                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2005

Govt of VI v. Fahie
Precedential or Non-Precedential: Precedential

Docket No. 04-1567




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                                          PRECEDENTIAL




        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ___________

                       No. 04-1567
                       ___________

      GOVERNMENT OF THE VIRGIN ISLANDS,

                              v.

                     JAREEM FAHIE

                                  Appellant,
               ________________________

  On appeal from the District Court of the Virgin Islands,
  Appellate Division, Division of St. Thomas and St. John

District Court Judges: Raymond L. Finch, Thomas K. Moore,
                     and Maria M. Cabret
          (Dist. Ct. Crim. Appeal No. 01-cr-00324)
                        ___________

               Argued December 14, 2004
   BEFORE: SLOVITER, FUENTES, and GREENBERG,
Circuit Judges
                _______________________

              (Opinion Filed: August 16, 2005)

_______________________
Charles S. Russell, Jr. (Argued)
Moore, Dodson, & Russell
P.O. Box 310, EGS 14A Norre Gade
Charlotte Amalie, St. Thomas
United States Virgin Island, 00804

ATTORNEY FOR APPELLANT

Richard S. Davis (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade, GERS Building, 2 nd Floor
Charlotte, Amalie, St. Thomas
United States Virgin Islands 00802

ATTORNEY FOR APPELLEE

                _______________________

                OPINION OF THE COURT
                _______________________

FUENTES, Circuit Judge.

       This appeal concerns when, if ever, dismissal with
prejudice is an appropriate remedy for a violation of Brady v.

                              2
Maryland, 373 U.S. 83 (1963). The Territorial Court of the
Virgin Islands dismissed a charge against Defendant-Appellant
Jareem Fahie for possession of an unlicensed firearm after
finding that the government failed to disclose a firearms trace
summary in violation of Brady and Federal Rule of Criminal
Procedure 16(a)(1)(F). The District Court of the Virgin Islands,
Appellate Division, reversed, concluding that, although the
government had violated its obligation under Brady, the
Territorial Court erred in dismissing the case with prejudice.
Because we conclude that dismissal with prejudice is
appropriate only under exceptional circumstances not present
here, we will affirm the judgment of the Appellate Division.

              I. Facts and Procedural History

       On the evening of July 8, 2001, Jareem Fahie was shot
while sitting in his mother’s car. Although he sustained
numerous gunshot wounds, he was able to drive himself to the
hospital where he was interviewed by a Virgin Islands police
officer. Fahie informed the officer that he had dropped off two
friends and was in the vicinity of a local hotel when a passenger
from another car exited his car, approached Fahie and shot him.
When asked if the car parked outside the hospital was his, Fahie
told the officer that it was. When the officer went out to search
the car for evidence of the shooting, she observed part of a
sawed-off shotgun, about two-feet long, sticking out of a black
nylon bag in the backseat. She reentered the hospital to ask
Fahie if he had a license for the weapon; when he responded
that he did not, the officer arrested Fahie for possession of an
unlicensed weapon.


                               3
       Fahie was charged with possession of an unlicensed
firearm (the sawed-off shotgun) in violation of 14 V.I.C. §
2253(a). He pled not guilty and the case went to trial in the
Territorial Court on October 24, 2001. At trial, Detective David
Monoson was called to testify as to the results of a test firing of
the weapon. In the course of cross-examination, Monoson
revealed that he had run a trace of the gun based on its serial
number through the Bureau of Alcohol, Tobacco, and Firearms
and had received a report (the “ATF Report”) over three months
before the trial that contained the name of the gun’s registered
owner, an individual living in Virginia. According to the ATF
Report, the gun had not been reported stolen. Defense counsel
immediately objected and argued that the ATF Report was
exculpatory, material evidence that had been withheld in
violation of Brady1 and Rule 16(a)(1)(F)2 . The government


   1
    In Brady, the Supreme Court held that “suppression 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.” Id. at 87.
   2
       Rule 16(a)(1)(F) provides:

          Upon a defendant's request, the government must permit
          a defendant to inspect and to copy or photograph the
          results or reports of any physical or mental examination
          and of any scientific test or experiment if: (i) the item is
          within the government's possession, custody, or control;
          (ii) the attorney for the government knows--or through
          due diligence could know--that the item exists; and (iii)

                                    4
argued that the ATF Report was not Brady material and was
exempt from discovery under Rule 16(a)(2).3 In an oral
opinion, the trial court held that the information relating to the
gun ownership constituted Brady material, and that
nondisclosure prejudiced Fahie’s due process rights. The trial
court also ruled that nondisclosure was a violation of Rule
16(a)(1)(F), which requires, upon request, disclosure to the
defendant of certain “Reports of Examinations and Tests.” The
Government filed a timely appeal in the Appellate Division of
the District Court.

