United States v. Eve Mazzarella , 784 F.3d 532 ( 2015 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,             No. 12-10171
    Plaintiff-Appellee,
    D.C. No.
    v.                    2:08-cr-00064-
    RLH-GWF-2
    EVE MAZZARELLA,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,             No. 13-10401
    Plaintiff-Appellee,
    D.C. No.
    v.                    2:08-cr-00064-
    RLH-GWF-2
    EVE MAZZARELLA,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,             No. 13-10658
    Plaintiff-Appellee,
    D.C. No.
    v.                    2:08-cr-00064-
    RLH-GWF-2
    EVE MAZZARELLA,
    Defendant-Appellant.        OPINION
    2               UNITED STATES V. MAZZARELLA
    Appeal from the United States District Court
    for the District of Nevada
    Roger L. Hunt, Senior District Judge, Presiding
    Argued and Submitted
    November 17, 2014—San Francisco, California
    Filed April 20, 2015
    Before: Ronald M. Gould, Paul J. Watford,
    and Michelle T. Friedland, Circuit Judges.
    Opinion by Judge Gould
    SUMMARY*
    Criminal Law
    The panel vacated the district court’s orders denying the
    defendant’s motions for a new trial, and remanded for further
    proceedings, in a case in which the defendant was convicted
    of twelve felony counts related to a complex mortgage fraud
    scheme.
    After her conviction, the defendant filed two motions for
    a new trial, contending that the government withheld material
    exculpatory evidence in violation of Brady v. Maryland and
    violated her right to be free from unreasonable searches under
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. MAZZARELLA                     3
    the Fourth Amendment. The defendant requested discovery
    and an evidentiary hearing on these issues.
    The panel held that based on the record before the district
    court, the court erred in concluding that the defendant’s rights
    under Brady and the Fourth Amendment had not been
    violated.
    The panel held that the defendant has not shown prejudice
    based solely on the Brady disclosures, first revealed after her
    trial and sentencing. But the panel remanded the Brady
    issues for the district court to reconsider them on an open
    record, in conjunction with the additional disclosure with
    which the defendant sought to augment the record on appeal,
    the Fourth Amendment issue, and any further impeachment
    or exculpatory evidence that comes to light from discovery.
    The panel held that the district court erred in concluding
    on the record before it that an employee’s copying of
    documents from the defendant’s real estate and investment
    offices was not a search implicating the Fourth Amendment.
    The panel wrote that more discovery is required to determine
    whether an unlawful search occurred and whether there were
    evidentiary fruits of an unlawful search. The panel wrote that
    after making these determinations on remand, the district
    court should consider again the cumulative effect of the
    impeachment evidence it considered before, and the
    additional impeachment evidence that the defendant sought
    to place before this court. The panel wrote that this material
    must be considered together with any evidence that should
    have been excluded from trial under the Fourth Amendment
    to determine whether any of the defendant’s convictions must
    be vacated and a new trial granted.
    4             UNITED STATES V. MAZZARELLA
    The panel also held that the district court abused its
    discretion in denying the defendant’s requests for an
    evidentiary hearing and for discovery. The panel wrote that
    more findings, which will require reasonable discovery and
    an evidentiary hearing, are needed to resolve whether there
    was an immunity agreement in place for a prosecution
    witness, and whether there was an unlawful search that
    resulted in tainted evidence being used at trial. The panel
    wrote that the district court should also consider an additional
    disclosure with which the defendant sought to supplement the
    record before this court. The panel rejected the defendant’s
    argument that the district court should have imposed the very
    detailed discovery guidelines from a 2010 Department of
    Justice memorandum to federal prosecutors.
    The panel addressed other issues in a concurrently filed
    memorandum disposition.
    COUNSEL
    John D. Cline (argued), Law Office of John D. Cline, San
    Francisco, California; Mark H. Allenbaugh, Law Offices of
    Mark H. Allenbaugh, Cleveland, Ohio, for Defendant-
    Appellant.
    Daniel G. Bogden, United States Attorney, Elizabeth O.
    White, Appellate Chief, Peter S. Levitt (argued), Assistant
    United States Attorney, Las Vegas, Nevada, for Plaintiff-
    Appellee.
