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United States v. Swenson

United States District Court, D. Idaho

February 10, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DOUGLAS L. SWENSON, MARK ELLISON, DAVID D. SWENSON, JEREMY S. SWENSON, Defendants.

MEMORANDUM DECISION AND ORDER

B. LYNN WINMILL, Chief District Judge.

INTRODUCTION

The Government provided notice in its Trial Brief that it intends to seek to exclude any and all undisclosed documents or materials any of the Defendants attempts to use at trial for other than impeachment purposes. Govt. Trial Brief at 47-49, Dkt. 306. Defendants contend that (1) reciprocal discovery obligations were not triggered, (2) they are not intending to use any undisclosed documents as part of their case-in-chief, (3) they have already produced exhibits they intend to introduce during testimony of witnesses they intend to call, and (4) they have not asserted any affirmative defenses that would trigger reciprocal discovery. See, generally, Defs.' Brief Regarding Disclosure Required by Fed. R. Crim. P. 16(b)(1)(A), Dkt. 324.

For the reasons set forth below, the Court finds that Defendants requested discovery under Rule 16(a)(1)(E) and that the Government has substantially complied with that request. Accordingly, any documents or materials sought to be introduced by Defendants for other than impeachment purposes will be excluded absent compliance with the Order below.

DISCUSSION

1. Federal Rule of Criminal Procedure 16

Rule 16 provides for a defendant's disclosure of 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.

Fed. R. Crim. P. 16 (b)(1)(A). A defendant's failure to comply with discovery obligations may result in exclusion of the undisclosed evidence. See Fed. R. Crim. P. 16(d)(2)(C). See also United States v. Sholl, 166 F.3d 964, 972 (9th Cir. 1999); United States v. Aceves-Rosales, 832 F.2d 1155, 1156-57 (9th Cir. 1987) ("The public defender made a strategic decision to withhold the document until after the close of the government's case. He and his client must accept the risk arising from this behavior.").

Other options aside from exclusion of the evidence are available to a court where a party fails to comply with discovery obligations. Those options are:

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

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