Petition for Writ of Certiorari — Jose Ignacio Goris, Petitioner v. United States

Supreme Court briefApr 5, 2018

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No.___________________________________

________________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

JOSE IGNACIO GORIS

PETITIONER

UNITED STATES OF AMERICA

RESPONDENT

)

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE FIRST CIRCUIT

Robert B. Mann

Robert B. Mann Law Office

One Turks Head Place

Suite 610

Providence, R.I. 02903

(401) 351-5770

rmann@rbmann,com

Attorney for Petitioner

Jose Ignacio Goris

QUESTION PRESENTED

Federal Rule of Criminal Procedure 16(a)(1)(E) grants a defendant the right to

inspect and copy all documents and items in the government’s possession, custody, or

control which are “material to preparing the defense.” The question this case presents is

whether the definition of materiality in this rule includes information that may not

“significantly … alter the quantum of proof” in the defendant’s favor, i.e., it may be

inculpatory rather than exculpatory.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

TABLE OF CONTENTS

TABLE OF CONTENTS.....................................................................................................i

TABLE OF CONTENTS OF APPENDIX……………………………….………….......,ii

TABLE OF AUTHORITIES..............................................................................................iii

CITATION TO THE REPORT OF THE OPINION OF THE CASE ……..……..1

II.

BASIS FOR THE JURISDICTION OF THIS COURT …….………....................1

III.

STATUTORY PROVISIONS INVOLVED…………….………………………...1

IV.

STATEMENT OF THE CASE…………….……………………….…………….7

REASONS FOR GRANTING THE WRIT……………………….……………..10

THE OPINION OF THE COURT OF APPEALS………………………10

THE COURT OF APPEALS OPINION CONFLICTS WITH

FEDERAL RULE OF CRIMINAL PROCEDURE 16 AND

IS PART OF AN EVOLVING CONFLICT AMONG THE

COURTS OF APPEALS AS TO THE DEFINITION OF

MATERIALITY IN RULE 16…………………………………………...14

VI.

CONCLUSION………………………………………………………..…………19

TABLE OF CONTENTS OF APPENDIX

Opinion of the United States Court of Appeals for the First

Circuit in United States v. Goris, 840 F.3d 40 (lst Cir. 2017……………….......1-9

United States District Court Bench Decision on May 7, 2015

Denying Defendant’s Motion For Discovery and Request

for Preservation of Evidence ………………………………’’……….

..10-16

Order of the United States Court of Appeals for the First Circuit

dated January 8, 2018, denying the petition for rehearing and

rehearing en banc……………………………………………………………..…17

Transcript of Hearing on May 6, 2015 on Defendant’s Motion

For Discovery and Request for Preservation of Evidence……

……18-61

TABLE OF AUTHORITIES

CASES

United States v. Caro, 597 F.3d 608 (4th Cir. 2010)…………………………………….16.

United States v. Goris, 876 F.3d 40 (lst Cir. 2017),…………………..…1,9,10,11,12,14

United States v. Henderson, 564 F. App'x 352 (10th Cir. 2014)………………………..16

United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993)………….…………………….11

United States v. Lykins, 428 F. App'x 621 (6th Cir. 2011)……………………………..16

United States v. Mackin, 793 F.3d 703 (7th Cir. 2015)………………………………....15

United States v. Marshall, 132 F.3d 63 (D.C. Cir.1998)…………..……………15,17,18.

United States v. Muniz-Jaquez, 718 F.3d 1180, (9th Cir. 2013)………………………..15

United States v. Ross, 511 F.2d 757 (5th Cir. 1975), reh. denied (1975)

cert. denied, 423 U.S. 836 (975)………………………………………….14,15,16

United States v. Smith, 2017 U.S. Dist. LEXIS 201062 (D. N.H. 2017)………...16,17,18.

