ORDER DENYING DEFENDANT LOYA-RAMIREZ'S MOTION FOR PRODUCTION OF NEGATIVE EXCULPATORY STATEMENTS UNDER BRADY

ROBERT E. BLACKBURN, District Judge.

The matter before me is defendant Jorge Loya-Ramirez's Motion for Production of Negative Exculpatory Statements Under Brady [#1305],1 filed September 9, 2016. The government has filed a response ([#1523] on January 17, 2017).

By this motion, Mr. Loya-Ramirez seeks pretrial disclosure of "negative exculpatory statements," specifically "the contents of any written or oral statement(s) by anyone who gained knowledge of the drug delivery by Defendant, Loya-Ramirez where the statement did not reflect Loya-Ramirez having delivered 500 grams or more of methamphetamine." (Def. Motion at 2.) The government responds by noting(1) that Mr. Loya-Ramirez is not charged in the count of the Indictment to which he refers; (2) that he fails to demonstrate a good faith belief that such information even exists and thus is merely on a fishing expedition; and (3) that his "negative exculpatory statements" theory has been rejected in this circuit. (Gov't Resp. at 1-2.)

In fashioning my ruling, I have considered all relevant adjudicative facts in the file and record of this case. I have considered all relevant facts to which there is no express or implied objection. I have considered, but not necessarily accepted, the reasons stated, arguments advanced, and authorities cited by counsel in their papers.

I begin my analysis with a rehearsal of some of the relevant constitutional and legal principles that guide and govern discovery in criminal cases in federal court. In the main, discovery in a criminal case is governed by the provisions of Fed. R. Crim. P. 6, 12, 16, and 26.2; the Jencks Act, 18 U.S.C. § 3500; and — most relevantly for present purposes — the holdings of Brady v. Maryland,2 United States v. Bagley,3 Giglio v. United States,4 Roviaro v. United States,5 and their progeny. Discovery in this case is controlled also by the Discovery Conference Memorandum and Order [#243], filed July 6, 2015.

Significantly, "[t]here is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). Significantly, there is no requirement that "the prosecution make a complete accounting to the defense of all evidence in its possession," United States v. Baxter, 492 F.2d 150, 173 (9th Cir. 1973), cert. denied, 94 S.Ct. 1945 (1974), and Brady does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant, Smith v. Secretary of New Mexico Department of Corrections, 50 F.3d 801, 823-24 (10th Cir.), cert. denied, 116 S.Ct. 272 (1995). Moreover, the accused has no right to rummage through the government's files, United States v. Williams, 580 F.2d 578, 585 (D.C. Cir.), cert. denied, 99 S.Ct. 112 (1978), and Brady does not authorize wholesale discovery or demand an "open file" policy, Kyles v. Whitley, 514 U.S. 419, 436-37, 115 S.Ct. 1555, 1567, 131 L.Ed.2d 490 (1995). See also United States v. Mayes, 917 F.2d 457, 461 (10th Cir. 1990) (noting the Constitution "does not grant criminal defendants the right to embark on a broad or blind fishing expedition among documents possessed by the Government") (citation and internal quotation marks omitted).

Instead, Brady requires only the disclosure of information that is material in a constitutional sense. Bagley, 473 U.S. at 682. The mere possibility that discovery might help the defense does not establish materiality in the constitutional sense. "The criterion of materiality is met only if there is a `reasonable probability' that the outcome of a trial would have been different had the evidence been disclosed to the defense." United States v. Gonzales-Montoya, 161 F.3d 643, 649 (10th Cir. 1998). Reading Brady and Giglio together, the government must produce or disclose evidence that is favorable to the accused when relevant to guilt, credibility, or punishment. Brady, 83 S.Ct. at 1196; Giglio, 92 S.Ct. at 766.

As the government correctly points out, the theory on which Mr. Loya-Ramirez purports to be entitled to these witness statements is not the law in this circuit. Brady requires the government to produce exculpatory evidence, not evidence which is merely not inculpatory. "If a statement does not contain any expressly exculpatory material, the Government need not produce that statement to the defense. . . . We are confident that the Supreme Court did not intend the Brady holding to sweep so broadly." United States v. Comosona, 848 F.2d 1110, 1115 (10th Cir. 1988). See also United States v. Kennedy, 819 F.Supp. 1510, 1519 (D. Colo.) ("The Tenth Circuit has specifically interpreted the requirement for disclosure of evidence favorable to the defendant to mean evidence which is `expressly exculpatory.'") (citation omitted), aff'd, 994 F.2d 747 (10th Cir. 1993). The motion therefore is inapt, and thus will be denied.6

THEREFORE, IT IS ORDERED that defendant's Motion for Production of Negative Exculpatory Statements Under Brady [#1305], filed September 9, 2016, is denied.