### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 3602
U NITED S TATES OF A MERICA , Plaintiff

- Appellee
,

v.
J OSHUA R. M ACKIN , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Indiana
, Fort Wayne Division. No. 1:13

- cr

- 00062

— Theresa L. Springmann
, Judge

.

____________________
A RGUED M AY 28, 2015

— D ECIDED J ULY 13, 2015

____________________

Before F LAUM , K ANNE , and S YKES , Circuit Judges

. K ANNE , Circuit Judge

. Appellant Joshua Mackin was charged with one count of being a felon in possession of a firearm . During discovery, the government disclosed an i ncomplete copy of the continuity slip used to trac k the fir earm’s chain of custody. Later, a t trial, the government pr oduced the correct and complete copy. Mackin moved for a mistrial, arguing that the government violated its Rule 16 obligation to turn over th e correct and complete document,2 No. 14

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as the docume nt was material to preparing his defense. The trial court denied his motion, and he now appeals that den ial. For the reasons discussed below, we vacate Mackin’s co nviction and remand the case for further proceedings

. I. B ACKGROUND On August 2, 2013, Fort Wayne police officers Treven Brown and Alexander Ramon went to the home of Appellant Joshua Mackin
, seeking to serve him with a valid arrest wa rrant. The officers apprehended Mackin in the alley outside his home. After placing Macki n in handcuffs, Officer Ramon searched Mackin’s person. From Mackin’s pants pocket, O fficer Ramon recovered a silver handgun that was loaded with five rounds

. Officer Brown confiscated the firearm, and he recorded its serial number on an incident report. O fficer Brown testified that the weapon was within his view or po ssession from the time Officer Ramon recov ered it until O fficer Brown secured it in an evidence locker.
At the time he secured it in the evidence locker, Officer Brown completed a “continuity slip” for the firearm. A co ntinuity slip is a document designed to track the movements of a piece of evidence while it remains in law enforcement’s custody. Officer Brown testified that, adhering to protocol, he filled out and signed the continuity slip at the time he placed the firearm in the evidence locker. He then placed t he continuity slip in the locker with the firearm.
One month after Mackin’s arrest, Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) S pecial Agent Craig Edwards examined a firearm bearing the same serial number as the number listed on the incident report prepared by O f-No. 14

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ficer Brown

. Agent Edwards determined that the weapon was functional and was manufactured in California. On August 28, 2 013, a grand jury returned a one

- count indictment against Mackin, charging him with being a f elon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In an accompanying allegation, the government sought the forfeiture of the firearm, identify ing it by the ser ial number “3224934.” The district court set Mackin’s trial for August 19, 2014. At some point prior to trial, the government turned over discovery materials requested by Mackin. Included in those materials was a document entitled “ F.W.P.D. Continuity Record, ” or the continuity slip discussed above

. The slip is a standard form that includes a variety of labeled boxes, or fields, in to which one enter s information about items of ev idence. Several fields are designed to track the moveme nt of a piece of evidence, including a series of signa ture boxes marked as “From : Signature, PE ” and “To : Signature, PE. ” The continuity slip produced to Mackin before trial co ntained a number of empty fields

. To be sure, i t included in typewritten form Mackin’s name, the date, time, and address of the “original investigation,” and a description of the fir earm allegedly obtained from Mackin. In the first “From” signature box, the word “copy” is handwritten , and i n the first “To” signature box, “Locker #26 ” is handwritten. But the remaining “From” and “To” boxes are blank , and n o si gnatures appear a nywhere on the continuity slip. It was i ncomplete. On August 5, 2014, the government filed a motion to co rrect what it called a “scrivener’s error” in the forfeiture all e-4 No. 14

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gation that had accompanied Mackin’s indictment

. The m otion to correct indicated that in the forfeiture document, the firearm’s serial number did not match the serial numbers listed in Officer Brown’s report, the ATF’s search record, or the serial number inscribed on the firearm itself. 1 T he district court granted the motion , and the government corrected the serial number as listed in the forfeiture allegation

. The go vernment did not correct or supplement the incomplete co ntinuity slip.

