     Case: 17-20131   Document: 00514540510      Page: 1   Date Filed: 07/03/2018




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

                                  No. 17-20131                       FILED
                                                                  July 3, 2018
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk

             Plaintiff - Appellant

v.

SIMONE SWENSON,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      We decide whether the district court abused its discretion by dismissing
an indictment with prejudice because the prosecution missed pretrial discovery
deadlines, mistakenly withheld some relevant documents until the eve of trial,
and committed other errors that led the district court to conclude the “integrity
of the prosecution ha[d] been destroyed.” We reverse the dismissal order and
remand for further proceedings.
                          FACTS AND PROCEEDINGS
      The government indicted Simone Swenson, the owner and operator of an
adoption agency, for fraud because, on multiple occasions, she matched two
prospective families with the same birth mother as a means to secure funds
    Case: 17-20131      Document: 00514540510       Page: 2    Date Filed: 07/03/2018



                                    No. 17-20131
from both prospective families. 1 According to the indictment, once Swenson
received the required fees from the adoptive families, she would avoid contact
with them. And “she would find a way, through lies and misrepresentations, to
get out of the double matches.”
      Swenson retained counsel and pleaded not guilty to the charges. She was
released on bond, and she has not been in custody since August 2015.
      Swenson’s investigation generated many documents, rendering the case
fact intensive. Swenson’s retained counsel sought an initial continuance
because she was “not prepared to proceed to trial.” Soon thereafter, Swenson
apparently could no longer afford her privately retained counsel, who withdrew
from the case. The office of the Federal Public Defender was appointed to
represent her. Swenson’s new counsel asked for a second continuance because
she was new to the case and had not yet received the discovery from the
prosecution. Swenson then sought, and was granted, two more continuances,
because “defense counsel [was] still waiting to receive additional documents
requested from third-parties that [were] necessary to fully investigate the case
and to prepare for trial.”
      Trial was scheduled for February 7, 2017. The district court imposed
deadlines on the parties to disclose all of their requisite discovery under
Federal Rule of Criminal Procedure 16(a). The government had until January
17 to comply.
      After the parties produced their documents, but before the pretrial
conference, defense counsel expressed concerns about the prosecution’s
discovery. By way of background, some of the claims in the indictment stated
that, to perpetuate her fraud, Swenson “was always available and responsive



      1 The government charged her with two counts of mail fraud and two counts of wire
fraud and gave notice of criminal forfeiture. See 18 U.S.C. §§ 1341, 1343.
                                          2
     Case: 17-20131      Document: 00514540510         Page: 3    Date Filed: 07/03/2018



                                      No. 17-20131
to prospective adoptive families prior to receiving agency fees.” However, once
she “received the necessary fees from the adoptive families, she was
unavailable and would not return phone calls for long periods of time, if at all.”
To prove these claims, the prosecution sought access to the email
communications between the victimized families and Swenson. The
prosecution wanted to subpoena the email provider—“sanspareil.org”—but
was having trouble because of the domain name. 2 Oddly, having encountered
this difficulty, the prosecution’s solution was to ask the victimized families to
search their own accounts and send anything they thought was relevant.
Swenson objected that these emails had never been authenticated and that the
prosecution’s production consisted of incomplete email-strings that contained
missing messages.
       On January 23, the district court held the first (of four) pre-trial hearings
to discuss the indictment, motions in limine, exhibits, and discovery. Defense
counsel explained her concern that the prosecution was allowing the victimized
families and witnesses to decide whether evidence was relevant. The district
court agreed with the defense that this was problematic because the
prosecution was abdicating its duty to determine whether exculpating evidence
existed. The prosecutor attempted to mollify the district court by explaining
that she “just didn’t want the court to think we are hiding evidence or trying
not to produce things” and “[d]iscovery has not been an issue in this case. I am
very open. I give everything to defense counsel as soon as I get it, Your Honor.
I make copies for everyone.” The prosecutor later reiterated that she was not
“hiding anything.” The district court ordered the prosecutor to subpoena all of
the emails. And the prosecution offered to obtain search warrants for the



       2 Swenson’s brief includes a footnote explaining that it is not difficult to find the
Internet service provider and domain name of .org addresses.
                                             3
    Case: 17-20131    Document: 00514540510     Page: 4   Date Filed: 07/03/2018



