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United States v. Brandon

United States District Court, M.D. Tennessee, Nashville Division

April 30, 2018




         During the redirect examination of Heather Coleman, the Government played for the jury a video purporting to show Marquis Brandon and a female wrestling on the floor of Coleman's apartment. The Government introduced the video in an effort to establish that Coleman's testimony that the wrestling occurred on the day of the January 22, 2015 Cricket Store robbery was incorrect because the metadata from the video showed that it was taken on January 14, 2015 at 11:53 p.m. - a week before the robbery. Out of the presence of the jury, the Court sustained Brandon's objection to the introduction of the video, and issued an oral ruling to that effect. The Court then instructed the jury to disregard the video in its entirety.

         At the time the Court issued its oral ruling, it stated that a written opinion might follow. Before that opinion could be written, however, the Government filed a Motion to Reconsider (Doc. No. 716). The Court heard oral arguments on that Motion on April 30, 2018.


         In its Motion to Reconsider, the Government asserts that the video and metadata constitutes rebuttal evidence and is specifically excluded from discovery by Federal Rules of Criminal Procedure 16(a)(1)(E) and (G). The former requires disclosure of documents and items that are (1) material to preparing the defense; (2) intended to be used by the government in its case in chief; or (3) obtained from, or belonging to, the defendant. The latter Rule requires that, upon the defendant's request, the Government provide a written summary of any expert testimony that it intends to use in its case-in-chief. The Court is familiar with both Rules; indeed, the Court relied on Rule 16(E) in denying Brandon's motion to exclude four newly-identified witnesses, a police report, and a 911 call on the grounds that the Government could not have been aware of that evidence when it was preparing its case-in-chief for trial. (Doc. No. 703).

         In arguing that disclosure of the video was not required under Rule 16(a)(1)(E)ii) because it was not material to Brandon's defense the Government relies on the following language from the Sixth Circuit in United States v. Lykins

[I]nformation which does not counter the government's case or bolster a defense is not material “merely because the government may be able to use it to rebut a defense position.” United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993). Rather, there must be an indication that pre-trial disclosure would have enabled the defendant to “alter the quantum of proof in his favor, ” not merely that a defendant would have been dissuaded from proffering easily impeachable evidence. Id. In assessing materiality, we consider the logical relationship between the information withheld and the issues in the case, as well as the importance of the information in light of the evidence as a whole.

428 Fed.Appx. at 624. The Government then highlights Lykins's observation that “a Rule 16 violation cannot be sustained based 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 624-25. It also relies on United States v. McCaleb, 302 Fed.Appx. 410, 415 (6th Cir.2008) that followed the principles announced in Lykins, and found no abuse of discretion when the trial court admitted a previously undisclosed video showing defendant wearing dark sweat pants at the time of his arrest, after he testified to the contrary on direct examination.

         Even though the Sixth Circuit in United States v. Robinson, 503 F.3d 522, 532 (6th Cir. 2007) (citation omitted) stated that Rule 16(a)(1)(E)(ii) “only applies to ‘shield' claims that refute the government's arguments that the defendant committed the crime charged, ” the law on materiality for purposes of that rule may not be as clear-cut as the Government suggests. Both Lykin and McCaleb are unpublished, with Lykin observing that “[m]ateriality under Rule 16 has not been authoritatively defined in th[e Sixth] Circuit.” More recent decisions have confirmed the lack of an authoritative definition in this Circuit, including United States v. Clingman, 521 Fed.Appx. 386, 392 (6th Cir. 2013).

         Other courts in published decisions have defined Rule 16 more broadly to encompass both inculpatory and exculpatory evidence because “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). In other words, “[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. Doe, 705 F.3d 1134, 1151 (9th Cir.2013) (“Even if the documents [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).”). Further, even in the Sixth Circuit, “Rule 16 is intended to prescribe the minimum amount of discovery to which the parties are entitled, and leaves intact a court's discretion to grant or deny the broader discovery requests of a criminal defendant.” United States v. Richards, 659 F.3d 527, 543 (6th Cir.2011).

         In any event, this Court's ruling was not grounded on Rule 16 at all. Instead, the Court based its decision on fundamental fairness, and the Government's failure to comply with the Scheduling Orders in place in this case. Those Orders are not even mentioned in the Government's Motion to Reconsider, or at oral argument on that motion.


         Coleman's phone was retrieved by Metropolitan Nashville Police Department Detective Andrew Grega sometime around mid-February 2015. Either later that month or in March 2015, Chris Brennan, also with the MNPD, conducted an extraction of the contents on that phone. This case was filed on June 18, 2015, with Brandon added as a defendant on April 18, 2016.

         After trial dates were continued due to the addition of defendants, the return of Superseding Indictments, and for other reasons, trial was set to commence against Brandon on April 2, 2018. In anticipation of that trial, the Court held a Status Conference on ...

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