, the Government disclosed

yet another benefit that it had paid witness MVA.

(DCD 353 at 17-19). Again, there was no receipt for the

“$40-50 cash” that was paid to MVA after her grand

jury testimony in April 2019. (Id.). In light of the new

disclosure, the parties again made a record on the mat­

ter before opening statements on the second day of

trial. Streb identified lingering questions regarding

the witness benefits and again asked for an eviden­

tiary hearing on the matter. (S. App. 37-42). The de­

fense noted that U.S. Attorney Krickbaum was in the

courtroom and requested that he make a professional

statement regarding when he became aware of the wit­

ness benefits and what he told the prosecutor to do re­

garding those benefits. (S. App. 39-41). The court sua

sponte ruled that the U.S. Attorney was protected by

Executive Privilege and would not be asked to reveal

his conversation with the prosecutor. (S. App. 41-43).

The court then proceeded with trial.

Trial testimony of at least one of the minor victims

strongly suggested that the payments from the govern­

ment changed her testimony. Streb was accused of sex

trafficking MVB, who the court later described as “both

prey and predator,” with “some responsibility to bear,

in my view, for what happened to MVA and MVE.”

(DCD 513, Sentencing Transcript at 64). MVB was the

one who introduced MVA and MVE to Streb. On De­

cember 29, 2018, MVB set Streb up with MVA. (DCD

405, Trial Transcript Vol. 4 at 909-10). This was the

only time that MVA met Streb. (Id.). MVA subse­

quently gave multiple statements regarding the events

8

of that night in interviews on December 31, 2018;

January 22, 2019; April 8, 2019; and April 18, 2019. In

none of those interviews did she tell law enforcement

that she had sex with Streb on December 29, 2019.

(DCD 407, Trial Transcript Vol. 3 at 537-38). Not until

January 10, 2020 - after receiving $400 in benefits

from the Government - did MVA make allegations

against Streb. (Id. at 538-39). She conceded on crossexamination that her story had changed dramatically.

(Id. at 480). MVA also admitted doing “a shit ton of

drugs” on December 29,2018, including Ecstasy, methamphetamine, marijuana, and alcohol. (Id. at 489-90).

She denied that she did these drugs - other than the

methamphetamine - with Streb. (Id. at 490). At trial,

she testified that she used methamphetamine with

Streb, but admitted to stating in prior interviews (be­

fore receiving payments from the government) that she

was given methamphetamine by “a black guy.” (Id. at

499-500). Streb is white. (Id.).

Streb was found guilty on Counts 12,14,16,17,18,

19, 26, and 32. (App. 32). The sole acquittal was on

Count 13, distribution of a controlled substance to

MVA while she was under the age of 21. On appeal,

Streb raised the issue of failing to exclude or suppress

their testimony, and failing to hold a hearing on the

government’s disclosure, as a basis for reversal. The

Eighth Circuit held that the District Court did not

abuse its discretion in refusing to exclude MVA,

MVB, and MVE’s testimony and refusing to hold a

hearing because a lesser sanction was appropriate un­

der Fed. R. Crim. R 16(d)(2), and because Streb’s Sixth

9

Amendment rights were not violated when the evi­

dence was disclosed in time for him to utilize it at trial.

United States v. Streb, 36 F.4th at 786-88. (App. 3-6).

REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

A United States Court of Appeals has entered a

decision that sanctions a departure from the

accepted and usual course of judicial proceed­

ings, calling for an exercise of this Court’s su­

pervisory power.

1. The evidence of payments by the prosecutors

were exculpatory evidence, required -to be

disclosed.

Money is “a powerful motivator.” Johnson, Vida B.,

When the Government Holds the Purse Strings but Not

the Purse: Brady, Giglio, and Crime Victim Compensa­

tion Funds, 38 N.Y.U. Rev. L & Soc. Change 491, 495

(2014) [hereinafter “Johnson.”]. While financial assis­

tance to victims can “provide much-needed relief from

daily economic pressures,” it can also “provide a pow­

erful incentive for some witnesses to fabricate, add de­

tails, shade their testimony at trial, or otherwise, make

themselves seem more indispensable in order to get ac­

cess to additional resources.” Id. There is no doubt that

funds paid to victims are Brady material that should

be disclosed to the defense. See, e.g., United States v.

