A. FINDING NEWLY DISCOVEred EVIDENCE
Typically, the government has records in about 15 different agencies related to a criminal Defendant. When the prosecutor goes before the judge, the judge might ask the Prosecutor if he has produced the evidence in “his files” for your case. The Prosecutor will probably say he has produced the evidence in his files. What will conveniently be omitted by the Prosecutor is that he is required to produce evidence in “all agencies” of the government, and that the prosecutor has conveniently moved the evidence to other agencies so the Defendant does not see it. It is never the prosecutor’s duty to determine what evidence is material, and it is not your responsibility to have to go on a treasure hunt to find the evidence. In order to have a fair trial, or a fair plea process, the government is required to produce all records in all agencies of the government for review prior to trial, or prior to a knowing and intelligent plea agreement.
Unfortunately, the government never does.
B. OBTAINING EVIDENCE OF CONCEALMENT
In order to obtain evidence of concealment, you need to send FOIA requests to all agencies that might have records on you, and request the answers returned certified. Typical government agencies which might have records include: State Department, FBI, DEA, EOUSA, Interpol, Treasury, Comptroller of Currency, FINCEN, Department of Justice, Criminal Division of the Department of Justice, Homeland Security. Go through the list of possible agencies and identify any agency that could have records on you. Then send in FOIA requests and request the answers to be returned certified. You need to be prepared to file a FOIA suit in Washington , DC court (never in your district court), if necessary to obtain the records.
NEWLY DISCOVEred EVIDENCE IS MATERIAL BY LAW
The United States Constitution is the government’s contract with its citizens. The Fifth Amendment requires: “No person shall be …be deprived of life, liberty, or property, without due process of law …” The Sixth Amendment requires: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
Due Process requires a prosecutor to disclose all favorable evidence to a defendant in a criminal case. Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1994, 1196-1197, 10 L. Ed . 2d 215 (1963); Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).
The government knows or should know that the records concealed and/or destroyed are Brady material. U.S. v. Garrett, 238 F.3d 293, 297 (5th Cir. 2000). The concealment of the records can impact trial strategy and the organized and efficient preparations for trial by defense counsel and the court. Id. It is the job of the defense, not the prosecution, to decide whether and in what way to use arguably favorable evidence. Id.
The concealment of the evidence by the government establishes its materiality as a matter of law, creating a presumption that can not be overcome by the government. Runkle v. Burnham, 153 U.S. 216, 38 L. Ed . 694, 14 S.Ct. 837 (1894)(the failure of a party to produce in evidence or to testify in reference to an instrument, when its contents were peculiarly within its knowledge, justifies the presumption that its provisions would have been unfavorable to his position); Kirby v. Tallmadge, 160 U.S. 379, 16 S.Ct. 349, 40 L. Ed . 463 (1896)(the failure of a party to produce evidence in his power in elucidation of the subject matter in dispute raises a presumption against him); Fitsimmons v. Ogden, 7 Cranch 2, 11 U.S. 2, 3 L. Ed . 249 (1812); Wetmore v. Rymer, 169 U.S. 115, 42 L. Ed . 682, 18 S.Ct. 293 (1898) Burdine v. Johnson, 262 F.3d 336, 366 (5th Cir. 2001)(failure to produce available evidence justifies an inference that it would be unfavorable to the other party).
The government waives its right to claim privileges on documents concealed. SEC v. First Financial Group of Texas, Inc., 659 F.2d 660, 668-669 (5th Cir. 1981); Clarke v. American Commerce National Bank, 974 F.2d 127, 129 9th Cir. 1992); Spence v. Johnson, 80 F.3d 989, 1005 (5th Cir. 1996)(inadmissible evidence may be material and disclosable); Sellers v. Estelle, 651 F.2d 1074, 1077, n.6 95th Cir. 1981); Peat, Marwick, Mitchell, & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984)(failure to make a clear showing that privilege applies to a document sought in discovery is not excused by a later showing that the document would have been privileged if a timely showing had been made).
