November 1999

Defense Discovery of Documents in White-Collar Criminal Prosecutions
By Peter J. Henning


    Peter J. Henning is an associate professor at Wayne State University Law School, Detroit, MI. Professor Henning teaches white-collar crime and criminal procedure. Before entering academia, he was a prosecutor in the Department of Justice Fraud Section and a senior attorney in the Enforcement Division of the Securities and Exchange Commission. This article is based on his presentation to a symposium on criminal discovery conducted by the Georgia State University Law Review.

Allegations of white-collar crime often occur in connection with economic transactions that ostensibly appear to be ordinary business events. In most cases, the crucial question is not whether the defendant engaged in the conduct at issue — that is generally conceded — but whether the conduct rises to the level of being criminal. To establish a white-collar case, government agents often pore over a large volume of documents to determine whether the transactions show a pattern of criminality from which a jury can infer the requisite knowledge and intent on the part of the defendant. For example, a health care fraud investigation can involve hundreds or even thousands of separate procedures on a large number of patients, with a high volume of billings to an insurance company or claims for reimbursement under Medicare. White-collar prosecutions are “paper cases,” in the sense that the government's principle proof of criminality comes from comparing what a documents discloses with what a witness or other records state did in fact occur. Without the paper, it is unlikely that the government could establish the elements of many white-collar crimes, especially those involving fraud, bribery, or conflicts of interest. Unlike a street crime, there is no physical evidence of the white-collar criminal’s violation, much less a crime scene.

If the government must rely on the paper trail to establish its case, then certainly a defendant needs access to the documents related to the transactions to mount a defense. That is the problem, however, because a defendant may not know what documents the government has or which records might form the basis for a defense to the charge. The defendant’s lack of knowledge can make the discovery of documents an unfairly complicated dance because the burden is on the defendant to establish the prosecutor’s “possession” of the documents and their “materiality” to a defense before gaining access to them. The federal approach to discovery can be a “heads I win, tails you lose” situation because the defendant must show what is in the records before being permitted to review them.

In a white-collar case, only rarely is there a “smoking gun” document, a statement in writing that shows the defendant’s criminal state of mind. Just as the government’s case is circumstantial, so too must the defense try to show through the records that a crime did not take place, or at least that the defendant did not intend that criminal conduct occur. Unlike a witness’ criminal record or tests on contraband, typical evidence in a street crime prosecution, the documents required to defend a white-collar case can be almost any type of business record. The items are often quite ordinary, reflecting common business transactions that may not appear to have any appreciable impact on a case. Indeed, it is that very ordinariness that may help to show a defendant’s lack of knowledge or intent in the transactions at issue.

Identifying what it is the defendant is looking for that will be “material” to a defense is often a difficult, if not impossible, task without an opportunity to review the records. Complicating discovery is the fact that some documents a defendant needs may not be in the prosecutor’s possession, and indeed the government may not even know of their existence. Yet, access to documents held by third parties is unnecessarily curtailed in federal prosecutions because the courts have misunderstood a defendant’s authority to subpoena records from a third party.

In this article, I will look at the means for obtaining records from the prosecutor under Federal Rule of Criminal Procedure 16(a)(1)(C). The prosecution, however, cannot be a defendant’s sole source of records, otherwise the white-collar defendant’s entire case rests on the thoroughness of the government’s investigation and its willingness to search its cache of documents to assist a defendant. Quite simply, should a defense lawyer trust the government to provide all the records needed to put forth a defense? In a second article to appear in the December 1999 issue of The Champion, I will consider the use of subpoenas under Federal Rule of Criminal Procedure 17(c) as a method for gathering evidence before trial from third parties, and argue that the courts, from the Supreme Court on down, have misconstrued the rule.

Discovery and the Avalanche of Documents
The starting point for all discovery in a criminal case is with the prosecutor’s office. To the extent the government has documents it intends to use at trial, it must afford the defendant complete access to those records to ascertain the strength of the prosecution’s case.1 The harder issue is whether the discovery rules permit a defendant to gain access to documents that the prosecutor does not intend to use to establish the defendant’s guilt, and whether a defendant can obtain documents outside the direct control of the prosecutor. Documents in the latter category may be in the hands of another agency of the government, or held by third parties. Defending a white-collar case requires access to more than just what the prosecutor gathered in an investigation and decides to use at trial because what may be relevant to the grand jury’s probable cause determination and proof of guilt may not encompass the documents needed to mount a credible defense.

The expanding jurisdiction of regulatory agencies to monitor markets and investigate possible abuses, with the concomitant increase in the staff needed to conduct extensive regulatory oversight, has created the well-known problem of the so-called “parallel proceeding.” A number of federal statutes have both a civil and a criminal component, raising the possibility of concurrent investigations of the same conduct by different arms of the government. At the federal level, only the Department of Justice has the authority to bring criminal charges.2 The regulatory agencies are limited to civil enforcement of their statutes, and those proceedings usually entail an extensive investigation by the agency staff before the institution of proceedings. While the civil regulatory agencies can not bring criminal charges, they are empowered to compel individuals and organizations to produce documents and appear for testimony under oath.