        The Appellate Division affirmed the trial court’s ruling
that withholding of the ATF Report constituted a Brady
violation. However, the Appellate Division disagreed with the
trial court that dismissal with prejudice was a proper sanction
for the Brady violation, and thus reversed the trial court on that
issue. Based on this ruling, the Appellate Division determined
that the question whether dismissal was an appropriate sanction
for a Rule 16(a)(1)(F) violation was moot. Nonetheless, the
Appellate Division went on to decide that the trial court’s
dismissal based on the Rule 16 violation was also an abuse of



       the item is material to preparing the defense or the
       government intends to use the item in its case-in-chief at
       trial.
  3
   Rule 16(a)(2) exempts from disclosure “reports, memoranda
or other internal government documents made by the attorney
for the government or other government agents in connection
with the investigation or prosecution of the case.”

                                5
discretion. Finally, the Appellate Division rejected Fahie’s
motion to dismiss on Double Jeopardy grounds.

        On appeal, Fahie argues that dismissal was an
appropriate remedy for either the Brady violation or the Rule
16(a)(1)(F) violation. The Government argues that there was no
Brady violation and that the firearms trace summary was exempt
from disclosure under Rule 16(a)(2); it also argues that
dismissal with prejudice was, in any event, an improper remedy
for either violation.

          II. Jurisdiction and Standard of Review

       The District Court had jurisdiction over the
Government’s appeal pursuant to 48 U.S.C. § 1493. We
exercise jurisdiction over this appeal under 28 U.S.C. § 1291
and 48 U.S.C. § 1613.

       In reviewing a trial court’s remedy for an alleged Brady
violation, we review conclusions of law de novo and review any
findings of fact, where appropriate, for clear error. See United
States v. Thornton, 1 F.3d 149, 158 (3d Cir. 1993) (citing
United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991)).

              III. Remedy for Brady Violation

                    A. Legal Background

        As noted previously, the Supreme Court held in Brady
that “suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence

                               6
is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. at 87. The
issue we must determine is when, if ever, dismissal with
prejudice is an appropriate remedy for a Brady violation.4 Fahie
argues that dismissal is an appropriate remedy for due process
violations where the defendant demonstrates prejudice or a
substantial threat of prejudice. The Government contends that
dismissal of a case during trial violates the separation of powers
that gives only the prosecutor the right to try the case.

       We have not yet decided when, if ever, dismissal with
prejudice is a proper response to a Brady violation, or if retrial
is the most severe remedy available. Nor has the Supreme
Court directly addressed the issue. While the Court has
assumed that Brady violations that have affected the judgment
of a jury normally will be remedied by a new trial, it has left
open the possibility of barring retrial in response to particularly
egregious due process violations. Compare Giglio v. United
States, 405 U.S. 150, 154 (1972) (“A new trial is required if
[the Brady violation] could ...in any reasonable likelihood have
affected the judgment of the jury.”); United States v. Russell,
411 U.S. 423, 431-32 (1973) (“[W]e may some day be
presented with a situation in which the conduct of law


  4
    The Government contends that there was no Brady violation
in this case because the ATF Report was not material. We have
jurisdiction to consider the question under 28 U.S.C. § 1291 and
48 U.S.C. § 1613. For purposes of our analysis, we will assume
without deciding that the Appellate Division correctly held that
there had been a Brady violation.

                                7
enforcement agents is so outrageous that due process principles
would absolutely bar the government from invoking judicial
processes to obtain a conviction.”). We too have left open the
possibility that “the government’s conduct in withholding Brady
materials could . . . be sufficiently egregious to bar prosecution
of a defendant on due process grounds.” United States v.
Coleman, 862 F.2d 455, 466 n.8 (3d Cir. 1988).

