Managing White Collar Legal Issues - Leading Lawyers on Understanding Client Expectations, Conducting Internal Investigations, and Analyzing the ...

I N S I D E     T H E    M I N D S

  Managing White
 Collar Legal Issues
  Leading Lawyers on Understanding Client
Expectations, Conducting Internal Investigations,
  and Analyzing the Impact of Recent Cases

                2013 EDITION

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Barriers to Discovery
in Criminal Defense

    Christopher W. Madel
             Partner
Robins Kaplan Miller & Cerisi LLP

By Christopher W. Madel

Introduction

The limitations on discovery in federal criminal prosecutions require
defense counsel to be on the top of their game in every case (i.e., they must
apply their energy and creativity toward aggressively pursuing every relevant
fact). This is particularly true in the complex and document-intensive white
collar context, the focus of this chapter. What follows is a brief analysis of
two of the primary sources of “discovery” in criminal cases—Brady v.
Maryland, 373 U.S. 83 (1963), and Federal Rule of Criminal Procedure 16—
and their effectiveness in providing defendants access to important
information and documents before trial. The aim is to show that Brady
disclosures 1 and Rule 16 material are too often late—or never—disclosed to
the defense, and that the scope of prosecutors’ disclosure obligations is
arbitrarily and unfairly circumscribed. In essence, it is up to you—as
criminal defense counsel—to level the playing field (or at least go down in a
spectacular ball of flames trying).

Brady , Federal Rule of Criminal Procedure 16, and Their Limits

In Berger v. United States, 2 the US Supreme Court envisioned a prosecutor
who would seek to see that “justice shall be done.” 3 But prosecutors bent
on obtaining convictions rather than doing justice nevertheless have a full
quiver of tricks and loopholes they can, and do, use to bar defendants’
access to the material necessary for preparation of a winning defense. The
rules intended to assist defendants, ironically, may be more effective in
sanitizing prosecutorial misconduct by blessing it with the designation
“compliance.”

This general concern is heightened in white collar cases. A white collar
defendant’s path to a persuasive defense can be tortuous, requiring a
complex theory and digestion of a raft of seemingly incomprehensible
documents. The prosecution’s delay or withholding of material can torpedo
defense preparations. This is true for obvious reasons when what is
1
  Criminal law practitioners refer to “Brady disclosures” as encompassing all exculpatory
material to be produced to the defendant to ensure a fair trial. See Brady v. Maryland, 373
U.S. 83 (1963) (requiring disclosure of evidence that is both favorable to the accused and
“material either to guilt or to punishment”); but see infra at note 18 (noting many federal
courts hold that Brady is not a discovery mechanism).
2
  Berger v. United States, 295 U.S. 78 (1935).
3
  Id. at 88.

Barriers to Discovery in Criminal Defense

withheld directly establishes innocence. When material is not exculpatory in
its own right, but may lead to the discovery of breakthrough evidence, a
prosecutor’s nondisclosure is both easier to justify and arguably more
harmful to the defense because it may preclude a whole line of argument or
a theory of defense from ever being born.

As described below, the rules governing prosecutorial disclosures allow for
the withholding of important evidence by prosecutors, and this has become
accepted in the federal courts over time. These rules “encourage
gamesmanship and delay rather than forthrightness and efficiency.” 4 The
result is a skewed proceeding: the defendant is denied knowledge of, or
access to, material that could have proven vital to a strong defense. In
short, the current federal criminal discovery rules, if not invigorated by
defense counsel through aggressive motion practice, monitoring, and trial
preparation, result in the defense’s receipt of too little material too late in
the process to put it to effective use.

