                                                          F I L E D
                                                    United States Court of Appeals
                                                            Tenth Circuit
                                 PUBLISH
                                                               JAN 7 1999
                   UNITED STATES COURT OF APPEALS
                                                       PATRICK FISHER
                                                                 Clerk
                            TENTH CIRCUIT




UNITED STATES OF AMERICA

     Plaintiff-Appellant,

           v.                                    No. 97-2277

CESAR GONZALES, also known as Cougar;
HECTOR GABRIEL LOPEZ, also known as Shaggy;
URIEL MARTINEZ, also known as Duke; CESAR
JUAREZ, also known as Pelon; GUSTAVO
AZCUENAGA, also known as Mono; LUIS
DELCID, also known as Stranger; ERNEST
GUEVARA, also known as Yogi; RUSSELL
BARBOA, also known as Chino; JOHN ACOSTA,
also known as Lefty; BYRON ZAMORA, also
known as Trigger; OSCAR VILLA, also known as
Wino; RICHARD ACOSTA, also known Shorty;
ROGER PRECIADO, also known as Cartoon;
JAIME VILLA, also known as Psycho; CHARLES
TAYLOR, also known as Yogie; URIEL
BUSTAMONTE, also known as Caps; MICHAEL
MORA, also known as M&M; DAVID
GALLARDO, also known as Cyclone; NEAL
POLUS, also known as Troy Thompson, also known
as Evil; FRANK LARA, also known as Spooky,

     Defendants,

     and
 MARCOS MAZZINI, also known as Lucky;
 VINCENT NAJAR, also known as Stalker; JASON
 DELATORRE, also known as J Bone,

        Defendants-Appellees,

 ______________________

 ALBUQUERQUE JOURNAL,

        Intervenor.


                        Appeal from United States District Court
                            for the District of New Mexico
                              (D.C. No. CR-95-538-MV)


David N. Williams, Assistant United States Attorney (John J. Kelly, United States
Attorney, and James R.W. Braun, Assistant United States Attorney, with him on the
brief), Albuquerque, New Mexico, for the appellant.

Jeffrey J. Buckels (Gail Evans and Billy R. Blackburn with him on the brief),
Albuquerque, New Mexico, for the appellees.


Before ANDERSON, McKAY, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.



       The government appeals the district court’s order suppressing statements made by

a witness and barring the government from calling the witness at several criminal trials.

We affirm in part, reverse in part, and remand for further proceedings.


                                            -2-
       A federal grand jury returned an indictment in 1995 charging numerous alleged

“Sureno 13” members with RICO, RICO conspiracy, murder, conspiracy to murder,

attempted murder in aid of racketeering, and narcotics trafficking offenses. Several

defendants were charged with participation in the drive-by shooting and murder of rival

street gang member Patrick Garcia.

       In April 1996, law enforcement officers conducting the investigation requested a

warrant for the arrest of the subject witness. The witness was allegedly associated with

the Sureno 13 gang, was a key witness to events involving the murder of Garcia, and was

a witness to the structure of the gang’s RICO organization and to drug trafficking crimes

committed by members of the gang. At the time the arrest warrant was sought, the

witness was in a drug rehabilitation program as a condition of probation for an earlier

unrelated state crime. The state court issued the warrant and, on its own accord, added an

“escape clause” providing that she be arrested and held in a juvenile detention home

       unless: Upon law enforcement officer apprehension/arrest of [the witness],
       if--but only if--she cooperates fully and truthfully and accurately and
       completely reveals to Albuquerque Police Detective Richard Lewis, and/or
       ATF Special Agent Gary Ainsworth, and/or Assistant US Attorney Tom
       English, and/or Special Assistant US Attorney Reynaldo Montano her
       information and involvement (if any) in aforesaid crimes, then--but only
       then--arresting officers are authorized to leave her at the place she currently
       is residing, and report the aforesaid to this Court/Judge for further
       instructions regarding her arrest and aforesaid charges.

Record V. Doc. 1808, Ex.A.

       Albuquerque Police Detective Lewis and ATF Agent Ainsworth went to the


                                             -3-
rehabilitation facility in the state of Washington to meet with the witness on May 1, 1996.

