United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM OPINION AND
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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).
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.
[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.
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).
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).
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.
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.
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 ...