MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2018	ME		22	
Docket:	   And-17-236	
Argued:	   December	14,	2017	      	     	     	    	      	
Decided:	  February	6,	2018	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                           	
                                          v.	
                                           	
                                   ABDI	A.	HASSAN	
	
	
GORMAN,	J.	

      [¶1]	 	 The	 State	 of	 Maine	 appeals	 from	 a	 judgment	 of	 the	 trial	 court	

(Androscoggin	 County,	 Oram,	 D.C.J.)	 denying	 its	 motion	 to	 reconsider	 the	

court’s	order	dismissing,	with	prejudice,	thirteen	of	the	State’s	fifteen	counts	

against	Abdi	A.	Hassan	as	a	sanction	for	the	State’s	alleged	discovery	violation.		

The	State	argues	that	the	court	erred	as	a	matter	of	law	by	concluding	that	it	

violated	 its	 discovery	 obligations.	 	 We	 agree	 that	 the	 State	 did	 not	 commit	 a	

discovery	violation,	vacate	the	judgment,	and	remand	the	case	for	trial.	
2	

                                        I.		BACKGROUND	

         [¶2]		A	grand	jury	indicted	Hassan	on	December	4,	2013.1		The	indictment	

consisted	 of	 two	 counts	 of	 theft	 by	 deception	 (Class	 B),	 17-A	 M.R.S.	 §	 354	

(2017);	seven	counts	of	aggravated	forgery	(Class	B),	17-A	M.R.S.	§	702	(2017);	

one	count	of	negotiating	a	worthless	instrument	(Class	C),	17-A	 M.R.S.	 §	708	

(2017);	 and	 five	 counts	 of	 unsworn	 falsification	 (Class	 D),	 17-A	 M.R.S.	 §	 453	

(2017).	 	 Thirteen	 of	 the	 fifteen	 counts	 involved	 assistance	 programs	

administered,	in	part,	by	the	Department	of	Health	and	Human	Services.	

         [¶3]		Because	Hassan	and	his	co-defendant	needed	interpreters	to	assist	

their	attorneys	and	to	participate	in	the	proceedings,	and	because	the	discovery	

in	the	case	involved	hundreds	of	pages	of	documents,	Hassan’s	case	presented	

timing	and	staffing	challenges	for	the	parties	and	for	the	court.		Apparently	due	

to	these	challenges,	the	case	lingered	on	the	docket	for	nearly	three	years.		In	

November	of	2016,	the	court	issued	an	order	that	scheduled	the	trial	to	begin	

in	May	of	2017.		Pursuant	to	this	schedule,	a	jury	was	selected	over	the	course	




     1		A	grand	jury	also	indicted	Hassan’s	co-defendant	on	related	charges,	and	the	indictments	were	

initially	joined	for	trial,	but	the	co-defendant	entered	a	negotiated	plea	in	May	of	2017	and	is	not	a	
party	to	this	appeal.	
                                                                                          3	

of	three	days	during	the	first	week	of	 May.		Although	originally	scheduled	to	

begin	on	May	8,	the	start	of	the	trial	was	postponed	until	May	15,	2017.2	

      [¶4]		On	May	11,	2017,	the	State	conducted	a	second	pretrial	interview	

with	 one	 of	 its	 potential	 witnesses,	 a	 former	 Department	 employee	 who	

purportedly	 processed	 some	 of	 Hassan’s	 claims	 for	 benefits	 back	 in	 2005.		

During	 this	 second	 interview,	 the	 former	 employee—for	 the	 first	 time—

expressed	doubt	about	some	signatures	and	handwriting	on	three	“standard”	

Department	forms	that	the	State	planned	to	introduce	against	Hassan.		Those	

forms	 were	 identified	 as	 Exhibits	 57,	 60,	 and	 61.	 	 Specifically,	 the	 former	

employee	 expressed	 uncertainty	 about	 whether	 one	 form	 contained	 her	

signature	and	which	other	employees	at	the	Department	may	have	completed	

or	processed	the	forms.	

