Those Great Discovery Opinions From a Couple of Years Ago Are Still Being Followed.

October 11, 2016
By Hanging Out with Carl Gunn


  • A recent Ninth Circuit opinion confirms two opinions from several years ago holding that Rule 16’s right to discovery of items “material to preparing the defense” isn’t limited to admissible evidence, sets a very low threshold, and includes evidence that affects choice of defenses, witness preparation, and other such things.
  • The opinion also reiterates a warning that it “behooves the government to interpret the disclosure requirement broadly.”
  • Finally, the opinion confirms prior opinions holding that the disclosure requirement extends to evidence material to Fourth Amendment suppression motions, characterizing those also as part of the “defense.”



A couple of years ago I put up two posts about two then-recent discovery opinions that made clear Rule 16’s right to discovery of items “material to preparing the defense” (1) is not limited to admissible evidence; (2) sets a very low threshold; and (3) should be interpreted broadly by both the courts and the government.  (See “They Don’t Seem to Know Their Rule 16 Obligations Either” in the September 2014 link at the right and “An Update on a Recent Discovery Post” in the October 2014 link, discussing United States v. Hernandez-Meza, 720 F.3d 760 (9th Cir. 2013), and United States v. Muniz-Jaquez, 718 F.3d 1180 (9th Cir. 2013).)

A recent opinion confirms what these earlier opinions say and show they weren’t just some temporary flash in the pan.  The recent opinion is United States v. Soto-Zuniga, ___ F.3d ___, 2016 WL 4932319 (9th Cir. Sept. 16, 2016).  Another discussion of the case can be found in Northern District FPD Steve Kalar’s “Case o’ the Week” blog, which I link here, but I thought I’d add my two cents worth.

Initially, Soto-Zuniga confirms several general principles made clear by Hernandez-Meza and Muniz-Jaquez.  First, it reiterates that “[m]ateriality is a ‘low threshold; it is satisfied so long as the information . . . would have helped’ to prepare a defense.”  Soto-Zuniga, at *8 (quoting Hernandez-Meza, 720 F.3d at 768).  Second, Soto-Zuniga reiterates HernandezMeza’s warning that it “behooves the government to interpret the disclosure requirement broadly and turn over whatever evidence it has pertaining to the case.”  Soto-Zuniga, at *8 (quoting Hernandez-Meza, 720 F.3d at 768).

Third, Soto-Zuniga reaffirms that “[t]he test is not whether the discovery is admissible at trial, but whether the discovery may assist [the defendant] in formulating a defense, including leading to admissible evidence.”  Soto-Zuniga, at *8.  In addition to quoting the (real-life) example in Hernandez-Meza of “simply caus[ing] a defendant to completely abandon a planned defense and take an entirely different path,” Hernandez-Meza, 720 F.3d at 768, quoted in Soto-Zuniga, at *8, it cites examples given in the case of United States v. Lloyd, 992 F.2d 348 (D.C. Cir. 1993), of “uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal,” Lloyd, 992 F.2d at 351 (citations and internal quotations omitted), quoted in Soto-Zuniga, at *8.

Soto-Zuniga also adds to our quiver of discovery arrows by reaffirming holdings in United States v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003), and United States v. Thomas, 726 F.3d 1086 (9th Cir. 2013), that evidence is material to a “defense” if it is material to a Fourth Amendment suppression claim.  Soto-Zuniga, at *6 (citing Cedano-Arellano, 332 F.3d at 570-71, and Thomas, 726 F.3d at 1096-97).  It rejects a government attempt to characterize Cedano-Arellano and Thomas as creating just a narrow “dog discovery” right.  Soto-Zuniga, at *7.  The court reasons: “Soto-Zuniga sought discovery of whether he and his automobile were unconstitutionally seized at the San Clemente checkpoint – an issue that is central to his defense, because it could spell the difference in a suppression motion of the key physical evidence against him.”  Id.

So this new opinion does two things.  First, it confirms Rule 16’s “material to the defense” standard (a) is a low threshold, (b) should be broadly interpreted, and (c) applies to anything that will assist in the defense, not just admissible evidence.  Second, it interprets the word “defense” broadly, to include motions to suppress evidence as well as trial defenses.  Use this case along with Hernandez-Meza and Muniz-Jaquiz to really push your discovery rights.