Too Little

The access had by US Attorneys’ Offices (USAO) to agencies collecting key
documents in white collar cases, and the defense’s corresponding lack of
access, allows inculpatory documents to be illuminated while exculpatory
documents remain locked away. The general rule is that the government’s
Brady and Rule 16 obligations extend to all material in the possession,
custody, or control of the “prosecution team.” 5

What constitutes the prosecution team, however, is a matter of sharp dispute.
Some circuits require prosecutors to “inform themselves about everything
that is known in all of the archives and all of the data banks of all of the
agencies collecting information which could assist in the construction of
alternative scenarios to that which they intend to prove at trial.” 6 Prosecutors

4
  United States v. Gatto, 763 F.2d 1040, 1051 (9th Cir. 1985) (Schroeder, C.J.,
dissenting).
5
   U.S. ATTORNEYS MANUAL, CRIMINAL RESOURCE MANUAL 165: GUIDANCE FOR
PROSECUTORS REGARDING CRIMINAL DISCOVERY (Jan. 4, 2010), available at
www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00165.htm.
6
  United States v. McVeigh, 954 F.Supp. 1441, 1450 (D. Colo. 1997); see also United
States v. Safavian, 233 F.R.D. 12, 14 (D.D.C. 2005) (holding that “‘the government’
includes any and all agencies and departments of the Executive Branch of the

By Christopher W. Madel

enjoy ready access to the files of agencies with which they work or
communicate; defense counsel should have a corresponding opportunity to
collect helpful evidence.

In other circuits, by contrast, prosecutors have successfully limited the
definition of “government” to specific agencies, and even further to a
smaller subsection of that same agency. These circuits require a defendant
to state with particularity what it is he expects a search of agency files will
turn up. 7 Under this reasoning, prosecutors are permitted to employ a cost-
benefit analysis: “as the burden of the proposed examination rises, clearly
the likelihood of a payoff must also rise before the government can be put
to the effort.” 8 Some circuits arbitrarily subdivide agencies, giving the
defense access only to documents held by the “tentacles” 9 that work on a
day-to-day basis with the USAO. 10

Our system is purportedly predicated upon the presumption of innocence.
A criminal defendant should be entitled to learn about and access all
evidence relevant to his case; it is unfair that the government may
subdivide itself, drawing lines that bar the defense from particular material
as it sees fit. It is even more disconcerting that a defendant’s ability to

government and their subdivisions, not just the Justice Department, the FBI, the GSA-
OIG, and other law enforcement agencies”).
7
  See United States v. Brooks, 966 F.2d 1500, 1504 (D.C. Cir. 1992).
8
  Id.; see also United States v. Robinson, 585 F.2d 274, 281 (7th Cir. 1978) (holding that
“to allow the rummaging through government files under the authority of Brady would be
to defeat the stated legislative intent of the Jencks Act and therefore cannot be allowed”).
9
  United States v. Markert, No. 0:11-cr-00200-ADM-FLN, 2012 WL 4090143 (D. Minn.
Sept. 17, 2012). The case was “the result of an investigation by the Federal Bureau of
Investigation, the Federal Deposit Insurance Corporation Office of Inspector General, and
the United States Department of Labor Employee Benefits Security Administration.”
Press Release, U.S. Dep’t of Justice, Two Bank Officers and Customer Indicted for
Concealing Customer’s Multimillion Dollar Check-Kiting Scheme (June 22, 2011) (on
file with author). Several months later, when the defense asked for documents that the
Federal Deposit Insurance Corporation had collected, the USAO claimed “there’s
multiple different tentacles within the FDIC, and…their motion doesn’t specify whose
notes we should be looking for.” ECF Dkt. No. 114 at 32:5-8.
10
   See United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (holding that “the
imposition of an unlimited duty on a prosecutor to inquire of other offices not working
with the prosecutor’s office on the case in question would inappropriately require us to
adopt a monolithic view of government that would condemn the prosecution of criminal
cases to a state of paralysis”) (internal quotation marks omitted); United States v. Pelullo,
399 F.3d 197, 217 (3d Cir. 2005) (citing Avellino, 136 F.3d at 255).

Barriers to Discovery in Criminal Defense

protect his or her freedom should be hampered by the speculative burden
a document hunt might impose on the government. 11 Defense counsel
must accordingly be ready to push the government to specifically
articulate the reach of its “prosecution team” and move to broaden it
when the government attempts to narrowly circumscribe the same. 12

A similar disparity in access exists with respect to the fruits of corporate
internal investigations. Some circuits permit corporations to disclose
documents related to internal investigations to the government without
waiving the attorney-client privilege or work-product protection vis-à-vis
third parties (including a defendant criminally prosecuted by the
government). 13 Where selective waiver is applied in this fashion, the
government receives the twofold benefit of obtaining confidential material
relating to an internal investigation while at the same time preserving the
material’s confidentiality so the defense is precluded from—or must go to

