In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2045

United States of America,

Plaintiff-Appellee,

v.

Ruben R. De La Rosa, Jr.,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Indiana, Hammond
Division.
No. 97 CR 106--Rudy Lozano, Judge.


Argued January 20, 1999--Decided October 29,
1999



  Before Coffey, Ripple, and Kanne, Circuit
Judges.

  Coffey, Circuit Judge. Ruben De La Rosa
("De La Rosa") filed a pretrial "Motion
to Bar Government From Introducing at
Trial Substance of Defendant’s Post-
Arrest Statement Due to a Governmental
Violation of FRCrP Rule 16" and argued
that the government belatedly disclosed
his post-arrest statement in violation of
Rule 16(a)(1)(A) of the Federal Rules of
Criminal Procedure. The trial judge
denied the motion. After a jury found
that De La Rosa was guilty of conspiring
to possess cocaine and possession of
cocaine, De La Rosa filed a motion for a
new trial. The district court granted the
government’s motion to strike his motion
for a new trial because De La Rosa failed
to comply with the court’s order to file
a supporting memorandum with citation to
legal authority. De La Rosa appeals,
contending that the denial of his motion
to exclude his confession rendered his
trial unfair, and that the district court
abused its discretion in striking his
motion for a new trial. We affirm.

I.   Background
  At De La Rosa’s probable cause and
detention hearing on July 31, 1997, DEA
Task Force Agent David Zamora testified
that, based on a tip from a confidential
informant, DEA agents and Schererville,
Indiana police set up surveillance along
Highway 30 from Chicago to Schererville.
Agent Zamora also testified that he
stopped and searched the car in which De
La Rosa and Barron were traveling and
seized approximately two kilograms of
cocaine hidden in the car’s "air vent."
Agent Zamora further stated that after De
La Rosa’s arrest, he advised De La Rosa
of his Miranda rights and De La Rosa
waived his rights to remain silent and to
have counsel present during
interrogation. De La Rosa further stated
that, in July 1997, he and Barron had
traveled from Los Angeles, California to
Chicago, Illinois in search of
employment. According to Agent Zamora, De
La Rosa also told him that he and Barron
stayed at a motel in Alsip, Illinois,
where Barron purchased the two kilograms
of cocaine they had hidden in the car’s
air vent.

  Based at least partially on the
testimony recited above, a federal grand
jury sitting in the Northern District of
Indiana charged De La Rosa and Gerardo
Hernandez Barron ("Barron") in a two
count indictment with conspiracy to
possess with intent to distribute
cocaine, in violation of 21 U.S.C.
sec.sec. 846 and 841(a)(1), and
possession with the intent to distribute
cocaine, in violation of 21 U.S.C. sec.
841(a)(1), in August of 1997.

  Following De La Rosa’s arraignment on
August 26, 1997, the magistrate judge
entered a pretrial order requiring the
government to permit De La Rosa upon
request to inspect or copy any "written
or recorded statements or confessions
made by the defendant." The order further
directed that at a pretrial conference
scheduled for October 16, 1997, the
parties were to "be prepared to discuss
and consider" all confessions and
admissions. In December 1997 co-defendant
Barron pled guilty to the possession
charge, and De La Rosa’s trial was
scheduled to commence on January 5, 1998.
The magistrate judge scheduled a second
pretrial conference for December 19, 1997
after De La Rosa’s original trial date
was adjourned. At this second conference,
the government maintained its contention
that it had fulfilled all its Rule 16/1
requirements. At this time, the
magistrate judge granted De La Rosa’s
unopposed motion to substitute retained
counsel for his court-appointed counsel.

