New York Federal Criminal Practice Blog
March 23, 2010

SDNY Judge Analyzes Scope of Rule 16 Discovery

Under Rule 16, the government must turn over to the defense documents that are "material to preparing the defense."  United States v. Ghailani, 2010 WL 653269 (S.DN.Y. June 21, 2010), the case involving the first Guantanamo detainee to be brought to the United States to face criminal charges, becomes the occasion for a notable analysis of the parameters of Rule 16's reach, in particular, the definition of "government" in that rule.  Does it, for example, reach vertically up through the D.O.J. in D.C, into the oval office?

Rule 16 Discovery for Speedy Trial Motion

First, the court queried whether Rule 16 applied at all to an affirmative defense unrelated to the prosecution's case-in-chief, citing dictum in United States v. Armstrong, 517 U.S. 463 (1996).  Neither party had addressed the issue, and the court proceeded on the assumption that Rule 16 permitted discovery in support of the speedy trial motion at issue here.  

Work Product Excluded From Rule 16

One of the documents the defendant sought under Rule 16 was a bullet point memorandum sent from the USAO in the SDNY to the DOJ in Washington that was "something of an order of proof with respect to Ghailani."  The court held that this was not discoverable "regardless of its materiality," because it was government work product, which is protected from disclosure under Rule 16(a)(2).  

(I note that Rule 16(a)(2) exempts work product "[e]xcept as Rule 16(a)(1) provides otherwise," and since Rule 16(a)(1) requires disclosure of documents that are "material to preparing the defense," there is an argument - without any case law support that I know if, I hasten to add - that under the plain language of Rule 16, materiality trumps the work product privilege.)

What is the "government" for Rule 16 purposes?

The issue then turned to the defense request for the disclosure of all communications between various branches of government indicating that the decisions to move Ghailani between various places of detention were not related to national security.  These communications were material to the speedy trial motion because the government had claimed in part that "national security justified delaying Ghailani's federal prosecution." 

The trickier question was the meaning of the term "government" under Rule 16.  Does it extend "beyond the USAO and the trial team up into Main Justice and the FBI and, if so, how far?"  The government argued that "the government" is co-extensive in the Rule 16 and Brady contexts.  In the latter context, "courts have held that prosecutors are under a duty to disclose not only exculpatory evidence known to the prosecutors, but also to 'others acting on the government's behalf in the case, including the police.'" 

Finding it "unnecessary, in the unique circumstances of this case" to decide the issue (but noting that the government's position was "not quite as compelling as it first appears"), the court reached a "practical interpretation of Rule 16" in this case that would be fair to the defendant and would not unduly hamper the prosecution.  He concludes "the term 'government' includes individuals at DoJ who participated in advising on or making the decisions regarding Ghailani's prosecution."  He explains:

Even if those officials had no other involvement with Ghailani's investigation or prosecution, the decisions at issue were so important to the timing and progress of this case that participation in the decisionmaking renders those individuals members of the prosecution team, at least to the extent of that participation.

Lawyers: Peter Quijano, Gregory Cooper, Michael Bachrach (Defendant); AUSAs Michael Farbiarz, Nicholas Lewin

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