                     REVISED, January 17, 2001

                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 99-10531



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellant,


                               VERSUS


        BOYCE MARK GARRETT; LARRY DON KEITH; KENNETH VERNON
         RYDEEN; JIMMY DALE SULLIVAN; MICHAEL DEAN WOODARD;
             STEVEN CRAIG FINKLEA; AUSTEEN HARRIS KEITH;
                 DALE ZANE KEITH; GLENN DALE WILCOX,

                                             Defendants-Appellees.




           Appeals from the United States District Court
                 For the Northern District of Texas
                         December 29, 2000


Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH*, District
Judge.

DeMOSS, Circuit Judge:

                         I.   INTRODUCTION

      In this interlocutory appeal, the government seeks review of



  *
     District Judge of the Northern District of Texas, sitting by
designation.
an order of the district court, which was entered the day of trial

and which excluded 25 of its witnesses in a complex, multi-

defendant conspiracy case involving the alleged adulteration of

milk. The district court itself recognized that exclusion of these

witnesses was tantamount to a dismissal of some of the charges

against the moving defendants.               This appeal boils down to one

relatively uncomplicated issue; that is, whether the district court

abused its discretion by imposing the rather draconian sanction of

excluding the government’s witnesses from trial for discovery

violations which the court itself found not to have been made in

bad faith.       For the reasons discussed below, we find that the

district court abused its discretion.              We, therefore, VACATE the

district      court’s   sanctions    order     excluding    the    government’s

witnesses and REMAND this matter for further proceedings.

                               II.   BACKGROUND

      The underlying cause of action giving rise to the criminal

indictments in this case involves a complex and massive, long-term

conspiracy      in   which    more   than     30   dairy   farmers    and     milk

transporters allegedly added water to milk shipments along various

and overlapping dairy routes in order to increase both the weight

and   value    of    milk   shipments.       The   indictment     described    how

Associated Milk Producers, Inc. (“AMPI”), which is a marketing

corporation for dairy farmers, operates a milk processing plant in

Sulphur Springs, Texas, to which drivers it hired would bring milk



                                         2
from individual dairy farms along each driver’s specified route.

The route drivers had the responsibility of measuring the quantity

of milk received from each dairy farm and had to take samples of

each shipment received from each farm before commingling the milk

in the tanker truck.     Once delivered to the processing plant, the

milk was to be tested under standards put forth by the Milk

Marketing Administration (“MMA”), which is a subdivision of the

U.S. Department of Agriculture.

     The     government’s   theory   was     that     various   individuals,

including route drivers, added water to the milk trucks along

delivery routes.      To prove its case, the government intended to

rely on both scientific data, that is, sample test composition

reports for the milk tanker trucks, and testimony from cooperating

witnesses.     These witnesses were drivers and other AMPI staff

members who knew of or were aware of the defendants’ schemes to

water down the milk.        Most of the testifying witnesses whose

testimony was ultimately excluded by the district court were

defendants who pleaded guilty to one count of the indictment in

exchange for dismissal of the remaining counts against them and for

consideration of a downward sentencing departure in light of their

willingness to cooperate and testify truthfully in the government’s

case against the remaining defendants.

     Along     with   substantive        violations    of   specific   milk

adulteration statutes, specifically 21 U.S.C. §§ 331(a), 331(a)(2),

the indictments charged substantive mail fraud violations and

                                     3
various conspiracies to: 1) defraud the government by obstructing

milk regulation; 2) violate the milk adulteration statutes; and 3)

commit mail fraud.   The initial indictment, entered on July 15,

1998, charged 29 defendants with these various milk adulteration-

related offenses.