United States v. Stevens, 985 F.2d 1175 (2nd Cir. 1993)………………………………16

CONSTITUTIONS, STATUTES, AND RULES

21 U.S.C. § 841(a)(1)……………………………………………………………………7

21 U.S.C. § 841b)(1)(B) ………………………………………………………………...7

21 U.S.C. §846…………………………………………………………………………...7

28 U.S.C. § 1254…………………………………………………………………………1

Federal Rule of Criminal Procedure 16……………………………..……1-7, 10,14,17,18

SECONDARY SOURCE

2 Charles Alan Wright and Peter J. Henning, Federal Practice and Procedure

§ 254 (4th ed. 2009) (Federal Rules of Criminal Procedure)…………………..18

iii

I. CITATION TO THE REPORT OF THE OPINION IN THE CASE

The case below was decided by the United States Court of Appeals for the First Circuit in

United States v. Goris, 876 F.3d 40 (lst Cir. 2017), rehearing and rehearing en banc denied

(January 8, 2018). App: 1-9, and 17. The district court denied the defense motion for discovery

in a bench decision. App: 10-16.

II.

BASIS FOR THE JURISDICTION OF THIS COURT

The opinion and judgment of the Court of Appeals were entered on November 27, 2017.

The Court of Appeals denied a timely filed petition for rehearing and rehearing en banc on

January 8, 2018. App: 17.

This Court has jurisdiction to review the judgment in question by writ of certiorari

pursuant to 28 U.S.C. § 1254.

III. STATUTORY PROVISIONS INVOLVED

Federal Rule of Criminal Procedure 16 states:

(a) Government’s Disclosure.

(1) Information Subject to Disclosure.

(A) Defendant’s Oral Statement. Upon a defendant’s request, the government must

disclose to the defendant the substance of any relevant oral statement made by the

defendant, before or after arrest, in response to interrogation by a person the

defendant knew was a government agent if the government intends to use the

statement at trial.

(B) Defendant’s Written or Recorded Statement. Upon a defendant’s request, the

government must disclose to the defendant, and make available for inspection,

copying, or photographing, all of the following:

(i) any relevant written or recorded statement by the defendant if:

•

the statement is within the government’s possession, custody, or control; and

•

the attorney for the government knows—or through due diligence could know—that the

statement exists;

(ii) the portion of any written record containing the substance of any relevant oral

statement made before or after arrest if the defendant made the statement in

response to interrogation by a person the defendant knew was a government

agent; and

(iii) the defendant’s recorded testimony before a grand jury relating to the charged

offense.

organization, the government must disclose to the defendant any statement

described in Rule 16(a)(1)(A) and (B) if the government contends that the person

making the statement:

(i) was legally able to bind the defendant regarding the subject of the statement

because of that person’s position as the defendant’s director, officer,

employee, or agent; or

(ii) was personally involved in the alleged conduct constituting the offense and

was legally able to bind the defendant regarding that conduct because of that

person’s position as the defendant’s director, officer, employee, or agent.

(D) Defendant’s Prior Record. Upon a defendant’s request, the government must

furnish the defendant with a copy of the defendant’s prior criminal record that is

within the government’s possession, custody, or control if the attorney for the

government knows—or through due diligence could know—that the record

exists.

(E) Documents and Objects. Upon a defendant’s request, the government must permit

the defendant to inspect and to copy or photograph books, papers, documents,

data, photographs, tangible objects, buildings or places, or copies or portions of

any of these items, if the item is within the government’s possession, custody, or

control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

(F) Reports of Examinations and Tests. Upon a defendant’s request, the government

must permit a defendant to inspect and to copy or photograph the results or

reports of any physical or mental examination and of any scientific test or

experiment if:

(i) the item is within the government’s possession, custody, or control;

(ii) the attorney for the government knows—or through due diligence could

know—that the item exists; and

(iii) the item is material to preparing the defense or the government intends to use

the item in its case-in-chief at trial.

