U.S. District Court in Miami orders new trial based on discovery violation for Electronically Stored Information
In United States v. Stirling, available here,
Judge Altonaga of the U.S. District Court for the Southern District of Florida in Miami found that even though the government technically complied with its discovery obligations under Federal Rule of Criminal Procedure 16(a)(1)(B) by furnishing an exact replica of defendant’s hard drive to the defense, because the government’s discovery production in this case so seriously impaired the defendants trial strategy, a new trial was nevertheless warranted.
The relevant facts of this case are fairly straightforward. As Judge Altonaga summarized:
"Stirling proceeded to trial on April 24, 2012, and at his trial, testified in his defense. His defense consisted of duress, in particular, that he had participated in the charged crimes because of threats to himself and his family by Colombian drug traffickers. After Stirling testified, on the morning of the last day of trial, May 2, 2012, the Government turned over to the defense for the first time a 214-page log consisting of Skype chats downloaded from Stirlings computer. An exact replica of Stirlings laptop computer which was seized from the vessel had been provided to the defense in discovery prior to trial. The Skype chats were not readily available by opening the folders appearing in the hard drive or disk; rather, the Government used the services of an FBI computer analyst, Jeffrey Etter, who, after downloading a program, was able to recover various chats from the username “beenthere42.” That username belonged to one of the Co-Defendants."
"In rebuttal, and over defense objection, the Government called Agent Etter to testify and introduced the Skype log, containing communications between Sirling and his Co-Defendant. Those communications had a devastating impact. They contradicted many of Stirlings statements made during his testimony, and irreparably damaged his credibility and his duress defense. Defense counsel was severely limited in her ability to cross-examine Agent Etter, or rehabilitate Stirling, as the defense case was over. More importantly, defense counsel, unaware of the existence of the Skype chats before the Defendants decision was made to testify, was unable to properly prepare her client and competently advise him."
Not surprisingly, Stirling was convicted.
Under Federal Rule of Criminal Procedure 33, Judge Altonaga ordered a new trial in "the interest of justice," even though the government had warned the defense that if Stirling took the stand and testified falsely, there was [unidentified] evidence on the computer which the Government would use in its rebuttal to impeach him. Finding that this was not like those where courts have refused to require the government to identify evidence within a larger mass of disclosed evidence (commonly referred to as a "data dump"), Judge Altonaga wrote that the standard of Federal Rule of Civil Procedure 34(b)(2)(E)(ii), available
here, should also apply in criminal cases and should require the Governmentto produce ESI in a "reasonably usable form." Judge Altonaga held that "technical compliance with its discovery obligations under Federal Rule of Criminal Procedure 16 (a)(1)(B) by the furnishing of an exact replica of the hard drive" was insufficient under the Rules. The prosecution "never told defense counsel that incriminating Skype chats could be extracted from the disk or that they even existed."
Judge Altonaga agreed with the defendant that "production of something in a manner which is unintelligible is really not production," and went on to remark that "[i]f, in order to view ESI, an indigent defendant such as Stirling needs to hire a computer forensics expert and obtain a program to retrieve information not apparent by reading what appears in a disk or hard drive, then such a defendant should so be informed by the Government, which knows of the existence of the non-apparent information. In such instance, and without the information or advice to search metadata or apply additional programs to the disk or hard drive, production has not been made in a reasonably usable form. Rather, it has been made in a manner that disguises what is available, and what the Government knows it has in its arsenal of evidence that it intends to use at trial."
The Stirling case teaches that although the government may have the upper hand when it comes to computer forensics and its discovery obligations under the Federal Rules of Criminal Procedure, the government must nevertheless disclose the evidence contained within electronic media so that technologically unsophisticated defendants are not surprised by the evidence the government has in its possession.
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