      [¶5]	 	 The	 State	 had	 provided	 Hassan	 with	 copies	 of	 the	 exhibits	 in	

question	 about	 three	 years	 earlier.	 	 “Within	 hours”	 after	 learning	 the	

information,	the	State	disclosed	to	Hassan	what	it	had	learned	from	the	former	

Department	employee.		Upon	receipt	of	this	information,	Hassan	asserted	that	

the	State	had	violated	Rule	16	of	the	Maine	Rules	of	Unified	Criminal	Procedure,	

and	he	moved	to	dismiss	the	indictment—or	in	the	alternative	to	continue	the	


  2		Hassan’s	co-defendant	entered	a	negotiated	plea	after	the	jury	had	been	selected.	
4	

case—as	a	sanction	for	what	he	claimed	was	a	violation	of	the	State’s	discovery	

obligations.		The	State	objected	to	the	motion	to	dismiss	but	took	no	position	

on	the	request	for	a	continuance.		The	court	held	a	nontestimonial	hearing	on	

the	motion	to	dismiss	or	continue	on	May	12,	2017.	

      [¶6]	 	 In	 an	 order	 dated	 May	 14,	 2017,	 the	 court	 stated	 that	 “both	 the	

nature	 of	 the	 information,	 and	 the	 timing	 of	 the	 disclosure,	 cause	 the	 court	

grave	concern.”		The	court	referred	to	the	information	obtained	from	the	former	

Department	employee	as	“potentially	exculpatory	material,”	and,	in	one	portion	

of	 the	 order,	 noted	 that	 it	 “potentially	 calls	 into	 question	 the	 integrity	 or	

reliability	of	the	documentation	and	witnesses	as	to	all	the	counts	.	.	.	related	to	

the	Department	of	Health	and	Human	Services.”		In	another	portion	of	its	order,	

the	court	stated,	“Perhaps	neither	the	documents	nor	the	witness	is	central	to	

the	State’s	case.		However,	the	potentially	exculpatory	information	is	significant	

to	the	defense.”	

      [¶7]		The	court	also	noted	that	“[m]uch	earlier	in	the	life	of	this	case,	it	

would	 have	 been	 reasonable	 for	 the	 prosecution	 to	 look	 at	 a	 document	 that	

appears	 to	 be	 a	 standard	 [Department]	 form,	 appears	 to	 be	 signed	 by	 a	

[Department]	employee,	appears	to	be	signed	by	[Hassan],	and	conclude	that	

the	document	is	what	it	appears	to	be.”		The	court	went	on	to	acknowledge	that	
                                                                                          5	

“[n]othing	on	the	face	of	Exhibit	61,	standing	alone,	is	initially	suspicious”	and	

that	Hassan	“is	not	surprised	by	information	about	his	signature.”	

       [¶8]		Despite	these	findings,	the	court	determined	that	the	State’s	failure	

to	uncover	the	information	from	the	former	employee	earlier	in	the	life	of	the	

case	 was	 a	 discovery	 violation.	 	 Referencing	 Rule	 16	 of	 the	 Maine	 Rules	 of	

Unified	Criminal	Procedure	and	Brady	v.	Maryland,	373	U.S.	83	(1963),	the	court	

held	that	the	State	had	failed	to	meet	its	obligation	of	“reasonable	diligence,”	

and	that	“the	State	should	have	known	the	information”	that	it	obtained	from	

the	 former	 employee,	 “at	 the	 very	 latest,	 .	 .	 .	 when	 the	 State	 submitted	 its	

proposed	jury	voir	dire.”	

       [¶9]	 	 Although	 the	 court	 stressed	 that	 the	 late	 disclosure	 was	 not	 the	

“result	of	any	bad	faith	or	improper	effort	to	conceal	information	on	the	part	of	

the	[State],”	it	determined	that	dismissal	was	the	appropriate	sanction	because	

the	“case	ha[d]	been	pending	for	far	too	long,”	“[a]pproximately	180	residents	

of	Androscoggin	County	devoted	three	days	of	their	lives	to	the	jury	selection	

process,”	and	“a	delay	of	a	day	or	two	[would]	not	give	[Hassan]	an	adequate	

opportunity	 to	 prepare	 his	 case.”	 	 See	 M.R.U.	 Crim.	 P.	 16(e).	 	 Ultimately,	 the	

court	 sanctioned	 the	 State	 by	 dismissing,	 with	 prejudice,	 the	 thirteen	 counts	

against	Hassan	that	involved	the	Department.	
6	

         [¶10]	 	 The	 court	 denied	 the	 State’s	 motion	 to	 reconsider.3	 	 With	 the	

approval	of	the	Attorney	General,	the	State	filed	this	timely	appeal.		15	M.R.S.	