                                 No. 17-20131
families’ and witnesses’ emails. The defense agreed to this plan, but stated that
it was ready for trial and did not wish to wait any longer.
      On January 24, the parties had a second pretrial conference in the
district court’s chambers, and he signed the search warrants that had been
discussed in the first pretrial conference. There is no transcript of this
proceeding, but—according to defense counsel—the district court “made clear
to the government that it should immediately comply with its constitutional
and rule-based discovery obligations.”
      A few days later, on January 27, the prosecution dumped a large number
of documents on defense counsel. These documents included emails from the
victimized families, which contained messages that Swenson believed are
inconsistent with the families’ statements in FBI reports. There was also a set
of documents labeled “Dropbox files received from Maggie Steffen on 2/14” and
another set labeled “Documents received from Kathleen Ruysser 2/2014.”
Swenson believed that many of these documents contained exculpatory
material.
      On January 29, defense counsel moved for a continuance in light of the
data dump. The parties held another pretrial conference with the district court
on January 31. Despite receiving the large data dump a few days before,
defense counsel withdrew her motion for a continuance, stating she was ready
for trial. Defense counsel further stated that she believed that she had received
all the documents from the government.
      Then, on February 3, only a few days before trial was set to begin, as a
result of her own investigation, defense counsel learned of the existence of a
police report that Swenson had made to the Montgomery County Sheriff’s
Office regarding Swenson’s allegations that one of the birth mothers had
committed fraud. Specifically, the report stated that the birth mother had



                                         4
    Case: 17-20131    Document: 00514540510     Page: 5   Date Filed: 07/03/2018



                                 No. 17-20131
agreed with Swenson to give up her baby and receive living expenses, but the
birth mother had made the same agreement with a different adoption agency.
      Defense counsel contacted the prosecutor, who emailed her that report,
along with four more reports, two of which had been filed by victimized
families. Swenson claimed that these reports also contained at least
impeaching, if not exculpatory material, including one statement from a victim
explaining that “she had good communication between [Swenson] and the
prospective birth mother.” Swenson argued that this statement directly refutes
an FBI report that indicates Swenson denied the victim’s initial request to
speak with the birth mother. These documents also showed that, after
receiving the victim’s report, the FBI report had been redrafted to exclude all
of the contacts that the victim had with Swenson and the birth mother to fit
the indictment’s theory that the victimized families had a difficult time
communicating with Swenson and the mothers.
      Swenson immediately moved to dismiss based on violations of Brady v.
Maryland, 373 U.S. 83 (1963), Federal Rule of Criminal Procedure 16, and the
district court’s discovery order. The government did not file a response to the
motion.
      On February 6, the day before trial was supposed to begin, the parties
had a hearing before the district court regarding the motion to dismiss. The
government delivered yet another file of documents that had been too large to
deliver via email on Friday. The district court asked the prosecution if it had a
response to the motion to dismiss and why Swenson’s police report was not a
part of the government’s investigation. The prosecutor explained that the
reports were part of the investigation, and that she had received them years
before. The prosecutor apologized. She explained: “It is my mistake, Your
Honor. I don’t ever remember opening the e-mail or downloading the
documents.” The prosecution urged, however, that the reports were

                                       5
     Case: 17-20131      Document: 00514540510        Page: 6    Date Filed: 07/03/2018



                                     No. 17-20131
“repetitious” and the fact that Swenson had been scammed by a birth mother
had nothing to do with her double-matching scheme.
      The district court excoriated the prosecution for the mistake: “You’re
supposed to know what you’re doing. You’re supposed to be the one thinking of
stuff.” The district court then apparently attributed her mistake to her sex: “It
was lot simpler when you guys wore dark suits, white shirts and navy ties. . . .
We didn’t let girls do it in the old days.” 3 After discussing the newly produced
evidence, the district court asked: “What else is out there that you misplaced
or didn’t think was relevant so you didn’t check it at all?” The prosecutor tried
to assure the district court that she was not intentionally withholding any
information: “I have been an open book. I never try to keep anything back.”
When asked if she had searched the too-large file that the prosecution
delivered to the defense that morning, the prosecutor said no because she had
not been aware of it. But she stressed that she “did [her] own investigation and
created [her] own theory of the case.”
      The district court then pronounced that “the government has had this
case for three years. That should be more than enough.” Noting the 79 docket
entries, the district court decided: “So, I could continue the case for the purpose
of allowing the government to prepare its case and to share the information it
has . . . . A continuance, however, would be too much delay. This is not a
particularly complicated case, and there is no reason to extend it farther. The
case will be dismissed.” Upon prompting by defense counsel, the district court
clarified that the dismissal was with prejudice, reasoning that “to crank it up
and take another three years is unacceptable.”