At the request of Lewis and Ainsworth, the director of the rehabilitation program was

present during the first fifteen to thirty minutes of the meeting. Lewis told the witness

they had a warrant for her arrest, showed her the affidavit in support of the arrest warrant,

and advised her of her rights. The witness asked to talk to her probation officer. After

she talked to her probation officer, the witness stated the information in the affidavit was

substantially correct and that she wanted to cooperate in the investigation. At some point

during the meeting, the witness asked to look at the arrest warrant and, for the first time,

noticed the escape clause. Approximately three weeks later, Lewis and Ainsworth,

accompanied by English and ATF Supervisor McCall, returned to the rehabilitation

facility to again interview the witness, and she made further statements incriminating

defendants.

       On May 28, 1996, the federal district court ordered the government to give defense

counsel access to all witnesses under its control or protection. The order stated “‘[t]he

better procedure is to allow the defense counsel to hear directly from the witness whether

he would be willing to talk to the defense attorney, either alone or in the presence of his

attorney’” (citing United States v. Walton, 602 F.2d 1176, 1180 (4th Cir. 1979)). Record

II, Doc. 715 at 5. The order further provided the government was to provide “face-to-

face encounter[s] between [its] witnesses and defense counsel.” Id.

       A defense investigator located the subject witness in mid-July and asked if she


                                             -4-
would talk to him about her knowledge of defendants’ roles in the charged crimes. The

witness told the investigator she would talk to him after she talked to “her attorney.” She

called McCall and complained that a defense investigator was harassing her and trying to

talk to her. McCall and English told her she did not have to talk to anyone. The next day,

the witness again called McCall to complain about the investigator. McCall and English

went to the rehabilitation facility the following day and the witness signed a cooperation

agreement with the government on July 15, 1996. After the witness signed the

cooperation agreement, English instructed her to call the defense attorney who had

engaged the investigator and tell him she did not want to talk to defense representatives.

English also threatened defense team members with prosecution if they continued to

“harass” government witnesses.

       The witness left the rehabilitation facility on August 22, in violation of her

probation, and a state arrest warrant was issued. On September 4, 1996, the federal

district court conducted a hearing on a defense motion for disclosures of witness identities

pursuant to Roviaro v. United States, 353 U.S. 53 (1957). The court ordered that the

witness be produced for an interview with defense counsel, but English misrepresented

the witness’ status, stating: “She’s not under our control. . . . We have nothing to do with

her.” Record XIII at 257. Consequently, the court did not order the government to

produce the witness, but merely requested that the government facilitate a meeting

between the witness and defense counsel.


                                             -5-
       On October 24, while the witness was ostensibly still missing, the government

issued its first payment to her. Although it is clear the government knew the whereabouts

of the witness, it failed to give defense counsel access to the witness as ordered. The

witness turned herself in on December 2, 1996. At a hearing on December 3, the

government stated the witness would enter another rehabilitation program and the witness

was ordered to seek psychological treatment.

       English again misrepresented the witness’ status to the federal district court on

January 28, 1997, stating the witness “is not under my control whatsoever, and her

whereabouts are not even known to me at this time.” He stated she “was a fugitive for a

time period, and since that time she is not under our control.” Record XXII at 54.

Defense counsel explained the witness was on probation and reporting regularly to the

state court. On February 20, 1997, the government was sanctioned for not providing

witness statements within a reasonable time after the witnesses had been interviewed by

the government. The court ordered the government to make witnesses available for

depositions.

       The subject witness was deposed by defense counsel on March 7, 1997. Although

English had available to him the arrest warrant for the witness, he failed to provide a copy

to defense counsel prior to the deposition. During the deposition, defense counsel asked

for a copy and English responded by saying he would provide it as soon as possible. At

the end of the deposition, English said, “Oh look, here it was with my notes all along.”


                                            -6-
Record V, Doc. 1808, Exh. H. Defense counsel filed affidavits stating the lack of copies

of the warrant and affidavit impaired their ability to examine the witness.

       Subsequently, three defendants moved to dismiss all counts related to the Garcia

murder as a sanction for government misconduct, arguing the arrest warrant was used

unlawfully to coerce the witness’ statements and testimony. The federal district court

concluded the warrant was invalid and was used to coerce the witness into making

statements incriminating herself. The court further found the government had violated

court orders and had made misrepresentations to the court. The court did not dismiss the

counts, but instead suppressed the witness’ statements and barred the government from

calling her as a witness at trial.

