                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 9 2005
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellant,
                                                       No. 04-3233
 v.                                              (D.C. No. 03-20167-JWL)
                                                        (D. Kan.)
 MAURICE IVORY,

          Defendant - Appellee.


                             ORDER AND JUDGMENT *


Before SEYMOUR, McWILLIAMS, and KELLY, Circuit Judges. **


      The government appeals from the district court’s order granting

Defendant-Appellee Maurice Ivory’s motion to exclude evidence as a sanction for

a discovery violation. Mr. Ivory was indicted for possession with intent to

distribute crack cocaine, possession of a firearm in a drug trafficking crime, and

being a felon in possession of a firearm. The evidence excluded was DNA testing

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
tending to show that Mr. Ivory had handled a firearm. Our jurisdiction arises

under 18 U.S.C. § 3731, and we reverse. On remand the district court may

consider a lesser sanction than exclusion of the DNA evidence.



                                    Background

      On January 8, 2004, after arraignment, a standard order of discovery was

entered requiring the government to copy or let the defendant copy “[w]ithin a

reasonable time period after arraignment[:]”

      [a]ny results or reports of . . . scientific tests or experiments, or
      copies thereof, which are within the possession, custody or control of
      the government, the existence of which is known, or by the exercise
      of due diligence may become known, to the attorney for the
      government, and which are material to the preparation of a defense or
      are intended for use by the government as evidence in chief at the
      trial.

Aplt. App. 17-18; see also Fed. R. Crim. P. 16(a)(1)(F). With a jury trial

scheduled for July 6, 2004, defense counsel on June 2, 2004, sought to have an

independent fingerprint analysis performed on a gun found in a vehicle used by

Mr. Ivory. Although fingerprint and DNA testing by local law enforcement had

occurred in October 2003, the government contends that the report never made it

to its investigative file. Once the government obtained the report, it learned that

the gun had been swabbed for DNA, a procedure not requested by the

government.


                                         -2-
      The government then advised defense counsel that the DNA swab was

being tested, and furnished the curriculum vitae of its DNA expert who was

scheduled to be on leave during the July 6, 2004, jury trial. Upon learning the

inculpatory results of the DNA test, the government advised defense counsel and

proposed various alternatives to the expert’s appearance at the July 6 trial.

Ultimately, defense counsel indicated that he would oppose a continuance or a

deposition of the DNA expert. The government filed a motion so requesting, and

defense counsel filed a motion to exclude the DNA evidence on the grounds that

the government had failed to comply with the discovery order.

      The district court granted defense counsel’s motion, applying the factors in

United States v. Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988); see also Fed. R.

Civ. P. 16(d)(2)(C). The court found that the government had violated the

discovery order by not exercising due diligence to obtain and produce the report

in a timely fashion, but it had not acted in bad faith. According to the district

court, Mr. Ivory was prejudiced because he did not receive the results of the DNA

test implicating him until June 22, leaving too little time for defense counsel to

procure an expert to meet the DNA evidence at trial. The court acknowledged

that it could continue the trial to allow Mr. Ivory an adequate time to prepare

consistent with the Speedy Trial Act. But the court held that such a continuance

would prejudice Mr. Ivory because, should he be unable to rebut the DNA


                                         -3-
evidence after a continuance, he would have been better off with the July 6 trial

date, as the government’s DNA expert was not available, or not available in

person.

       In excluding the DNA evidence, the court placed the most weight on a

deterrence rationale–deterring the government’s future non-compliance with its

discovery orders. The court noted that in some cases a sanction may be necessary

even absent prejudice to the defendant. As support for this rationale, the court

catalogued discovery problems in four unrelated criminal cases. The court noted

that the government attorneys were overworked, but more attention needed to be

paid to complying with discovery obligations earlier, rather than later, so as to

avoid these disputes which often resulted in delay and continuances. Aplt. App.

167.



