White Collar Defense Update

In federal court, a defendant is entitled to pre-trial discovery under Rule 16 of the Federal Rules of Criminal Procedure. This is an important due process protection that allows a defendant to know what he will be facing at trial. But what about at sentencing? Since most federal cases are resolved through guilty pleas, isn't it equally important to get copies of what the prosecutor provides to the probation officer to determine the Guidelines range? One would think so, but in most federal courts such disclosure during the sentencing phase is not required. Fortunately, a slow change seems to be underway, led by the Middle District of Pennsylvania.

Unlike Rule 16, Rule 32 of the Federal Rules, which governs the sentencing procedure, does not require the disclosure of any material to the defense. The rule merely states that the probation officer must conduct a pre-sentence investigation and prepare a pre-sentence report. Some districts' local rules provide further guidance. For instance, the Eastern District of Pennsylvania Local Criminal Rules require the government to make available to the probation officer "all investigative and file material relevant to the case," but do not require that the material be disclosed to the defendant or his attorney. In practice, the probation officer typically relies upon evidence collected by the prosecution in the investigation to provide the factual support for such critical determinations as drug quantity, loss amount, the defendant's role in the offense, etc. The probation officer's decision on such determinations can have a significant effect on the Guidelines calculation, and ultimately the sentence. It seems natural, then, that the defense should have access to the documents that support the factual basis for such determinations.

So far, in Pennsylvania at least, only the Middle District of Pennsylvania has decided to change the rules to require reciprocal discovery during the pre-sentence investigation phase of a case. As explained by former Eastern District U.S. Attorney Peter F. Vaira in a recent article, the Middle District has amended its Local Rules to require mutual discovery of all material supplied to the probation officer for use in the pre-sentence report. The new rule (LCrR 32.1) states that "[t]he government shall provide to the defendant's counsel a copy of any documentary information provided to the probation officer to be considered in the preparation of the pre-sentence report at the same time as it is provided to the probation officer." The rule is reciprocal: "[t]he defendant or the defendant's counsel may submit documentary information to the probation officer and shall provide a copy to the attorney for the government at the same time as it is provided to the probation officer."

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Remember how new telecommunication technologies were supposed to make life better? A recent Florida federal court decision reminds us that these new technologies can also come back to haunt you if you're not careful. In United States v. Stirling, the United States District Court for the Southern District of Florida granted John Philip Stirling - charged with two counts of drug smuggling - a new trial because the government failed to disclose to the defense that incriminating Skype chats could be extracted from a disk provided to the defense before trial. (Skype is a voice-over-Internet Protocol that allows users to communicate with others by voice, video, and instant messaging over the Internet.) Significantly, the court found that the prosecution technically complied with the Federal Rules of Criminal Procedure by turning over to the defense a disk containing an exact replica of the defendant's laptop computer.

Notwithstanding the prosecution's technical compliance with criminal discovery rules, the court ruled that the "interest of justice" required that Mr. Stirling be granted a new trial because the prosecution never disclosed to the defense that incriminating Skype chats could be extracted from the disk produced. Mr. Stirling took the stand in his defense and the prosecution was able to significantly discredit his testimony with the use of the Skype chats. Unaware of the Skype chats, defense counsel was unable to properly prepare Mr. Stirling and competently advise him regarding testifying in his defense. Mr. Stirling was convicted on both counts.

The disk contained visible folders and a non-visible "file" consisting of the Skpe chats. In fact, the prosecution was only able to retrieve the Skype chats by hiring a computer forensics expert who had to download a program to recover the chats. Mr. Stirling argued in his motion for a new trial that "[p]roduction of something in a manner which is unintelligible is really not production." The court agreed. The court reasoned that the governing standard found in the Federal Rules of Civil Procedure should apply in the case, which required the prosecution to produce electronically stored information or ESI in a reasonably usable form. The court's reasoning appeared to be based, in part, upon the defendant's financial situation as indigent and unable to hire a computer forensics expert. In other words, the prosecution's failure to disclose the Skype chats was unfair.

This case is another reminder that careful consideration needs to be paid to ESI turned over by the government following a seizure of computer files. Ideally, a defendant will be able to hire a computer forensics expert who can decipher files such as Skype that contain communications in a format that is sometimes not easily retrieved or even identifiable. In any event, in this brave new world dominated by new technologies, defense counsel would be wise to discuss with any client all potential communications that could be recorded and included in ESI seized by the government.