Case 1:17-cr-00016-DLH Document 196 Filed 01/10/18 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
vs.
Redfawn Fallis,
Defendant.

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ORDER REGARDING DEFENDANT’S
MOTION TO COMPEL DISCOVERY

Case No. 1:17-cr-16

Before the Court is the Defendant’s “Motion to Compel Discovery” filed on December 13,
2017. See Docket No. 135. The Defendant requests the Court order the Government to comply
with various discovery requests. The Government filed a response on December 20, 2017. See
Docket No. 143. On December 29, 2017, the Defendant filed a reply. See Docket No. 164.
a. FBI Informant
In the Defendant’s motion to compel, defense counsel specifically requests information
relevant to a particular FBI informant. See Docket No. 135, p. 5. The Government’s response
notes it previously provided such information in discovery disclosures made on May 5, 2017. See
Docket No. 143, pp. 1, 11. The Defendant in her reply does not deny the Government previously
provided such information in discovery; rather, she complains the documents the Government
disclosed are “only sparse summaries of the informant debriefings,” and “it is clear detailed reports
would likely be produced based on information provided.” See Docket No. 164, p. 9. The
Defendant’s displeasure in the “sparse summaries” contained in the previously-disclosed
discovery responses, and her speculation that more “detailed reports” must exist is not sufficient.
See United States v. Van Brocklin, 115 F.3d 587, 594 (8th Cir. 1997) (Mere speculation that
materials may contain exculpatory evidence is not sufficient to sustain a Brady claim). Based on

