                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 UNITED STATES OF AMERICA,

        v.
                                                           Criminal Action No. 17-129 (RDM)
 MARIO A. TAYLOR,

                Defendant.


                          MEMORANDUM OPINION AND ORDER

       Defendant Mario A. Taylor is charged with possessing a firearm and ammunition in

violation of 18 U.S.C. § 922(g)(1). Dkt. 79. He alleges that the government violated the Due

Process Clause of the Fifth Amendment and Federal Rule of Criminal Procedure 16 by failing to

collect any evidence from the crime scene other than the contraband itself. Taylor moves to

dismiss the case, or in the alternative, for a curative jury instruction. Dkt. 81. The Court

concludes that, on the present record, Taylor has failed to carry his burden of demonstrating a

violation of either the Due Process Clause or Rule 16. Because Taylor may yet be able to make

the necessary showing with respect to one or both bases of his motion, the Court will DENY the

motion without prejudice and allow him to renew the motion, if appropriate, at trial.

                                       I. BACKGROUND

       The relevant background of this matter began on June 1, 2017, when the U.S. Marshals

Service and the Metropolitan Police Department (“MPD”) discovered a number of guns,

numerous rounds of ammunition, and two vials of a “brownish[,] yellowish” liquid in the course

of executing a writ of restitution at 2547 Elvans Road SE, Unit #102, Washington, D.C. Dkt. 48

(23:3–8); Dkt. 49 (32:1–34:23). Taylor, who was listed on the lease for the apartment and was

present at the time of the eviction, was arrested and was later indicted on charges of Unlawful
Possession with Intent to Distribute a Mixture and Substance Containing a Detectable Amount of

PCP, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) (Count One); Unlawful Possession of a

Firearm and Ammunition by a Person Convicted of a Crime Punishable by Imprisonment for a

Term Exceeding One Year, in violation of 18 U.S.C. § 922(g)(1) (Count Two); and Using,

Carrying, and Possessing a Firearm During a Drug Trafficking Offense, in violation of 18 U.S.C.

§ 924(c)(1) (Count Three). Dkt. 1. After the government provided Taylor with discovery,

including the MPD “Evidence Collection Log,” Dkt. 11-1 at 1, Taylor moved to suppress

“several statements” he allegedly made during his arrest, Dkt. 10 at 2, and “all tangible objects

and photographs of all tangible objects seized” from the Elvans Road residence, Dkt. 9 at 1. The

Court then held an evidentiary hearing on Taylor’s motions on October 27, November 17,

December 8, and December 12, 2017, at which Deputy Marshals Mark Beard and Erik Navas

and MPD Officer Casey Logan testified regarding the eviction and alleged discovery of the

contraband. See Dkt. 18; Dkt. 48; Dkt. 49; Dkt. 54.

       According to that testimony, Deputy Marshals Beard, Navas, and Tawanna Gooding

executed the writ of restitution on June 1, 2017, with the assistance of a privately retained

eviction crew. Dkt. 18 (39:2–6). At the time the Deputy Marshals arrived at the residence, it

was occupied by three men (including Taylor), one woman, and one infant. Id. (42:2–3). The

Deputy Marshals directed all of the occupants to leave the apartment, but the adults were

subsequently allowed briefly to return to retrieve valuables, such as cell phones and wallets. Id.

(44:20–23). After approximately forty-five minutes, Deputy Marshal Gooding discovered two

loaded rifle magazines (which, it was eventually determined, fit an AR-15 rifle) under a table in

the dining area. Id. (63:22–64:9). One significant factual question for trial is whether those




                                                 2
 
magazines were in plain view, as the government contends. See Dkt. 90 at 2; Dkt. 48 (22:16)

(describing the clips as having been found “[i]n plain view”).

