581 F. Supp. 2d 22

UNITED STATES of America, Plaintiff, v. Alvaro Serrano ARCHBOLD-MANNER, et al., Defendants.

Criminal No. 05-342 (RCL).

United States District Court, District of Columbia.

Oct. 6, 2008.

Mary E. Mogavero, Teresa A. Wallb-aum, James Faulkner, Paul W. Laymon, U.S. Department of Justice, Patrick H. Hearn, United States Department of Justice, Narcotic and Dangerous Drug Section, Washington, DC, for Plaintiff.

Jonathan Jeffress, Diane S. Lepley, H. Heather Shaner, Cynthia Katkish, Federal Public Defender, Howard Bernard Katzoff, Mitchell Mark Seltzer, Law Offices of Howard Katzoff, Washington, DC, Mark John Carroll, Potomac, MD, David S. Zapp, New York, NY, Alexandra Rengel, Mercado and Rengel, PA, North Miami, FL, Troy Demetrius Ferguson, Miami, FL, for Defendants.

*23 MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

I. INTRODUCTION

Now before the Court comes the government’s motion [285] requesting an extension of dates for compliance with the Court’s August 15th order. Upon consideration of the government’s motion and the defendants’ opposition [288], the reply, the entire record herein, and applicable law, the government’s motion will be GRANTED.

II. BACKGROUND

The facts relevant to this motion were set out in this Court’s recent order [280]. The brief synopsis is that the government had months and indeed years with regard to some defendants to meet their discovery obligations in this case. After the government strung the Court and the defendants along through numerous status conferences, the Court realized that the government was not prepared for trial and had not fulfilled many of its discovery obligations. Therefore, on August 15, 2008, a month and a half before the case was set to go to trial, the Court ordered the government to provide defendants and their counsel with basic discovery items such as English translations of the wiretap evidence against them and the identities of the investigating officers who had taken witness statements. The Court warned that if the government did not comply it risked severe sanctions. Following the Court’s order, the government dumped a massive amount of discovery (10,000 pages of untranslated documents in addition to other evidence) on the defendants three weeks before the case was set to go to trial. Yet despite the government’s long-awaited flurry of discovery activity, it was still not able to comply with this Court’s specific discovery directives.1 As a result, the defendants moved to dismiss the indictment on due process grounds, and this Court held that dismissing the indictment was an inappropriate remedy because there was no evidence of bad faith on the part of the government [280]. The Court also held that in the interests of justice the trial had to be continued and that sanctions against the government would be considered. The government now requests an extension of time to comply with the deadlines set in the August 15, 2008 order, and the defendants request that the Court exclude any evidence that did not comply with the mandated discovery schedule.

III.ANALYSIS

The defendants have asked for exclusion of various types of evidence because of the government’s conduct. Yet the defendants do not cite a single case, rule, or statute in support of their argument. Presumably, the defendants are arguing for the Court to exclude evidence pursuant to Rule 16 of the Federal Rules of Criminal Procedure, which governs the evidence that the government is required to disclose to defendants in criminal trials. Among other things, Rule 16 requires the government to produce scientific tests and documents that are within the government’s control and material to preparing *24the defense. Fed.R.Crim.P. 16(a)(l)(E-F); United States v. Libby, 429 F.Supp.2d 1, 5 (D.D.C.2006).

In this case, both the wiretapped calls and the lab tests of the seized evidence2 were within the government’s control and material to preparing the defense. The “control” prong of the Rule 16 test generally focuses on the fairness to the defendants rather than the semantics of whether or not the prosecutors actually hold the evidence at the time that, it should be produced. See Libby, 429 F.Supp.2d at 5. In this case, the evidence should have been produced in fairness to the defendants.3 The government has represented that it plans to use the wiretapped calls as central pieces of its case in chief as well as argue that the materials seized were cocaine. Without translations of the wiretapped calls — apparently the key evidence in the government’s case — the defendants and their counsel would stand trial virtually unáware of the evidence against them. In addition, without the lab tests, the defendants would have no way of disputing the government’s contention that the seized material was cocaine. The fact that the evidence was originally seized by Colombian authorities is insufficient for the government to avoid Rule 16, particularly because the United States’ recent evidence dump in response to the Court’s order demonstrates that the discovery could *25have been obtained much earlier. In addition, because the wiretapped calls and lab tests apparently form the crux of the government’s case, they are clearly material to the defense. Id. (Evidence is material to the defense if it “will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.”).