11
   See United States v. Weiss, No. 05-cr-179-B (D. Colo. June 21, 2006) (“To extend the
Government’s discovery or disclosure obligations to hunt for information the defendants
believe may exist, and which may be helpful to the defendants only through a complex
chain of inferences, is to impose an unreasonable burden on the Government”); but see
McVeigh, 954 F.Supp. at 1450 (“Determining materiality of information discoverable
under Rule 16 or required to be produced under Brady must not be made according to a
cost benefit analysis”).
12
   Defense counsel’s efforts were successful in this regard in United States v. Markert.
See Amended Order, United States v. Markert, No. 0:11-cr-00200-ADM-FLN (D. Minn.
Jan. 12, 2012), ECF Dkt. No. 141 at 1-2 (rejecting government’s argument that, though
the case was prosecuted by FDIC-OIG and DOJ in tandem, the government was “not
obligated to search” an e-mail database residing with FDIC-DRR “for material that is
exculpatory under Brady” because information held by FDIC-DRR “is not in the
possession, custody, or control of the ‘prosecution team’”; ordering material processed
and produced forthwith pursuant to Rule 16).
13
   See, e.g., Diversified Indus. v. Meredith, 572 F.2d 596, 604 n.1 (8th Cir. 1977) (stating,
in dicta, “we would be reluctant to hold that voluntary surrender of [attorney-client]
privileged material to a governmental agency in obedience to an agency subpoena
constitutes a waiver of the privilege for all purposes, including its use in subsequent
private litigation in which the material is sought to be used against the party which
yielded it to the agency”); United States v. Thompson, 562 F.3d 387, 397-98 (D.C. Cir.
2009) (reversing ruling of district court finding general waiver of work-product
protection with respect to all internal investigation materials provided to government;
remanding for determination as to which of the protected materials were to be disclosed
to the defense under Brady or Rule 16); In re Natural Gas Commodity Litig., 337
F.Supp.2d 498 (S.D.N.Y. 2005) (applying case-by-case analysis to determine question of
waiver of work-product protection with respect to material disclosed to government and
holding that protection was not waived).

By Christopher W. Madel

great lengths to obtain—access to it.

The best way to combat such selective disclosure is through aggressive use
of the third-party subpoena and demands for fulsome privilege logs. Someone
will know about the existence of the internal investigation—whether that
“someone” is your client, joint defense counsel, a witness, or a secretary to
a witness. Once you learn of the investigation, begin writing letters
requesting information about the same. When the law firm refuses to
provide you with a copy, ask why. If they claim privilege, ask if they
provided it to anyone. Chances are, if a corporation authorized an internal
investigation, that same corporation provided a copy of it to the relevant
prosecutors. If you can claim an adverse relationship between the
corporation and the government, you have a good-faith argument to obtain
a copy of the internal investigation report. 14

Too Late

Clever (and unethical) prosecutors frequently delay making required
disclosures until defense counsel can no longer fully and effectively utilize
the material. Unfortunately, many courts have approved of such delayed
disclosures, particularly when the withheld material is exculpatory. 15 Late

14
     See, e.g., In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993)
(suggesting, in dicta, that government agency may enter into an explicit agreement to
maintain confidentiality of attorney work product); Westinghouse Elec. Corp. v.
Republic of the Philippines, 951 F.2d 1414, 1427 (3d Cir. 1991) (finding attorney-
client privilege was waived despite promise by DOJ not to disclose information); In re
Martin Marietta Corp., 856 F.2d 619, 623 (4th Cir. 1988) (finding corporation’s
submission of a position paper waived the attorney-client and work-product
privileges); Permian Corp. v. United States, 665 F.2d 1214, 1222 (D.C. Cir. 1981)
(voluntary disclosure of information to one government agency, even for a limited
purpose, waives the attorney-client privilege); but see, Diversified Indus., Inc. v.
Meredith, 572 F.2d 596 (8th Cir. 1978) (adopting a “selective waiver” doctrine for
voluntary disclosures made to the SEC); In re Steinhardt Partners, 9 F.3d 230, 236 (2d
Cir. 1993) (suggesting in dicta that government agency may enter into an explicit
agreement to maintain confidentiality of attorney work product).
15
   See, e.g., United States v. Warren, 454 F.3d 752, 760 (7th Cir. 2006) (holding that the
government’s late disclosure of exculpatory material was no violation because the
defendant “fails to explain what he would have done differently if the government
had…provided information, such as [agent’s] report, sooner” and defendant “used all of
the information the government did provide”); United States v. Harris, No. 03-30119 (5th
Cir. Aug. 21, 2003) (holding that because “Government presented [defendant] with the
DEA Form 7 and forensic chemist’s bench notes at trial, prior to the chemist’s