        Shortly after Deputy Marshal Gooding discovered the magazines, the eviction crew

discovered two loaded, semiautomatic handguns, ammunition, and two vials in shoeboxes in one

of the bedrooms. Dkt. 48 (18:1–7). At least one of the vials contained a “brownish[,] yellowish”

liquid. Id. (23:6–8). As is their standard procedure, the Deputy Marshals contacted the MPD’s

Gun Recovery Unit (“GRU”). Id. (15:19–25). While waiting for the GRU to arrive, the Deputy

Marshals brought Taylor back into the apartment. Id. (14:2–4). One of them “explained to him

that [they had] found contraband, [that they had] found guns” and told him “he[] [was] not under

arrest, but [they would] have to detain him until MPD [came].” Id. (14:6–9). Taylor said

“something to th[e] effect” of “[y]ou’re going to charge me anyways because I’m on the lease,”

at which point the Deputy Marshals handcuffed him. Id. (14:10–19). After officers from the

GRU arrived, a member of the eviction crew discovered a green bag in a closet located just off of

the dining area, which he brought to Officer Logan’s attention. Dkt. 49 (26:22–24). Officer

Logan entered the closet, examined the bag, felt what seemed to be a rifle, and opened the bag.

Id. (28:2–8) (quoting grand jury testimony). Inside, he discovered an AR-15, a type of

semiautomatic rifle. Id. (12:9). The government took custody of the handguns, ammunition,

AR-15, AR-15 magazines, and two vials found at the apartment, and also took photographs of

the apartment and much of the evidence. Id. (33:4–34:10). The remaining contents of the

apartment were either left on the curb for the occupants (or their friends or family)1 to recover or

were left for the rental company to clean out. Dkt. 18 (95:2–6); Dkt. 54 (7:24–8:6).



1
  Because Taylor was in custody, he could not himself have recovered the apartment contents
that were left on the curb.

                                                 3
 
       According to Officer Logan, he asked Taylor—who remained handcuffed—“about the

illegal items recovered from his home,” and Taylor responded “that everything recovered from

the residence belong[ed] to him.” Dkt. 61 at 3 (MPD Arrest Form (June 1, 2017)); see also Dkt.

49 (25:9–23) (quoting grand jury testimony). Through his counsel, Taylor denies that he made

this statement. Dkt. 91 at 9. According to the government, the “brownish[,] yellowish” liquid

contained in at least one of the vials later tested positive for PCP at a Drug Enforcement Agency

(“DEA”) laboratory located in Northern Virginia. Dkt. 18 (23:12). The government ultimately

conceded that Taylor’s statements, which were made while he was in custody and before he was

advised of his Miranda rights, should be suppressed, and the Court suppressed that evidence.

Dkt. 48 (31:9–32:2). The Court, however, denied Taylor’s motion to suppress the physical

evidence collected at the apartment in an oral decision issued from the bench. See Minute Entry

(Dec. 12, 2017). The Court detailed its reasoning in that decision, and now concludes that no

further explication is necessary.

       Although the Court denied Taylor’s motion to suppress physical evidence, it

subsequently observed that evidence presented in the course of the suppression hearing raised

questions about the merits of at least some of the charges contained in the original indictment.

See United States v. Taylor, 289 F. Supp. 3d 55, 68–69 (D.D.C. 2018). In particular, the

evidence showed that the handguns, the handgun ammunition, and purported PCP were

recovered from a bedroom on one side of the apartment’s central hallway. Dkt. 18 (61:5–17).

But when the adult occupants of the apartment were allowed to reenter to recover their

cellphones, cellphone chargers, and wallets, Taylor went to the bedroom on the other side of the

hallway, while another occupant went to the bedroom where the contraband was found. Dkt. 48

(12:2–13:3). Moreover, the evidence showed that the name “Veandre” was written in large



                                                 4
 
lettering across the wall in the bedroom where the contraband was found. Dkt. 91 at 10

(reproducing photograph introduced into evidence at the suppression hearing). Further evidence

indicated that one of the other residents at the apartment was named Veandre Purvis and that a

man identified as Purvis was overheard speaking to Taylor while the eviction was taking place.

See Dkt. 44-1. In particular, Purvis was overheard “asking why . . . Taylor had not told him that

he was being evicted and was behind on his rent.” Id. at 1.

