United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on the Defendant's Motion
for Production of Physical Evidence [Doc. 72], which the
Government opposes. After reviewing the motion, the
Government's response, and Defendant's reply, the
Court concludes that the motion should be granted.
AND PROCEDURAL BACKGROUND
February 9, 2016, the grand jury indicted Defendant Otis
Leonard Ross, Jr. (“Ross”) on one count of
possession with intent to distribute 500 grams or more of
methamphetamine. [Doc. 10] On May 19, 2017, Ross requested a
viewing of all evidence seized by the Drug Enforcement
Administration (“DEA”) at the time of Ross'
arrest. On May 25, the DEA informed Ross that only non-drug
evidence would be available for viewing at the DEA facility
in Albuquerque, and that the drug evidence was being held at
the DEA laboratory in Dallas, Texas. On June 5, 2017, Ross
made a written request inspection of the drug evidence, which
the Government refused. On June 6, 2017, Ross filed the
motion currently before the Court.
sets forth the types of information the government must
disclose to the defendant upon his request:
books, papers, documents, data, photographs, tangible
objects, buildings or places, or copies or portions of any of
these items, if the item is within the government's
possession, custody, or control and: (i) the item is material
to preparing the defense; (ii) the government intends to use
the item in its case-in-chief at trial; or (iii) the item was
obtained from or belongs to the defendant.
Fed. R. Crim. P. 16(a)(1)(E).
defendant must make a prima facie showing of materiality
before he is entitled to obtain requested discovery. See
United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.
1990). “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.” Id. The term
“defense” means an argument in response to the
prosecution's case-in-chief, i.e., an argument
that refutes the government's claims that the defendant
committed the crime charged. See United States v.
Armstrong, 517 U.S. 456, 462 (1996). To be material, the
evidence must bear some abstract, logical relationship to the
issues in the case such that pretrial disclosure would enable
the defendant to significantly alter the quantum of proof in
his favor. United States v. Lloyd, 992 F.2d 348,
350-51 (D.C. Cir. 1993).
prima facie materiality is not a heavy burden; evidence is
material when there is a strong indication that it
“will play an important role in uncovering admissible
evidence, aiding witness preparation, corroborating
testimony, or assisting impeachment or rebuttal.”
Id. at 351 (internal quotations omitted).
Nonetheless, the threshold showing of materiality is
essential because ordering the government to produce
discovery absent such a showing is inconsistent with Rule 16.
Mandel, 914 F.2d at 1219; Jordan, 316 F.3d
at 1250 (noting that defendant must make specific request for
item, together with explanation as to how it will be helpful
case in which Ross is accused of possession with intent to
distribute methamphetamine, the parties do not dispute that
the drug evidence is a tangible object, that the Government
has possession and control of it, or that the drug evidence
is “material” within the meaning of Rule 16. Doc.
74 at 1 (“the Government does not dispute that the
evidence in the [DEA's] possession is material”).
In fact, it is no exaggeration to say that in such a case,
the drug evidence is probably the most central piece of
evidence to the prosecution. Ross argues that he is entitled
to inspect this evidence because: (1) Rule 16 grants him that
right; (2) he wishes to evaluate whether the drug evidence
appears to be the same as that depicted in the photographs
taken by the Government, particularly in light of the fact
that Ross was not present when those photographs were taken;
(3) physical inspection could lead to questions regarding
weight of the substance and its similarity to substance
depicted in the Government's photos; and (4) inspection
could raises issues related to chain of custody. The Court
agrees with Ross that Rule 16(a)(1)(E) requires the
Government to disclose the drug evidence to him because it is
not only material, but also was obtained from Ross.
the reasons offered by the Government alter this conclusion.
The Government contends that the request for inspection is
unnecessary because the Government has already provided Ross
with photographs of the drugs and the lab reports. As a
corollary to this argument, the Government contends that it
is simply too burdensome to transfer the evidence to the
District of New Mexico from the DEA lab in Dallas. The
Government cites United States v. Slough, 22
F.Supp.3d 1 (D.D.C. 2014) in support of its position, arguing
that a “substantial and meaningful” production of
records related to an object can suffice instead of
production of the object itself. In Slough the
objects at issue were eleven military vehicles that were
damaged in a shoot-out in Baghdad, Iraq. Id. at 3.
However, that case does not support the Government here.
First, unlike the drug evidence in this case, the vehicles in
Slough were not obtained from the defendants and
therefore did not satisfy that portion of Rule 16(a)(1)(E).
Second, the vehicles in Slough were in situ
in Iraq, where the alleged criminal conduct took place, and
therefore the location of the evidence was not the result of
the Government's actions. In contrast, here the
Government of its own volition chose to move the drug
evidence outside of the jurisdiction in which this case is
being prosecuted, and now wishes to avoid returning it.
Finally, in Slough the burden to the Government in
producing the evidence was immense. According to the opinion,
the Government claimed that transporting the vehicles by sea
would cost $190, 000 and take seven months, while moving them
to the U.S. via air carrier would cost over $1.7 million and
take six weeks. Id. at 5. The court found this to be
unreasonable, not only because of the costs involved, but
also because the defendants had made their request a mere ten
weeks prior to trial. Id. at 5-6. Thus, granting the
defendants' request would have caused a lengthy delay of
the trial. By comparison, in this case we have 500 grams or
more of methamphetamine, plus container(s), to be transported
from Dallas to Albuquerque, and the Government has provided
the Court with no information regarding the cost of
transport. However, common sense dictates that the cost and
time to transport this evidence would be negligible compared
to the facts in Slough. In short, the Court finds
the Government's argument unconvincing.
the Government contends that Ross has not explained why he
wants to inspect the evidence or how it would aid his
defense. However, as summarized above, Ross has explained his
reasons for wanting to inspect the drug evidence. Further,
the drug evidence is at the heart of a "possession with
intent" charge. Ross has the right to see that evidence
and determine if the objects are the same as those that were
confiscated from him, in both appearance and weight.
the Government complains that the parties are close to
reaching a plea agreement, and Ross has not demonstrated how
inspecting the evidence will contribute to resolution of the
case. First, the Government provides no authority stating
that a defendant who has discussed a possible plea with the
Government may not inspect evidence that he is otherwise
entitled to under Rule 16 unless he first shows how such
inspection would assist the parties in reaching an agreement.
The Court is unaware of any such requirement, and in fact the
Government's argument makes little sense, for ...