The opinion of the court was delivered by: Simandle, District Judge
In this criminal case, defendant Ito Steven Nieves and others were indicted for conspiracy to obstruct, delay, and affect commerce by attempted robbery of a Brinks armored car on or about August 9, 2000, in violation of 18 U.S.C. § 1951, on the Atlantic City Expressway in New Jersey. Defendant Nieves entered a plea of not guilty, but the parties indicated they are engaged in plea negotiations. In this motion, defendant Nieves seeks to compel the government to produce six items of discovery, identified in Attachment A to this Opinion, each of which seeks any information favorable to the defendant with respect to various stipulations demanded of the defendant by the government applying the U.S. Sentencing Guidelines.
According to defendant Nieves, the government has proposed a plea agreement *fn1 which includes stipulations by the defendant to various facts that the government believes to be true. *fn2 According to defendant's motion, these facts pertain to such items as:
1. Whether the money and property in the targeted armored car was not property of a financial institution as the term is used in U.S.S.G. § 2B3.1 (see Item 1 in Att. A);
2. Whether a gun seized by federal law enforcement agents after arrest was not possessed by the defendant within the meaning of U.S.S.G. § 2B3.1(b)(2);
3. Whether the intended loss, within the meaning of U.S.S.G. § 3B1.2, was not more than $5.0 million;
4. Whether the defendant's role was other than that of an organizer, leader, manager, or supervisor within the meaning of U.S.S.G. § 3B1.1 for an aggravating role adjustment;
5. Whether the defendant's role was that of a minor participant under U.S.S.G. § 3B1.2; and
6. Whether the defendant did not commit any act which the Government will argue at sentencing represents relevant conduct under U.S.S.G. § 1B1.3.
Defendant Nieves and his counsel seek this information, if any exists, on the theory that it would be favorable information to the defendant related to the issue of punishment under the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. Brady, of course, requires as a function of due process, disclosure to the defense of all material favorable to defendant with respect to either guilt or punishment. Brady, 373 U.S. at 87 (emphasis added). Likewise, the Court's standard Order for Discovery and Inspection, entered in all felony cases in the District of New Jersey, requires the government to disclose all material and information in its possession favorable to the defendant with respect to either guilt or punishment within 10 days of the entry of that Order, which in this case was filed on August 31, 2000. *fn3
Defense counsel argues that any such mitigating information must be turned over, or the government must confirm that no such mitigating information exists, before counsel can satisfy his obligation to his client to provide effective assistance of counsel at the guilty plea and sentencing stages of this case, citing United States v. Rosa, 891 F.2d 1074, 1079 (3d Cir. 1989) and United States v. Day, 969 F.2d 39 (3d Cir. 1992). In other words, defense counsel maintains he is unable to advise his client whether to accept the factual stipulations and hence the plea agreement offered by the government unless he can be reasonably assured that the government does not have evidence that undermines or mitigates the factual stipulations and thus the potential punishment. This argument is especially pertinent to matters within the government's exclusive knowledge, such as the quantity and character of the property in the particular armored truck. The argument is less forceful as to matters within the defendant's knowledge, such as whether he played a supervisory role in the conspiracy and whether he possessed the weapon. Moreover, defendant argues, and the Court agrees, that this discovery request does not seek discovery of the government's theories nor even of evidence that supports the proposed stipulations, but only seeks information favorable to defendant when compared with the government's proposed sentencing stipulations.
Although initially opposing this motion in its entirety at oral argument, the United States supplied certain responsive information a few days later on October 30, 2000. These documents consisted of a Brinks memo dated August 30, 2000 and the route manifest for the truck in question on August 9, 2000, indicating that the total liability on the truck at the time of the incident was $11,108,419.94 and that financial institution property was included in the sum of $6,642,000 destined to ATM machines of various indicated banks. Further, the government has indicated that it has no information pertaining to the contents of Brinks' trucks on other times and routes, and it gives defendant assurance that there was "nothing unusual about the contents of the armored car on August 9, 2000" in the sense that nothing was done by the government or its cooperating witness to influence or even discuss the amount and character of the property to be carried on this armored car. (Letter of AUSA Hughes, Oct. 30, 2000, at 1.) Similarly, with regard to the remaining requests at issue, the government has confirmed that it "has no information, or reason to believe that any information exists, which is favorable to the defendant for the purpose of plea negotiations or sentencing." (Id. at 2.)
The Court accepts the government's representations that it has produced all information within the knowledge of the prosecution team responsive to defendant's requests, and that it has no additional information. This means, in sum and substance, that there is no mitigating or exculpatory information as to any of the six requested items.
Where, as in the present instance, the United States has acknowledged its Brady obligations as applied to specific requests, and has assured the Court and the defense that it has no information that would mitigate the defendant's punishment with respect to any of the proposed factual stipulations under the ...