      The case was initially set for trial on September 28, 1998,

but was rescheduled for November 30, 1998, then for January 11,

1999, and then again for March 15, 1999 (with a February 12th

deadline for discovery).1    On January 13, 1999, a superseding

indictment was returned naming four additional defendants,2 and on

March 3, 1999, a second superseding indictment was returned.     Four

days before the March 15th trial date, the district court held a

hearing on various motions, and the following day, March 12th, it

entered an order continuing the trial once again to April 5th.   The


  1
     By November 1998, as a result of numerous guilty pleas, only
five defendants remained in the case (Appellees Garrett, Larry Don
Keith, Rydeen, Sullivan, and Woodard). The original indictment was
returned in July 1998. In August 1998, fourteen defendants pleaded
guilty; in September, four more pleaded guilty; in October, two
more pleaded guilty; in November, three more pleaded guilty; and
one more defendant was dismissed from the indictment by virtue of
his wife having entered a guilty plea. Each of these defendants
agreed to cooperate with the government, and all bargained to have
their sentencing hearings postponed until after dispositions had
been reached with respect to all defendants charged in the
indictments. Each was presumably hoping for a 5K1.1 downward
departure based on substantial assistance.
  2
     These additional four were Finklea, Austeen and Dale Keith,
and Wilcox.   Combined with the five remaining defendants as of
November 1998, those being Garrett, Larry Don Keith, Rydeen,
Sullivan, and Woodard, see supra note 1, we have our nine named
appellees.

                                4
matters addressed in the March 11th hearing dealt with allegations

that the prosecutor declined to produce letters written to people

who were not expected to testify at trial (“target letters”),

urging them to admit their involvement to get the benefit of

cooperation at sentencing, and that the prosecutor also declined to

provide investigators’ notes of interviews with or questionnaires

as to approximately 125 people, in some of which various defendants

denied any involvement, a position which was inconsistent with

their pleas and which, therefore, constituted impeachment material

that should have been disclosed.    In its March 12th order, the

district court directed the government to produce within five days

of that order, copies of “any [target] letters from government

counsel or its agents attempting to secure testimony from or

against any person who will be testifying in the government’s case-

in-chief . . . .”    The district court also continued the trial

until April 5th to permit production of these materials.   On March

16th and 17th, the government produced some materials in response

to the March 12th order.    On March 31st, and in response to a

defense motion that all correspondence with any individuals, not

just correspondence related to testifying witnesses, be produced,

the district court removed the “case-in-chief” limitation of its

March 12th order and ordered that all such target letters be

produced by April 2nd.

     On March 23rd, all of the defendants-appellees had also moved


                                5
jointly for relief under Brady,3 claiming that the government had

withheld numerous categories of exculpatory materials, including

the letters referenced in the March 12th order.                    On April 1st, the

district court denied the defendants’ motion, noting that none of

the materials cited by the defendants constituted Brady material

for which the government had an affirmative duty to disclose.                     The

district court did note, however, that the investigators’ notes and

screening questionnaires were to be produced as “Brady impeachment

material” because they revealed potentially inconsistent statements

made by the various defendants.                     Yet, no defense counsel ever

denied having been been told by the prosecutor about these items

and their content.

          Late on April 2nd, the government produced documents to the

defense as directed by the district court’s March 31st modification

of       its   March   12th    order.     The       government    supplemented   this

production on the morning of April 5th (the trial date) with a

stack of documents (8 inches thick), a good portion of which was

duplicative of previously provided materials.                       Defense counsel

complained to the district court about the tardy production, and

while some conceded that a brief continuance would suffice to take

the sting        out   of     the   delayed       production,    others   requested   a

dismissal based on discovery violations.

          On April 5th and 6th, the district court held additional


     3
          Brady v. Maryland, 83 S. Ct. 1194 (1963).

                                              6
hearings on the defendants’ various motions to dismiss or for

sanctions regarding the government’s alleged failure to timely

produce discovery materials, and it ultimately struck 25 of the

government’s witnesses on the afternoon of the 5th.    The district

court ordered excluded from trial any witness as to whom a target

letter was required to be produced by the court’s March 12th order

(requiring production by March 17th), but as to which such letter

was tardily produced.     The court noted that after the March 11th

hearing, it had determined, and the government should have been

aware that, such target letters were Brady materials which it had

an obligation to produce.4   The district court did not sanction the

government’s failure to timely disclose the materials ordered

produced after April 2nd under the March 31st modification of the

March 12th order (i.e., the addition of any target letters to non-

testifying witnesses and the addition of the investigators’ notes).

A written order to the effect of the sanctions orally ordered was

entered on April 9th, and in it, the district court stated “[t]he

court does not question the government’s good faith.” The district

court went on to state:



  4
     We note that this is inconsistent with the fact that, in its
April 1st order, the district court explicitly held that the target
letters, as one of the categories of materials for which the
defendants’ decried a failure to disclose, were not Brady
materials. Thus, the government cannot be said to have been on
notice that such letter were even Brady materials until the
district court entered its order on March 12th requiring disclosure
within five days thereafter.