                       Voluntariness of subject witness’ statements

       As an initial matter, we must decide whether it was proper to allow defendants to

challenge the voluntariness of the subject witness’ statements to Lewis and Ainsworth.

Obviously, defendants cannot seek to vindicate any violations of the subject witness’

Fifth Amendment rights. See Clanton v. Cooper, 129 F.3d 1147, 1158 (10th Cir. 1997).

Instead, defendants must point to violations of their own constitutional rights. Id.

Although defendants’ rights were in no way affected by Lewis and Ainsworth obtaining

the subject witness’ statements, see Buckley v. Fitzsimmons, 20 F.3d 789, 794-95 (7th

Cir. 1994) (“Overbearing tactics violate the right of the person being interrogated to be

free from coercion.”), subsequent use of those statements could potentially implicate


                                             -7-
defendants’ due process rights. See Clanton, 129 F.3d at 1158. More specifically,

defendants’ due process rights would be implicated if the subject witness was coerced

into making false statements and those statements were admitted against defendants at

trial. Id. We therefore proceed to determine whether, as concluded by the district court,

the subject witness’ statements were coerced.

       Whether a statement is voluntary is a question of law subject to de novo review,

although specific underlying findings of fact are reviewed for clear error. A statement “is

involuntary if the government’s conduct cause[d] the [witness’] will to be overborne and

‘his capacity for self-determination critically impaired.’” United States v. McCullah, 76

F.3d 1087, 1100 (10th Cir. 1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218,

225-26 (1973)), cert. denied 117 S. Ct. 1699 (1997). In determining whether a statement

was freely and voluntarily given, the courts consider the totality of the circumstances.

Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991). The relevant circumstances

embrace “both the characteristics of the accused and the details of the interrogation.”

Schneckloth, 412 U.S. at 226; Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir. 1998).

Relevant factors include the suspect’s age, intelligence, and education, the length of

detention and questioning, the use or threat of physical punishment, whether Miranda

warnings were given, the accused’s physical and mental characteristics, the location of




                                             -8-
the interrogation, and the conduct of the police officers.1 Lucero, 133 F.3d at 1311.

       In deciding initially to suppress the witness’ statements and bar her from testifying

at trial, the district court focused almost exclusively on the escape clause language of the

arrest warrant. In particular, the court concluded the warrant “was blatantly tailored to

obtain information and testimony” from the witness because she “could escape arrest

[only] if she divulged everything she knew about the Garcia homicide.” Record VII, Doc.

2011 at 10. Notably, the court’s initial order contained no factual findings concerning

whether or when the witness was informed of the escape clause provision.

       Pursuant to the government’s motion for reconsideration, the district court

considered supplemental testimony from Lewis and the subject witness concerning what

events led to the witness’ decision to confess and cooperate. Lewis testified he informed

the witness “she was under arrest for a warrant issued out of the State of New Mexico,”

Record XXV at 742, read the charges in the warrant to the witness, allowed her to read the

affidavit in support of the warrant, and informed the witness of her Miranda rights.

According to Lewis, the witness responded by asking to contact her probation officer.



       1
          We reject the government’s argument that a non-defendant witness’ statement
that incriminates a defendant is subject to suppression only if the statement was the
product of torture or extreme coercion beyond the level of coercion required for
suppression of a defendant’s own confession. As we noted in Clanton, “methods
offensive when used against an accused do not magically become any less so when
exerted against a witness.” 129 F.3d at 1158. Consequently, the standard for determining
whether a statement was voluntary is the same whether we are dealing with a defendant or
a third-party witness.

                                             -9-
After she spoke by telephone to her probation officer, she informed Lewis “that the

information in the affidavit was substantially correct and that she wished to cooperate with

[him] in [the] investigation.” Id. at 778. Lewis testified that “[s]ometime during the

interview after this point, after [they] had been speaking together for a period of time, [the

witness] asked to look at the warrant again.” Id. In response, Lewis gave her the entire

warrant, including the portion containing the escape clause.

       In her deposition, the witness testified she understood when Lewis and Ainsworth

asked to talk to her that she might be charged with conspiracy and other crimes. She

testified the agents informed her of her right to have an attorney, but she declined

“[b]ecause [she] didn’t feel [she] needed an attorney.” Record VII, Doc. 2019, Exh. A at

16. Although she testified the warrant provided she was not to be removed if she

cooperated with the agents, she did not testify specifically as to when she first learned of

the escape clause in the warrant. Moreover, she could not remember what the agents told

her before she started giving her statement.

