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United States v. Marshall - 328 U.S. App. D.C. 8, 132 F.3d 63 (1998)

Rule:

To be subject to disclosure under Fed. R. Crim. P. 16(a), evidence must be within the possession, custody or control of the government. Fed. R. Crim. P. 16(a)(1)(C). The government cannot be required to disclose evidence that it neither possesses nor controls.

Facts:

Defendant was convicted of distributing more than five grams of crack cocaine. He appealed, contending that the district court abused its discretion when it declined to suppress evidence disclosed by the government in an untimely manner under Fed. R. Crim. P. 16 or to grant a mistrial. The appellate court affirmed defendant's conviction.

Issue:

Did the district court abuse its discretion when it declined to suppress evidence disclosed by the county police department in an untimely manner?

Answer:

No.

Conclusion:

The appellate court ruled that jail visitation records used by the government to disprove defendant's misidentification defense were not immune from disclosure under Fed. R. Crim. P. 16(a)(1)(C) because inculpatory as well as exculpatory evidence was subject to disclosure. Furthermore, the term "government" as used in Fed. R. Crim. P. 16 did not encompass local law enforcement agencies so that the government did not violate Fed. R. Crim. P. 16 by failing to turn over records obtained from a county police department concerning defendant's prior arrest that were not in its possession or control until after trial commenced. Finally, the district court's order granting a four-day continuance to the defense was a sufficient sanction for the government's failure to disclose the jail visitation records because defendant did not demonstrate that the discovery violation prejudiced his substantial rights.

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