Barriers to Discovery in Criminal Defense

disclosures, coupled with the stringent materiality showing required to
compel disclosure under Rule 16, leave white collar criminal defendants
with an incomplete picture of the facts of a case—and the defendant with
an undeveloped defense at the time of trial. Courts are required to
speculate, and defendants to wonder, what would have happened had
obligations been fulfilled and disclosures been made earlier. 16

Defendants (typically) cannot compel disclosure of Brady material; the
timing of disclosures is left to the prosecutor’s difficult-to-challenge
discretion and certification. In varying contexts, nearly every federal circuit
has cited to the case United States v. Beasley 17 for the proposition that “Brady
is not a discovery rule, but a rule of fairness and minimum prosecutorial
obligation.” 18

The Fifth Circuit, which decided Beasley, has additionally held that “Brady is
not a pre-trial remedy,” 19 and Brady is not “applicable at pre-trial stages.” 20

testimony,” the “late disclosure of this evidence did not prejudice [defendant]”); United
States v. Scarborough, 128 F.3d 1373,1376 (10th Cir. 1997) (“Following the recess,
defense counsel extensively cross-examined [witness] regarding the tardily disclosed
evidence. Defense counsel also used the exculpatory material to strong effect in his
closing argument. Under these circumstances, the fact that the material, if disclosed
earlier, may have affected the defense strategy does not mandate reversal”).
16
   See, e.g., Phillips v. Ornoski, No. 04-99005 (9th Cir. May 25, 2012) (holding that
prosecution’s failure to make required disclosures, “although ‘pernicious’ and
‘reprehensible,’” was “not material to [defendant’s] conviction of first-degree murder”).
17
   United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978).
18
   See Tuesta-Toro v. United States, No. 99-1371, 2000 WL 1160442 , at *5 (1st Cir. July
20, 2000) (citing Beasley, 576 F.2d at 630); United States v. Gray, 648 F.3d 562, 567 (7th
Cir. 2011) (“The Brady rule is not a rule of pre-trial discovery”); United States v.
Graham, 484 F.3d 413, 422 (6th Cir. 2007) (citing Beasley, 576 F.2d at 630); United
States v. Garrett, 238 F.3d 293, 302 (5th Cir. 2000) (citing Beasley, 576 F.2d at 630);
Fores v. Satz, 137 F.3d 1275, 1278 n.8 (11th Cir. 1998) (citing Beasley, 576 F.2d at 630);
United States v. Shelton, No. 92-5588 (4th Cir. Mar. 4, 1994) (citing Beasley, 576 F.2d at
630); United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (citing Beasley, 576
F.2d at 630); United States v. Bonnett, 877 F.2d 1450, 1459 (10th Cir. 1989) (citing
Beasley, 576 F.2d at 630); United States v. Krauth, 769 F.2d 473, 476 (8th Cir. 1985)
(citing Beasley, 576 F.2d at 630); United States v. Starusko, 729 F.2d 256, 262 (3d Cir.
1984) (citing Beasley, 576 F.2d at 630); but see United States v. Pollack, 534 F.2d 964,
973-74 (D.C. Cir. 1976) (“While some courts have held that Brady affords no pre-trial
discovery rights to defendants…we believe that application of a strict rule in this area
would inevitably produce some situations in which late disclosure emasculate the effects
of Brady”).
19
   United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975).
20
   United States v. Frick, 490 F.2d 666, 671 (5th Cir. 1973).