As a matter of law, the burden on concealed evidence now shifts to the government and the government can not carry that burden. See Campbell v. United States , 365 U.S. 85, 96, 5 L. Ed . 2d 428, 81 S.Ct. 421 (1961)(“[T]he ordinary rule, based on considerations of fairness, does not place the burden on a litigant of establishing facts peculiarly within the knowledge of his adversary”); United States v. New York, N.H. & H.R. Co., 355 U.S. 253, 78 S.Ct. 212, 2 L. Ed .2d 247 (1957); Allstate Finance Corp. v. Zimmerman, 330 F.2d 740, 744 (5th Cir. 1964)(where burden of proof of negative fact normally rests on one party, but that party has peculiar knowledge or control of evidence as to such matter, the burden rests on the latter to produce such evidence, and failing, the negative will be presumed to be established); United States v. Denver & R.G.R. Co, 191 U.S. 84, 24 S.Ct. 33, 48 L. Ed . 106 (1893); Morgan v. Gardner, 264 F.Supp. 476, 577-578, F.N. 3 (S.D.Miss. 1967)(“…The rule is applicable even in criminal cases”); Local 167 Brotherhood of Teamsters v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L. Ed . 804 (1934); Patco v. Federal Labor Relations Authority, 685 F.2d 547, 577, FN 65 (D.C.Cir. 1982)(“Common sense and established principles of evidence disfavor unnecessarily placing such difficult, perhaps impossible burdens on a party”); Allseas Maritime, S.A. v. M/V Mimosa, 812 F.2d 243, 248 (5th Cir. 1987).
The government’s conduct and concealment of the evidence not only violates Due Process but also violates F.R.Civ.P. 16(c) (continuing duty to disclose); F.R.Civ.P. 11(b) (representations to the Court); F.R.Civ.P 26(e) (supplementation of disclosures and responses); F.R.Civ.P. 26(g) (signing of disclosures, discovery requests, responses, and objections); F.R.Civ.P. 37(failure to make disclosure or cooperate in discovery; sanctions); F.R.Crim.P. 16(c); F.R.Civ.P. 11(b); F.R.Civ.P. 26(e); F.R.Civ.P 26(g); and F.R.Civ.P. 37).
The government’s conduct in concealing evidence also violates most standing orders regarding discovery and the Court’s orders for discovery in trial proceedings.
The failure to disclose violates the Code of Professional Conduct, local rules, and the quasi-judicial responsibility of the prosecutors. Strickler v. Greene, 527 U.S. 263, 281, 144 L. Ed . 2d 286, 119 S.Ct. 1936 (1999) (the U.S. attorney is the representative of a sovereignty whose obligation to govern impartially is as compelling as its obligation to Govern at all).
The Ted Stevens case and Don Siegelman case are just the just the beginning of the evidence of fraudulent practices by the Office of U.S. Attorneys to obtain convictions. Why? When someone wins 99 percent of the time, they are not playing by the rules.
 When you present concealed evidence, you should request the court to take Judicial Notice of the Constitution of the United States . See Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L. Ed . 60 (1803)(Courts of the United States are bound to take notice of the Constitution).
 You should also request the court to take judicial notice of the Criminal and Civil Discovery rules and the plain meaning of the words and phrases of the rules. St. Louis, L.M. & S.R. Co. v. Starbird, 243 U.S. 592, 61 L. Ed . 917, 37 S.Ct. 462 (1917); Missouri K & T.R. Co. v. Wulf, 226 U.S. 570, 57 L. Ed . 355, 33 S.Ct. 35 (1913)(All courts, federal and state alike, take judicial notice of the public and general acts of Congress).
Munn v. Illinois, 94 U.S. 113 (1876)
Pennoyer v. Neff, 95 U.S. 714 (1878)
Lochner v. New York, 198 U.S. 45 (1905)
Muller v. Oregon, 208 U.S. 412 (1908)
Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)
Tyson & Brother v. Banton, 273 U.S. 418 (1927)
Nebbia v. New York, 291 U.S. 502 (1934)
Norris v. Alabama, 294 U.S. 587 (1935)
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)
Chambers v. Florida, 309 U.S. 227 (1940)
Betts v. Brady, 316 U.S. 455 (1942)
Kent v. Dulles, 357 U.S. 116 (1958)
Bartkus v. Illinois, 359 U.S. 121 (1959)
In re Gault, 387 U.S. 1 (1967)
Loving v. Virginia, 388 U.S. 1 (1967)
Rowan v. United States Post Office Department, 397 U.S. 728 (1970)
Johnson v. Louisiana, 406 U.S. 356 (1972)
Fuentes v. Shevin, 407 U.S. 67 (1972)
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)
Perry v. Sindermann, 408 U.S. 593 (1972)
Goss v. Lopez, 419 U.S. 565 (1975)
Paul v. Davis, 424 U.S. 693 (1976)
Hampton v. Mow Sun Wong, 426 U.S. 88 (1976)
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)
Castaneda v. Partida, 430 U.S. 482 (1977)
Harris v. McRae, 448 U.S. 297 (1980)
Youngberg v. Romeo, 457 U.S. 307 (1982)
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983)
Hudson v. Palmer, 468 U.S. 517 (1984)
Bowers v. Hardwick, 478 U.S. 186 (1986)
BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)
Washington v. Glucksberg, 521 U.S. 702 (1997)
Chicago v. Morales, 527 U.S. 41 (1999)
Troxel v. Granville, 530 U.S. 57 (2000)
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