ORDER UNDER SEAL

TIMOTHY L. BROOKS, District Judge.

In open Court today, counsel for Defendant Jay Thompson made an oral motion to compel the Government's disclosure of a document concerning a Department of Homeland Security task force officer who was involved in this case. The Government recently came into possession of this document and informed the defense of its existence but not its contents, arguing that it was not subject to discovery because the officer would not be called in the Government's case-in-chief. Generally, the document explains why the officer was recently removed from the task force.

The Defendant contends that the reasons for the officer's removal are potentially material to the defense because they may implicate the officer's credibility and conduct during the course of the investigation in this case. The Government responds that the information is not discoverable under Federal Rule of Criminal Procedure 16(a)(1)(E)(i)-(ii) because it is not "material to preparing the defense" and is not information "the government intends to use ... in its case-in-chief at trial." Further, the Government contends the information is not discoverable under Giglio v. United States, 405 U.S. 150, 153-55 (1972), or Brady v. Maryland, 373 U.S. 83, 87 (1963). "Under Giglio v. United States, the government must disclose matters that affect the credibility of prosecution witnesses." United States v. Morton, 412 F.3d 901, 906 (8th Cir. 2005) (internal citation omitted). And under Brady, "the government must disclose any evidence both `favorable to an accused' and `material either to guilt or to punishment.'" United States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008) (quoting Brady, 373 U.S. at 87).

For the reasons stated from the bench, the Court required the Government to provide the document for review in camera. The document appears in the record as Court's Sealed Exhibit 1 to today's hearing.

Now having reviewed the document, the Court finds that it is not subject to discovery under Brady because it is neither "favorable to the accused" nor "material either to guilt or to punishment." Brady, 373 U.S. at 87. It is similarly not subject to discovery under Rule 16(a)(1)(E) because it is not "material to preparing the defense." Furthermore, even if the document were ordered to be disclosed under Rule 16 or Giglio and the defense sought to use its contents to attempt to impeach the agent at trial, the Court would order the information excluded under Federal Rule of Evidence 403 due to the fact that its probative value is substantially outweighed by the dangers of unfair prejudice, confusing the issues, and misleading the jury.

IT IS THEREFORE ORDERED that the Defendant's oral Motion to Compel (Doc. 34) is DENIED.

IT IS SO ORDERED.