By Christopher W. Madel

The Fifth Circuit interprets the Supreme Court’s holding in United States v.
Agurs 21 to mean that a violation of Brady cannot occur until “after
conviction of a defendant.” 22 As there can be no pre-trial Brady violation,
neither can a remedy be awarded at this stage. Thus, at least under the
generally accepted analysis, defendants have difficulty invoking Brady to
compel the production of exculpatory evidence when they need it most. 23
Courts can, in their discretion, order that Brady material be disclosed pre-
trial—but defense counsel must first move for such relief. 24 Even then,
however, several courts will refrain from ordering such production, instead
crediting the government’s canned promise “that it is aware of its Brady
obligations and will honor them.” 25 Such an order defies common sense.
When the government says, and the court accepts, that the government will
honor its Brady obligations, frequently the government makes no mention
of when they will honor their constitutional obligations. That is normally
because, as prosecutors well know, they need not disclose Brady material
until very near—or even during—trial; so long as the defense can, in theory,
make some use of the material, there is no violation. 26 The best practice,

21
   United States v. Agurs, 427 U.S. 97 (1976).
22
   Beasley, 576 F.2d at 630.
23
   See United States v. Lewis, 368 F.3d 1102, 1107 (9th Cir. 2004) (“Courts typically
review Brady violations post-trial”).
24
   But defendants cannot claim violation of any right, and seek a remedy, pre-trial. See
Starusko, 729 F.2d at 262 (holding that no Brady violation could exist pre-trial, and
reasoning that “to constitute a Brady violation, the nondisclosure must do more than
impede the defendant’s ability to prepare for trial; it must adversely affect the court’s
ability to reach a just conclusion, to the prejudice of the defendant”).
25
   United States v. Mohammad, No. 1:10CR389, 2012 WL1605472, at *4 (N.D. Ohio
May 8, 2012).
26
   See, e.g., United States v. Jeanpierre, 636 F.3d 416, 422 (8th Cir. 2011) (“Although a
defendant’s Brady rights are violated if he discovers information after trial which had
been known to the prosecution but unknown to the defense, the same is not true, where,
as here, the evidence is discovered during trial”) (internal quotation marks omitted);
United States v. Johnson, 264 F. App’x 388, 389 (5th Cir. 2008) (“Evidence disclosed at
trial does not constitute suppressed evidence”); United States v. Young, 45 F.3d 1405,
1408 n.2 (10th Cir. 1995) (“We have stated on several occasions that Brady is not
violated when the material requested is made available during the trial”); United States v.
Knight, 867 F.2d 1285, 1289 (11th Cir. 1989) (“Appellants received the information
during the trial and have failed to demonstrate that the disclosure came so late that it
could not be effectively used; and thus they cannot show prejudice”); United States v.
Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988) (“Brady does not necessarily require that
the prosecution turn over exculpatory material before trial”); United States v. Johnson,
816 F.2d 918, 924 (3d Cir. 1987) (“Where the government makes Brady evidence
available during the course of a trial in such a way that a defendant is able effectively to

Barriers to Discovery in Criminal Defense

therefore, is to move for the immediate production of all Brady material
promptly after indictment. Some courts will order the immediate
production of Brady material. 27
Some criminal allegations are simple enough to be refuted by material
disclosed on the eve of trial. For example, in Smith v. Cain, 28 the defendant
was convicted of first-degree murder based on the testimony of a single
eyewitness. 29 During state post-conviction relief proceedings, the defendant
obtained police files containing statements by the eyewitness contradicting
his testimony. 30 The defendant argued that the prosecution’s failure to
disclose those statements violated Brady. 31 The Supreme Court held that the
evidence was covered by Brady and should have been disclosed. 32 One can
plausibly argue that if disclosed on the eve of trial, the eyewitness evidence
in Smith would not have prejudiced the defendant.

