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White Collar Criminal Defense Attorneys Applaud the 6th Circuit's Rejection of the Federal "Due Diligence Rule" as Applied to Exculpatory and Mitigatory Evidence in the Government's Possession

The United States Court of Appeals for the Sixth Circuit, relying on the United States Supreme Court's decision in Brady v. Maryland, 373 U.S. 83 (1963) and Banks v. Dretke, 540 U.S. 668 (2004), held in U.S. v. Tavera, 6th Cir., No. 116175, 6/20/2013, that the "due diligence rule" as applied to the Government's responsibility to turn over to the defense exculpatory and impeaching evidence was unfair to criminal defense lawyers and their clients.

In Tavera, the 6th Circuit reversed the defendant's conviction and 186 month sentence and remanded the case for retrial because Government Prosecutors withheld Tavera's co-defendant's exculpatory statements to them on the grounds that Tavera's lawyers should have interviewed the co-defendant and learned from him that he had met with the case prosecutors and exculpated Tavera.

The Brady Rule

In 1963 the United States Supreme Court held that the Government's failure to provide a Defendant with material, exculpatory evidence is a due process violation which results in an unfair trial. Brady v. Maryland, 373 U.S. 83 (1963).

Thirty six years later in Strickler v. Greene, 527 U.S. 263, 281-282 (1999), the Court held that the three (3) essential elements of a Brady prosecutorial misconduct claim were that: (1) the evidence at issue must be favorable to the accused either because it is exculpatory or impeaching; (2) the evidence must have been suppressed by the Government; and (3) that actual prejudice must have resulted.

The "Due Diligence Rule"

Most Federal Courts of Appeals, except for the Tenth and D.C. Circuits have implemented some form of the "due diligence rule". Weisburd, Prosecutors Hide, Defendants Seek: The Erosion of Brady Through the Defendant Due Diligence Rule, 60 UCLA L. Rev. 138 (2012). The "due diligence rule" essentially provides that "the government has no Brady burden when the necessary facts for impeachment are readily available to a diligent defendant". United States v. Rodriguez, 162 F.3d 135, 147 (1st Cir. 1998).

The United States Supreme Court Rejects the Due Diligence Rule in Banks v. Dretke

In rejecting the Fifth Circuit's position, the Court held in Banks v. Dretke, 540 U.S. 688, 696 (2004), that "a rule thus declaring "prosecutor may hide, defendant must seek," is not tenable in a system constitutionally bound to accord defendants due process".

In Banks, the prosecution advised defense counsel that it would provide all discovery without the necessity of discovery motions but withheld evidence that would have discredited two (2) essential prosecution witnesses and did not correct the witness' misstatements and emphasized their truthfulness during closing arguments.

The Court held that "when police or prosecutors conceal significant exculpatory or impeaching material in the Government's possession, it is ordinarily incumbent on the Government to set the record straight" and that the suppressed evidence was Brady material.

The Sixth Circuit Relies On Banks in Deciding United States v. Tavera

In holding that the Government's failure to disclose Tavera's co-defendant's exculpatory statements resulted in a due process violation, the Sixth Circuit in United States v. Tavera, 6th Cir., No. 11-6175, 6/20/13, concluded that "so long as favorable evidence could very well effect the jury's decision, prosecutors must disclose it. And when they fail to do so, courts have a duty to order a retrial, allowing a jury to consider the previously concealed evidence."

Following his conviction and sentencing for participating in a methamphetamine drug conspiracy, Tavera learned that a few days prior to trial, Mendoza had told the Government that Tavera had no knowledge of the drug conspiracy. Mendoza's statements directly contradicted the story of the government's main witness; however, the Government did not disclose the statements to Tavera's lawyer.

In response to the government's argument that Tavera or his lawyer should have exercised "due diligence" and discovered Mendoza's statements to the Government, the Sixth Circuit relied on the Court's holding in Banks and held that "Brady imposes an independent duty to act on the government..." and that an individual "does not lose the benefit of Brady when the lawyer fails to "detect" the favorable information".

If you or someone you care about has questions regarding federal white collar crimes, please contact attorney Michael C. Hennenberg to schedule a consultation.

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