govinfo:USCOURTS-caed-2_06-cr-00434-4

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DANIEL J. BRODERICK, #89424
Federal Defender
TIMOTHY ZINDEL, Bar #158377
Assistant Federal Defender
801 I Street, 3rd Floor
Sacramento, California 95814
Telephone: (916) 498-5700
Attorney for Defendant
JOSEPH SCANIO
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSEPH SCANIO,
Defendant.
_______________________________
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No. 2:06-CR-0434 FCD
PETITION REQUESTING
DISCLOSURE OF PROBATION RECORDS;
ORDER
Judge: Hon. Frank C. Damrell
Pursuant to Local Rule 461 of the Eastern District of California,
Mr. Scanio hereby requests that the Court order Probation to disclose its
complete file concerning supervision of Mr. Scanio. This request extends
to the complete written file and to records (such as emails or chronos)
that are stored only in electronic form (text messages, email, or any
other electronic memorandum or note) but have not been printed or added
to the file. Mr. Scanio asks that these materials be disclosed to him by
noon on Monday, August 24, 2011, so that he may use them to prepare for
the evidentiary hearing scheduled to take place two days later.

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Local Rule 461 authorizes the Court to order the release of
otherwise-confidential probation records upon a showing by any party of
“the need for specific records.” The need for records in this case is to
demonstrate the following: (1) Mr. Scanio has endeavored to comply with
conditions of supervision as they have been explained to him; (2) some of
the allegations made against Mr. Scanio are baseless; and (3) the
probation officer has acquiesced in Mr. Scanio’s attendance at events
involving his own daughter. Mr. Scanio anticipates that the file also
contains evidence of bias ag ainst Mr. Scanio in the witness whose
complaints led to the filing of charges 7 and 8 of the petition.
Mr. Scanio is alleged to have violated supervision in various
respects. In June, Judge Hollows dismissed three out of four charges
brought in an earlier version of the petition for lack of probable cause
and ordered Mr. Scanio released from custody. Two months later,
Probation filed an eight-count petition, which is scheduled for hearing
on August 26. Probation has provided the parties those portions of its
file that it believes support the charges, but it cannot provide access
to the remainder of the file without a court order. Consequently, Mr.
Scanio has no access to portions of the file that will show he did not
violate supervision, nor does he have access to those portions of the
file that will help him demonstrate his effort to understand and comply
with conditions of supervision.
The file contains materials that will help either to exculpate Mr.
Scanio or to help him avoid revocation of supervised release for any
count the Court may sustain. For example, charges one and two allege
that Mr. Scanio used two computers without advance permission from the
probation officer and claim that he was “found to be in possession” of
these computers on May 11 and May 26, respectively. In an earlier
Pet. Requesting Disclosure
of Probation Records -2-

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version of the petition, the probation officer attested under oath that
she was “unaware of” the computer Mr. Scanio was using on May 11, which
belonged to his wife. However, at a hearing before Judge Hollows, the
probation officer admitted she knew there were other computers in the
home, including the computer that belonged to Mr. Scanio’s wife. The
computer charged in the other count was actually examined by a federal
probation officer during a home visit in 2010, a fact not disclosed
either in the petition or in discovery provided to the parties. Also,
probation has not provided the parties with reports of forensic testing
confirming that nothing sinister was found on any of these computers -
materials that the government itself would routinely provide to the
defense under Brady v. Maryland, 373 U.S. 83 (1963).
Beginning in late 2009, the probation officer had numerous
conversations with Jennifer Scanio, Mr. Scanio’s wife, relating to
interpretation and enforcement of Mr. Scanio’s conditions. For example,
in an email sent in January 2010, Mrs. Scanio specifically asked the
probation officer to clarify special condition number five, relating to
“contact with children.”
As you might imagine, this presents a lot of questions and
challenges for us. We have a niece who is 12 and a nephew who
is 6, all of [our daughter’s] friends are under the age of 18? 
What are we suppos ed to do since there very well may be
indirect contact sometimes daily? . . . . Will Joe be able to
assist me with our daughter in dropping her off at school,
picking her up, taking her dance [sic] or to her midweek Bible
study at church? Can he join me and the rest of the family at
her dance recitals, soccer games, basketball games, family
nights at church? . . . . This is a huge area of concern for
me since we have an eight year old and the impact on our life
as a family, not to mention the direct impact on our daughter,
could be enormous. Any specific direction would be
appreciated.
Neither this email nor the probation officer’s response to it have been
provided to the parties. Probation has given us only evidence it
Pet. Requesting Disclosure
of Probation Records -3-

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believes supports the violations and has not disclosed anything that
would undermine the violations - including its response to this inquiry.
The petition now charges Mr. Scanio with violating condition 5 by
attending a birthday party where children were present. The evidence
supporting this charge consists of a photograph showing a group of
persons - adults and children - at a party for Mr. Scanios’ daughter’s
skating coach. Mr. Scanio is present with his wife, his daughter, other
skaters, and other team parents. At the hearing in June, the probation
officer admitted that Mr. Scanio has reported to her in a daily journal
(sent to her with his monthly reports) that he has attended skating and
other events with his wife and child “several times a month” during “the
whole time he’s been released,” but that she had never told him he could
not do so. “We did not have that discussion,” she said. At the very
least, the file will contain the daily reports showing Mr. Scanio’s self-
reporting and will confirm that the probation officer approved this
course of conduct by never questioning it during the 14 or 15 months it
occurred and was reported.
Finally, charges seven and eight rest on claims made by a Lake Tahoe
woman who was ordered restrained from harassing the Scanios after making
libelous blog posts on the internet and engaging in other acts of
harassment. The probation officer has spoken to this woman (and perhaps
has interviewed her) but has not disclosed her statements to either
party, although she has arranged for government counsel to interview the
woman. Defense counsel specifically notified that probation officer
about evidence showing this woman’s bias (most of it directed at Mr.
Scanio’s wife), but probation has not disclosed that evidence to the
government, nor has it revealed any other information concerning its
contacts with this witness.
Pet. Requesting Disclosure
of Probation Records -4-

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The chief problem here is that federal probation officers have no
legal training and therefore lack the awareness federal prosecutors have
of the constitutional obligation to disclose exculpatory and mitigating
evidence to the defendant along with inculpatory and aggravating
evidence. There is no question that the file concerning Mr. Scanio
contains the evidence noted above. Defense counsel must be allowed to
examine that file in full in order to effectively represent Mr. Scanio at
the hearing. Disclosing the evidence in advance will also prevent delays
arising from requests under the Jencks Act (18 U.S.C. § 3500) and Fed. R.
Crim. P. 26.2.
A proposed order is attached for the Court’s convenience. Defense
counsel notes he would be satisfied with an opportunity merely to examine
the file and copy records as needed - there is no need to make copies of
the entire file.
Respectfully submitted,
DANIEL J. BRODERICK
Federal Defender
Dated: August 17, 2011 /s/ T. Zindel 
TIMOTHY ZINDEL
Assistant Federal Defender
Attorney for JOSEPH SCANIO
Pet. Requesting Disclosure
of Probation Records -5-

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O R D E R
The probation officer is hereby ordered to provide to defendant
copies of its complete file (including information stored in an
electronic format) prior to noon on Monday, August 24. The office may
instead choose to provide access to the entire file as noted above, with
an opportunity to copy d ocuments defendant may wish to use at the
hearing.
IT IS SO ORDERED.
Dated: August 18, 2011
Pet. Requesting Disclosure
of Probation Records -6-

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