       Trial was originally scheduled to commence on December 11, 2017, but on the

government’s motion, the Court rescheduled jury selection for December 13, 2017. See Minute

Entry (Dec. 8, 2017). After a jury was selected but before it was sworn, however, the parties

jointly moved to continue the trial for an extended period of time to allow defense counsel time

to investigate whether misconduct at the DEA lab at the which the “brownish[,] yellowish”

liquid was tested could have affected the validity of any test results. See Minute Entry (Dec. 14,

2017). The defense sought extensive discovery related to the alleged misconduct, and the Court

concluded that, in order to permit the defense adequate opportunity to investigate, it was

necessary to dismiss the (unsworn) jury and to postpone the trial. See Dec. 14, 2017 Hrg. Tr.

(Rough at 22:5–15); Minute Entry (Dec. 14, 2017). Arguing that the postponement was a

product of the government’s failure to provide the defense with earlier notice of the possible

misconduct at the DEA lab, the defense requested that Taylor be released from pretrial custody

pending trial. Dkt. 57 at 1. The Court agreed that Taylor should be released into the High

Intensity Supervision Program, although on somewhat different grounds than those pressed by

the defense. See Taylor, 289 F. Supp. 3d at 72. In particular, the Court concluded that the

balance of the factors it had to consider under 18 U.S.C. § 3142(g) in determining whether

Taylor’s detention was appropriate had shifted in Taylor’s favor based on the evidence



                                                 5
 
suggesting that Purvis, and not Taylor, possessed the handguns, handgun ammunition, and

alleged PCP. Id. at 68–69, 72.

       To its credit, the government also reassessed the evidence and dismissed the charges

relating to the handguns, handgun ammunition, and alleged PCP. Minute Entry (Feb. 5, 2018);

see also April 16, 2018 Hrg. Tr. (Rough at 16:2–13) (“We dismissed the charges related to the

PCP and handguns because the Government reasonably believe[s] that the items in that room

belonged to [Purvis].”). A retyped indictment referencing only a single count of violating 18

U.S.C. § 922(g)(1) was filed on February 12, 2018. Dkt. 79. That count related only to the

alleged unlawful possession of the AR-15 and ammunition found in the AR-15 magazines. On

March 12, 2018, months after the trial was originally scheduled to take place, Taylor filed the

pending motion, which seeks dismissal of the retyped indictment or, in the alternative, a

corrective instruction on the ground that the government should have collected and preserved

additional evidence found at the Elvans Road residence. See Dkt. 81.

                                          II. ANALYSIS

       Taylor alleges that the government’s failure to preserve additional evidence from the

crime scene violated the Due Process Clause and Federal Rule of Criminal Procedure 16. As

explained below, the Court is not convinced on the present record that Taylor has established a

violation of either the Constitution or Rule 16, nor can it conclude that he has shown a need for

yet a further pretrial evidentiary hearing. If evidence presented at trial provides further support

for Taylor’s motion, he may renew his motion based on that evidence.

A.     Due Process Clause

       The government violates the Due Process Clause of the Fifth Amendment when it “fail[s]

in bad faith to preserve material and potentially exculpatory evidence.” United States v. McKie,

951 F.2d 399, 403 (D.C. Cir. 1991) (citing Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).
                                                  6
 
When evaluating whether the failure “to preserve evidentiary material of which no more can be

said than that it could have been subjected to tests, the results of which might have exonerated

the defendant,” violates the Due Process Clause, a defendant bears the burden of “show[ing] bad

faith on the part of the police.” Youngblood, 488 U.S. at 57–58; accord McKie, 951 F.2d at 403.

Taylor has failed to carry that burden.

       According to Taylor, the government should have, “[a]t the very least, . . . properly

photographed and preserved the containers in which the alleged contraband was found—such as

the . . . green lawn chair bag;” should have preserved “the belongings and other items found

around and near the alleged contraband;” and should have taken photographs “of the living room

as it appeared prior to when the eviction crew started moving items outside of the apartment.”

Dkt. 81 at 1, 4. To establish a due process violation, however, Taylor must show that the

evidence he seeks was not preserved due to “bad faith on the part of the police.” Youngblood,

488 U.S. at 58. That requirement serves two purposes: it “limits the extent of the police’s

obligation to preserve evidence to reasonable bounds,” and it “confines” the obligation “to that

class of cases where the interests of justice most clearly require it, i.e., those cases in which the

police themselves by their conduct indicate that the evidence could form a basis for exonerating

the defendant.” Id. Those considerations apply with particular force in a case in which law

enforcement officers never actually collect the evidence from the crime scene, as was true here.