                                  7
            even assuming the government’s untimely production
            ultimately would not have adversely impacted the
            defense’s    trial    strategy,   it    nonetheless
            unquestionably adversely impacted the organized and
            efficient preparation for trial by defense counsel
            and, for that matter, the Court.       Neither the
            defense nor the Court should be forced to continue
            to suffer the government’s last-minute production
            of documents and the resulting motions and hearings
            the untimely productions have caused, particularly
            when those untimely productions have come on days
            immediately preceding, and even the day of, trial.

       The government has timely filed this interlocutory appeal of

the district court’s sanctions order, arguing that the district

court abused its discretion by imposing a sanction more severe than

was necessary to effect compliance with discovery orders and by

failing to weigh all of the factors required by this Circuit’s

precedent.

                       III.       STANDARD OF REVIEW

       We review a district court’s imposition of sanctions for

discovery    violations     for    an   abuse     of   the   district     court’s

discretion.   See United States v. Katz, 178 F.3d 368, 372 (5th Cir.

1999).      The   government      concedes    that     the   district    court’s

discretion is “admittedly broad.”            However, notwithstanding this

broad discretion, we have consistently held that a district court,

when    considering   the    imposition      of    sanctions    for     discovery

violations, must carefully weigh several factors, and if it decides

such a sanction is in order, it “should impose the least severe

sanction that will accomplish the desired result – prompt and full



                                        8
compliance with the court’s discovery orders.”                    United States v.

Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982); see also Katz,

178 F.3d at 372.

                              IV.    DISCUSSION

     As   we   noted    in   Sarcinelli         and   Katz,   a     district    court

exercising     its   discretion     and       considering     the    imposition    of

sanctions for discovery violations should consider the following

factors: 1) the reasons why disclosure was not made; 2) the amount

of prejudice to the opposing party; 3) the feasibility of curing

such prejudice with a continuance of the trial; and 4) any other

relevant circumstances.       See Katz, 178 F.3d at 371 (citing United

States v. Bentley, 875 F.2d 1114, 1118 (5th Cir. 1989)).                       And as

noted above, in fashioning any such sanction, the district court

should impose only that sanction which is the least severe way to

effect compliance with the court’s discovery orders.                   Id.

     The government relies heavily on a decision from the Eleventh

Circuit extolling the principles of Sarcinelli, which, though not

controlling, is instructive. In United States v. Euceda-Hernandez,

768 F.2d 1307 (11th Cir. 1985), the court noted that by suppressing

governmental evidence in lieu of granting a continuance or recess,

“a trial judge may achieve a speedier resolution . . . and reduce

his docket, but he does so at the expense of sacrificing the fair

administration of justice and the accurate determination of guilt

and innocence.”        Id. at 1312.           In the government’s view, the

                                          9
district court’s       striking    of   25   of   its   witnesses,   which    the

district    court     itself   recognized     could     have   the   effect    of

eviscerating    the     criminal    indictment,       was   “tantamount   to   a

dismissal of charges . . . [and constituted] an undeserved windfall

to parties who were duly indicted based on probable cause to

believe they had committed federal crimes.”              The government urges

that if it violated any discovery order at all, it acted in good

faith, and that there was no measurable prejudice to the defendants

which could not have been cured by a short continuance.               Finally,

the government urges that less severe sanctions, such as personal

sanctions against the prosecutor, could have achieved the goal of

compliance with discovery orders.

     The defendants counter that the district court did not even go

far enough, as some sought dismissal of the indictment as a

sanction.    And likewise, the defendants do not feel that any less

severe sanction would suffice to ensure that the government would

comply with the district court’s discovery orders.              The defendants

contend that the record shows a pattern of misconduct by the

government that makes the sanctions chosen by the district court

mild, and they further contend that the sanctions were a valid

exercise of the district court’s power to sanction discovery

violations “as a prophylactic and punitive measure.”

     To determine whether the district court abused its discretion,

we must evaluate the exercise of discretion in light of our

precedent requiring that the district court fully and thoughtfully

                                        10
addressed each of the Sarcinelli factors noted.

                     A.   Reasons for non-disclosure

     We first consider the government’s reason for not timely

producing target letters for the 25 excluded witnesses.                 The

government explained to the district court that its failure to more

timely provide the target letters resulted from the fact that the

letters were in a separate binder that had been overlooked during

initial disclosures. As noted above, the district court explicitly

noted that the government did not violate its discovery orders in

bad faith and that its late production was the result of an

unintentional mistake.       Indeed, no improper motive was attributed

to the government’s tardy production.