       In deciding when dismissal might be appropriate, we find
instructive the Supreme Court’s decision in United States v.
Morrison, which discussed whether dismissal was proper in a
case where prosecutors attempted to deprive a defendant of her
right to an attorney. 449 U.S. 361 (1981). Because their
attempt failed, there was no prejudice to the defendant. Id.
After discussing a number of cases involving violations of
defendants’ constitutional right to counsel, the Supreme Court
in Morrison observed that “[n]one of these deprivations . . .
resulted in the dismissal of the indictment. Rather, the
conviction in each case was reversed and the Government was
free to proceed with a new trial.” Id. at 365. The Court
discussed the appropriate remedy for a pretrial violation of
defendant’s rights as follows:

   [W]hen before trial but after the institution of adversary
   proceedings, the prosecution has improperly obtained
   incriminating information from the defendant in the
   absence of his counsel, the remedy characteristically
   imposed is not to dismiss the indictment but to suppress
   the evidence or to order a new trial if the evidence has
   been wrongfully admitted and the defendant convicted
   . . . [A]bsent demonstrable prejudice, or substantial

                                8
   threat thereof, dismissal of the indictment is plainly
   inappropriate, even though the violation may have been
   deliberate.

Id. Thus, the Supreme Court has expressed a preference for
suppression of evidence or retrial as a more appropriate remedy
for a pre-trial constitutional violation. Id. In Morrison,
however, because there was no prejudice – indeed, not even a
“claim of any discernible taint” – the Court determined that
“even the traditional remedies were beside the point.” Id. at 365
n.2. Morrison therefore clearly precludes dismissal absent a
showing of prejudice to the defendant. Id. at 365; see also Bank
of Nova Scotia v. United States, 487 U.S. 250, 254 (1988)
(holding that an indictment should be dismissed for errors in
grand jury proceedings only if they prejudiced the defendants).

      Morrison also teaches that the intentional character of the
government’s misconduct affects the appropriate remedy.5 The


   5
     In United States v. Mitchell, we held that while “as a legal
matter, the question of good faith versus bad faith is a
distinction without a difference in the Brady context,” “the
existence of bad faith on the part of the prosecution is probative
of materiality because it is ‘doubtful that any prosecutor would
in bad faith act to suppress evidence unless he or she believed
it could affect the outcome of the trial.’” 365 F.3d 215, 255 (3d
Cir. 2004) (quoting United States v. Jackson, 780 F.2d 1305,
1311 n. 4 (7th Cir. 1986)). We believe that bad faith may be of
additional relevance in the context of choosing a remedy for a
Brady violation.

                                9
Court noted, for example, that a “pattern of recurring violations
by investigative officers . . . might warrant the imposition of a
more extreme remedy in order to deter further lawlessness.”
Morrison , 449 U.S. at 365 n.2. This statement suggests that the
Court was concerned with both prejudice and deterrence, and
that when both of those factors call for a particularly harsh
sanction, dismissal – the harshest available sanction for a Brady
violation – may be proper. See United States v. Isgro, 974 F.2d
1091, 1097 (9th Cir. 1992) (“Dismissal of an indictment with
prejudice is the most severe sanction possible.”).

       Other cases demonstrate similar attention to prejudice
and willful misconduct. In United States v. Marion, the
Supreme Court reversed a dismissal of an indictment where
defendant failed to show either that “actual prejudice” resulted
from the government’s pre-indictment delay or “that the
Government intentionally delayed to gain some tactical
advantage over appellees or to harass them.” 404 U.S. 307, 325
(1971). And, in Maine v. Moulton, the Court noted the
relevance of willful misconduct when it observed that
incriminating statements relating to pending charges may be
held inadmissible as to those charges “if, in obtaining this
evidence, the State violated the Sixth Amendment by knowingly
circumventing the accused’s right to the assistance of counsel.”
474 U.S. 159, 180 (1985). Thus, the Supreme Court has
declined to impose the harshest penalties for government
misconduct where a defendant has not demonstrated that the
misconduct was willful and resulted in actual prejudice.

