UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 16-cr-91-01-JL
Opinion No. 2017 DNH 224P
Brad Smith
ORDER ON MOTION FOR MISTRIAL
This case poses the question of a prosecutor’s duty, under
Fed. R. Crim. P. 16(a)(1)(E), to disclose arguably inculpatory
rebuttal evidence used solely during cross-examination of the
defendant.
After two days of testimony and brief deliberation, a jury
convicted Brad Smith of six counts of Sexual Exploitation of
Children in violation of 18 U.S.C. § 2251(a). Smith had
confessed to making six video recordings of himself raping the
three-year old daughter of his employer, at whose home Smith was
working when he committed the assault. The charged recordings
were shot from the offender’s point of view and did not show his
face. They did, however, record his voice, clothes and familiar
surroundings, and show that the rapist, like Smith, had an
uncircumcised penis -- an unfortunately graphic, but important,
detail in this case.
Smith’s confession occurred during a “Mirandized” custodial
interrogation. At his suppression hearing, he testified and
admitted making the confession. Testifying as the last witness
in his defense at trial, however, Smith denied being the male in
the videos, and named his brother as the culprit.1 Smith’s end-
of-trial direct examination was the first time in the course of
the investigation and prosecution that Smith had accused his
brother. In neither of the prior occasions where the defendant
spoke on the record of this case -- the videotaped confession
recorded on the day of his arrest, and his testimony during a
suppression hearing -- did Smith attempt to shift blame to his
brother.
At the end of his cross-examination, the prosecutor showed
Smith two pictures taken by law enforcement personnel, one of
Smith himself (which the prosecutor had disclosed in discovery)
1 Specifically, the defendant testified for the first time on
direct examination that “I knew it wasn’t me in the video, so
there was really only one other option and that was that it was
my brother in the video.” Trial Transcript (“Tr.”), doc. no. 72
at 32. On cross-examination Smith and the prosecutor had the
following exchange: “Q: And you knew it was [your brother]?
A: He’s the only other person that it could have been.” Id. At
post-trial oral argument on this motion, defense counsel tried
to parse Smith’s words, noting that he testified only that his
brother was the only other person who could have made the
recordings, not that he actually did so. Given the context, the
court finds Smith’s testimony to be directly accusatory.
2
and one of his brother (which had been neither disclosed nor
produced), each with his penis exposed. The former picture,
Smith agreed, showed that his own penis was uncircumcised, as
was the assailant’s penis in the offending video recordings at
issue.2 Smith also agreed that the other picture showed that his
brother’s penis was circumcised, unlike the assailant’s penis.3
Investigators had only photographed and provided the brother’s
photo to the prosecution (at the prosecutor’s request) during
the trial on the day before the defendant testified. After the
close of evidence and soon after other post-evidence proceedings
(a Rule 29 dismissal motion and a discussion about jury
instructions), the defendant moved for a mistrial claiming the
government’s failure to produce the two photographs violated
Fed. R. Crim. P. 16.
After two rounds of briefing and oral argument, the court
denies defendant’s motion. The court does not rule on whether
the government was obligated to produce defendant’s brother’s
photograph. Even if the prosecutor violated Rule 16, the
evidence against the defendant was so completely one-sided and
2 Transcript (“Tr.”), doc. no. 72, at 87.
3 Id.
3
insurmountably overwhelming that the defendant suffered no
mistrial-triggering prejudice as a result of the non-disclosure.
I. BACKGROUND4
In January 2016, law enforcement personnel in Louisiana
received information that Smith, then living and working on a
local pecan farm owned and operated in absentia by the child
victim’s father in New Hampshire, could be involved in trading
or possessing child pornography. Investigators went to the farm
to conduct a voluntary interview with Smith. In the course of
the interview, Smith conceded that there might be child
pornography on his laptop computer that he “accidentally”
downloaded. The laptop and two external hard drives -- one
silver and one black -- were seized from Smith’s bedroom with
his verbal and written consent. The silver hard drive was
attached to the laptop and the other was nearby on the same
table. A search of the silver hard drive revealed pornographic
images (depicting both a child and adults known to Smith) and
six separate video recordings of a younger child being raped in
various ways. One of the investigators, Louisiana Trooper
(then-Investigator) Georgiana Kibodeaux, recognized the child
4 The facts recited here are taken from trial testimony.
4
from a photograph she had seen on Smith’s refrigerator earlier
in the day.
Smith later came to Trooper Kibodeaux’s office for a
videotaped “Mirandized” interview, portions of which were played
for the jury. During the course of the interview, Smith readily
confessed to viewing and trading child pornography. Kibodeaux
eventually confronted Smith with a still photo of the child
victim. Smith identified the girl in the picture as the
daughter of his employer, who lived in New Hampshire and who
owned the Louisiana pecan farm where Smith was living and
working. He said he was close with both the girl and her
family. Kibodeaux informed Smith that they had found child
pornography on his computer showing the girl being vaginally and
orally raped, but not the rapist’s face. Smith admitted that he
was the man in the video. He said the assault took place on a
single afternoon in his employer’s barn in Loudon, New Hampshire
when he was working at the property the previous spring. He
made no mention of his brother.
Smith was arrested immediately after his confession, and
indicted in this district. The six counts against him related
to the six video recordings he admitted making and participating
5
in.5 A search of his residence had yielded additional evidence
that tied him to the charged recordings:
• a pair of athletic shoes of the same style and color
(and with the same color shoe laces) as the ones
worn by the rapist, clearly identical -- right down
to a small spot or stain on the toe of one shoe --
to those worn by the perpetrator;
• a carpenter’s level that appeared identical to one
appearing in one of the video recordings;
• several pairs of pants with Smith’s name on them
that appeared identical to those worn by the man in
the video recording.
In addition to this evidence, a set of “Google Glass”
eyeglasses6 were found on a table next to Smith’s bed, which
Smith testified belonged to him. The glasses were significant
because, according to testimony from a government forensic
computer expert, metadata from still images of the child victim
taken at approximately the same time as the charged video
recordings showed that they were taken with Google glasses.7
The forensic examiner also testified that the charged
videos were stored electronically with the same filing system
5 The recordings range from ten to ninety seconds in length.
6 For purposes of this order, it is sufficient to describe Google
Glass as a type of camera worn in the same manner as glasses.
