Opposition Brief — Nathan Russell Cates, Petitioner v. United States
Supreme Court briefJan 29, 2024
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No. 23-5903
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
NATHAN RUSSELL CATES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
ALLAYA LLOYD
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether
the
district
court
permissibly
determined
that
Federal Rule of Criminal Procedure 16 did not entitle petitioner
to
demand
additional
historical
detection dog’s reliability.
(I)
records
establishing
a
drug-
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 23-5903
NATHAN RUSSELL CATES, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A18-A52) is
reported at 73 F.4th 795.
The order of the district court (Pet.
App. A5-A17) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on July 10,
2023.
On September 27, 2023, Justice Gorsuch extended the time
within which to file a petition for a writ of certiorari to and
including November 8, 2023.
The petition for a writ of certiorari
was filed on October 25, 2023.
invoked under 28 U.S.C. 1254(1).
The jurisdiction of this Court is
2
STATEMENT
Following a conditional guilty plea in the United States
District
Court
for
the
District
of
Wyoming,
petitioner
was
convicted of possessing methamphetamine with intent to distribute,
in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A).
Judgment 1.
The district court sentenced him to 180 months of imprisonment, to
be followed by five years of supervised release.
The court of appeals affirmed.
1.
Judgment 2-3.
Pet. App. A18-A52.
While conducting a drug interdiction detail in Laramie
County,
Wyoming
Highway
Patrol
Trooper
Scott
Neilson
saw
petitioner driving down Interstate 80 by himself in a Ford Explorer
SUV with New York license plates.
Pet. App. A19-A20.
Noting that
petitioner appeared “very rigid” as he drove past Neilson’s patrol
car, Trooper Neilson attempted to catch up to the SUV so that he
could run the plates and observe any traffic violations.
A6; see id. at A20.
took an exit ramp.
Id. at
When Trooper Neilson caught up, petitioner
Id. at A20.
Trooper Neilson followed, observed
petitioner speeding, and stopped petitioner in a parking lot.
Ibid.
Petitioner informed Trooper Neilson that the SUV was a rental
vehicle and that the rental contract might be on his phone.
App. A20.
from
a
Pet.
Aware from experience that retrieving rental agreements
phone
could
be
time
consuming,
Trooper
Neilson
asked
petitioner to join him in his patrol car while petitioner looked.
Ibid.
During the conversation, Trooper Neilson noticed a butane
3
lighter refueling cannister in petitioner’s SUV, which Trooper
Neilson knew could be used to heat methamphetamine into vapors to
smoke.
Id. at A7; see id. at A21.
Trooper Neilson also observed
that the back seats of the SUV were folded down to make room for
several duffel bags; that petitioner’s hand was trembling while he
tried to operate his phone; and that petitioner was unable or
unwilling to make “decent eye contact.”
Id. at A21 (citation
omitted).
When he returned to the patrol car with petitioner, Trooper
Neilson sent a message requesting that another Trooper, Andrew
Jackson,
run
a
drug-detection
petitioner’s vehicle.
dog
around
Pet. App. A21.
the
exterior
of
Trooper Jackson arrived
with his dog, May, shortly thereafter.
Id. at A22.
Trooper
Neilson later testified that “immediately upon seeing Trooper
Jackson and May, [petitioner] dropped his phone into his lap and
began taking extremely long, deep breaths and appeared like he
might be sick.”
Id. at A9.
May alerted at both the driver’s side
door and the passenger’s side door.
Id. at A22.
Trooper Neilson
then searched the vehicle and found approximately 48 pounds of
methamphetamine and 30 pounds of marijuana.
2.
Id. at A23.
A grand jury in the District of Wyoming returned an
indictment charging petitioner with possessing 500 grams or more
of methamphetamine with intent to distribute, in violation of 21
U.S.C. 841(a)(1) and (b)(1)(A), and possessing tetrahydrocannabinol
4
with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and
(b)(1)(D).
Indictment 1.