       Taylor identifies a number of alleged faults with the government’s investigation. He has

not, however, made even a prima facie showing that the government was motivated by improper

purposes or tactical considerations when it failed to preserve or more thoroughly photograph the

green bag, other containers in which contraband was found, the items discovered in the closet

along with the AR-15, or additional items located in the living room. When the exculpatory



                                                   7
 
value of the evidence the government fails to preserve is apparent at the time of the evidence’s

loss or destruction, bad faith can be inferred from the nonpreservation itself. Youngblood, 488

U.S. at n.*; California v. Trombetta, 467 U.S. 479, 488–89 (1984); Magraw v. Roden, 743 F.3d

1, 8–9 (1st Cir. 2014). In such cases, “[t]he presence or absence of bad faith by the police for

purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the

exculpatory value of the evidence at the time it was lost or destroyed.” Youngblood, 488 U.S. at

56 n.*; see also In re Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996) (examining knowledge

of police officers at the time of the nonpreservation). In contrast, when “no more can be said” of

the evidence sought “than that it could have been subjected to tests, the results of which might

have exonerated the defendant,” Youngblood, 488 U.S. at 57, bad faith cannot be inferred from

the mere act of nonpreservation itself, id.; Magraw, 743 F.3d at 8–9. In light of the evidence

Taylor alleges the government failed to preserve, the latter standard applies. As a result,

Taylor’s speculation that the green bag might have “contained a card that ha[d] someone else’s

name on it,” Dkt. 91 at 8, or might have contained some other identifying mark or forensic

evidence, is insufficient to support an inference of bad faith from the bag’s nonpreservation

alone, see In re Sealed Case, 99 F.3d at 1178; Magraw, 743 F.3d at 8–9.

       Taylor’s other bases for inferring bad faith fail when considered in light of the remainder

of the government’s investigatory effort. He first contends that the Court can infer bad faith

from the fact that the government “ignored” the evidence indicating that the handguns, handgun

ammunition, and alleged PCP belonged to Purvis, and not Taylor. Dkt. 91 at 9–10. But contrary

to that assertion, the doubt that was cast on Taylor’s possession of those items was a product of

the evidence that the government did preserve. We know about the inscription of the name

“Veandre” across the wall in the bedroom where those items were found, for example, because



                                                 8
 
an MPD officer took a photograph of the wall. Dkt. 91-1 at 2–3. Likewise, Taylor complains

about the fact that the government did not “document where in the apartment” the “mail matter”

addressed to Purvis was found or the contents of those mailings, Dkt. 91 at 11–12, but it is

difficult to fathom why police would have gone to the trouble of photographing the letters

addressed to Purvis only to hide the fact that the mail was found in a particular portion of the

apartment or to hide relevant content of the mailings. The fact that Officer Logan testified

before the Superior Court that he did not find any “mail matter” in the apartment, id. at 11, may

show that he was not aware that the mail was found or that he forgot that it was found, but it is a

stretch to suggest that the police photographed the mailings at the same time that they sought to

hide their existence.

       Taylor also contends that the Court can infer bad faith from the investigating officers’

failure to comply with two sets of MPD policies. Dkt. 81 at 10. First, Officer Logan failed to

comply with his obligation to turn on his body-worn camera while investigating Taylor’s

apartment. Dkt. 49 (38:1–39:24). The few courts that have considered whether the failure of

police officers to activate body-worn cameras is indicative of bad faith, however, have declined

to reach such a conclusion on the basis of the mere failure to follow relatively new departmental

policies, as was the case here. See United States v. Brown, No. 17-CR-58, 2017 WL 8941247, at

*15–16 (D. Nev. Aug. 14, 2017) (declining to find bad faith but noting that “body cameras are

new devices that officers . . . are still getting acclimated to using” and that as cameras “become

more pervasive, and their use more ingrained in the culture and day-to-day routines of police

officers, the Court cannot say that the absence of video evidence in violation of internal police

procedures can never be suspicious or suggestive of misconduct” (internal quotation marks

omitted)); see also United States v. Cisneros, No. 17-CR-121, 2017 WL 8810688, at *9 (D. Nev.



