1Although the Federal Rules only require disclosure of such

material “[a]t the defendant’s request,” Fed. R. Crim. P.

16(a)(1)(G), the Local Rules make disclosure mandatory on a date

certain. See LCrR 16.1(a)(1) (providing that the government

“shall disclose” the “information described in Fed. R. Crim. P.

16(a)(1) within fourteen (14) days after the arraignment unless

the parties agree on a different date” or the defendant “declines

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. No. 05-cr-251-01-JD

Opinion No. 2006 DNH 142

Charles Murphy

O R D E R

On the eve of trial, defendant Charles Murphy moved to

exclude government witnesses, exhibits, and evidence (document

nos. 43, 44, and 45). He contended that the government violated

the Local Criminal Rules by filing its witness list on December

11, 2006, a day before jury selection, and by not filing any

exhibit list. See LCrR 16.1(f), (g) (requiring the parties to

exchange exhibit lists and witness lists at least seven days

before trial). The defendant also contended that the government

had not complied with the disclosure requirements pertaining to

expert witnesses. See Fed. R. Crim. P. 16(a)(1)(G) (providing

that the government must give the defendant a written summary of

any expert testimony it intends to introduce).1 Finally, the

Case 1:05-cr-00251-JD Document 55 Filed 12/14/06 Page 1 of 9
to receive that information”). Moreover, the defendant made a

specific request, by letter dated April 10, 2006, for information

concerning expert witnesses. 

2

defendant asserted that the government had failed to make timely

disclosures of potential exculpatory and impeachment evidence and

of a statement by the defendant in its possession. See LCrR

16.1(c) (requiring disclosure of exculpatory and impeachment

material at least twenty days before trial); Fed. R. Crim. P.

16(a)(1)(B) (requiring the government to disclose any statements

made by the defendant in the government’s possession). The

government objected to each of the defendant’s motions.

The court held a hearing on the defendant’s motions on

December 12, 2006, the day originally scheduled for jury

selection. After hearing argument from both parties, the court

orally denied the defendant’s motions, but ordered that the trial

be rescheduled for January 2007. With this order, the court

further clarifies its ruling. 

When a party fails to comply with the discovery provisions

of Rule 16 of the Federal Rules of Criminal Procedure, “the

district court may impose remedial measures or sanctions

including prohibiting the violating party from introducing the

evidence at trial.” United States v. Tajeddini, 996 F.2d 1278,

1287 (1st Cir. 1993) (citing Fed. R. Crim. P. 16(d)(2)). “In

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3

exercising its discretion to control discovery rule violations,

the district court must inquire into the surrounding

circumstances to determine whether the violating party acted in

bad faith.” Id.

At the December 12 hearing, the court was presented with

conflicting accounts of how the parties arrived at the present

state of affairs. The government conceded that it had violated

the disclosure rules. The government argued, however, that it

was involved in extensive and ongoing plea negotiations with the

defendant over the past several months that have included

multiple proffers by the defendant. The government was under the

impression that the defendant was actively negotiating a plea

agreement and anticipated that if the precise dimensions of that

agreement could not be finalized before the December 12 trial

date, the parties would agree to a continuance. According to the

government, it was not aware of the defendant’s intention to go

to trial on December 12 until December 5 when defense counsel

left a voice message on Assistant United States Attorney Alfred

Rubega’s phone stating that going to trial was one option, and

then detailing other possible terms for a negotiated plea. The

government contended that soon after receiving that message, it

set about providing the defendant with the required information.

 

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2Harrington, who was appointed to represent the defendant on

October 3, 2006, is the fourth attorney to represent the

defendant in this matter.

4

The defendant’s attorney, Timothy Harrington,

“categorically” denied the government’s representation of ongoing

plea negotiations, stating flatly that it was “[a]bsolutely not

true.” But after direct questioning by the court, Harrington

backpedaled, acknowledging that there may have been plea

discussions with the defendant’s previous attorneys2 and that he

had personally engaged in some conversations with Attorney Rubega

concerning a potential plea deal. Harrington acknowledged that

on November 15, 2006, he received a letter from Rubega inquiring

into a possible plea deal and that he wrote a letter in response

outlining terms that would be agreeable to his client. He also

admitted that he had a conversation with Rubega on November 30 in

which Rubega communicated an offer by the government. Finally,

he confirmed that he left a voice message for Rubega on December

5 rejecting the government’s plea offer, restating the terms that

would be acceptable to his client, and noting that the other

option was to proceed to trial.

After the hearing, the court issued a procedural order

requiring the government to produce a copy of Harrington’s

December 5 voice message. That recording has been marked as

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5

Court Exhibit A and the court has listened to the message. 

Attorney Harrington’s characterization of the lead-up to the

December 12 trial date differs from what the court has concluded

after listening to the message. The tone of the message is one

of continuing negotiation. Although Harrington states in the

message that “obviously, we can go to trial; that’s always an

option,” he asks Rubega to consider his proposed plea terms and

notes that the difference between his proposal and the

government’s is “not that significant.” Thus, the court does not

doubt the government’s good faith explanation for the

untimeliness of its disclosures.

