United States District Court, D. Nevada
ORDER Re: Motion to Comple (#64)
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on the Government's Emergency Motion to Compel (#64), filed on March 20, 2015. The Court conducted a hearing in this matter on May 29, 2015. Defendant did not file a written response to the Government's motion prior to the hearing, but did cite legal authority in support of its opposition during the hearing. On the same day as the hearing, the parties stipulated to continue the trial to December 9, 2015. The Court directed the Defendant to file a written response to the Government's motion and granted the Government leave to file a reply. Defendant filed its Response in Opposition (#85) on June 11, 2015. The Government filed its Reply (#93) on June 26, 2015.
BACKGROUND AND DISCUSSION
The indictment charges Defendant Maria Larkin with structuring transactions to evade reporting requirements in violation of 31 U.S.C. §§ 5324(a)(3) and (d)(1) and 31 C.F.R. § 103.11; and evasion of payment of taxes in violation of 26 U.S.C. § 7201. It is undisputed that the Defendant has requested discovery from the Government pursuant to Rule 16(a)(1)(E) of the Federal Rules of Criminal Procedure and that the Government has disclosed items in response thereto. Defendant argues, however, that the Government has not specifically identified evidence it intends to use in its case-in-chief at trial which allegedly makes it impossible for the Defendant to determine what evidence she will use in her case-in-chief. Defendant's Response (#85), pg. 3. The Government argues that under Rule 16(b)(1)(A), Defendant is obligated to disclose evidence that she intends to use during cross examination of the Government's witnesses to support her defense. Defendant argues, however, that the rule should be narrowly construe to only require Defendant to disclose evidence that she intends to use in her case-in-chief after the Government rests its case.
The Government's motion requires the Court to enter the debate regarding the meaning of the term "defendant's case-in-chief" in Rule 16(b)(1)(A). The rule states as follows:
If a defendant requests disclosure under Rule 16(a)(1)(F) 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 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.
Rule 16(d)(2) provides that if a party fails to comply with the rule, the court may (A) order the party to permit the discovery or inspection; (B) grant a continuance; (C) prohibit the party from introducing the undisclosed evidence; or (D) enter any other order that is just under the circumstances.
In United States v. Hsia, 2000 WL 195067 (D.D.C. 2000), the defendant argued that she had no duty to provide reciprocal discovery under Rule 16(b)(1)(A) because she had "no present intention to do anything but cross-examine the government witnesses." Id. at *1. The defendant argued that a defendant's case-in-chief, or "evidence-in-chief" as the rule then stated, "consists only of the presentation of a defendant's case after the government rests." Id. at *2. Because defendant had no present intention to introduce evidence after the government rested, she argued that she had no duty to provide reciprocal discovery. In rejecting this argument, the court cited the definition of "case-in-chief" in Black's Law Dictionary (7th ed. 1999) which defined the term as "[t]he part of a trial in which a party presents evidence to support its claim or defense." The court stated that under this definition, evidence introduced by the defendant during cross-examination of government witnesses to support her defense should be considered part of defendant's "case-inchief." The court stated, however, that if the defendant uses a document merely to impeach a government witness, and not as affirmative evidence in furtherance of her theory of the case, it is not part of her case-in-chief and need not be disclosed pursuant to Rule 16(b)(1)(A).
In United States v. Swenson, 298 F.R.D. 474, 476 (D.Idaho 2014), the court agreed with Hsia's interpretation of "case-in-chief." The defendants in Swenson argued that the "basic, primary definition of case-in-chief" in the most recent edition of Black's Law Dictionary is "[t]he evidence presented at trial by a party between the time the party calls the first witness and the party rests." The court noted that the definition of case-in-chief in the most recent editions of Black's Law Dictionary includes both the definition cited by the court in Hsia and the definition cited by defendants. The court also discussed an article in The Champion, the journal of the National Association of Criminal Defense Lawyers, which analyzed Rule 16. The court stated that "[d]espite discussing the uncertainty as to the meaning of case-in-chief, the various policy considerations of Rule 16(b)(1)(A), the pitfalls facing defendants, and approaches defendants should take, at no time do the authors argue that Defendants' narrow reading of case-in-chief should apply. Nor have Defendants presented any case law supporting their narrow reading." Id. at 476. The court concluded:
In the Court's view, when cross examining a government witness, a defendant is asserting the defense that the government cannot prove the required elements of the crime charged and thus is required to disclose any evidence it seeks to use to establish the failure of proof. On the other hand, the defendant is not required to disclose evidence used to impeach a government witness by, for example, showing a prior inconsistent statement. To hold otherwise, would effectively render Rule 16(b)(1)(A) a nullity unless a defendant asserted an affirmative defense or planned to put on his or her case after the government rested. Therefore, the Court adopts the holding of Hsia and finds that, if the prerequisites of Rule 16(b)(1)(A) are satisfied,
Defendants have a duty to produce any exhibits they intend to use at trial during cross examination of a government witness ...