Mistrial Warranted Where Jury Receives Inculpatory Document Never Provided to Defense Counsel.

United States v. Jelani Lee, Nos. 07-0406, 07-4643 (July 17, 2009). Jelani Lee was charged with possession with intent to distribute crack cocaine. Police stopped the car he was driving and found cocaine in a passenger’s "undergarments." The passenger said that the drugs belonged to Lee. The passenger also said – and her cell phone records established – that an associate of Lee had called her earlier in the day from a local motel. Lee had keys from that motel in his pocket. After officers interviewed hotel staff, the searched the room and found additional crack cocaine along with cash, a scale, and baggies. A registration card showed the room as registered to an "Omar Martin" at the same address in Lancaster that Lee had given to police as his own local address.

The front of the registration card – the only part provided in discovery – showed that "Martin" had rented the room for one night on January 3, 2005. The stop and subsequent search took place on January 7, 2005. Lee’s defense at trial was that the registration card showed that Martin/Lee had checked out days before the drugs were found. The hotel staff-person repeatedly testified that the card showed that Martin had checked out in well in advance of the search.

During deliberations, through a jury question, it became clear that the original registration card that had been received in evidence was two-sided, and that the flip side indicated that Martin had extended his stay through January 7th – the day of the search. Lee moved for a mistrial. The court denied the motion and gave a limiting instruction that told the jury that only the front part of the card was in evidence and the back should be disregarded. The Third Circuit reversed, finding that the failure to disclose the reverse side of the card interfered with Lee’s substantial rights and undermined confidence in the verdict. The district court therefore abused its discretion in failing to grant a mistrial.

The Court rejected the government’s argument that it had met its discovery obligation by giving counsel "access" to the exhibit. "Although it may be sound practice," the Court said, "defense counsel is not required to inspect every exhibit at trial to ensure that documents that appear to conform to the copies provided by the government are in fact identical." The Court also rejected the government’s argument that the jury should be presumed to have followed the limiting instruction. "[W]e will not blindly assume that a jury is able to follow a district court’s instruction to ignore the elephant in the deliberation room." Here, the case against Lee was otherwise relatively weak, the registration card was a critical piece of evidence, and the jury "was primed to see the information on the back of the registration card."

The Court limited the reach of its ruling, however. It held only that "[u]nder these highly unusual circumstances . . . it was clear error for the District Court to assume – at least without some inquiry – that the jury would be able to follow the Court’s instruction." It also noted that "undisclosed evidence that upsets a defendant’s trial strategy may be admissible if the defendant has some opportunity to adjust his trial strategy and respond to the new evidence."

The Court also addressed several evidentiary issues that would likely be at issue again at the new trial, ruling that (1) Lee had no expectation of privacy in Boyer’s person; (2) the affidavit supporting the search warrant established probable cause; (3) and Lee’s prior drug trafficking conviction was properly admitted as evidence that Lee intended to distribute any drugs in his possession.