The effect of these proliferating proceedings is that documents relevant to the criminal prosecution may be housed in a number of locations, and held by self-regulatory organizations or agencies at different levels of government.

In many instances, a regulatory agency or executive department develops evidence of possible criminal conduct that it refers to the prosecutor to determine whether criminal charges should be filed. But even without a formal referral, prosecutors can seek information from other arms of the government to assess whether to pursue the criminal case, relying on the expertise of an agency’s staff to ascertain the nature and effect of conduct. While the regulators provide valuable information and expertise, a prosecutor may not be aware of all the documents held by agencies and other regulatory organizations that relate to the potential criminal activity.

The government’s principal means of gathering evidence in a white-collar crime investigation is the grand jury.3 Under the direction of the prosecutor, the grand jury can subpoena records and compel individuals to testify in a proceeding in which the witness may not have an attorney present. The grand jury’s authority in federal cases is quite broad, being entitled to “every man’s evidence,”4 and it may investigate “merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”5 Unlike the government’s authority to conduct a “grand inquest,”6 the Supreme Court has stated quite clearly that criminal defendants have no constitutional right to discovery.7 Aside from what a defendant can gather through his own efforts, until the government files charges there is no means for a defendant to compel the production of evidence or information.

A combination of constitutional and statutory discovery rights provides a defendant with four means of obtaining evidence from the prosecutor:
      Requests for exculpatory evidence under Brady v. Maryland;8

      Production of witness statements after the person testifies, pursuant to the requirements of the Jencks Act;9

      Rule 16 of the Federal Rules of Criminal Procedure governing disclosure of information by the government and defendants; and

      The Freedom of Information Act.10

In addition, a defendant can seek additional information regarding the charges by moving for a bill of particulars,11 but courts deny such motions when their purpose is to gain discovery outside of the avenues provided by the Federal Rules of Criminal Procedure.12

Discovery rights depend on what the legislature is willing to provide. Rule 16 gives defendants the right to discover any statements they made, copies of their criminal record, the results of examinations or tests, and a summary of the testimony of any expert the government intends to call at trial.13 In addition, the current form of Rule 16(a)(1)(C) provides for discovery of three categories of documents in the “possession, custody, and control of the government:”

    Records intended for use in the prosecution’s case in chief;

    Items obtained from or belonging to the defendant; and

    Documents “which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense. . . .14
The local rules for the United States District Court for the District of Massachusetts, discussed in Amy Baron-Evan’s article in this issue, go a long way to addressing the timing of discovery and making clear the obligations of both sides in the pre-trial phase of a case. Yet, even a set of local rules designed to make discovery self-executing cannot address some of the thorny issues regarding the scope of the prosecution’s discovery obligations or make the defense attorney’s job significantly easier. Discovery of documents in white-collar prosecution remains a difficult area.

Possession, Custody, and Control of the Government
“Discovery” for the purposes of a criminal prosecution is much more limited than in a civil proceeding. Discovery of documents under Rule 16(a)(1)(C) does not reach documents held by non-parties except insofar as the government might have gathered material from them for use in its investigation. On the other hand, under Federal Rule of Civil Procedure 34, “A person not a party to the action may be compelled to produce documents or things or to submit to an inspection. . . .”15 In a criminal case, the only source of documents explicitly referred to in Rule 34 is the government, so that a defendant must look to the prosecutor as the first source of documents in evaluating the case and building a defense.

Although Rule 16(a)(1)(C) imposes the disclosure duty only on the parties to the proceeding, it does not explain what is comprehended within the term “government;” i.e., what offices are subject to the discovery requirements. With a burgeoning bureaucracy that includes agencies with overlapping jurisdiction and different layers of government with the authority to regulate the same conduct, it should not be surprising that officials sometimes compete for cases rather than cooperate in an investigation and adjudication. The government is not one big, happy family, even though the different departments may be arms of the same sovereign. Moreover, to the extent that an administrative agency cooperates with a prosecutor, the prosecutor may review only a portion of the information gathered by the regulatory body, selecting out what is most appealing or apparently criminal. Even assuming one agency has all the relevant documents, the prosecutor need not take actual possession of the records, nor be aware of their contents.

