                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-4150
                                   ___________

United States of America,               *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
Jeffrey J. DeCoteau,                    *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: June 15, 1999
                                 Filed: August 5, 1999
                                  ___________

Before HANSEN and MAGILL, Circuit Judges, and JONES,* District Judge.
                           ___________

MAGILL, Circuit Judge.

      The government indicted Jeffrey J. DeCoteau for possessing stolen firearms and
being a felon in possession of firearms. The district court dismissed the indictment
when the government violated a pretrial order by disclosing its witnesses to DeCoteau
twelve days prior to trial instead of fourteen days prior to trial. We reverse and
remand.



      *
        The Honorable John B. Jones, Senior United States District Judge for the
District of South Dakota, sitting by designation.
                                            I.

        Jeffrey J. DeCoteau was indicted on July 8, 1998, on one count of possessing
stolen firearms and one count of being a felon in possession of firearms. In August
1998 a magistrate judge issued a pretrial order requiring the government to disclose to
DeCoteau the names, addresses and phone numbers of its witnesses fourteen days prior
to trial.

      DeCoteau's trial was originally scheduled for October 22, 1998. The trial date
was continued to November 12, 1998, making the government's witness disclosure due
October 29, 1998. The government, however, failed to disclose its witnesses to
DeCoteau until October 31, twelve days prior to trial.1 In its disclosure, the
government provided the names of numerous potential witnesses, but failed to provide
the phone numbers or addresses of several of the witnesses.

       After receiving the government's late and incomplete witness disclosure,
DeCoteau filed a motion to exclude all of the government's identified witnesses on the
ground that the government failed to abide by the pretrial order. The government
argued that its violation of the pretrial order was merely technical in nature and that its
violation was not prejudicial because it had previously provided DeCoteau with the
name, address and phone number of each listed witness in earlier discovery. The
district court, without analyzing the merits of the government's contentions and without
determining whether DeCoteau had suffered any prejudice because of the incomplete
disclosure, elected to strictly enforce the pretrial order and granted DeCoteau's motion.
The court then dismissed the indictment. The government now appeals.



      1
       The government attempted to send its witness disclosure via facsimile to
DeCoteau's counsel on October 30, 1998 (thirteen days prior to trial), but DeCoteau's
counsel's facsimile machine was broken.

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                                            II.

       We review a district court's decision to sanction the government for discovery
violations for an abuse of discretion. See United States v. Wilson, 102 F.3d 968, 971
(8th Cir. 1996); see also United States v. Manthei, 979 F.2d 124, 126-27 (8th Cir.
1992) (reviewing district court's decision to dismiss an indictment for an abuse of
discretion).

       In this case, the district court ordered the government to disclose the names,
addresses and phone numbers of its witnesses to DeCoteau fourteen days prior to trial.2
The government contends that the district court erred in striking all of its witnesses and
dismissing the indictment because of the government's failure to abide by that order.
Although we do not condone the government's failure to comply with the terms of the
district court's disclosure order,3 we hold that the district court abused its discretion in
striking all of the witnesses and dismissing the indictment.

       "When a court sanctions the government in a criminal case for its failure to obey

       2
        As a general rule, a defendant in a noncapital case has no right to require
disclosure of government witnesses. See, e.g., United States v. Porter, 850 F.2d 464,
465 (8th Cir. 1988); United States v. White, 750 F.2d 726, 728 (8th Cir. 1984).
Notwithstanding this general rule, a district court in this circuit may exercise its
discretion to require such disclosure "in a proper case." United States v. Cole, 449
F.2d 194, 198 (8th Cir. 1971); see also White, 750 F.2d at 728 (explaining that district
court has the discretion to order disclosure of the government's witnesses).
       3
       We also do not condone the government's cavalier attitude taken in the district
court concerning its failure to abide by the order, as exemplified in its pleading filed in
response to DeCoteau's motion to strike the government's witnesses. In that pleading,
the prosecutor attempted to explain his tardy disclosure by asserting that "[i]n his
defense, the prosecutor must state that if he was good at math and science, he would
have been a doctor." Government's Return To Def. DeCoteau's Mot. To Exclude
Prosecution Witnesses at 1.