     The government relies on a decision from the D.C. Circuit in

which the court held that such a severe sanction as suppression of

evidence would rarely be appropriate when the trial court finds the

violation not to have been made in bad faith and where a less

dramatic   remedy,    such   as   a   continuance,   would   mitigate   any

prejudice.    See United States v. Marshall, 132 F.3d 63, 70 (D.C.

Cir. 1998).   We note also that in our own decision in Sarcinelli,

we found the prosecutor’s complete failure to provide discovery at

all to be contumacious, but nevertheless, not deserving of the

harsh sanction of exclusion tantamount to a dismissal where a less




                                      11
severe sanction such as jailing the prosecutor or granting a

continuance was available.

     The district court’s own finding that the government’s tardy

disclosure was not in bad faith militates against the imposition of

a sanction so severe as to effectuate a dismissal of the charges

against certain defendants, especially where as discussed below,

other, less severe sanctions were available to mitigate against the

minimal prejudice suffered by the defendants in this case.

     The defendants rely on what they characterize as a pattern of

disclosure abuses, which indicates that the government’s untimely

disclosure was an intentional move designed to overwhelm the

defendants at the last minute so as to prevent them from being able

to utilize the disclosed target letters.        Despite the defendants’

characterization   of   their   21   separate   requests   for   discovery

throughout the many continuances of this case, the defendants

overlook the abundance of materials that were in fact timely

produced by the government and the fact that, as the district court

noted, the failure to timely provide the target letters as to the

25 witnesses was the result of an unintentional mistake.                We

conclude that the district court’s own findings are dispositive of

the good faith issue and that the reason for non-disclosure was a

mistake made in good faith.




                                     12
                 B.   Prejudice to the defendants

     The second Sarcinelli factor we must consider is whether the

defendants were unduly prejudiced by the tardy disclosure.     The

district court assumed that the late production would not prejudice

the defendants’ trial strategy, but it found that tardy disclosure

so close to the commencement of the trial “adversely impacted the

organized and efficient preparation for trial by defense counsel

and . . . the Court,” because it required the filing of motions and

the scheduling of hearings.

     We note that even though trial was set to commence on April

5th, the district court had already scheduled, at one defense

attorney’s request, a recess from Tuesday the 6th until Thursday

the 9th, to accommodate the attorney’s scheduled appearance for

oral argument before this Circuit.   The government properly notes

that the prejudice referred to in Sarcinelli is prejudice to the

defendants’ substantial rights, that is, injury to their right to

a fair trial, and that prejudice does not encompass putting trial

preparation into minor disarray. See United States v. Webster, 162

F.3d 308, 336 (5th Cir. 1998), cert. denied, 120 S. Ct. 83 (1999);

see also United States v. Neal, 27 F.3d 1035, 1050 (5th Cir. 1994).

As we noted in our decision in United States v. Martinez-Perez, 941

F.2d 295, 302 (5th Cir. 1991), the question of prejudice is whether

the defendant had time to put the information to use, not whether

some extra effort was required by defense counsel.


                                13
      Additionally, even if the district court determines that the

information was disclosed too late to be put to effective use, the

court must also determine that the lack of information created a

reasonable probability that the result would have been different.

See Kyles v. Whitley, 115 S. Ct. 1555 (1995).                   In order to

determine   in    this   case   whether     the   result   would   have    been

different, the district court should have considered all of the

materials that were in fact produced to evaluate whether the target

letters would have made a difference; however, when the government

attempted to make a record of the cumulative nature of the target

letters to show that the prejudice, if any, was minimal, the

district refused to grant it an opportunity to do so because of the

government’s “admission” of a discovery violation and the district

court’s assumption that damage to the defendants’ case was not

necessary to support the sanction.5          We have repeatedly held that

no prejudice exists when suppressed or newly discovered evidence is

cumulative.      See, e.g., United States v. Lowder, 148 F.3d 548, 551

(5th Cir. 1998); Allridge v. Scott, 41 F.3d 213, 217-18 (5th Cir.

1994).

      The precise materials that were deemed to be a discovery

violation   in    this   case   were   23   simple   target   letters     to   23

witnesses, a draft immunity agreement with a 24th witness, and a



  5
      This assumption contravenes the second Sarcinelli factor
requiring a full consideration of actual prejudice.

                                       14
target letter with a proposed offer agreement for a 25th witness.