Bagley, 473 U.S. 667,683 (1985) (noting that the prom­

ise of a reward gave witnesses “a direct, personal stake

10

in respondent’s conviction,” reflecting bias that must

be disclosed under Brady). Detailed disclosures of the

funds and their source are necessary for a defendant

to effectively demonstrate this bias to the jury. John­

son, supra, at 498.

At least with regard to MVA, Streb had strong cir­

cumstantial evidence that payments to her were a mo­

tivating factor in her accusations. MVA testified that

she had one encounter with Streb. There were four sep­

arate interviews with law enforcement before she ever

brought up Streb’s name. And her story with regard to

Streb changed. At trial, she claimed that Streb gave

her methamphetamine — directly supporting one of the

charges against Streb. But previously she had stated

that she received methamphetamine from “a Black

guy.”

2. The disclosure was unfairly and prejudicially

delayed.

The Court’s discovery orders required the govern­

ment to produce evidence of payments to the witnesses

on an ongoing basis. The parties entered into a stipu­

lated discovery agreement on May 28,2019, which pro­

vided the government would produce copies of any

Brady materials “upon execution and approval of this

Agreement, to be supplemented if and when addi­

tional materials become available.” (DCD 87 at f 3).

The government acknowledged that its duty to provide

Brady materials was a “continuing obligation,” both by

11

stipulation and by the rules of criminal procedure. (Id.

at H 13).

The government’s disclosures on January 19,

2020, on the eve of trial, came too late. The disclosures

covered benefits paid to the complaining witnesses as

far back as April 2019, before the government signed

the stipulated discovery agreement. The payments

continued throughout the trial preparation phase,

and were notably not included in several “supple­

mental disclosures” made by the government through­

out Streb’s case, on May 28, 2019, June 4, 2019, June

17, 2019, June 25, 2019, July 1, 2019, July 9, 2019, Au­

gust 1, 2019, August 29, 2019, October 17, 2019, Octo­

ber 22, 2019, November 6, 2019, November 19, 2019, .

December 13,2019, December 16,2019, January 6,2020,

January 7, 2020, January 11, 2020, January 15, 2020,

and January 18, 2020. There was no legitimate reason

not to disclose them earlier, and on a continuing basis.

The timing of the disclosure also violated DOJ Policy,

which requires impeaching evidence to be disclosed “at

a reasonable time before trial to allow the trial to pro­

ceed efficiently.” DOJ, Justice Manual 9-5001(D)(2).

The delayed disclosure was prejudicial to Streb’s

defense, even though he was able to deploy some of the

evidence effectively in cross-examination. In delayeddisclosure cases, “the critical inquiry is .. . whether the

tardiness prevented defense counsel from employing

the material to good effect.” United States v. Osorio,

929 F.2d 753, 757 (1st Cir. 1991). “[The] court’s princi­

pal concern must be whether learning the information

altered the subsequent defense strategy, and whether,

12

given timeous disclosure, a more effective strategy

would likely have resulted.” Id. (citing United States v.

Devin, 18 F.2d 280,290 (1st Cir. 1990)). The court must

determine whether the late-disclosed evidence was

material, and second, whether the defendant was de­

nied the opportunity to use that evidence effectively.

Id.

Streb’s case was complicated. The allegations in­

volved three different victims, who were trafficked by

multiple individuals other than Streb. The allega­

tions spanned a lengthy period of time, and they

shifted throughout the course of the investigation.

The complaining witnesses used controlled substances

throughout the time that they were trafficked, which

contributed to their memories being unclear. Without

documentary evidence of the funds and benefits that

were paid out to the complaining witnesses, it was ex­

ceptionally difficult to impeach them with that infor­

mation.

In response, the government and the courts have

simply noted that Streb was offered, and declined, a

continuance. This ignores the fact that Streb was de­

tained pre-trial, despite having virtually no criminal

history, no history of violence, and long-standing ties to

the community. He had a right to a speedy trial, and he

exercised that right, to avoid the further anguish of

waiting in jail pre-trial, by moving forward. The de­

fendant’s strategic decision not to seek a continuance

must be balanced against the “government’s negli­

gence in meeting its disclosure duties.” Osorio, 929

13

R2d at 760. As discussed below, the government’s ac­

tions here went beyond mere negligence.

3. The prosecutors were personally involved in

the payments to complaining witnesses,

raising ethical concerns.

The facts below demonstrate that the prosecutors

were personally involved in making payments or

providing benefits to the victims. The prosecuting at­

torney personally went shopping with a key witness

and provided benefits, yet disclosed no reports of these

activities until the eve of trial - and only then by way

of a “generic” letter at the direction of the United

States Attorney. The court recognized that this made

the prosecuting attorney a witness on the issue of bias.

