United States District Court, D. South Dakota, Western Division
ORDER GRANTING DEFENDANT'S MOTION FOR PRETRIAL
IDENTIFICATION OF PHOTOGRAPHIC AND VIDEO EXHIBITS (DOC.
WOLLMANN United States Magistrate Judge.
is Defendant Mason Hamm's Motion for Pretrial
Identification of Photographic and Video Exhibits (Doc. 35).
United States District Court Judge Jeffrey L. Viken, Chief
Judge, referred Mr. Hamm's Motion to this magistrate
judge for determination. (Doc. 42).
the Court's current scheduling order, Mr. Hamm's
trial is set for January 30, 2018, and his pretrial
conference is set for January 22, 2018. (Doc. 24). Mr. Hamm
requests that the government identify which discovery items
it intends to use in its case-in-chief by January 12, 2018.
In support of his motion, Mr. Hamm argues that the
photographic and video records in his case are enormous, and
pretrial identification of the government's intended
exhibits will promote a fair and efficient trial. Without
such identification, Mr. Hamm argues he will be unable to
address the admissibility of certain items before the
government responds that Federal Rule of Criminal Procedure
16(a)(1)(E) does not require the government to specifically
identify which items it intends to use in its case-in-chief.
The government further responds that it will provide the
Court with a copy of its exhibits by noon on January 19,
2018, pursuant to the current scheduling order. The
government additionally states that it provided Mr. Hamm with
discovery in February 2017, allowing him nearly a year to
review the documents; moreover, by providing discovery
obtained through search warrants, the government has not
intended to overwhelm Mr. Hamm with irrelevant materials.
courts have broad discretion to resolve motions to compel
discovery in criminal cases. United States v.
Hintzman, 806 F.2d 840, 846 (8th Cir. 1986). A district
court's decision regarding a motion to compel discovery
is proper if, considering the circumstances, the decision is
not “a gross abuse of discretion resulting in
fundamental unfairness at trial.” Id.
(internal quotation omitted).
Rule of Criminal Procedure 16 governs pre-trial disclosure
obligations, and requires the government to provide discovery
of three categories of items within its custody or control:
items “material to preparing the defense”;
documents that “the government intends to use . . . in
its case-in-chief at trial”; and items “obtained
from or belong[ing] to the defendant.” Fed. R. Crim. P.
authority exists within the Eighth Circuit on Mr. Hamm's
specific request-namely, that Rule 16(a)(1)(E)(ii) requires
the government to disclose photos and videos it intends to
use in its case-in-chief. Eighth Circuit cases addressing
Rule 16 have found that defendants have no right to
disclosures prior to the timeframes set out in the Rule.
See generally United States v. Graves, 856 F.3d 567,
570 (finding no Rule 16(a)(1)(E) violation where government
provided defendant with open discovery file;
“[Defendant] provides no instances where lack of access
to specific discovery prejudiced his trial defense.”);
United States v. Miller, 698 F.3d 699, 704 (8th Cir.
2012) (denying defendant's motion for pretrial witness
disclosure under Rule 16(a)(1)(E)).
district courts have held that “Rule 16 does not
entitle a defendant to pretrial disclosure of the
government's exhibit list.” United States v.
Prince, 618 F.3d 551, 562 (6th Cir. 2010); see
United States v. Nachamie, 91 F.Supp.2d 565, 568-69
(S.D.N.Y. 2000) (denying defendants' request for pretrial
exhibit list); but see United States v. Giffen, 379
F.Supp.2d 337, 344 (S.D.N.Y. 2004) (declining to follow
Nachamie and, in the interests of fairness and based
on Rule 16's policy concerns, directing the government to
provide a pretrial exhibit list 30 days before trial).
district courts have ordered the prosecution to identify the
documents it intends to offer in its case in chief. See
United States v. Upton, 856 F.Supp. 727, 748 (E.D.N.Y.
1994; United States v. Turkish, 458 F.Supp. 874, 882
(S.D.N.Y. 1994). This authority exists under the
“court's inherent authority to regulate the nature
and timing of discovery.” Giffen, 379
F.Supp.2d at 344. In Giffen, the court ordered the
government to provide a preliminary trial exhibit list and
copies of those exhibits no later than thirty days prior to
the start of trial, “[t]o ensure an efficient
presentation at trial.” Id.
court possess the authority to regulate discovery under Rule
16(d)(1). “At any time the court may, for good cause. .
. grant other appropriate relief.” Fed. R. Crim. P.
16(d)(1). Federal Rule of Criminal Procedure 2 provides that
“[t]hese rules are to be interpreted to provide for the
just determination of every criminal proceeding, to secure
simplicity in procedure and fairness in administration, and
to eliminate unjustifiable expense and delay.” As Mr.
Hamm indicates in his motion, the amount of discovery in this
case is voluminous. Requiring the government to provide Mr.
Hamm with a pretrial exhibit list by January 12, 2018
comports with Rule 2 and Rule 16's policy directives.
Furthermore, although applicable case law states a defendant
has no right to early disclosure of a pretrial exhibit list,
granting such a motion in the interests of justice
nonetheless falls within the court's discretion. See
Hintzman, 806 F.2d at 846; Giffen, 379
F.Supp.2d at 344. Pretrial disclosure will permit Mr. Hamm to
adequately sort through discovery and prepare for
both the pretrial conference and for trial, which
will promote judicial efficiency. Therefore, Mr. Hamm is
entitled to pretrial disclosure of photographic and video
on the foregoing law and ...