Among the information already in the hands of the defendants at the

time these materials were tardily produced were the following: as

to 7 of the 25, the defense had other target letters with the same

message; as to those 7 plus 12 more, the defense had threatening

and coercive correspondence following up on target letters; and as

to 21 of the 25, the defense knew that they had pleaded guilty and

struck deals with the government and these 21 defendants' plea

agreements, including the dismissal of charges and the stated

possibility of a § 5K1.1 motion, were known to the defense.             Quite

simply, it should have come as no surprise to the defense that the

pleading   defendants     had    previously    received      target   letters

encouraging them to plead guilty.         As we noted in Webster, where a

defendant is impeached with his plea agreement and his memorialized

hope for a reduced sentence, additional information regarding

anticipated favors from the government in exchange for cooperation

is cumulative impeachment material that is not prejudicial if

untimely or undisclosed.        See Webster, 162 F.3d at 337-38.

     We find it highly unlikely that the failure to have the

undisclosed materials would have hindered the defense’s ability to

impeach the 25 excluded witnesses regarding their prior deals with

the government,   which    deals    might   call   in   to   question   their

motivation for testifying against the remaining defendants. In our

view, the district court completely overlooked the additional


                                     15
evidence that renders the target letters cumulative and, thus, a

minimizing factor of the prejudice suffered by the defendants.

             C.   Curing prejudice with a continuance

     The district court itself acknowledged in its April 1st order

denying the exclusion of various witnesses on Brady grounds that

continued violations of its discovery deadlines and scheduling

orders, in addition to “wreaking havoc” on the defense’s and the

Court’s ability to efficiently prepare for trial, “might require

additional continuances of the trial date.”     In doing so, the

district court implicitly recognized that a continuance was a

viable and likely consequence of tardy disclosure.

     Additionally, most of the defense attorneys conceded to the

district court that if there was going to be a continuance, it

would only need to be for two or three days.   Furthermore, as the

sanctioned materials were scheduled to be produced by 5:00 p.m. on

Friday, April 2nd, only two days prior to the actual disclosure on

Monday the 5th (the scheduled day of trial), and as the district

court had already planned to recess the trial from Tuesday the 6th

through Thursday the 8th, we conclude that a brief continuance of

several days would not have impacted either the district court’s

schedule or the defendants’ ability to efficiently prepare for

trial.

     In light of the absence of bad faith on the part of the

government, the minimal amount of substantive prejudice because of


                                16
the cumulative nature of the tardily disclosed materials, and the

availability of a much less severe sanction than striking witnesses

with the effect of eviscerating the government’s case, we find that

the district court could most certainly have eliminated the minor

prejudice with either a brief delay or a less severe sanction.

                       D.    Other relevant factors

     Sarcinelli     lastly    requires        that   the    district      court    also

consider   those     additional     matters      which          are   relevant     to   a

determination of whether sanctions are appropriate. The government

presents one main, but persuasive point regarding this factor,

which is that allowing such a harsh sanction to stand in these

circumstances essentially obliterates its case against individuals

who were duly indicted based upon probable cause to believe they

committed crimes against the government.                   As we have stated, a

district court “exceeds the proper bounds of its power to order

dismissal of an indictment . . . when it fails to consider whether

less extreme sanctions might maintain the integrity of the court

without punishing the United States for a prosecutor’s misconduct.”

United States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988)(citing

Sarcinelli,   667    F.2d    at   6-7)).        Here,      we    conclude   that    the

exclusion of these 25 witnesses, with the effect of eliminating or

substantially      diminishing     the     government’s           case   against     the

defendants-appellees, was an excessive sanction and an abuse of the

district court’s discretion, especially where a brief continuance


                                         17
would have cured any prejudice and other sanctions were available

to ensure that the prosecutor would comply with the district

court’s discovery orders.

                                 V.   CONCLUSION

     Based upon our full consideration of the Sarcinelli factors,

which   should      have   guided     the    district   court’s      decision    on

sanctions,     we    conclude    that    the    district     court    abused    its

discretion in excluding 25 of the government’s witnesses.                       The

government acted not in bad faith, the prejudice to the defendants

was minimal in light of the cumulative nature of the untimely

disclosures, and any prejudice could have been cured with a brief

continuance.        For these reasons, we VACATE the district court’s

order   of   sanctions     and   REMAND      this   matter   for     such   further

proceedings as are appropriate.

                    VACATED and REMANDED.




