Sunday, May 11, 2008

Case o' The Week: It Pays to Discover, Chapman

Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left). United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008), decision available here.

Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Id. at *1. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. Id. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct. Id. When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. Id. at *3. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment. Id.

Issue(s): “The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.” Id. at *1.

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . .” Id. at *5.“We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .” Id. at *1.

2. Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” Id. at *1.

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” Id. at *5. The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. Id. at *6. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Id. Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.” Id. at *9.

This is heady stuff – particularly because one of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008), see blog discussing Qualcomm discovery sanctions here.

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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