       In denying the government’s motion for reconsideration and affirming its decision

to suppress the witness’ statement and testimony, the district court rejected Lewis’

testimony that the witness was not shown the escape clause prior to agreeing to cooperate.

In particular, the court stated: “As with other assertions in his testimony, the Court did not

find Detective Lewis to be credible on this point, due to his demeanor in responding to

questions posed to him by defense counsel at the hearing.” Record VII, Doc. 2055 at 58-


                                               -10-
59. Ultimately, the court concluded that “[w]hether Ms. Tello was actually shown and

allowed to read the full warrant prior to her decision to cooperate with the Government is

of little significance, as [the witness’] sworn testimony at her . . . deposition indicates that

she was fully aware of the ‘choice’ the officers were presenting to her when she decided to

cooperate.” Id. at 59.

       After reviewing the record on appeal, we conclude the district court’s factual

findings in this regard were clearly erroneous. Although we generally defer to a trial

court’s credibility determinations, see Manning v. United States, 146 F.3d 808, 813 (10th

Cir. 1998); United States v. Hunicutt, 135 F.3d 1345, 1348 (10th Cir. 1998), the district

court in this case rejected Lewis’ testimony out-of-hand, even though there was no

evidence to contradict it. In particular, Lewis’ testimony that the witness was not aware of

the escape clause until after she admitted to the facts in the affidavit and agreed to

cooperate was not contradicted by the witness’ testimony. To the contrary, the witness did

not indicate when she first learned of the escape clause and her testimony can therefore be

read in complete harmony with Lewis’ testimony. We are thus left with the conclusion

that the district court had no evidentiary support for its finding that the witness “was fully

aware of the ‘choice’ the officers were presenting to her when she decided to cooperate.”

Record VII, Doc. 2055 at 59.

       Having rejected the district court’s finding that the witness was aware of the escape

clause prior to her admission and agreement to cooperate, we find nothing else in the


                                              -11-
record to persuade us her statements were coerced. Although the court repeatedly referred

to the witness as a “juvenile,” the uncontroverted facts indicate she was eighteen years old

at the time of arrest and entitled to be treated as an adult. In any event, the court’s

suggestion that the witness should have been allowed to speak to her parents is incorrect.

See, e.g., United States v. Doe, 155 F.3d 1070, 1073 (9th Cir. 1998) (en banc) (no due

process requirement that juvenile’s parents be notified for waiver of Miranda rights to be

valid); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996) (neither federal statutory nor

constitutional law requires juvenile’s parents be notified prior to obtaining confession),

cert. denied, 117 S. Ct. 973 (1997). Further, although the district court found the witness

“had only minutes to make her decision, with no help from an attorney . . . or a judge,” we

find nothing coercive from these findings when considered in light of all of the

circumstances. Record VII, Doc. 2055 at 54. The witness’ deposition testimony clearly

indicates she understood she had the right to consult with an attorney, but knowingly chose

not to do so. Further, there is no authority to support the notion that the witness was

entitled to speak with a judge prior to making her decision. The uncontroverted facts

indicate the witness was not pressed for an immediate decision, but instead was given the

opportunity, at her request, to speak by telephone with her probation officer.

       Ultimately, we conclude the subject witness’ statements were not coerced and the

district court erred in concluding otherwise. We therefore reverse the court’s suppression




                                              -12-
order to the extent it was based on its conclusion that the statements were involuntary.2

                                    Supervisory Power

       The district court’s suppression order was also based in part on the exercise of its

supervisory powers. More specifically, the court concluded suppression of the subject

witness’ statement and trial testimony was a proper sanction for perceived government

misconduct in obtaining the arrest warrant, allegedly coercing the witness’ statements, and

thereafter preventing the defense from contacting her.

       The district court concluded the arrest warrant was invalid. In particular, it

concluded the warrant was federal in character, but failed to satisfy relevant provisions of

federal law. We find it unnecessary to review the court’s findings in this regard because

defendants lack standing to challenge violations of the witness’ Fourth Amendment rights.

See United States v. Padilla, 508 U.S. 77, 81-82 (1993); United States v. Payner, 447 U.S.

727, 731-32 (1980). Further, we conclude the court’s supervisory powers did not authorize

it to order suppression of the witness’ statements and testimony based upon any perceived

violations of the witness’ Fourth Amendment rights.

