
                                             United States Court of Appeals
              for the district of columbia circuit



No. 96-3053                                  September Term, 1997
                                                  No. 95cr00201-01
United States of America,
               Appellee
               
v.

Marlon Marshall,
               Appellant
               



     Before: Silberman, Sentelle and Garland, Circuit Judges.





                            O R D E R


     Upon consideration of appellee's petition for rehearing, it is

     ORDERED that the petition for rehearing is granted in part, to the extent consistent with
the following amendment, and denied in part.  It is further

     ORDERED that the opinion filed by the court on January 6, 1998, be amended by
replacing the last paragraph on page 10 of the slip opinion with the following paragraph and
footnote:

             It could be argued that even before trial commenced, the government should have
     realized that the jail visitation records were "material to the preparation of [Marshall's]
     defense" under Rule 16(a)(1)(C).  It knew then that Sabrina Shorter could play a
     significant role in its case-in-chief; caller identification equipment revealed that one or
     more of the informant's calls were returned from her residence.  It also could be argued
     that the government knew or should have known that the jail visitation records mentioning
     Ms. Shorter would bear more than "some abstract logical relationship to the issues in the
     case."  Caicedo-Llanos, 960 F.2d at 164 n.4 (quoting United States v. Ross, 511 F.2d
     757, 762 (5th Cir. 1975)).2  And, as we have discussed above, the fact that the evidence
     was incriminating did not relieve the government of its Rule 16 obligations.

     ______________________
          2  To give rise to a disclosure obligation, the evidence's materiality must, of course,
     be evident to a reasonable prosecutor.  The prosecutor need not guess that evidence may
     become material as a consequence of a defendant's not-yet-revealed strategic decisions. 
     Nor must the prosecutor assume that the defense will make false assertions about the
     facts, hence making relevant contrary evidence that would not have been relevant had the
     defense adhered to the truth.



                                        Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk


Filed on March 6, 1998