Case 3:18-cr-04683-GPC Document 187 Filed 06/19/20 PageID.1927 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`ROBERT S. BREWER, JR.
`United States Attorney
`MELANIE K. PIERSON
`SABRINA L. FEVE
`ASHLEY E. GOFF
`RANDY S. GROSSMAN
`Assistant United States Attorney
`California Bar Nos. 112520/226590/299737/177890
`880 Front Street, Room 6293
`San Diego, CA 92101-8893
`Tel: (619) 546-6786
`Sabrina.Feve@usdoj.gov
`Attorneys for the United States
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`MOHAMMED ABDUL QAYYUM (3),
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`
`Defendant.
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`Case No. 18cr04683-GPC
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`SUR-REPLY IN OPPOSITION TO
`DEFENDANT MOHAMMED ABDUL
`QAYYUM’S MOTION TO SUPPRESS
`STATEMENTS
`
`Honorable Gonzalo P. Curiel
`
`Date: June 26, 2020
`Time: 2:30 p.m.
`Ctrm: 2D
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`I.
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`INTRODUCTION
`On June 12, 2020, Defendant Mohammed Abdul Qayyum (“Qayyum”) filed a
`reply brief in support of his motion to suppress (the “Reply”). ECF No. 180. In Section
`IV of his Reply, Qayyum requests an order from the Court compelling the United States
`to produce certain discovery and for an opportunity to be heard regarding a protective
`order recently issued by the Court related to the production of confidential materials.
`The Court directed the United States to file a sur-reply addressing Qayyum’s new
`discovery request. ECF No. 182. The United States does so here.
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`Case 3:18-cr-04683-GPC Document 187 Filed 06/19/20 PageID.1928 Page 2 of 14
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`The United States opposes Qayyum’s request for an order compelling production
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`of additional discovery. Qayyum’s discovery request is premature and his portrayal of
`the United States’ discovery efforts is inaccurate. His discovery request also fails to
`distinguish between material subject to Rule 16 of the Federal Rules of Criminal
`Procedure (“Rule 16”), and that subject to Brady v. Maryland, 373 U.S. 83 (1963),
`Giglio v. United States, 405 U.S. 150 (1972), and the Jencks Act (“Jencks”), 18 U.S.C.
`§ 3500. Production of Jencks and Giglio material need occur only after a witness
`testifies on direct examination, and both logically require there be a hearing or trial at
`which witnesses will likely be called. In this case, upon receiving Qayyum’s motion to
`suppress and learning his account of the interview, the United States began preparing
`for a likely evidentiary hearing. To this end, it identified potential witnesses and
`undertook efforts to locate Jencks and Giglio material. It also sought out any evidence
`that could be deemed material under Rule 16 or Brady to the motion to suppress and its
`newly-disclosed facts. The United States then produced Jencks materials (prior
`consistent statements for its potential witnesses, FBI Special Agents Charles Chabalko
`and Jason Pearson) in advance of the evidentiary hearing and is actively conducting a
`review under Gigilio and United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), of
`which both the Court and defense counsel are aware. In light of these ongoing and active
`efforts, Qayyum’s discovery requests are premature.
`In particular, the United States anticipates producing additional confidential
`materials requested by Qayyum once it obtains the materials from FBI headquarters,
`has the opportunity to review the materials, and, if needed, submits the materials for in
`camera review and a protective order. With that production, the United States will have
`made a reasonably diligent effort to produce the discoverable materials that are in its
`possession and responsive to Qayyum’s requests. These current efforts build upon the
`United States having repeatedly demonstrated its commitment to, and recognition of,
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
`18cr4683-GPC
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`its ongoing discovery obligations. Accordingly, the United States requests that the
`Court deny without prejudice Qayyum’s request for a discovery order.
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`II. FACTUAL & PROCEDURAL BACKGROUND
`A. Discovery Produced Prior to Qayyum’s Motion to Suppress
`Qayyum and his codefendants were indicted on October 31, 2018 and arraigned
`on November 1, 2018. On November 4, 2018, the United States produced in discovery
`the 257 exhibits submitted to the grand jury (888 pages). On December 4, 2018, the
`United States produced approximately 180 reports generated by the FBI (about 850
`pages). This discovery included the report, or “302,” written by Agent Chabalko
`describing his and Agent Pearson’s September 9, 2016 interview with Qayyum.