Is the “government” equivalent to just the prosecutor’s office? The answer is no, but neither is it clear what other offices are subject to Rule 16(a)(1)(C). For defense attorneys, an important first step in the discovery process is applying a broad definition to what constitutes the “government,” triggering a disclosure obligation beyond just material held by the U.S. Attorney’s office. The Massachusetts local rules, for example, require the prosecutor to “inform all federal, state, and local law enforcement agencies formally participating in the criminal investigation” of the discovery obligations.16 Limiting discovery law enforcement agencies formally allied with the prosecutor, however, is an unduly narrow approach, and the scope of Rule 16(a)(1)(C) can reach much farther into the federal bureaucracy.

Ascertaining what constitutes the government under the Rule is complicated by the disclosure duty imposed under Brady, which has a similar requirement that exculpatory information in the possession of the government be disclosed to the defendant. Brady and Rule 16 deal with different phases of a criminal proceeding: Brady is a post-trial assessment of whether the prosecutor’s suppression of evidence resulted in prejudice to the defendant, while Rule 16 regulates the pre-trial production of evidence without judicial involvement in triggering the duty to disclose evidence. Yet, defendants often make a single motion before trial for the production of records under both Rule 16 and Brady.17 Possession by the government is a condition for both, so courts often follow the defendant’s lead by treating the issues identically in determining whether the prosecutor must disclose evidence because it is either exculpatory information or subject to discovery.

Brady and Rule 16 are not, however, identical, so it is not clear that their use of similar terms should result in the same analysis. As the Supreme Court points out with some regularity, Brady is not a rule of discovery, but one of fairness.18 Under Brady, the government’s failure to disclose exculpatory evidence is a due process violation if the defendant is unaware of the evidence until after trial. If the government discloses exculpatory information in time for the defendant to use it at trial, then there is no constitutional violation. Rule 16, on the other hand, is designed to be a rule of discovery, hence the title, so a more restrictive interpretation of the requirements for a due process violation should not necessarily carry over to interpreting the same terms in the discovery rule.

In United States v. Bryan,19 the government argued that discovery only reached documents within the possession of the prosecutor in the district in which it prosecuted the defendant and did cover documents in the possession of other agencies that were not physically present in the district.20 The Ninth Circuit rejected such a narrow reading of “government,” holding that “[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.”21

On the other hand, prosecutors do not “have constructive knowledge of every fact or piece of information known to any other part of the federal or state government.”22 In United States v. Morris,23 the Seventh Circuit held that information held by other government agencies that are not part of the prosecution “team” was not in the possession of the prosecutor for Brady purposes.24 The Ninth Circuit’s test is potentially broader, that agencies “consulted” by the prosecutor are part of the government under Brady.25

In reality, courts undertaking the Brady analysis engage in a fact-specific analysis that asks whether the prosecutor’s ignorance is both plausible and an acceptable result in light of a sprawling government that cannot always be considered a unitary entity, lest every case involve a government-wide search for evidence favorable to the accused. The courts occasionally rely on mixed metaphors in characterizing the prosecutor’s ignorance as unacceptable, noting for example that “[t]he government cannot with its right hand say it has nothing while its left hand holds what is of value,”26 or that the “failure to turn over an easily turned rock is essentially as offensive as one based on government non-disclosure.”27 Pithy phrases aside, the functional approach adopted by courts makes it imperative that defense counsel try to define the “government” expansively, thereby triggering the Brady protection beyond just the prosecutor’s office. In this regard, courts have found in federal prosecutions that the “government” includes local law enforcement offices,28 the FBI and National Crime Information Center,29 the U.S. Postal Service,30 the Internal Revenue Service,31 the Food and Drug Administration,32 and a state environmental testing laboratory.33 Similarly, a state court found that the local prosecutor needed to at least attempt to secure exculpatory information from the FBI.34

Does “government” mean the same thing under Brady and Rule 16(a)(1)(C)? The answer should be no, despite the fact that defendants and courts some times treat them as equivalent means to the same end, and therefore subject to the same interpretation. As the Sixth Circuit noted in considering a defendant’s Brady claim, “[T]he disclosure required by Rule 16 is much broader than that required by the due process standards of Brady.”35 One reason is that Brady’s concern is with suppression of evidence by the prosecutor, so it is logical to focus on what the prosecutor knows or should know that might impact on the fairness of the trial. Rule 16 permits discovery, so its use of the term “government” should not follow slavishly the analysis of Brady cases.

