     Case: 18-50502      Document: 00515202793         Page: 1    Date Filed: 11/18/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 18-50502                              FILED
                                                                        November 18, 2019
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

RHONDA LYNN CHESSER, also known as Rhonda Lynn Chesser Lindstrom,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:17-CR-1339-1


Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       A jury convicted the defendant on three counts of making a false
statement in a passport application. On appeal, the defendant seeks reversal
on the basis that the Government did not disclose a report containing an
allegedly exculpatory statement she had made until after the Government
rested its case-in-chief.      The district court determined that the discovery
violation did not warrant a mistrial. We AFFIRM.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50502

              FACTUAL AND PROCEDURAL BACKGROUND
      In June 2014, Rhonda Lynn Chesser submitted an application for a
passport that included an altered birth certificate with a false date of birth.
Chesser claimed an August 26, 1977, birthdate instead of correctly specifying
that same date in 1976. A passport specialist identified a likely alteration on
the birth certificate and referred the application to a program for addressing
potential fraud.   After review, additional information was requested from
Chesser to confirm her citizenship because the documents she initially
provided were not sufficient to support issuance of a passport. Chesser was
instructed to fill out a questionnaire and to provide additional documents.
      Chesser completed the questionnaire and submitted it along with an
affidavit executed by her mentally-impaired sister, Donna Chesser.         Both
documents again specified the false date of birth. During the investigation,
Agents Eric Benn and Matthew Nau interviewed Chesser. Fairly soon after
the questioning began, Chesser admitted to the falsification and signed a
written statement admitting to falsifying her birthdate on documents
submitted in her passport application. During the interview, Chesser stated
that when she was growing up, her mother told her she had been born in 1977.
At trial, though, one of Chesser’s sisters testified that she remembered that
Chesser’s birthday was in fact on August 26, 1976.
      Chesser was charged in the United States District Court for the Western
District of Texas with three counts of making false statements in a passport
application, violating 18 U.S.C. § 1542. In July 2017, the district court entered
a standing discovery order, requiring the Government to give Chesser, among
other information, copies of any written statements and summaries of any oral
statements that she had made. Prior to trial, Chesser’s counsel asked the
Government if Agent Nau had prepared a Memorandum of Interview (“MOI”)



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from his October 17, 2014, interview of Chesser. Counsel answered that no
MOI had been prepared after the agents questioned Chesser.              At trial,
Chesser’s counsel asked Agent Benn if Agent Nau had prepared an MOI.
Agent Benn stated, “I think [the Assistant United States Attorney Paulina]
Jacobo showed me something that [Agent Nau] had sent –– [Agent Nau] had
provided to [Jacobo] at some point.”
       Chesser’s counsel later asked Jacobo about the existence of any MOI.
Jacobo responded that Jacobo was unaware of and did not possess such a
report. On the night of March 20, 2018, the day the Government had rested
its case, Jacobo sent a text message to Chesser’s counsel that Agent Nau
actually had prepared a memorandum of the interview.              The following
morning, Jacobo sent a copy of the MOI to Chesser’s counsel. These events
precipitated Chesser’s March 21, 2018, motion for a mistrial. Chesser argued
that the MOI was exculpatory, that she had been prejudiced by the discovery
violation, and that a hearing needed to be held on her motion. When court
convened that day, the district court judge asked Jacobo to explain her late
disclosure of the MOI. Jacobo assured the court that she had first learned of
the MOI the previous day, March 20, 2018, after asking Agent Nau about it.
       The district court refused to grant a mistrial. It gave Chesser the option
of calling Agent Nau or any other witness to the stand or allowing the
Government to reopen its case and call Agent Nau to the stand. Chesser’s
counsel opted to call Agent Nau as a witness and questioned him about the
MOI.
       Chesser was found guilty on all three counts.        This appeal timely
followed.