                                                 9
 
Dec. 14, 2017), report and recommendation adopted, No. 17-CR-121, 2018 WL 953339 (D.

Nev. Feb. 20, 2018). In this case, Logan had been issued his body-worn camera less than six

months before his involvement in Taylor’s arrest. Dkt. 49 (38:10–12). The relevant dispute,

moreover, does not turn on any information that would likely have been preserved by body-

camera footage recorded by Officer Logan, who arrived on the scene after most of the

contraband had been discovered and moved. Nothing presently at issue involves Officer Logan’s

interaction with Taylor or anyone else at the apartment. Nor is there any basis to believe that

Officer Logan engaged in any misconduct at the scene, such as planting or mishandling

evidence, or that he failed to activate the camera in order to hide or to obscure evidence. Rather,

Taylor’s sole contention is that Officer Logan and others should have taken affirmative steps to

preserve additional evidence. Under these circumstances, the Court concludes that his failure to

activate his body-worn camera does not constitute prima facie evidence of bad faith in failing to

collect and preserve additional evidence. See United States v. Christian, 302 F. App’x 85, 87 (3d

Cir. 2008) (“Absent some proof of ill-will, a failure to follow procedure is insufficient to support

a finding of government bad faith.”); United States v. Ramos, 27 F.3d 65, 72 (3d Cir. 1994)

(same).

          Second, Taylor contends that the responding officers failed to comply with MPD general

orders requiring that MPD officers preserve “all potentially discoverable material that comes into

the possession of the [MPD],” Dkt. 91 at 12 (quoting MPD General Order N. 601.2 (Feb. 3,

2004)), and avoid “‘overlook[ing]’” evidence in the collection process, id. at 13 (quoting MPD

General Order No. 304.8 (Apr. 30, 1992)). But, even assuming that these or other MPD general

orders require GRU officers to collect and to preserve all potentially discoverable material at a

crime scene, the Supreme Court’s decision in Youngblood requires more than mere negligence or



                                                 10
 
oversight to establish the bad faith necessary for a due process violation. It is possible that in an

extraordinary case a court might infer bad faith from an officer’s failure to collect obviously

material evidence. Cf. Trombetta, 467 U.S. 488–89 (holding that the government violates the

Due Process Clause when evidence “possess[es] an exculpatory value that was apparent before

the evidence was destroyed, and [is] of such a nature that the defendant would be unable to

obtain comparable evidence by other reasonably available means”). But here, the importance of

the evidence Taylor now seeks was not so obvious as to suggest that the failure to gather and to

preserve it was itself indicative of bad faith. See Magraw, 743 F.3d at 9 (refusing to find a due

process violation “based on the unavailability of the [evidence] itself” when the defendant’s

support for the evidence’s exculpatory value was mere “ipse dixit”).

       Taken together, the rock against which Taylor’s claim founders is the Supreme Court’s

clear admonition that neither negligence nor incompleteness violates the Due Process Clause.

See Youngblood, 488 U.S. at 58; Lovitt v. True, 403 F.3d 171, 187 (4th Cir. 2005) (distinguishing

in the context of the Youngblood analysis even “a serious error in judgment” from bad faith);

United States v. Femia, 9 F.3d 990, 995 (1st Cir. 1993) (distinguishing in the context of the

Youngblood analysis “the government’s gross negligence” from bad faith). At most, Taylor has

shown that the investigation and documentation of what was found was incomplete. That may

form a basis for cross-examination of the government’s witnesses, but it does not rise to the level

of a due process violation.

       Finally, the Court notes that Taylor has suggested that he be allowed a chance to remedy

any factual deficiencies in his claims through a further pretrial evidentiary hearing. Dkt. 91 at 1.