    UNITED STATES V. MAZZARELLA                               5
    OPINION
    GOULD, Circuit Judge:
    Eve Mazzarella was convicted of twelve felony counts
    related to a complex mortgage fraud scheme. After her
    conviction, Mazzarella filed two motions for a new trial,
    contending that the government had withheld material
    exculpatory evidence in violation of Brady v. Maryland,
    
    373 U.S. 83
    (1963), and had violated her right to be free from
    unreasonable searches under the Fourth Amendment.
    Mazzarella requested discovery and an evidentiary hearing on
    these issues. The district court denied both motions, and
    Mazzarella’s appeal from those orders is before us.1 We have
    jurisdiction under 28 U.S.C. § 1291. We hold that based on
    the record before the district court, the court erred in
    concluding that Mazzarella’s rights under Brady and the
    Fourth Amendment had not been violated. We also hold that
    the district court abused its discretion in denying
    Mazzarella’s request for an evidentiary hearing and for
    discovery. We vacate the district court’s orders and remand.
    1
    Mazzarella also challenges her underlying convictions and sentence
    directly, raising an ineffective assistance of counsel challenge, a
    sufficiency of the evidence challenge, and challenges to the district court’s
    evidentiary rulings, jury instructions, and sentencing decisions. We
    dismiss the ineffective assistance claim and affirm the district court on all
    the other issues except the sentencing challenge in a concurrently filed
    memorandum disposition. We do not reach Mazzarella’s contentions
    related to sentencing error, which she may raise again if on remand the
    district court does not vacate any of her convictions and re-sentence her.
    6             UNITED STATES V. MAZZARELLA
    I
    Mazzarella, a real estate agent and principal of Distinctive
    Real Estate & Investments (“DREI”), was accused of
    conspiring with Steven Grimm, Melissa Beecroft, and others
    to defraud federally insured banks and private citizens. The
    scheme involved recruiting straw buyers with excellent credit
    histories to acquire full or nearly full financing to purchase
    homes. The straw buyers’ loan applications contained
    materially false statements related to their income, assets,
    employment, and intent to use the home as a primary
    residence.
    The homes to be purchased by the straw buyers were
    offered for sale at distressed prices below fair market value,
    but the mortgages and the purchase offers were for fair
    market value. The difference between the two figures was
    paid at closing to business entities controlled by Mazzarella
    and her co-defendants. The government calls these payments
    “third party disbursements.” The government charged that
    defendants created numerous limited liability companies
    (“LLCs”) and caused straw buyers to transfer their interest in
    the purchased properties to the LLCs in exchange for a fee.
    Defendants controlled the bank accounts for those entities and
    eventually defaulted on mortgage payments on the properties,
    resulting in significant losses to the lender, while the
    defendants retained much of the money from the third party
    disbursements.
    The key unlawful component of the scheme was the false
    information in the loan applications. Testimony at trial, much
    of which came from cooperating witnesses, showed that
    Mazzarella knew that the straw buyers were submitting false
    information. One such witness, Skip Young, testified: (1)
    UNITED STATES V. MAZZARELLA                    7
    that he had engaged in “fraudulent transactions for Eve
    Mazzarella”; (2) that Mazzarella personally gave
    misinformation to lenders by suggesting a fake job title at
    DREI and inflated income for one of her employees who was
    recruited as a straw buyer; and (3) that Mazzarella developed
    a plan to create spreadsheets to track which straw buyers
    applied to which banks after problems arose with buyers
    seeking loans from the same bank on multiple homes and
    indicating an intent to reside in each as a primary residence.
    Another cooperating witness, Shauna Labee, testified that
    Mazzarella had personally induced her to agree to be a straw
    buyer and that Mazzarella observed Labee signing blank loan
    application forms in Mazzarella’s office. There was also
    testimony about Mazzarella’s knowing involvement in other
    aspects of the plan that would have been lawful absent the
    fraudulent applications.
    The jury found Mazzarella guilty of the conspiracy, bank
    fraud, mail fraud, and wire fraud counts, and Mazzarella
    appealed.
    While the appeal from her convictions and sentence was
    pending, the district court twice denied motions for a new
    trial for which Mazzarella moved on the basis of post-trial
    government disclosures under Brady v. Maryland. The
    government disclosures involved information potentially
    helpful to Mazzarella about Kim Brown, Alicia Hanna, and
    Jennifer Wolff, who had all testified as prosecution witnesses
    in Mazzarella’s trial.