Petitioner moved to suppress the evidence seized from his
SUV.
Pet. App. A23.
Petitioner asserted, inter alia, that May’s
alerts did not provide probable cause to search the vehicle.
at A23-A24.
Id.
Petitioner observed that the government had produced
evidence showing that May had been certified to perform drugdetection work by the California Narcotics Canine Association
(CNCA) on the day of the search, but had not provided additional
records about May’s training and deployment.
Ibid.
During the
suppression hearing, the government supplemented the certification
evidence
with
testimony
from
Trooper
Jackson,
including
descriptions of the certification process and ongoing training.
2/8/22 Tr. (Tr.) 81-97, 107-118 (testimony of Trooper Jackson).
The testimony established that May, who was purchased in 2015
from a company that provided her initial instruction, had been
certified (along with her handler, Trooper Jackson) by the CNCA to
detect odors of marijuana, cocaine, methamphetamine, and heroin
each year that she had been with the Wyoming Highway Patrol -with the last recertification occurring on the morning of the day
of the traffic stop (May 11, 2021).
84-86.
Pet. App. A26-A27; Tr. 81,
And as to that day-of recertification, Trooper Jackson
specifically confirmed that May had passed without any false
alerts.
Pet. App. A27; Tr. 88-89.
Trooper Jackson also explained
that the Wyoming Highway Patrol additionally conducts its own
5
internal assessment each year, with the most recent assessment
occurring in the fall of 2020, and that May had passed that
assessment as well.
During
Pet. App. A27; Tr. 90-91.
cross-examination,
defense
counsel
elicited
that
Trooper Jackson prepares monthly logs documenting his training
activities with May and also maintains monthly field-performance
logs that track how many times May was used in the field, whether
May alerted, and whether any narcotics were found.
A28; Tr. 94-97.
Pet. App. A27-
Petitioner then moved to obtain those reports,
but the district court found that petitioner had not made a
threshold showing, through witness testimony or tendered evidence,
of
a
question
about
the
validity
or
reliability
certification that would justify their production.
of
May’s
Pet. App. A28;
Tr. 97-107.
The district court then later denied petitioner’s motion to
suppress, finding that May’s alert provided probable cause to
search petitioner’s car. Pet. App. A5-A17.
The court explained
that the testimony and documentary evidence established that May
and Trooper Jackson had “successfully completed training courses
as documented.”
Id. at A15.
The court observed, in particular,
that petitioner’s cross-examination “did not elicit any testimony
that would cast doubt on the reliability of the CNCA training and
certification for May and Trooper Jackson.”
Id. at A15-A16.
And
the court accordingly found that petitioner “did not raise any
doubt regarding the reliability of May’s training or her alerts in
6
this
instance
to
warrant
production
of
further
regarding May’s training or performance.”
documentation
Id. at A16 (citing
Florida v. Harris, 568 U.S. 237, 247-248 (2013)).
Petitioner thereafter entered a conditional guilty plea to
the methamphetamine count, reserving his right to appeal the
district court’s denial of his motion to suppress.
3.
The court of appeals affirmed.
Pet. App. A30.
Pet. App. A18-A52.
On
the issue of whether petitioner had been entitled to additional
production under Federal Rule of Criminal Procedure 16, the court
of appeals explained that “the district court did not abuse its
discretion in determining that [petitioner] failed to meet his
burden” to “‘make a prima facie showing of materiality.’”
Pet.
App. A51 (citation omitted).
The
court
of
appeals
explained
that
“[a]lthough
the
materiality standard is not a heavy burden, the government need
disclose
Rule
16
material
only
if
it
enables
the
defendant
significantly to alter the quantum of proof in his favor.”
Pet.
App. A45 (quoting United States v. Graham, 83 F.3d 1466, 1474 (D.C.
Cir. 1996), cert. denied, 519 U.S. 1132 (1997)) (brackets omitted).
