Recent Discovery Deficiencies in DOJ Cases: Examples and Takeaways

Notable Cases

United States v. Reid, 19-CR-117-JLR (W.D. Wash.)

The government charged Shawna Reid with lying to a grand jury in connection with its investigation of the 2001 murder of Assistant United States Attorney Thomas Wales. Reid filed a motion to dismiss the indictment based on, inter alia, the prosecution’s late disclsure of an audio recording of her grand jury testimony despite her prior, specific request that the government “produce a copy of the audio recording of Ms. Reid’s grand jury testimony, if any recording existed.”¹ Though the Court ultimately denied the motion because it found that its two-month continuance of the trial would remedy any prejudice, Judge James Robart reprimanded the government in his 21-page order, stating that the government’s “failure to produce this evidence in a timely manner [was] in direct violation of the Federal Rules of Criminal Procedure” and “the requirements of Brady v. Maryland.”²

United States v. Low Taek Jho et al., 18-CR-538-MBK (E.D.N.Y.)

The government charged Ng Chong Hwa (a/k/a Roger Ng) with an alleged bribery and kickback scheme related to Malaysia’s sovereign wealth fund, 1MDB. On February 23, 2022, during the middle of his trial, the government advised the Court that its privilege team had failed to produce to the defense 15,500 nonprivileged documents related to Tim Leissner, one of the government’s primary witnesses in its case.³ The government requested, and the Court ultimately ordered, a continuance of the trial to permit the defense sufficient time to review the documentation prior to cross-examination. Despite the discovery issue, the jury returned a guilty verdict on all three charged counts on April 8, 2022.⁴

United States v. Giacobbe, 18-CR-108-EAW (W.D.N.Y.); United States v. Morgan, 21-CR-32-EAW (W.D.N.Y.)

These cases involved the government’s prosecution of Robert “Bob” Morgan and his son, Todd Morgan, related to an alleged mortgage fraud conspiracy that allegedly caused a loss of nearly $500 million. During the case, defense attorneys argued that the government failed to live up to its obligations, including instances where evidence was not timely turned over. In particular, the government did not timely disclose discovery from multiple devices that it had “missed” and failed to process for production, leading to the belated production of over 600,000 pages of Rule 16 discovery.⁵ On October 8, 2020, based in part on these errors, Judge Elizabeth Wolford dismissed the Giacobbe indictment without prejudice, finding that the government’s discovery mistakes were apparent but did not constitute willful misconduct.⁶ In doing so, the Court noted that “[i]ssues surrounding electronic discovery are complicated” and become even more so “when dealing with the volume of information in this case.”⁷

Prosecutors reindicted in Morgan, but the discovery disputes continued, leading the Court to order the government to file affidavits regarding discovery decisions the government made, including why certain evidence was not produced and who made that decision.⁸ Judge Wolford later ordered an evidentiary hearing to discuss these issues and the government’s apparent discovery failings.⁹ On the eve of the hearing, however, the parties agreed to plea agreements in which the total loss that the defendants pleaded to was approximately $2,000 rather than the eight-figure loss the prosecution initially alleged. Although the underlying case was thus resolved, the Court, citing its own obligation to ensure compliance with the federal rules, ordered the government to file a brief addressing the Court’s discovery concerns no later than July 1, 2022.¹⁰

United States v. Ali Sadr Hashemi Nejad, 18-CR-224-AJN (S.D.N.Y.)

The government brought charges for alleged evasion of sanctions against Iran.¹¹ Following a two-week trial, a jury convicted the defendant on five of six charged counts.¹² However, after the revelation of numerous discovery issues — including the belated disclosure of an exculpatory document that prosecutors discussed “bury[ing]” in a midtrial production of documents that had previously been disclosed — the government joined the defense’s motion to vacate the jury verdict and dismiss the charges with prejudice. The Court ultimately granted that motion, vacating the verdicts.¹³ Despite the dismissal, the Court ordered further inquiries into the government’s handling of the case — which the Court characterized as a “serious dereliction” that involved “a misrepresentation to the Court”¹⁴ — and ordered the Acting U.S. Attorney for the Southern District of New York to “ensure that all current AUSAs and SAUSAs read” its September 2020, 34-page opinion that detailed the discovery failings throughout the case.¹⁵

Takeaways for Defendants and Defense Counsel

The above examples make clear that the defense bar should be on its toes when both requesting and reviewing discovery. Some steps to consider taking may include the following.

• Request specific discovery. The enormous amount of discovery that the government often produces in white-collar prosecutions — as the Giacobbe court noted in its decision dismissing the initial indictment without prejudice — can overwhelm even well-resourced defense counsel. Instead of assuming that such productions contain all relevant material, defense counsel should consider specifically requesting that the government produce certain materials and identify where in a voluminous production those materials may be found. For instance, as counsel did in the Reid case, defense counsel might request that the government produce specific grand jury material or ask the government to identify where such material exists in the production. Such requests put the onus on the government to be conscientious about its discovery obligations while creating a record if issues arise later.
• Involve the Court early. While filing numerous motions to compel against the government may not be received well, informally updating the Court about the status of discovery requests during routine status hearings will assist in priming the Court in the event that future discovery litigation arises. Raising such issues may also cause the Court to ask questions of the government about its discovery practices, which may assist in later motion practice. 
• Conduct an independent investigation. Defense counsel should consider conducting an independent investigation instead of relying on the government’s production of documents. Such an investigation proved useful in United States v. Anilesh Ahuja et al.¹⁶ In July 2019, defendants in that case were convicted of a mismarking scheme related to their work at a hedge fund, and each was sentenced to years in prison. However, the guilty verdicts were overturned after the defense found evidence — via a Freedom of Information Act request — that the government had failed to disclose its involvement in preparing the allocution statement of a cooperating witness. The AUSAs involved were ordered to file declarations regarding this discovery failing.¹⁷ Instead of retrying the case, the government offered and the parties agreed to time-served plea deals. The Court accepted the deals and ultimately both defendants received a sentence involving no imprisonment on April 22, 2022.

As reflected above, government discovery mistakes may become increasingly common given the massive amount of electronic discovery involved in white-collar prosecutions. Defense counsel should scrutinize the government’s discovery conduct and productions as doing so effectively can lead to favorable dispositions.

¹ 19-CR-117-JLR (W.D. Wash), Dkt. 152 at 8.
² Id. at 14-15 (citation omitted). 
³ 18-CR-538-MBK (E.D.N.Y.), Dkt. No. 149 at 1.
⁴ Id., Dkt. 198.
⁵ 18-CR-108-EAW (W.D.N.Y.), Dkt. 468 at 39-40.
⁶ Id. at 1-2.
⁷ Id. at 38.
⁸ Id., Dkt. No. 536.
⁹ Id., Dkt. Nos. 548, 599.
¹⁰ Id., Dkt. No. 613.
¹¹ 18-CR-224-AJN (S.D.N.Y.).
¹² Id., Dkt. 310.
¹³ Id., Dkt. 362.
¹⁴ Id., Dkt. 379, at 2.
¹⁵ Id. at 34.
¹⁶ 18-CR-328-KPF (S.D.N.Y.).  
¹⁷ Id., Dkt. 424.