[I]f the AUSA prosecuting the case and the

victim/witness coordinator and the key wit­

ness or a key witness are alone together on a

shopping trip and there’s no reports of that,

then all of a sudden the AUSA and the vic­

tim/witness coordinator become the witnesses

to anything that may have happened during

that particular trip.

(S.App. 15).

While it is true that the Government can offer wit­

nesses leniency and even compensation for testifying,

there have to be limits to protect the integrity of the

judicial system and a Defendant’s due process rights.

See, e.g., United States v. Ihnatenko, 482 F.3d 1097,1100

(9th Cir. 2007); United States v. Mojica-Baez, 229 F.3d

14

292, 301-02 (1st Cir. 2000); United States u. Febus, 218

F.3d 784, 796 (7th Cir. 2000); United States v. Harris,

210 F.3d 165, 167 (3d Cir. 2000); United States v.Anty,

203 F.3d 305, 311 (4th Cir. 2000); United States v.

Barnett, 197 F.3d 138, 144-45 (5th Cir. 1999); United

States v. Albanese, 195 F.3d 389,394-95 (8th Cir. 1999).

Obviously, the benefits need to be disclosed. For that to

properly happen, the benefits need to be documented.

Here, the government tried to skirt both require­

ments. Its initial disclosure — which the U.S. Attorney

instructed the prosecutor should be “generic” - did not

identify who paid the complaining witnesses, when

they were paid, or how they were paid. It did not iden­

tify the conditions for payment, or whether the com­

plaining witnesses met those conditions. It did not

contain any information that would allow the defense

to cross examine the complaining witnesses. (DCD 353

at 3). The Court recognized the deficiency of the disclo­

sure and ordered the Government to supplement. The

government struggled to do so - producing three more

disclosures after its initial disclosure. See, e.g. (DCD

353). There were no receipts to confirm who paid for

the witness benefits, or how much was paid. There was

never an explanation of why the first disclosure was so

bereft of details.

The reason the disclosure was so inadequate was

probably the government’s failure to document these

payments in the first place. The government should

know that payments to witnesses are exculpatory evi­

dence - whether it is commonplace or not, whether

there is a good reason for the payment or not. The

15

government’s -practice here of buying meals, handing

over personal items, and in some cases, providing the

complaining witnesses with cash, would be less con­

cerning if the matter were documented. The behavior

in this case was contrary to the prosecutor’s duty to do

justice, as outlined by the DOJ Guidelines:

All potential Giglio information known by or

in the possession of the prosecution team re­

lating to non-law enforcement witnesses should

be gathered and reviewed. That information

includes, but is not limited to:

=t= H= *

•

Benefits provided to witnesses including:

o Dropped or reduced charges

o Immunity

o Expectations of downward depar­

tures or motions for reduction of sen­

tence

o Assistance in a state or local criminal

proceeding

o Considerations regarding forfeiture

of assets

o Stays of deportation or other immi­

gration status considerations

o S-Visas

o Monetary benefits

o Non-prosecution benefits

o Letters to other law enforcement of­

ficials (e.g., state prosecutors, parole

boards) setting forth the extent of a

witness’s assistance or making sub­

stantive recommendations on the

witness’s behalf

16

o

o

Relocation assistance

Consideration or benefits to culpable

or at risk third-parties.

DOJ, Justice Manual 9-5002, Step I: Gathering and Re­

viewing Discoverable Information, (B)(7). The discov­

ery should again be disclosed a “reasonable amount of

time before trial.” Id. Step III: Making the Disclosures,

(B). And the “prosecutors should take great care to

ensure that the full scope of pertinent information is

provided to the defendant.” Id. Step III: Making the

Disclosures, (C).

The behavior in this case was also contrary to the

ABA Standards for prosecutors:

The prosecutor should be permitted to com­

pensate a witness for reasonable expenses

such as costs of attending court, depositions

pursuant to statute or court rule, and pretrial

interviews, including transportation and loss

of income. No other benefits should be pro­

vided to witnesses unless authorized by law,

regulation, or well-accepted practice. All ben­

efits provided to witnesses should be docu­

mented and disclosed to the defense. A

prosecutor should not pay or provide a benefit

to a witness in order to, or in an amount that

is likely to, affect the substance or truthful­

ness of the witness’s testimony.

ABA Standards for the Prosecutorial Function Stan­

dard 3-3.4(e).