  Late in the afternoon on December 31 the
government faxed to defense counsel a
report, prepared on July 25, 1997 by
Agent Zamora, which included a summary of
De La Rosa’s post-arrest statement. The
report noted that De La Rosa, after being
advised of his Miranda warnings and
signing a written waiver, admitted that
he had: (1) traveled with Barron to
Illinois from California looking for
employment; (2) stayed at an Illinois
motel where Barron purchased two
kilograms of cocaine and then hid them in
the car’s air vent; (3) known where the
cocaine was hidden; and (4) met with
Barron’s brother-in-law so that the
brother-in-law could inspect the cocaine.
The report goes on further to state that
De La Rosa refused to make any further
statements or answer questions without an
attorney present.

  At trial, De La Rosa moved to bar the
government from introducing in evidence
his post-arrest statement under Rule
16(d)(2), arguing that it should have
been "disclosed routinely as Rule 16
material" and if disclosure had been
timely he would have conducted further
investigation and moved to suppress the
statement. At the hearing on the motion,
government counsel conceded that earlier
disclosure would have been preferable,
but argued that the delay had been
inadvertent and that in any event the
December 31, 1998 disclosure satisfied
the magistrate judge’s discovery
schedule. Moreover, government counsel
asserted that Agent Zamora’s testimony at
the detention hearing substantially
recited De La Rosa’s post-arrest
statement. Judge Lozano offered to
continue the trial "for a few days" to
allow De La Rosa additional time to
investigate the statement further, but De
La Rosa rejected the proposal, stating
that he had already been in detention for
six months. Although defense counsel
acknowledged that he had not requested
Rule 16 disclosure (as required), he
nevertheless insisted that the government
was obligated to disclose De La Rosa’s
statements earlier and maintained that
because the government, in his opinion,
had failed to disclose the statement in a
timely manner, the appropriate remedy was
exclusion of the statement. The trial
judge disagreed with De La Rosa’s
counsel’s assertion that exclusion of the
statement was the sole appropriate remedy
and found that even if the government
erred in failing to disclose the
statement earlier, a continuance of the
trial to give defense counsel additional
time to review the materials would cure
any arguable prejudice. The court also
advised De La Rosa that it would grant a
"short continuance" for further
investigation if De La Rosa’s counsel
deemed it necessary and filed the proper
motion. Defense counsel never did request
a continuance, and De La Rosa’s trial
commenced as previously scheduled./2

  At trial, Zamora again testified that
after his arrest De La Rosa confessed
that he was aware that Barron had
obtained two kilograms of cocaine from an
unknown source, that the cocaine was
concealed in the car, and further that at
the time of his arrest he was traveling
with Barron with the knowledge that they
were on the way to meet a prospective
drug buyer. After the jury returned
guilty verdicts on both counts, De La
Rosa moved for a new trial, arguing among
other things that the court had erred in
denying the motion to exclude his post-
arrest statement. Because the new trial
motion failed to cite any of the required
legal authority, the court noted in a
written order that it would "take [the]
motion under advisement pending further
briefing with authorities" and ordered De
La Rosa to "supply such a brief within
fifteen days." Because De La Rosa never
complied with the district court order,
the judge granted the government’s motion
to strike De La Rosa’s motion for a new
trial.

II.   Issues

  On appeal, De La Rosa argues that the
trial court improperly denied the motion
to exclude his post-arrest statement and
erroneously granted the government’s
motion to strike his motion for a new
trial. We review the court’s denial of De
La Rosa’s Rule 16(d)(2) motion for an
abuse of discretion, see United States v.
Jackson, 51 F.3d 646, 651 (7th Cir.
1995), and review its grant of the motion
to strike under the same standard, see
Maldonado v. U.S. Bank, 186 F.3d 759, 768
(7th Cir. 1999).