`Between December 17 and 20, 2018, the United States produced 55 gigabytes (922,971
`pages) of discovery, which contained evidence obtained from search warrants and
`subpoenas.
`On January 23, 2019, the United States produced plea agreements and
`addendums for two cooperating defendants, along with additional FBI reports relating
`to recent investigative efforts (i.e., those occurring during the latter half of 2018), bank
`records, and subpoena responses from third-party providers. On March 13, 2019, the
`United States produced records it received in February 2019 from a mail-forwarding
`service used by Defendants, along with records previously obtained from Yahoo!. On
`May 15, 2019, the United States produced records received in April 2019 from a holding
`company controlled by Defendants’ employer, criminal history reports for a
`cooperating defendant, and legal process served on Yahoo!. On June 4, 2019, the United
`States produced email records Defendants’ employer had recently provided, two
`witness interview reports, and two emails obtained from a cooperating defendant’s
`lawyer. On August 15, 2019, the United States produced records it had recently obtained
`from both ARIN and Defendants’ employer. On November 7, 2019, the United States
`produced records it had again recently obtained from Defendants’ employer and 12
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
`18cr4683-GPC
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`emails involving a cooperating defendant. On December 16, 2019, the United States
`produced in discovery a December 2019 news article involving hijacked netblocks
`associated with Defendants’ employer. On January 9, 2020, the United States produced
`records it had recently obtained from Defendants’ employer relating to the hijacked
`netblocks discussed in the December 2019 news article. Whenever possible, the United
`States compiled and provided a detailed index of the materials it was producing in
`discovery.
`B. Discovery Relating to Qayyum’s Motion to Suppress
`On May 15, 2020, Qayyum filed a motion to suppress the statements he made to
`the FBI in September 2016. ECF No. 162. In support of his motion, he submitted a
`sworn declaration. Id. This was the first time the United States heard Qayyum’s account
`of his interview. Prior to filing the motion, Qayyum’s counsel had contacted the
`prosecution regarding discovery requests relating to the September 2016 statements. In
`particular, on January 6, 2020, Qayyum’s attorney asked the United States for: (1)
`reports regarding the FBI’s interviews with Qayyum on September 9, 12, and 13, 2016,
`including rough notes; (2) a list of individuals present at those interviews; (3) any audio
`or video recordings of the interviews; and (4) any reports or notes of the procedures the
`agents intended to utilize or statements they intended to make during the interviews. On
`January 14, 2020, defense counsel followed up and also requested: (5) documents and
`reports showing when agents arrived at Qayyum’s residence, when the interview began,
`and when the interview ended; (6) identification or production of the documents brought
`to the interview and shown to Qayyum; and (7) documents showing the FBI or United
`States Attorney’s Office position as of September 9, 2016 regarding whether Qayyum
`was a witness, subject, or target.
`On January 15, 2020, the United States responded. It provided the exact Bates
`numbers for the report on Qayyum’s interview and for the documents shown to Qayyum
`during the interview (previously produced in December 2018). The prosecutors advised
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
`18cr4683-GPC
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`defense counsel that the interview was not recorded and that the report named everyone
`present during the interview. The United States further advised defense counsel that it
`had conducted a search in response to defense counsel’s January 6 and January 14, 2020
`emails and found no documents discussing or regarding the agents’ plan for the
`interview or any discussion of Qayyum’s status as a witness, subject, or target. The
`United States said it had not located any rough notes to date, but would produce them
`if they were found.