Therefore, the Court concludes that at least some of the evidence that the government did not turn over in a timely manner is subject to Rule 16. Because the government did not turn it over in time for the defendants to adequately review it before trial, the government’s conduct was a Rule 16 violation.

The “district court has wide discretion in imposing a sanction if it finds that Rule 16 has been violated.” United States v. Marshall, 132 F.3d 63, 69 (D.C.Cir.1998). The D.C. Circuit in Marshall specifically stated that a court may “grant a continuance; prohibit the violating party from introducing the evidence at issue; or enter such other order as it deems just under the circumstances.” Id. (citing Fed. R.Crim.P. 16(d)(2)). The Circuit also stated that “a trial judge should impose the least severe sanction that will accomplish the desired result — prompt and full compliance with the court’s discovery orders.” Id.

Here, this Court did grant a continuance. “Ordinarily, a continuance is the preferred sanction for a discovery delay because it gives the defense time to alleviate any prejudice it may have suffered from the late disclosure.” Id. Indeed, although the government’s discovery disclosures were untimely, they were made in advance of trial and the defendants now have an opportunity to use the discovery in their defense. In addition, after repeated prodding from the Court and the defense the government has finally shown an interest in moving this case along. Therefore, although the Court came dangerously close to excluding the bulk of the government’s evidence, it feels that exclusion of evidence — at this time — is inappropriate to get the government to fully comply with the Court’s orders.

Nevertheless, while the Court will not grant the defendants the sanctions that they are requesting, the Court does believe that the government should be admonished for its conduct in this case.4 Quite simply, the government has not done its job. It did not provide the defendants with meaningful access to discovery until it was long overdue, it did not meet Court ordered discovery deadlines nor ask the Court for an extension of the deadlines until they had passed and the government was ordered to ask for an extension, and it did not move with the sense of urgency that it should have while untried defendants were sitting in jail awaiting trial. The Court has learned that it must watch over the government with heightened supervision to ensure that it performs even its most basic duties: providing defendants with discovery, preparing for trial, and meeting court ordered deadlines. Not only will the Court apply this lesson in this case, but it will apply this lesson in future drug conspiracy cases and view government assurances that it is making progress in providing discovery to defendants through a much more skeptical lens. This Court' — and hopefully other courts in this district — will take note that the government had to be admonished because of its failure to conduct discovery in a professional manner.

*26In addition to embarrassing itself, the government has embarrassed this Court. Despite threats of exclusion or dismissal, the government did not comply with Court ordered discovery deadlines. The Court and the parties involved made an effort to proceed to trial on October 1st and cleared two months off of their calendars in preparation for this case, only to have then-efforts foiled by a litany of government missteps. Yet because the government’s actions did not rise to the level of bad faith and the defendants still have an opportunity to utilize the discovery materials, the Court must now admit that its earlier threats of exclusion have turned out to be hollow. As noted above, however, exclusion of the evidence is within the Court’s discretion for Rule 16 violations. Keeping this in mind as this case unfolds, the Court will grant the government’s motion for an extension of the dates to comply with discovery deadlines.

IV. CONCLUSION

For the reasons stated above, the government’s motion [285] requesting an extension of dates for complying with the discovery deadlines will be GRANTED. The government must produce: (1) all telephone calls that it intends to use at trial along with certified original language and English transcripts by October 10, 2008; (2) any lab tests or other documentation that it intends to use to prove the seized evidence was cocaine by October 10, 2008. The documentation must be accompanied with clear instructions regarding how defense counsel can verify the accuracy of the tests; (3) Any physical evidence it intends to use at trial by October 10, 2008; (4) the identity of any law enforcement agent who took a witness statement in the matter or a specific basis for withholding that information by October 17, 2008.

A separate order shall issue this date.

SO ORDERED.

United States v. Archbold-Manner
581 F. Supp. 2d 22

Case Details

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United States v. Archbold-Manner
Decision Date
Oct 6, 2008
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581 F. Supp. 2d 22

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United States

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