III.   Analysis

  If a party fails to comply with Rule 16,
the trial 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). The trial court
generally has discretion to fashion an
appropriate sanction, see Jackson, 51
F.3d at 652, but a new trial is warranted
only after all other, less drastic
remedies are inadequate. See United
States v. Dennis, 115 F.3d 524, 534 (7th
Cir. 1997). Although a court may exclude
evidence to remedy a discovery violation,
exclusion is but one potential remedy.
See Jackson, 51 F.3d at 651-52. Moreover,
this court will not disturb a ruling on a
motion for Rule 16 sanctions absent a
showing of prejudice. See United States
v. Salerno, 108 F.3d 730, 743 (7th Cir.
1997). A defendant is prejudiced under
Rule 16 only when he is unduly surprised
and lacks an adequate opportunity to
prepare a defense, or when the violation
substantially influences the jury. See
id. at 744.

  On appeal, De La Rosa’s counsel argues
that Rule 16(a) (1)(A) required the
government to timely disclose De La
Rosa’s statement in spite of the fact
that the defendant failed to make a
timely request for it. Contrary to De La
Rosa’s unsupported assertions, this and
other courts have consistently recognized
that a proper request must be made to
trigger the duty to disclose under Rule
16. See United States v. Navarro, 90 F.3d
1245, 1259 (7th Cir. 1996); United States
v. Gio, 7 F.3d 1279, 1284 n.4 (7th Cir.
1993); United States v. Crass, 50 F.3d
81, 83 (1st Cir. 1995); United States v.
Lewis, 35 F.3d 148 (4th Cir. 1994);
United States v. Matthews, 20 F.3d 538,
549-50 (2d Cir. 1994). Notwithstanding
this, De La Rosa insists that the 1974
amendment to Rule 16 requiring
"mandatory" disclosure eliminated the
requirement that Rule 16(a)(1)(A)
disclosure be requested. We disagree.
  The Advisory Committee Notes to Rule 16,
which De La Rosa fails to acknowledge,
provide that "[s]ubdivision (a)(1)(A)
amends the old rule to provide, upon
request of the defendant, the government
shall permit discovery if the conditions
specified in subdivision (a)(1)(A)
exist." Fed. R. Crim. P. 16 advisory
committee’s note (1974 Amendment)
(emphasis added). Accordingly, the 1974
Amendments to Rule 16 did not alter De La
Rosa’s responsibility to request that the
government produce any and all documents
pertaining to the statements he made to
Agent Zamora. Because De La Rosa failed
to file a proper request for these
materials, we affirm.

  Even assuming that the government
violated Rule 16 by failing to disclose
Agent Zamora’s report earlier, De La
Rosa’s claim nonetheless fails because he
has failed to demonstrate that he
suffered any prejudice from the asserted
delay in receiving the report. As noted
above, Agent Zamora, at De La Rosa’s
detention hearing, testified concerning
De La Rosa’s post-arrest statement,
stating that De La Rosa confessed to: (1)
obtaining a motel room at Barron’s
direction; (2) knowing that Barron
received two kilograms of cocaine at the
motel from an unknown source; (3) knowing
where the cocaine was hidden in the car;
and (4) meeting Barron’s brother-in-law
so that he could inspect the cocaine.
Although defense counsel made the
argument that Judge Lozano did not review
the detention hearing tape or transcript
before ruling on his motion to
suppress,/3 he has failed to
demonstrate what prejudice De La Rosa
suffered as a result of the asserted
delay--a burden that rested with the
defense. See Salerno, 108 F.3d at 743.
Instead of addressing what prejudice, if
any, De La Rosa suffered, defense counsel
simply elected to challenge the remedy
that the district court proposed.