                                        18
FISH, District Judge, concurring:

        Because I believe there were no “discovery” violations in this case, I readily agree with the

majority that the district court abused its discretion by imposing the sanction of excluding twenty-five

witnesses for the government. I am troubled, however, by the majority’s uncritical acceptance of the

parties’ arguments that this is a “disco very” dispute to which the analysis of cases such as United

States v. Sarcinelli, 667 F.2d 5 (5th Cir. 1982), and United States v. Katz, 178 F.3d 368 (5th Cir.

1999), may be applied. Those cases construct an analytical framework for the imposition of sanctions

under Rule 16, F.R. CRIM. P., which -- by its terms at least -- is not applicable in this situation.1

        Rule 16 is entitled “Discovery and Inspection.” If that rule were applicable, the pertinent part

would be subsection (a), which is denominated “Governmental Disclosure of Evidence.” Subsection

(a) in turn is divided into two parts: “(1) Information Subject to Disclosure” and “(2) Information Not

Subject to Disclosure.” The information “subject to disclosure” in part (a)(1) falls into five

categories: “(A) Statement of Defendant”; “(B) Defendant’s Prior Record”; “(C) Documents and

Tangible Objects”; “(D) Reports of Examinations and Tests”; and “(E) Expert Witnesses.” All other

documents in the possession of the government, by virtue of Rule 16(a)(2) (“Information Not Subject

to Disclosure”), are -- except as otherwise required by the Jencks Act, 18 U.S.C. § 3500 -- non-

discoverable.

        The “target” letters here are not described by any of the categories in Rule 16(a)(1). The

defendants, apparently cognizant of this fact, did not seek the letters under the aegis of Rule 16 but

under the principles of Brady v. Maryland, 373 U.S. 83 (1963). Brady and its progeny, however,

arise no t in the context of pretrial criminal discovery but in post-judgment collateral review of


    1
        Rule 16(d)(2) authorizes the imposition of sanctions for failure “to comply with this rule.”
criminal convictions. See United States v. Agurs, 427 U.S. 97, 103 (1976) (“The rule of Brady v.

Maryland . . . arguably applies in three . . . situations. Each involves the discovery, after trial of

information which had been known to the prosecution but unknown to the defense.”) (emphasis

added). The Brady line of cases announces no rule of discovery but the self-executing constitutional

rule that due process requires disclosure by the prosecution of evidence favorable to the accused that

is material to guilt or punishment. 2

        In a subsequent gloss on Brady, the Supreme Court has noted that “[a]n interpretation of

Brady to create a broad, constitutionally required right of discovery would entirely alter the character

and balance of our present system of criminal justice.” United States v. Bagley, 473 U.S. 667, 675

n.7 (1985) (internal quotation marks and citation omitted). This Court too has recognized both that

Brady “is not a pretrial remedy,” United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975), and that

Brady is not “applicable at pre-trial stages.” United States v. Frick, 490 F.2d 666, 671 (5th Cir.

1973), cert. denied, 419 U.S. 831 (1974). It has also stated that “Brady is not a discovery rule, but

a rule of fairness and minimum prosecutorial obligation.” United States v. Beasley, 576 F.2d 626,

630 (5th Cir. 1978), cert. denied, 440 U.S. 947 (1979).

        Rule 16, of course, explicitly requires pretrial discovery and production of the material

described in the rule, while Brady, because it is not a discovery rule, contains no such timing



    2
        See United States v. Washington, 669 F.Supp. 1447, 1451 (N.D. Ind. 1987):

            The constitution requires the prosecution to observe this right [i.e., the right
            under Brady to disclosure of exculpatory or mitigating evidence] with
            vigilance: a court order is unnecessary since the duty to protect the right
            already exists. An order to produce Brady materials makes as little sense as
            an order to preserve the accused’s right to be free from unreasonable searches
            and seizures.

                                                 - 20 -
requirements. United States v. Harris, 458 F.2d 670 (5th Cir.), cert. denied, 409 U.S. 888 (1972),

highlights the importance of this distinction. There, the defendants contended that the prosecution

violated Brady by not producing to them before trial the written statement of government witness

John L. Johnson, who was, in the language of the opinion, a “conspirator-turned-accuser.” 458 F.2d

at 675. The defendants claimed prejudice as a result of the non-product ion because they did not

know the substance of Johnson’s testimony before trial and because there was a conflict between

Johnson’s testimony and that of another government witness regarding the whereabouts of one of the

defendants, thereby raising an issue of Johnson’s credibility. Id. This Court held, however, that there

was no obligation under Brady to produce the statement before trial, since the Jencks Act made it

producible only after Johnson testified. Id. at 675-76. While the statement of the witness in Harris

was surely as valuable to the defense for impeachment as the “target” letters at issue here, this Court

found, as a matter of law, that no Brady violation had occurred.