    After the Mazzarella trial, Brown, one of Mazzarella’s
    employees at DREI who had testified regarding the
    conspiracy charge and one of the mail fraud charges, testified
    during the trial of another person connected to the mortgage
    8             UNITED STATES V. MAZZARELLA
    fraud scheme. In her testimony at that later trial, she said that
    while the federal investigation of Mazzarella was pending,
    she had, at the request of either the FBI or the IRS, copied
    thousands of pages of documents from the DREI offices and
    given them to the government. During that related trial, the
    government’s statements and Brown’s own testimony
    indicated that Brown had received an informal promise from
    the government that she would not be prosecuted if she
    cooperated. The information about the copied documents and
    the informal immunity promise had not been disclosed to
    Mazzarella before or at her trial.
    The government also disclosed to Mazzarella information
    concerning Alicia Hanna, who had testified at Mazzarella’s
    trial about the materiality of the false statements to the
    lending banks and that one of the defrauded banks was
    federally insured at the time of the transactions. At the time
    of trial, Hanna was a former employee of a defrauded lender
    bank. After trial, the government gave Mazzarella a copy of
    an email exchange between Hanna and an FBI agent from
    before Mazzarella’s trial. Hanna’s email contained a
    statement indicating that she might wish to work for the FBI
    one day, and asking the agent to keep an eye out for job
    openings in the Charlotte field office. That statement may
    have been a literal hope or a casual joke, but in either event
    it might have been urged by Mazzarella as a basis to cross-
    examine Hanna and undercut her credibility.
    The district court denied Mazzarella’s first motion for a
    new trial, which was based on the disclosures related to
    Brown and Hanna. The district court determined that the
    evidence was not necessarily impeaching, because the
    government’s alleged promise to Brown that she had nothing
    to worry about if she cooperated was in response to a
    UNITED STATES V. MAZZARELLA                      9
    question asked by another witness cooperating in the
    investigation against Mazzarella, and could not reasonably be
    construed as a promise to Brown specifically. Also, any
    agreement would not impeach her because Brown had
    testified that she initially contacted the FBI out of a desire to
    do the right thing, belying the notion that her cooperation was
    motivated by a desire to avoid prosecution. The district court
    deemed the email from Hanna innocuous and unlikely to
    serve as impeachment evidence. The district court further
    ruled that even if the evidence was impeaching, there was no
    prejudice because the jury would likely have found Brown
    and Hanna credible despite any impeachment evidence. Also
    there was substantial other evidence of Mazzarella’s guilt,
    and Hanna’s testimony had been verified by independent
    documentation and the testimony of several other witnesses.
    The district court additionally ruled that Brown was not a
    government actor and that her copying of documents did not
    implicate the Fourth Amendment, and further that there was
    no evidence that any copied documents were given to the
    government, or that any were used by the government at trial.
    Mazzarella timely appealed the district court’s order denying
    her motion.
    Later, the government made yet another disclosure to
    Mazzarella. Jennifer Wolff, who had testified against
    Mazzarella, testified on cross-examination during the trial of
    another person in the scheme that she understood that she
    would not be prosecuted in return for testifying. The
    government told Mazzarella that it was aware of no such
    promise.
    Mazzarella moved a second time for a new trial based on
    the Brady disclosures. The district court concluded that the
    notion that Wolff was promised immunity in exchange for
    10              UNITED STATES V. MAZZARELLA
    testimony against Mazzarella was “tenuous at best,” because
    it was unclear even from Wolff’s testimony whether she was
    referring to an agreement that was for her testimony in
    Mazzarella’s trial, or only in the later trial of Mazzarella’s co-
    schemer. Moreover, the government had filed an affidavit
    explaining that Wolff’s belief arose from a misunderstanding
    and that she was never actually promised immunity. Once
    again, the district court concluded that even if there had been
    an immunity agreement and even alongside the earlier
    disclosures, the additional evidence against Mazzarella was
    so substantial that there was no prejudice that would
    undermine confidence in the verdict.2
    II
    We review de novo a district court’s denial of a new trial
    motion based on a Brady claim, as well as the issue of
    materiality under Brady. United States v. Sedaghaty,
    
    728 F.3d 885
    , 899–900 (9th Cir. 2013).
    We review de novo a district court’s legal conclusion that
    a search did not violate the Fourth Amendment because it was
    private. United States v. Reed, 
    15 F.3d 928
    , 930 (9th Cir.
    1994).