       The district court’s suppression order was also based in part on its finding that the



       2
         Because we conclude the witness’ statements were voluntary, there is no
presumption that those statements were false or otherwise unreliable. Accordingly, we
find no indication that defendants’ due process rights will be affected by admission of the
witness’ statements, or by the witness testifying, at trial. Further, we find it unnecessary
to address what procedures a district court should follow in the event that proffered
statements from a third-party witness are proven to be involuntary.

                                             -13-
witness’ statements had been coerced. Because we have concluded the government did not

act improperly in obtaining the witness’ statements, we cannot approve of any sanction

imposed by the court on that basis.

       We find firmer footing in the district court’s finding that the government knowingly

and intentionally violated discovery orders and misrepresented the witness’ status and

whereabouts to the court and defense counsel. Although Fed. R. Crim. P. 16 is inapplicable

here because it does not require the government to make its witnesses available for defense

interviews, it is “a helpful point of reference for our analysis by describing the district

court’s authority to remedy discovery infractions in analogous circumstances.” See United

States v. Russell, 109 F.3d 1503, 1510-11 (10th Cir.), cert. denied, 117 S. Ct. 2525 (1997).

District courts have broad discretion in imposing sanctions on parties who violate discovery

orders, and we review a court’s decision to impose sanctions and its choice of sanction for

abuse of discretion. United States v. Ivy, 83 F.3d 1266, 1280 (10th Cir.), cert. denied, 117

S. Ct. 253 (1996). Under Rule 16, sanctions may include prohibiting the disobedient party

from introducing evidence not disclosed earlier. See United States v. Wicker, 848 F.2d

1059 (10th Cir. 1988). Even where Rule 16 is inapplicable, the courts have discretion to

exclude evidence as a sanction for violation of a discovery order. Russell, 109 F.3d at

1510-11.

       Based upon our review of the record, we conclude the district court did not abuse its

discretion in choosing to sanction the government for what were obvious discovery


                                              -14-
violations. Although the defense had no right to interview the witness under Rule 16, it had

a right to be free from prosecution interference with a witness’ freedom of choice about

whether to talk to the defense. See United States v. Pinto, 755 U.S. 150, 152 (1985);

United States v. Troutman, 814 F.2d 1428, 1453-54 (10th Cir. 1987). This right was

emphasized in the court’s order of May 28, 1996, which directed the government to provide

“face-to-face” access to its confidential witnesses.3 See United States v. Carrigan, 804 F.2d

599, 603-04 (10th Cir. 1986) (district court has power, at least in unusual circumstances, to

order taking of adverse witnesses’ depositions in criminal cases and to prevent government

interference with defense access to potential prosecution witnesses). The government’s

response to the defense investigator’s attempt to interview the subject witness clearly

interfered with defense access and “violated the spirit and mandate of the Court’s May 26

order.” Record VII, Doc. 2055 at 71. In addition to this violation, the government misled

the court and defense counsel, on repeated occasions, concerning its knowledge of the

witness’ whereabouts and its control over her. Finally, the government inexcusably delayed

disclosure to defendants of the arrest warrant and reports of government interviews with the

witness.

       We now turn to the question of the appropriateness of the sanction selected by the

district court. In selecting a proper sanction, a court should typically consider (1) the



       3
        Because the government did not appeal this order, we do not pass on whether it
was appropriate under the Federal Rules of Criminal Procedure.

                                              -15-
reasons the government delayed producing requested materials, including whether the

government acted in bad faith; (2) the extent of prejudice to defendant as a result of the

delay; and (3) the feasibility of curing the prejudice with a continuance. Russell, 109 F.3d

at 1511. The court should impose the least severe sanction that will accomplish prompt and

full compliance with the discovery order. Ivy, 83 F.3d at 1280.

       The district court in this case effectively considered the three factors. After

reviewing the record, we agree with the court that the government’s conduct was the

product of flagrant bad faith and that defendants’ ability to prepare for trial was prejudiced

by the government’s obstruction of access to the subject witness. However, we do not

share the court’s view that the prejudice to defendants was irreparable. In particular, we

are not convinced the witness’ testimony is forever “tainted” by the government’s discovery

violations. Indeed, we find no record support whatsoever for that conclusion. Accordingly,

we reject, as an abuse of discretion, the court’s conclusion that “[t]he problems attendant

with the Government’s misconduct . . . cannot be cured by granting the defense a

continuance.” Record VII, Doc. 2055 at 115.