`On January 16, 2020, Qayyum’s counsel replied, indicating Qayyum believed
`that Agent Pearson had taken notes during the interview and requesting that the United
`States ask Agents Pearson and Chabalko if either made notes and, if they did, do they
`still exist and if not, when and why did they destroy them. Counsel also asked for any
`records that would show when the interview began and when it concluded. That same
`day, the United States responded. The United States advised defense counsel that it had
`repeatedly consulted with the agents after defense counsel’s January 6 and January 16,
`2020 emails, and that on both occasions learned that Agent Pearson took no notes. The
`United States added that Agent Chabalko had “indicated it was his practice, if he took
`notes, to place them in the 1A portion of the FBI files. He checked the 1A folder and it
`contained the documents he showed your client during the interview but no notes.” The
`United States added that there were “no records indicating the time the interview began
`and ended.” The United States closed by stating that, during this follow-up, it had found
`an email chain exchanged between Qayyum and Agent Chabalko and that the email
`chain would be produced “immediately, along with a new report from Agent Chabalko,
`documenting his non-substantive contact with your client.”
`On January 17, 2020, the United States produced the emails exchanged between
`Qayyum and Agent Chabalko to schedule a follow-up meeting and a report prepared by
`Agent Chabalko on January 16, 2020, which described the brief follow-up meeting with
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
`18cr4683-GPC
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`Qayyum at Starbucks and the date and circumstance in which Agent Chabalko learned
`that Qayyum was a represented party.
`On January 28, 2020, defense counsel sent a supplemental discovery request
`seeking: (1) review of Agents Chabalko and Pearson’s personnel files for, and
`discovery of, any evidence of perjury, dishonesty, complaints, demotions, discipline;
`(2) any directives to Agents Chabalko and Pearson in advance of their interview of
`Qayyum; (3) any FBI policy memos regarding (a) when a 302 should be prepared, (b)
`recording interviews with subjects and targets, and (c) note-taking of subjects and
`targets. The same day, the United States replied that it was aware of its “obligation to
`provide impeachment information with regard to our witnesses” and advised that, if
`discoverable information exists in the testifying agents’ personnel files, it would be
`provided.”1
`On February 19, 2020, defense counsel responded to the government’s January
`28, 2020 email. Counsel reiterated its requests for categories #2 and #3 and stated that
`they were also requesting the following additional discovery: (4) all drafts of the 302
`report; (5) all communications between the agents and between the agents and any
`AUSA regarding the drafts; and (6) any and all changes to the drafts. The United States
`responded that same day and provided defense counsel with the FBI policies they had
`requested, noting that while it did not believe disclosure was required, the policies were
`already public. The United States also replied that, with regard to the rest of defense
`counsel’s requests, “no records exist that are responsive.”
`After Qayyum filed his motion and supporting declaration on May 15, 2020, the
`United States had the opportunity to review his statement for the first time. Based on
`the facts of that statement (including new allegations regarding an agent displaying a
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`1 On January 28, 2020, the government also submitted an internal request for Henthorn-related material
`regarding Agents Pearson and Chabalko. This request is not itself discoverable, but can be provided
`ex parte to the Court if needed.
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
`18cr4683-GPC
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`firearm that had never previously been disclosed), as well as the likelihood that Agents
`Chabalko and Pearson would testify, the United States undertook a review of potential
`Jencks and Giglio material. In response to this review for Jencks and Giglio, the
`government produced: (1) Jencks material for Agent Chabalko in the form of prior
`grand jury testimony, which it produced on June 1, 2020; (2) Jencks material for Agent
`Chabalko in the form of an email he sent on September 13, 2016 that Qayyum was
`“talking,” which it produced on June 12, 2020; and (3) Jencks material in the form of
`emails between Agents Pearson and Chabalko on September 13, 2016, wherein (a)
`Agent Chabalko advised his squad he would miss a morning meeting because “I have a
`meeting with a cooperator regarding my IP hijacking investigation this morning at 8 am.
`I should be in the office around 9:30 am,” and (b) Pearson responded to just Chabalko,
`“Best of luck with that, Chuck – let me know how it goes!!,” which it produced on June
`16, 2020. The United States has also undertaken a review for potential Giglio
`information.