    2
    Before oral argument in this case, Mazzarella filed a motion to
    supplement the record with the details of another Brady disclosure. We
    deny that motion in an order filed simultaneously with this opinion. Even
    in combination with the other disclosures on the existing record, we would
    not reverse the district court. Rather, as we explain below, we vacate the
    district court’s orders denying Mazzarella’s new trial motions, and remand
    for further proceedings. The district court should consider the additional
    disclosure in the first instance on remand, and assess any cumulative
    effect of the combined Brady disclosures and Fourth Amendment issues.
    UNITED STATES V. MAZZARELLA                   11
    We review discovery rulings for an abuse of discretion.
    United States v. Muniz-Jaquez, 
    718 F.3d 1180
    , 1183 (9th Cir.
    2013). A denial of an evidentiary hearing is also reviewed for
    an abuse of discretion. United States v. Olsen, 
    704 F.3d 1172
    , 1178 (9th Cir.), reh’g en banc denied, 
    737 F.3d 625
    (9th Cir. 2013), cert. denied, 
    134 S. Ct. 2711
    (2014).
    III
    Mazzarella argues that the government’s failure to
    disclose the Brown immunity agreement and document
    copying, the Hanna email about job openings at the FBI, and
    the possible immunity agreement for Wolff violated Brady.
    Mazzarella also argues that Brown’s copying documents from
    the DREI offices and turning them over to the government
    violated her rights under the Fourth Amendment. Finally,
    Mazzarella contends that the district court abused its
    discretion by not granting discovery or holding an evidentiary
    hearing on those issues. We agree with the last contention.
    We conclude that we cannot vacate any of Mazzarella’s
    convictions on the present record. But the district court erred
    in denying her motions for a new trial without correctly
    analyzing the Fourth Amendment issue and then deciding
    whether any evidence submitted was the fruit of an illegal
    search, and then considering in light of those decisions,
    whether there was prejudice from the challenged failures to
    disclose. We vacate the challenged orders and remand so that
    the district court, after allowing reasonable discovery and
    conducting an evidentiary hearing, may decide on an open
    record whether to grant Mazzarella’s request for a new trial.
    12            UNITED STATES V. MAZZARELLA
    A. Mazzarella has not shown prejudice based on the
    Brady disclosures alone
    The Fifth Amendment’s Due Process Clause requires the
    government to produce exculpatory information to the
    defense. 
    Brady, 373 U.S. at 86
    –87. This includes
    information that may be used to impeach prosecution
    witnesses. Giglio v. United States, 
    405 U.S. 150
    , 152–54
    (1972). A prosecutor has a duty under Brady to learn of and
    disclose evidence known to others acting on the government’s
    behalf, including the police. See Kyles v. Whitley, 
    514 U.S. 419
    , 432, 437 (1995).
    In the post-trial context, a Brady violation has three
    components: (1) the information must be favorable to the
    defense; (2) it must not have been disclosed by the
    government before or at trial; and (3) there must have been
    resulting prejudice. See United States v. Wilkes, 
    662 F.3d 524
    , 535 (9th Cir. 2011). Prejudice ensues “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. Kohring, 
    637 F.3d 895
    , 902 (9th
    Cir. 2011) (internal quotation mark omitted). “A reasonable
    probability is one that is sufficient to undermine confidence
    in the outcome of the trial.” 
    Olsen, 704 F.3d at 1183
    (internal
    quotation marks omitted). “The need for disclosure is
    particularly acute where the government presents witnesses
    who have been granted immunity from prosecution in
    exchange for their testimony. We have previously recognized
    that criminals who are rewarded by the government for their
    testimony are inherently untrustworthy, and their use triggers
    an obligation to disclose material information to protect the
    defendant from being the victim of a perfidious bargain
    UNITED STATES V. MAZZARELLA                   13
    between the state and its witness.” Carriger v. Stewart,
    
    132 F.3d 463
    , 479 (9th Cir. 1997) (en banc).