7 During his confession, Smith said he recorded the sex acts with
his cellphone camera, which had since been destroyed.
6
and in the same hard drive location that Smith admitted using to
store numerous other pornographic images and videos depicting
both a child and adults that he knew personally.
Finally, on direct examination during the government’s
case-in-chief, the victim’s father identified the location of
the sexual assaults in the charged videos as a barn on his
Loudon property where the defendant was working at the time. He
also testified that Smith owned Google glasses that he
frequently wore and never shared. He further testified that
Smith had a “close” relationship to the victim and her twin
sister, who he said, “loved” the defendant.8 On the other hand,
he described Smith’s brother, who worked for a short time on the
property, as “standoffish” to the girls.9
As previously noted, the charged recordings were shot from
the point of view of the offender and did not show his face.
They did, however, show his uncircumcised penis. Testifying in
his defense, Smith denied being the male in the video, claiming
that his brother was the culprit. Specifically, Smith testified
on direct examination that “I knew it wasn’t me in the video, so
8 The victim’s father testified that Smith was close to the
entire family, and that he and his wife considered naming Smith
the children’s guardian if they were unable to care for them.
9 Tr., doc. no. 71, at 27.
7
there was really only one other option and that was that it was
my brother in the video.”10 On cross-examination Smith and the
prosecutor had the following exchange: “Q: And you knew it was
[your brother]? A: He’s the only other person [besides myself]
that it could have been.”11 Smith also testified that his
confession was a lie, and that he was just telling law
enforcement agents “what he thought they wanted to hear,”12
claims he had never made at his suppression hearing where he
underwent full direct and cross examination regarding his
“Mirandized” confession.
Neither the photographs in question nor the appearance of
genitalia they depict were introduced or referred to in any way
10 Tr., doc. no. 72, at 32.
11 Id. at 62.
12In addition to claiming that his brother was the man in the
videos, Smith also testified that he had found the hard drive
containing the charged videos in a room that his brother was
occupying for a short time at the farm. He testified that he
was beginning a lengthy erasure process when the drive was
seized after being found attached to his laptop. Smith conveyed
none of this information to authorities between the time of his
January 2016 arrest and his trial testimony. The court points
this out not to suggest that the defendant had any obligation to
communicate with the authorities at any time (which, of course,
he did not), but rather because it is important in evaluating
the defendant’s claim that he was prejudiced by the timing of
the use of the photo.
8
during the prosecution’s case-in-chief or the defendant’s direct
examination. At the very end of the defendant’s cross
examination, the prosecutor showed Smith two pictures, one of
Smith himself and one of his brother, each with his penis
exposed. The former picture, Smith agreed, showed that his own
penis was uncircumcised, as was the perpetrator’s. Smith also
agreed that the picture of his brother (obtained by the
prosecution during the trial, the day before the defendant
testified) showed that his brother’s penis was circumcised,
unlike the perpetrator in the video recordings. It was
undisputed at trial that the second photograph excluded the
defendant’s brother as the perpetrator.
The photograph was marked as an exhibit and admitted by the
court without objection,13 although a mistrial motion eventually
followed. Defense counsel requested a sidebar conference, at
which counsel informed the court that they hadn’t received
either photograph in discovery. The prosecutor argued that he
had no obligation under the Rules of Criminal Procedure to
provide the defense with either photograph prior to the
13At post-trial oral argument on the instant motion, defense
counsel confirmed that they had not objected to the admission of
the photograph at trial. The defense did, however, eventually
request a mistrial.
9
defendant’s testimony. At sidebar, the court indicated that it
did not believe that Rule 16 required automatic disclosure of
the photographs, and inquired whether the defense’s discovery
request letter covered the photographs. Defense counsel could
not -- at that time, at sidebar -- point to any such discovery
request. The court then again admitted the photograph of the
defendant’s brother into evidence. The defense neither objected
nor moved to strike, nor sought any other form of relief at that
time14 (but the defendant moved for a mistrial thereafter during
a break). The prosecutor concluded his cross-examination and,
after a brief re-direct examination, the defense rested.
After the close of evidence, the court excused the jury and
held a brief jury charge conference on the record. Defense
counsel renewed its motion for acquittal under Fed. R. Crim. P.
29, which the court took under advisement. The defense made no
motion for relief relative to the photographs at that time.
The court brought the jury back into the courtroom for
closing arguments and instructions, but because the court then
realized that it wished to revisit the photograph disclosure
issue before closing arguments, it immediately re-excused the
14The defendant’s mistrial motion inaccurately claimed that
counsel objected. Counsel confirmed the lack of objection at
the hearing on this motion.
10
jury and conducted further proceedings. The court developed a
record of the prosecution’s acquisition of the photographs and
its prior knowledge of the brothers’ anatomical differences.
The prosecutor explained that while he had been considering
calling defendant’s brother as a witness for about a week, the
photograph of his uncircumcised penis was taken at the
prosecutor’s direction the previous day by a federal agent.
Defense counsel argued that he had requested such evidence in a
pre-trial discovery request. After a discussion of Fed. R.
Crim. P. 16, the court indicated it was taking no immediate
action with respect to the claimed discovery violation. The
court further explained that the discovery issue “may affect the
way [counsel] want[s] to close,” and that “whether and the
extent to which you want to rely on [the photographs] in your
closing is completely up to [counsel] . . . [because] closings
sometimes impact analyses of prejudice.”15 Defense counsel then
moved for a mistrial, which the court took under advisement.
During closing argument, the prosecutor made only one
indirect reference to the brother’s picture. After summing up
the other evidence pointing to defendant’s guilt and defendant’s
attempt to pin the crime on his brother, the prosecutor said
15 Tr., doc. no. 72 at 97, 101.
11
simply that “the penis of the person in the video is not
[defendant’s brother’s].” The jury deliberated for a short time
before returning guilty verdicts on all counts.
II. LEGAL STANDARD
The court is permitted to grant a mistrial if “improper
evidence came before the jury.” United States v. Sepulveda, 15
F.3d 1161, 1184 (1st Cir. 1993). But “[d]eclaring a mistrial is
a last resort, only to be implemented if the taint is
ineradicable, that is, only if the trial judge believes the
jury’s exposure to the evidence is likely to prove beyond
realistic hope of repair.” United States v. Trinidad-Acosta,
773 F.3d 298, 306 (1st Cir. 2014) (internal quotation marks
omitted).