(G) Expert witnesses. At the defendant’s request, the government must give to the

defendant a written summary of any testimony that the government intends to use

under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-inchief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii)

and the defendant complies, the government must, at the defendant’s request,

give to the defendant a written summary of testimony that the government intends

to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence

at trial on the issue of the defendant’s mental condition. The summary provided

under this subparagraph must describe the witness’s opinions, the bases and

reasons for those opinions, and the witness’s qualifications.

(2) Information Not Subject to Disclosure. Except as permitted by Rule 16(a)(1)(A)–(D),

(F), and (G), this rule does not authorize the discovery or inspection of reports,

memoranda, or other internal government documents made by an attorney for the

government or other government agent in connection with investigating or

prosecuting the case. Nor does this rule authorize the discovery or inspection of

statements made by prospective government witnesses except as provided in 18

U.S.C. § 3500.

(3) Grand Jury Transcripts. This rule does not apply to the discovery or inspection of a

grand jury’s recorded proceedings, except as provided in Rules 6, 12(h), 16(a)(1),

and 26.2.

(b) Defendant’s Disclosure.

(1) Information Subject to Disclosure.

(A) Documents and Objects. If a defendant requests disclosure under Rule

16(a)(1)(E) and the government complies, then the defendant must permit the

government, upon request, to inspect and to copy or photograph books, papers,

documents, data, photographs, tangible objects, buildings or places, or copies or

portions of any of these items if:

(i) the item is within the defendant’s possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant’s case-in-chief at trial.

(B) Reports of Examinations and Tests. If a defendant requests disclosure under Rule

16(a)(1)(F) and the government complies, the defendant must permit the

government, upon request, to inspect and to copy or photograph the results or

reports of any physical or mental examination and of any scientific test or

experiment if:

(i) the item is within the defendant’s possession, custody, or control; and

(ii) the defendant intends to use the item in the defendant’s case-in-chief at trial,

or intends to call the witness who prepared the report and the report relates to

the witness’s testimony.

government a written summary of any testimony that the defendant intends to use

under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at

trial, if—

(i) the defendant requests disclosure under subdivision (a)(1)(G) and the

government complies; or

(ii) the defendant has given notice under Rule 12.2(b) of an intent to present

expert testimony on the defendant’s mental condition.

This summary must describe the witness’s opinions, the bases and reasons for those opinions,

and the witness’s qualifications

(2) Information Not Subject to Disclosure. Except for scientific or medical reports, Rule

16(b)(1) does not authorize discovery or inspection of:

(A) reports, memoranda, or other documents made by the defendant, or the

defendant’s attorney or agent, during the case’s investigation or defense; or

(B) a statement made to the defendant, or the defendant’s attorney or agent, by:

(i) the defendant;

(ii) a government or defense witness; or

(iii) a prospective government or defense witness.

before or during trial must promptly disclose its existence to the other party or the court

if:

(1) the evidence or material is subject to discovery or inspection under this rule; and

(2) the other party previously requested, or the court ordered, its production.

(d) Regulating Discovery.

(1) Protective and Modifying Orders. At any time the court may, for good cause, deny,

restrict, or defer discovery or inspection, or grant other appropriate relief. The court

may permit a party to show good cause by a written statement that the court will

inspect ex parte. If relief is granted, the court must preserve the entire text of the

party’s statement under seal.

(2) Failure to Comply. If a party fails to comply with this rule, the court may:

(A) order that party to permit the discovery or inspection; specify its time, place, and

manner; and prescribe other just terms and conditions;

(B) grant a continuance;

(D) enter any other order that is just under the circumstances.

IV. STATEMENT OF THE CASE

The defendant was charged in a one count indictment with knowingly and intentionally

attempting to possess with intent to distribute 500 grams or more of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(B) and 21 U.S.C. §846. After a jury trial the defendant was

found guilty. The defendant was sentenced to a term of 60 months imprisonment and a term of

four years supervised release.