1-7

Under similar circumstances, the- First Circuit

Court of Appeals has admonished prosecutors to take

their duty to do justice more seriously:

\

An Assistant United States Attorney using a

witness with an impeachable past has a con­

stitutionally derived duty to search for and

produce impeachment information requested

regarding the witnesses. See generally Giglio

v. United States, 405 U.S. 150 (1972). That con­

stitutional imperative, sharpened in this case

by specific court order, is not merely good pol­

icy. It is good strategy. No properly prepared

trial lawyer should permit himself to be sur­

prised by the vulnerability of his witness,

particularly when that vulnerability is well

known by his colleagues. To do so needlessly

hand a strategic advantage to one’s adversary.

And it is not merely sloppy personal practice;

it implicates the procedures of the entire office

for responding to discovery ordered by the

court.

Osorio, 929 F.2d at 761. Here, the prosecutors went be­

yond mere negligence. They were personally involved

in the payment of witness benefits, and they purpose­

fully provided a less-than . complete disclosure on the

eve of trial pursuant to the direction of the U.S. Attor­

ney. This was purposeful behavior, calculated to preju­

dice Streb’s right to a fair trial.

18

4. Even under the abuse of discretion standard

governing discovery violations, it was error

to deny a hearing into the government’s mis­

conduct.

Federal Rule of Criminal Procedure 16(d)(2) pro­

vides that the court may sanction failure to comply

with the discovery rules in a wide variety of ways:

[Tjhe court may:

(A) order that party to permit the dis­

covery or inspection; specify its time,

place, and manner; and prescribe other

just terms and conditions;

(B) grant a continuance;

(C) prohibit that party from introducing

the undisclosed evidence; or

(D) enter any other order that is j ust un­

der the circumstances.

Fed. R. Crim. P. 16(d)(2). Discovery sanctions (or the

lack thereof) are reviewed for abuse of discretion.

United States v. Sims, 776 F.3d 583,585 (8th Cir. 2015).

In deciding what sanction to impose, the court is to con­

sider (1) the reason for the delay in production of the

evidence, including whether the government acted in

bad faith; (2) whether the defendant was prejudiced;

and (3) whether a lesser sanction would secure future

compliance by the government. Id. at 585-86.

Here, the denial of a hearing prevented the de­

fense from introducing evidence of the government’s

bad faith. The questioning by defense counsel and the

19

Court was sufficient to support an inference of bad

faith. The necessity for a full, accurate, and timely dis­

closure was obvious, and was noted by the court, The

inadequacies of the government’s disclosures was un­

explained. Most significantly, the prosecutor stated

that she was instructed to provide a “generic” disclo­

sure by her boss, the U.S. Attorney. This suggests a

pattern or policy of not providing complete disclosures

to defense counsel of important Brady material. This

creates a concern that a lesser sanction — such as the

offered continuance or “liberal cross-examination” into

the undocumented payments - would not be enough

to secure future compliance by the government of its

obligations.

The Eighth Circuit has held that “an evidentiary

hearing is required” if a motion is “sufficiently definite,

specific, detailed, and nonconjectural to enable the

court to conclude that contested issues of fact” are in

question. United States v. Losing, 539 F.2d 1174, 1177

(8th Cir. 1976); see also Franks v. Delaware, 438 U.S.

154, 156 (1978). While those cases discussed suppres­

sion issues, they stand for the principal that the Court

should not be deciding contested evidentiary issues,

particularly those bearing on credibility, without look­

ing at the actual evidence. An evidentiary hearing was

warranted. Failure to grant an evidentiary hearing

gave the government cover to keep important, exculpa­

tory information in the dark.

20

CONCLUSION

When the government fails to disclose exculpatory

evidence, and fails to document its payments to wit­

nesses, more than a continuance is needed. More than

cross examination of those witnesses is needed. Justice

depends on the court system understanding why pay­

ments are given to witnesses, and why they go undoc­

umented. A hearing was warranted in this case. The

petition for writ of certiorari should be granted to es­

tablish uniform rules and procedures for the manage­

ment of similar scenarios.

Respectfully submitted,

Parrish Kruidenier Dunn Gentry

Brown Bergmann & Messamer, L.L.P.

Alfredo Parrish

Counsel of Record

2910 Grand Avenue

Des Moines, Iowa 50312

Telephone: (515) 284-5737

Facsimile: (515) 284-1704

Email:

aparrish@parrishlaw.com