                                     Discussion

       We review the district court’s sanction for an abuse of discretion. Wicker,

848 F.2d at 1060. In Wicker, we explained:

       When the government fails to comply with a discovery order, the
       factors the district court should consider in determining if a sanction
       is appropriate are (1) the reasons the government delayed producing
       the requested materials, including whether or not the government
       acted in bad faith when it failed to comply with the discovery order;
       (2) the extent of prejudice to the defendant as a result of the
       government's delay; and (3) the feasibility of curing the prejudice


                                         -4-
      with a continuance. 1

Id. Though not delineating the bounds of the district court’s discretion, these

factors are subject to the principle that any sanction should be the least severe to

accomplish compliance with the court’s discovery orders. Id. at 1060. In the

absence of prejudice, the court must also consider whether such a sanction is

necessary to maintain the “integrity and schedule” of the court. Id. at 1061.

      Judged against these principles, the district court abused its discretion. We

do not fault the district court in finding that its discovery order had been violated,

and that such violation, while not in bad faith, was a product of inattention. Nor

do we fault the district court for finding that Mr. Ivory needed additional time to

meet the government’s DNA evidence. The district court expressly found that it

could have remedied the preparation problem with the grant of a continuance.

Aplt. App. 163. In such circumstances, a continuance, or a lesser sanction

accompanied by a continuance, ought to occur. United States v. Golyansky, 291

F.3d 1245, 1249 (10th Cir. 2002); see also United States v. Gonzales, 164 F.3d

1285, 1293 (10th Cir. 1999) (suggesting lesser sanctions such as censuring the



      1
         We have remarked that the third factor is “essentially irrelevant” when a
defendant opposes a continuance. United States v. Ivy, 83 F.3d 1266, 1281 (10th
Cir. 1996). Ivy did not consider the interests of the government in curing any
prejudice with a continuance, as opposed to exclusion, and possible lesser
sanctions. Given the posture of this case (exclusion of evidence by the district
court), the government has raised these issues.

                                         -5-
government attorney). “It would be a rare case where, absent bad faith, a district

court should exclude evidence rather than continue the proceedings.” Golyansky,

291 F.3d at 1249. This is not that rare case, particularly given that trial was not

underway (nor had a jury been empaneled), and a relatively short continuance

(one month according to defense counsel at oral argument) would solve the

problem with respect to Mr. Ivory without impairing his speedy trial rights.

      We reject the district court’s finding that Mr. Ivory would have suffered

prejudice because his trial date necessarily would have coincided with the absence

of the government’s DNA expert. See Aplt. App. 163 (“So ironically here while

the prejudice in that sense [inability to meet the DNA evidence] could be cured in

terms of giving the defendant some time to prepare, it would actually in many

ways work to the defendant’s disadvantage because it would play right into what

the government really wants to have, which is more time - - or, pardon me, an

opportunity to have the witness available in person.”). First, such a finding is

counter-factual. At the hearing, the government represented that its DNA expert

was under subpoena and would be at trial if the court refused to continue the trial

and would not allow for a deposition. Aplt. App. 154. Second, even assuming

that the witness would have been absent, such a claim of prejudice is inimical to

the truth-seeking function of a trial. Cf. Gonzales, 164 F.3d at 1292 (noting that

the discovery sanction must bear some relationship to the purposes the law is to


                                         -6-
serve including protection of the defendant and the public).

      Even in the absence of bad faith and prejudice, our cases suggest that the

district court theoretically could impose such a sanction. United States v. Russell,

109 F.3d 1503, 1511 (10th Cir. 1997); Wicker, 848 F.2d at 1061; but see

Gonzales, 164 F.3d at 1292 (noting that the Supreme Court has never approved

exclusion of evidence as a sanction absent a constitutional or statutory violation);

United States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999) (same). We see

two errors here. First, the court’s reliance upon four other cases involving the

government’s discovery conduct without prior notice to the government was error.

The government had no way of knowing that the district court would consider

these cases. Mr. Ivory certainly did not argue them in his motion. Aplt. App.

116-122. Thus, the government lacked any opportunity to discuss or distinguish

them. That has led to the government’s improper (but understandable) attempt to

supplement the record below and in this court and Mr. Ivory’s (also

understandable and legally justified) opposition. See Fed. R. App. P. 10(e)(1)

(permitting the district court to conform record to what occurred in district court);

United States v. Kennedy, 225 F.3d 1187, 1191 (10th Cir. 2000) (court of appeals

does not consider material not before the district court).