III. Analysis
Discovery obligations in criminal proceedings are governed
by Fed. R. Crim. P. 16. “Upon a defendant’s request, the
government must permit the defendant to inspect and to copy or
photograph . . . documents, data, photographs . . . if the item
is within the government’s possession, custody, or control and:
(i) the item is material to preparing the defense; (ii) the
government intends to use the item in its case-in-chief at
trial; or (iii) the item belongs to or came from the defendant.”
12
Fed. R. Crim. P. 16(a)(1)(E). If the government is found to
have breached its discovery obligations, the court is empowered
to, inter alia, grant a continuance, prohibit the party from
introducing evidence not disclosed, or enter such other order as
it deems just under the circumstances. Fed. R. Crim. P.
16(d)(2).
The parties now agree that the defense requested the
material at issue in this case. Neither party could point to
any such request during the sidebar conference referenced above,
however, or as part of the defendant’s oral mistrial motion at
trial. Rather, defense counsel pointed only to a discovery
request regarding identification procedures.17 It has since been
determined that defense counsel made a comprehensive request in
the usual way, by a comprehensive letter to the prosecution.
The prosecution’s discovery obligations continue throughout
the pre-trial and trial periods, Fed. R. Crim. P. 16(c), so it
makes no difference that the prosecution only arranged for and
came into possession of the brother’s photograph during the
trial, the day before the defendant’s testimony. The
prosecution makes no argument that its late creation and
17Tr., doc. no. 72, at 100-101; Defendant’s discovery request,
doc. no. 64-1.
13
acquisition of the photograph relieved it of its disclosure
obligation if required by Rule 16.
Smith argues that the government breached its obligation
under Rule 16(a)(1)(E)(i) by failing to produce either the
photograph of Smith’s genitalia taken at the time of his arrest
or the photograph of Smith’s brother with his genitalia exposed,
as both were material to his defense. He also claims that the
failure to produce the photo of his own genitalia violated
subsection (a)(1)(E)(iii) because it “came from him,” in the
sense that it was a photograph of his anatomy, taken in
connection with his arrest, booking and processing.
A. Photograph of defendant’s own anatomy
The photograph of the defendant himself requires little
discussion. The government argues that it fulfilled its
obligation with respect to the photograph of Smith himself when
it provided the defense with a search warrant return that
listed, inter alia, the photograph at issue. The defense
conceded at oral argument that the government, by putting the
defense on notice of the photographs, fulfilled its obligation
to “permit the defendant to inspect” it. Fed. R. Crim. P.
16(a)(1)(E). See United States v. Gleason, 616 F.2d 2, 25 (2d.
Cir. 1979) (finding that Rule 16 disclosure obligation was
14
satisfied by making evidence available to the defendant prior to
trial). Instead, the defense argued that it was misled by the
fact that the government produced all photographs taken of Smith
except the one showing his genitalia. The defense, however,
offered no authority to suggest that this circumstance negated
the government’s compliance with Rule 16. The simple fact is
that the prosecution provided specific notice of the
photograph’s existence and its availability for inspection by
defense counsel on request. This was sufficient to satisfy its
obligation under Rule 16.
B. Photograph of defendant’s brother’s anatomy
The picture of Smith’s brother presents a more complicated
question: whether the photograph was “material to preparing the
defense,” within the meaning of Rule 16(a)(1)(E)(i). The
appellate court authority on this question is arguably split.
Not surprisingly, the parties take opposing positions. The
government argues that it had no obligation under Rule 16 to
produce the photograph prior to its introduction at trial
because the evidence was merely non-exculpatory impeachment
evidence and thus not “material to preparing the defense” under
Rule 16. The defense argues that the photograph was “material
to preparing the defense” as Rule 16 defines that term, because
15
he was prejudiced both by a deprivation of complete information
on which to base defense decisions, and by the impact of its
dramatic introduction.
1. The prosecution’s view of “materiality” under Rule
16(a)(1)(E)(i)
The government initially argued18 that information in its
possession not used in its case-in-chief, and which merely
impeaches testimony or rebuts a position taken in the defense
case (rather than adding to the evidence in the defendant’s
favor) is not discoverable under Rule 16(a)(1)(E)(i). This
argument finds support in several Circuit Courts of Appeals.
For example, in United States v. Caro, 597 F.3d 608, 621 (4th
Cir. 2010), the Fourth Circuit Court of Appeals held that
“material[ity] to preparing the defense” under Rule
16(a)(1)(E)(i) requires “‘some indication that the pretrial
disclosure of the disputed evidence would have enabled the
defendant significantly to alter the quantum of proof in his
favor.’” (quoting United States v. Ross,
511 F.2d 757, 763 (5th
Cir. 1975)); see also, United States v. Lykins, 428 F. App'x
18The court permitted briefing and oral argument on the alleged
Rule 16 violation and then permitted further briefing on the
prejudice issue because the parties failed to fully join that
issue.
16
621, 624 (6th Cir. 2011) (holding that “there must be an
indication that pre-trial disclosure would have enabled the
defendant to ‘alter the quantum of proof in his favor,’ not
merely that a defendant would have been dissuaded from
proffering easily impeachable evidence”) (quoting United States
v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993)); United States
v. Henderson,
564 F. App’x 352, 365 (10th Cir. 2014) (same).
In a similar vein, the court in Stevens observed that
evidence is “material” under Rule 16(a)(1)(E)(i) if “it could be
used to counter the government’s case or to bolster a defense,”
not “merely because the government may be able to use it to
rebut a defense position.” 985 F.2d 1175, 1180 (2d Cir. 1993);
see also Gleason,
616 F.2d at 25 (“The government is not
obligated . . . to furnish [the defense] with otherwise
irrelevant material that might conflict with his testimony.”);
United States v. Delia,
944 F.2d 1010, 1018 (2d Cir. 1991) (“We
know of no legal principle that requires the prosecution to
disclose its proposed rebuttal evidence to the defendant, to
help him decide whether to pursue a particular contention.”).