From May through August 2014, the defendant had numerous conversations and some

meetings with undercover law enforcement officials posing as drug dealers about the purchase of

narcotics. Generally speaking, these contacts were memorialized with video surveillance and/or

recordings of the conversations. On August 14, 2014, the defendant met twice with the key

undercover agent. The second meeting took place at a home improvement store in Cranston,

Rhode Island. Before the meeting at the store, law enforcement decided that the defendant

would be given a kilo of fake cocaine. A bag with the sham kilo of cocaine was placed in the

Drug Enforcement Agency car which the undercover agent was using.

One of the key issues in this case was the way law enforcement recorded and preserved

the conversations between the defendant and the undercover agent, particularly the conversation

at the home improvement store on August 14, 2014. This was a conversation in which the

defendant allegedly agreed to purchase a kilo of cocaine, although he provided no money for the

alleged purchase and his previously expressed desire to test or sample the cocaine before making

a purchase was acknowledged in testimony by two law enforcement officers.

After the meeting at the home improvement store, a law enforcement officer testified he

observed the defendant leave the store, go to the undercover agent’s vehicle, and take the black

duffel bag which contained the sham kilo of cocaine. The defendant was then placed under

arrest.

The pretrial phase of the case included a motion for discovery. The defendant sought

discovery of the original recording of the critical conversation between himself and the

undercover agent in the home improvement store just prior to his arrest as well as the technology

used to preserve the recording so that it could be examined by a defense expert. The Government

opposed that motion. There was an evidentiary hearing on that motion on May 6. 2015. App:

18-61. At the hearing, the defense presented an expert witness on computer forensics. He

focused his attention on the recording at the home improvement store of the conversation

between the undercover agent and the defendant. App: 32. He said the conversation, “…didn't

flow the way I would expect it with the activity that I was told that took place that day.” App:

35.

After listening to the audio recording, he did a spectrographic analysis of the recording

which allowed him to view it visually. App: 36. He defined noise floor as the background noise

and testified that at one point there was a “dramatic change in the noise floor.” App: 37, 40.

He then opined this dramatic change in the noise floor meant that the audio had been edited at

that point. App: 37, 38. On cross-examination, he reaffirmed his opinion that the words before

the drop in background noise and the words after the drop were not part of the same

conversation. App: 47.

The expert further testified that another step that could be taken would be a comparison

of the original audio recording with the copy that the defense had been provided. App: 39-40.

He testified such a comparison could be accomplished by comparing the hash values of the two

recordings. App: 51, 52. He likened the hash values to the digital equivalent of a fingerprint or

DNA analysis. Id.

At the hearing, the government introduced an affidavit from one of the agents which

described the recording system which was used. Among other things the affidavit explained that

once a recording was created in the database, it could be accessed but not altered or deleted

thereafter. See, Decision of the District Court, App: 14; United States v. Goris, 876 F.3d at 45;

App: 6.

The District Court denied the discovery motion in a bench decision on May 7, 2015.

App: 10-16. The Court held that the defendant had not met his burden of showing that the access

to the database was material to his “presenting an adequate defense.” App: 15. The Court also

held that the requested information was protected on the basis of a proprietary privilege. App:

15.

Just before the start of the trial, the trial judge who was not the judge who decided the

motion for discovery, denied a request to revisit the ruling on the discovery motion. United

States v. Goris, 876 F.3d at 44; App: 4.

The Court of Appeals affirmed the District Court decision on the materiality question and

did not reach the proprietary privilege issue. United States v. Goris, 876 F.3d at 46; App: 6. The

opinion of the Court of Appeals is considered below.