      Second, we question whether this case is the proper vehicle for finding

heretofore unannounced discovery violations by the government in those other


                                         -7-
cases. The cases do not appear to be related except in the most general terms--

three of four involve different government counsel. Cf. Taylor v. Illinois, 484

U.S. 400, 416 n.22 (1988) (unrelated discovery violations in other cases by

defense counsel normally could not preclude defendant’s right to present a

complete defense). In light of our resolution, we need not pass on whether the

discovery sanction of exclusion of evidence in one case may ever be based upon

discovery violations in another. On remand, the district court may consider a

lesser sanction.

      The dissent suggests that the district court’s suppression order should be

affirmed based upon its evaluation of the three Wicker factors. As discussed

above, we conclude that the district court’s evaluation of those factors was legally

erroneous. Alternatively, the dissent contends that the order is supported by

Taylor v. Illinois insofar as imposing a remedy of suppression and relying upon

discovery violations in other cases. Taylor is readily distinguishable and must be

read against its facts. That case involved a “willful and blatant” discovery

violation (failure to timely disclose a defense witness) that appeared to be an

attempt to gain tactical advantage and introduce fabricated testimony. Taylor,

484 U.S. at 416-417. These circumstances led the Court to conclude that “the

case fits into the category of willful misconduct in which the severest sanction is

appropriate.” Id. at 417. None of those circumstances are present here.


                                         -8-
      The Court in Taylor rejected reliance upon unrelated discovery violations to

impose such a sanction, although it did leave the door open to discovery

violations by the same attorney. Id. at 416 n.21. The problem with the latter

rationale in this case is that the judge expressly found that the reason for non-

disclosure of fingerprint reports in the other case “was understandable” because a

report had “mistakenly indicated that the fingerprint examination was negative.”

Aplt. App. at 165. The court predicted that had there been earlier disclosure, the

government would have found the error “and might have been able to alleviate the

necessity of a last minute fight.” Id. at 166. Regardless, this combined with what

occurred in this case does not justify the drastic sanction of exclusion of evidence

without consideration of lesser sanctions. As for discovery violations involving

other attorneys in the U.S. Attorneys’ Office, we continue to believe that there

must be a more developed record with notice and an opportunity to be heard

before making that link. That said, we hope the government’s statement in its

brief will cap the matter: “By his decision in this case, [the trial judge] has sent

the message loudly and clearly that the United States must be more consistently

proactive in monitoring law enforcement’s investigation and reporting, and that




                                          -9-
message has been received and understood.” Aplt. Br. at 15.

      REVERSED.



                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




                                      - 10 -
No. 04-3233, United States v. Ivory

Seymour, Circuit Judge, dissenting.


      Due to my disagreement with the majority’s conclusion that the district

court abused its discretion by excluding DNA evidence in response to the

government’s discovery violations, I respectfully dissent.

      On the day of Mr. Ivory’s arraignment, January 8, 2004, the district court

entered a General Order of Discovery and Scheduling in which it instructed the

parties to comply with the Federal Rules of Criminal Procedure, including Rule

16:

      Within a reasonable time period after arraignment, the government
      shall comply with Rules 12(d)(2) and 16 and Brady/Giglio. Pursuant
      to Rule 16, the government shall copy for the defendant or permit the
      defendant to inspect and copy or photograph: . . .

      Any results or reports of physical or mental examinations and or
      scientific tests or experiments, or copies thereof, which are within
      the possession, custody or control of the government, the existence of
      which is known, or by the exercise of due diligence may become
      known . . . .

Aplt. App., vol. I, at 17-18. The Order also stated that a request is not necessary

to trigger the operation of the Rules and that absence of a request may not be

asserted as a reason for noncompliance. Id. at 17.

      Nearly six months after the Order was issued, defense counsel sent the

government a written request to take possession of a firearm found in a vehicle

used by Mr. Ivory for independent fingerprint testing. Prompted by this request,
on June 10, 2004, the government provided defense counsel with reports

indicating that both a fingerprint analysis and DNA swabbing of the firearm had

been conducted in October 2003. The government also advised defense counsel

that their forensic expert’s report comparing the DNA on the firearms with Mr.

Ivory’s DNA would not be available until June 23, 2004. Trial was set to begin

July 6. Defense counsel filed a motion to exclude the DNA evidence, which the

district court granted, on the grounds that the government had violated the

discovery order and Rule 16. The question before this court is whether the

district court’s exclusionary sanction in response to the government’s unexcused

discovery violations constitutes an abuse of discretion. I conclude that it does

not.