       The distinction between Rule 16 and Brady as the basis of disclosure is also significant

because the question of whether Rule 16 has been violated can be determined before or during trial,

and appropriate sanctions imposed in the manner prescribed by the rule. See Rule 16(d)(2), F.R.

CRIM. P. With the backward-looking focus of Brady, however, whether a Brady violation has

occurred,3 indeed whether the government even had a Brady obligation,4 can only be


   3
       See United States v. Starusko, 729 F.2d 256, 261 (3rd Cir. 1984):

           We recognize that, generally, it is difficult to analyze, prior to trial, whether
           potential impeachment evidence falls within Brady without knowing what role
           a certain witness will play in the government’s case.
   4
       In its latest pronouncement on Brady, Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme
Court emphasized the discretion of the prosecutor, not the trial judge, in deciding what evidence is
                                                                               (continued...)

                                                - 21 -
   4
    (...continued)
producible under Brady:

          [T]he Constitution is not violated every time the government fails or chooses
          not to disclose evidence that might prove helpful to the defense. We have
          never held that the Constitution demands an open file policy . . . and the rule
          in Bagley [United States v. Bagley, 473 U.S. 667 (1985), one of Brady’s
          progeny] . . . requires less of the prosecution than the ABA Standards for
          Criminal Justice, which call generally for prosecutorial disclosures of any
          evidence tending to exculpate or mitigate.

                                              ***
          While the definition of Bagley [and hence Brady] materiality in terms of the
          cumulative effect of suppression must accordingly be seen as leaving the
          government with a degree of discretion, it must also be understood as
          imposing a corresponding burden. On the one side, showing that the
          prosecution knew of an item of favorable evidence unknown to the defense
          does not amount to a Brady violation, without more. But the prosecution,
          which alone can know what is undisclosed, must be assigned the consequent
          responsibility to gauge the likely net effect of all such evidence and make
          disclosure when the point of “reasonable probability” [i.e., that disclosure of
          the evidence would produce a different outcome] is reached.

                                                ***
          [E]ven if due process were thought to be violated by every failure to disclose
          an item of exculpatory or impeachment evidence . . ., the prosecutor would
          still be forced to make judgment calls about what would count as favorable
          evidence, owing to the very fact that the character of a piece of evidence as
          favorable will often turn on the context of the existing or potential evidentiary
          record. Since the prosecutor would have to exercise some judgment even if
          the State were subject to this most stringent disclosure obligation, it is hard
          to find merit in the State’s complaint over the respo nsibility for judgment
          under the existing system, which does not tax the prosecutor with error for
          any failure to disclose, absent a further showing of materiality.

                                               ***
          This means, naturally, that a prosecutor anxious about tacking too close to the
          wind will disclose a favorable piece of evidence. See Agurs, 427 U.S. at 108
          (“[T]he prudent prosecutor will resolve doubtful questions in favor of
          disclosure”).

                                                                                (continued...)

                                               - 22 -
determined after the trial is over.5 This is true because disclosure under Brady is required only if the

evidence is material, but materiality can be judged only in hindsight, in the context of all the evidence

presented. See Agurs, 427 U.S. at 112-13 (evidence is material if its omission creates a reasonable

doubt that, in light of the record as a whole, did not otherwise exist); Kyles v. Whitley, 514 U.S. 419,

433-37 (1995) (evidence is material if its omission, when the entire record is considered, “undermines

confidence in the outcome of the trial.”); Porretto v. Stalder, 834 F.2d 461, 464 (5th Cir. 1987)

(“Omitted evidence is deemed material when, viewed in the context of the entire record, it creates

a reasonable doubt as to the defendant’s guilt that did not otherwise exist.”).

        What we have in this case, therefore, is a sanction against the government for tardily

producing certain “target” letters which, under Brady, the government may have had no obligation



    4
     (...continued)
Id. at 436-37, 439 (emphasis added) (some citations omitted).