`On June 1, 2020, after receiving Agent Chabalko’s grand jury statements, defense
`counsel contact the United States and requested that it state: (1) whether there was any
`other discovery relating to Qayyum’s interview; (2) whether there were any other
`documents or recordings relating to Qayyum’s interview; (3) whether the FBI,
`government, or agents ever had written notes, voicemails, or records regarding the
`interview and, if so, why those records no longer existed; (4) whether Agent Chabalko
`disavowed having taken notes; (5) whether Agent Chabalko reviewed any of Qayyum’s
`statement prior to or during his grand jury testimony; and (6) what Agent Chabalko
`reviewed prior to or while writing his report on his follow-up meeting with Qayyum at
`the Starbucks and the identity of any individual with whom Chabalko communicated
`with before writing his report.
`The next day, on June 2, 2020, the United States responded. The United States
`advised defense counsel that the grand jury testimony it had received on June 1, 2020
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`18cr4683-GPC
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`was “advance Jencks material for Agent Chabalko” and contained “no information
`whatsoever that was not contained in his report of the interview, disclosed pursuant to
`Rule 16 in the initial production of discovery.” The United States also advised that it
`was unaware of any legal authority whereby the United States was required to create
`documents that do not exist to answer questions.
`A week later, on June 10, 2020, defense counsel responded by reiterating their
`demand for answers to the questions raised in their earlier email. Further, in light of
`having received discovery pursuant to a protective order (the “confidential materials”),
`they requested additional evidence. The next day, on June 11, 2020, the United States
`responded, “[a]fter receiving your message yesterday, we have been diligently trying to
`obtain the requested records for review. We have come to learn that the records you
`request relating to [the confidential materials] are not in the San Diego office of the FBI
`but instead reside in Washington, DC. We are further advised that, due to low staffing
`. . . due to the pandemic, it could take as much as two weeks or more to obtain the
`records you request. In light of these facts, we do not oppose any request to continue
`the hearing to a later date.” On June 12, 2020, the day after receiving this email, Qayyum
`filed his Reply in which he included a motion for discovery.
` III. ARGUMENT
`Qayyum moves the Court for an order compelling production of three categories
`of documents, the first of which appears to subsume the latter two: (1) “any additional
`discovery” related to Qayyum’s interview; (2) “any other statements, recordings,
`reports, or writings” related to Qayyum’s interview; and (3) a “government response”
`to the question of whether there were notes of Qayyum’s interview. Reply at 5. The
`Court should deny his requests because the United States has complied with its
`obligation to produce the discovery in its possession to which Defendant is entitled
`under Rule 16, Brady, Giglio, and Jencks, and it will continue to do so with respect to
`the outstanding request for confidential materials. Qayyum’s requests for any additional
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`discovery beyond what the United States has provided and is in the process of obtaining
`go beyond the scope of Rule 16 or Brady and are premature under Giglio and Jencks.
`A. Rule 16 and Brady
`Under Rule 16(a)(1)(A) and (B), the government must disclose to a defendant
`“the substance of any relevant oral statement made by the defendant” and “copies of
`any relevant written or recorded statement by the defendant if the statement is within
`the governments possession, custody, or control.” A defendant also has a right to inspect
`all documents, data, or tangible items within the government’s “possession, custody, or
`control” that are “material to preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E).
`Evidence is “material” under Rule 16 if it is helpful to the development of a possible
`defense. United States v. Olano, 62 F.3d 1180, 1203 (9th Cir. 1995). A defendant must
`make a “threshold showing of materiality” in order to compel discovery pursuant to
`Rule 16(a)(1)(E). United States v. Budziak, 697 F.3d 1105, 1111 (9th Cir. 2012)
`(quoting United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995)). “Neither a general
`description of the information sought nor conclusory allegations of materiality suffice;
`a defendant must present facts which would tend to show that the Government is in
`possession of information helpful to the defense.” Id. (quoting United States v. Mandel,
`914 F.2d 1215, 1219 (9th Cir. 1990)). Similarly, “Brady does not establish a ‘duty to
`provide defense counsel with unlimited discovery of everything known by the
`prosecutor’” nor does “mere speculation about materials in the government’s files”
`require the district court to make those materials available or conduct an in camera
`review. United States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986).
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`Here, the United States has complied with its obligations to provide Qayyum with
`his statements under Rule 16(a)(1)(A) and (B). The government has produced copies of
`the FBI reports related to those statements, repeatedly inquired with the FBI into the
`existence of notes, and has explained to Qayyum’s counsel the inquiry the United States
`has undertaken to provide them with responsive and discoverable statements.