This view, taken by a greater number of appellate courts
that have examined the issue, and consistent with much of the
“conventional wisdom” of trial practice requires little more
expansion or elaboration. It is based on the idea that the
17
prosecution’s discovery obligations cover material that is
exculpatory, and that could be used to impeach prosecution
witnesses, but not inculpatory material that is not used in the
prosecution’s case in chief. But of course, the court’s
obligation is to enforce the Federal Rules of Criminal
Procedure, as opposed to conventional trial wisdom and
traditional practice,19 and other courts of appeals have taken a
different view of Rule 16(a)(1)(E) materiality -- one that
aligns with the defense’s position here.
2. The defense’s view of “materiality” under Rule
16(a)(1)(E)(i)
Contrary to the government’s original post-trial position,20
its view of Rule 16’s “materiality” element is not unanimous.
At least two Courts of Appeals have concluded that Rule 16’s
disclosure obligations include inculpatory evidence that could
have altered such basic trial strategy as a defendant’s decision
to testify. See United States v. Muniz Jaquez, 718 F.3d 1180,
For their part, defense counsel at sidebar asserted that they
19
should have received the photograph as part of “open-file
discovery,” which is the traditional practice in many New
Hampshire state courts. Again, however, the Federal Rules of
Criminal Procedures apply here, as opposed to any unwritten
rules or understandings, and they require something less than
“open-file discovery.”
20
Gov’t. Obj., doc. no. 65, at 5.
18
1183 (9th Cir. 2013) (“Even inculpatory evidence may be
relevant. A defendant who knows that the government has
evidence that renders his planned defense useless can alter his
trial strategy.”); United States v. Doe, 705 F.3d 1134, 1151
(9th Cir. 2013) (“Even if the documents caused [the defendant]
to completely abandon [an] entrapment defense and take an
entirely different path, the documents would still have been
‘material to preparing the defense’ under Rule
16(a)(1)(E)(i).”).
As the Court of Appeals for the District of Columbia
Circuit explained in rejecting an argument that “materiality”
excludes impeachment or rebuttal evidence:
The plain language of Rule 16 . . . does not support
the government’s interpretation. This rule covers
evidence which is material “to the preparation of the
defendant’s defense.” (emphasis added). The
government ignores the words we have just italicized,
reading the rule to refer to evidence which is
“favorable or helpful to a defendant's defense.” See
Govt. Br. at 35 n.15. The rule as written does not
compel the conclusion that inculpatory evidence is
immune from disclosure. Inculpatory evidence, after
all, is just as likely to assist in “the preparation
of the defendant’s defense” as exculpatory evidence.
In other words, it is just as important to the
preparation of a defense to know its potential
pitfalls as it is to know its strengths.
United States v. Marshall, 132 F.3d 63, 67 (D.C. Cir. 1988)
(footnote omitted).
19
The D.C. Circuit’s observation about the plain language of
Rule 16(a)(1)(E)21 is therefore not insignificant. Principles of
statutory construction apply with equal force to the Federal
Rules. See Yousuf v. Samantar, 451 F.3d 248, 255 (D.C. Cir.
2006) (applying “customary tools of statutory interpretation” to
resolve issue related to Fed. R. Civ. P. 45); see also Delgado
v. Pawtucket Police Dept.,
668 F.3d 42, 49 (1st Cir. 2012) (“In
interpreting a formal rule of procedure, our starting point is
the language of the rule itself.”). Here, Rule 16(a)(1)(E)
requires disclosure if (i) “the item is material to preparing
the defense” or (ii) “the government intends to use the item in
its case-in-chief at trial.” Both the use of the disjunctive
“or,” see Loughrin v. United States,
134 S. Ct. 2384, 2390
(2014) (“the words it connects are to be given separate
meanings”) and the rule against surplusage, see O’Connor v.
Oakhurst Dairy,
851 F.3d 69, 73 (1st Cir. 2017) (courts “must
give independent meaning to each word in a statute and treat
none as unnecessary”) strongly suggest a meaningful distinction
between case-in-chief evidence (and its impeachment) on one
hand, and evidence “material to preparing the defense” on the
At the time Marshall was decided, the provisions in question
21
were contained within Rule 16(a)(1)(C).
20
other. This lends credence to the idea that the latter at least
includes inculpatory evidence.
The Marshall Court recognized that the D.C. Circuit had
previously used the “alter the quantum of proof in his favor”
language that was used by those courts that side with the
government’s view here. 132 F.3d at 68 (citing United States v.
Graham,
83 F.3d 1466, 1474 (D.C. Cir. 1996)). But, the Court
concluded, evidence that “alters the quantum of proof” is not
limited to exculpatory evidence. Instead,
a defendant in possession of such evidence may “alter
the quantum of proof in his favor” in several ways:
by preparing a strategy to confront the damaging
evidence at trial; by conducting an investigation to
attempt to discredit that evidence; or by not
presenting a defense which is undercut by such
evidence.
Id. (emphasis added).
While the First Circuit Court Appeals has not spoken
directly to this issue, it has made the following observation
about Rule 16, albeit in the context of a different provision of
the rule regarding defendant’s oral statement:
Rule 16’s mandatory discovery provisions were designed
to contribute to the fair and efficient administration
of justice by providing the defendant with sufficient
information upon which to base an informed plea and
litigation strategy; by facilitating the raising of
objections to admissibility prior to trial; by
minimizing the undesirable effect of surprise at
trial; and by contributing to the accuracy of the
fact-finding process.
21
United States v. Lanoue, 71 F.3d 966, 976 (1st Cir. 1995)
(abrogated on other grounds by United States v. Watts,
519 U.S.
148 (1997)). In addition, at least one district court in this
circuit has held that “Rule 16 is not limited to evidence that
is helpful to a defendant’s case because ‘[i]t is just as
important to the preparation of a defense to know its potential
pitfalls as to know its strengths.’” United States v. Facteau,
No. 15 CR 10076 ADB,
2015 WL 6509120, at *1 (D. Mass. Oct. 28,
2015), objections overruled, No. 1:15 CR 10076 ADB,
2016 WL
4445741 (D. Mass. Aug. 22, 2016) (quoting United States v.
Safavian,
233 F.R.D. 12, 15 (D.D.C. 2005)).
In its supplemental brief on this issue, the government
acknowledges the Marshall line of cases, but tries to blunt its
force in two ways. First, the government argues that those
cases stand for the proposition that potentially inculpatory
evidence is material under Rule 16 only “if it relates to the
charges at issue.”22 Here, the government argues, the brother’s
picture did not relate to the charges because while it may have
excluded one possible perpetrator, it did not, in isolation,
“make it more likely that the defendant was the perpetrator,
22
Gov’t. Supp. Memo, doc. no. 68, at 7.