        These passages clearly place responsibility on the prosecutor, rather than the trial judge, to
determine not only whether a given piece of evidence should be produced but also when (i.e., “when
the point of ‘reasonable probability’ [of a different outcome] is reached.”).
    5
        One court has gone so far as to say that “[g]enerally, a defendant must be tried and convicted
before any due process violation [under Brady] becomes of consequence.” Commonwealth of
Northern Marina Islands v. Campbell, 1993 WL 614809 at *3 (Sup. Ct. N. Mariana Isl. July 22,
1993), aff’d, 42 F.3d 546 (9th Cir. 1994). Other courts, while not going so far, say that the right to
due process is not violated if the Brady material is disclosed in time for the defendant to use it
effectively at trial, even if the material should have been disclosed earlier. United States v. O’Keefe,
128 F.3d 885, 898 (5th Cir. 1997), cert. denied, 523 U.S. 1078 (1998); United States v. Ellender,
947 F.2d 748, 757 (5th Cir. 1991); United States v. Campagnuolo, 592 F.2d 852, 860-61 (5th Cir.
1979). See also United States v. Kubiak, 704 F.2d 1545, 1549-50 (11t h Cir.) (in determining
whether nondisclosure of exculpatory information constituted a denial of due process, “the focus is
not upon the fact of nondisclosure, but upon the impact of the nondisclosure on the jury’s verdict.”),
cert. denied, 464 U.S. 852 (1983); United States v. Starusko, 729 F.2d 256, 262 (3rd Cir. 1984) (“No
denial of due process occurs if Brady material is disclosed in time for its effective use at trial.”)
(quoting United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983), cert. denied, 464 U.S. 1048
(1984)).

                                                 - 23 -
to produce at all. We simply cannot tell, without the benefit of a full trial record, whether the “target”

letters were material within the meaning of Brady. See United States v. Kubiak, 704 F.2d 1545, 1550

(11th Cir.), cert. denied, 464 U.S. 852 (1983) (Brady not violated by untimely disclosure of co-

conspirator statement, which was utilized at trial, because the focus of due process violation is “not

upon the fact of nondisclosure, but upon the impact of nondisclosure on the jury’s verdict.”); United

States v. Starusko, 729 F.2d 256, 262 (3rd Cir. 1984) (since “[t]here can be no violation of Brady

unless the government’s non-disclosure infringes the defendant’s fair trial right,” precluding key

government witness from testifying as sanction for non-disclosure of Brady material was abuse of

discretion). Unless Brady mandated production of these letters, Rule 16(a)(2) made them non-

producible; if the letters were non-producible, the government could hardly be sanctioned for doing

what it was legally entitled to do, i.e., not producing them. Certainly, the government could not be

sanctioned for simply producing the letters late, without any showing of prejudice to the defendants.

        I would hold that Brady does not create a right to pretrial discovery in criminal cases and that

the government violated no Brady obligation in this case. Because no sanction, in my opinion, was

appropriate, I agree with the majority that the “draconian” sanction of excluding twenty-five

government witnesses was an abuse of discretion.6


    6
        Even if some sanction were appropriate, the exclusionary rule fashioned by the district court
was, in my view, too harsh. As noted in the majority opinion, the district court found that the tardy
production here was not the result of bad faith. The Supreme Court has discussed the costs and
benefits of the exclusionary rule for Fourth Amendment violations in terms which appear to me to be
equally applicable to this case:

            Whether the exclusionary sanction is appropriately imposed in a particular
            case . . . must be resolved by weighing the costs and benefits of preventing the
            use in the prosecution’s case in chief of inherently trustworthy . . . evidence
            . . ..
                                                                                  (continued...)

                                                 - 24 -
   6
    (...continued)
        The substantial social costs exacted by the exclusionary rule . . . have long
        been a source of concern. Our cases have consistently recognized that
        unbending application of the exclusionary sanction to enforce ideals of
        governmental rectitude would impede unacceptably the truth-finding functions
        of judge and jury. An objectionable collateral consequence of this interference
        with the criminal justice system’s truth-finding function is that some guilty
        defendants may go free or receive reduced sentences as a result of favorable
        plea bargains. Particularly when law enforcement officers have acted in
        objective good faith or their transgressions have been minor, the magnitude
        of the benefit conferred on such guilty defendants offends basic concepts of
        the criminal justice system. Indiscriminate application of the exclusionary
        rule, therefore, may well generat[e] disrespect for the law and administration
        of justice.

United States v. Leon, 468 U.S. 897, 906-08 (1984) (internal quotation marks and citations omitted).

                                               - 25 -