On Au gust 12, 2014, one week before trial, Mackin filed a proposed jury instruc tion involving a duress defense. The government responded with a motion in limine , requesting that Mackin be required to establish a prima facie case of d uress in order to present th at affirmative defense instruction to the jury. The district court denied Mackin’s proposed jury instruction and granted the government’s motion. That dec ision left Mackin with only one line of defense: the largely incomplete continuity slip.
At trial, the government called Officer Brown as its first witness. Officer Brown testified to the circumstances of Mackin’s arrest, including the recovery of the firearm. Du ring that testimony, t he government provided Officer Brown with his incident report and a copy of the continuity slip that had been disclosed to the defense. After re freshing his reco llection with those documents , Officer Brown testified that the serial number of the weapon he recovered from Mackin was 3224394. The government then showed Officer Bro wn a

1 The forfeiture document listed the serial number as 3224934. The fir earm’s actual serial number, and the number recorded on all other doc uments, was 3224394.No. 14

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firearm marked as “ Government Exhibit 1. ” Officer Brown
tes tified that the gun appeared to be the same one that he

recov ered from Mackin. A fter comparing the serial numbers, he testified that it was indeed the same firearm. The go vernment then moved to admit the firearm into evidence. Mackin objected to the firearm’s admission and was granted leave to voir dire Officer Brown regarding the e xhi bit. Officer Brown described the normal protocol for securing
a weapon , storing the evidence, and comple ting a continuity slip. He stated that, as the officer placing the weapon into storage, he c omplete d and sign ed the continuity slip that a ccompanied the weapon . The slip was then placed in the ev idence locker with the firearm. Any person who later a ccessed the weapon was then required to sign the form, so that, as Officer Brown explained, “we know who has that weapon and where it’s at at all times.”

Mackin asked Officer Brown to point out where his si gnature appeared on the continuity form that had been pr oduced to Mackin in discovery . Officer Brown acknowledged that his signature did not appear anywhere on the doc ument, but stated that “if [defense counsel had] the original, [ Officer Brown ] would be more than happy to show [cou nsel] on that.” Defense counsel , however, had only the i ncomplete copy provided during discovery. The court then asked the government if the original form was available, to which the government responded that it would check its files. Following that voir dire
, Mackin again objec ted to the admission of the fire arm. He argued that the government could not lay the proper foundation for its admission into evidence because there were no signatures or other notations6 No. 14

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on the form to document the weapon’s handling while in law enforcemen t’s possession . Without that, he argued, the go vernment could not establish the gun’s chain of custody . He stated that “apparently there is an entirely separate doc ument that’s been prepared by Officer Brown that Mr. Mackin has not been provided as part of his defense.”

The court then held a bench conference with counsel ou tside the hear ing of the jury. D uring the conference
, the case agent seated with the government produced a continuity slip that differed from the one Mackin had

. This new form contained a number of signatures in the “To” and “From” fields, continuing onto a second page, as well as an indic ation that the firearm was at one point located in the “ ATF vault. ” The government conceded that this new form had additional information that was not p resent on the previou sly disclosed form

. The government also conceded that it had not previously disclosed this completed form to Mackin

. Mackin objected to the introduction of the new continu ity form and then moved for a mistrial. He stated that the i ssue of continuity

— and the related chain of custody

— was “ in large part” his defense . Mackin argued that he was prej udiced by the government’ s non disclosure in a manner from which he could not recover. A ccording to Mackin ’s counsel
, had the defense been give n the correct continuity slip, “we may not even be here today, because Mr. Mackin may have very well pled.”

The court denied Mackin’s mistrial motion and allowed both continuity slips to be presented to the jury. It also a llowed Mackin to cross

- examine th e relevant witnesses r egarding the two different continuity slips. The firearm was ultimately admitted into evidence, and the jury foundNo. 14

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Mackin guilty of one count of being a felon in possession of a firearm.

