stating that a “new trial is warranted for a discovery violation only if the remedy offered by the district court was inadequate to provide the defendant with a fair trial”
How later courts described this case
- stating that a “new trial is warranted for a discovery violation only if the remedy offered by the district court was inadequate to provide the defendant with a fair trial”
- holding that there was no appellate jurisdiction where the defendant “challenges the district court’s factual findings and its discretionary decision not to depart”
- “Because defendant Trevino was able to adequately question Chavez as to the fact of the government payments, the district courts’ refusal to allow more detailed questioning on that subject does not constitute a denial of defendant Trevino’s Sixth Amendment rights.”
- “Absent a showing that trial counsel chose not to ask for an obviously applicable departure without any justification for his actions, we cannot conclude that his performance was objectively unreasonable.”
Written by the judges who cited it.
The opinion
WILLIAMS, Circuit Judge,
dissenting in part. I dissent from the majority opinion in two respects.
First, unlike my colleagues, I do not believe that the district court adequately remedied the government’s discovery violation. I agree that the district court has the discretion to determine the appropriate sanction for a Federal Rule of Criminal Procedure 16 1 violation and that this court will not disturb the district court’s ruling absent a showing of unremedied prejudice. “A defendant is prejudiced under Rule 16 only when he is unduly surprised and lacks an adequate opportunity to prepare a defense, or when the violation substantially influences the jury.” United States v. De La Rosa, 196 F.3d 712, 716 (7th Cir.1999).
The question here is whether the loss of a potential defense strategy as the result of a discovery violation creates enough prejudice to require a new trial. This is an issue of first impression for our circuit. In a similar case from the Eleventh Circuit, the defendant challenged his conviction on the ground that the district court admitted into evidence a tape recording of the defendant on rebuttal even though the government had failed to turn over the tape during pretrial discovery. See United States v. Noe, 821 F.2d 604, 607 (11th Cir.1987). In response, the government suggested that it could withhold discoverable inculpatory evidence until the defendant asserted a defense strategy based on the apparent nonexistence of that evidence, thus foreclosing other, possibly viable, defense strategies. See id. at 608 . The Eleventh Circuit refused to adopt the government’s suggestion because “it would encourage precisely the ‘trial by ambush’ that the Federal Rules of Criminal Procedure were designed to prevent.” Id. Consequently, the Noe court granted the defendant a new trial. See id. at 609 .
In the case at bar, the government claims that a defendant simply does not have the right to lie under oath with impunity on the belief that the government will not be able to prove otherwise because he has not been given prior notice of a rebuttal witness’ identity. The government, however, misses the point. The issue here is about a fair trial, not Cuevas’s credibility. The Noe court addressed a similar argument.
The government’s appeals to “justice” to uphold Noe’s guilty verdicts are misplaced. Although Noe certainly does not have the right to “fabricate” an alibi story, the Federal Rules of Criminal Procedure provide him a right ... to devise a defense strategy on the basis of the evidence disclosed.... Had the government ... complied fully with Noe’s discovery request ..., it would not now be before this court invoking vague notions of justice. Likewise, had Noe been aware of the tape recordings prior to trial, his counsel “might well have advised [him] not to take the stand.” United States v. Padrone, 406 F.2d 560, 561 (2d Cir.1969). The government, however, failed to comply with Noe’s discovery request and did not disclose the tape recording until after Noe had developed and implemented his trial strategy. Consequently, the govern- *669 merit cannot now claim that the discovery violation was harmless.
Id. (emphasis added).
In our ease, the district court’s sanctions were insufficient in my view. A new trial is warranted when the failure to disclose “is so serious a detriment to the preparation for trial and the defense of serious criminal charges [and] where it is apparent, as here, that [the defendant’s] defense strategy may have been determined by the failure to comply.” Padrone, 406 F.2d at 561 . The government does not provide any valid reasons for not disclosing the airline report and appears to have acted in bad faith. Moreover, Cuevas’s trial strategy was significantly prejudiced by the “ambush.” See United States v. Camargo-Vergara, 57 F.3d 993, 998-99 (11th Cir.1995) (finding that the government substantially prejudiced the defendant’s case by its failure to disclose a portion of the defendant’s statement until after trial started because defendant had already prepared and committed himself to a trial strategy).
While the majority urges us to look at the airline manifest and Villamil’s testimony in isolation, I do not believe that we can. The government apparently learned of Villamil’s identity through the subpoenaed manifest. Consequently, he would not have been a rebuttal witness without the government’s review of that manifest. Because the government’s rebuttal case was built upon knowledge gained from those records, the banned records were “just as effective as if [they] had been introduced in evidence.” United States v. Rodriguez, 799 F.2d 649, 654 (11th Cir.1986). Villamil’s testimony was especially damning. He was the only “inside” government witness to claim that he met and dealt with Cuevas during the alleged conspiracy.
If the government had timely turned over the airline flight manifest or ticket records — the government received these documents on the first day of trial, Cuevas may have exercised his constitutional right not to testify. At a minimum, Cuevas should have had an opportunity to properly investigate and prepare a cross-examination strategy.
I also dissent from my colleagues’ conclusion regarding the suppression of impeachment evidence concerning Daniel Chavez. I do agree that the government did not commit a Brady violation and that the central question here is whether the district court erred in making its initial materiality determination as to the disputed evidence. I am, however, troubled by the unusual events surrounding the determination that the payments made to Chavez were not relevant to this case.
Ordinarily, we rely on the sound discretion of the district judge whether to conduct an in camera review of government files. See United States v. Phillips, 854 F.2d 273, 277 (7th Cir.1988). Here we cannot, however, determine on the record whether the district court properly exercised its discretion. Unlike the situation in Phillips , no record or transcript was prepared of the ex parte in camera hearing between the district judge and the government officials. 2 Furthermore, all we have is the district judge’s conclusory opinion that the payments made to Chavez were related to a separate investigation.
A jury is entitled to know all the details of a witness’ relationship to the government. See United States v. Muscarella, 585 F.2d 242, 248 (7th Cir.1978); cf. United States v. Boyd, 55 F.3d 239, 245-46 (7th Cir.1995) (ruling that testimony in exchange for special favors to a witness by the government or favorable treatment in the criminal justice system should be disclosed as impeachment evidence). This information includes the informant’s relationship with the government outside of *670 the particular case at issue. See United States v. Williams, 954 F.2d 668, 671-72 (11th Cir.1992). “The jury has the right to know what may be motivating a witness, especially a government paid, regularly employed, informant-witness.” Id. at 672 .
There may indeed be some unique circumstances where a district court within its discretion excludes some of this evidence as irrelevant. However, the district judge should, at the very least, provide the appellate court with a record-even if sealed — to review. By not establishing a record, the district court effectively nullifies appellate review. See United States v. Southard, 700 F.2d 1, 11 (1st Cir.1983). Consequently, I believe that the court below abused its discretion.
My colleagues conclude that the defendants were not prejudiced because the error, if any, was harmless. Chavez admitted on cross-examination that he was a paid government informant. Therefore, the majority finds that any other evidence of payments would have been merely cumulative. Because the record is incomplete, however, I do not believe that we can make that determination. Furthermore, Chavez was an important government witness who detailed drug deals and other illegal activities among the cocon-spirators. His testimony may very well have been- effectively impeached if the jury knew his complete relationship to the prosecution.
Therefore, I respectfully dissent on these two issues.
. Fed.R.Crim.P. 16(a)(1)(C) requires discovery of certain documents, including those that are "material to the preparation of the defendant’s defense.”
. In Phillips , the appellate court was able to review the entire file that the district court had viewed in camera. 854 F.2d at 277 .