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United States v. Karake

September 10, 2003


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


The three defendants and other unnamed co-conspirators are Hutus alleged to be members of the Liberation Army of Rwanda. Defendants have been named in a four-count indictment charging murder and other crimes arising from a March 1999 attack on tourists visiting the Bwindi Impenetrable National Park in Uganda. Eight tourists, including two American citizens, were killed. After allegedly confessing to these crimes while in a Rwandan Repatriation Camp, defendants were brought to this country to face prosecution for charges that carry punishment by death.*fn1 See 18 U.S.C. § 2332(a)(1).

By virtue of defendants' Motions to Compel Discovery, the Court is again being asked to resolve a host of discovery disputes that have arisen between the parties. Resolution of these discovery issues is far more challenging than the typical criminal case, since the defendants face potential death sentences if convicted and defendants' counsel are confronted with obvious investigatory challenges that inhere from representing Rwandans accused of committing crimes in Uganda.

Previously, by Memorandum Opinion filed on July 7, 2003, the Court ordered the government to identify the foreign entities that have provided, or reasonably may be expected to provide or possess, information that is material to the case so that defendants could issue more meaningful letters rogatory. Thereafter, by Order dated August 14, 2003, the Court required the government to provide specific information about a Ugandan citizen who had been charged in Uganda with the same offenses, as well as investigatory leads revealed through the Rewards for Justice Program whereby the government offered money in exchange for information about the events underlying this indictment.

Now, in these Motions to Compel, defendants seek a wide variety of materials and information, some of which the government has declined to provide. It has, however, agreed to produce each defendant's statement made to United States officials in an unredacted form, and it has indicated that it will undertake to obtain any statement made by a defendant to a foreign authority. ( See Opp. to Karake at 6 n.8.) Given these representations, the Court is assuming that the government will use its best efforts to obtain any statements by the defendants to agents of any other government, and it therefore need not issue any further orders regarding the defendants' various requests for their own statements.

Similarly, several of defendants' other requests have become moot, in view of the government's representations that there is no responsive information. For instance, the government has confirmed the absence of any informants; it states it has no Brady information of the type described by defendant Bimenyimana in footnote 5 of his Motion to Compel; and it reiterates that no one made an identification of any of the defendants. (United States' Response and Opposition to Defendant Bimenyimana's Motion to Compel ["Opp. to Bimenyimana"] at 6, 9, 10.)

In addition, the government has acknowledged its discovery obligations under Fed. R. Crim. P. 16; United States v. Brady, 373 U.S. 83 (1963); and Giglio v. United States, 405 U.S. 150 (1972). It further represented at a hearing on August 13, 2003, that it is turning over all Brady information within its possession, custody or control. ( See Tr. at 53.)

In this regard, the Court again wishes to remind the government that it must be vigilant in ensuring that it fulfills its discovery and Brady/Giglio obligations. Given the charges that defendants confront, the government shall be mindful that Rule 16 establishes "the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases," Advisory Committee Note to Fed. R. Crim. P. 16, and disputes should be resolved in the defendants' favor, for "[t]he language and the spirit of the Rule are designed to provide to a criminal defendant, in the interests of fairness, the widest possible opportunity to inspect and receive such materials in the possession of the government as may aid him in presenting his side of the case." United States v. Poindexter, 727 F. Supp. 1470, 1473 (D.D.C. 1989). Similarly, the government should err on the side of disclosure when interpreting its Brady/Giglio obligations given the need for the utmost reliability in capital proceedings. Lockett v. Ohio, 438 U.S. 586, 604 (1978).*fn2 Finally, it is expected that the government will continue to disclose all Brady information promptly.*fn3 In a case such as this one, it is well to remember the Supreme Court's admonition in Burger v. United States, 295 U.S. 78, 88 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that, justice shall be done.

See also Brady, 373 U.S. at 87 ("[S]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.'").

Applying the above-guiding principles to defendants' requests, the Court is persuaded that several categories of information should be provided, and that in addition to providing information within the government's possession, custody or control, it must also use its best efforts to obtain the information from all relevant foreign entities. To the extent that the Court is requiring production, its reasoning is set forth in this Memorandum Opinion, but as to a variety of other requests, the Court has carefully considered them and will, without further explanation, deny them.*fn4

I. Death-Related Information.

Much of the debate between defendants and the government relates to how broadly to define the government's Brady obligation to produce mitigating evidence. While the government wisely does not contest the application of Brady at this stage of the proceedings to the statutory mitigating factors,*fn5 see, e.g., United States v. Beckford, 962 F. Supp. 804, 811 (E.D. Va. 1997); United States v. Perez, 222 F. Supp. 2d 164, 166 (D. Conn. 2002), it then proceeds to define its obligation far too narrowly. For example, addressing defendants' request for information regarding duress, the government, without support, limits its response to duress "tied to the defendants' personal experience." (Opp. to Karake at 14.) As to information regarding relative culpability of co-defendants, the government again offers a cramped reading of the statute that excludes co-conspirators who are not defendants and limits Brady only to information that "negat[es] [defendants'] presence or indicate[s] their lack of involvement in the acts charged." ( Id. at 12.)

As an initial matter, in interpreting the mitigating factors enumerated in § 3592, courts have taken an expansive approach, recognizing that the enumerated factors are not exclusive and any mitigating factor may be considered by the jury. See, e.g., Cooper, 91 F. Supp. 2d at 101; United States v. Bin Laden, 156 F. Supp. 2d 359, 369-70 (S.D.N.Y. 2001). Moreover, courts uniformly interpret "defendants" within the meaning of § 3592(a)(4) to include co-conspirators and accomplices. See, e.g., United States v. Beckford, 962 F. Supp. at 812-14; United States v. Regan, 221 F. Supp. 2d 659, 660 (E.D. Va. 2002). Second, this factor is not limited to evidence that demonstrates that others were responsible for the criminal conduct ...

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