The Advisory Committee Notes to the 1974 amendments to the Federal Rules of Criminal Procedure refer to the Committee’s decision not to codify Brady in Rule 16(a)(1)(C), which indicates that the Rule is broader than the due process requirement imposed on prosecutors and not the entire government.36

Some courts view of the obligation to produce documents under Rule 16(a)(1)(C) as broader than the Brady disclosure duty. In United States v. Skeddle,37 a district court ordered the government to try to obtain documents from a corporation that had provided them pursuant to a subpoena and to whom the government returned the records. The court stated that Rule 16(a)(1)(C) is designed to assure adequate discovery to the defendant, including records that the government can reasonably obtain from a third party.38

In United States v. Kilroy,39 the district court stated that “it is not unreasonable to treat the records as being within the Government’s control at least to the extent of requiring the Government to request the records on the defendant’s behalf and to include them in it files for the defendant’s review. . . .”40

The Ninth Circuit, however, took a narrower approach in United States v. Gatto,41 holding that “the triggering requirement under Rule 16(a)(1)(C) is that the papers, documents and tangible objects be in the actual possession, custody or control of the government. Here, they were not.”42

The rationale for limiting Brady’s disclosure requirement to the prosecutor’s office and those closely allied with the investigation is that imposing a broad search duty on other government agencies would be disruptive to their operations without much benefit to ensuring the fairness of the trial. What is subject to Brady, however, is any type of exculpatory information, not just documents or other tangible items described in Rule 16(a)(1)(C). Brady material can be anything from a formal memorandum to a conversation never memorialized in writing. Compelling a search for any type of exculpatory information may impose an unfair burden on the government, but requiring a search for documents that the defendant must describe in sufficient detail to demonstrate their materiality would impose a lesser burden on the government.

“Government” under Rule 16 should entail more than just the prosecutor’s office and those closely allied with the criminal investigation. It is no significant burden to require agencies that hold documents relevant to the case to determine whether they must be produced under Rule 16(a)(1)(C) because the defendant must provide a clear description of them in the request for discovery of material information that will guide the agency’s search; a defendant cannot simply demand that all “exculpatory evidence” or “all documents relating to the investigation. . . .” Moreover, because Rule 16(a)(1)(C) places the burden on the defendant to describe the items sought and demonstrate their materiality, it is unlikely that the type of broad “fishing expedition” that courts abhor would be permissible under an expanded definition of government. The operative threshold showing for discovery remains unaltered.

At a minimum, Rule 16(a)(1)(C) cannot be read to mean that only the prosecutor’s office must comply with a discovery request.43 To the extent a prosecutor should have to review the information held by another arm of the government under Brady, so too would Rule 16(a)(1)(C) apply to any documents held by that agency. But, Rule 16(a)(1)(C) should not be understood as merely adopting Brady as applied to document discovery before trial. There is no basis in the language of the Rule to find that it merely implements Brady’s due process requirements. Rule 16 is a mandate to provide discovery, which Brady surely is not. The more limited scope of what is subject to discovery under Rule 16(a)(1)(C), i.e. documents and tangible objects, argues in favor of a broader reading of “government” because there is much less danger that government offices will have to conduct burdensome searches of their records to find an elusive piece of ill-defined evidence that may be exculpatory. Rule 16 mandates discovery, so it is counterintuitive to adopt an narrow construction of government in Rule 16(a)(1)(C) to thereby limit discovery on the ground that a broader definition would impose a burden on the government. The Rule is designed to require the government to search its files.

Material to the Defense
Rule 16(a)(1)(C) permits discovery of documents that are “material to the preparation of the defendant’s defense. . . .”44 even though the prosecution does not intend to use them in its case in chief or they were obtained from the defendant. The rationale for allowing discovery of this category of records tracks the constitutional analysis of Brady, that a defendant be accorded the opportunity to put on a defense to the government’s charges by using the product of the government’s investigation if it is helpful to rebutting the charges.45 Brady and Rule 16(a)(1)(C) use the identical term “material” to describe one attribute of the evidence that the government must disclose to the defendant, raising the same question asked before: Does “material” mean the same thing under both requirements to produce information to the defendant?

The answer this time is even more emphatically that they are not, because the difference between the post-trial due process analysis and the Rule’s requirement of adequate disclosure before trial make the standard for what is “material” significantly different. While Brady requires a hindsight review of whether the failure to disclose evidence prejudiced the defendant, Rule 16(a)(1)(C) mandates disclosure of items helpful to the defense while the defendant prepares for trial. Yet, some courts do not appreciate the difference between the two, applying the stricter due process analysis to discovery claims under Rule 16(a)(1)(C), thereby imposing an unnecessarily high standard that thwarts the Rule rather than comports with the goal of enhancing the fairness of the proceeding through discovery. This result is not surprising, given the tendency of defense counsel to mix the distinct analysis together by submitting pre-trial motions treating them as two sides of the same discovery coin. Applying a “pasta theory” of discovery, i.e. throwing out to the court as many potential grounds for discovery as possible to see what will stick, clouds rather than clarifies the discovery issue. Brady and Rule 16(a)(1)(C) are quite different, and treating them as essentially identical methods of discovery opens the way for courts to adopt the more stringent Brady analysis of materiality as the proper standard for judging a Rule 16(a)(1)(C) request for documents.