    We conclude that the Brown and Hanna disclosures, first
    revealed after Mazzarella’s trial and sentencing, were
    favorable to Mazzarella and that to the extent the district
    court ruled otherwise, that conclusion was error. As to
    Brown, the district court reasoned that a prosecutor’s
    statement to two people, one of whom was Brown, that there
    was “nothing to worry about” if the truth were told could not
    reasonably be construed as a promise of immunity to Brown
    specifically.    But that conclusion is belied by the
    government’s own statements: in the later trial at which
    Brown testified, the same prosecutor who prosecuted
    Mazzarella told the court that he had promised Brown that
    she would not be prosecuted. The district court’s analysis of
    the Brown disclosure collapsed the distinction between the
    favorable prong and the issue of prejudice by concluding that
    Brown’s testimony that she had approached the FBI out of a
    desire to do the right thing meant the immunity agreement
    was not favorable. The same is true of the district court’s
    characterization of Hanna’s statements about jobs at the FBI
    as innocuous. It is potential impeachment evidence to
    suggest that a government witness has a bias—here, seeking
    government employment—that might color the witness’s
    testimony.
    The district court determined that the notion that Wolff
    had an immunity agreement in place was “tenuous at best,”
    but did not hold an evidentiary hearing to settle the matter,
    nor permit discovery on the issue. In light of our conclusions
    on the Fourth Amendment issue, which we discuss below,
    this was an abuse of discretion.
    14              UNITED STATES V. MAZZARELLA
    On the record as it now stands, we agree with the district
    court’s conclusion that even assuming all of the disclosed
    evidence was favorable impeachment evidence, no prejudice
    resulted from the government’s not disclosing the
    impeachment evidence. More than 50 witnesses testified, and
    there were more than 1300 exhibits introduced at trial. Skip
    Young testified extensively about Mazzarella’s knowledge of,
    and involvement in, the use of false information in the loan
    applications. Shauna Labee offered testimony that she had
    signed blank loan applications in Mazzarella’s presence and
    at Mazzarella’s urging. While both Young and Labee were
    co-schemers testifying in exchange for deals, their detailed
    testimony, coupled with the ample evidence of Mazzarella’s
    involvement in all the other aspects of the business plan,
    suggests that even after accounting for the disclosures, on the
    record before us, there is not a fair probability that a jury
    would have reached a contrary result. The strength of the
    prosecution’s case, coupled with the relative weakness of the
    proffered impeachment evidence, leads us to conclude that
    there was no prejudice.3
    But we must remand the Brady issues for the district court
    to reconsider them on an open record, in conjunction with the
    additional disclosure with which Mazzarella sought to
    augment the record on appeal, the Fourth Amendment issue
    discussed below, and any further impeachment or exculpatory
    evidence that comes to light from discovery. If the district
    court again denies the new trial motion, it should provide a
    3
    There is some uncertainty, on the record before us, about whether
    Mazzarella’s conviction for mail fraud under Count 11 could stand if, in
    light of the immunity agreement, the jury had wholly discounted Brown’s
    testimony, and also about how Wolff’s testimony merely duplicated or
    corroborated other evidence at trial.
    UNITED STATES V. MAZZARELLA                   15
    specific explanation for its conclusion that confidence in the
    verdict is not undermined.
    B. The district court erred in concluding on the record
    before it that there was no search implicating the
    Fourth Amendment
    One or more of Mazzarella’s convictions may need to be
    vacated if there was evidence admitted at trial that should
    have been suppressed as the fruit of an unlawful search. But
    more discovery is required to determine whether an unlawful
    search occurred and whether there were evidentiary fruits of
    an unlawful search. The district court should make those
    determinations in the first instance on remand.
    We have held that whether a private individual acts as a
    government agent for Fourth Amendment purposes requires
    an inquiry into whether the government knew of or
    acquiesced in the intrusive conduct, and whether the party
    performing the search intended to assist law enforcement
    efforts or further his or her own ends. United States v. Reed,
    
    15 F.3d 928
    , 931 (9th Cir. 1994). In Reed, a hotel manager
    called the police to report suspected drug activity by one of
    the hotel’s guests and asked for police protection as he
    searched the guest’s room, which the police provided. 
    Id. We held
    that the search fell within the Fourth Amendment’s
    ambit. 
    Id. at 932.
    We also rejected crime prevention as an
    independent private motive, reasoning that if crime
    prevention were deemed a private motive, searches by private
    parties would never implicate the Fourth Amendment. 