And the court determined that on the facts of this case, the
district court did not abuse its discretion in finding that the
records petitioner sought would not have aided his defense, because
the government had established through testimony and documentary
evidence that there was “sufficient reason to trust [May’s] alert.”
Id. at A51 (quoting Harris, 568 U.S. at 246).
The court observed,
7
in
particular,
successfully
that
Trooper
completed
her
Jackson
CNCA
testified
that
certification
for
May
had
various
narcotics on the morning of the stop without any false alerts, and
that petitioner had not identified any reason to believe that the
records he sought to obtain might show that May was unreliable on
the date of the traffic stop or in general.
Id. at A51-A52.
The court of appeals disagreed with petitioner’s claim that
this Court’s decision in Florida v. Harris invariably compels the
production of historical records every time a defendant challenges
a drug-detecting dog’s reliability. Pet. App. A46-A50. In Harris,
this Court rejected the Florida Supreme Court’s view that in cases
involving the alert of a drug-detection dog, the Fourth Amendment
requires the prosecution to present “an exhaustive set of records,
including a log of the dog’s performance in the field, to establish
the dog’s reliability” for a probable-cause finding.
240;
see
id.
at
242-243.
The
Court
instead
568 U.S. at
held
that
the
prosecution could show that it was reasonable to trust a dog’s
alert in a myriad of ways, including by introducing “evidence of
a dog’s satisfactory performance in a certification or training
program.”
Id. at 246.
And the court of appeals here observed
that while Harris “may speak to the relevance of historical canine
documents, * * * it does not discuss the case-by-case materiality
of such records under Rule 16,” but “[i]n fact” stated that a trial
court
“‘should
allow
the
parties
to
make
their
best
case,
consistent with the usual rules of criminal procedure.’”
Pet.
8
App. A47 (quoting Harris, 568 U.S. at 247) (emphasis added by court
of appeals).
The court of appeals disagreed with petitioner’s contention
that his case was materially similar to cases in which the Second
and Ninth Circuits required the production of certain canine
performance
records.
Pet.
App.
A48.
The
court
of
appeals
explained that “[u]nlike the district court in” United States v.
Foreste, 780 F.3d 518 (2d Cir. 2015), the decision of the district
court here had not relied on “sweeping generalizations” that fieldperformance
records
reliability,”
but
could
was
never
instead
be
“relevant
grounded
in
to
a
determination that there was no reason here to “doubt
reliability.”
Pet. App. A48-A49.
[a
dog’s]
case-specific
* * *
May’s
And while the court of appeals
acknowledged that “Ninth Circuit precedent requires disclosure of
a specific set of historical and canine records,” it observed that
“unlike the dog in” United States v. Thomas, 726 F.3d 1086 (9th
Cir. 2013), cert. denied, 572 U.S. 1108 (2014), the training
certificate in this case gave “no indication that May’s performance
was ‘marginal’ in any manner.”
Pet. App. A50 (citation omitted).
ARGUMENT
Petitioner renews his contention (Pet. 6-7) that Federal Rule
of
Criminal
Procedure
16
entitles
a
criminal
defendant
to
comprehensive discovery about a drug-detection dog’s training and
field
performance
in
every
case
where
a
search
is
performed
following the dog’s alert to the presence of controlled substances,
9
regardless of whether there is any basis to believe that that
additional evidence will cast doubt on the dog’s reliability.
The
court of appeals correctly rejected that contention, and its
decision does not conflict with any decision of this Court or
another court of appeals.
Accordingly, no further review is
warranted.
1.
a.
Under Federal Rule of Criminal Procedure 16, a
defendant has the right to discovery of “books, papers, documents,
[or] data” that are “within the government’s possession, custody,
or control” in three enumerated circumstances.
16(a)(1)(E).
Fed. R. Crim. P.
Two of those circumstances (that “the item was
obtained from or belongs to the defendant” or that “the government
intends to use the item in its case-in-chief at trial,” see Fed.
R. Crim. P. 16(a)(1)(E)(ii) and (iii)) are not relevant here.
And
the third circumstance is limited to cases in which “the item is
material
to
preparing
the
defense.”