       We further conclude the district court abused its discretion in imposing what was

obviously the most severe available sanction, i.e., complete suppression of the witness’

statements and trial testimony. In reaching this conclusion, we emphasize the Supreme

Court has never approved exclusion of evidence as a sanction for government misconduct

in the absence of a constitutional violation or statutory authority for such exclusion.


                                             -16-
Indeed, the Court has emphasized that “penalties visited upon the Government, and in turn

upon the public, because its officers have violated the law must bear some relation to the

purposes which the law is to serve.” United States v. Ceccolini, 435 U.S. 268, 279 (1978).

Here, we are convinced the sanction of total exclusion is too severe and hinders, rather than

forwards, the “public interest in a full and truthful disclosure of critical facts.” Taylor v.

Illinois, 484 U.S. 400, 412 (1988).4 Accordingly, we find it necessary to remand to the

district court for consideration of less severe sanctions. Although the court is free to

fashion an appropriate remedy, possible sanctions could include, among other things,

allowing the witness to be redeposed by defense at government expense, censuring or

fining the government attorneys involved in the misconduct, or recommending disciplinary

proceedings against the government attorneys involved.

       The judgment of the district court is AFFIRMED in part and REVERSED in part,

and this case is REMANDED for further proceedings consistent with this opinion.




       4
        Although the dissent suggests Taylor supports the district court’s sanction of
exclusion, a review of Taylor demonstrates it is factually distinguishable from the case at
hand. In particular, the discovery violations in Taylor occurred during trial, not well
beforehand. That difference alone is pivotal.

                                              -17-
No. 97-2277, United States v. Gonzales et al.

McKAY , Circuit Judge, concurring in part and dissenting in part:



      Although I concur in most of the majority’s opinion, I cannot agree with its

determination that the district court’s sanction which precluded the government’s

witness’ testimony and statement was an abuse of discretion. The majority

“agree[s] with the [district] court that the government’s conduct was the product of

flagrant bad faith and that the defendants’ ability to prepare for trial was prejudiced

by the government’s obstruction of access to the subject witness.” Ante, at 16.

The majority states, however, that it does “not share the [district] court’s view that

the prejudice to defendants was irreparable” because it is “not convinced that the

witness’ testimony is forever ‘tainted’ by the government’s discovery violations.”

Id. The majority concludes that the district court abused its discretion in two

manners: (1) in concluding that the government misconduct could not be cured by

a continuance, and (2) in imposing the most severe sanction available.    See id. I

respectfully dissent from this conclusion because I believe that the majority has

disregarded controlling Supreme Court precedent, has misinterpreted Tenth Circuit

law which frames the analysis for the imposition of sanctions, and has taken the

“discretion” out of the abuse of discretion standard.
       The district court is invested “with broad discretion in coping with discovery

order violations.”     United States v. Russell , 109 F.3d 1503, 1510 (10th Cir.),    cert.

denied ,    U.S.       , 117 S. Ct. 2525 (1997);     see also United States v. Wicker , 848

F.2d 1059, 1060 (10th Cir. 1988). As noted by the majority, although Federal Rule

of Criminal Procedure 16 does not govern this case, it provides guidance in

analogous circumstances. Rule 16 provides that if a party fails to comply with a

discovery order, “the court may order such party to permit the discovery or

inspection, grant a continuance, or prohibit the party from introducing evidence not

disclosed, or it may enter such other order as it deems just under the

circumstances.” Fed. R. Crim. P. 16(d)(2). In          Wicker , we approved of the district

court’s reliance upon three factors to evaluate sanctions imposed on the government

for its discovery violations. Those factors are (1) the reasons for the delay,

“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.”      Wicker , 848 F.2d at 1061. In this case, the majority concedes that

the court “effectively considered the three factors,” ante, at 16, but concludes that

the district court abused its discretion as to factors two and three. In making this

determination, the majority not only ignores the Supreme Court’s decision in          Taylor




                                               -2-
v. Illinois , 484 U.S. 400 (1988), in which the Court framed the analysis for a

sanction excluding a witness’ testimony, but it also misinterprets the test in     Wicker .

