USA v. Marshall, Marlon, No. 96-3053 (D.C. Cir. 1998)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on January 6, 1998.
United States Court of Appeals for the district of columbia circuit
No. 96-3053 September Term, 1997 No. 95cr00201-01 United States of America, Appellee v.
Marlon Marshall, Appellant
Before: Silberman, Sentelle and Garland, Circuit Judges.
O R D E R
Upon consideration of appellee's petition for rehearing, it is
ORDERED that the petition for rehearing is granted in part, to the extent consistent with the following amendment, and denied in part. It is further
ORDERED that the opinion filed by the court on January 6, 1998, be amended by replacing the last paragraph on page 10 of the slip opinion with the following paragraph and footnote:
It could be argued that even before trial commenced, the government should have realized that the jail visitation records were "material to the preparation of [Marshall's] defense" under Rule 16(a)(1)(C). It knew then that Sabrina Shorter could play a significant role in its case-in-chief; caller identification equipment revealed that one or more of the informant's calls were returned from her residence. It also could be argued that the government knew or should have known that the jail visitation records mentioning Ms. Shorter would bear more than "some abstract logical relationship to the issues in the case." Caicedo-Llanos, 960 F.2d at 164 n.4 (quoting United States v. Ross, 511 F.2d 757, 762 (5th Cir. 1975)).2 And, as we have discussed above, the fact that the evidence was incriminating did not relieve the government of its Rule 16 obligations.
______________________ 2 To give rise to a disclosure obligation, the evidence's materiality must, of course, be evident to a reasonable prosecutor. The prosecutor need not guess that evidence may become material as a consequence of a defendant's not-yet-revealed strategic decisions. Nor must the prosecutor assume that the defense will make false assertions about the facts, hence making relevant contrary evidence that would not have been relevant had the defense adhered to the truth.
Per Curiam FOR THE COURT: Mark J. Langer, Clerk
Filed on March 6, 1998
No. 96-3053 September Term, 1997 No. 95cr00201-01 United States of America, Appellee v.
Marlon Marshall, Appellant
Before: Silberman, Sentelle and Garland, Circuit Judges.
O R D E R
Upon consideration of appellee's petition for rehearing, it is
ORDERED that the petition for rehearing is granted in part, to the extent consistent with the following amendment, and denied in part. It is further
ORDERED that the opinion filed by the court on January 6, 1998, be amended by replacing the last paragraph on page 10 of the slip opinion with the following paragraph and footnote:
It could be argued that even before trial commenced, the government should have realized that the jail visitation records were "material to the preparation of [Marshall's] defense" under Rule 16(a)(1)(C). It knew then that Sabrina Shorter could play a significant role in its case-in-chief; caller identification equipment revealed that one or more of the informant's calls were returned from her residence. It also could be argued that the government knew or should have known that the jail visitation records mentioning Ms. Shorter would bear more than "some abstract logical relationship to the issues in the case." Caicedo-Llanos, 960 F.2d at 164 n.4 (quoting United States v. Ross, 511 F.2d 757, 762 (5th Cir. 1975)).2 And, as we have discussed above, the fact that the evidence was incriminating did not relieve the government of its Rule 16 obligations.
______________________ 2 To give rise to a disclosure obligation, the evidence's materiality must, of course, be evident to a reasonable prosecutor. The prosecutor need not guess that evidence may become material as a consequence of a defendant's not-yet-revealed strategic decisions. Nor must the prosecutor assume that the defense will make false assertions about the facts, hence making relevant contrary evidence that would not have been relevant had the defense adhered to the truth.
Per Curiam FOR THE COURT: Mark J. Langer, Clerk
Filed on March 6, 1998
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