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the Government’s response, the Court finds the Defendant’s request for information regarding the
FBI informant is moot, and no court action is required.
b. Additional Informants
Defense counsel also requests documents and other information pertaining to additional
informants. See Docket No. 135, p. 5. The Government’s response notes that none are known
regarding the relevant activity on October 26-27, 2016. See Docket No. 143, pp. 1, 11. The Court
cannot order the Government to provide documents and reports which do not exist. Based on the
Government’s response, the Court finds the Defendant’s request for information regarding
additional informants is moot, and no court action is required.
c. GoPro, Cell Phone, and Other Audio and/or Visual Recordings
Defense counsel requests GoPro recordings, cell phone recordings, and any other audio
and/or visual recordings relevant to the activities on October 27, 2016. See Docket No. 135, p. 6.
The Government’s response notes that it addressed the images in Defendant’s exhibits Disc-1
through Disc-14 in its previous response (Docket No. 137) to Defendant’s Discovery Group
Exhibit. See Docket Nos. 137 and 143. Based on the Government’s responses (Docket Nos. 137
and 143), the Court finds the Defendant’s request for additional information regarding GoPro
recordings, cell phone recordings, and any other audio and/or visual recordings relevant to the
activities on October 27, 2016, is moot, and no court action is required.
d. Department Policies, Metadata, and Chain of Custody Information Regarding
Already Provided Audio and Video Footage
Defense counsel requests department policies and metadata and chain of custody
information regarding the audio and visual footage that has been provided to date. See Docket
No. 135, p. 7. The Government’s response notes the officers with cameras were to turn them over
to a custodian of video, the video was downloaded, and a master copy was given to the Morton
County State’s Attorney’s Office. See Docket No. 143, p. 2. The Government states that it
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obtained a copy of all such material and has previously disclosed it to defense counsel. See Docket
No. 143, p. 2. Based on the Government’s response, the Court finds the Defendant’s request for
department policies, metadata, and chain of custody information regarding audio and visual
footage is moot. In the absence of a further showing by the Defendant, no court action is required.
e. Information Regarding Fallis and her Activities
Defense counsel requests all information in the possession of the Government and/or the
State of North Dakota regarding the Defendant and her activities. See Docket No. 135, p. 8. The
Government’s response states it is “attempting to gather additional information to respond to this
inquiry” and notes that it “has and will continue to comply with the relevant rules and discovery
order of the Court.” See Docket No. 143, pp. 3, 11. Brady places an affirmative obligation on
prosecutors “to learn of any favorable evidence known to the others acting on the government’s
behalf in the case.” Kyles v. Whitley, 514 U.S. 419, 437 (1995). The Court orders the Government
to disclose all relevant information in its possession relevant to this discovery request and pursuant
to Brady, Giglio, and their progeny.
f. Relevant Statements and Reports
Defense counsel requests all relevant statements and reports, and notes the Government has
yet to provide statements from an unnamed Hennepin County officer; Pennington County Sheriff’s
Deputies Myron Canales and Scott Sites; and North Dakota Bureau of Criminal Investigations
Special Agent Casey Miller. See Docket No. 135, pp. 8-9. The Government’s response states that
the unnamed Hennepin County officer remains unknown; the Pennington County Sheriff’s Office
indicated there are no additional reports from those deputies; and Special Agent Casey Miller did
not prepare a written report regarding the search of the Defendant as he did not participate in the
search on October 27, 2016. See Docket No. 143, p. 3. As stated previously, the Court cannot
order the Government to provide documents and reports which do not exist. Based on the
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Government’s response, the Court finds the Defendant’s request for information regarding relevant
statements and reports is moot, and no court action is required.
g. Private Security Agencies
The Defendant objects to the Government’s position that it is under no obligation to ferret
out and produce any information regarding the activities of private security agencies operating in
the area of the anti-DAPL protests in October of 2016. See Docket No. 135, p. 9. In response, the
Government contends much of the Defendant’s overbroad discovery requests are “fishing
expeditions,” and it does not have possession of records of any private security contractors. See
Docket No. 143, pp. 4, 10. The Government argues the private security contractors did not
participate in the criminal investigation of this matter, nor were they under control of the
prosecution team; additionally, the Government contends that providing independently-generated
intelligence reports to law enforcement does not make a private security contractor part of the
prosecution team. See Docket No. 143, p. 6.
With respect to the possession, custody, or control requirement, courts “have typically
required the prosecution to disclose under Rule 16 documents and material to the defense that: (1)
it has actually reviewed, or (2) are in the possession, custody, or control of a government agency
so closely aligned with the prosecution so as to be considered part of the prosecution team.” United
States v. Finnerty, 411 F. Supp. 2d 428, 432-33 (S.D.N.Y. 2006) (collecting cases). In determining
whether an agency is so closely aligned so as to be part of the prosecution team, courts examine
whether the investigation and prosecution of the alleged offenses was a jointly-undertaken
endeavor between the prosecution and the entity at issue. See United States v. Brodnik, 710 F.
Supp. 2d 526, 544-45 (S.D. W. Va. Apr. 29, 2010); United States v. Finnerty, 411 F. Supp. 2d 428,
432-33 (S.D.N.Y. 2006). It is clear that merely providing independently-generated intelligence
reports to law enforcement agents does not make a private security contractor part of the
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prosecution team. See Finnerty, 411 F. Supp. 2d at 433; United States v. Pelullo, 399 F.3d 197,
210 (3d Cir. 2005); United States v. Merlino, 349 F.3d 144, 155 (3d Cir. 2003); Brodnik, 710 F.
Supp. 2d at 545.
The Court finds the Government’s argument persuasive. The Defendant has failed to
adequately demonstrate that the requested information is material for Rule 16 or Brady purposes,
nor has it provided any case law or legal arguments as to why the Government is required to
provide such information. The Court denies the Defendant’s request for information regarding the
private security agencies/contractors.
No court action is required with respect the remainder of the requests subject to the caveat
that the Government is expected to fully comply with its obligations under Fed. R. Crim. P.
16(a)(1), the Jencks Act, and Brady/Giglio with respect to any information that may subsequently
come into its possession or is subject to its control.
IT IS SO ORDERED.
Dated this 10th day of January, 2018.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court

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