II. A NALYSIS On appeal, Mackin argues that the government violated Federal Rule of Criminal Procedure 16 by failing to disclose the correct continuity slip. Mackin argues that he was prej udiced by that violation, and that the district court abused its discretion in denying his motion for a mistrial. F or the re asons discussed below, we conclude that the g ov ernment did violate Rule 16 and that mistrial was the appropriate remedy to cure that violation.

A. Rule 16 Violation Rule 16 governs the discovery and inspection of evidence in criminal matters. It provides in relevant part that: Upon a defendant’s request, the government must permit the defendant to inspect and to copy or phot ograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or po rtions of any of th ese items, if the item is within the government’s possession, custody, or control and: (i ) the item is material to preparing the defense; (ii) the government intends to use the item in its case

in

- chief at trial; or (iii) the item was obtained from or belo ngs to the d efendant. Fed. R. Crim. P. 16(a)(1)(E). The rule also imposes a co ntinuing duty of disclosure , should a party uncover add itional discoverable material prior to or during trial. Fed. R. Crim. P. 16(c).8 No. 14

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Mackin argues that an accurate copy of the continuity slip was material to preparing his defense, and therefore the government violated Rule 16 (a)(1)(E)(i) by failing to disclose it before trial. The government responds that it did not commit a violation of Rule 16, because it “had no reason to suspect that Mackin would contest chain of custody or that continuity slips would be material to Mackin’s defense.” We agree with Mackin that a Rule 16 violation occurred in this

case. It is unclear whether the government concedes th at it erred in disclosing the unsigned, nearly blank continuity slip . Its comments to the district court seem to suggest that it did err either in disclosing the wrong version of the form, or in failing to supplement its discovery. See, for example, the f ollowing exchange between defense counsel and the go vernment during the court’s sidebar discussion : [Defense counsel] : So we get this document

... now in the middle of trial, they’re saying “oh, no, no, no, there’s a continuity report, don’t worry about it. This is the same gun.” We didn’t know that until about 2 minutes ago.
[Prosecutor] : Well, Your Honor, the Government pr ovided...
[Defense counsel] : That’s a totally different doc ument.
[Prosecutor] : The government provided the continu ity form we had.

The Cou rt: But never updated or supplemented with the one you have in hand.No. 14

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[Prosecutor] : I’m sorry, I do have that now. The government has not explained why it did not produce the complete continuity slip before trial, but it argues on a ppeal that it had no obligation to do so in any event. The go vernment contends that Rule 16 did not require it to produce any continuity slip

— complete or incomplete

— in the first place because there was no reason to suspect that the slip would be material to Mackin’s defense.

F irst, we note that t he government never argued at trial that the continuity slip was beyond the reach of discovery under Rule 16; on the contrary, it produced the incomplete slip during discovery and then affirmatively sought to intr oduce the correct form at trial

— either as helpful for its case

in

- chief or to rebut Mackin’s defense. In addition, we que stion the government’s conclusory statement that it had no reason to believe the gun’s chain of custody would be mat erial to the defense

. But, putting those issues to the side, the government misses the critical issue. Mackin does not argue that he had an absolute right to disclosure of the continuity slip , or that continuity slip s are mandatory discovery material in the mine

- run of cases. Instead, he argues t hat in this particular

case, once the government chose to disclose the incomplete continuity slip
, he was entitled to the complete and correct one

. We agree , and we hold as much today

. Mackin received a continuity slip that was devoid of the signatures tha t he knew were required. The government’s own witness testified to the importance of the continuity slip in safeg uarding the firearm as it remained in law enforc ement custody

. Indeed, as far as we can tell, that is the entire10 No. 14

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purpose of a continuity slip . The signatures, as well as the descriptions of the firearm’s locations, were the only way to track the firearm’s movements. Mackin was justified in b elieving that the continuity slip would be used for its obvious
purpose

