UNITED STATES of America, Plaintiff-Appellant, v. Roger D. MAPLES, Defendant-Appellee.
No. 94-5971.
United States Court of Appeals, Sixth Circuit.
Argued April 14, 1995. Decided July 28, 1995.
Rehearing and Suggestion for Rehearing En Banc Denied Sept. 6, 1995.
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Fourth, the majority‘s ruling violates the underlying assumption of the Guidelines that a sentence is fundamentally based on the criminal act, not merely on the ultimate harm to the victim. For its definition of loss, application note 7 invokes the commentary to
(1) In the case of a theft of a check or money order, the loss is the loss that would have occurred if the check or money order had been cashed. (2) In the case of a defendant apprehended taking a vehicle, the loss is the value of the vehicle even if the vehicle is recovered immediately.
Finally, I am troubled by the implications of the majority‘s ruling. Time and again, the judicial branch has respected “the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.‘” Griffin v. Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) (quoting Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716 (1940)). I believe that for the crime of fraudulent loan applications, however, the majority has loaded the scales in favor of the wealthy. Under the precedent established today, a wealthy defendant whose assets are reachable through “setoff, attachment, simple demand for payment and other similar legal remedies” by the bank he defrauded, or who makes immediate restitution after his fraudulent activity is discovered, will be entitled to a lesser sentence than the indigent defendant who commits exactly the same offense. If we refuse to calculate loss at the time of discovery, reduced only by assets specifically pledged as collateral by the defendant, wealth will become a determining factor in the calculation of sentences for fraudulent loan application crimes. Surely this proposition is repugnant to our philosophy of criminal justice.
For the forgoing reasons, I therefore respectfully dissent from the majority‘s opinion.
* Nelson, Circuit Judge, would grant rehearing for the reasons stated in his dissent.
James A.H. Bell, Law Offices of James A.H. Bell, Knoxville, TN (argued and briefed), for defendant-appellee.
Before: NELSON and BOGGS, Circuit Judges; GILMORE, District Judge.*
GILMORE, D.J., delivered the opinion of the court, in which BOGGS, J., joined. NELSON, J. (p. 248), delivered a separate dissenting opinion.
GILMORE, District Judge.
This appeal involves the question of whether a district court abused its discretion when
On March 15, 1994, a Federal Grand Jury, sitting in the Eastern District of Tennessee, returned a two-count indictment against appellant Roger D. Maples. The first count charged him with manufacturing marijuana, the second with possession with intent to distribute marijuana.
Maples was arraigned on March 23, 1994, and trial was scheduled for May 24, with a deadline for pretrial motions of April 15. Defendant filed a flurry of motions and memoranda on April 15, including a motion to disclose all statements the Government would seek to attribute to the defendant. The court granted this motion on May 5, and postponed the trial until July 29, 1994.
On June 10, defense counsel learned of a video tape of Maples making an inculpatory statement. On June 17, counsel moved to suppress the tape and related materials as a sanction for discovery abuse, pursuant to
The magistrate judge further held that granting a continuance would be a slap on the wrist of the government, so suppression was a more proper remedy. The district court heard oral argument, and, on July 25, adopted the magistrate judge‘s Report and Recommendation in its entirety. This interlocutory appeal, pursuant to
It was admitted in argument before the district court that the withholding of the tape was not deliberate, that there was no prejudice to the defendant, and that there was ample time for the defendant to consider the tape in time for trial. In short, there was no prejudice of any kind to the defendant, and the nondisclosure was not deliberate or willful. Nevertheless, the trial court adopted the Magistrate Judge‘s report and recommendation in its entirety.
We hold that it was an abuse of discretion to impose the most severe sanction, suppression, instead of granting a continuance, if necessary, or ordering less stringent sanctions under
If at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances.
It is well settled that a district court has considerable discretion under
Here, the government asserts that the district court abused its discretion under
It was further agreed by the magistrate judge and all parties that the defendant was not prejudiced, and that the government had not deliberately failed to disclose the materials. In short, it was agreed that there was, at most, negligence on the part of the government.
