Commercial Litigation and Arbitration

Certain Purely Legal Rulings, Including Sanctions Rulings, May Be Subject to Abuse of Discretion Review

United States v. Gonza-Les-Flores, 701 F.3d 112 (4th Cir. 2012):

On June 14, 2011, two days before Gonzales-Flores's jury trial on these charges was scheduled to begin, the government informed his counsel that it intended to call three expert witnesses. Gonzales-Flores's counsel filed a motion in limine seeking to exclude the witnesses' proposed testimony on the ground that the government had failed to provide timely and adequate disclosure of the testimony, as required by Rule 16(a)(1)(G) of the Federal Rules of Criminal Procedure. The district court considered the motion the next day during a telephonic hearing in which an Assistant United States Attorney and Gonzales-Flores's counsel participated. Although Gonzales-Flores was unaware of the hearing until after it occurred, and thus neither attended the hearing nor participated in it by telephone, his counsel never objected to his absence.

Defense counsel argued at the hearing that the district court should remedy the government's alleged Rule 16 violation by excluding its proposed expert-witness testimony. While insisting that any deficiencies in the disclosure of the witnesses' testimony were excusable and that the testimony should therefore not be excluded, the government nevertheless expressed its willingness to agree to a continuance of the trial if Gonzales-Flores's counsel requested one. The district court declined to consider a continuance or to exclude the expert-witness testimony. It found that the government's belated disclosure had in no way prejudiced the preparation of the defense, since Gonzales-Flores's counsel could have reasonably anticipated that the government would introduce expert testimony on the topics about which the three expert witnesses proposed to testify and could have prepared accordingly. The judge did, however, indicate his willingness to reconsider the motion in limine should "any prejudice" or "evidence of prejudice" arise during the course of the trial.

At trial, the government called the three expert witnesses who were the subject of the motion in limine, as well as a number of other lay and expert witnesses. The first expert, a forensic analyst, testified that the substance recovered during the search of Gonzales-Flores's home was indeed methamphetamine. The second expert, a law-enforcement officer familiar with the drug trade, testified that the various items recovered during the search were more consistent with a methamphetamine distribution scheme than with personal use of the drug. And the third expert, a firearms analyst, testified that the weapon recovered during the search was operable and had traveled in interstate commerce. Two additional expert witnesses corroborated the testimony of the forensic and firearms analysts. The government also called the confidential informant who had conducted the controlled purchase of methamphetamine from Gonzales-Flores; indicted and unindicted coconspirators who had purchased methamphetamine from, and used the drug with, Gonzales-Flores; and a number of law-enforcement officers involved in the investigation and arrest of Gonzales-Flores.

The jury convicted Gonzales-Flores of all the charged offenses except knowingly possessing methamphetamine with intent to distribute, convicting him instead of the lesser-included offense of simple possession of methamphetamine. ***

Whether the government violated Rule 16 and what remedy any violation might merit are both "questions of law," as so defined. To determine whether the government violated Rule 16, a district court need only decide the proper "interpretation" of the relevant provision of the rule and the "application" of the provision to the government's conduct. And while a district court enjoys broad discretion in deciding how to remedy a discovery violation, see Fed. R. Crim. P. 16(d)(2), that discretion is channeled into a discrete set of traditionally judicial inquiries concerning "the reasons for the government's delay and whether it acted intentionally or in bad faith; the degree of prejudice, if any, suffered by the defendant; and whether any less severe sanction will remedy the prejudice and the wrongdoing of the government," United States v. Hastings, 126 F.3d 310, 317 (4th Cir. 1997).

The questions at issue in a hearing on an alleged discovery violation thus turn on the meaning of Rule 16's requirements and the remedies that may ensue from their breach. Insofar as these questions implicate any facts at all, they implicate the kinds of facts that concern the lawyers' conduct during the litigation itself, not facts that remain within the province of the jury, such as the credibility of a particular witness, the weight of a piece of evidence, or the ultimate guilt or innocence of the defendant. They therefore remain quintessentially legal questions, the kinds of questions district courts routinely resolve in managing criminal trials.***

Our conclusion that a hearing on a discovery violation is "a conference or hearing on a question of law" is further bolstered by the Advisory Committee's statement that Rule 43's general presence requirement "does not apply to hearings on motions made prior to or after trial." Fed. R. Crim. P. 43 advisory committee's note 1. Since its original enactment, in 1944, Rule 43 has been amended six times, yet the Advisory Committee has never seen fit to revise, remove, or reject this statement. This supports our conclusion that the drafters of Rule 43 never intended the rule's presence requirement to apply to pretrial hearings on the kinds of routine discovery issues that arose in this case.

To be sure, as Gonzales-Flores notes, we review a district court's decision regarding whether a party has violated Rule 16, as well as its decision to order a particular sanction, for abuse of discretion, a standard of review not uncommonly reserved for decisions that involve some factual component. See United States v. Young, 248 F.3d 260, 269 (4th Cir. 2001) (violations); United States v. Barile, 286 F.3d 749, 758-59 (4th Cir. 2002) (sanctions). But this alone does not prevent a discovery issue from being a "question of law" within the meaning of Rule 43(b)(3), for nearly every legal question involves some factual component. Consider one of the most routine determinations made by district courts: whether an out-of-court statement constitutes inadmissible "hearsay" within the meaning of Federal Rule of Evidence 801. To make this determination, a district court must decide whether the out-of-court statement is being "offer[ed] in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c)(2). A district court's hearsay rulings thus contain an irreducible "factual" component--namely, identifying the actual purpose for which a party is introducing an out-of-court statement. Moreover, we review a district court's hearsay rulings for abuse of discretion. See United States v. DeLeon, 678 F.3d 317, 326 (4th Cir. 2012). And yet, no one doubts that determining whether an out-of-court statement constitutes hearsay remains a question of law. See Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 8.12, at 748 n.1 (4th ed. 2009) ("The judge alone determines what the proponent is trying to prove and what the declarant was trying to say.").

Indeed, numerous rulings by district courts are reviewed for abuse of discretion but are nevertheless thought to be legal in nature. See, e.g., United States v. Novak, 607 F.3d 968, 972 (4th Cir. 2010) (jury instructions); United States v. Basham, 561 F.3d 302, 321 (4th Cir. 2009) (disqualification of defense counsel for a conflict of interest); United States v. Badwan, 624 F.2d 1228, 1232 (4th Cir. 1980) (continuances). So, too, with discovery rulings under Rule 16: while such rulings sometimes rest on factual premises, such as when a party disclosed its witness list or what information it included in the disclosure, the ultimate questions of whether a party violated Rule 16 and, if so, what remedy is appropriate remain within the scope of Rule 43(b)(3)'s exemption for "a conference or hearing on a question of law."

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