22
(i.e., it was not inculpatory).”23 The court is unconvinced. As
the government acknowledges, Marshall held that the evidence in
question there was discoverable because it was “inculpatory when
considered in conjunction with other evidence.” 132 F.3d at 68.
So it is here. The picture of Smith’s brother was inculpatory
when viewed in connection with Smith’s accusation of his
brother, followed by his testimony that he “knew it was [his
brother]” because “it could not have been anyone else” in the
charged videos. Indeed, the prosecution itself has
affirmatively stated: “It was the picture of the defendant’s
brother which excluded the brother as the perpetrator.”24 So
even if the Marshall rationale requires that the evidence in
question relates to the charge at issue, the brother’s
photograph fits the bill “when considered with other evidence,”
such as the defendant’s testimony as developed on cross-
examination by the prosecutor.
Second, the government argues that it was engaging in
“impeachment by contradiction,” and needed not disclose its
evidentiary means of doing so. Indeed, the government argues
23
Id. at 8.
Gov’t Obj., doc. no. 65, at 4; see also id. at 1 (noting that
24
the brother’s picture “excluded him as the person in the charged
videos.”).
23
that it “used the photograph of the brother for one reason only
-- to impeach the defendant’s testimony . . . In other words,
the photograph’s sole value in the case was to impeach the
defendant.”25 This argument carries little force, as the
brother’s picture was not -- or at least was not only --
impeachment evidence. As the government acknowledges,
impeachment undermines a witness’ credibility.26 The brother’s
photograph was not, however, introduced only to attack Smith’s
credibility. The picture was substantive evidence tending to
eliminate the person the defendant identified as the only
possible perpetrator besides himself. Again, the defendant had
testified that “it could not have been anyone else” but his
brother in the charged videos, and in the prosecution’s own
words, the photograph “exclud[ed] him as the person in the
charged videos.”27 That is not impeachment. That is evidence
negating a defense, and, to quote Fed. R. Evid. 401’s familiar
definition of relevant evidence, it made a fact “of consequence”
“less probable than it would have been without the evidence.”
Gov’t Supp. Memo., doc no. 68, at 8; see also, Gov’t. Memo.,
25
doc. no. 65, at 4.
26
Gov’t. Supp. Memo., doc. no. 68, at 8.
Gov’t. Obj., doc no. 65, at 4; see also id. at 1 (noting that
27
the brother’s picture “excluded him as the person in the charged
videos.”).
24
Fed. R. Evid. 401(a),(b). As the prosecution argued in closing,
“the penis of the person in the video is not [defendant’s
brother].”28
Further characterizing the photograph as impeachment
evidence only, the government argues that “its case did not even
mention the brother because he was irrelevant to the
government’s theory. The brother was only implicated in the
trial because the defendant exercised his right to testify, at
which time he accused his brother of producing the charged
images.”29 Neither point is entirely accurate. The prosecution
did, in fact, make specific reference to the defendant’s brother
during its case-in-chief. It did so on re-direct examination of
the victim’s father, countering the idea (only vaguely alluded
to at that point during the defense’s cross-examination of the
victim’s father) of the brother as a possible suspect. And that
questioning on re-direct examination by the government was the
first time the defendant’s brother was invoked in the context of
Tr., doc. no. 72, at 115. The government’s argument that
28
“[e]ven after impeachment, the universe of potential
perpetrators remained the same (males with uncircumcised
penises)” rings a bit hollow. See Gov’t. Supp. Mem., doc. no.
68, at 8. The defendant’s testimony had reduced that “universe”
to one man: the defendant’s brother, because “it could not have
been anyone else.”
29
Gov’t. Supp. Memo., doc. no. 68, at 7-8.
25
contact with and access to the child victim.30 This occurred
well in advance of the defense case and defendant’s testimony.
Thus, since the photograph in question was not merely
impeachment material, cases standing for the proposition that
the government need not disclose evidence used solely for
impeachment are inapposite. The cases cited by the government
bear this out. For instance, the prosecution in United States
v. Gilmore, 553 F.3d 266, 271 (3d Cir. 2009) was permitted to
cross-examine the defendant about his prior drug convictions
after he testified that he had never sold drugs.
Id. at 270.
However, the court allowed only inquiry about the convictions,
denying the affirmative introduction of proof because the
defendant did not deny the convictions on cross-examination.
Id. Next, the court provided a limiting instruction to the jury
that the convictions were only relevant for credibility
purposes.
Id. Finally, and as especially noteworthy here,
before cross-examining the defendant, the prosecution in Gilmore
undertook a time-honored and highly advisable measure that would
have been welcomed by the court in this case, without any
strategic or tactical cost to the government: it “advised the
District Court that it intended” to pursue the cross-examination
30
Tr., doc. no. 71, at 27.
26
in question. Id. None of those factors are present in this
case.
Nor is the government’s position strengthened by reliance
on United States v. Kohli, 847 F.3d 483, 493 (7th Cir. 2017).
In that case, the defendant, a doctor charged with illegal drug
distribution, testified that no patient had ever died in his
care. On cross-examination, the government confronted the
doctor with (undisclosed) coroner records showing the opposite.
The court permitted the cross-examination over defendant’s Rule
16-based objection. The records were not introduced into
evidence. On appeal, the Seventh Circuit Court of Appeals
rejected the defendant’s argument under Rule 16 for several
reasons that are both germane to the instant dispute and
unhelpful to the government’s position. The Court first noted
that the patient deaths became material only after the defendant
voluntarily testified on direct examination that no one had died
in his care,
id. at 493, but only for the purpose of impeaching
the defendant on a collateral matter.
Id. The court noted that
“[i]t is difficult to see how an admittedly ‘collateral matter’
that is otherwise irrelevant suddenly becomes ‘material’ to the
defense simply because the defendant chooses to testify about it
on direct examination.”
Id. Here, Smith’s testimony about his
brother was not such a collateral matter. See United States v.