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`To the extent Qayyum relies on Rule 16(a)(1)(E) to support his broad, catch-all
`requests for “any additional discovery” and “additional statements”, those requests are
`overbroad in that he does not limit them to material or exculpatory information under
`Rule 16 or Brady. Rule 16 and Brady do not support general fishing expeditions, nor do
`Qayyum’s broad requests help the United States understand what he believes is missing.
`See United States v. Mincoff, 574 F.3d 1186, 1199–2000 (9th Cir. 2009) (affirming
`denial of discovery motion where defendant speculated about information in the
`government’s file and had “not identified any potentially exculpatory evidence that was
`not disclosed to him”); Michaels, 796 F.2d at 1116 (affirming denial of motion to
`compel interview notes under Brady where the defendant “offer[ed] no reason for
`believing that the notes contain[ed] significant material that [was] not contained in the
`typed [interview] summaries”).
`Rather than satisfying Rule 16’s materiality standard or claiming exculpatory
`information exists, Qayyum focuses on the United States’ recent productions as the
`basis for his demands. As described above, the United States has produced responsive
`discovery to Qayyum and has continued to produce additional documents when it
`received new information or new discovery obligations arose. For example, when
`counsel for Qayyum articulated that additional documentation regarding contact with
`him might be material in January 2020, the United States reviewed its files and produced
`responsive documents under Rule 16. See Reply at 4. Then, before the Court even
`granted an evidentiary hearing on Qayyum’s motion to suppress, the United States
`evaluated its likely new discovery obligations under Giglio and Jencks and began
`proactively producing sworn testimony, emails (described above), and confidential
`materials that were not previously subject to production. Those subsequent productions
`do not show that material undisclosed discovery exists, as Rule 16 requires. Instead,
`they show that the United States has continually understood and complied with its
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
`18cr4683-GPC
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`discovery obligations, including supplementing productions when new discovery
`obligations were triggered by potential agent testimony.
`Qayyum’s third discovery request for a “government response” further falls
`outside the scope of Rule 16 and Brady. Qayyum recognizes that the United States
`already informed him that it has inquired of the agents and been told that no rough notes
`of the interview exist. Reply at 4. That response should end the inquiry. See
`Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (“Unless defense counsel becomes
`aware that other exculpatory evidence was withheld and brings it to the court’s
`attention, the prosecutor’s decision on disclosure is final.”).
`Despite having received a response to his question and lacking any tangible
`evidence to the contrary, Qayyum asks the Court to order the United States to create a
`“government response.” Reply at 4. Rule 16 and Brady do not, however, require the
`United States to manufacture evidence. See United States v. Sukumolahan, 610 F.2d
`685, 687 (9th Cir. 1980) (finding Brady does not require the government “to create
`exculpatory evidence that does not exist”); United States v. Rigmaiden, 844 F.Supp.2d
`982, 997 ((D. Ariz. Jan 5, 2012) (citations omitted) (“The rule does not require the
`government to create documents that may provide information a defendant desires to
`obtain, nor does it require the government to present agents or witnesses for interviews
`or in-court examination.”); United States v. Cameron, 672 F. Supp. 2d 133, 137–39 (D.
`Me. 2009), amended (Nov. 30, 2009) (noting the defense’s discovery demands
`“sound[ed] more like civil interrogatories under Civil Rule 33 than document requests
`under criminal Rule 16(a)(1)(E)”).
`The United States has provided discoverable materials in its possession under
`Rule 16 and Brady, and Agents Chalbalko and Pearson will be available to testify at the
`evidentiary hearing on Qayyum’ss motion to suppress. To the extent he seeks further
`discovery on this point, Qayyum has not explained why it is material or exculpatory, or
`how the nonexistent records are in the government’s “possession, custody, or control”
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`as required by Rule 16(1)(E). His request for further response to his question about
`whether there were notes should therefore be denied.