But not every allegation of government bad faith requires an evidentiary hearing, and this case

offers a particularly poor justification for conducting one. Defense counsel had the opportunity



                                                 11
 
to question two Deputy U.S. Marshals and Officer Logan about what occurred during the search

of the apartment. Those examinations, to be sure, arose in the context of the hearing on Taylor’s

suppression motions. The examinations were, nonetheless, expansive, and they failed to reveal

direct evidence of bad faith or any basis to infer it. Had Taylor raised the present motion

earlier—something he could have done, given that the case nearly proceeded to trial more than

six months ago—defense counsel might have engaged in an even more expansive examination of

the witnesses. On the present record, however, the Court is unconvinced that Taylor has

provided sufficient evidence to justify yet another round of examinations involving similar

subject matter.

       Because Taylor has failed to make the requisite showing of bad faith, the Court will deny

Taylor’s motion to dismiss or for a curative instruction for a violation of the Due Process Clause.

Should the evidence at trial give reason to reconsider that conclusion, Taylor may renew his

motion in light of that evidence.

B.     Federal Rule of Criminal Procedure 16

       Taylor further argues that even absent a violation of the Due Process Clause, the

indictment should be dismissed because the government violated its obligations under Rule

16(a)(1)(E), which provides:

       Upon a defendant’s request, the government must permit the defendant to inspect
       and to copy or photograph books, papers, documents, data, photographs, tangible
       objects, buildings or places, or copies or portions of any of these items, if the item
       is within the government’s possession, custody, or control, and . . . the item is
       material to preparing the defense; . . . the government intends to use the item in its
       case-in-chief at trial; or . . . the item was obtained from or belongs to the defendant.

Fed. R. Crim. P. 16(a)(1)(E). Rule 16 thus establishes a general obligation of disclosure, but one

that is subject to several conditions. Most pertinent to the present case is the requirement that the

defendant “request” an item “within the government’s possession, custody, or control.” For the


                                                 12
 
reasons discussed below, the Court concludes that the items that Taylor requests do not satisfy

this condition.

       The parties agree that approximately six weeks after Taylor was evicted, defense counsel

requested discovery of all items discoverable under Rule 16, Dkt. 81 at 5; Dkt. 28-1 at 4, and that

the government eventually allowed Taylor’s lawyers to view the guns and ammunition, see

March 19, 2018 Hrg. Tr. (Rough at 9:2–12). There is no evidence, moreover, that the

government ever collected any evidence from the apartment other than the contraband itself. It

thus follows, of course, that the “items” Taylor seeks were not “within the government’s

possession, custody, or control” at the time Taylor was indicted or when his counsel made a

request under Rule 16. That, however, does not answer the central question presented by

Taylor’s motion, which posits that the government had an obligation to preserve all material

evidence that was in the apartment at the time of the eviction and Taylor’s arrest. Dkt. 81 at 5.

       Taylor’s leading authority for this proposition is United States v. Bryant, 439 F.2d 642

(D.C. Cir. 1971), in which the D.C. Circuit held that the government’s discovery obligations

affirmatively require it to preserve evidence in advance of a discovery request from the defense,

id. at 653. In that case, an undercover agent from the Federal Bureau of Narcotics and

Dangerous Drugs purportedly engaged in a narcotics transaction with the defendants in a motel

room, while other agents tape recorded their conversation from an adjacent room. Id. at 645.

The tape, however was “apparently . . . ‘lost’ somewhere at the Bureau of Narcotics and

Dangerous Drugs and [was] never . . . turned over to the prosecution,” or—more importantly—to

defense counsel, who “heard rumors of the tape’s existence” and “made repeated efforts to

discover it.” Id. at 646. On appeal, the government argued that the loss of the tape relieved it of

any disclosure obligation under Rule 16, because the tape was not in its “possession, custody, or



                                                13
 
control” for purposes of the rule at the time of the defense’s discovery request. Id. at 650. The

Court of Appeals, understandably, was unconvinced. As it explained, Rule 16 “includes no

reference to the timing of possession”:

       It is most consistent with the purposes of [the rule] to hold that the duty of disclosure
       attaches in some form once the [g]overnment has first gathered and taken
       possession of the evidence in question. Otherwise, disclosure might be avoided by
       destroying vital evidence before prosecution begins or before defendants hear of its
       existence.