27
Beauchamp, 986 F.2d 1, 4 (1st Cir. 1993).31 The brother’s
photograph did not “merely contradict” the defendant’s
testimony. Although the prosecution may have intended to
introduce the photograph solely for impeachment (although no
limiting proffer was made and no limiting instruction was
requested),32 its effect, as the government has argued, was to
exclude the defendant’s brother as a suspect.33 Again, the
dubiousness of the defendant’s story did not render its rebuttal
collateral. Far-fetched as it was, it involved the crime in
question.
The Kohli court noted other factors not present here that
tilted the balance in the government’s favor in that case: the
defendant’s testimony was unexpected and the government produced
the coroner’s records before questioning could continue and
defense counsel had an opportunity to review the records
overnight. Here, the testimony was not entirely unexpected, as
“A matter is collateral if ‘the matter itself is not relevant
31
in the litigation to establish a fact of consequence, i.e., not
relevant for a purpose other than mere contradiction of the incourt testimony of the witness.’” Beauchamp, 986 F.2d 4
(quoting 1 McCormick on Evidence 169 (4th ed.1992)) (internal
quotation marks omitted).
By contrast, the court specifically instructed the jury as to
32
the limited purpose of certain other photographic evidence
presented at trial.
33
Gov’t. Obj., doc no. 65, at 4; see also id. at 1.
28
the government was aware before trial of the possibility that
Smith would try to implicate his brother, even mentioning the
theory at a pretrial conference.34 Indeed, the government had
considered calling the brother as a rebuttal witness, going so
far as to produce Giglio information pertaining to the brother.35
Further, as stated supra, the parties did engage briefly on the
issue of defendant’s brother during the testimony of the
victim’s father, presented during the prosecution’s case-in-
chief two days prior to the defendant’s testimony.
Additionally, the photograph was admitted into evidence
without limitation,36 and without any advanced notice to the
court, unlike the government’s approach in Gilmore.
Accordingly, the court does not find either of the government’s
supplemental arguments -- offered to establish that the
alternate line of authority applying Rule 16(a)(1)(E)(i)’s
“materiality” construct to inculpatory evidence does not apply
here -– dispositive of the issue.
34
Gov’t. Supp. Memo., doc. no. 68, at 11, n.1.
35
See Def. motion to compel Brady disclosure, doc. no. 57; Gov’t.
Supp. Memo., doc. no. 68, at 11, n.1.
36
In fairness to the government, defense counsel requested no
limiting instruction restricting the evidence to impeachment
purposes, as it had done with other evidence. See Fed. R. Evid.
105.
29
3. Resolution; prejudice
Thus, there are two diverging lines of authority on the
general question of “materiality” under Rule 16(a)(1)(E)(i), and
both have strengths and weaknesses. As Marshall observes, the
plain language of Rule 16 -- “material to preparing the defense”
-- “does not compel the conclusion that inculpatory evidence is
immune from disclosure” because it “is just as likely to assist
in ‘the preparation of the defendant’s defense’ as exculpatory
evidence.” 132 F.3d at 67. As particularly relevant here, such
“assistance” extends to the decision to present “a defense which
is undercut” by the evidence.
Id. at 68 (quoted in 2 Charles
Alan Wright and Peter J. Henning, Federal Practice and
Procedure, § 254, n.17 (4th ed. 2009)).
On the other hand, as the Court of Appeals acknowledged in
Marshall, such a rule runs the risk of requiring prosecutors to
predict what defenses, strategy and tactics a defendant or
defense counsel might employ at trial. “The prosecutor need not
guess that evidence may become material as a consequence of
defendant’s not-yet revealed strategic decisions.” 132 F.3d at
69 n.2.37 Such a requirement may be prohibitively burdensome, if
This concern is attenuated here, because, as previously noted,
37
the government was aware of the possibility that Smith might try
to shift the criminal blame to his brother before he testified.
In addition to the discussions of the possibility that Smith
30
not impossible, to satisfy. Moreover, an interpretation of Rule
16 that essentially requires the government to assist the
defendant in deciding whether to commit perjury or offer
otherwise false testimony is decidedly unattractive. Again, as
the D.C. Circuit Court of Appeals stated in Marshall, “Nor must
the prosecutor assume that the defense will make false
assertions about the facts, hence making relevant contrary
evidence that would not have been relevant had the defense
adhered to the truth.” Id. at 69 n.2.
In the end, while this court views the prosecution’s
interpretation of “materiality” under Rule 16(a)(1)(E)(i) as the
better rule under most normally-contemplated circumstances, it
might shift blame to his brother at pretrial and chambers
conferences, the spectre of Smith’s blame-shifting was evidenced
in at least three other ways. First, by the prosecutor’s re-direct examination of the victim’s father, which would not have
included questioning about Smith’s brother (and their
relationships with the victim) absent some inkling of the
defense potentially to come. See supra, pp. 25-26. Second,
well before the defendant testified, the prosecution placed the
defendant’s brother under subpoena as a rebuttal witness.
Third, before Smith testified, the prosecution made Giglio
disclosures about the defendant’s brother, prompting a defense
motion seeking certain information about him. See Doc. no. 57.
The government argues that “[a]t the May 22 hearing, . . . the
suggestion was made that the government knew the defendant would
testify and blame his brother.” Doc. no. 68 at 11, n.1
(emphasis added). The court made no such suggestion, instead
noting only what the government had confirmed before, during and
after the trial: that it was aware the defendant might testify,
and that he might accuse his brother of the video-recorded
assaults.
31
is not to resolve the issue in this case. Even if the picture
of Smith’s brother’s exposed penis was “material to preparing
the defense,” and the government violated Rule 16 when it failed
to disclose the photograph prior to confronting Smith with it,
the failure caused Smith insufficient prejudice (if any) to
warrant the “last resort” remedy of mistrial.38
The First Circuit Court of Appeals has regularly cautioned
that prejudice is required before a trial court can order such
extraordinary relief. For example, in United States v. Hemmer,
our Court of Appeals affirmed the district court’s denial of a
motion for mistrial by stating the general proposition that
“[i]n order to succeed on a claimed violation of Rule 16 of the
Federal Rules of Criminal Procedure a defendant must demonstrate
that he has been prejudiced.” 729 F.2d 10, 14 (1st Cir. 1984).
The Court put a finer gloss on the prejudice requirement in
United States v. Alvarez, where it reversed a defendant’s
conviction because the government’s Rule 16 violation involved
evidence “that was vital to the conviction.”