— the purpose verified by law enfor cement officials at trial. The slip he was given was clearly deficient , and it reasonably led him to suspect that the government had not followed the proper chain

- of

- custody procedures in his case

. This , in turn, led him to think he had a plausible defens e based on the incomplete continuity slip. Indeed, after the district court denied his motion to introduce the duress d efense, the continuity slip was Mackin’s only line of defense against nearly certain conviction. As it turned out, however, this defense was not plausible : there was another, complete form that fully tracked the firearm’s chain of custody . The problem is, he did not know that until the government pr oduced the new form at trial

. We acknowledge the possibility that continuity slips may not al ways be discoverable. But once the government chose to disclose the incomplete slip, the defense was entitled to rely on that disclosure as being an accurate representation of the evidence the government had in its possession. See Uni ted States v. Lee , 573 F.3d 155 , 161 (3d Cir. 2009) (stating that “Rule 16’s discovery requirements made it reasonable for d efense counsel to rely on the Government to provide, in the first instance, an accurate copy of the evidence offered at tr ial.”)

. The defense was also ent itled to assume that the go vernment would supplement its discovery if necessary, as r equired by Rule 16(c). As Mackin’s counsel expressed at oral argument, Mackin would have been better off in this case had the governmentNo. 14

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not disclosed a continuity slip at all. The government’s own

error led Mackin to believe he had a viable defense. In the circumstances of this case, the burden of that error should fall on the government.
Further, e ven assuming the government initially had no reason to predict a chain

- o f

- custody defense, it certainly had a reason to predict it after disclosing the incomplete conti n uity slip. 18 U.S.C. § 922(g)(1) makes it unlawful for any pe rson “who has been convicted in any court of a crime punis hable by imprisonment for a term exceedi ng one year ... to possess in or affecting commerce , any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce .” 18 U.S.C. § 922(g)(1) (emphasis added). Because Mackin had stip ulated to the prior felony convi ction
, only his pos session of the firearm and its nexus to i nter state commerce remained as triable issue s

. Proof of the firearm’s chain of custody went directly to t he weight the j ury could assign the firearm evidence

— includ ing the ATF’s assessment of its link to interstate commerce. This is in add ition to the fact that the government had already discovered a “scrivener’s error” involving the serial number of the fir earm

— another mistake that tends to cast doubt on the go vernm ent’s handling of the evidence. The government was sufficiently on notice after its incomplete disclosure to have anticipated the chain

- of

- custody defense , and at that point, it should have supplemented its disclosure under Rule 16(c) by producing the comp lete continuity slip

.12 No. 14

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B. Mistrial M otion and P rejudice

We review the denial of a Rule 16(d)(2) motion for an abuse of discretion. United States v. De La Rosa , 196 F.3d 712, 715 (7th Cir. 1999). In addition, we will not disturb a ruling on a Rule 16 sanctions motion absent a showing of prejudice. Id. at 715

- 16. It is firmly established that a defendant is prejudiced u nder Rule 16 when he is “unduly surprised a nd lacks an ad equate opportunity to prepare a defense.” Id. at 716. Mackin argues that he was denied an adequate opportunity to pr epare a defense because he formed his trial strategy relying on the incomplete evidence that had been provided by the
governme nt

. The government argues that Mackin did not suffer any prejudice. We agree with Mackin that he suffered prejudice under the particular facts of t his case

— specifically relating to the interstate movement of the firearm

. As previously described, Mackin stipulated to the fact that he had been convicted of a qualifying felony. So the government, in order to secure a conviction, had to prove two elements: (1) that Mackin possessed a firearm; and (2) that the firearm had been possessed in or affecting co mme rce, or that the firearm had been shipped or transported in interstate or foreign commerce.