       In our own decisions addressing remedies for
constitutional violations, we too have suggested that willfulness

                               10
and prejudice are important considerations. See United States
v. Rosenfield, 780 F.2d 10, 11 (3d Cir. 1985) (holding that
dismissal is warranted “only where the defendant is actually
prejudiced . . . the challenged activity was something other than
an isolated incident unmotivated by sinister ends or . . .
misconduct challenged has become entrenched and flagrant”);
United States v. Costanzo, 740 F.2d 251, 257 (3d Cir. 1984)
(affirming refusal to dismiss indictment on grounds of a Sixth
Amendment violation where “[n]one of the disclosures . . . were
the product of intentional intrusion into the defense camp . . . or
were accompanied by a showing of prejudice”). These
decisions imply that a court fashioning a remedy for a Brady
violation should take into account the particular character and
consequences of the government’s actions.

       Some Courts of Appeals have remarked or implied that
no harsher sanction than a new trial is ever available to remedy
a Brady violation. See United States v. Mitchell, 164 F.3d 626
(4th Cir. 1998) (unpublished table decision); United States v.
Davis, 578 F.2d 277, 280 (10th Cir. 1978); United States v.
Evans, 888 F.2d 891, 897 n.5 (D.C. Cir. 1989). Others,
however, have held or implied that dismissal may sometimes be
appropriate. See, e.g., United States v. Lewis, 368 F.3d 1102,
1107 (9th Cir. 2004) (“Courts . . . can dismiss actions where
government attorneys have willfully deceived the court an
engaged in conduct utterly inconsistent with the orderly
administration of justice.”) (internal quotation omitted); see also
United States v. Fletcher, 801 F.2d 1222, 1225 (10th Cir. 1986)
(“Absent evidence of police or prosecutorial bad faith or
misconduct, dismissal of an indictment is warranted only if the
missing evidence possesses an exculpatory value that was

                               11
apparent before the evidence was destroyed.”). Notably, in all
jurisdictions, dismissal with prejudice is in practice a rare
sanction for any constitutional violation.6

       In light of the foregoing, we conclude that dismissal for
a Brady violation may be appropriate in cases of deliberate
misconduct because those cases call for penalties which are not
only corrective but are also highly deterrent.7 Deliberate
misconduct is targeted for extra deterrence because we expect
willful misbehavior to be the most effectively deterred by
enhanced penalties. See Nat. Hockey League v. Met. Hockey


    6
     Our research discloses no case where a federal appellate
court upheld dismissal with prejudice as a remedy for a Brady
violation. For an exceptional case in which a district court
dismissed charges following a Brady violation, see United States
v. Dollar, 25 F. Supp.2d 1320 (N.D. Ala. 1998). In Dollar, the
government failed repeatedly to disclose undeniably probative
documents. Id. at 1332. The District Court found that the
government had “breached the duty of professionalism and
candor owed to the court” and doubted “whether it [had]
proceeded . . . in good faith.” Id.
    7
     Because a new trial cures completely any prejudice to a
defendant from a Brady violation, prejudice alone cannot justify
dismissal. See Morrison, 449 U.S. at 364 (observing that
remedies should be narrowly tailored). For similar reasons, new
evidence discovered after the close of trial, if from a neutral
source, results only in a new trial. Only when there is willful
misconduct will deterrence justify dismissal with prejudice.

                              12
Club, Inc., 427 U.S. 639, 643 (1976) (“[T]he most severe in the
spectrum of sanctions provided by statute or rule must be
available to the district court in appropriate cases, not merely to
penalize those whose conduct may be deemed to warrant such
a sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent”). While retrial is
normally the most severe sanction available for a Brady
violation, where a defendant can show both willful misconduct
by the government, and prejudice, dismissal may be proper.8

                         B. Application

       We now apply the above standard to the facts of this
case. We note first that the record does not support a finding
that the prosecutor knew that it was required to disclose the
ATF Report, but intentionally withheld it. The Territorial Court