The starting point for understanding what documents a defendant can discovery requires determining what constitutes a “defense” for the purposes of Rule 16(a)(1)(C). In United States v. Arm-strong,46 the Court stated that Rule 16(a)(1)(C) limits discovery to documents related to defenses to the government’s case-in-chief. The Court distinguished defenses that are a “‘sword’ [] challenging the government’s conduct of the case,” such as the selective prosecution claim at issue, from a “shield” that responds to the government’s proof of a violation. Rule 16(a)(1)(C) provides for automatic disclosure of the documents the government will use in its case in chief, so a demand for additional records will require that the defendant identify the defense to which the discovery relates. The burden is on the defendant, therefore, to make a sufficient showing that the discovery will assist his defense.

At this point, the meaning of “material” under the Rule becomes crucial because that will define how great a showing the defendant must make to establish a right to discovery of documents beyond those the government intends to use to establish his guilt. The higher the threshold, the more the defendant will have to reveal about the expected defense, and the greater the difficulty in establishing the need for the documents. Requiring increased disclosure about the defense to ensure it is a “shield” gives the government a preview of the defendant’s strategy, raising the ante for a defendant deciding whether to pursue discovery of other records held by the government. Rule 16(a)(1)(C) does not define materiality, so its use of the same term as Brady to define the government’s disclosure obligation engenders the same type of confusion encountered in defining what constitutes the government. The effect of transporting the Brady analysis of materiality to Rule 16 has an even greater detrimental effect on the scope of discovery.

The procedural posture of a Brady claim is critical to understanding why the Court hews to a high standard for assessing a due process claim arising from the government’s suppression of exculpatory evidence. Brady does not ask whether suppressed evidence would be helpful or important to the defendant; a reviewing court assumes that it is. Rather, the due process analysis entails a review of the entire trial. Discovery is fundamentally different from determining whether exculpatory evidence was material because it is a pre-trial procedure designed to secure items that will assist the defendant in crafting a defense. While Brady deals with the effect of suppression of evidence on the outcome of the proceeding, a trial court considering a discovery request under Rule 16(a)(1)(C) should look at whether the records will be helpful to the defendant. Viewed in context, the materiality requirement should not require the same high threshold for a discovery request as required to prove a due process violation.

Perhaps the most basic “shield” defense is when a defendant disputes whether the government proved its case beyond a reasonable doubt, the fundamental requirement for all criminal convictions. To contest the government’s case, a defendant needs to assess the strength of the evidence against him and whether other evidence the government does not intend to introduce negates its proof of the elements of the crime. Discovery can aid in raising that defense to the charges, yet transporting Brady’s materiality standard to the pre-trial stage would make discovery contingent on showing that the defendant will come close to winning the case. At the discovery phase of a case, the defendant does not have the evidence but is seeking access to it, so a court cannot make the kind of post-hoc assessment of the discovery motion that it does in reviewing a Brady claim.

Given the distinct procedural contexts of Brady and Rule 16(a)(1)(C), courts should not easily confuse the standards for materiality. Yet, the similarities between Brady and discovery can overwhelm the differences, so that some courts apply what is essentially the due process standard of materiality to assessment of a defendant’s request for discovery under Rule 16(a)(1)(C). The Fifth Circuit, in United States v. Ross,47 appears to be the first court to adopt a high threshold that parallels the Brady standard for determining whether the defendant demonstrated the materiality of documents to trigger the discovery right. The court stated, “Materiality means more than that the evidence in question bears some abstract logical relationship to the issues in the case. . . . There must be come indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.”48

Ross did not cite any precedent for its assertion, and the language is similar to Brady’s requirement that the defendant demonstrate that the suppressed evidence affected the fairness of the proceeding. The problem with the Ross standard is that it bears no relation to the concept of pre-trial discovery. Documents in the government’s possession that would significantly alter the quantum of proof in a defendant’s favor are most likely Brady material, yet Rule 16(a)(1)(C) is not simply the embodiment of the due process standard.49

The Fifth Circuit’s description of the materiality standard under Rule 16(a)(1)(C) might be understandable if it were limited to the post-trial review of a defendant’s claim that the erroneous denial of discovery requires a new trial. In that context, a court must apply the harmless error rule in Federal Rule of Criminal Procedure 52(a) to determine whether to grant a remedy, so that asking whether the withheld evidence would have significantly impacted the trial is another way of determining whether the error was harmless. Courts citing Ross, however, have not confined it to that particular procedural context or note that it is a type of harmless error analysis.50 Moreover, trial courts have relied erroneously on Ross’ formulation of the materiality standard to deny pre-trial motions for discovery under Rule 16(a)(1)(C).51