    Id. If an
    unwarranted search did occur—and there is no
    dispute that Brown’s copying was not pursuant to a
    warrant—our precedents establish that such a search would
    16           UNITED STATES V. MAZZARELLA
    generally be unreasonable, absent an exception such as valid
    consent. See United States v. Ziegler, 
    474 F.3d 1184
    , 1191
    (9th Cir. 2007) (upholding search of employee’s workplace
    computer where employer gave consent). A third party with
    “common authority over or other sufficient relationship to the
    premises or effects sought to be inspected” may consent to a
    government search without the search violating the Fourth
    Amendment. Id.; see also United States v. Kim, 
    105 F.3d 1579
    , 1582 (9th Cir. 1997) (holding that consent may be
    given by person with actual or apparent authority to do so,
    and that defendant, by authorizing associate to rent storage
    unit for defendant in associate’s name, assumed the risk that
    associate would consent to a search of the unit).
    Here, Brown testified at another trial that after she
    approached the authorities during the Mazzarella
    investigation, either the FBI or the IRS told her to get as
    much documentation from DREI as she could, and that she
    did so. She testified that she agreed she would gather
    documents, and made “a very huge stack” of copies of
    documents without Mazzarella’s knowledge, and gave it to
    “the proper people to give it to.” There was also testimony
    from that same trial that the investigating FBI agent who
    investigated Mazzarella testified that he did not recall
    receiving any documents taken from DREI.
    The district court concluded that: (1) the Fourth
    Amendment was not implicated because Brown testified that
    she was motivated by a desire to do the right thing; (2) there
    was no evidence that any documents were given to the
    government; and (3) there was no evidence that any
    documents that were turned over were used by the
    government at trial. But we cannot affirm any of the district
    court’s conclusions on this issue on the present record.
    UNITED STATES V. MAZZARELLA                    17
    First, the desire to “do the right thing” that the district
    court identified here is indistinguishable from the crime
    prevention motive that we rejected in Reed. Also, per
    Brown’s testimony, the government did not merely acquiesce
    but asked Brown to gather evidence. If Brown’s testimony is
    accurate, her copying may have implicated the Fourth
    Amendment. We cannot say on the present record whether
    Brown had actual or apparent authority to turn over the
    documents to the government. Testimony from the related
    trial from a DREI employee who apparently assisted Brown
    with the copying that “Eve [Mazzarella] would have gone
    insane if she knew that we were . . . copying old investor
    files,” at least suggests that Brown lacked actual authority to
    copy and disclose the documents. But there is no further
    evidence on this issue in the record, no evidence at all related
    to Brown’s apparent authority or the other DREI employee’s
    apparent authority, and the district court made no findings on
    the issue.
    Second, the district court’s conclusion that there is no
    evidence that documents were actually disclosed to the
    government is not supported by the record. That finding is
    contradicted by Brown’s sworn testimony that she turned
    over her copies to the appropriate people. While one FBI
    agent testified that he did not recall receiving any copied
    documents from Brown, further discovery is necessary to
    resolve the issue, and the district court should make findings
    of fact on this issue.
    Third, the government’s declaration that none of the
    exhibits introduced at trial were from documents obtained by
    Brown, even if true, does not resolve the potential Fourth
    Amendment problem. The exclusionary rule bars the
    introduction of “derivative evidence, both tangible and
    18            UNITED STATES V. MAZZARELLA
    testimonial, that is the product of the primary evidence, or
    that is otherwise acquired as an indirect result of the unlawful
    search, up to the point at which the connection with the
    unlawful search becomes so attenuated as to dissipate the
    taint.” Murray v. United States, 
    487 U.S. 533
    , 536–37 (1988)
    (internal quotation marks omitted). After determining
    whether a search within the meaning of the Fourth
    Amendment occurred and whether any documents from that
    search were given to the government, the district court must
    also determine what trial evidence, if any, was the fruit of an
    unlawful search such that it should have been suppressed.
    After making these determinations, the district court
    should consider again the cumulative effect of the
    impeachment evidence it considered before, and the
    additional impeachment evidence that Mazzarella sought to
    place before this court. This material must be considered
    together with any evidence that should have been excluded
    from trial under the Fourth Amendment to determine whether
    any of Mazzarella’s convictions must be vacated and a new
    trial granted.
    C. The district court abused its discretion in denying
    Mazzarella’s requests for discovery and an
    evidentiary hearing
    Mazzarella contends that the district court abused its
    discretion by not permitting discovery or holding an
    evidentiary hearing on the Brady and Fourth Amendment
    issues. We agree to an extent. More findings, which will
    require reasonable discovery and an evidentiary hearing, are
    needed to resolve whether there was an immunity agreement
    in place for Wolff, and whether there was an unlawful search
    of the DREI offices that resulted in tainted evidence being
    UNITED STATES V. MAZZARELLA                   19
    used at trial. Finally, the district court should also consider
    the additional disclosure with which Mazzarella sought to
    supplement the record before us.