Appellate decisions in this and other circuits have identified several factors which should be considered in deciding whether suppression of evidence is an appropriate remedy to be imposed for a discovery violation. These include: (1) the reasons for the government‘s delay in producing the materials, including whether it acted intentionally or in bad faith; (2) the degree of prejudice, if any, to the defendant; and (3) whether the prejudice to the defendant can be cured with a less severe course of action, such as granting a continuance or a recess. See United States v. Wolak, 923 F.2d 1193, 1196–97 (6th Cir.), cert. denied, 501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991); United States v. Glover, 846 F.2d 339, 342 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988); United States v. Mavrokordatos, 933 F.2d 843, 847-48 (10th Cir.1991); United States v. Euceda-Hernandez, 768 F.2d 1307, 1312 (11th Cir.1985).
In United States v. Bartle, 835 F.2d 646 (6th Cir.1987), cert. denied, 485 U.S. 969, 108 S.Ct. 1245, 99 L.Ed.2d 443 (1988), the Sixth Circuit addressed the scope of a district court‘s discretion in imposing remedies pursuant to
Many courts have adopted the position of favoring imposition of the least severe remedy available to cure prejudice. See Euceda-Hernandez, supra; United States v. Dennison, 891 F.2d 255 (10th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3215, 110 L.Ed.2d 663 (1990); United States v. Bentley, 875 F.2d 1114, 1118 (5th Cir.1989).
Here, the district court found as a matter of fact that the government had not acted intentionally and that the defendant suffered no prejudice in the delay. While defendant agrees there was no bad-faith misconduct by the government, he argues that the suppression was appropriate because he suffered some prejudice, such as waste of time on early trial strategies and possible disadvantages at sentencing. It appears to the court, however, that these prejudices are far too intangible and speculative for us to conclude that any meaningful prejudices resulted from the delay. The real question is whether, under such circumstances, the district court‘s discretion to fashion a discovery remedy should be limited by an anti-suppression bias. We believe that it should.
The goal of discovery in criminal trials is to insure a fair and thorough determination of defendant‘s guilt or innocence. In order to reach this goal, suppression of evidence must be viewed as an undesirable remedy reserved for cases of incurable prejudice or bad faith conduct demanding punishment by the court.
District courts should embrace the “least severe sanction necessary” doctrine, and hold that suppression of relevant evidence as a remedial device should be limited to circumstances in which it is necessary to serve
The district court determined the evidence was extremely relevant, was not intentionally withheld, and that its late disclosure resulted in no specific prejudice to the defendant. Under such circumstances, we must conclude that the district court abused its discretion by granting Defendant‘s motion to suppress the evidence.
Reversed and remanded for trial.
DAVID A. NELSON, Circuit Judge, dissenting.
The magistrate judge expressly found that the government‘s violation of the discovery order was negligent. This finding was not clearly erroneous, in my view. I also think it was within the province of the district court to find that suppression of the video tape and agent‘s notes was the least severe sanction likely to deter similar acts of negligence in the future. Accordingly, and having regard not only to the nature of the evidence in question but also to the fact that its suppression would not preclude the government from presenting oral testimony as to the defendant‘s inculpatory statements, I cannot say that the district court abused its discretion in accepting the recommendation that the video tape and notes be suppressed. See United States v. Glover, 846 F.2d 339, 342 (6th Cir.), cert. denied, 488 U.S. 982, 109 S.Ct. 533, 102 L.Ed.2d 565 (1988). (As far as the agent‘s notes are concerned, incidently, it is far from clear that the notes would have been admissible in any event.) I would affirm the district court‘s order.
GILMORE, District Judge.
* The Honorable Horace W. Gilmore, United States District Judge for the Eastern District of Michigan, sitting by designation.
* Jones, Circuit Judge, would grant rehearing for the reasons stated in his dissent.