They Don’t Seem to Know Their Rule 16 Obligations Either

September 9, 2014
By Hanging Out with Carl Gunn


  • A document the government seeks to offer in a reopening of its case in chief is covered by the Rule 16(a)(1)(E)(ii) obligation to disclose all documents to be offered in the case in chief, just like documents the government offers in its initial presentation of evidence.
  • The “materiality” threshold for the Rule 16(a)(1)(E)(i) obligation to disclose all documents “material to preparing the defense” is a low threshold that applies to all information that would help in preparing the defense, including information that would cause a defendant to abandon a defense.
  • A defendant doesn’t need to spell out his theory of the case; rather, the government should interpret the “materiality” disclosure requirement broadly and turn over whatever evidence it has pertaining to the case.


A couple of years back, I did several posts on prosecutors’ obligation to disclose summaries of expert testimony and their obligation to disclose Brady material – and their seeming lack of understanding of the scope of those obligations. (See “Another Government Misunderstanding: About Expert Discovery,” “A Third Government Misunderstanding: About Its Basic Brady Obligation,” and “A Fourth Government Misunderstanding: About Its Brady Obligation Again” in the June 2012 and July 2012 links at the right.) Courtesy of former Deputy Federal Public Defender and colleague Evan Jenness, another case came to my attention a few months back that suggests the government also misunderstands its obligation under Rule 16 to disclose any documents or other physical evidence that is “material to preparing the defense,” Fed. R. Crim. Pro. 16(a)(1)(E)(i).

The case is United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013). The defendant was charged with illegal reentry after deportation, in violation of 8 U.S.C. § 1326, and sought to raise a reasonable doubt about the alienage element by seeking two instructions on how a person might have derivative citizenship through a parent. See id. at 762-63. When the defendant rested without presenting any evidence and offered the instructions on derivative citizenship, the government moved to reopen and revealed for the first time that it had the defendant’s mother’s naturalization certificate, which showed a naturalization date that foreclosed the defendant’s derivative citizenship theory. See id. at 763.

The court held that the government’s failure to disclose the naturalization certificate prior to trial violated Rule 16 in two ways. First, the court held it violated Rule 16(a)(1)(E)(ii)’s requirement that the government disclose in discovery all documents it “intends to use . . . in its case-in-chief at trial.” 768. It noted that allowing the government to reopen in order to introduce the naturalization certificate “circumvented the government’s self-imposed limitation” and “was unfair to [the defendant], who was entitled to build his defense strategy on the assumption that he had seen all the items the government would present as part of its case.” Id.

Second, the court held that “[t]he naturalization certificate should have been disclosed in any event under the separate prong of Rule 16 that applies to documents ‘material to preparing the defense.’” Id. (quoting Fed. R. Crim. Pro. 16(a)(1)(E)(i)). The court then offered several general comments about this “materiality” prong of Rule 16(a)(1)(E) that we can use in other cases:

1. “Materiality is a low threshold; it is satisfied so long as ‘the information [in the certificate] would have helped’ [the defendant] prepare a defense. United States v. Doe, 705 F.3d 1134, 1151 (9th Cir. 2013). Information is material even if it simply causes a defendant to ‘completely abandon’ a planned defense and ‘take an entirely different path.’ Id.Hernandez-Meza, 720 F.3d at 768.

2. “A defendant needn’t spell out his theory of the case in order to obtain discovery. Nor is the government entitled to know in advance specifically what the defense is going to be. The relevant subsection of Rule 16 is written in categorical terms: Upon defendant’s request, the government must disclose any documents or other objects within its possession, custody or control that are ‘material to preparing the defense.’ Fed. R. Crim. P. 16(a)(1)(E)(i). Unlike the preceding and subsequent subsections, which both require that ‘the government knows – or through due diligence could know – that the’ item exists, see Fed. R. Crim. P. 16(a)(1)(D), (F), subsection (E) is unconditional. Lack of knowledge or even a showing of diligence won’t excuse non-compliance.” Hernandez-Meza, 720 F.3d at 768.

3. “It thus behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case.” Id.

Nice stuff, eh? Think about using it in discovery motions. Think about using the Hernandez-Meza case to question any government claim that “the government knows its discovery obligations.” Think about making sure the government knows its discovery obligations.