987 F.2d 77, 86
(1st Cir. 1993). See also, United States v. Correa-Alicea,
585
F.3d 484, 494 (1st Cir. 2009) (affirming denial of mistrial
Aside from the lack of any objection to admission of the
38
picture of Smith’s brother, the defense did not request any
alternative measures, such as a continuance to confer with Smith
or a limiting instruction regarding the photograph.
32
where defendant did not show that he was prejudiced by the
government’s alleged failure to produce a recording prior to
trial); United States v. Richman, 600 F.2d 286, 291 (1st Cir.
1979) (holding that government’s failure to comply with Rule 16
was “regrettable . . . [but] not so prejudicial as to warrant
dismissal.”)39 No such prejudice is discernable here.
As noted, the evidence against Smith was overwhelming, and
save the defendant’s implausible (and conclusively discredited)
last-ditch effort, the prosecution’s entire case went
unchallenged and unrebutted. The photograph of defendant’s
brother was not “vital to the conviction.” Alvarez, 987 F.2d at
86.
First, the defendant’s crimes were video-recorded; his
criminal actions were documented, preserved, and stored on his
own computer hard drive, so there was no question but that the
crimes occurred. What is more, the creation, storage and
preservation of the offending video recordings eliminated any
reasonable doubt but that he was the individual who had
recorded, preserved and stored the evidence of his own crimes.
In United States v. Rossetti, 768 F.2d 12, 15 (1st Cir. 1985),
39
the Court of Appeals indicated that the defendant’s burden to
demonstrate prejudice might decrease if the government acted in
bad faith in withholding evidence. The court finds no bad faith
motivation here. The government has provided authority
supporting its position.
33
The recordings themselves -- which contained both visual and
audible evidence -- were the best and most inculpatory evidence
of his guilt.
And while the charged video recordings of the assaults did
not show the abuser’s face, Smith’s lengthy courtroom testimony
-- and his recorded confession -- gave the jury ample
opportunity to compare his highly similar voice and vocal
mannerisms to those of the male perpetrator in the offending
video recordings. In addition, the recordings showed the
assailant’s pants, distinctively stained shoes and a carpenter’s
level, which were identical to those which belonged to the
defendant and which were found in his bedroom.
Moreover, the external hard drive on which the offending
recordings were stored was tethered to his laptop and found in
his bedroom. In addition to the hard drive itself, the file
storage method used to store the charged recordings was
identical to that used to store other pornography that Smith
admitted owning, including hidden-camera nude images that he
created of another juvenile female who he previously lived with.
This one-sided factual scenario almost conclusively established
his control over the hard drive containing he charged video
recordings.
34
Next, the prosecution presented metadata, as well as the
logical inference from the point of view of the recordings
confirming that those recordings were made with Google glasses,
a product which Smith admitted to owning, which the victim’s
father testified he wore frequently, which was found on
defendant’s bedside table, and which would create “point of
view” images completely consistent with the six offending video-
recordings.
The victim’s father (and the defendant himself) also
identified the location of the assaults depicted in the
recordings -- his barn in New Hampshire -- as one to which Smith
had regular daily access, and the victim of the assault -- his
daughter -- as someone who was close to and trusted Smith.
Finally, Smith himself provided the most compelling
evidence against himself during his recorded confession. He
first told Inspector Kibodeaux that he collected child
pornography because he was a “danger junky” who liked “forbidden
things.” He then voluntarily confessed to recording himself
raping the three-year old victim, with his recorded confession
also serving as a confirmatory exemplar to match his voice with
that of the assailant’s.
Next to the strength and volume of the evidence amassed
during the investigation and presented at trial, the defendant’s
35
last-ditch-effort to accuse his brother of his crime was
inconsequential. The resulting prejudice, if any, was
infinitesimal.
Smith alleges that he was prejudiced in several different
ways by the introduction of his brother’s photograph. Before
addressing Smith’s arguments regarding prejudice, the court here
pause to note the mental posture it must assume to do so. In
order to assess the defendant’s prejudice arguments, the court
must accept, at face value, a highly counterintuitive
assumption: that the prosecution’s alleged discovery violation
impermissibly permitted the defendant to testify false in a way
that -- unfortunately for him -- turned out to be demonstrably
false. The court nonetheless addresses his arguments, but finds
none availing.
The court first notes that defense counsel’s failure to
object to the introduction of the photograph or to seek a
continuance -- or even a break in the trial or any other form of
relief -- undercuts his claim of prejudice. See Hemmer, 729
F.2d at 13 (“Significantly, there was no request for a
continuance either to digest the reports or to prepare a new
defense.”); see also United States v. Gladney, 563 F.2d 491, 494
(1st Cir. 1977) (rejecting claim of prejudice where defendant
refused court’s offer of a continuance). This bears directly on
36
Smith’s first argument -- that he did not have an opportunity to
investigate the photograph, or the circumstances surrounding its
creation. But defense counsel made no request to do so, even
when it had the opportunity at trial. It was the court, on its
own initiative, that developed a record of the prosecution’s
creation and acquisition of the photograph, but only after the
defendant left the witness stand, the defense rested, and the
court held a brief on-record jury charge conference which didn’t
involve any discussion of the photograph. Only at that point,
under sua sponte questioning by the court, did the prosecution
explain how, why, and when, the photograph had been taken.
Relatedly, Smith argues that he was deprived of the
opportunity to investigate the (highly remote) that his brother
was circumcised recently, after the charged video recordings
were made. To some extent this is true. Again, however,
counsel made no request for such an opportunity -- a request the
court would have surely considered. But even despite these
obstacles, the defense was not denied the opportunity to pursue
the subject. During re-direct examination, Smith testified that
when he and his brother “were kids [he] believed [his brother]
to be uncircumcised, you know, that was the only time that I
37
ever really saw his penis.”40 So defense counsel had ample
opportunity to, and actually did, elicit testimony from the
defendant that he had no knowledge of whether his brother’s
penis was in a circumcised state at the time of the video-
recorded assaults. But in closing argument, rather than
following up Smith’s testimony by arguing that Smith’s brother
might have been circumcised after the assault, and thus sometime
after childhood (i.e., “the only time [Smith] ever really saw
his penis,”) counsel understandably conceded that it was “pretty
likely now it was not [the brother].”41
It makes no sense for Smith to argue that he was prejudiced
by the timing of the prosecution’s use of the photograph. That
timing -- as well as the fact that the photograph was presented
at all -- was the result of the defendant’s own conduct, and was
under his control. The defendant testified at trial that he
“knew” of his brother’s guilt as soon as the authorities
confronted him with the evidence in Louisiana. Taking that
claim at face value, nothing prevented the defendant from
disclosing his purported knowledge of his brother’s guilt at any
time during or after his arrest, during the entire pretrial
40
Tr., doc. no. 72 at 95.