V. REASONS FOR GRANTING THE WRIT

THE OPINION OF THE COURT OF APPEALS

Federal Rule of Procedure 16(a)(1)(E) states in pertinent part:

(E) Documents and Objects. Upon a defendant’s request, the government

must permit the defendant to inspect and to copy or photograph books,

papers, documents, data, photographs, tangible objects, buildings or places,

or copies or portions of any of these items, if the item is within the

government’s possession, custody, or control and:

(i)

the item is material to preparing the defense;

The question this case presents is what the definition of materiality is.

The Court of Appeals noted that the term had not yet been defined in the First

Circuit but also noted that several Courts of Appeals:

… have displayed remarkable uniformity in concluding that it is not enough that

what is sought "bears some abstract logical relationship to the issues in the case."

United States v. Ross, 511 F.2d 757, 762 (5th Cir. 1975). Rather, a showing of

materiality requires "some indication" that pretrial disclosure of the information

sought "would have enabled the defendant significantly to alter the quantum of

proof in his favor." Id. at 763; accord United States v. Caro, 597 F.3d 608, 621

(4th Cir. 2010); United States v. Jordan, 316 F.3d 1215, 1251 (11th Cir. 2003);

United States v. Graham, 83 F.3d 1466, 1474, 317 U.S. App. D.C. 418 (D.C. Cir.

1996); United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991); United States

v. Marshall, 532 F.2d 1279, 1285 (9th Cir. 1976).

United States v. Goris, 876 F.3d 40, 44-45 (1st Cir. 2017); App: 5.

The Court seemingly adopted this standard, noting later in the opinion that:

…the defendant failed to provide some indication that allowing the

discovery request "would have enabled [him] significantly to alter the quantum of

proof in his favor." Ross, 511 F.2d at 763.

United States v. Goris, 876 F.3d 40, 46 (1st Cir. 2017); App: 6. In adopting this standard, the

Court noted that the significant alteration in the quantum of proof could take place in a number

of different ways including, “aiding witness preparation….” Id. at 45, citing United States v.

Lloyd, 992 F.2d 348, 351, (D.C. Cir. 1993) (citations omitted); App: 5.

Applying this standard to the facts of this case, the Court of Appeals concluded that the

requested discovery, “would not have tipped the balance on any relevant issue.” United States v.

Goris, 876 F.3d at 46. App. 6. As a practical matter the Court was saying that the requested

discovery would not help the defendant with respect to the quantum of proof in this case. In

coming to this conclusion, the Court identified a number of factors. It noted the defense expert’s

lack of familiarity with the kind of recording technology used in this case. Id. at 45. App. 6. It

also noted the affidavit submitted by the government at the evidentiary hearing, which explained

the recording system did not allow modification of a stored communication and further that it

relied on cellular transmission of a recording making the quality of the recording subject to the

strength of the cellular signal. Id. The Court of Appeals also noted the absence of any defense

evidence as to what was contained in the alleged missing part of the transmission. Id.

In a footnote, the Court addressed the specific request of the defendant for access to the

original recording of the conversation between the defendant and the undercover agent at the

home improvement store just prior to the defendant’s arrest. United States v. Goris, 876 F.3d at

46, n. 1. App. 6. The Court said:

The defendant claims that he should have at least been given access to the

original version of the August 14 recording stored in the database so that he could

compare it to the copy he had received from the government. But granting this

request in the absence of some indication of tampering would be highly

unorthodox: under Rule 16, a defendant has no absolute right, on demand, to

require the court to help him independently confirm the integrity of materials

produced in discovery. In the case at hand, we are satisfied that the district court

did not abuse its discretion when it denied even this limited request based on its

acceptance of the government's affidavit indicating that the file could not have

been edited.

United States v. Goris, 876 F.3d at 46, n.1. App. 6.

