__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA 	     §
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MOTION FOR SANCTIONS AND BRIEF IN SUPPORT THEREOF

TO THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:

	COMES NOW ///, Defendant in the above styled and numbered cause, pursuant to Rules 16(d)(2) and 48(b) of the Federal Rules of Criminal Procedure and moves the court to dismiss this case, or in the alternative, to levy sanctions against the Government and in support thereof would show the court as follows:
I.
MOTION
	COMES NOW ___________, Defendant and moves the Court to dismiss the case against _______________, defendant, and in the alternative, moves the Court to preclude the Government from offering into evidence any of the tangible objects not previously produced by the Government as ordered by the Court and/or those documents which have not been tendered to defense counsel as marked exhibits) except those audio tapes and video tapes which have been previously provided to defense counsel).”
II.
BRIEF
	Rule 16(d)(2), F.R.Cr.P., provides that if the Government fails to comply with a discovery order under Rule 16 that the court “may enter such other order as it deems just under the circumstances.”  Rule 48(b) provides that if there is an unnecessary delay in bringing a Defendant to trial the court may dismiss the indictment.  Rule 48(b) is a restatement of the district courts’ inherent power to dismiss a case for want of prosecution.  That power is not circumscribed by the Constitution, statute or rule, but is a discretionary power with review in the court of appeals limited to whether or not there has been an abuse of discretion.  United States v. Lange, 561 F.2d 1075 (2nd Cir. 1977).  United States v. Simmons, 536 F.2d 827 (9th Cir. 1976), cert. den. 97 S.Ct. 148.  Regardless of a Defendant’s guilt or innocence, courts are permitted to exercise the power of dismissal against the wishes of the prosecutor when there is a failure to prosecute that is unjustified either because of literal application of a statute or because of a showing of prejudice to the accused or intentional delay by the prosecution to affect such prejudice. United States v. Lai Ming Tanu, 589 F.2d 82 (2nd Cir. 1978).  A case may be dismissed due to the failure of the Government to comply with discovery orders.  In United States v. Armco Steel Corporation, 252 F.2d 364 (S.D.Cal. 1966), the district court found that the failure of the Government to comply with orders for production of bills of particular constituted an unnecessary delay authorizing dismissal under Rule 48(b).  The dismissal of that indictment had the same effect as a judgment of acquittal for double jeopardy purposes.
	In the case at bar the court entered a pre-trial order which stated that the Government's case would be dismissed for failure to comply with the terms of the order regarding pre-trial material, thus warning the prosecution of the consequences of failure to comply with the court's order.  The defense has made four requests of the Government to produce marked copies of the exhibits but the Government has not complied.  The defense has also made a discovery request pursuant to Rule 16 and the court entered a discovery order requiring the Government to provide discovery to each Defendant in accordance with Rule 16(a).  Included within Rule 16(a)(1)(C) are photographs, books, papers, documents and tangible objects which are intended for use by the Government as evidence in chief at the trial.
	Once a district court has ordered the Government to disclose information or other material, the Government is bound to obey the Court's order and its subsequent refusal to obey a disclosure order frustrates the important federal policy favoring broad disclosure in criminal cases.  United States v. Opager, 589 F.2d 799 (5th Cir. 1979).  One of the sanctions found to be appropriate for the Government's failure to provide discovery that has been ordered is to prohibit the Government from attempting to use the non-disclosed evidence in trial.  United States v. Rodriguez, 765 F.2d 1546 (5th Cir. 1985); United States v. Woosley, 761 F.2d 445 (8th Cir. 1985); United States v. Harley, 678 F.2d 961 (llth Cir. 1982) cert. den. 103 S.Ct. 815.  It is within a courts discretion to preclude the admission of evidence not disclosed pursuant to a discovery order even if the non-disclosure is not prejudicial. United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979).
	WHEREFORE, based on the foregoing authorities and the court's prior written order the defense moves the court to dismiss the case against ///, and in the alternative, moves the court to preclude the Government from offering into evidence any of the tangible objects not previously produced by the Government as ordered by the court and/or those documents which have not been tendered to defense counsel as marked exhibits (except those audio tapes and video tapes which have been previously provided to defense counsel).
							Respectfully Submitted,

							___________________________________
							Name
							State Bar No. 
							Address
							City, State, Zip
							Telephone
							Attorney for Defendant

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Motion For Sanctions And Brief In Support Thereof was hand delivered to ///, Assistant United States Attorney, /// Street, ///, Texas, ///, on the /// day of 20///.

							__________________________________
							Attorney for Defendant

__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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ORDER

	Came on to be considered Defendant ’s Motion For Sanctions.  Upon consideration of the motion, authorities and argument of counsel, the Court finds that the government has violated the Court’s pre-trial order and the Defendant’s motion is hereby GRANTED.
	It is therefore ORDERED that ________________________________
	It is so ORDERED.
	SIGNED on ____________________, 20_____.

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							UNITED STATES DISTRICT JUDGE