§	2115–A(1),	(5)	(2017);	M.R.	App.	P.	2(a)(4),	(b)(2)(A),	21(b)	(Tower	2016).4			

                                          II.		DISCUSSION	

         [¶11]	 	 The	 State	 argues	 that	 the	 court	 erred	 as	 a	 matter	 of	 law	 by	

concluding	 that	 its	 failure	 to	 uncover	 the	 information	 from	 the	 former	

Department	 employee	 before	 the	 second	 pretrial	 interview	 violated	 its	

automatic	discovery	obligations	pursuant	to	Rule	16	and	Brady	v.	Maryland.		We	

review	 the	 trial	 court’s	 interpretation	 and	 application	 of	 the	 Maine	 Rules	 of	

Unified	Criminal	Procedure	de	novo	“and	look	to	the	plain	language	of	the	rules	

to	 determine	 their	 meaning.”	 	 See	 Town	 of	 Poland	 v.	 T	 &	 M	 Mortg.	 Sols.	 Inc.,	

2010	ME	2,	¶	6,	987	A.2d	524;	State	v.	Johnson,	2006	ME	35,	¶	9,	894	A.2d	489.		

We	also	review	the	alleged	constitutional	violation	de	novo,	State	v.	Williamson,	

2017	ME	108,	¶	21,	163	A.3d	127,	and	“review	for	an	abuse	of	discretion	a	trial	




   3		After	the	court	denied	its	motion	to	reconsider,	the	State	dismissed,	without	prejudice,	the	two	

counts	against	Hassan	that	did	not	involve	the	Department	of	Health	and	Human	Services.		The	court	
then	released	the	jury	and	the	case	did	not	proceed	to	trial.	
     4		The	Maine	Rules	of	Appellate	Procedure	were	restyled	effective	for	appeals	commenced	on	or	

after	September	1,	2017.		See	M.R.	App.	P.	1	(restyled	Rules).		Because	the	State	filed	this	appeal	before	
September	1,	2017,	the	restyled	Maine	Rules	of	Appellate	Procedure	do	not	apply.			
                                                                                      7	

court’s	sanction	for	a	discovery	violation,”	State	v.	Poulin,	2016	ME	110,	¶	28,	

144	A.3d	574.	

A.	   Maine	Rule	of	Unified	Criminal	Procedure	16(a)	

      [¶12]		The	pertinent	language	of	Rule	16	provides:	

                  (a)		Automatic	Discovery.	

             (1)		Scope	of	Automatic	Discovery.		The	attorney	for	the	State	
      shall	 provide	 as	 automatic	 discovery	 all	 matters	 set	 forth	 in	 this	
      subdivision	 that	 are	 within	 the	 possession	 or	 control	 of	 the	
      attorney	for	the	State.		The	obligation	of	the	attorney	for	the	State	
      extends	to	matters	within	the	possession	or	control	of	any	member	
      of	the	attorney	for	the	State’s	staff	and	of	any	official	or	employee	of	
      this	State	or	any	political	subdivision	thereof	who	regularly	reports	
      or	who,	with	reference	to	a	particular	case,	has	reported	to	the	office	
      of	the	attorney	for	the	State.	

            (2)		Duty	of	the	Attorney	for	the	State.		The	attorney	for	the	
      State	shall	provide	the	following	to	the	defendant:	

      .	.	.	.		

                        (D)		A	statement	describing	any	matter	or	information	
                  known	to	the	attorney	for	the	State	that	may	not	be	known	to	
                  the	defendant	and	that	tends	to	create	a	reasonable	doubt	of	
                  the	defendant’s	guilt	as	to	the	crime	charged.	
	
	    .	.	.	.		
	