    Having concluded that the district court abused its
    discretion in denying an evidentiary hearing and not
    permitting any discovery on these issues, we will not as an
    appellate panel impose unduly onerous specifications related
    to the scope of discovery. We reject Mazzarella’s argument
    that the district court should have imposed the very detailed
    discovery guidelines from a 2010 Department of Justice
    memorandum to federal prosecutors. See David W. Ogden,
    Dep. Att’y General, Memorandum for Department
    Prosecutors: Guidance for Prosecutors Regarding Criminal
    Discovery (Jan. 4, 2010). The Ogden Memorandum says that
    it “is not intended to have the force of law or to create or
    confer any rights, privileges, or benefits.” 
    Id. at 1.
    Mazzarella has pointed to no authority suggesting that an
    appellate court can or should impose such specific
    requirements on a question governed by the district court’s
    discretion, especially based on a document only meant to
    provide policy guidance. Cf. United States v. Canori,
    
    737 F.3d 181
    , 183–85 (2d Cir. 2013) (rejecting an argument
    that another Justice Department memorandum, which gave
    guidance for federal prosecutors in states that have
    decriminalized marijuana, in any way prevented those
    prosecutors from enforcing federal drug laws); In re Grand
    Jury Subpoena, Judith Miller, 
    438 F.3d 1141
    , 1152 (D.C. Cir.
    2006) (as amended) (rejecting argument that a contempt
    finding against a journalist for not disclosing a source had to
    be reversed because the government did not comply with the
    procedures set out in 28 C.F.R. § 50.10, governing subpoenas
    for reporters, in part because the government guidelines state
    that they do not create an enforceable right for any person).
    20            UNITED STATES V. MAZZARELLA
    * * *
    We vacate the orders denying Mazzarella’s motions for a
    new trial. On remand, the district court should authorize
    appropriate discovery and hold an evidentiary hearing to
    determine whether an unlawful search occurred and, if so,
    what evidence was obtained by the government or derived
    from the unlawful search. In addition, the district court
    should determine whether Wolff was promised immunity in
    exchange for testimony against Mazzarella. Finally, based on
    the result of these determinations, the district court should
    consider anew whether the cumulative effect of the Brady
    disclosures and the suppression of unlawfully obtained
    evidence requires vacating Mazzarella’s convictions and
    ordering a new trial.
    There is a serious need for constant vigilance in both
    prosecutors’ offices and federal courtrooms to safeguard
    individuals’ Fifth Amendment rights as explained in Brady
    and Giglio. This is no less true of the Fourth Amendment,
    and the important individual interests in privacy and personal
    security that it protects.
    Those charged with crime deserve a fair shake from
    government prosecutors. The prosecutors’ duty is not to gain
    conviction at any cost but rather to help ensure that justice is
    done. Prosecutors have a critical role in the criminal justice
    system. Of course, we expect prosecutors to be able and
    aggressive advocates, in the best traditions of the American
    bar, and they may enlist many of the tools used by private
    advocates as they put the government’s case in its most
    appealing form. But our system maintains important
    safeguards of individual rights and this constrains the actions
    of the government. Prosecutors cannot withhold from
    UNITED STATES V. MAZZARELLA                   21
    disclosure information that it has that is favorable to the
    accused, nor knowingly present false testimony.
    Similar principles constrain law enforcement. Although
    we want vigorous enforcement of the law, we insist that law
    enforcement honor the constitutional rights of those suspected
    of crime. We place limits on searches for evidence to
    preserve individual privacy, with the Constitution generally
    requiring probable cause for searches of a private business
    and a warrant preceding the search except in defined
    circumstances. We impose a broad mandate for fair
    procedure implemented through many particular
    requirements.
    On remand, the district court should permit discovery
    suitable to ensure that the prosecutors in this case have
    respected Mazzarella’s constitutional rights. If it is shown
    that they have not, and that those failures were neither
    harmless nor immaterial under our court’s precedents,
    Mazzarella is entitled to a new trial on one or more of the
    charges against her.
    IV
    For the foregoing reasons, we vacate the district court’s
    orders denying Mazzarella’s motions for a new trial. This
    case is remanded for further proceedings consistent with this
    opinion.
    VACATED and REMANDED.