                                            -3-
court orders, it must use the least severe sanction which will adequately punish the
government and secure future compliance." United States v. Hastings, 126 F.3d 310,
317 (4th Cir. 1997), cert. denied, 118 S. Ct. 1388 (1998). "In determining a suitable
and effective sanction, a court must weigh the reasons for the government's delay and
whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered
by the defendant; and whether any less severe sanction will remedy the prejudice and
the wrongdoing of the government." Id. Dismissing an indictment is appropriate only
if the government's conduct has substantially prejudiced the defendant. See United
States v. Tulk, 171 F.3d 596, 598 (8th Cir. 1999) ("To obtain dismissal of an
indictment, a defendant must generally show both flagrant misconduct and substantial
prejudice."); Manthei, 979 F.2d at 126-27 (holding that "absent flagrant and prejudicial
prosecutorial misconduct, this court will find that the district court's dismissal of an
indictment is an abuse of its discretion" (internal quotation marks omitted)); see also
United States v. Morrison, 449 U.S. 361, 365 (1981) (holding that "absent
demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is
plainly inappropriate, even though the violation may have been deliberate"); United
States v. Derrick, 163 F.3d 799, 808 (4th Cir. 1998) (explaining that federal circuit
courts of appeals routinely hold that "an indictment may not be dismissed based on
prosecutorial misconduct, absent a showing of prejudice to the defendant").

       In this case, the district court sanctioned the government for violating the pretrial
order without endeavoring to determine whether DeCoteau was prejudiced by the
violation. Sanctioning the government by striking all of its witnesses and dismissing
the indictment without first making any findings as to prejudice constitutes a clear
abuse of discretion. See Manthei, 979 F.2d at 126-27; see also Derrick, 163 F.3d at
806 (holding that "the district court's dismissal of the defendants' indictments without
a finding of prejudice is directly contrary not only to the precedent of this court, but
also to clear and well-established Supreme Court precedent").

       Based on the record before us, we fail to find that DeCoteau was sufficiently

                                            -4-
prejudiced to justify striking all of the government witnesses and dismissing the
indictment. The government claims that the missing addresses and telephone numbers
in its October 31, 1998 disclosure were included in witness statements that the
government provided to DeCoteau more than seventy days prior to trial. DeCoteau
does not dispute this contention and, assuming this is true, we do not see how
DeCoteau could have been prejudiced in light of his previous receipt of the names,
addresses and phone numbers of the listed witnesses. Furthermore, the fact that the
government disclosed its witnesses two days late, but still twelve days prior to trial,
does not support a finding of prejudice, see United States v. Vitale, 728 F.2d 1090,
1093 (8th Cir. 1984) (defendant not substantially prejudiced by court's requiring
government to disclose witness only four days prior to trial), especially in the absence
of any suggestion by DeCoteau that a continuance would be necessary. See McLendon
v. United States, 587 F.2d 384, 388-89 (8th Cir. 1978) (explaining that defendant's
failure to request a continuance in light of government's failure to disclose witnesses
prior to trial constitutes evidence that defendant was not prejudiced by lack of pre-trial
disclosure); see also United States v. Bissonette, 164 F.3d 1143, 1145 (8th Cir. 1999)
(holding that defendant's failure to request a continuance after government's delayed
disclosure of a witness indicates a lack of prejudice).

       Not only did the district court fail to analyze whether DeCoteau was prejudiced
by the government's incomplete and tardy disclosure, but the court also failed to engage
in any analysis concerning whether the government's conduct was done in bad faith and
whether a less severe sanction would have been sufficient to remedy any prejudice
DeCoteau may have suffered. Accordingly, we hold that the district court abused its
discretion in striking the government's witnesses and dismissing the indictment.

                                           III.

       For the foregoing reasons, we REVERSE and REMAND with instructions to
reinstate the indictment.

                                           -5-
A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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