T he government’s evidence regarding his possession of a firearm was strong. So it appears to us that the government’s primary burden at trial was to prove the fire arm’s link to i nterstate commerce. (That nexus is, after all, what makes this a federal offense.) The government would seek to prove that element, as is the case in most felon

- in

- possession cases, through the ATF’s analysis of the weapon’s manufacture andNo. 14

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sale. Mackin, for his part, then had to undermine the gun’s link to interstate commerce. He sought to do so by casting doubt on law enforcement’s handling of the evidence, and in particular, its storage and handling by the Fort Wayne Police Department and the ATF. By pointing out gaps in the wea pon’s chain of custody, Mackin could alter the weight a ssigned to the firearm evidence. See United States v. Tatum, 548 F.3d 584, 587 (7th Cir. 2008). That includes the weight a ssigned to the firearm exhibit itself, if admitted into evidence, as well as potential challenges to the ATF’s analysis of the firearm. Mackin argues that had the government disclosed the correct continuity form, he would have known that his d efense strategy was im plausible . Had the government di sclosed the completed form , he con tends, he would have known that the weapon’s chain of custody had been correc tly documented, and he would ha ve had no basis upon which to raise a chain

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- custody defense. Because the gover nment’s own error raised the very possibility of the defense he attempted to assert at trial, Mackin argues, the Rule 16 viol ation “unduly surprised” him and deprived him of t he “o pportunity to prepare a defense.” Id.

We find instructive the case of United States v. Lee. 573 F.3d 155. The appellant there was charged with possessing a quantity of crack cocaine that had been found in a hotel

room on January 7, 2005

. Id. at 158

- 5 9. During discovery, t he government disclosed to Lee a photo copy of the front side of the hotel room’s registration card

. Id. at 159. The photoco pied portion indicated that an individual named “Omar Ma rtin
, ” who shared Lee’s home address, checked in on Janu ary 3 for a one

- night stay. Id. at 158.14 No. 14

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Le e argued at trial , based on the registration card, that “Martin” ( presumably Lee) had checked out of the hotel

room days before the drugs were found

. Id. at 159. Ther efore
, Martin/Lee could not b e proven to have possessed the drugs

. When the case went to the jury, the jurors were pr ovided with the trial exhibits for their deliberations

. Id. at 160. These exhibits included the original registration card. Id. Several hours after beginning to delibe rate , the jury asked the court , “What is the information on the back of the registration card in pencil?” Id. Until that time, neither the prosecution nor the defense was aware that the back of the registration card contained additional notations. Id. The back of the card contained dates ( written by an unidentified pe rson ) indicating that “ Martin ” had extended his stay at the hotel through January 7

— the day that the drugs were found. Id. at 158.
Lee moved for a mistrial, since the prosecution had failed to disclose the information on the back of the card prior to trial. Id. at 160. The judge denied the motion, instead i nstructing the jury to ignore the notations on the back of the card. Id. Lee was ultimate ly convicted. On app eal, the Third Circuit held that Lee had been pre judiced by the government’s nondisclosure and that mistrial was the appropriate remedy. Id. at 164

- 65. To begin, the court noted that the information contained on the back of the card would “entirely defeat Lee’s defense argument.” Id. at 161. The court concluded that Lee “was deprived of any oppo rtunity to prepare meaningfully for trial [or] to design an i ntelligent trial strategy.” Id. at 165

. The court held that :No. 14

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[a]bsent the discovery violation, Lee woul d have lik ely crafted a different trial strategy that might have proven more effective in light of the information on the back of the registration card. Finally, Lee might have chosen to enter into plea negotiations with the Government if he had accurate i nformation about the strength of its case.

Id.

