                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 12-50056
            Plaintiff-Appellee,
                                            D.C. No.
              v.                         3:10-cr-02637-
                                             JAH-1
JOSE AUGUSTINE MUNIZ-
JAQUEZ,
         Defendant-Appellant.              OPINION


      Appeal from the United States District Court
         for the Southern District of California
       John A. Houston, District Judge, Presiding

                Argued and Submitted
       February 12, 2013—Pasadena, California

                   Filed June 10, 2013

    Before: Alfred T. Goodwin, Andrew J. Kleinfeld,
        and Barry G. Silverman, Circuit Judges.

              Opinion by Judge Goodwin
2              UNITED STATES V. MUNIZ-JAQUEZ

                           SUMMARY*


                          Criminal Law

    Vacating an illegal reentry conviction and remanding, the
panel held that the district court abused its discretion under
Fed. R. Crim. P. 16 by failing to order production of Border
Patrol dispatch tapes.

    The panel observed that defense’s counsel’s seeking the
tapes to potentially further an official restraint defense, as
well as for possible use in impeaching the agent who testified
that he called for backup over his service radio immediately
after spotting the defendant, was not a fishing expedition.
The panel also observed that the district court had no basis to
conclude, without listening to the tapes, that the defendant’s
showing of materiality was speculative.


                            COUNSEL

Devin Burstein, Federal Public Defenders of San Diego, Inc.,
San Diego, California, for Defendant-Appellant.

Blair C. Perez (argued), Assistant United States Attorney,
Laura E. Duffy, United States Attorney, Bruce Castetter,
Chief, Appellate Section Criminal Division, United States
Attorney’s Office, San Diego, California, for Plaintiff-
Appellee.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             UNITED STATES V. MUNIZ-JAQUEZ                   3

                         OPINION

GOODWIN, Senior Circuit Judge:

    Jose Augustine Muniz-Jaquez appeals his conviction for
being a deported alien found in the United States. He assigns
error to the district court’s failure to order production of
certain U.S. Border Patrol dispatch tapes. Because the district
court erred in excluding potentially exculpatory evidence, we
vacate the conviction and remand.

                    I. BACKGROUND

    On April 28, 2010, U.S. Border Patrol Agent Derrick
Woodford observed Muniz-Jaquez and four others running
north near Copper Canyon, three miles east of Otay Mesa,
California, clearly within the United States. Prior to trial,
defense counsel filed a timely discovery motion requesting all
arrest reports, notes, and dispatch tapes. The government
produced some materials, but no dispatch tapes.

    During trial, Agent Woodford testified that Copper
Canyon begins nearly at the U.S./Mexico border and extends
roughly a mile north of the border. He testified that he drove
along a road running adjacent to the border fence that then
curved north, crossed two bridges, and curved back south to
the fence. He testified that, as he came around the initial
curve, he observed five individuals north of the second
bridge, roughly fifty yards from him, walking north. On
cross-examination, Agent Woodford testified that he did not
see Muniz-Jaquez walking north from the fence, but rather
spotted him north of the second bridge. However, after
reviewing his written report of the incident, he also testified
that he had written that he observed five people “running
4            UNITED STATES V. MUNIZ-JAQUEZ

north from the immediate border area.” He further stated that
immediately after spotting the individuals, he called for
backup over his service radio, which would have been tape-
recorded.

    During recess, the prosecutor, who had not previously
known of the tapes, learned that they existed, but asserted
they were not discoverable. Defense counsel conceded, but
preserved for appeal, that the tapes were not covered by the
Jencks Act. Defense counsel then argued that any tapes were
discoverable under Federal Rule of Criminal Procedure 16
and Brady v. Maryland, 373 U.S. 83 (1963). Defense counsel
argued that the tapes were relevant to presenting an official-
restraint defense: Muniz-Jaquez might have been observed
from the moment of entry until arrest. Federal law proscribes
a deported alien’s entry, attempted entry, or being found in
the United States. 8 U.S.C. § 1326(a). Muniz-Jaquez was
indicted only for being found in the United States after his
previous deportation and removal. Despite the seemingly
plain language, however, “physical presence is not enough”
to violate the statute. United States v. Pacheco-Medina,
212 F.3d 1162, 1163 (9th Cir. 2000).

    In order to constitute “entry,” an alien must be free from
official restraint. Id. at 1164. Official restraint includes
surveillance, regardless of the alien’s awareness. Id. “The
doctrine is premised on the theory that the alien is in the
government’s constructive custody at the time of physical
entry. By contrast, when an alien is able to exercise his free
will subsequent to physical entry, he is not under official
restraint.” Id. at 1165 (quoting United States v. Aguilar,
883 F.2d 662, 683 (9th Cir. 1989)). This doctrine extends to
the offense of being found in the United States, because the
concept of entry is “embedded in the ‘found in’ offense.” Id.
             UNITED STATES V. MUNIZ-JAQUEZ                   5

at 1166. “[I]t logically follows that an entry, as defined
legally, is required before a person is ‘found in’ the United
States.” Id.

     Counsel also argued that the recording could impeach
Agent Woodford. Without listening to the tapes, the district
court repeatedly questioned their exculpatory or material
quality, characterizing arguments in favor of production as
speculative. The court noted the lack of any other challenge
to the agent’s testimony, as well as the “spotty” nature of the
tapes which it had not reviewed, and seemed to conclude that
the defense had untimely requested the tapes in the middle of
trial.

    Prior to trial, the prosecutor presumed that the tapes no
longer existed, and defense counsel also presumed, from past
experience, that any tapes had been erased. The district court
stated that defense counsel would be aware that these tapes
should be available in the future and could bring motions
earlier next time. Declaring the motion untimely and leading
to inappropriate delay, the court said counsel had failed to
establish that the tapes would be either material or
exculpatory and denied the motion.

