United States v. Simone Swenson, 894 F.3d 677

Background

Simone Swenson, owner of an adoption agency, was indicted on mail- and wire-fraud charges for allegedly "double-matching" birth mothers to two prospective families to collect fees from both. She pleaded not guilty and remained on bond.
The case generated voluminous discovery. Swenson had multiple continuances while defense counsel changed from retained counsel to the Federal Public Defender; trial was set for February 7, 2017, and the government’s Rule 16 discovery deadline was January 17.
In the weeks before trial the government produced large batches of documents late, including emails and police reports that defense counsel claimed were impeaching or exculpatory and that conflicted with FBI reports relied on by the prosecution.
At a February 6 hearing the prosecutor acknowledged she had received but not reviewed some investigative documents years earlier and apologized; the district court criticized the government and dismissed the indictment with prejudice for destroying the prosecution’s integrity.
The district court denied the government’s reconsideration motion, reaffirming dismissal because the government repeatedly disclosed new materials late and relied on witnesses to filter relevant evidence.
The Fifth Circuit reversed, concluding there was no Brady suppression, the district court did not apply required factors before imposing the extreme sanction, and a continuance or new trial would be the appropriate remedy rather than dismissal with prejudice.

Issues

Issue	Plaintiff's Argument (Swenson)	Defendant's Argument (Government)	Held
Did the government violate Brady by withholding favorable material?	Late-produced police reports and emails were favorable, impeaching or exculpatory, and were suppressed.	Material was produced before trial; evidence was not suppressed and thus no Brady violation.	No Brady violation: evidence given pretrial/at trial is not treated as suppressed.
Was dismissal with prejudice an appropriate sanction for discovery violations?	Repeated late disclosures and failure to timely produce exculpatory material destroyed prosecutorial integrity, warranting dismissal.	Mistakes were inadvertent; less severe sanctions (continuance/new trial) suffice.	Dismissal with prejudice was an abuse of discretion; court failed to weigh Garrett factors and imposed a disproportionate sanction.
Did the government act in bad faith or engage in prosecutorial misconduct requiring dismissal?	Pattern of failures and reliance on witnesses to filter evidence indicated misconduct or gross negligence.	Errors were oversight/benign mistakes; no intentional withholding or bad faith.	No clear evidence of bad faith; errors were not so egregious as to warrant dismissal.
Was the defendant prejudiced such that dismissal was necessary?	Late production deprived defense of different trial strategy and investigation opportunities.	Defense received materials before trial and could have used them; a continuance would cure any prejudice.	Defendant failed to show actual prejudice; continuance or retrial, not dismissal with prejudice, is appropriate.

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (Brady establishes duty to disclose favorable evidence)
Kyles v. Whitley, 514 U.S. 419 (1995) (prosecutor bears burden to learn of and disclose Brady material)
United States v. Garrett, 238 F.3d 293 (5th Cir. 2000) (factors district courts must weigh before imposing discovery sanctions)
United States v. McKenzie, 678 F.2d 629 (5th Cir. 1982) (dismissal with prejudice requires showing of actual prejudice)
United States v. Welborn, 849 F.2d 980 (5th Cir. 1988) (dismissal with prejudice is an extreme sanction reserved for extraordinary situations)
United States v. Fulmer, 722 F.2d 1192 (5th Cir. 1984) (mere oversight is not gross negligence or intentional misconduct)
United States v. Brown, 650 F.3d 581 (5th Cir. 2011) (remedy for Brady violation is ordinarily a new trial, not dismissal)
United States v. Morrison, 833 F.3d 491 (5th Cir. 2016) (late production of impeachment evidence is judged by whether defendant was prejudiced)