So it is with Mackin’s case. The incomplete continuity form led Mackin to believe that he had a viable chain

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custody defense. Had the government disclosed the correct form, Mackin would have known that he was wrong

. I nstead, he proceeded to trial believing that he could show that the proper evidence

- handling procedures had not been fo llowed, because that is what the evidence disclosed by the government itself suggested

. He developed his trial strategy base d on the information provided by the government

— information that proved, mid

- trial, to be at best incomplete. The government argues that Mackin was not prejudiced by this belated disclosure because he could have changed his strategy mid

- trial. According t o the government, Mackin’s opening statements “did not reference continuity or chain of custody and did not commit him to any particular line of d efense.” But, as Mackin argue s ( without any rebuttal from the government ), this was his only possible line of defense

— however weak it may have been

. This is especially true b ecause the court had already denied his only other defense strategy : his proposed jury instruction regarding duress

. Mackin did his best to “plow through
, ” as the trial court told him to do
, after the disclosure . He cross

- examin ed the16 No. 14

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witnesses concerning the two versions of the continuity slip. B ut “plowing through” was not enough to cure the damage caused by the government’s nondisclosure

. Mackin ’s whole strategy going into trial was based on the absence of a co mplete and correct continuity form

. Once the government b elatedly produced a complete form, no amount of cross

examination could have helped Mackin

. See United States v. Noe , 821 F.2d 604 , 607 (11th Cir. 1987) (holding that the go vern ment’s failure to turn over discoverable evidence “is so serious a detriment to the preparation for trial and the d efense of serious criminal charges that where it is apparent, as here, that the defense strategy may have been determined by the failure to d isclose, there should be a new trial. ” (quoting United States v. Rodriguez
, 799 F.2d 649, 651 (11th Cir. 1986) (per curiam) ) )

. F inally, Mackin’s counsel made clear on th e record at trial that the Rule 16 violation also impacted his ability to intell igentl y consider his plea options. His counsel immediately stated, upon the government’s introduction of the correct form : The problem with them giving this to us now is our defense in large part is based upon the fact that there are problems with the continuity of this weapon. Now, if we had that report, with signatures on it, we certainly would have changed our approach to t his. In fact, we may not even be here today, because Mr. Mackin may very well have pled. Adequate preparation of a defense include s the ability to intelligently weigh one’s plea options. The denial of that o pportunity here constituted prejudice. See Unite d States v. M uniz

- Jaquez , 718 F.3d 1180 (9th Cir. 2013) (“A defendant whoNo. 14

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knows that the government has evidence that renders his planned defense useless can alter his trial strategy. Or he can seek a plea agreement instead of going to trial.”); Lee , 573 F .3d at 165 (“Lee might have chosen to enter into plea neg otiations with the Government if he had accurate information about the strength of its case.”); U nited States v. Alvarez , 987 F.2d 77 , 85 (1st Cir. 1993) (finding prejudice where defendant was “depri ved of opportunity to design an intelligent

... plea strategy”); United States v. Pascual, 60 6 F.2d 561, 565 (5th Cir. 1979) (“It would be hard to make an argument with any degree of plausibility that the use of this [evidence] without prior production did n ot seriously prejudice the defendants in exercising their option to plead not guilty.”) ; s ee also Lafler v. Cooper , 132 S.Ct. 1376, 1381 (2012) (stating that “criminal justice today is for the most part a system of pleas, not a sy stem of trials”)

. The gov ernment counters by arguing that if the belated ly disclosed continuity form “had dramatically shifted the ev idence, Mackin was perfectly free to change his plea to guilty in the middle of trial.” This argument ignores, of course, that Mackin had by then al most certainly lost any benefit of a guilty plea . Prior to trial, even if the government had chosen not to offer Mackin a favorable plea agreement, he still could have received the benefit of a two

- point offense

- level redu ction for acceptance of responsibility

. See U.S.S.G. § 3E1.1. That likely would have resulted in at least a fifteen

- month reduction in his sentence. After trial began, however, the benefit of that g uidelines section was likely lost to Mackin: the r eduction typically does not appl y to someone who “puts the government to its burden of proof at trial.” U.S.S.G. § 3E1.1, cmt. 2.1 8 No. 14

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III. C ONCLUSION For the reasons discussed above, w e find that the district court abused its discretion in denying Mackin’s motion for a mistrial, and that Ma ckin was prejudiced by that denial. A ccordingly, Mackin’s conviction is VACATED and we REMAND this case for further proceedings consistent with this opinion.