M.R.U.	 Crim.	 P.	 16(a)	 (emphasis	 added).	 	 We	 have	 explained	 that	 this	 Rule	

requires	the	State	“to	disclose	certain	information	in	the	State’s	possession	or	

control	to	a	defendant,	and	to	make	a	reasonable	inquiry	to	uncover	material	

relevant	to	the	case	against	the	defendant,”	and	that	“[t]he	primary	purpose	of	
8	

the	Rule	is	to	protect	the	defendant	from	any	unfair	prejudice.”		State	v.	Mooney,	

2012	ME	69,	¶	9,	43	A.3d	972	(quotation	marks	omitted).		Imposing	disclosure	

obligations	 on	 the	 State	 serves	 to	 “enhanc[e]	 the	 quality	 of	 the	 pretrial	

preparation	of	both	the	prosecution	and	defense	and	diminish[	]	the	element	of	

unfair	surprise	at	trial,	all	to	the	end	of	making	the	result	of	criminal	trials	depend	

on	the	merits	of	the	case	rather	than	on	the	demerits	of	lawyer	performance	on	

one	 side	 or	 the	 other.”	 	 Poulin,	 2016	 ME	 110,	 ¶	 29,	 144	 A.3d	 574	 (quotation	

marks	omitted).			

      [¶13]		In	support	of	this	goal,	and	to	eradicate	the	practice	of	requiring	

defendants	to	request	or	even	seek	court	orders	to	obtain	all	of	the	information	

they	need	to	make	decisions	about	their	cases,	Rule	16	was	amended	in	2015	

to	expand	the	State’s	discovery	obligations.		M.R.U.	Crim.	P.	1(e);	M.R.U.	Crim.	P.	

16	Advisory	Note	to	2014	amend.		In	contrast	to	the	version	of	Rule	16	in	place	

before	2015,	Rule	16(a)	now	requires	the	State	to	automatically	disclose	more	

information	 to	 the	 defendant.	 	 See	 M.R.U.	 Crim.	 P.	 16	 Advisory	 Note	 to	 2014	

amend	(describing	those	“matters”	that	used	to	be	“discoverable	only	upon	the	

written	 request	 of	 the	 defendant”	 that	 are	 now	 automatically	 discoverable).		

Although	this	case	began	before	the	change	in	the	Rule,	the	court	and	the	parties	
                                                                                                        9	

agreed	 that	 the	 current	 version,	 M.R.U.	 Crim.	 P.	 16(a),	 applies	 to	 these	

proceedings.		See	M.R.U.	Crim.	P.	1(e).	

        [¶14]	 	 Here,	 there	 is	 no	 real	 dispute	 that,	 upon	 discovering	 the	

information	from	the	former	Department	employee,	the	State	was	required	to	

disclose	it.5		See	M.R.U.	Crim.	P.	16(a)(2)(D).		There	is	also	no	dispute	that	the	

State	did	disclose	the	information	to	Hassan	“[w]ithin	hours”	after	learning	it.		

In	 its	 order,	 the	 court	 acknowledged	 that	 the	 State	 had	 never	 withheld	 or	

attempted	to	conceal	the	information.		The	question	for	us,	then,	is	whether	the	

court	was	correct	in	determining	that,	pursuant	to	a	duty	imposed	by	Rule	16,	

the	State’s	failure	to	discover	the	information	from	its	witness	earlier	than	it	

did	constituted	a	discovery	violation.	

        [¶15]		We	first	look	to	the	plain	language	of	Rule	16,	which	provides	that	

information	 becomes	 subject	 to	 automatic	 disclosure	 when	 it	 is	 in	 the	



   5		To	the	extent	that	the	State	argues	that	because	the	information	at	issue	consisted	of	a	potential	

witness’s	oral	statements	it	“had	no	obligation	to	disclose	[the	former	employee’s]	statements	to	the	
defense,	especially	if	the	State	did	not	plan	to	offer	the	questionable	forms	into	evidence,”	we	reject	
such	a	contention.		Rule	16(a)(2)(D)	does	not	define	whether	information	is	discoverable	based	upon	
the	form	in	which	it	comes	into	the	State’s	possession,	nor	does	the	Rule	draw	lines	based	upon	the	
State’s	intended	uses	for	that	information.		M.R.U.	Crim.	P.	16(a)(2)(D).		Indeed,	16(a)(2)(D)	requires	
the	State	to	disclose	“any	matter	or	information	known	to	the	attorney	for	the	State	that	may	not	be	
known	to	the	defendant	that	tends	to	create	a	reasonable	doubt	of	the	defendant’s	guilt	as	to	the	crime	
charged.”		(Emphasis	added.)		Regardless	of	how	the	information	comes	into	the	State’s	possession	
or	control,	if	it	“tends	to	create	a	reasonable	doubt	of	the	defendant’s	guilt,”	it	falls	within	the	scope	
of	Rule	16(a)	and	the	State	must	disclose	it	in	accordance	with	the	timelines	set	forth	in	Rule	16(b).		
See	M.R.U.	Crim.	P.	16(a)-(b).		
10	