Contrary to the opinion of the Court of Appeals, access to the requested discovery and

particularly the original August 14 recording was material because it clearly would have aided in

the preparation of the defense expert witness. It would have allowed him to generally assess the

methodology which was used to record, transmit, and store the conversations between the

defendant and the undercover agent, including particularly the critical conversation at the home

improvement store on August 14, 2014. The defense expert testified at the hearing on the

discovery motion that he could have used specialized software to compare the recording he

received with the original recording by comparing the hash values which he likened to the digital

equivalent of a fingerprint or DNA analysis. App: 51-52. The discovery also would have made

the defense expert much more prepared for the cross-examination he faced, thereby enhancing

his appearance before the jury. It would have avoided or diminished an attack on his credibility

based on his lack of familiarity with the recording system employed by the government.

There is another possible outcome if the defense expert had been given access to the

requested material. His opinion might have changed. There is no way of knowing whether

access to the requested discovery would have affected the defense expert’s opinion. The defense

submits that even if his opinion had changed, the defense was prejudiced by the expert not

having access to the requested discovery. If the expert’s testimony were changed as a result of

access to the requested discovery, the defense had a variety of options, but it would not have

been tethered to what turned out to be a vulnerable expert opinion.

The Court of Appeals noted that the defense expert was not familiar with the recording

technology being used by the government, but clearly the defense expert was familiar with using

hash values to compare digital files. The defense expert also testified at trial that he was familiar

with examining servers and doing computer forensics on computer images and hard drives. It

would have aided the preparation of the defense expert if he had been allowed to conduct the

hash value comparison he sought of the file he had with the original recording.

During the trial, the government made a proffer of testimony by the president and

founder of the company whose communications system was used by the government in this case.

The proffer included proposed testimony that shortly before the trial the company compared the

hash mark for the file created of the recording at the home improvement store on August 14,

2015, with the hash mark of the file provided to the government of this recording and that they

matched. The Government also said it provided this information to the defense in the week prior

to the trial. Clearly, the government placed value in comparing files by comparing the hash

values. Concededly, the fact and contents of the government proffer were not available to the

District Court Judge making the ruling on the motion for discovery, who was not the trial judge.

Nonetheless, this proffer by the government demonstrates that the very kind of comparative

testing which the defense expert testified he wanted to conduct was a methodology which the

government itself endorsed.

THE COURT OF APPEALS OPINION CONFLICTS WITH FEDERAL RULE

OF CRIMINAL PROCEDURE 16 AND IS PART OF AN EVOLVING

CONFLICT AMONG THE COURTS OF APPEALS AS TO THE DEFINITION

OF MATERIALITY IN RULE 16

Federal Rule of Criminal Procedure 16 provides that the defense is entitled to inspect and

copy items within the possession of the government if they are “material to preparing the

defense.” While acknowledging that witness preparation may be one means of demonstrating

materiality, the Court of Appeals opinion appears premised on the requirement that the requested

item or items must enable the defendant to significantly, “alter the quantum of proof in his

favor.” United States v. Goris, 876 F.3d at 46, citing United States v. Ross, 511 F.2d 757, 763

(5th Cir. 1975); App: 6. This would seem to say that the requested discovery must be favorable

to the defendant. It would appear to impose a requirement that the requested discovery “alter the

quantum of proof” in the defendant’s favor, i.e., that it be exculpatory.

The defense contends that Federal Rule of Criminal Procedure 16 does not require that

the requested discovery be favorable to a defendant. Discovery may be material to the defense

without being favorable to the defense. A 2013 opinion from the Ninth Circuit Court of Appeals

states:

Rule 16 "grants criminal defendants a broad right to discovery," id.,

requiring disclosure of all documents "material to preparing the defense,"

Fed. R. Crim. P. 16(a)(1)(E)(I ). Rule 16 is thus broader than Brady.

Information that is not exculpatory or impeaching may still be relevant to

developing a possible defense. See United States v. Doe, 705 F.3d 1134,

1151 (9th Cir. 2013) ("Even if the documents [**7] [requested under Rule

16] caused [defendant] to completely abandon [his] entrapment defense and

take an entirely different path, the documents would still have been

'material to preparing the defense' under Rule 16(a)(1)(E)(i)."). Even

inculpatory evidence may be relevant. A defendant who knows that the

government has evidence that renders his planned defense useless can alter

his trial strategy. Or he can seek a plea agreement instead of going to trial.