Id. at 650–51. In short, the government’s line of reasoning, which failed to recognize any

preservation obligation prior to service of a Rule 16 request, was “far too facile” and subject to

abuse. Id. at 650. Instead, the Court of Appeals held, even “before a request for discovery has

been made,” and even “during the early stages of investigation,” Rule 16 imposes “a duty of

preservation.” Id. at 651.

       In addition to this holding, the Bryant decision adopted an expansive view of the duty to

preserve evidence under the Due Process Clause. Id. at 648. As the D.C. Circuit has recognized,

however, “at least with respect to due process claims based on missing evidence the exculpatory

value of which is unclear,” the Bryant decision did not survive the Supreme Court’s decision in

Youngblood. United States v. Vega, 826 F.3d 514, 533 (D.C. Cir. 2016). But the D.C. Circuit

has never disavowed the Rule 16 analysis contained in Bryant, and, accordingly, that aspect of

the holding remains binding on this Court. See id. at 533–34 (declining to reach the question

whether the Rule 16 analysis in Bryant survives Youngblood); United States v. Bakhtiar, 994

F.2d 970, 975 (2d Cir. 1993) (noting that “Bryant may still have validity after Youngblood”); id.

at 976 (“[T]here may be circumstances in which government sanctions for negligent loss of

evidence are appropriate, per Bryant . . . .”); cf. Vega, 826 F.3d at 533 n.7 (observing that the

continuing applicability of Bryant’s holding with respect to the Jencks Act is unclear). More



                                                  14
 
recent D.C. Circuit precedent, moreover, is to similar effect, imposing obligations on the

government that extend prior to any discovery request made by the defendant. In United States

v. Marshall, 132 F.3d 63 (D.C. Cir. 1998), for example, the Court of Appeals held that the

federal government “cannot be required to disclose evidence that it neither possesses nor

controls,” but cautioned that this is “not an invitation for the [government] to engage in

gamesmanship in discovery matters” and that “a prosecutor may not sandbag a defendant by ‘the

simple expedient of leaving relevant evidence to repose in the hands of another agency while

utilizing his access to it in preparing his case for trial,’” id. at 68–69 (quoting United States v.

Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)).

        Applying Bryant and its progeny, the Court concludes that the government had no

obligation under Rule 16 to collect and to preserve additional evidence at the Elvans Road

apartment. Bryant did not hold, as Taylor suggests, that the government is subject to sanction

under Rule 16 if it fails to collect and to preserve all potentially relevant evidence at a crime

scene. To the contrary, the Court of Appeals twice referred to the government’s obligation to

preserve only discoverable evidence that it had “gathered” and taken into its possession “in the

course of conducting a criminal investigation.” Bryant, 439 F.2d at 651, 652. Since Bryant,

moreover, the D.C. Circuit has repeated this formulation of the standard. In United States v.

Weisz, 718 F.2d 413 (D.C. Cir. 1983), for example, the Court of Appeals quoted the Bryant

formulation, adding emphasis to the essential language: the “duty of disclosure attaches in some

form once the [g]overnment has first gathered and taken possession of the evidence in question,”

id. at 436 (emphasis original). More recently, in United States v. Vega, the Court of Appeals

quoted again the same passage from Bryant, including the “instruct[ion]” that the government

must preserve “evidence gathered in the course of a criminal investigation.” 826 F.3d at 533; see



                                                  15
 
also United States v. Harrison, 524 F.2d 421, 422 n.1 (D.C. Cir. 1975); United States v. Duran,

884 F. Supp. 570, 573 (D.D.C. 1995).

       Here, there is no evidence that the government failed to preserve any evidence that it

“gathered” at the apartment; to the contrary, Taylor’s argument is that the government should

have “gathered” additional evidence. That contention, however, goes well beyond any

obligation that the D.C. Circuit or this Court has ever recognized. If adopted, moreover, it would

substantially transform the Rule 16 discovery obligation into an investigatory obligation. Taylor,

however, has failed to present the Court with any indication that the rule was ever intended to

serve such a purpose and he has failed to cite a single federal decision—from any jurisdiction—

embracing such an expansive view of Rule 16.

