REDACTED — PUBLIC VERSION

LEONARD P. STARK, District Judge.

MEMORANDUM ORDER

1. On December 20, 2012, the Court sentenced Defendant, Bruce E. Costa, Jr., to 240 months imprisonment. (D.I. 171)

2. On February 19, 2014, the Court of Appeals for the Third Circuit issued its mandate affirming Defendant's conviction and sentence. (D .I. 194-1) Among the issues the Court of Appeals resolved on appeal was a purported Brady violation. See United States v. Costa, 553 Fed. Appx. 227, 235 (3d Cir. Jan. 27, 2014).

3. On October 19, 2015, the Court granted Defendant's motion to vacate sentence under 28 U.S.C. § 2255 in light of the parties' agreement that an ex post facto violation occurred in connection with Defendant's original sentencing. (See D.I. 208) Consequently, the Court anticipates vacating the judgment of sentence (D.l. 171) and imposing a new sentence and filing an amended judgment after a new sentencing hearing. (See id.)

4. A sentencing hearing is currently scheduled for July 13, 2016. (D.I. 241)

5. On February 29, 2016, Defendant filed a Motion to Compel Disclosure of Brady Material in Relation to Resentencing. (D.I. 224) The government opposes the motion. (D.I. 228) After subsequent communications between the parties, as well as a teleconference with the Court, Defendant's motion now seeks production of the following materials (hereinafter, the "Disputed Materials"):

(See D.I. 236 at 1) The Disputed Materials have been submitted to the Court for in camera review.

Having reviewed the Disputed Materials in camera, as well as the parties' briefs and the pertinent authorities cited in them, and the other materials referenced in this Memorandum Order, IT IS HEREBY ORDERED that Defendant's motion (D.I. 224) is DENIED.

In its opinion affirming Defendant's conviction and sentence, the Third Circuit considered Defendant's contention that the government had withheld Brady material in connection with his original sentencing. See Costa, 553 Fed. Appx. at 235. While the particular evidence alleged to have been withheld was different than the Disputed Materials at issue in the pending motion, the applicable legal analysis is identical. As explained by the Third Circuit:

For a broader view of what must be disclosed in order to comply with Brady, Defendant cites what he characterizes as "repeated[] reject[ ion] by thoughtful district judges [of the prevailing view]. as well as in dictum (necessarily so, in light of the `materiality' rule which applies on appeal) by Courts of Appeals." (D.1. 224 at I) (citing United States v. Olsen, 704 F.3d 1172, 1183 & n.3 (9th Cir. 2013); United States v. Naegele, 486 F.Supp.2d 150, 152-53 (D.D.C. 2007); United States v. Safavian, 233 F.R.D. 12, 16-17 (D.D.C. 2005)). This Court, however, is bound by the decisions of the Supreme Court and the Third Circuit. See Bagley, 473 U.S. at 682 (stating evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different"); United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006) (stating Brady violation requires showing of materiality). That the Third Circuit expressly reiterated this binding standard in reviewing (admittedly, on appeal) the Court's original sentencing of the very Defendant now again before the Court convinces the undersigned that he must apply this standard for materiality to the Disputed Materials.

Here, none of the evidence Defendant seeks to compel the government to produce is "material" within the binding meaning of Brady. Having reviewed the Disputed Materials, and having again reviewed the materials submitted in connection with the original sentencing (as well as the transcript of the original sentencing hearing), and also having reviewed the materials submitted to date in connection with the forthcoming resentencing (including the Presentence Investigation Report (D.I. 219)), the Court concludes that disclosure to Defendant of the Disputed Materials would not make it "reasonably probable" that the Court's decision at the resentencing (whatever that decision will be) would be different than it otherwise will be. All of the evidence Defendant seeks is accurately characterized as irrelevant and/or not favorable and/or cumulative of other evidence of record which the Court will be considering.

Mindful of the ex parte nature of the materials the Court has reviewed in camera, there is not much more the Court should add in the way of specifics to support its decision. The Court limits its comments on the Disputed Materials to the following: (i) [REDACTED\]1

Accordingly, at Wilmington this 1st day of July, 2016,

IT IS HEREBY ORDERED that:

1. Defendant's motion to compel (D.I. 224) is DENIED.

2. The scheduling order (D.l. 241) is AMENDED as follows: (i) Defendant's supplemental sentencing memorandum shall be filed no later than July 7; (ii) the government's supplemental sentencing memorandum shall be filed no later than July 11; and (iii) Defendant's supplemental reply memorandum, if any, shall be filed no later than July 12.

2. Because this Memorandum Order has been filed under seal, the parties shall, no later than July 6, submit a proposed redacted version. Thereafter, the Court will docket a public version of the Memorandum Order.