“possession	or	control”	of	the	attorney	for	the	State.		M.R.U.	Crim.	P.	16(a)(1).		

The	Rule’s	definition	of	“possession	or	control”	extends	to	the	“attorney	for	the	

State’s	staff,”	as	well	as	any	State	official	or	employee	“who	regularly	reports	or	

who,	with	reference	to	a	particular	case,	has	reported	to”	the	State’s	attorney.		

M.R.U.	 Crim.	 P.	 16(a)(1).	 	 In	 compliance	 with	 the	 Rule,	 the	 State	 provided	

Hassan	 with	 copies	 of	 Exhibits	 57,	 60,	 and	 61	 about	 three	 years	 before	 the	

alleged	discovery	violation.	

      [¶16]		The	court	found—and	the	record	supports	the	finding—that	the	

State’s	 prosecutors	 and	 investigators	 had	 no	 reason	 to	 question	 the	

authenticity	 of	 these	 exhibits	 before	 the	 former	 Department	 employee	

expressed	her	concerns.		Despite	this	finding,	however,	the	court	determined	

that	the	information	suggesting	that	the	documents	might	not	be	accurate	had	

“been	in	the	possession	of	the	State	for	a	significant	period	of	time	and	ha[d]	

not	 been	 produced.”	 	 This	 determination	 reflects	 a	 misunderstanding	 of	 the	

extent	of	a	prosecutor’s	“possession	or	control.”		See	M.R.U.	Crim.	P.	16(a).	

      [¶17]	 	 There	 is	 no	 allegation	 or	 evidence	 that	 the	 State	 had	 any	

concerns—or	any	reason	to	be	concerned—about	the	authenticity	or	accuracy	

of	 the	 exhibits	 before	 the	 former	 Department	 employee’s	 second	 pretrial	

interview	on	May	11,	2017.		The	court	acknowledged	that	there	was	“[n]othing	
                                                                                      11	

on	 the	 face”	 of	 the	 exhibits	 that	 made	 them	 “initially	 suspicious.”	 	 The	

information	 about	 the	 reliability	 of	 the	 exhibits	 did	 not	 come	 from	 a	 current	

employee	 of	 the	 Department,	 let	 alone	 from	 someone	 who	 conducted	

investigations	or	reported	to	the	attorney	for	the	State	regarding	Hassan’s	case.		

See	M.R.U.	Crim.	P.	16(a)(1).		The	information	came	from	a	former	Department	

employee—a	 potential	 witness	 for	 the	 State	 whose	 signature	 seemed	 to	

indicate	that	she	handled	some	of	Hassan’s	claims	for	benefits	in	2005.	

      [¶18]		Given	these	circumstances,	the	State	did	not	have	“possession	or	

control”	of	the	information	from	the	former	employee	until	the	second	pretrial	

interview.		See	M.R.U.	Crim.	P.	16(a)(1).		No	reading	of	Rule	16	would	support	a	

determination	 that,	 because	 this	 potential	 witness	 was	 a	 former	 Department	

employee,	the	State	 had	actual	or	constructive	 knowledge	of	the	 information	

she	shared,	and	neither	the	Rule	nor	our	cases	impose	a	duty	on	the	State	to	

disclose	 information	 outside	 its	 “possession	 or	 control.”	 	 See	 Mooney,	

2012	ME	69,	 ¶	 10,	 43	 A.3d	 972	 (holding	 that	 a	 correction	 officer’s	testimony	

conveying	her	“observations	concerning	the	shanks	[does]	not	fall	within	the	

plain	language	of	the	Rule”);	State	v.	Heald,	393	A.2d	537,	541	(Me.	1978)	(“It	is	

unrealistic	 to	 require	 the	 attorney	 for	 the	 State	 to	 be	 responsible	 for	 the	

production	of	any	materials	not	within	his	possession	.	.	.	.”).		In	short,	the	former	
12	

