Discovery and Separate Sovereigns

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Suppose that both the local police and the federal Drug Enforcement Administration suspect that Derek is selling drugs. The police are a step ahead, and they arrest Derek and charge him before the federal authorities are able to do so. Derek’s lawyer asks the prosecutor to provide discovery and argues that because the DEA was “involved in the investigation of the crimes committed,” the state is required to produce the DEA’s file along with the police file. G.S. 15A-903. Is he right?

Generally, no. The state must produce “only those matters in its possession.” State v. Thompson, 187 N.C. App. 341 (2007). The contents of the DEA file are not within the state’s control, and it therefore cannot be required to produce them. I’m not aware of a case on point in North Carolina, but the cases elsewhere are uniform. See, e.g., Caplan v. State, 23 So.3d 1230 (Fla. Ct. App. 4th Dist. 2009) (“[T]he state could not produce [federal investigative reports] because it did not have the reports in its control.”); People v. Santorelli, 741 N.E.2d 493 (N.Y. 2000) (“[T]he People cannot be charged with failure to disclose materials they themselves could not obtain from law enforcement officers answerable to another sovereign.”); Wade v. State, 966 P.2d 160 (Nev. 1998) (“the State was not in a position of authority to order the federal DEA, an entity that did not act as an agent of the State prosecution, to cooperate” in providing discovery); Ferguson v. State, 487 S.E.2d 467 (Ga. Ct. App. 1997) (“there was no evidence that the FBI or any of its agents worked for or was subject to the control or authority of the State prosecutor,” so knowledge possessed by federal agents could not be imputed to state prosecutor).

There is an exception to this rule, however. If the state and federal authorities worked together on the investigation, then the state likely must produce the combined file. United States v. Reyeros, 537 F.3d 270 (3rd Cir. 2008) (whether a federal prosecutor is responsible for information in a state agency’s files depends on whether the federal authorities are controlling, or working as a team with, the state agency, and on whether the state agency’s files are readily accessible to the federal prosecutor); United States v. Beers, 189 F.3d 1297 (10th Cir. 1999) (similar); United States v. Antone, 603 F.2d 566 (5th Cir.1979) (where “the two governments, state and federal, pooled their investigative energies,” a federal prosecutor was responsible for material in the state officers’ files).

If there’s room for doubt about whether the cooperation between the state and federal authorities was close enough to justify holding the state responsible for material in a federal agency’s file, the state prosecutor should consider making a formal request for the material. If the request is granted, the material can be produced in discovery. If it is denied, that will bolster the state’s argument that it should not be held responsible for the material.

One comment on “Discovery and Separate Sovereigns

  1. Jeff: I hope this does not amount to quibbling, but I do not agree with the verbiage “produce the DEA’s file along with the police file.” Regardless of whether there is discoverable material in the files, Federal Law Enforcement agencies always resist producing their actual files, even though defense attorneys often demand the files themselves. Federal agencies will produce information that is exculpatory, at least if it is material to the defendant’s guilt or innocence, but they will not turn over their files, especially when they are protected by the Supremacy Clause, as in the situation that you have described. I agree that the main point that you are making is accurate, but I defer from the use of the terminology “produce the file” because it could perpetuate what I think is sometimes a misunderstanding about criminal discovery from Federal law enforcement agencies. Rich McMahon.

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