United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013). See also, United States v.

Mackin, 793 F.3d 703 (7th Cir. 2015), citing United States v. Muniz-Jaquez and holding that a

defendant was prejudiced by the late disclosure of inculpatory evidence and that a motion for a

mistrial should have been granted, noting that “Adequate preparation of a defense includes the

ability to intelligently weigh one’s plea options.” United States v. Mackin, 793 F.3d at 711.

The United States Court of Appeals for the District of Columbia, in addressing the

meaning of the term materiality, has stated:

The plain language of Rule 16(a)(1)(C) does not support the government's

interpretation. This rule covers evidence which is material "to the preparation of

the defendant's defense." (emphasis added). The government ignores the words

we have just italicized, reading the rule to refer to evidence which is "favorable or

helpful to a defendant's defense." See Govt. Br. at 35 n.15. The rule as written

does not compel the conclusion that inculpatory evidence is immune from

disclosure. Inculpatory evidence, after all, is just as likely to assist in "the

preparation of the defendant's defense" as exculpatory evidence. In other words, it

is just as important to the preparation of a defense to know its potential pitfalls as

it is to know its strengths.

United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir.1998).

There are cases from other Courts of Appeals which essentially hold that items are not

discoverable under Federal Rule of Criminal Procedure 16 unless they are favorable or

exculpatory to the defense. In United States v. Ross, 511 F.2d 757, 763 (5th Cir. 1975), reh.

denied, 1975, cert. denied, 423 U.S. 836 (1975), the court held that materiality requires that,

“There must be some indication that the pretrial disclosure of the disputed evidence would have

enabled the defendant significantly to alter the quantum of proof in his favor.” Citing to this

conclusion of United States v. Ross, the Court of Appeals for the Fourth Circuit reached a similar

result. See United States v. Caro, 597 F.3d 608, 621 (4th Cir. 2010).

In United States v. Stevens, 985 F.2d 1175 (2nd Cir. 1993), the court also adopted a

similar position. The Court said:

Evidence that the government does not intend to use in its case in chief is material

if it could be used to counter the government's case or to bolster a defense;

information not meeting either of those criteria is not to be deemed material

within the meaning of the Rule merely because the government may be able to

use it to rebut a defense position. See, e.g., United States v. Delia, 944 F.2d 1010,

1018 (2d Cir. 1991). Nor is it to be deemed material merely because it would have

dissuaded the defendant from proffering easily impeached testimony.

United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993). This case was cited favorably by

the Sixth Circuit in United States v. Lykins, 428 F. App'x 621, 624 (6th Cir. 2011), which held

that a Rule 16 violation could not be predicated, “… merely on an argument that disclosure

would have resulted in reconsideration of defendant’s decision to testify or formulation of a more

effective defense strategy. Id. at 624-625. See also, United States v. Henderson, 564 F. App'x

352, 366 (10th Cir. 2014) citing favorably this holding of United States v. Stevens.

A recent case from the district of New Hampshire chronicles the strengths and

weaknesses of this division of authority. It states:

Thus, there are two diverging lines of authority on the general question of

"materiality" under Rule 16(a)(1)(E)(i), and both have strengths and weaknesses.

As Marshall observes, the plain language of Rule 16 -- "material to preparing the

defense" -- "does not compel the conclusion that inculpatory evidence is immune

from disclosure" because it "is just as likely to assist in 'the preparation of the

defendant's defense' as exculpatory evidence." 132 F.3d at 67. As particularly

relevant here, such "assistance" extends to the decision to present "a defense

which is undercut" by the evidence. Id. at 68 (quoted in 2 Charles Alan Wright

and Peter J. Henning, Federal Practice and Procedure, § 254, n.17 (4th ed. 2009)).

