DOJ-OGR-00022078.pdf

Case 1:19-cr-00830-AT Document 35 Filed 04/24/20 Page 16 of 34 dendants to examine records "material to the preparation of their defense against the Government's case in chief," it does not authorize discovery for defenses that do not rebut the "merits to the criminal charge itself." 517 U.S. 456, 462-63 (1996) (holding that Rule 16 does not authorize discovery relating to a selective prosecution claim). For that reason, because evidence that would be impermissibly used to encourage jury nullification does not relate to the merits of the criminal charges, it is not discoverable under Rule 16. Id.; see also United States v. Defreitas, No. 07 Cr. 543 (DLI), 2011 WL 317964, at *10 (E.D.N.Y. Jan. 31, 2011) (rejecting discovery request related to something that is "not a defense" and has "nothing to do with the issues of whether defendants . . . committed the . . . crimes charged"). Since jury nullification is "a practice whereby a juror votes in purposeful disregard of the evidence," United States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997), or "out of compassion or compromise," Standefer v. United States, 447 U.S. 10, 22 (1980) (internal citation omitted), it is not error for a court to preclude evidence that is "not a valid defense" aimed at nullification, United States v. Edwards, 101 F.3d 17, 19-20 (2d Cir. 1996). See also United States v. Reese, 933 F. Supp. 2d 579, 583-84 (S.D.N.Y. 2013) (precluding defense arguments or evidence related to "possible consequences for the defendant of conviction, jury nullification, and the Government's motive and conduct in prosecuting [defendant]"); United States v. Levin, No. 15 Cr. 101 (KBF), 2016 WL 299031, at *12 (S.D.N.Y. Jan. 25, 2016) (barring evidence "intended to elicit sympathy" and attempts to "use jury nullification as a defense" as "plainly improper"). Indeed, "trial courts have the duty to forestall or prevent jury nullification" even where the defendant or the court may "strongly disagree[] with the government's charging decisions and the attendant sentencing consequences." United States v. Manzano, 945 F.3d 616, 626-27 (2d Cir. 2019) (citations & quotation marks omitted). 11 DOJ-OGR-00022078