Department	 employee’s	 questioning	 of	some	 signatures	 and	 the	 handwriting	

on	 Exhibits	 57,	 60,	 and	 61	 was	 not	 information	 that	 was	 within	 the	 scope	 of	

Rule	16(a)	before	the	second	pretrial	interview	because	that	information	was	

“not	material	that	was,	or	should	have	been,	in	the	possession	or	control	of	the	

State’s	attorney.”		State	v.	Foy,	662	A.2d	238,	242	(Me.	1995);	 M.R.U.	Crim.	P.	

16(a)(1).		The	court	therefore	erred	as	a	matter	of	law	by	concluding	that	the	

State	committed	a	discovery	violation	pursuant	to	Rule	16.	

      [¶19]		 The	court	 also	erred	when	it	concluded	that	the	State’s	“duty	of	

reasonable	diligence”	required	it	to	uncover	the	information	from	the	former	

Department	employee	before	the	second	pretrial	interview.		We	have	held	that	

Rule	 16	 imposes	 a	 duty	 on	 to	 the	 State	 to	 “make	 a	 diligent	 inquiry”	 of	 its	

investigators	 to	 determine	 if	 “automatically	 discoverable	 information	 does	

exist	in	their	files.”		State	v.	Robbins,	1997	ME	21,	¶	7,	689	A.2d	603	(emphasis	

added).		The	State’s	duty,	however,	extends	only	to	matters	that	are	within	its	

“possession	 or	 control.”	 	 See	 M.R.U.	 Crim.	 P.	 16(a)(1);	 see	 also	 Poulin,	

2016	ME	110,	¶	18,	144	A.3d	574	(“The	State	conceded	that	the	GPS	data	was	

subject	to	automatic	discovery	pursuant	to	M.R.U.	Crim.	P.	16(a)	[because]	the	

State’s	law	enforcement	officers	had	been	in	possession	of	the	data.”);	State	v.	

Ledger,	 444	A.2d	 404,	 409-11	 (Me.	 1982)	 (holding	 that	 the	 State	 violated	 its	
                                                                                                    13	

discovery	obligations	when	the	State’s	attorney	failed	to	uncover	and	disclose	

a	 letter	 that	 had	 been	 in	 the	 possession	 of	 the	 State’s	 investigators	 for	 more	

than	six	months).		Although	the	State	is	now	required	to	automatically	provide	

more	information	than	it	did	before	the	promulgation	of	M.R.U.	Crim.	P.	16(a),	

neither	the	amended	Rule	nor	our	cases	impose	any	requirement	that	the	State	

interview	its	witnesses	at	any	particular	time	in	order	to	search	for	information	

the	State	does	not	know	exists	and	that	is	not	within	its	control.6		See	Robbins,	

1997	 ME	 21,	 ¶¶	 4-7,	 689	 A.2d	 603	 (rejecting	 an	 argument	 “to	 create	 a	 due	

diligence	standard	for	the	State’s	investigation”	regarding	potential	witnesses	

when	“neither	the	State	nor	the	 investigating	officer	had	been	aware	of”	two	

potential	witnesses	until	the	trial	began);	Foy,	662	A.2d	at	242.	

B.	    Brady	Violation	

       [¶20]	 	 In	 1963,	 the	 United	 States	 Supreme	 Court	 announced	 that	 “the	

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	



   6		For	these	same	reasons,	we	reject	Hassan’s	argument	that	the	State	was	“derelict”	in	its	“duty	to	

investigate”	pursuant	to	Rule	16	and	Brady	v.	Maryland,	373	U.S.	83	(1963),	and	note	that	Hassan	
misrepresented	several	cases	in	his	brief.		None	of	the	cases	he	cites	stands	for	the	proposition	that	
a	prosecutor	must—pursuant	to	his	or	her	duty	to	uncover	automatically	discoverable	information—
investigate	matters	wholly	outside	the	government’s	knowledge,	possession,	or	control.			