As a general matter, white collar crimes are not as simple. Indeed,
prosecutors spend vast amounts of time—usually years—building a case
before ever initiating a prosecution. During this pre-indictment stage, the
prosecutors in white collar investigations typically serve multiple grand jury
subpoenas, wade through mounds of documents in search of inculpatory
evidence, and question multiple witnesses before the secret grand jury,
sometimes intimidating witnesses to accede to the prosecutors’ versions of

use it, due process is not violated and Brady is not contravened”); United States v.
Clarke, 767 F.Supp.2d 12, 53 (D.D.C. 2011) (finding no Brady violation where,
“notwithstanding the government’s failure to disclose the [exculpatory] evidence earlier,
[the defendant] was able to incorporate it into his defense”); United States v. Birkett, No.
99 Cr. 338 (RWS) (S.D.N.Y. Sept. 2, 1999) (“Brady ‘impeachment’ information is
properly disclosed when the witness is called to testify at trial”).
27
    See, e.g., United States v. Akinadewo, Crim. No. 11-150 (EGS) (D.D.C. June 1, 2011)
(Sullivan, J.) (“The Court directs the government to produce to defendant in a timely
manner any evidence in its possession that is favorable to defendant and material either to
defendant’s guilt or punishment”); see also Safavian, 233 F.R.D. at 16 (“The prosecutor
cannot be permitted to look at the case pre-trial through the end of the telescope an
appellate court would use post-trial. Thus, the government must always produce any
potentially exculpatory or otherwise favorable evidence without regard to how the
withholding of such evidence might be viewed—with the benefit of hindsight—as
affecting the outcome of the trial”).
28
   Smith v. Cain, 132 S. Ct. 627 (2012).
29
   Id. at 629.
30
   Id.
31
   Id. at 630.
32
   Id. at 631. (Thomas, J., dissenting) (citing United States v. Bagley, 473 U.S. 667, 682
(1985)).

By Christopher W. Madel

events or providing immunity to witnesses to achieve the same result. As
the Eleventh Circuit described it, repeating the testimony of Assistant
Attorney General Philip Heymann, “sometimes the pre-indictment
investigation can take years during which time the prosecutor has
accumulated masses of documents on which he has spent a great deal of
time and energy in review.” 33 The “complex web of inferential proof” that
makes up the “record” in “most white collar” cases ensnares the
underprepared litigant. 34 Defense counsel, no matter how bright, quick, or
insightful, cannot do in minutes what it takes the government—the robust
“prosecution team”—years to accomplish. A white collar criminal
defendant benefits little from a constitutional entitlement to helpful
evidence that kicks in on the day of trial. 35

In addition to precluding full digestion and effective utilization of
exculpatory material, late Brady disclosures paralyze the defense for another
reason. A defendant has difficulty obtaining Rule 16 evidence before
receiving Brady disclosures because, lacking the exculpatory material
required to be produced under Brady, 36 the defendant is less likely to meet
the standard for compelling production of documents sought under Rule
16.

The broadest and most useful provision of Rule 16, (a)(1)(E)(i), entitles a
defendant, upon request, to “documents and objects” within the
“government’s possession, custody, or control” that are “material to
preparing the defense.” Materiality is difficult to demonstrate at the outset
of many cases; many courts fail to recognize this basic reality. 37 One of the

33
   United States v. Mers, 701 F.2d 1321, 1333 n.8 (11th Cir. 1983) (Senate testimony of
Assistant Attorney General Phillip Heymann).
34
   United States v. Ashfield, 735 F.2d 101, 103 (3d Cir. 1984).
35
   See United States v. Thevis, 84 F.R.D. 47, 53 (N.D. Ga. 1979) (holding that “at trial
disclosure of Brady material is tantamount to the actual suppression of the material”).
36
   The “material” (including, inter alia, information) Brady requires to be disclosed is, at
least in theory, broader than the tangible items FED. R. CRIM. P. 16(a)(1)(E) makes
available to defendants.
37
    See, e.g., United States v. Dobbins, No. 10-6262, 2012 WL 1662453, at *6 (6th Cir.
May 14, 2012) (“There must be an indication that pre-trial disclosure of the contested
document 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”) (internal quotation marks and brackets omitted); United States v.
Krauth, 769 F.2d 473, 476 (8th Cir. 1985) (“A showing of materiality…is not satisfied by

Barriers to Discovery in Criminal Defense

most oft-quoted cases in this regard is United States v. Ross, 38 which stated
that “materiality means more than that the evidence in question bears some
abstract logical relationship to the issues in the case. There must be some
indication that the pre-trial disclosure of the disputed evidence would have
enabled the defendant significantly to alter the quantum of proof in his
favor.” 39 The seemingly universal citation to Ross 40 is troubling because Ross
fundamentally misconceives the obligation that Rule 16 imposes upon the
government. “Material” does not mean “helpful.” 41

