CA9: Witness’s later testimony revealed doubt on private search; remanded for that and whether there was a Brady violation

This case arose from a mortgage fraud indictment and trial where a combined Brady/Fourth Amendment issue arose after the trial. The government’s lead witness in procuring evidence testified after the trial that the defendant’s records were procured at the request of the government. The district court erred in denying a hearing and further discovery on whether this was truly a private search. And, as this issue develops, it could change the district court’s outcome on the Brady impeachment issue, too. United States v. Mazzarella, 2015 U.S. App. LEXIS 6448 (9th Cir. April 20, 2015):

First, the desire to “do the right thing” that the district court identified here is indistinguishable from the crime prevention motive that we rejected in Reed. Also, per Brown’s testimony, the government did not merely acquiesce but asked Brown to gather evidence. If Brown’s testimony is accurate, her copying may have implicated the Fourth Amendment. We cannot say on the present record whether Brown had actual or apparent authority to turn over the documents to the government. Testimony from the related trial from a DREI employee who apparently assisted Brown with the copying that “Eve [Mazzarella] would have gone insane if she knew that we were … copying old investor files,” at least suggests that Brown lacked actual authority to copy and disclose the documents. But there is no further evidence on this issue in the record, no evidence at all related to Brown’s apparent authority or the other DREI employee’s apparent authority, and the district court made no findings on the issue.

Second, the district court’s conclusion that there is no evidence that documents were actually disclosed to the government is not supported by the record. That finding is contradicted by Brown’s sworn testimony that she turned over her copies to the appropriate people. While one FBI agent testified that he did not recall receiving any copied documents from Brown, further discovery is necessary to resolve the issue, and the district court should make findings of fact on this issue.

Third, the government’s declaration that none of the exhibits introduced at trial were from documents obtained by Brown, even if true, does not resolve the potential Fourth Amendment problem. The exclusionary rule bars the introduction of “derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes so attenuated as to dissipate the taint.” Murray v. United States, 487 U.S. 533, 536-37, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) (internal quotation marks omitted). After determining whether a search within the meaning of the Fourth Amendment occurred and whether any documents from that search were given to the government, the district court must also determine what trial evidence, if any, was the fruit of an unlawful search such that it should have been suppressed.

After making these determinations, the district court should consider again the cumulative effect of the impeachment evidence it considered before, and the additional impeachment evidence that Mazzarella sought to place before this court. This material must be considered together with any evidence that should have been excluded from trial under the Fourth Amendment to determine whether any of Mazzarella’s convictions must be vacated and a new trial granted.