  Without doubt, the judge’s offer to
continue the trial was an adequate remedy
in this case but sadly De La Rosa
declined the offer. As De La Rosa argues,
this is a relatively straightforward case
involving a conspiracy of limited scope,
and De La Rosa has failed to convince us
that the facts underlying his confession
could not have been investigated in the
time between the confession’s disclosure
and the onset of trial. And although De
La Rosa argues that locating witnesses in
just "a few days" would have been
difficult, he has failed to demonstrate
that the period of time the district
court offered would have been
insufficient to contact them. Nor has he
ever identified the witnesses he was
referring to, much less what the
witnesses would have testified to, or
that the testimony was relevant and would
have contradicted Agent Zamora’s
testimony. Moreover, the remedy to which
De La Rosa insists he is entitled--
exclusion of his confession--is
inappropriate where "the trial court
finds that the government’s violation did
not result from its bad faith and . . .
a less drastic remedy (such as a
continuance) will mitigate any unfair
prejudice." United States v. Marshall,
132 F.3d 63, 70 (D.C. Cir. 1998); see
also United States v. Charley, 176 F.3d
1265, 1274 (10th Cir. 1999) (internal
quotations and citation omitted)
(exclusion "is almost never imposed in
the absence of a constitutional violation
or statutory authority for such
exclusion"). As we have pointed out
earlier, De La Rosa has failed to make
any showing of prejudice from the
asserted delay and there has been no
finding of bad faith on the part of the
government. Given that a continuance is
cited in Rule 16 as a possible remedy for
a violation of the rule and a continuance
would have permitted defense counsel
ample opportunity to conduct whatever
investigation he deemed necessary, the
trial judge did not abuse his discretion
in offering a continuance, as opposed to
excluding the statement, as a remedy for
the alleged Rule 16 violation.

  De La Rosa’s challenge to the judge’s
granting of the government’s motion to
strike his motion for a new trial is
likewise without merit. In his motion, De
La Rosa asserted, once again without the
necessary citation to legal authority,
that the district court erred in: (1)
denying his motion to bar the government
from introducing in evidence his post-
arrest statement; (2) denying his motion
for a judgment of acquittal; (3) refusing
to strike from the record all statements
that the government argued were
admissible as co-conspirator statements;
(4) denying him acquittal based on the
government’s alleged failure to establish
that he was a member of the conspiracy;
(5) introducing over his objection a
particular jury instruction (although he
does not specify why he finds the
instruction objectionable); and (6)
denying the jury instruction he requested
identifying Jose Garcia as a "missing
witness" who could have provided
testimony material to his defense.
Although De La Rosa raised all of these
grounds in his new trial motion, on
appeal he has abandoned all grounds other
than the purported Rule 16 violation. On
appeal, he only argues that because the
merits of his motion to exclude his post-
arrest statement under Rule 16(d)(2) had
been "extensively argued" before the
court ordered him to submit a supporting
memorandum of law, the court’s order that
he file such a brief was by implication
"discretionary." Our rejection of De La
Rosa’s Rule 16 claim renders harmless any
alleged error in the district court’s
decision to strike his motion for a new
trial.

  For the foregoing reasons, the judgment
of the district court is

AFFIRMED.


/1 Fed. R. Crim. P. 16(a)(1)(A) provides that

[u]pon request of a defendant the government must
disclose to the defendant and make available for
inspection, copying or photographing: any
relevant written or recorded statements made by
the defendant, or copies thereof, 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; that
portion of any written record containing the
substance of any relevant oral statement made by
the defendant whether before or after arrest in
response to interrogation by any person then
known to the defendant to be a government agent
. . . . The government must also disclose to the
defendant the substance of any other relevant
oral statement made by the defendant whether
before or after arrest in response to
interrogation by any person then known to the
defendant to be a government agent if the
government intends to use that statement at
trial.


/2 This may have been because De La Rosa did not
want the trial adjourned; evidenced by the fact
that he had previously complained about his six
month confinement prior to trial.

/3 In making this argument, counsel relied on the
trial judge’s statement that he was taking "into
account the fact that much of [De La Rosa’s
statement] allegedly was [discussed] during
thedetention hearing." Counsel relies on the fact
that the trial judge used the word allegedly and
argues that this implies that the judge did not
review the detention hearing tape. This is simply
not the case. The judge’s use of the word
allegedly does not imply that he was unfamiliar
with the detention hearing proceedings. Rather,
the trial judge was merely paraphrasing the
arguments made by the government.