This is particularly true when the defendant has yet to receive the
government’s Brady disclosures, because, just as “the effective investigation
of complex white collar crimes may require the assembly of a ‘paper puzzle’
from a large number of seemingly innocuous pieces of individual
evidence,” 42 an effective defense against white collar allegations is
composed of numerous individual items and bits of information, none of
which establish innocence on their own. Brady disclosures may be the
largest and most important parts of the defense puzzle; until these are in
place, defendants will have trouble establishing entitlement to the more
tangential pieces.

a mere conclusory allegation that the requested information is material to the preparation
of the defense”); United States v. Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984) (“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) [now (E)]”); United States v.
Caputo, 373 F.Supp.2d 789, 793 (N.D. Ill. 2005) (“To make a prima facie showing, a
defendant cannot rely on general descriptions or conclusory arguments, but must
convincingly explain how specific documents will significantly help him uncover
admissible evidence, prepare witnesses, or corroborate, impeach, or rebut testimony”).
38
   511 F.2d 757, 763 (5th Cir. 1975).
39
   Id. at 763.
40
   See, e.g., United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996) (quoting Ross,
511 F.2d at 763); United States v. Scott, No. 92-6272, 1993 WL 411596 (10th Cir. Oct. 8,
1993) (quoting Ross, 511 F.2d at 763); United States v. Holloway, 971 F.2d 675, 680
(11th Cir. 1992) (quoting Ross, 511 F.2d at 763); United States v. Maniktala, 934 F.2d
25, 28 (2d Cir. 1991) (quoting Ross, 511 F.2d at 763); United States v. RMI Co., 599 F.2d
1183, 1188 (3d Cir. 1979) (quoting Ross, 511 F.2d at 763); United States v. Poulin, 592
F.Supp.2d 137, 143 (D. Me. 2008) (quoting Ross, 511 F.2d at 763).
41
    See Safavian, 233 F.R.D. at 15 (noting that Rule 16 “is not limited to evidence that is
favorable or helpful to the defense” because “inculpatory evidence, after all, is just as
likely to assist in the preparation of the defendant’s defense as exculpatory evidence,” as
this will allow the defendant to anticipate “potential pitfalls”) (internal quotation marks
omitted).
42
   United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982).

By Christopher W. Madel

At least in theory, defendants can defuse the potentially devastating effects
of late-disclosed exculpatory material by asking for a continuance upon
receipt of particularly helpful evidence. But several practical obstacles stand
in the defendant’s way. First, some prosecutors dump reams of paper on
defense counsel at, or just before, trial. While in the midst of frenetic final
preparations, defense counsel is unlikely to be able to review such material
as carefully as they would prefer. Moreover, after trial, if the result is a
conviction, often public and private defenders’ scarce resources will prevent
such a review. In such an event, Brady violations will go undetected. Second,
even if defense counsel is able to review late-disclosed documents, defense
counsel is unlikely to immediately perceive the subtle significance of what is
likely highly complicated material. 43 Third, even if defense counsel both
examines and digests late-disclosed Brady material, the imminence of trial
precludes the creative theorizing a successful defense requires. Particularly
in white collar cases, some of the most important evidence is useful only
instrumentally in leading the defense to request further exonerating
discovery. Thought, time, and further research are required to understand
how and why certain material may generate a breakthrough in trial strategy.
This research cannot be conducted at trial. 44 Fourth, even if defense counsel
fully appreciates the exculpatory force of newly disclosed evidence, the
judge may prefer not to delay trial. The judge’s calendar might be so tightly
packed that he or she is willing to take his or her chances on being reversed
for ordering trial to proceed in the face of defense counsel’s protestations.
And the judge has little to fear in the way of reversal. 45

43
    See United States v. Washington, 294 F. Supp. 2d 246, 249 (D. Conn. 2003) (“What
can be perceived in the heat of a short, aggressively prosecuted trial may be far different
from pre-trial development of evidence and appreciation of how it may be effectively
integrated into an overall trial strategy”).
44
    See Leka v. Portuondo, 257 F.3d 89, 101 (2d Cir. 2001) (“The limited Brady material
disclosed to Leka could have led to specific exculpatory information only if the defense
undertook further investigation. When such a disclosure is first made on the eve of trial,
or when trial is underway, the opportunity to use it may be impaired. The defense may be
unable to divert resources from other initiatives and obligations that are or may seem
more pressing. And the defense may be unable to assimilate the information into its
case.”).
45
   See supra note 40 (and accompanying text).