   8
     Although Fahie does not appeal his Double Jeopardy claim
to this Court, we write in the margin to note that the Double
Jeopardy Clause normally will not limit the range of remedies
available for a Brady violation. See Coleman, 862 F.2d at 458.
If a defendant cannot show that dismissal is proper because the
government withheld documents in bad faith or reckless
disregard for the defendant’s rights, he cannot show that retrial
would violate the Double Jeopardy Clause on the grounds that
the government intentionally triggered a mistrial by withholding
documents. See Oregon v. Kennedy, 456 U.S. 667, 676 (1982)
(holding that to claim double jeopardy bar defendant must show
“government conduct in question [was] intended to ‘goad’ the
defendant into moving for a mistrial”).
                               13
made no findings to that effect, and the District Court did not
address the issue. From the record, it appears that the
prosecutor was more misguided than calculating in her handling
of the ATF Report. Detective Monoson testified that ATF
supplied firearms trace reports to the Government on a routine
basis and that the prosecutor was aware of the report because he
had discussed it with her. But when defense counsel first
objected, the prosecutor initially denied withholding anything,
claiming that “the Government did turn over what it had.”
When the judge demanded the report and inquired further, the
prosecutor responded “I don’t know, Your Honor. I don’t have
it.” After a brief recess, she produced the report (“we do have
the information now, Your Honor. We just received the
information.”). From these facts, it appears that the prosecutor
overlooked the significance of the ATF Report – perhaps
because, under the Government’s own theory that the gun was
stolen, the original ownership, based on a purchase made 13
years prior in Virginia, was not obviously important.9 Having
failed to appreciate its significance to the defense, the
prosecutor may have simply lost track of the report between the
time it was produced, in late July, and the start of trial in
October. While her error compromised Fahie’s due process
rights, we do not believe – nor is it alleged – that the
prosecutor’s misconduct was willful.



   9
   That is not to take issue with the analyses of the Territorial
Court and the Appellate Division, both of which concluded that
knowledge of the original owner could have been helpful to
Fahie in locating the true owner at the time of his arrest.

                               14
         Although Fahie does not try to show that the prosecutor
knew she was required to disclose the ATF Report but withheld
it anyway, Fahie does attempt to establish a pattern of discovery
abuse. A pattern of constitutional violations may indeed be
used to show recklessness on the part of a prosecutor. See
Sample v. Diecks, 885 F.2d 1099, 1117 (3d Cir. 1989) (“[T]he
existence of a pattern of constitutional violations may provide
a basis for implying deliberate indifference.”); Farmer v.
Brennan, 511 U.S. 825, 836 (1994) (“[A]cting or failing to act
with deliberate indifference to a substantial risk of serious harm
to a prisoner is the equivalent of recklessly disregarding that
risk.”); see also Morrison, 449 U.S. at 365 n.2 (noting that
higher penalties may be warranted where there is a pattern of
misconduct). Moreover, a constitutional violation that results
from a reckless disregard for a defendant’s constitutional rights
constitutes willful misconduct. See Wehr v. Burroughs Corp.,
619 F.2d 276, 282 (3d Cir. 1980) (“only three degrees of
culpability are associated with the term ‘willful’: intentional,
knowing, or reckless”); cf. United States v. Johnstone, 107 F.3d
200, 208-09 (3d Cir. 1997) (holding that “willful[ ]” in federal
criminal civil rights statute, 18 U.S.C. § 242 “means either
particular purpose or reckless disregard”); United States v.
Frost, 999 F.2d 737, 743 (3d Cir. 1993) (holding that “in order
to secure suppression of the fruits of [a search based on a
misleading search warrant affidavit], a defendant must show .
. . that bad faith or reckless disregard existed on the part of the
affiant”); Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d
747, 751 (3d Cir. 1994) (holding, in the insurance context, that
“recklessness . . . can support a finding of bad faith”). Thus,
reckless misconduct, if prejudicial, may sometimes warrant
dismissal. Otherwise, a prosecutor who sustains an erroneous

                               15
view of her Brady obligations over time will be inadequately
motivated to conform her understanding to the law.

        In this case, however, Fahie fails to demonstrate a pattern
of violations by which he can demonstrate reckless, and
therefore willful, misconduct. Fahie points to the fact that
during the suppression hearing, a Government witness
represented that no fingerprint analysis had been conducted on
the gun. Later, however, the Government supplemented its
discovery with a July 9, 2001 memo indicating that a fingerprint
test had been conducted but that it was inconclusive. Fahie also
claims that because the Government failed to follow proper
protocol in the handling of evidence, specifically, the gun, he
could not do an independent fingerprint analysis. It appears that
Fahie’s allegations are not without merit, since the Territorial
Court suppressed the fingerprint analysis upon Fahie’s motion
in limine. However, the events surrounding the fingerprint test
appear to us to support the view that the prosecutor was at times
disorganized, but not reckless.