Fed.
R.
Crim.
P.
16(a)(1)(E)(i).
In accord with the specific language of the Rule, a defendant
seeking discovery on that basis bears the burden of “mak[ing] a
prima facie showing of materiality.” 2 Charles Alan Wright & Peter
J. Henning, Federal Practice and Procedure § 254, at 113-114 (4th
ed. 2009) (Federal Practice and Procedure); see id. at 113-114 &
n.14 (collecting
cases);
5
Wayne
R.
LaFave
et
al.,
Criminal
Procedure § 20.3(g), at 486 (4th ed. 2015) (Criminal Procedure)
(“[T]he burden is on the defendant to demonstrate the requisite
10
materiality.”); 25 Moore’s Federal Practice § 616.05[1][b][i], at
616-51 to 616-53 (Matthew Bender 3d ed. 2023) (Moore’s Federal
Practice) (“The burden is on the defendant to demonstrate that a
requested item meets the standard of materiality.”).
Unless he
carries that burden, he cannot establish that his request falls
within the text of the Rule.
The
courts
of
appeals
have
accordingly
recognized
with
“remarkable uniformity” that, for purposes of Rule 16, “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.’” United
States v. Goris, 876 F.3d 40, 44-45 (1st Cir. 2017) (quoting United
States v. Ross, 511 F.2d 757, 762 (5th Cir.), cert. denied, 423
U.S. 836 (1975)), cert. denied, 138 S. Ct. 2011 (2018); see ibid.
(collecting cases); Federal Practice and Procedure § 254, at 114115 (repeating same standard).
Thus, “‘[m]ateriality is not
established by a general description of the documents sought or by
a conclusory argument that the requested information is material
to the defense,’” and a “blanket request for all relevant evidence
is insufficient.” Moore’s Federal Practice § 616.05[1][b][i], at
616-53
to
616-54
(citation
omitted);
see
Criminal
Procedure
§ 20.3(g), at 486 (“[T]he use of the term ‘material’ suggests that
there must be some showing of potential significance for the
defense, going beyond mere relevancy.”).
11
“Instead, the defense must make a specific request for items
with an explanation of how the items will be ‘helpful to the
defense.’”
54.
Moore’s Federal Practice § 616.05[1][b][i], at 616-
And in particular, “[w]here the defense is seeking documents
not specifically tied to its case in order to establish a general
weakness in the prosecution’s presentation (e.g., a credibility
problem for its chief witness), courts will commonly require that
the defense show some grounding for believing that line of inquiry
could be productive.”
Criminal Procedure § 20.3(g), at 487-488;
see, e.g., United States v. Harney, 934 F.3d 502, 507-508 (6th
Cir. 2019) (explaining that government was not required to produce
information about computer networking technique used to identify
defendant because the defendant failed to “show, with more than
conclusory arguments, that the information will help him combat
the government’s case against him as to one of the charged crimes”)
(citation omitted).
b.
Petitioner errs in suggesting (Pet. 6) that this Court’s
decision in Florida v. Harris, 568 U.S 237 (2013), overrides the
textual materiality requirement when a defendant seeks records
about a drug-detection dog in support of a motion to suppress
evidence.
To the contrary, “Harris explains that when a state or
federal court is tasked with evaluating a defendant’s challenge to
the reliability of a dog’s alert, ‘[t]he court should allow the
parties to make their best case, consistent with the usual rules
of criminal procedure.’”
Pet. App. A47 (quoting Harris, 568 U.S.
12
at 247) (emphasis in court of appeals’ opinion).
Harris is in no
way an end-around to the strictures of Rule 16.
Thus, even
assuming that contesting a suppression motion is “preparing the
defense” that might trigger discovery obligations under Rule 16,
the
Rule
would
still
require
“material to” that effort.
that
the
requested
records
be
Fed. R. Crim. P. 16(a)(1)(E)(i); cf.