Nevertheless, the fact that the government and the defendant

were engaged in ongoing plea negotiations does not excuse the

government’s noncompliance with the discovery rules. The

mandatory discovery provisions of Rule 16 were not designed

merely to inform trial preparation. Rather, they were intended

to more broadly promote the “fair and efficient administration of

criminal justice by providing the defendant with sufficient

information upon which to base an intelligent plea; by minimizing

the undesirable effect of surprise at trial; and by contributing

to the accuracy of the fact finding process.” United States v.

Alvarez, 987 F.2d 77, 85 (1st Cir. 1993) (citing Fed. R. Crim. P.

16 advisory committee’s note). The government may not ignore

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6

these provisions even when it believes, in good faith, that a

case will be resolved before trial. Rather than ignoring the

deadlines in the rules, the government must comply with them or

must obtain a waiver or an agreement with defense counsel, or

obtain approval by the court where appropriate.

As the court noted at the December 12 hearing, the

preclusion of evidence is a disfavored sanction for discovery

violations, particularly where, as here, any prejudice to the

defendant can be avoided by a continuance. See Charles Alan

Wright, Federal Practice and Procedure § 260 (3d ed. 2000)

(“[T]he court should take into account the reasons why disclosure

was not made, the extent of the prejudice, if any, to the

[defendant], [and] the feasibility of rectifying that prejudice

by a continuance.”); cf. Tajeddini, 996 F.2d at 1288 (holding

that the district court did not abuse its discretion in admitting

statements made by the defendant that were not disclosed until

three days before trial because the defendant would not have

succeeded in suppressing the statements and there was no evidence

that the government acted in bad faith). To grant the

defendant’s motions to exclude witnesses, exhibits, and evidence

would be tantamount to dismissing the case in its entirety. Such

a draconian sanction would be “grossly disproportionate both to

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7

the prosecution’s nonfeasance and any prejudice to the defense.” 

United States v. Josleyn, 99 F.3d 1182, 1196 (1st Cir. 1996)

(finding the district court did not abuse its discretion in

refusing to dismiss the indictment).

In delayed disclosure cases, the First Circuit has

repeatedly stated that the “criminal defendant must ordinarily

seek a continuance if he intends to claim prejudice.” United

States v. Beras, 183 F.3d 22, 27 (1st Cir. 1999) (quoting United

States v. Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993)). When

defense counsel does not seek a continuance in such a situation,

“a court often can assume that counsel did not need more time to

incorporate the information into the defenses’s game plan.” Id.

At the December 12 hearing, Harrington noted for the record that

his client wished to proceed to trial as scheduled, but

reluctantly acknowledged that he needed more time to prepare for

trial. Additionally, in the motion to exclude exhibits (document

no. 44), Harrington states that as a result of the government’s

failure to file an exhibit list, “the defense has not been able

to prepare for trial.” Thus, the court interpreted Harrington’s

concessions as a request for a continuance. Although the court

is sympathetic to the defendant’s desire to proceed to trial

expeditiously, given the potential consequences the defendant

faces if convicted and the constitutional imperative that he have

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3It is also worth emphasizing that defense counsel shares in

the blame for the present turn of events. Harrington was aware

of the disclosure issues days before he filed the motions on

December 11. As a result of Harrington’s eleventh hour motion

strategy, sixty New Hampshire citizens were forced to rearrange

their lives in order to make themselves available for jury

selection on December 12. While the court attempted to alert the

jurors that there would be no jury selection on December 12,

several jurors did not receive the message in time and dutifully

traveled to Concord only to be turned away. Harrington’s

approach here gives the appearance of ill considered gamesmanship

and has succeeded only in inconveniencing the jurors and the

court.

8

 effective representation, a short continuance is the best

available remedy under the circumstances of this case.3

Conclusion

For the foregoing reasons, and consistent with the court’s

oral order of December 12, 2006, and the procedural order of

December 13, 2006 (document no. 53), the court denies the

defendant’s motions to exclude witnesses, exhibits, and evidence

(document nos. 43, 44, and 45), and allows defense counsel a

continuance in order to prepare for trial.

The government shall henceforth comply with all of the

discovery obligations set forth in the Local Rules and the

Federal Rules of Criminal Procedure. In particular, the

government shall, no later than December 27, 2006, comply fully

with Local Rule 16.1(a)(1), which directs that the disclosure of

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the “information described in Fed. R. Crim. P. 16(a)(1)” should

ordinarily be accomplished within two weeks of the arraignment. 

Though it should go without saying, the parties shall also be

mindful of the due diligence and duty to supplement provision of

the Local Rules. See LCrR 16.2.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 14, 2006

cc: Stephen A. Cherry, Esquire

Timothy M. Harrington, Esquire

Alfred J.T. Rubega, Esquire 

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