Barriers to Discovery in Criminal Defense

The argument that the defense is never harmed by late disclosures because
of the possibility of a continuance is, therefore, unconvincing. The
argument is additionally unsatisfying to the defendant who understandably
wishes to conclude criminal proceedings as quickly as possible.

Conclusion

The rules governing criminal discovery and pre-trial disclosures fail to attain
their objective of enabling the fair preparation of a defense, because they
make a defendant’s access to vital material contingent upon the cooperation
of prosecutors who are “neither neutral (nor should they be) nor
prescient.” 46 Out of what they call “an abundance of caution,” prosecutors
sometimes do make all required disclosures—and sometimes more—well
before trial. But it is both unfortunate and frightening that a defendant’s
freedom should ride on the prosecutor’s “abundance of caution.” An
innocent defendant’s ability to defend himself should not depend upon the
beneficence of his enemy—the federal prosecutor. The prevailing view that
private litigants’ money is entitled to more protection than citizens’ liberty is
an abomination to most everything the United States stands for.

Key Takeaways

       •    Avoid the problem of discovery material being produced too little
            in scope and too late in the process to aid the defense by
            employing aggressive motion practice, monitoring, and trial
            preparation. Do not rely on the government and the prosecutor’s
            office to provide all necessary materials voluntarily.
       •    Expect the government to narrowly circumscribe the reach of the
            prosecution team and to be vague in articulating it. Push the
            government for details so you know the barriers you need to
            overcome in obtaining discovery.
       •    Prepare ahead of time to move that the court order that Brady
            material be disclosed pre-trial. Always work with the mindset that
            nothing that helps the defense will be volunteered.
       •    Because the government is otherwise under no deadline to honor
            its constitutional obligations to produce Brady material, always be

46
     Safavian, 233 F.R.D. at 16.

By Christopher W. Madel

          ready to move for the immediate production of all such material
          promptly after indictment.

Christopher W. Madel is a partner with Robins Kaplan Miller & Cerisi LLP and is
regularly sought after to represent corporations and individuals in their most sensitive,
serious, and grave matters. He has extensive trial experience in a variety of complex civil
and criminal litigation, including multimillion-dollar business disputes and white-collar
criminal matters, and has obtained jury trial acquittals for a variety of alleged crimes,
including federal mail fraud, bank fraud, misapplication of bank funds, income tax
evasion, federal false statements (in income tax returns and otherwise under 18 USC §
1001), felony false imprisonment, felony first- and third-degree assault charges, and other
alleged crimes. His experience goes beyond the courtroom as well; he has led numerous
high-profile internal investigations of corporations and other entities relating to myriad
alleged violations of state and federal law, including the nationally publicized Fiesta Bowl
internal investigation, a $30-plus million fraud perpetrated on Best Buy, and allegations
of sexual misconduct leveled at the Minnesota Vikings.

Mr. Madel is a graduate of Macalester College (magna cum laude with highest honors)
and the University of Michigan Law School (cum laude). A former trial attorney with
the US Department of Justice in Washington, DC, he was named as “Attorney of the
Year” by the Minnesota Lawyer in 2012, he has been repeatedly recognized as a
“Super Lawyer” by his peers, and he is among the “Top 40 in Criminal Defense.”

Acknowledgment: I gratefully acknowledge the hard work, research, and diligence
of Aaron Thom with respect to this chapter. I would also like to thank Tom Brever,
Joe Friedberg, Bill Mauzy, and Jennifer Robbins for their insightful comments and
contributions, but I will respectfully accept the “thanks” for the one of them who
(correctly) noted that only criminal defense lawyers would agree with what I have
written here.

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