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                                  No. 18-50502

                                 DISCUSSION
      We review the denial of a motion for mistrial for an abuse of discretion.
United States v. Valles, 484 F.3d 745, 756 (5th Cir. 2007). We also review
“alleged discovery errors for abuse of discretion and will order a new trial only
where a defendant demonstrates prejudice to his substantial rights.” United
States v. Garcia, 567 F.3d 721, 734 (5th Cir. 2009). When reviewing claims
that the Government violated its duty to disclose exculpatory information to
the defense, we apply a de novo standard. United States v. Valas, 822 F.3d
228, 236 (5th Cir. 2016).


I.    Brady Violation
      “[S]uppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt
or to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Chesser argues
for the application of a test that applies when evidence is suppressed. The
Government insists that when evidence was finally if belatedly disclosed
during trial, a different standard applies because such evidence is not
considered to have been suppressed. See United States v. Swenson, 894 F.3d
677, 683 (5th Cir.), cert. denied, 139 S. Ct. 469 (2018). When disclosure is late,
the analysis focuses on whether the defendant was prejudiced. See id. We
agree with the Government that there was no suppression here and thus no
Brady violation. Thus, the latter test applies here.
      Chesser was able to utilize the MOI in presenting her case and referred
to it in closing argument. Chesser’s argument that her trial strategy would
have been different had the MOI been disclosed earlier is too speculative to
support finding an abuse of discretion in the denial of a mistrial. See Swenson,
894 F.3d at 684. The district court fashioned an appropriate remedy that



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allowed Chesser to use the contested evidence during the trial. She was not
prejudiced.   Furthermore, any claim of resulting prejudice fails given the
weight of the evidence demonstrating Chesser’s guilt. See United States v.
Cochran, 697 F.2d 600, 606–07 (5th Cir. 1983).


II.    Rule 16 Violation
       Under Federal Rule of Criminal Procedure 16(a)(1)(B), the Government
was required to disclose the MOI to Chesser upon request. It failed to do so
until mid-trial. The district court has wide discretion when determining what
sanctions, if any, to impose for a Rule 16 violation. See United States v. Dvorin,
817 F.3d 438, 453 (5th Cir. 2016). The court should impose the least severe
sanction that it believes will cure the violation. United States v. Bentley, 875
F.2d 1114, 1118 (5th Cir. 1989).       Generally, declaring a mistrial is not
appropriate absent bad faith or an intentional failure to disclose: “a district
court will not impose severe sanctions, like suppression of evidence, where the
government’s discovery violations were not committed in bad faith.” Dvorin,
817 F.3d at 453. There is no evidence here to support Chesser’s argument that
the MOI was willfully suppressed by the prosecution.
       Though we affirm the conviction, we reiterate that the Government’s
obligation to comply with all discovery rules is one of great consequence. We
have already discussed a defendant’s right under Brady to disclosure of all
material evidence of an exculpatory nature. “The constitution requires the
prosecution to observe this right with vigilance.” United States v. Garrett, 238
F.3d 293, 302 n.2 (5th Cir. 2000) (Fish, J., concurring) (alteration omitted)
(quoting United States v. Washington, 669 F. Supp. 1447, 1451 (N.D. Ind.
1987)). A related imperative is that the Government honor a defendant’s right
to inspect her own relevant statement, and any written record of it, when it is



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within the Government’s possession, custody, or control. FED. R. CRIM. P.
16(a)(1)(B)(i)–(ii). Accordingly, upon a defendant’s request, the Government
must exercise due diligence in obtaining and producing such statements. See
FED. R. CRIM. P. 16(a)(1)(B).
      We are satisfied that the Government’s failure to disclose was not
intentional. Nonetheless, with the advent of technological advances in data
storage, information management, and digital banks of records compiled by
the Government, it should not ordinarily be an arduous task for the
Government to diligently and carefully search for and locate documents within
the Government’s possession. In view of that, we urge the Government to
utilize whatever resources it has at its disposal in fulfilling its duty to disclose.
      AFFIRMED.




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