      3  At oral argument, Swenson’s counsel contended that the record is ambiguous and
perhaps the district court was speaking not to the prosecutors, but to other women present
at the hearing. Regardless, such comments are demeaning, inappropriate, and beneath the
dignity of a federal judge.
                                            6
    Case: 17-20131     Document: 00514540510    Page: 7   Date Filed: 07/03/2018



                                 No. 17-20131
      After the hearing, the district court entered a short written order
dismissing the case with prejudice: “The law is insistent on full disclosure. The
court could continue the case—for the fifth time—to allow the United States to
prepare and share its information; but, because the United States has had this
case for three years, that would be too much delay. The indictment is dismissed
with prejudice.”
      The government filed a motion for reconsideration, arguing that there
was no Brady violation, explaining that the newly revealed evidence was not
helpful to the defense or new information, and requesting that the district
court grant a continuance rather than dismiss the case with prejudice.
Swenson responded, arguing that “[t]he government’s pattern of failing to
disclose evidence, and its current unwillingness to accept that its failures were
material and prejudicial demonstrates that the integrity of this prosecution
has been destroyed.”
      Finally, the district court issued an “Opinion on Reconsideration,”
which—in its entirety—stated as follows:
      Over the course of four pretrial conferences—within ten days of
      trial—the government represented that it had turned over all
      evidence. Each time it later disclosed new evidence of exculpatory
      and impeachment materials.

      The government conveniently forgot that it had in its possession
      (a) correspondence between the adoptive parents and Swenson, (b)
      police reports from 2013 filed by Swenson and the adoptive
      parents—two of whom the government intended to call as
      witnesses at trial, and (c) statements by the adoptive parents that
      were inconsistent with [FBI]’s report. Despite its obligation to
      investigate the case completely, the government relied on its
      witnesses to filter their own documents and select what they as
      interested-party laymen considered to be relevant.

      Because the integrity of this prosecution has been destroyed, the
      government’s motion for reconsideration is denied.

                                       7
    Case: 17-20131     Document: 00514540510      Page: 8   Date Filed: 07/03/2018



                                  No. 17-20131
The government appealed.

                             STANDARD OF REVIEW
      When a dismissal is predicated upon the district court’s supervisory
powers, we review only for an abuse of discretion. See United States v. Garrett,
238 F.3d 293, 297–98 (5th Cir. 2000). And we review any factual finding from
the district court, including credibility determinations, only for clear error. See
United States v. Cordova-Soto, 804 F.3d 714, 718 (5th Cir. 2015). “A factual
finding is clearly erroneous only if, based on the entirety of the evidence, the
reviewing court is left with the definite and firm conviction that a mistake has
been made.” Id.
      We review a district court’s determination on a Brady claim de novo,
though we defer to factual findings underlying the district court’s decision.
United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017).
                                  DISCUSSION
      When denying the prosecution’s motion for reconsideration, the district
court expressed several concerns about the government’s conduct. It worried
about the last minute disclosures, the government’s retention of material the
district court considered exculpatory until prompted by the defense, and the
government’s reliance on the victim/witnesses to determine what materials
were relevant. Although Swenson contended that the prosecution’s conduct
violated Brady and Giglio v. United States, 405 U.S. 150 (1972), the district
court did not discuss, cite, or rule on that issue. Instead, looking to the
prosecution’s missteps, the district court concluded that “the integrity of this
prosecution has been destroyed.”
      On appeal, the government argues that its conduct did not violate Brady
and the district court abused its discretion when it dismissed Swenson’s
indictment with prejudice. Swenson urges us to affirm the district court,
contending that the prosecution’s missteps supported the dismissal with
                                        8
    Case: 17-20131     Document: 00514540510      Page: 9    Date Filed: 07/03/2018