   We also note that the government conceded at oral
argument that it would have produced the tapes prior to trial
had it been aware of their existence.

   Following the conclusion of the bench trial, the district
court found Muniz-Jaquez guilty of being a deported alien
found in the United States. The court sentenced him to
seventy months’ incarceration.
6            UNITED STATES V. MUNIZ-JAQUEZ

                     II. DISCUSSION

    Muniz-Jaquez does not make a Brady argument before us,
though upon remand any exculpatory evidence must of course
be disclosed. He concedes the Jencks Act does not apply,
United States v. Bobadilla-Lopez, 954 F.2d 519, 522–23 (9th
Cir. 1992), preserving the issue only for potential en banc
review. The only issue remaining on appeal is the district
court’s ruling under Rule 16. We reverse.

     Discovery rulings are reviewed for abuse of discretion,
looking “to whether the district court reaches a result that is
illogical [or] implausible.” United States v. Stever, 603 F.3d
747, 752 (9th Cir. 2010). Rule 16 “grants criminal
defendants a broad right to discovery,” id., requiring
disclosure of all documents “material to preparing the
defense,” Fed. R. Crim. P. 16(a)(1)(E)(i). Rule 16 is thus
broader than Brady. Information that is not exculpatory or
impeaching may still be relevant to developing a possible
defense. See United States v. Doe, 705 F.3d 1134, 1151 (9th
Cir. 2013) (“Even if the documents [requested under Rule 16]
caused [defendant] to completely abandon [his] entrapment
defense and take an entirely different path, the documents
would still have been ‘material to preparing the defense’
under Rule 16(a)(1)(E)(i).”). Even inculpatory evidence may
be relevant. A defendant who knows that the government has
evidence that renders his planned defense useless can alter his
trial strategy. Or he can seek a plea agreement instead of
going to trial. As the Supreme Court recently noted,
“criminal justice today is for the most part a system of pleas,
not a system of trials.” Lafler v. Cooper, 132 S. Ct. 1376,
1388 (2012).
             UNITED STATES V. MUNIZ-JAQUEZ                     7

    “A defendant must make a threshold showing of
materiality, which requires a presentation of facts which
would tend to show that the Government is in possession of
information helpful to the defense.” Stever, 603 F.3d at 752
(quotation marks omitted). “Rule 16 permits discovery that
is ‘relevant to the development of a possible defense.’”
United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990).
“[G]eneral description[s] of the information sought [or]
conclusory allegations of materiality” are insufficient. Id.

    The district court concluded, without listening to the
tapes, that Muniz-Jaquez’s showing of materiality was
speculative. This court has held a defendant was entitled to
discovery of drug dog certification materials because they
“were crucial to [the defendant’s] ability to assess the dog’s
reliability, a very important issue in his defense, and to
conduct an effective cross-examination of the dog’s handler.”
United States v. Cedano-Arellano, 332 F.3d 568, 571 (9th
Cir. 2003). The handler had testified to the dog’s certification
and “much-better-than-passing score” in the tests, and the
court concluded there was “no reason why the certification
documents, the production of which had been requested and
about which the handler testified, should not have been
disclosed.” Id. (emphasis added).

    Here, Agent Woodford testified as to his location, and
Muniz-Jaquez’s location at first sighting. Importantly, he
also testified that he called for backup immediately upon
sighting the defendant. Further, the agent’s report listed
Muniz-Jaquez’s location as the immediate border area.
Defense counsel here made clear that he sought the tapes to
potentially further an official restraint defense, as well as for
possible use in impeaching the agent. This was not a fishing
expedition. As in Cedano-Arellano, the tapes could have
8            UNITED STATES V. MUNIZ-JAQUEZ

been crucial to Muniz-Jaquez’s ability to assess the reliability
of Agent Woodford’s testimony and to cross-examine him
effectively, both important issues in his defense. Moreover,
given Agent Woodford’s testimony that he immediately
called for backup, the tapes were clearly relevant to the
defendant’s location and the official restraint defense.

    In rejecting the materiality showing, the district court
referred to the “spotty” nature of the tapes. Problematically,
it did so without listening to them. The district court also
improperly relied on Agent Woodford’s supposed credibility
and the lack of any challenge to his testimony. In doing so,
the district court assumed the point in dispute. Without
access to the tapes, Muniz-Jaquez had little material with
which to challenge the agent’s testimony. The district court
had no basis for finding the defendant’s showing of
materiality to be speculative.

     The district court also appeared motivated to deny the
motion because it occurred in the midst of trial. To the extent
the district court based denial of the motion on the lateness of
the request, that consideration was not relevant here because
the lateness resulted from the government’s failure to disclose
the tapes’ existence at the appropriate time. Timeliness and
materiality are two different concepts and each has its place
in the exercise of discretion. Particularly where, as here, both
attorneys were apparently surprised to find the tapes still
existed. Defense counsel cannot be faulted for failing to
renew the request where, among other things, the prosecutor
failed to realize the tapes still existed, and the government
failed to disclose them in the first instance. The defense was
certainly not dilatory.
            UNITED STATES V. MUNIZ-JAQUEZ               9

                  III. CONCLUSION

    In sum, the district court abused its discretion in
excluding the tapes. We therefore remand for production of
the recordings, any motions the production may generate,
including any motion for a new trial, and such subsequent
determinations as may be appropriate. Stever, 603 F.3d at
754 (Rule 16 error may require “remand for a determination
whether the Government’s documents in fact contain, or
would have led to, information that might have altered the
verdict”).

   REVERSED AND REMANDED with instructions.
