New York Federal Criminal Practice Blog
February 5, 2008

SDNY Judge Precludes Cache of Firearms in Drug Trafficking Trial Due to Government's Untimely Rule 16 Disclosures

It is not often that a court precludes the government from using a cache of firearms, including an assault rifle, and 16,000 rounds of ammunition in a drug trafficking case, but in United States v. Mason, 06 CR 80 (NRB) 2008 WL 281970 (January 25, 2008), the court did just that, while also lambasting the government for its "cavalier approach to its discovery obligations."

The case involves an alleged marijuana conspiracy in the Bronx.  The issue was the appropriate sanction for the government's failure to turn over certain evidence seized from a Florida residence, including an incriminating fingerprint analysis and various documents, such as cell phone and bank records.  At the eleventh hour, this evidence had assumed profound significance in the case, because on the eve of trial, the government had obtained a superceding indictment, expanding the charged conspiracy to encompass activities in Florida.  The withheld evidence was thus transformed from the status of potentially excludable Rule 404(b) evidence into direct evidence of a newly charged conspiracy.  Counsel for the defendants affected by the Florida evidence sought preclusion or a severance. 

Describing the government's unexplained failure to disclose as "striking," the judge noted that the fingerprint evidence sat in the government's file for eleven months, and that for over eight months, the government ignored a specific defense request for the Florida documents.  She also found that the delays prejudiced the defendants in several ways, in particular hindering the defendants' ability to develop a multiple conspiracy defense and depriving them of valuable time to meet that evidence at trial.  

What is stunning here is the remedy the court elected.  The court could have adjourned the trial date or severed out the defendants affected by the Florida evidence, but because the trial date had been set nine months earlier, the court ruled that the government was precluded from introducing any of the Florida evidence.  "The government's eleventh hour effort to change the evidentiary landscape of this case in a way that prejudicially impacts the defendants should not be remedied by a scheduling change which has a concomitant, adverse impact on the defendants, defense counsel, and the Court."

Notably, the preclusion covered not just the late-produced documents, but also "the highly incriminating materials" disclosed in a timely manner, including weapons, ammunition and drug paraphernalia.  "To allow the government to introduce this evidence when it selectively failed to produce the remainder of the seized documents would invite mischief in the discovery process."

The court, however, left open the possibility that the Florida evidence could be admitted under Rule 404(b).  That issue is the subject of pending litigation.  The hand that giveth . . .

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