   	
14	

punishment,	 irrespective	 of	 the	 good	 faith	 or	 bad	 faith	 of	 the	 prosecution.”		

Brady,	373	U.S.	at	87.		Seventeen	years	later,	discussing	then	Criminal	Rule	16,	

we	stated	that	the	Rule’s	ongoing	requirement	that	prosecutors	automatically	

disclose	 “statement[s]	 describing	 any	 matter	 or	 information	 known	 to	 the	

attorney	 for	 the	 State	 which	 may	 not	 be	 known	 to	 the	 defendant	 and	 which	

tends	 to	 create	 a	 reasonable	 doubt	 of	 the	 defendant's	 guilt	 as	 to	 the	offense	

charged	 .	 .	 .	 embodied	 .	 .	 .	 the	 constitutional	 due	 process	 of	 law	 requirement	

articulated	 initially	 in	Brady.”	 	 State	 v.	 Eldridge,	 412	 A.2d	 62,	 67	 (Me.	 1980)	

(quotation	marks	omitted).				

       [¶21]		The	current	version	of	Rule	16(a)(2)(D)	imposes	the	same	specific	

duty	 on	 prosecutors:	 they	 must	 provide	 to	 defendants	 “any	 matter	 or	

information	known	to	the	attorney	for	the	State	that	may	not	be	known	to	the	

defendant	and	that	tends	to	create	a	reasonable	doubt	of	the	defendant’s	guilt	

as	to	the	crime	charged.”		This	language,	just	like	the	language	found	in	the	1980	

version	 of	 Rule	 16,	 requires	 the	 State	 to	 disclose	 “Brady”	 information,	 i.e.,	

“evidence	 [that]	 is	 material	 either	 to	 guilt	 or	 to	 punishment,”	 which	 includes	

“impeachment	evidence	as	well	as	exculpatory	evidence.”		Strickler	v.	Greene,	

527	U.S.	263,	280	(1999)	(quotation	marks	omitted);	see	Eldridge,	412	A.2d	at	

67.	 	 Because	 a	 “true	 Brady	 violation”	 can	 only	 occur	 when	 the	 State	 “either	
                                                                                                  15	

willfully	 or	 inadvertently”	 suppresses	 this	 kind	 of	 information,	 Strickler,	

527	U.S.	at	281-82,	a	prosecutor	cannot	commit	a	Brady	violation	without	also	

violating	his	or	her	automatic	discovery	obligations	pursuant	to	Rule	16.7		See	

M.R.U.	Crim.	P.	16(a).	

       [¶22]		Furthermore,	to	ensure	that	the	State	learns	about	and	discloses	

Brady	 information,	 both	 Brady	 and	 Rule	 16	 require	 prosecutors	 to	 “make	 a	

diligent	 inquiry”	 of	 investigators	 to	 determine	 if	 such	 “automatically	

discoverable	information	does	exist	in	their	files.”		Robbins,	1997	ME	21,	¶	7,	

689	 A.2d	 603;	 see	 Strickler,	 527	 U.S.	 at	281	 (“In	 order	 to	 comply	 with	Brady,	

therefore,	 the	 individual	 prosecutor	 has	 a	 duty	 to	 learn	 of	 any	 favorable	

evidence	 known	 to	 others	 acting	 on	 the	 government's	 behalf	 in	 [a]	 case,	

including	 the	 police.”	 (quotation	 marks	 omitted)).	 	 Thus,	 both	 Rule	 16	 and	

Brady	impose	an	obligation	on	the	State’s	prosecutors	to	provide	information	

“known	to”	the	State,	i.e.,	information	that	is	within	the	State’s	“possession	or	

control.”		M.R.U.	Crim.	P.	16(a).		An	allegation	that	prosecutors	have	failed	to	

turn	 over	 information	 that	 they	 do	 not	 actually	 or	 constructively	 possess	 or	




   7		We	write	to	address	the	alleged	Brady	violation	in	more	detail	because	the	court’s	order	relied	

on	a	prosecutor’s	obligations	pursuant	to	Brady	when	it	determined	the	State	committed	a	discovery	
violation.	
16	

control,	 however,	 can	 never	 serve	 as	 the	 basis	 for	 a	 Brady	 violation.	 	 M.R.U.	

Crim.	P.	16(a).		