The proper analysis of materiality requires that the court recall the pre-trial context in which discovery takes place.52 Rule 16(a)(1)(C) provides an important aid to the defendant’s preparation for trial, and is not a means to protect the government from having to review files for documents that the prosecutor considers so unimportant that they were not included in the government’s case in chief.53 In United States v. Liquid Sugars, Inc.,54 a district court suggested a lower threshold for establishing materiality under the Rule “as that information, not otherwise provided for or precluded by discovery rules, which is significantly helpful to an understanding of important inculpatory or exculpatory evidence.”55 The court noted that “[d]efendants have a right to analyze and prepare for facially damning evidence,” lamenting that “there is entirely too much ‘hide-the-ball’ in criminal discovery with respect to easily producible documents.”56

Unlike Brady’s materiality requirement for a due process violation, the language of Rule 16(a)(1)(C) should not be read to impose a high standard.57 Courts recognize that in the context of discovery, materiality should be more broadly construed to require production of documents when “there is a strong indication that they will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment and rebuttal.”58 In United States v. Lloyd,59 the District of Columbia Circuit disagreed with the trial court’s assessment that the defendant had “a very heavy burden” to establish the materiality of documents.60 The court found that certain records may have assisted the defendant in mounting a defense that he did not have the requisite mens rea for the crime and remanded the case to consider whether the improper denial of discovery required granting a new trial.

The failure to produce such evidence might not violate Brady, but Rule 16(a)(1)(C) is not concerned with the effect of the government’s suppression of evidence on the fairness of the proceeding.61 Instead, the Rule demands that the government permit the defendant to prepare a “defense,” defined by the Supreme Court as a “shield” from the government. While Rule 16(a)(1)(C) does not make discovery a sword, neither is the right afforded defendants subject to a high standard of materiality that permits the government to withhold evidence that provides significant aid to the defendant in preparing for a criminal trial, perhaps the most important proceeding in that person’s life.

Even with a lower materiality standard for Rule 16(a)(1)(C), defendants do not have a license to compel the government to produce any document they believe might conceivably help the defense. The Rule puts the initial burden on the defendant to establish the materiality and possession of the documents, and courts describe that threshold as a “prima facie showing.”62

The Ninth Circuit stated, “Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense.”63

In particular, courts are suspicious of broadly-worded discovery requests that appear to be little more than a scattershot attempt to have the government search its files for items it believes might be useful to a defendant, especially material that will impeach government witnesses. Sometimes labeled “fishing expeditions,” vaguely worded demands for expansive categories of records only elicit rebukes from courts because Rule 16(a)(1)(C) is not akin to the broad discovery available in a civil case.64

Defendants face the chicken-and-egg problem of establishing the materiality of documents with enough specificity when they have not reviewed them to know whether and how they are helpful to a defense. The key step is identifying one or more defenses that may be raised at trial, and then determining what types of documents relate to that potential defense.

In United States v. Lloyd, the government charged the defendant with aiding and abetting the preparation of false income tax returns. The defendant sought copies of previous tax returns filed by the clients who he was accused of assisting in hiding income, arguing that the clients had misled him and therefore he did not have the requisite intent to aid in the filing of false tax returns. The District of Columbia Circuit found sufficient indicia of the materiality of the requested records under Rule 16(a)(1)(C), even though the defendant was ignorant of their contents and could not show that they would in fact be material to the defense. The concept of helpfulness for determining materiality refers to whether documents may assist in preparing the defense, not that the defendant demonstrate they actually provide a defense because that showing is virtually impossible without access to the records.

Revealing a defense in order to gain access to documents gives the government an advantage by requiring a defendant to disclose before trial how he will respond to the government’s case. That is a strategic issue the defendant will have to decide, weighing the benefits of reviewing documents that may not aid a defense with the burden of giving the government a preview of the defense. The burden may not be that great in many cases, however, because in white-collar cases the defendants rarely dispute their involvement in the underlying activity or statements that may be contained in documents. The key issues are whether the conduct amounts to a criminal violation, and if so whether the defendant had the requisite intent to commit the crime. In many cases, it is unlikely that the government will learn much that is useful if, in seeking discovery of documents under Rule 16(a)(1)(C), the defendant discloses that he did not know all that took place or did not intend to cause a particular harm. Moreover, the materiality threshold under the Rule should not be a high one, so a district court should not compel a defendant to disclose much more than how the requested documents relate to the broad outlines of the potential defenses.

Discovery in a white-collar case proceeds from ignorance, not knowledge, so requiring a defendant to show how a document will establish a defense or significantly alter the quantum of proof at trial ignores the mandate of Rule 16(a)(1)(C) to provide defendants access to items that will assist in their defense. To require more turns the Rule into a shield for the government, certainly a result not contemplated in adopting a provision that expands the right to discovery.