       Taylor does point to a handful of decisions from the D.C. Court of Appeals adopting a

reading of the District’s analogous rule that seem, at least at times, to require the government to

preserve evidence found at the crime scene. In Koonce v. District of Columbia, 111 A.3d 1009

(D.C. 2015), for example, the D.C. Court of Appeals held that the government violated Superior

Court Rule of Criminal Procedure 16 when it photographed, but failed to preserve, a vodka bottle

found in the defendant’s car in a driving under the influence case, id. at 1011–12. See also Smith

v. United States, 169 A.3d 887, 890 (D.C. 2017) (holding that the failure to collect evidence that

had not been “formally seized as evidence by the government” violated Rule 16); Robinson v.

United States, 825 A.2d 318, 328 (D.C. 2003) (holding that a recording of a call held by a prison

“was in the government’s ‘possession’ for both Jencks and Rule 16 purposes,” despite the

prison’s lack of involvement with the investigation, merely because it could have been retrieved

by the police). But, even assuming that the D.C. Court of Appeals has construed the D.C. rule to

require preservation of evidence at the crime scene, this Court is unpersuaded that such a



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substantial expansion of the federal rule is warranted in light of the standard articulated in Bryant

and repeated since then, the plain language of the rule itself (which limits its reach to evidence

“within the government’s possession, custody, or control”), and the logic of maintaining the

distinction between discovery obligations and investigatory obligations.

       Taylor disagrees, arguing that the evidence he requested under Rule 16 “was clearly

within the possession, custody, and control of the government.” Dkt. 81 at 6. He states that

courts have taken a “broad view of [the possession, custody, or control] criterion,” id. (citing

United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)), and he identifies testimony of

government witnesses that the Marshals Service and MPD had taken “control” over the Elvans

Road apartment, id. There is a meaningful difference, however, between broadly construing the

“possession, custody, or control” criterion to apply to evidence maintained by other government

agencies, Safavian, 233 F.R.D. at 15; Robinson, 825 A.2d at 326–27, and construing it to apply

to evidence found in an area over which the police or other government officials have taken

temporary control for purposes of conducting an investigation—or effecting an eviction. Taylor

has offered no legal support for the latter construction, which would apply to virtually all crime

scenes, as well as to other locations temporarily under government control for administrative

purposes. His reading of “possession, custody, or control” would thereby read the “gathered”

requirement out of the Bryant decision. More fundamentally, if correct, it would expand the

scope of the Federal Rules of Criminal Procedure to govern what evidence law enforcement

officers are required to collect in the first instance. That may or may not be a sound rule, but

Taylor has failed to offer the Court any basis to conclude that the architects of Rule 16 ever

contemplated such an application.




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       Consistent with the D.C. Circuit’s admonition in a slightly different context, this reading

of the rule is not an invitation to “gamesmanship in discovery matters.” Marshall, 132 F.3d at

69. Whether under Rule 16 or the Due Process Clause, it is safe to assume that the police may

not decline to “gather” evidence merely because they believe it might help the defense. This,

however, is not such a case. At least on the present record, the Court is unconvinced that there is

any reason to infer that the MPD or the Marshals Service failed to “gather” the green bag, the

mail addressed to Purvis, or other items that were found in proximity to the contraband for any

nefarious purpose—or, indeed, with any strategic or considered aim. They were not as thorough

as Taylor asserts they should have been, and that is it.

       Short of a showing that the government gathered and then failed to preserve evidence,2 or

engaged in gamesmanship in deciding what evidence to collect and what to leave behind,

Taylor’s remedy lies in cross-examination of the government’s witnesses. The Court will,

accordingly, deny his Rule 16 motion.

                                         CONCLUSION

       For the reasons explained above, the Court DENIES Taylor’s motion without prejudice.

       SO ORDERED.


                                                      /s/ Randolph D. Moss
                                                      RANDOLPH D. MOSS
                                                      United States District Judge


Date: June 12, 2018




2
 For example, no evidence has been presented regarding what happened to the green bag after
Officer Logan removed the firearm from it.

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