Fed. Crim. P. 16(a)(1)(E)(ii) (focusing on evidence “at trial”).
Indeed, if anything, the Court’s decision in Harris suggests
that detailed records of the sort that petitioner seeks here
ordinarily are not material to the probable-cause determination,
and thus ordinarily are not subject to discovery under Rule 16 or
analogous state rules of criminal discovery.
While acknowledging
that records “of the dog’s (or handler’s) history in the field
* * *
may sometimes be relevant” in assessing probable cause,
Harris, 568 U.S. at 247 (emphasis added), the Court explained that
“in most cases they have relatively limited import,” id. at 245.
That understanding is inconsistent with petitioner’s view (Pet. 67) that such records are always material and thus subject to
automatic disclosure under Rule 16.
The
Court
also
emphasized
that
“evidence
of
a
dog’s
satisfactory performance in a certification or training program
can itself provide sufficient reason to trust [the dog’s] alert”
without the need for additional records.
see
Pet.
App.
certification).
A51-A52
(discussing
Harris, 568 U.S. at 246;
evidence
of
May’s
And while the Court stated that a defendant “must
13
have
an
opportunity
to
challenge
such
evidence
of
a
dog’s
reliability, whether by cross-examining the testifying officer or
by introducing his own fact or expert witnesses,” Harris, 568 U.S.
at 247, the Court did not indicate that detailed training and
field-performance records will ordinarily be material to that
inquiry.
The Court instead highlighted witness testimony (either
direct testimony of defense witnesses or cross-examination of
government witnesses) as the standard means of challenging the
effectiveness of a dog’s training.
See ibid.; cf. ibid. (“The
defendant can ask the handler, if the handler is on the stand,
about field performance, and then the court can give that answer
whatever weight is appropriate.”) (brackets and citation omitted).
Therefore, as with any other discovery request under Rule
16(a)(1)(E),
a
defendant
who
seeks
to
obtain
canine-history
records from the government must point to “‘some indication’ that
pretrial disclosure of” those records will “‘significantly
alter the quantum of proof in his favor.’”
(citation
omitted);
potentially
do
so
see
pp.
through,
9-11,
for
supra.
example,
* * *
Goris, 876 F.3d at 45
A
defendant
testimony
could
that
the
particular records at issue would contain evidence that the dog
and
its
handler
did
not
perform
satisfactorily
in
a
recent
assessment of their capabilities in a controlled setting.
Cf.
United States v. Thomas, 726 F.3d 1086, 1096-1097 (9th Cir. 2013)
(concluding that district court should have ordered production of
unredacted training records where testimony at the suppression
14
hearing revealed that the drug-detection team achieved a “marginal
performance” in “search skills” in a controlled evaluation and
that “if the redactions were lifted,” the records would likely
contain “critiques of the team’s competence”), cert. denied, 572
U.S. 1108 (2014).
Or he could present “his own fact or expert
witnesses,” Harris, 568 U.S. at 247, to raise doubt about the
adequacy of the “certification or training program” identified by
the government, id. at 246.
But as with other records sought under
Rule 16, it is not enough simply to offer a “conclusory argument
that the requested information is material to the defense,” without
any case-specific indication that the canine-history records would
actually be helpful to the defendant.
Moore’s Federal Practice
§ 616.05[1][b][i], at 616-54 (citation omitted).
c.
The
court
of
appeals
correctly
found
no
abuse
of
discretion in the district court’s application of well-settled
Rule 16 standards here.
See Pet. App. A44-A52.
As the court of
appeals observed, “the government provided both testimony and
documentary evidence that May, and her trainer, Trooper Jackson,
were properly certified at the time of [petitioner’s] traffic
stop.”
Id. at A51.
That “‘evidence of [May’s] satisfactory
performance in a certification or training program,’
* * *
in
turn, ‘provide[d] sufficient reason to trust h[er] alert.’”
Ibid.
(quoting Harris, 568 U.S. at 246) (brackets in original).