       Rule 16 warns the parties of the consequences of failing to comply with

discovery orders and invests the district court with broad discretion in coping

with discovery violations:

       (2) Failure to Comply. If a party fails to comply with this rule, the
       court may:
              (A) order that party to permit the discovery or inspection;
              specify its time, place, and manner; and prescribe other just
              terms and condition;
              (B) grant a continuance;
              (C) prohibit that party from introducing the undisclosed
              evidence; or
              (D) enter any other order that is just under the circumstances.

F ED . R. C RIM . P. 16(d)(2) (emphasis added). As explained by the majority, the


                                         -2-
test for determining whether the district court properly excluded evidence

pursuant to Rule 16(d)(2) was expressed in United States v. Wicker, 848 F.2d

1059 (10th Cir. 1988):

      When the government fails to comply with a discovery order, the
      factors the district court should consider in determining if a sanction
      is appropriate are (1) the reasons the government delayed producing
      the requested materials, including whether or not the government
      acted in bad faith when it failed to comply with the discovery order;
      (2) the extent of prejudice to the defendant as a result of the
      government’s delay; and (3) the feasibility of curing the prejudice
      with a continuance.

Id. at 1061. In Wicker, the court went on to note that “these three factors should

merely guide the district court in its consideration of sanctions; they are not

intended to dictate the bounds of the court’s discretion.” Id.

      The record indicates that the district court weighed the first Wicker factor.

The court emphasized that although more than five months had passed since the

government knew or should have known about the scientific tests that had been

conducted on the firearm, the government provided no explanation for the delay

in notifying defense counsel. We have consistently held that a district court may

justifiably exclude evidence “on the basis of its unexplained untimeliness alone.”

See, e.g., United States v. Adams, 271 F.3d 1236, 1244 (10th Cir. 2001) (per

Kelly, J.). As the district court noted here, “[t]here is simply no explanation why

the government didn’t follow the order and make some inquiry at an earlier date.”

Aplt. App., vol. I, at 159. Thus, solely on the basis of the government’s excessive

                                         -3-
and unexcused delay, the district court was entitled to suppress the DNA

evidence.

      The court also weighed the second Wicker factor and concluded that the

defendant was prejudiced because the government’s delay in producing the DNA

test results implicating Mr. Ivory left far too little time for defense counsel to

procure an expert of its own to rebut the government’s evidence at trial. The

government concedes that Mr. Ivory was so prejudiced.

      Finally, the court analyzed the feasibility of curing the prejudice with a

continuance and decided that a continuance would not remedy the violation for

two reasons. First, because the United States Attorney’s Office had expressly

requested a continuance in order to have its DNA expert available for trial,

granting that request would have resulted in the bizarre outcome of rewarding –

rather than punishing – the government for its discovery violations. While the

government was prepared to subpoena the witness if the district court denied its

motion, it did not prefer this course of action given the short notice to the witness

and her family vacation plans. Second, because the government had failed to

provide evidence to defense counsel in a timely manner in several other cases

recently before the court, the evidence needed to be suppressed as a prophylactic

measure. The district court stated:

      This is not the first time this kind of issue has come up before this
      court. It’s not the first time even in a long time that this issue has

                                          -4-
      come up. On repeated occasions over the last several weeks and
      months this court has been confronted with the government having
      been in a position where it did not supply information to the other
      side in a way timely enough to have a proceeding go forward without
      having some in depth discussion about why something wasn’t
      disclosed, what the reasons were, what had happened, and so
      forth. . . . [T]he cumulative effect of those cases is to tell me that a
      continuance in this case would not help address the prophylactic
      issue, and that is that I believe the government needs to get these
      matters worked out earlier rather than later so that the court and the
      defense counsel are not left scrambling at the last minute to deal with
      the fact that the government has not looked at exhibits, found reports,
      etc., until the last month before trial.

Aplt. App., vol. I, at 164.