`B. Jencks and Giglio
`Production of witness statements is governed by Jencks, and need occur only
`after the witness testifies on direct examination. Mincoff, 574 F.3d at 1200; United
`States v. Taylor, 802 F.2d 1108, 1118 (9th Cir. 1986) (Jencks “limits compulsory
`pretrial discovery of statements made by prospective government witnesses and makes
`them unavailable until such witnesses have testified at trial.”); United States v. Mills,
`641 F.2d 785, 790 (9th Cir. 1981) (Rule 16(a)(2) excludes from pretrial discovery
`“statements made by government witnesses or prospective government witnesses”
`except as provided by Jencks).
`Giglio, which arose under Brady, requires the prosecution to disclose “any
`promises, inducements, or threats made to witnesses to gain cooperation in the
`investigation or prosecution.” Mincoff, 574 F.3d at 1199 (citations omitted). Both the
`Supreme Court and Ninth Circuit have generally interpreted Giglio to require the
`production of evidence that would impeach a government witness’s testimony. See, e.g.,
`United States v. Bagley, 473 U.S. 667, 676-77 (1985); United States v. Baker, 988 F.2d
`77, 79 (9th Cir. 1993) (“the duty imposed on the prosecution in Brady extends not only
`to exculpatory information about the defendant but also to information about witnesses
`which would undermine the government’s case”); United States v. Salyer, 271 F.R.D.
`148, 151 (E.D. Cal. 2010). Impeachment material need not be disclosed under Giglio
`until after a witness testifies. United States v. Rinn, 586 F.2d 113, 119 (9th Cir. 1978)
`(impeachment information subject to Giglio “need not be disclosed prior to the witness
`testifying.”); Salyer, 271 F.R.D. at 151.
`To the extent Qayyum seeks discovery under Giglio or Jencks, a discovery order
`is unnecessary and premature. The United States has voluntarily produced Jencks
`material without either a court order or a set hearing date, and recognizes that its
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`obligations under Brady and Giglio cover not only exculpatory evidence, but also
`evidence that could be used to impeach witnesses who testify on behalf of the United
`States. As evidenced by its proactive disclosure of the confidential materials in this case,
`the United States is aware that this obligation also extends to evidence that was not
`requested by the defense. Bagley, 473 U.S. at 682; United States v. Agurs, 427 U.S. 97,
`107-10 (1976).
`The United States has provided discoverable materials in its possession that
`potentially fall within Jencks and Giglio and is diligently working with the FBI to obtain
`additional confidential materials that may exist to further comply with Jencks and
`Giglio. Those materials, to the extent they exist, are at FBI headquarters in Washington
`D.C., which is currently under limited staffing due to the COVID-19 pandemic.
`Nonetheless, the United States is working diligently to gain access to the materials.
`Ruling on the discoverability of that material is premature because the scope of
`responsive materials is currently unknown and the United States is exercising due
`diligence to obtain them. The United States recognizes its discovery obligations and
`will produce discoverable information once and if it receives any. To the extent the
`United States is unsure of its discovery obligations and intends to withhold materials
`received in relation to these requests, it will submit the relevant materials to the Court
`for in camera review. Accordingly, the Court should deny as premature the requests for
`a discovery order as to Giglio or Jencks material and revisit them if disputes exist after
`receipt of the relevant materials.
`Finally, the United States disagrees with Qayyum’s assertion that the amended
`protective order issued by the Court on June 8, 2020 unduly restricts his ability to
`investigate. To the contrary, Paragraph 5 of that order expressly permits Qayyum’s
`counsel to disclose the materials to “assistants” involved in investigating the case and
`thus does not impede Qayyum’s own defense team. Qayyum has not explained why a
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
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`broader disclosure to unidentified “witnesses” or the “broader defense group” is
`necessary or justified.
`IV. CONCLUSION
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`For the reasons discussed above, the Court should deny Qayyum’s request for an
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`order compelling discovery or modifying the Court’s amended protective order.
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`DATED: June 19, 2020
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`Respectfully Submitted,
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`ROBERT S. BREWER, JR.
`United States Attorney
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` ________________________
`SABRINA L. FEVE
`Assistant United States Attorney
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`Gov. Sur-Reply in Resp. to Def.’s Motion to Suppress
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