To Ensure a Fair Proceeding
Rule 16(a)(1)(C) provides an important means for defendants to prepare for trial by ensuring that discovery is not limited to the largesse of the prosecutor or willingness of a busy court to rule favorably on a motion to compel the production of records. Defendants who can identify documents that can provide significant help in formulating a defense must be allowed to review more than what the government decides it will use at trial or documents that the defendant already furnished during the investigation. The concepts of possession and materiality require a measure of flexibility that should reflect the fact that adoption of the discovery rule was not to burden the prosecutor with an irrelevant task but a means to ensure a fair proceeding.

Notes
1. Fed. R. Crim. P. 16(a)(1)(C).
2. 28 U.S. C. § 515 (1996).
3. The government can also obtain a warrant to search for and seize records, a tactic that has been used with greater frequency of late. The problem with the search warrant, as opposed to a grand jury subpoena, is that the prosecutor must make a preliminary showing of the need for the documents before the warrant issues.
4. Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (citations omitted).
5. United States v. Morton Salt Co., 338 U.S. 632, 642-43 (1950).
6. United States v. Costello. 350 U.S. 359, 362 (1956).
7. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
8. 373 U.S. 83 (1963).
9. 18 U.S.C. § 3500 (1996).
10. ___Cite___
11. Fed. R. Crim. P. 7(f).
12. See, e.g., United States v. Fleming, 8 F.3d 1264, 1266 (8th Cir. 1993); United States v. Perkins, 994 F.2d 1184, 1190-91 (6th Cir. 1993).
13. Fed. R. Crim. P. 16(a).
14. Fed. R. Crim. P 16(a)(1)(C). Rule 16(b)(1)(A) provides for reciprocal disclosure “ by the defendant of” documents the defense intends to use in its case-in-chief once it makes a request to the government for discovery under Rule 16(a)(1)(C).
15. Fed. R. Civ. P. 34(c). Rule 34(c) was added in 1991, and the broad grant of authority in civil cases to compel non-parties to produce records is subject to the limitations of Rule 45, which permits a non-party to object to the subpoena. Fed. R. Civ. P. 45(c).
16. U.S. District Court (D. Mass.) Local R. 116.8 (emphasis added).
17. See, e.g., United States v. Vue, 13 F.3d 1206, 1208 (8th Cir. 1994) (defendant moved for disclosure of information from the INS under Rule 16 (a)(1)(C) and Brady); United States v. Bryan, 868 F.2d 1032, 1034 (9th Cir. 1989) (in mail and tax fraud prosecution, defendant “grounded his motion both on Federal Rule of Criminal Procedure 16 and Brady v. Maryland”); United States v. Uphoff, 907 F.Supp. 1475, 1477 (D. Kan. 1995) (“Defendant claims that Brady . . . and Federal Rule of Criminal Procedure 16, authorize his discovery requests.”); United States v. NYNEX Corp., 781 F. Supp. 19, 23 (D.D.C. 1991) (defendant corporation moved for production of records under both Rule 16(a)(1)(C) and Brady).
18. Kyles v. Whitley, 115 S. Ct. 1555, 1567 (1995); Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987).
19. 868 F.2d 1032 (9th Cir. 1989).
20. Id. at 1035.
21. Id. at 1036. The defendant sought records related to a broad investigation of his activities by the Internal Revenue Service to support his defense that he acted in good faith. Id. at 1033-34. While the Ninth Circuit’s statement ostensibly defined “government” under Rule 16(a)(1)(C), the court then considered whether the documents were material under Brady. Bryan’s approach is typical of many courts and practitioners who treat Brady and Rule 16 as interchangeable means to engage in pre-trial discovery.
22. United States v. Coleman, 11 F. Supp.2d 689, 692 (W.D. W.Va. 1998).
23. 80 F.3d 1151 (7th Cir. 1996).
24. Id. at 1169 (“Because none of those agencies were part of the team that investigated this case or participated in its prosecution, the district court would not impute their knowledge of potentially exculpatory information to the present prosecutors.”).
25. United States v. Wood, 57 F.3d 733, 737 (9th Cir. 1995) (“under Brady the agency charged with administration of the statute, which has consulted with the prosecutor in the steps leading to prosecution, is to be considered as part of the prosecution in determining what information must be made available to the defendant charge with violation of the statute.”).
26. Id.
27. United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992).
28. United States v. Perdomo, 929 F.2d 967 (3rd Cir. 1991) (local Virgin Islands criminal records); United States v. Brooks, 966 F. 2d 1500 (D.C. Cir. 1992) (Washington, D.C., metropolitan police department records).
29. United States v. Auten, 632 F.2d 478 (5th Cir 1980).
30. United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973).
31. United States v. Bryan, 868 F.2d 1032 (9th Cir. 1989).
