U.S. v. Garrett, 99-10531

Citation238 F.3d 293
Decision Date29 December 2000
Docket NumberNo. 99-10531,99-10531
Parties(5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. BOYCE MARK GARRETT; LARRY DON KEITH; KENNETH VERNON RYDEEN; JIMMY DALE SULLIVAN; MICHAEL DEAN WOODARD; STEVEN CRAIG FINKLEA; AUSTEEN HARRIS KEITH; DALE ZANE KEITH; GLENN DALE WILCOX, Defendants-Appellees
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

[Copyrighted Material Omitted] Appeal from the United States District Court For the Northern District of Texas.

Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and FISH*, District Judge.

DeMOSS, Circuit Judge:

I. INTRODUCTION

In this interlocutory appeal, the government seeks review of an order of the district court, which was entered the day of trial and which excluded 25 of its witnesses in a complex, multi-defendant conspiracy case involving the alleged adulteration of milk. The district court itself recognized that exclusion of these witnesses was tantamount to a dismissal of some of the charges against the moving defendants. This appeal boils down to one relatively uncomplicated issue; that is, whether the district court abused its discretion by imposing the rather draconian sanction of excluding the government's witnesses from trial for discovery violations which the court itself found not to have been made in bad faith. For the reasons discussed below, we find that the district court abused its discretion. We, therefore, VACATE the district court's sanctions order excluding the government's witnesses and REMAND this matter for further proceedings.

II. BACKGROUND

The underlying cause of action giving rise to the criminal indictments in this case involves a complex and massive, long-term conspiracy in which more than 30 dairy farmers and milk transporters allegedly added water to milk shipments along various and overlapping dairy routes in order to increase both the weight and value of milk shipments. The indictment described how Associated Milk Producers, Inc. ("AMPI"), which is a marketing corporation for dairy farmers, operates a milk processing plant in Sulphur Springs, Texas, to which drivers it hired would bring milk from individual dairy farms along each driver's specified route. The route drivers had the responsibility of measuring the quantity of milk received from each dairy farm and had to take samples of each shipment received from each farm before commingling the milk in the tanker truck. Once delivered to the processing plant, the milk was to be tested under standards put forth by the Milk Marketing Administration ("MMA"), which is a subdivision of the U.S. Department of Agriculture.

The government's theory was that various individuals, including route drivers, added water to the milk trucks along delivery routes. To prove its case, the government intended to rely on both scientific data, that is, sample test composition reports for the milk tanker trucks, and testimony from cooperating witnesses. These witnesses were drivers and other AMPI staff members who knew of or were aware of the defendants' schemes to water down the milk. Most of the testifying witnesses whose testimony was ultimately excluded by the district court were defendants who pleaded guilty to one count of the indictment in exchange for dismissal of the remaining counts against them and for consideration of a downward sentencing departure in light of their willingness to cooperate and testify truthfully in the government's case against the remaining defendants.

Along with substantive violations of specific milk adulteration statutes, specifically 21 U.S.C. §§ 331(a), 331(a)(2), the indictments charged substantive mail fraud violations and various conspiracies to: 1) defraud the government by obstructing milk regulation; 2) violate the milk adulteration statutes; and 3) commit mail fraud. The initial indictment, entered on July 15, 1998, charged 29 defendants with these various milk adulteration-related offenses.

The case was initially set for trial on September 28, 1998, but was rescheduled for November 30, 1998, then for January 11, 1999, and then again for March 15, 1999 (with a February 12th deadline for discovery).1 On January 13, 1999, a superseding indictment was returned naming four additional defendants,2 and on March 3, 1999, a second superseding indictment was returned. Four days before the March 15th trial date, the district court held a hearing on various motions, and the following day, March 12th, it entered an order continuing the trial once again to April 5th. The matters addressed in the March 11th hearing dealt with allegations that the prosecutor declined to produce letters written to people who were not expected to testify at trial ("target letters"), urging them to admit their involvement to get the benefit of cooperation at sentencing, and that the prosecutor also declined to provide investigators' notes of interviews with or questionnaires as to approximately 125 people, in some of which various defendants denied any involvement, a position which was inconsistent with their pleas and which, therefore, constituted impeachment material that should have been disclosed. In its March 12th order, the district court directed the government to produce within five days of that order, copies of "any [target] letters from government counsel or its agents attempting to secure testimony from or against any person who will be testifying in the government's case-in-chief . . . ." The district court also continued the trial until April 5th to permit production of these materials. On March 16th and 17th, the government produced some materials in response to the March 12th order. On March 31st, and in response to a defense motion that all correspondence with any individuals, not just correspondence related to testifying witnesses, be produced, the district court removed the "case-in-chief" limitation of its March 12th order and ordered that all such target letters be produced by April 2nd.

On March 23rd, all of the defendants-appellees had also moved jointly for relief under Brady,3 claiming that the government had withheld numerous categories of exculpatory materials, including the letters referenced in the March 12th order. On April 1st, the district court denied the defendants' motion, noting that none of the materials cited by the defendants constituted Brady material for which the government had an affirmative duty to disclose. The district court did note, however, that the investigators' notes and screening questionnaires were to be produced as "Brady impeachment material" because they revealed potentially inconsistent statements made by the various defendants. Yet, no defense counsel ever denied having been told by the prosecutor about these items and their content.

Late on April 2nd, the government produced documents to the defense as directed by the district court's March 31st modification of its March 12th order. The government supplemented this production on the morning of April 5th (the trial date) with a stack of documents (8 inches thick), a good portion of which was duplicative of previously provided materials. Defense counsel complained to the district court about the tardy production, and while some conceded that a brief continuance would suffice to take the sting out of the delayed production, others requested a dismissal based on discovery violations.

On April 5th and 6th, the district court held additional hearings on the defendants' various motions to dismiss or for sanctions regarding the government's alleged failure to timely produce discovery materials, and it ultimately struck 25 of the government's witnesses on the afternoon of the 5th. The district court ordered excluded from trial any witness as to whom a target letter was required to be produced by the court's March 12th order (requiring production by March 17th), but as to which such letter was tardily produced. The court noted that after the March 11th hearing, it had determined, and the government should have been aware that, such target letters were Brady materials which it had an obligation to produce.4 The district court did not sanction the government's failure to timely disclose the materials ordered produced after April 2nd under the March 31st modification of the March 12th order (i.e., the addition of any target letters to non-testifying witnesses and the addition of the investigators' notes). A written order to the effect of the sanctions orally ordered was entered on April 9th, and in it, the district court stated "[t]he court does not question the government's good faith." The district court went on to state:

even assuming the government's untimely production ultimately would not have adversely impacted the defense's trial strategy, it nonetheless unquestionably adversely impacted the organized and efficient preparation for trial by defense counsel and, for that matter, the Court. Neither the defense nor the Court should be forced to continue to suffer the government's last-minute production of documents and the resulting motions and hearings the untimely productions have caused, particularly when those untimely productions have come on days immediately preceding, and even the day of, trial.

The government has timely filed this interlocutory appeal of the district court's sanctions order, arguing that the district court abused its discretion by imposing a sanction more severe than was necessary to effect compliance with discovery orders and by failing to weigh all of the factors required by this Circuit's precedent.

III. STANDARD OF REVIEW

We review a district court's imposition of sanctions for discovery violations for an abuse of the district court's discretion. See United States v. Katz, 178 F.3d 368, 372 (5th Cir. 1999). The government concedes that the district court's discretion is "admittedly broad." However, notwithstanding this broad discretion, we have consistently held that a district court, when considering the imposition of...

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