       Taylor involved the exclusion of an alibi witness of whom the defense had

known but had failed to disclose in response to the government’s pretrial discovery

request. The defendant challenged the trial court’s exclusion of the witness as a

sanction for the discovery violation, alleging that it violated his right to present

witnesses under the Compulsory Process Clause of the Sixth Amendment.             In

determining whether a preclusion sanction is appropriate, the Court mandated that a

trial court exercise its discretion by balancing a defendant’s fundamental right “to

offer the testimony of witnesses in his favor” against countervailing public

interests. Id. at 414. These interests include “[t]he integrity of the adversary

process, which depends both on the presentation of reliable evidence and the

rejection of unreliable evidence, the interest in the fair and efficient administration

of justice, and the potential prejudice to the truth-determining function of the trial

process.” Id. at 414-15. The trial court may also consider the willfulness of the

violation, the simplicity of compliance with the discovery obligation, and whether

some unfair tactical advantage has been sought.        See id. at 415-17. In light of these

factors, the Court upheld the exclusion of the defendant’s witness. The Court

emphasized that the defendant had acted willfully and in bad faith in not disclosing

the witness until the second day of trial after the prosecution’s primary witness had


                                              -3-
testified. See id. at 416-17. Therefore, the Court stated, “Regardless of whether

prejudice to the prosecution could have been avoided [by a less severe

sanction] . . . , it [was] plain that the case fit[] into the category of willful

misconduct in which the severest sanction [was] appropriate.”              Id. at 417.

       In this case, the district court determined that the nature of the government’s

misconduct, i.e., its repeated bad faith and its inexcusable, intentional violations of

discovery orders, required the severest sanction. The question before this court is

not whether this sanction was the remedy we would have chosen, or even whether

we think the remedy is unduly harsh. Despite the majority’s statement to the

contrary, the district court was not    required to impose a less severe sanction even if

it determined that a sanction such as a continuance could minimize the prejudice to

Defendant. Although a milder sanction may diminish the prejudice caused by the

discovery violation, where bad faith is the reason for the violation,          see id. at 417, a

lesser alternative would be less effective and “would perpetuate rather than

limit . . . the harm to the adversary process.”         Id. at 413. It is the court’s role to

manage the adversary process and, when it finds in its broad discretion that it is

necessary, to punish blatant and intentional violations of the structures inherent in

that process. Here, as in   Taylor , the discovery violations were inexcusably

deliberate, in bad faith, and sufficiently serious to warrant the severe sanction of

witness preclusion. Guided by the standard governing civil cases, duly noted by the


                                                  -4-
Supreme Court in Taylor , the district court limited the preclusion sanction in this

case to flagrant misconduct, “where the uncooperative party demonstrate[d] a

‘deliberate contumacious or unwarranted disregard of the court’s authority.’”          Id. at

417 n.23 (citations omitted). Because the district court sanctioned the government

primarily for its intentional and misleading discovery violations, I do not see how

the majority can ignore the principles set forth in      Taylor to find an abuse of

discretion. The district court was within its discretion to determine that the

government’s misconduct fit “into the category of willful misconduct in which the

severest sanction [was] appropriate.”         Id. at 417. There can be no abuse of

discretion in this instance.

       Further, the court’s analysis of the      Wicker factors misconstrues the limits of

those factors. There is no evidence that the district court failed to consider the

important factors set forth by    Wicker . As noted above, the majority concedes that

the court “effectively considered the three factors.” Ante, at 16. Nor does the

majority dispute that the government’s discovery violations were knowing,

intentional, and a product of willful bad faith, which satisfied the first    Wicker




                                                -5-
factor. 1 Nevertheless, the majority rejects the district court’s conclusion under

Wicker that the government’s misconduct could not be cured by a continuance.

Notably, the majority does not explain why it rejects the court’s view that the

prejudice from this egregious misconduct was so irreparable that it demanded the

exclusion of the witness. More importantly, neither        Taylor nor Wicker requires

that the harm or prejudice to the defendant be irreparable. In fact,     Taylor and

numerous circuit courts including this one have informed us that if bad faith is the

reason for the violation, as it indisputably was in this case, prejudice to the other

party need not exist at all.   See Taylor , 484 U.S. at 413, 417 (emphasizing that the

defendant’s willful bad faith alone would justify suppression even if the

prosecution suffered no prejudice or if a lesser sanction would minimize any

prejudice); Russell , 109 F.2d at 1512 (stating that “if bad faith were involved,

exclusion would have been proper regardless of prejudice or the feasibility of a

continuance”); United States v. de la Cruz-Paulino       , 61 F.3d 986, 995 (5th Cir.