                                   No. 17-20131
prejudice. None of Swenson’s arguments or the district court’s concerns
supports dismissing the indictment with prejudice.
                              I. No Brady Violation
      Under the familiar Brady standard, the government violates a
defendant’s due process rights if it withholds evidence that is favorable to the
accused and material to the defendant’s guilt or punishment. Brady, 373 U.S.
at 87. This rule applies “irrespective of the good faith or bad faith of the
prosecution.” Id. And it “extends to impeachment evidence as well as
exculpatory evidence.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006).
To prevail on a Brady claim, “a defendant must show: (1) the evidence at issue
was favorable to the accused, either because it was exculpatory or impeaching;
(2) the evidence was suppressed by the prosecution; and (3) the evidence was
material.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016). The
government argues that all three prongs (favorability, suppression, and
materiality) weigh in its favor.
      Whether the government can show favorability or materiality is
irrelevant because here the evidence clearly was not suppressed. Under this
court’s case law, evidence that is turned over to the defense during trial, let
alone before trial, has never been considered suppressed. See Powell v.
Quarterman, 536 F.3d 325, 335 (5th Cir. 2008). Instead, this court has held
that when a defendant challenges “the late production of impeachment
evidence,” the analysis “turns on whether the defendant was prejudiced by the
tardy disclosure.” United States v. Morrison, 833 F.3d 491, 508 (5th Cir. 2016).
“If the defendant received the material in time to put it to effective use at trial,
his conviction should not be reversed simply because it was not disclosed as
early as it might have and, indeed, should have been.” United States v.
McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). Mere speculation that a trial
might have gone differently is insufficient to show the requisite prejudice from

                                         9
   Case: 17-20131     Document: 00514540510     Page: 10   Date Filed: 07/03/2018



                                 No. 17-20131
a tardy disclosure. See United States v. Stanford, 823 F.3d 814, 841 (5th Cir.
2016) (It is “unwise to infer the existence of Brady material based upon
speculation alone.” (internal quotations omitted)).
      Swenson argues that the delay prejudiced her because “if she had
received the documents at the beginning of the case, her preparation and
strategy would have been entirely different.” She also claims that she would
have searched for other documents and evidence. This argument is too
speculative. And a continuance of the trial would have solved most of these
problems. Swenson was not confined, and there is no reason to think that
another continuance would have caused her any difficulty. Even without a
continuance, Swenson probably could have used the evidence effectively at
trial. Thus, there was no suppression and no Brady violation.
      But even if Swenson could show a Brady violation, the usual remedy is
a new trial, not dismissal with prejudice. See United States v. Brown, 650 F.3d
581, 588–89 (5th Cir. 2011). The district court’s remedy cannot be supported
on these grounds.
       II. Discovery Violations Here Do Not Warrant Imposed Sanction
      A district court commands “broad discretion” when deciding whether to
impose sanctions for discovery violations. Garrett, 238 F.3d at 298. But, before
employing sanctions, it “must carefully weigh several factors.” Id. Specifically,
it must consider: “1) the reasons why disclosure was not made; 2) the amount
of prejudice to the opposing party; 3) the feasibility of curing such prejudice
with a continuance of the trial; and 4) any other relevant circumstances.” Id.
If the district court decides to sanction a party, it “should impose the least
severe sanction that will accomplish the desired result—prompt and full
compliance with the court’s discovery orders.” Id. (quoting United States v.
Sarcinelli, 667 F.2d 5, 7 (5th Cir. Unit B 1982)).



                                       10
   Case: 17-20131     Document: 00514540510     Page: 11   Date Filed: 07/03/2018



                                 No. 17-20131
      In neither its written orders nor any of the pretrial conferences did the
district court expressly consider the Garrett factors when fashioning a sanction
for the government’s failure to comport with the discovery deadline. See 238
F.3d at 298. Although the district court acknowledged that it “could continue
the case,” the district court chose dismissal with prejudice instead because “the
United States has had this case for three years” and granting another
continuance would cause “too much delay.” But Swenson was not in custody
during the pretrial proceedings. And Swenson had asked for four continuances
already. The district court did not explain why one more continuance—the first
requested by the government—would cause too much delay. The district court
failed to impose the least severe sanction, and the government’s violations of
the discovery deadlines do not warrant dismissing the indictment with
prejudice.
                III. No Prosecutorial Misconduct or Prejudice
      This court has stressed that “even in the case of the most ‘egregious
prosecutorial misconduct,’ [an] indictment may be dismissed only ‘upon a
showing of actual prejudice to the accused.’” United States v. McKenzie, 678
F.2d 629, 631 (5th Cir. 1982) (quoting United States v. Merlino, 595 F.2d 1016,
1018 (5th Cir. 1979)). And “mere error or oversight is neither gross negligence
nor intentional misconduct.” United States v. Fulmer, 722 F.2d 1192, 1195 (5th
Cir. 1983) (internal quotations omitted). “Thus, whether the court is acting
under its supervisory authority or its duty to protect the constitutional rights
of defendants, an indictment may be dismissed only where the defendants’ case
has been unfairly prejudiced.” McKenzie, 678 F.2d at 631. In other words, “the
supervisory authority of the district court includes the power to impose the
extreme sanction of dismissal with prejudice only in extraordinary situations
and only where the government’s misconduct has prejudiced the defendant.”