      We have repeatedly recognized that “[o]n occasion the district court may

need to suppress evidence that did not comply with discovery orders to maintain

the integrity and schedule of the court even though the defendant may not be

prejudiced.” Wicker, 848 F.2d at 1061 ; see also Adams, 271 F.3d at 1244 (“even

in the absence of prejudice, a district court may suppress evidence that ‘did not

comply with discovery orders to maintain the integrity and schedule of the

court’”); United States v. Russell, 109 F.3d 1503, 1512 (10th Cir. 1997)

(“Wicker’s admonition that the trial court must impose ‘the least severe sanction

that will accomplish . . . prompt and full compliance with the court’s discovery

orders’ . . . does not mean that a continuance is necessary just because it will cure

the prejudice.”). This is because a district court has “inherent power to control

and supervise its own proceedings.” United States v. Carrigan, 804 F.2d 599,


                                         -5-
603 (10th Cir. 1986).

      The government contends, and the majority agrees, that the district court

did not have authority to rely on discovery violations in other cases in

determining sanctions in the present case. I reject this argument for two reasons.

First, even assuming the government is correct, the district court did not have to

rely on a pattern or practice of discovery violations on the part of the government

in order to justify its exclusion of the DNA evidence in this case. As discussed

above, the court’s determination that all three Wicker factors weighed in favor of

Mr. Ivory was more than enough to entitle it to suppress the evidence, a remedy

explicitly authorized by Rule 16. See F ED . R. C RIM . P. 16(d)(2)(C).

       Second, Supreme Court case law strongly suggests the government’s

argument lacks merit given the particular circumstances of this case. In Taylor v.

Illinois, 484 U.S. 400, 401-02 (1988), the Court upheld the trial court’s refusal to

allow a witness to testify as a sanction for a defendant’s discovery violation. The

Court rejected an argument similar to the one advanced by the government here,

that the sanction was “unnecessarily harsh,” due to its concern with the impact of

the discovery violation on the “integrity of the judicial process.” Id. at 416.

According to the Court,

      [i]t may well be true that alternative sanctions are adequate and
      appropriate in most cases, but it is equally clear that they would be
      less effective than the preclusion sanction and that there are instances
      in which they would perpetuate rather than limit the prejudice [to the

                                         -6-
      other party] and the harm to the adversary process.

Id. at 413. Moreover, in a footnote, the Court explained that the trial judge had

expressed concern about discovery violations in other trials and, while unrelated

violations in other cases would not normally provide a proper basis to exclude the

evidence, “[i]f those violations involved the same attorney . . . they were

relevant.” Id. at 416 n.22. Here, not only was the prosecutor in the instant

controversy involved in one of the other cases cited by the district court for a

pattern and practice of discovery violations, all of the cases involved attorneys

from the same office – the United States Attorneys’ Office for the District of

Kansas. Thus, the violations cited by the district court as a basis for its

prophylactic sanction were relevant, and not the sort of “[u]nrelated discovery

violations” on which it would have been improper for the district court to rely.

Id. In Taylor, the sanction was against defense counsel; obviously discovery

violations by other defense counsel in unrelated cases would be totally irrelevant.

      I also disagree with the majority’s assertion that the district court’s

reliance, “without prior notice,” on four other cases involving the government’s

discovery conduct was error and forced the government to attempt to improperly

supplement the record on appeal. One of those prior cases involved the same

lawyer arguing the government’s motion for a continuance, so she clearly had

prior notice. Moreover, if the government wished to discuss or distinguish those


                                          -7-
prior cases, it should have filed a motion for reconsideration in the district court

before it filed its notice of appeal. Instead, it dilatorily waited six months to

attempt to supplement the record in the district court, an attempt the district court

justifiably dismissed as untimely. To reward the government under these

circumstances certainly runs counter to the district court’s right to protect the

integrity of its docket by sanctioning the government for a pattern and practice of

discovery violations.

      In sum, because the government concedes it violated both the discovery

order and Rule 16, the district court properly considered each of the Wicker

factors, and the court determined that the maintenance of the integrity and

schedule of the court required suppression due to a pattern or practice of

discovery violations on the part of the United States Attorneys’ Officer for the

District of Kansas, I cannot conclude that the district court abused its discretion.

That court is in the best position to assess the proper sanction to cure the

government’s pattern and practice of discovery violations, and I think we should

honor the court’s decision rather than undermine it. For the aforementioned

reasons, I dissent.




                                          -8-