        [¶23]	 	 In	 this	 case,	 even	 if	 we	 assume	 that	 the	 information	 at	 issue	 is	

“material,”8	 no	 Brady	 violation	 occurred.	 	 See	 Strickler,	 527	 U.S.	 at	 280.	 	 The	

State	provided	Hassan	with	copies	of	the	exhibits	about	three	years	before	the	

alleged	discovery	violation.		As	soon	as	the	State	learned	about	potential	issues	

with	those	exhibits,	it	promptly	provided	Hassan	with	that	information.		Thus,	

although	the	timing	of	the	discovery	and	the	disclosure	was	anything	but	ideal,	

the	 State	 did	 not	 suppress	 or	 withhold	 anything	 from	 Hassan.	 	 See	 State	 v.	

Gagne,	2017	ME	63,	¶	29,	159	A.3d	316	(“We	have	held	that	a	defendant	who	

was	made	aware	of	potentially	exculpatory	evidence	before	trial—even	though	

soon	before	trial—was	not	deprived	of	due	process.”).	




   8		An	appellate	court	reviewing	a	Brady	claim	must	determine	(1)	whether	there	was	evidence	that	

was	 “favorable	 to	 the	 accused,	 either	 because	 it	 is	 exculpatory,	 or	 because	 it	 is	 impeaching;”	
(2)	whether	 the	 State	 suppressed	 or	 withheld	 that	 evidence;	 and	 (3)	 whether	 prejudice	 ensued,	
meaning	that	the	evidence	was	“material”	and	the	suppression	or	withholding	of	it	had	an	effect	on	
the	fairness	or	the	outcome	of	the	trial	because	“the	favorable	evidence	could	reasonably	be	taken	to	
put	the	whole	case	in	such	a	different	light	as	to	undermine	confidence	in	the	verdict.”		See	Strickler	
v.	 Greene,	 527	 U.S.	 263,	 281-82,	 290	 (1999)	 (quotation	 marks	 omitted);	 State	 v.	 Williamson,	
2017	ME	108,	¶	22,	163	A.3d	127.		When,	as	here,	there	has	been	no	trial,	we	can	only	assume	that	
the	information	fit	the	“materiality”	aspect	of	a	Brady	claim.		Strickler,	527	U.S.	at	290.		At	the	very	
least,	the	information	at	issue	in	this	case	was	“favorable	to”	Hassan	because,	had	the	State	introduced	
the	exhibits,	the	information	was	“impeaching.”		See	id.	at	281-82;	Williamson,	2017	ME	108,	¶	22,	
163	A.3d	127.	
                                                                                       17	

C.	      Conclusion	

         [¶24]		Because	the	court	erred	as	a	matter	of	law	by	concluding	that	the	

State	committed	a	discovery	violation,	it	had	no	authority	to	sanction	the	State.		

See	M.R.U.	Crim.	P.	16(e);	Smith	v.	Rideout,	2010	ME	69,	¶	13,	1	A.3d	441.		On	

remand,	Hassan	will	be	afforded	the	opportunity	to	use	the	information	at	issue	

here	 “in	 the	 adversarial,	 truth-determining	 mechanism	 of	 trial.”	 	 Ledger,	

444	A.2d	 at	 412.	 	 We	 vacate	 the	 judgment	 dismissing	 the	 thirteen	 counts	

against	Hassan	with	prejudice	and	remand	the	case	to	the	trial	court.		

         The	entry	is:	

                            Judgment	vacated.		Counts	1,	3,	4,	5,	6,	7,	8,	9,	11,	
                            12,	 13,	 14,	 and	 15	 of	 the	 indictment	 against	
                            Hassan	are	reinstated	and	the	case	is	remanded	
                            to	the	trial	court.		
	
	      	       	      	      	    	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Leanne	 Robbin,	 Asst.	 Atty.	 Gen.	 (orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellant	State	of	Maine	
	
Jamesa	 J.	 Drake,	 Esq.	 (orally),	 Drake	 Law,	 LLC,	 Auburn,	 for	 appellee	 Abdi	 A.	
Hassan	
	
	
Androscoggin	County	Superior	Court	docket	number	CR-2013-1422	
FOR	CLERK	REFERENCE	ONLY	
