10-3936 U.S. v. Gray

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Criminal Procedure
Due process; exculpatory evidence

The government is not obligated to create and run programs to extract data from a database that may be exculpatory.
“Gray is reduced to arguing that in advance of trial the government should have directed EDS to create and run programs to extract data from its database that would be useful to the defense. That argument is a non-starter. E.g., id. at 1168-70. ‘We find the proposed extension of Brady difficult even to understand. It implies that the state has a duty not merely to disclose but also to create truthful exculpatory evidence.’ Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003), overruled on other grounds by Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006). ‘The failure to create exculpatory evidence does not constitute a Brady violation.’ United States v. Alverio-Melendez, 640 F.3d 412, 424 (1st Cir. 2011); see also United States v. Monroe, 943 F.2d 1007, 1011- 12 n. 2 (9th Cir. 1991). As it happened, the government for its own purposes ran such a program during the trial and having done so, as we know, promptly turned over the results to the defendant because they were potentially exculpatory. It had no duty to go further and conduct the defense’s investigation for it.”

Affirmed.

10-3936 U.S. v. Gray

Appeal from the United States District Court for the Northern District of Indiana, Moody, J., Posner, J.

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