And
petitioner identified no basis for believing that the additional
15
records he sought would cast any doubt on May’s reliability.
See
ibid.
Nothing
during
in
the
sworn
cross-examination
testimony
of
May’s
that
petitioner
handler,
Trooper
suggested that May had been unreliable in the past.
A52.
elicited
Jackson,
See Pet. App.
Nor did petitioner present any fact or expert witnesses of
his own to suggest that CNCA was not a reputable certifying
authority, or that the training methods Jackson described were
likely
to
lead
to
false
alerts.
Thus
here,
as
in
other
circumstances, “[t]he district court did not abuse its discretion
in
holding
that
the
discovery
sought
was
immaterial
and
‘essentially a fishing trip,’” United States v. Kienast, 907 F.3d
522, 530 (7th Cir. 2018) (rejecting similar argument in different
circumstances), cert. denied, 139 S. Ct. 1639 (2019).
2.
and
As the court of appeals explained (Pet. App. A48-A50),
contrary
to
petitioner’s
contention
(Pet.
4-6),
the
circumstances of this case differ from the circumstances at issue
in the Second Circuit’s decision in United States v. Foreste, 780
F.3d 518 (2015), and the Ninth Circuit’s decision in United States
v. Thomas, supra.
Some broad language in those decisions may lead
those circuits to, at some point, require extensive discovery of
drug-detecting dog records in every case where a defendant requests
it.
See Foreste, 780 F.3d at 528-529 (indicating that a “dog’s
field performance records are relevant” and discoverable in a
challenge
to
“‘the
adequacy
of
a
certification
or
training
16
program’” or “‘how the dog (or handler) performed’”) (citation
omitted); Thomas, 726 F.3d at 1096 (reciting pre-Harris circuit
precedent for proposition that production of various materials is
“‘mandatory’ when the government seeks to rely on a dog alert as
the evidentiary basis for its search”) (quoting United States v.
Cortez-Rocha, 394 F.3d 1115, 1118 n.1 (9th Cir.), cert. denied,
546 U.S. 849 (2005)).
But neither decision itself goes that far.
As the court of appeals explained, the district court in
Foreste erred by making “sweeping generalizations” that fieldperformance
records
can
never
be
“relevant
to
[a
dog’s]
reliability.” Pet. App. A48-A49 (citing Foreste, 780 F.3d at 529).
The Second Circuit then determined that the district court’s
“erroneous view of the law” required reversal, Foreste, 780 F.3d
at 529.
And in Thomas, the defendant presented evidence that the
drug-detection dog and its handler had been “one-tenth of a point”
away from receiving a “‘a failing score’” on an examination of
search skills, as well as cross-examination testimony from the “K9
Coordinator for the Border Patrol conced[ing]” that materials that
had
been
withheld
during
discovery
would
likely
enable
the
defendant to mount “critiques of the team’s competence as well as
discussions about areas for improvement.”
1096-1097.
While
viewing
pre-Harris
Thomas, 726 F.3d at
precedent
to
require
production under Rule 16, the court rejected the government’s
reliance on the law-enforcement privilege against discovery on the
ground
that
the
defendant
had
made
a
showing
“beyond
‘mere
17
suspicion’ that the undisclosed evidence will be helpful in his
criminal case.”
Id. at 1097 (citation).
The decision below did not view either the Second or Ninth
Circuit to always require, in every case, production of a drugdetection dog’s records, even where the defendant cannot make any
case-specific showing of materiality.
To the extent that those
courts’ decisions would require that, they would conflict with
Rule 16 -- and the uniform authority interpreting its text to
require a prima facie showing of materiality –- in a manner not
required by Harris.
And particularly in the absence of a robust
effort by either court to reconcile such a blanket approach with
the Rule, any disagreement in the courts of appeals does not
warrant this Court’s review in this case.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
NICOLE M. ARGENTIERI
Acting Assistant Attorney General
ALLAYA LLOYD
Attorney
JANUARY 2024
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