41
Id. at 117.
38
period, through the suppression litigation, right up to the time
of trial. Of course, the defendant was under no obligation to
provide that information,42 but had he done so at any earlier
time, the prosecution and investigators could have demonstrated
their ability to eliminate his brother as a possible assailant
much sooner. This would have given him plenty of time to
consider declining to testify, testifying differently, or
pleading guilty, as opposed to undertaking his baseless
testimonial accusation at the last possible moment. But it was
his choice to dramatically delay his disclosure of his purported
“knowledge” of his brother’s guilt, and to do so on the witness
stand -- all at the very end of the trial -- that triggered the
prosecution’s last-minute investigatory measure (photographing
his brother) and evidentiary debunking of his claim (confronting
him with the photo at trial). So the defendant cannot be heard
to claim prejudice based on the timing of an eleventh-hour trial
event when it was the very lateness of his false disclosure that
precipitated the event.
42The court’s point is not to suggest that the defendant had
some obligation to communicate with the investigating or
prosecuting authorities. Of course, the Fifth Amendment
provides otherwise. The point here is only that the timing of
the photograph’s creation and use was triggered by his own
delayed “disclosure” regarding his brother. Thus, he can claim
no prejudice resulting from that delay.
39
Smith next argues that the photograph of his brother
created the impression that he was lying when he testified that
he gave a false confession. In terms of prejudice, however,
such a credibility-based argument is a non-starter where, as
here, Smith’s entire defense was premised on the very idea that
his own statement to the police -- his detailed confession --
was nothing more than an elaborate lie. Smith’s defense
required the jury to disregard his words to the police as a
multi-faceted fabrication; the thrust of his defense was to say
to the jury, “You can’t believe my earlier statement. I was
lying.” Not only was Smith’s credibility already damaged by
conceding that he lied to police (a lie which stood
“uncorrected” until the closing moments of trial), the evidence
arrayed against him even before he took the stand made his last-
ditch accusation highly implausible. As such, the court rejects
Smith’s claim of prejudice based on damage to his credibility.
In his third prejudice-related argument, Smith claims that
the government’s withholding of his brother’s photograph
prevented defense counsel from litigating -- before trial --
evidentiary objections to the photograph, such as foundation,
authentication and relevance. Preliminarily, any prejudice
based on these issues presumably requires some showing
undermining the photo’s authenticity, foundational sufficiency,
40
or relevance. The defendant makes no attempt at any such
showing, and the court cannot conceive of any evidentiary flaw
or infirmity.
More importantly, this undeveloped argument overlooks a
crucial fact: the photograph did not exist before trial, so
there was never an opportunity for pretrial litigation.43 The
defendant certainly cannot have been prejudiced by a deprivation
of a pretrial opportunity to challenge an item of evidence if it
did not exist before the trial. And it was the defendant’s
conduct -- an easily refutable accusation of an innocent third
party -- that triggered the introduction of the evidence to
begin with. Finally, as previously noted, the defense
interposed no objection at trial to its admission into evidence.
Nothing about the timing of the photograph’s introduction
prevented defense counsel from raising timely foundation,
authenticity or relevance objections (which appear to lack merit
anyway). The court is able to address evidentiary issues at
trial, and would have done so here if an objection had been
lodged.
Smith next argues that the government’s putative discovery
violation prevented him from making an informed decision on
43
Id. at 100.
41
whether to testify at trial. There are at least two factors
which undermine this claim of prejudice. First, given that
Smith provided a recorded, “Mirandized” confession, he had
little practical choice but to testify in order to explain the
confession. Without his testimony, the only evidence from his
lips heard by the jury would have been his coaxing the child
victim through the assaults on the offending video-recordings,
and his straightforward confession to the crime, confirming that
those video-recordings captured his image and voice while
assaulting the child victim. While the defendant certainly had
the right to decline to testify, his detailed confession and
video-recorded explanation of his affinity for child pornography
made testifying a near-requirement of a trial strategy that had
any hope of success. So it wasn’t so much that his decision to
testify (already a foregone conclusion) was seriously impacted,
it was his decision to falsely accuse his brother that he may
have abandoned as futile had the photo been disclosed before he
took the witness stand. And second, as the Marshall Court
observed in a similar circumstance, “to the extent [the
defendant] suffered any prejudice because the government was
able to disprove his false statement, the defendant -- not the
government -- is to blame.” 132 F.3d at 70.
42
Smith’s final claim of prejudice fares no better. He
argues that he was deprived of the opportunity to make an
informed decision whether to go to trial or plead guilty.44 Here
again, the defendant’s argument ignores the fact that earlier
disclosure could not have impacted his decision about going to
trial; the photograph did not exist at the time that decision
was made. Moreover, as previously noted, Smith could have
alerted authorities to his purported knowledge of his brother’s
guilt at any time during the fourteen months after his arrest,
but chose not to do so. It stands logic on its head to assign
unfair prejudice to a situation that was of the defendant’s own
making.
IV. CONCLUSION
When considered against the mountainous backdrop of
inculpatory evidence, the government’s failure to produce the
picture of Smith’s brother -- regardless of whether it was
obligated to do so -- was of little consequence to the outcome
of the case. Ultimately, “because of not being forewarned that
it was unsafe to lie, [Smith] was hoisted on his own petard.
44 The court assumes that this argument is premised on the idea
of a pre-trial guilty plea. Of course nothing prevented the
defendant from entering a guilty plea at any time between the
introduction of the photograph and the jury’s verdict.
43
But the question of guilt or innocence was not affected."
Gladney, 563 F.2d at 495.
The defendant’s motion for mistrial is DENIED.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated: October 18, 2017
cc: Jeffrey S. Levin, Esq.
Bjorn R. Lange, Esq.
Richard Guerriero, Esq.
Seth R. Aframe, AUSA
Georgiana L. Konesky, AUSA
44