      Because Fahie cannot show willful misconduct, we need
not address the question of prejudice in this case.10 In the
absence of any evidence of willful misconduct, dismissal with


   10
     In order to find a Brady violation in the first place, a court
must find that some prejudice ensued to the defendant. See
Stricker v. Greene, 527 U.S. 263, 281-82 (1999). Only if a
defendant has demonstrated that his rights were violated and that
the violation was willful need a court again consider the degree
of prejudice in fashioning an appropriate remedy.

                                16
prejudice was improper.

         IV. Dismissal under Supervisory Powers

       The Territorial Court also dismissed the charges against
Fahie under Rule 16(a)(1)(F).11 The Appellate Division
reversed, determining that dismissal with prejudice for an
unintentional Rule 16 violation is an improper exercise of a
court’s supervisory powers.

        We note first that, contrary to the Government’s position,
the failure to disclose the ATF Report was indeed a discovery
violation. Fahie’s counsel asked the prosecution for all
evidence material to Fahie’s defense in his blanket Brady
request. The Government argues that the requirements of Rule
16(a)(1)(F) do not apply here because the exception to Rule 16
found in Rule 16(a)(2), regarding reports prepared in
connection with a criminal investigation, applies to the ATF
Report. Because the ATF Report was prepared for the Virgin
Islands Police Department in response to the Department’s
request about a gun that it had seized, the government claims
the trace report is exempted from disclosure.



   11
    Having already concluded that dismissal was an improper
remedy for a Brady violation, the District Court initially
described this second issue as moot (but went on to discuss it).
We disagree with that characterization, since the trial court’s
order of dismissal could be upheld independently on Rule 16
grounds.
                               17
        The exception in Rule 16(a)(2) applies to work product.
See United States v. Armstrong, 517 U.S. 456, 463 (1996)
(“[u]nder Rule 16(a)(2), [a defendant] may not examine
Government work product in connection with his case.”). The
ATF Report was not government work product of a type
exempted from discovery. It did not contain “mental
impressions, conclusions, opinions or legal theories concerning
litigation of an attorney or other representative of a party.” See
In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir.
2003) (citing Fed. R. Civ. P. 26, Advisory Comm. Notes, 1970
Amendment). Rather, the ATF Report was a computer-
generated printout from a government database maintained for
broader purposes than the prosecution of Fahie. The federal
employees who maintain the database and who generated the
ATF Report are not agents of the Virgin Islands or its
prosecutor. Nor did the ATF Report reveal any confidential
information pertaining to the Government’s prosecution
strategy.

        Finally, the contours of Rule 16’s exceptions should be
interpreted to minimize conflict with the government’s
constitutional disclosure obligations under Brady. See Ortiz v.
Fibreboard Corp., 527 U.S. 815, 842 (1999) (adopting a
“limiting construction” of Federal Rule of Civil Procedure
23(b)(1)(B) in part to avoid “serious constitutional concerns”);
see also Edward DeBartolo Corp. v. Florida Gulf Coast
Building & Construction Trades Council, 485 U.S. 568, 757
(1988) (“[W]here an otherwise acceptable construction of a
statute would raise serious constitutional problems, the Court
will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.”).

                               18
Since the Government was obligated to share the kind of
objective fact evidence contained in the ATF Report with Fahie
under the Sixth Amendment, we will not exempt the
government from this obligation under Rule 16(a)(2) in the
absence of language compelling a contrary result.

       In light of the Government’s discovery violation, we next
decide whether the Territorial Court properly dismissed the
charges against Fahie under its supervisory powers. A trial
court need not rely on Brady to justify dismissal of an
indictment as a remedy for improper prosecutorial conduct; it
may also remedy Rule 16 discovery violations under its
supervisory powers. See United States v. Restrepo, 930 F.2d
705, 712 (9th Cir. 1991) (“[D]ismissal of an indictment because
of outrageous government conduct may be predicated on
alternative grounds: a violation of due process [such as a Brady
violation] or the court’s supervisory powers.”); see also United
States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004). The
purposes underlying the use of courts’ supervisory powers are
broad and include implementing remedies for violations of
recognized rights and remedies designed to deter illegal
conduct. See United States v. Hasting, 461 U.S. 499, 505
(1983).