1995) (“Where governmental noncompliance is the result of bad faith, exclusion of

the undesignated evidence may be appropriate.”);        cf. Eckert v. Tansy , 936 F.2d

444, 446 (9th Cir. 1991) (determining that bad faith of defendant and ease of


       1
        As in Taylor, the government in this case could easily have complied with the
discovery orders. Also, I note that, if the court’s May 28, 1996 discovery order was
inappropriate, the proper response by the government would have been to appeal that
order, not to willfully and intentionally violate it. The government, however, did not
object to that order.

                                              -6-
compliance with alibi statute supported exclusion of proffered witness);        United

States v. Cueto , 628 F.2d 1273, 1276 (10th Cir. 1980) (stating that suppression of

evidence was not justified without evidence of government’s willful withholding of

exculpatory material).

       Thus, contrary to the majority’s analysis, the three    Wicker factors are not

dispositive. This court emphasized in      Russell what we stated in Wicker : The

Wicker factors “do not dictate the bounds of the court’s discretion.”        See Russell ,

109 F.3d at 1511. We specifically explained in       Russell that, although the Wicker

factors always should be considered, “     Wicker itself states explicitly that its factors

are neither exhaustive nor dispositive.”     Id. at 1151 n.6 (interpreting   Taylor as

allowing courts to weigh       Wicker factors and consider one factor more compelling

than another). In short, the     Wicker factors are merely guidance for the court in its

consideration of sanctions.      See Wicker , 848 F.2d at 1061. The majority’s second-

guessing of the court’s finding of prejudice is inapposite. The district court’s

decision to impose a preclusion sanction, based on its determination that the

government’s discovery violations knowingly caused delay and were intentionally

misleading, was not an abuse of discretion under Supreme Court and Tenth Circuit

precedent.

       I also dissent because I believe that the court’s analysis of the sanction

question defeats the meaning of our abuse of discretion standard of review and


                                              -7-
creates a double standard. Courts have often determined that a court’s preclusion

sanction is not an abuse of discretion where the offending party is the defendant.

See, e.g. , Russell , 109 F.3d at 1511-13; Eckert , 936 F.2d at 446; Chappee v. Vose ,

843 F.2d 25, 31-32 (1st Cir. 1988). When a court determines that a sanction is

justified by bad faith discovery violations, the structural analysis should not change

according to whether the party is the criminal defendant, the prosecution, a civil

plaintiff, or a civil defendant.   The analytical difference between these situations

occurs when a criminal defendant’s constitutional rights are implicated by the

suppression of his witness. In that instance, the question is whether preclusion is

so harsh a sanction as to offend the Constitution.    See Taylor , 484 U.S. at 409.

Because the abuse of discretion standard is much less demanding than the

constitutional one, the district court’s discretionary determination in this case is

even more compelling than the Supreme Court’s decision in       Taylor . While Taylor

implicated overriding Sixth Amendment concerns, this case affects only the

government’s ability to present one witness in its prosecution of Defendants. The

majority’s analysis not only fails to give the district court’s decision the deference

it deserves but also it applies a seemingly more lenient standard to misconduct by

government attorneys than to misconduct by criminal defense counsel.

       Finally, to ascertain whether the preclusion sanction violated the defendant’s

constitutional rights in   Taylor , the Supreme Court also examined whether “the


                                             -8-
client should be held responsible for his lawyer’s misconduct.”     Id. at 417. The

Supreme Court held that, putting aside “the exceptional cases in which counsel is

ineffective, the client must accept the consequences” of the lawyer’s management

of the trial. Id. at 418. The Court’s determination in   Taylor reflects the implicit

balancing of the interests of the client against the integrity of the adversary process.

This analysis is contrary to the majority’s underlying view, which positions the

people against the defendant by determining that the preclusion sanction is too

harsh. Just as criminal defendants must accept the consequences of their lawyers’

trial management decisions, so must the government accept the consequences of

and take responsibility for the conduct of its lawyers. Rewarding the government

with lenient sanctions for its willful misconduct effectively punishes the defendant

and, in my view, is inequitable. For these reasons, I respectfully dissent and would

not remand the case for consideration of less severe sanctions.




                                            -9-