On the other hand, as the Court of Appeals acknowledged in Marshall, such a rule

runs the risk of requiring prosecutors to predict what defenses, strategy and tactics

a defendant or defense counsel might employ at trial. "The prosecutor need not

guess that evidence may become material as a consequence of defendant's not-yet

revealed strategic decisions." 132 F.3d at 69 n.2.36 Such a requirement may be

prohibitively burdensome, if not impossible, to satisfy. Moreover, an

interpretation of Rule 16 that essentially requires the government to assist the

defendant in deciding whether to commit perjury or offer otherwise false

testimony is decidedly unattractive. Again, as the D.C. Circuit Court of Appeals

stated in Marshall, "Nor must the prosecutor assume that the defense will make

false assertions about the facts, hence making relevant contrary evidence that

would not have been relevant had the defense adhered to the truth." Id. at 69 n.2.

[Footnote omitted].

United States v. Smith, 2017 U.S. Dist. LEXIS 201062 at pp. 27-28 (D. N.H. 2017). Earlier in

its opinion the court in United States v. Smith noted the significance of the decision in United

States v. Marshall, supra, in its reliance on the plain language of Rule 16(a)(1)(E). The Court

pointed out that Rule 16(a)(1)(E) requires disclosure of items material to preparing the defense or

to be used by the government in its case in chief. The Court went on to note that the statutory

use of the disjunctive and the rule against surplusage supported the proposition that the term

material “at least includes inculpatory evidence.” Id. at 18. The issue in United States v. Smith

arose in the context of a motion for mistrial which was denied because of the defendant’s

inability to show prejudice, so the court never decided the materiality question, though it

indicated that in most circumstances it favored the government interpretation of materiality. Id.

at 28.

The court in United States v. Smith noted that United States v. Marshall, supra, was cited

in 2 Charles Alan Wright and Peter J. Henning, Federal Practice and Procedure § 254 (4th ed.

2009).1 The text of the treatise states:

It is said that to satisfy the requirement of materiality a defendant must provide

some indication that the pre-trial disclosure of the disputed evidence would enable

defendant significantly to alter the quantum of proof in his or her favor. But this

language does not mean that inculpatory evidence may never be material.

Too much should not be required in showing materiality. [Footnotes omitted]

Id. at § 254, pp. 114-116.

In this case, if the defense had been given access to the original recording and allowed to

compare it with the recording analyzed by the defense expert, one possible outcome is that the

defense might have changed its strategy and not relied on what turned out to be a vulnerable

defense, to wit, that the recording had been altered. The defendant’s decision to go to trial might

have been affected. The testimony of the defense expert almost certainly would have been

affected. He would have been more informed about the systems employed by the government if

he had been given access to the original recording and the devices used to make the recordings

and store the same.

The discovery sought in this particular case was also central to the evidence produced by

the government. What the defense was seeking was directly related to the key government

claim, that the defendant was attempting to possess 500 grams or more of cocaine with the intent

to distribute the same. The discovery which was sought was not about a tangential or collateral

matter; it was about the heart of the case. Rule 16 of the Federal Rules of Criminal Procedure

gives a defendant the right to inspect and copy items which are material to preparing a defense.

The references are clearly to the volumes on the Federal Rules of Criminal Procedure.

The defense had retained an expert who had identified what he perceived to be a real problem

with the government’s case. The defense identified specific discovery it requested that might

have the effect of either bolstering or undercutting the expert’s opinion. Nothing could be more

clearly material to preparing a defense.

VI.

CONCLUSION

The petition for a writ of certiorari should be granted for the reasons set forth above.

Jose Ignacio Goris

By His Attorney,

_/s/ Robert B. Mann_________

Robert B. Mann

Robert B. Mann Law Office

One Turks Head Place

Suite 610

Providence, RI 02903

401-351-5770

rmann@rbmann.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.