                                       11
   Case: 17-20131     Document: 00514540510      Page: 12   Date Filed: 07/03/2018



                                  No. 17-20131
United States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988); see also United
States v. Campagnuolo, 592 F.2d 852, 865 (5th Cir. 1979).
      Dismissal of an indictment with prejudice is a rare result because, even
in the face of prosecutorial misconduct, there is a “public interest in having
indictments prosecuted.” Welborn, 849 F.2d at 985. That said, this court has
expressly declined to “foreclose the possibility that governmental ineptitude
and carelessness could be so abhorrent as to warrant a dismissal with
prejudice.” Fulmer, 722 F.2d at 1196.
      The district court never expressly determined whether the government’s
conduct was motivated by bad faith. But some conclusions about the district
court’s reasoning can be drawn from the record. Though Swenson attempts to
paint some of the district court’s comments from the hearing as accusations of
bad faith, it does not appear that the district court attributed ill intent to the
prosecution. If anything, it seems the district court attributed the
government’s mistakes to the prosecutor’s sex.
      Reviewing the record, we found nothing to suggest that the prosecution
intentionally withheld the documents or acted in bad faith. Swenson points to
an email an FBI agent wrote to the prosecutor that Swenson says suggests
there may have been a conscious decision to wait for defense counsel to
specifically request pieces of evidence before disclosure. The email says, “As
you know, [somebody from Montgomery County] sent several of these
reports . . . .” (emphasis added). We disagree that anything can be inferred
from this innocuous message. And the prosecutor expressly acknowledged that
she did not “ever remember opening the e-mail or downloading the documents.”
      It is beyond dispute that the government made some missteps. Swenson
and the district court are, of course, correct that a prosecutor cannot delegate
the duty to review exculpatory evidence. See Kyles v. Whitley, 514 U.S. 419,
438 (1995) (placing the burden to discharge Brady obligations on the

                                        12
   Case: 17-20131     Document: 00514540510      Page: 13   Date Filed: 07/03/2018



                                  No. 17-20131
prosecutor). The government was wrong to allow the victims to decide what
evidence was relevant. And the government admittedly missed the discovery
deadline. But these mishaps are benign mistakes that were remedied or could
have been remedied with a continuance, and “mere error or oversight is neither
gross negligence nor intentional misconduct.” Fulmer, 722 F.2d at 1195
(internal quotations omitted). Although this court has declined to “foreclose the
possibility that governmental ineptitude and carelessness could be so
abhorrent as to warrant a dismissal with prejudice,” id. at 1196, the
government’s mistakes here did not reach an abhorrent level.
      Even assuming bad faith, Swenson must show “actual prejudice” before
this court could affirm the dismissal of the indictment. See McKenzie, 678 F.2d
at 631. We are unpersuaded by Swenson’s arguments that the government’s
missteps caused Swenson any prejudice. As discussed above, because Swenson
received all of the information before trial, none of the documents was
“suppressed” under the Brady analysis. The district court, disapproving of the
government’s practice of allowing the witnesses to determine what documents
were relevant, signed warrants for the victimized families’ emails. And the
defense agreed to go to trial without a continuance to digest the new
information. Although the government should not have waited until the eve of
trial to produce documents to the defense, a continuance would have remedied
any prejudice.
      Swenson has failed to demonstrate prejudice sufficient to support the
district court’s severe sanction. The district court abused its discretion when it
dismissed Swenson’s indictment with prejudice.

                                CONCLUSION
      We REVERSE and REMAND the judgment dismissing the indictment,
and we direct the Chief Judge of the Southern District of Texas to reassign this


                                       13
   Case: 17-20131     Document: 00514540510     Page: 14   Date Filed: 07/03/2018



                                 No. 17-20131
case to a different district judge. See, e.g., Latiolais v. Cravins, 574 F. App’x
429, 436 (5th Cir. 2014).




                                       14