       A trial court’s remedy for a discovery violation under its
supervisory powers is reviewed for abuse of discretion while
factual findings upon which the decision was based are
reviewed for clear error. See Restrepo, 930 F.2d at 712; see
also Govn’t of V.I. v. Blake, 118 F.3d 972, 978 (3d Cir. 1997)
(“[T]he trial court sits in a unique position to evaluate . . .
evidentiary and discovery questions, including the selection of

                               19
sanctions.”).

        This Court has held in the civil context that whether a
trial court has abused its discretion in dismissing a case depends
on the balance of six factors: (1) the extent of the party’s
personal responsibility; (2) the prejudice to the adversary; (3) a
history of dilatoriness; (4) whether the conduct of the party or
the attorney was willful or in bad faith; (5) the effectiveness of
sanctions other than dismissal, which entails an analysis of
alternative sanctions; and (6) the meritoriousness of the claim
or defense. See Poulis v. State Farm Fire & Cas. Co., 747 F.2d
863, 868 (3d Cir. 1984). Those factors “should be weighed by
the district courts in order to assure that the ‘extreme’ sanction
of dismissal . . . is reserved for the instances in which it is justly
merited.” Id. at 870 (holding district court did not abuse its
discretion when it dismissed case). Given the “societal interest
in prosecuting criminal defendants to conclusion,” it is
especially important in the criminal context that a court
applying sanctions for violation of Rule 16 carefully assess
whether dismissal with prejudice is necessary to exact
compliance with discovery obligations. Coleman, 862 F.2d
455. In particular, as discussed above, a court must look to both
the need to undo prejudice resulting from a violation and the
appropriate deterrent value of the sanction in each case.

       Other courts have considered the question of when a
court may dismiss an indictment under its supervisory powers.
The Ninth Circuit has held that “[d]ismissal under the court’s
supervisory powers for prosecutorial misconduct requires (1)
flagrant misbehavior and (2) substantial prejudice.” United
States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993). It has

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suggested that prosecutorial conduct might satisfy those
requirements even where it would fail to justify dismissal under
Brady directly. See Ross, 372 F.3d at 1110; United States v.
Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). The
Seventh Circuit has adopted a more restrictive approach, holding
that a sanction under supervisory powers is only appropriate
where the conviction could not have been obtained but for the
failure to disclose exculpatory evidence. See United States v.
Johnson, 26 F.3d 669, 683 (7th Cir. 1994). At least two other
circuits instruct courts to balance a number of factors in their
choice of a sanction, including “the reasons for the
Government’s delay in affording the required discovery, the
extent of prejudice, if any, the defendant has suffered because
of the delay, and the feasibility of curing such prejudice by
granting a continuance or, if the jury has been sworn and the
trial has begun, a recess.” United States v. Euceda-Hernandez,
768 F.2d 1307, 1312 (11th Cir. 1985); see also United States v.
Wicker, 848 F.2d 1059, 1061 (10th Cir. 1988). While we
appreciate the importance of all these factors, we believe that,
to merit the ultimate sanction of dismissal, a discovery violation
in the criminal context must meet the two requirements of
prejudice and willful misconduct, the same standard applicable
to dismissal for a Brady violation. Accordingly, we do not
expect that trial courts will dismiss cases under their supervisory
powers that they could not dismiss under Brady itself.

       Neither the trial court nor the Appellate Division
systematically considered the factors relevant to a sanction for
prosecutorial misconduct, and in particular, the two
prerequisites to dismissal with prejudice. Nevertheless, since,
as discussed in the context of a remedy for the Brady violation,

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there has been no showing here of willful government
misconduct, there was no basis for the trial court’s conclusion
that dismissal under its supervisory powers was necessary to
effectively deter such conduct in the future. Prejudice to Fahie
could be corrected with the lesser remedy of mistrial.
Therefore, dismissal with prejudice for the government’s Rule
16 violation was an abuse of discretion.

                       VI. Conclusion

       For the foregoing reasons, we will affirm the judgment
of the District Court.




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