32. United States v. Wood, 57 F.3d 733 (9th Cir. 1995).
33. United States v. Liquid Sugars, Inc., 158 F.R.D. 466 (E.D. Ca. 1994). Agencies that courts found were not, under the circumstances of the particular case, sufficiently affiliated with the prosecution to impose the Brady disclosure requirement include the Federal Communica-tions Commission, United States v. NYNEX Corp., 781 F. Supp. 19 (D.D.C. 1991), and the Office of Thrift Supervision, Securities & Exchange Commission, and IRS. United States v. Morris, 80 F.3d 1151 (7th Cir. 1996).
34. Commonwealth v. Donahue, 487 N.E.2d 1351 (Mass. 1986).
35. United States v. Conder, 423 F.2d 904, 911 (6th Cir. 1970).
36. Fed. R. Crim. P. 16(a)(1)(c) 1974 advisory committee note.
37. 176 F.R.D. 258 (N.D. Ohio 1997).
38. Id. at 262.
39. 523 F. Supp. 206 (E.D. Wis. 1981).
40. Id. at 215.
41. 763 F.2d 1040 (9th Cir. 1985).
42. Id. at 1049. The documents at issue were held by state investigators, and the prosecutor was unaware of their existence until shortly before trial. In dissent, Circuit Judge Schroeder argued that Rule 16(a)(1)(C) “is not limited to documents physically resting in federal agency file folders and should reach at least far enough to encompass these documents, which were at the prosecutors’ fingertips. Id. at 1051 (Schroe-der, C.J., dissenting).
43. But see id. at 1049 (“Because we find no due diligence language in Rule 16(a)(1)(C) at all, nor any special reason to deviate from its plain language, we conclude that it triggers the government’s disclosure obligation only with respect to documents within the federal government’s actual possession, custody or control.”).
44. Fed. R. Crim. P. 16(a)(1)(C).
45. See Advisory Committee Notes to 1974 Amendment (“the requirement that the government disclose documents and tangible objects ‘material to the preparation of his defense’ underscores the importance of disclosure of evidence favorable to the defendant.”).
46. 517 U.S. 456 (1996).
47. 511 F.2d 757 (5th Cir.1975).
48. Id. at 762-63 (emphasis added).
49. See United States v. Vue, 13 F.3d 1206, 1208 (8th Cir. 1994) (upholding denial of documents under Rule 16(a)(1)(C) and Brady due to lack of materiality without distinguishing the two approaches).
50. See, e.g., United States v. Maniktala, 934 F.2d 25, 28 (2nd Cir. 1991); United States v. Reeves, 892 F.2d 1223, 1226 (5th Cir. 1990)
51. See United States v. Uphoff, 907 F. Supp. 1475, 1480 (D. Kan. 1995); United States v. McGuinness, 764 F. Supp. 888, 895 (S.D.N.Y. 1991); United States v. Burger, 773 F. Supp. 1419, 1424 (D. Kan. 1991).
52. See United States v. Sudikoff, 36 F. Supp. 2d 1196, 1199 (C.D. Cal. 1999) (holding that appellate standard for a Brady violation should not be applied in the pre-trial context, under which a broader standard should apply).
53. See United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (“The government has objected to some of Mr. McVeigh’s requests as ‘burdensome.’ That is not a proper objection.”).
54. 158 F.R.D. 466 (E.D. Calif. 1994)
55. Id. at 471 (emphasis added).
56. Id. at 471 n.4. See also United States v. Sudikoff, 36 F. Supp. 2d 1196, 1199 (C.D. Cal. 1999) (in ruling on Brady claim before trial, court held that standard of materiality is that “the government is obligated to disclose all evidence relating to guilt or punishment which might reasonably be considered favorable to the defendant’s case.”).
57. United States v. George, 786 F. Supp. 11, 13 (D.D.C. 1991).
58. United States v. Halpin, 145 F.R.D. 447, 450 (N.D. Ohio 1992) (quoting United States v. Felt, 491 F. Supp. 179, 186 (D.D.C. 1979); accord, United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993); United States v. Gaddis, 877 F.2d 605, 611 (7th Cir. 1989); United States v. George, United States v. Secord, 726 F. Supp. 845, 846 (D.D.C. 1991).
59. 992 F.2d 348 (D.C.Cir. 1993).
60. Id. at 351.
61. See United States v. Conder, 423 F.2d 904, 911 (6th Cir. 1970) (“the disclosure required by Rule 16 is much broader than that required by the due process standards of Brady.”).
62. See United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir. 1984).
63. United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990).
64. See, e.g., United States v. Cadet, 727 F.2d at 1468 (“A general description of the materials sought or a conclusory argument as to their materiality is insufficient to satisfy the requirements of Rule 16(a)(1)(C).”); United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 472 (E.D. Calif. 1994) (“requests which are designed to generally cast for impeachment material, and which are not directly pertinent . . . are not material. Such requests are simply speculative inquiries without basis in fact to believe that the information acquired will be significantly helpful.”).




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