US v. Muniz-Jaquez, No. 12-50056 (9th Cir. June 10, 2013)(Goodwin with Kleinfeld and Silverman).

In the middle of a 1326 trial, where the defense was "official restraint," a testifying agent indicated that the were border patrol dispatch tapes. The prosecutor had not been aware of them. Maybe this could help the defense of "being under surveillance" (i.e. official restraint) when found in the US. Defense counsel had been a Rule 16 request previously, and renewed it. Counsel also asked that the court order production of the tapes. The court refused, saying that the equestrian was "a fishing expedition" and immaterial. The trial court also did not review them. On appeal, the 9th remanded for production of the tapes, and any new trial motions. The 9th concluded that this was not Brady, yet, but that the tapes did fall under Rule 16, and that it was relevant to the "official restraint" defense as the tapes may show that the border patrol kept a band crossing the border under surveillance. The district court abused its discretion if refusing to order production.

Congrats to Devin Burstein, Federal Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/10/12-50056.pdf