*1 On this day, the Court considered Defendant's Motion for Discovery Sanctions (“Motion”), ECF No. 45. For the following reasons, Defendant's Motion is DENIED.

I. BACKGROUND

Defendant was indicted on one count of Illegal Re-Entry in violation of 8 U.S.C. § 1326(a) on May 22, 2024. Sealed Indictment, ECF No. 13. The Court entered a Standing Discovery Order, ECF No. 16, on May 24, 2024, in which it ordered both parties to confer and provide discovery within “fourteen days from arraignment/waiver of arraignment.” Standing Discovery Order 1 (emphasis omitted). On May 30, 2024, Defendant filed a Waiver of Personal Appearance at Arraignment, ECF No. 19, which the Court accepted that same day. Order Accepting Waiver Personal Appearance Arraignment Entry Plea Not Guilty, ECF No. 20. On July 31, the Court set this case for trial for October 18, 2024.[1] July 31, 2024, Order, ECF No. 30. Defendant filed this Motion on October 14. The Court heard argument from both sides on the Motion during the October 16 pretrial conference, Oct. 16, 2024, Minute Entry, ECF No. 49, and the Government filed its Response, ECF No. 51, later that day.

Defendant states that the Government provided initial discovery including the criminal complaint, motion for continuance, and “record of deportable/inadmissible alien (Form I-213)” on May 23, 2024. Mot. 1. The Government did not provide anything further to Defendant until October 3, 2024. Id. at 2. Between October 3 and 7, the Government provided “additional discovery ... including various documents and/or recordings that had existed since the time of [Defendant's] arrest back in April 2024.” Id. And on October 8, the Government provided access to Defendant's Alien File (“A-File”). Id. at 2. At the pretrial conference, Defendant asserted that the Government was still in the process of disclosing items to him, including records of email correspondence between the Government and Bastrop County, Texas, law enforcement.[2] Oct. 16, 2024, Minute Entry.

The Government concedes that it did not “beg[in] preparing for trial [until] around mid-September 2024.” Resp. 1. It states that due to “complexities” occasioned by Defendant's application for a U-Visa, it was more difficult than usual to obtain his A-file from United States Citizenship and Immigration Services (“USCIS”). Id. at 3. The Government states that it began to “navigate those complexities ... on September 16, 2024,” and received the A-file on October 7, before making it available to Defendant on October 8. Id. at 3–4. The Government further states that it was not aware of San Elizario Deputy Marshal Miguel Ramirez's involvement in the arrest of Defendant until October 3. Id. at 4. The Government's attorneys met with Ramirez on October 7, and the body camera footage of the arrest was discovered that same day. Id. It was turned over to the Government's attorneys on October 8 and provided to Defendant the same day. Id. at 5.

II. DISCUSSION

A. Standard

*2 When a criminal defendant requests that the Government provide an item that is material to preparing their defense, the Government must make the item available for inspection and copying, so long as it is within the Government's possession, custody, or control. Fed. R. Crim. P. 16(a)(1)(E)(i). The Government's “possession, custody, or control” is not limited to the prosecutor's files. United States v. Scott, No. 17-181, 2021 WL 2210925, at *2 & n.8 (E.D. La. June 1, 2021) (collecting cases). Materials in the possession of another federal agency are often considered to be within the Government's possession for purposes of Federal Rule of Criminal Procedure 16 (“Rule 16”), particularly where that agency contributes significantly to the investigation or prosecution. Id.; see also United States v. Santiago, 46 F.3d 885, 893–94 (9th Cir. 1995) (“[A]gency involvement in the investigation [is] a sufficient, but not necessary, factor to show that the prosecution was in ‘possession’ of the agency's information.”); United States v. Graham, No. cr. 3-50020-2, 2008 WL 11450763, at *3 (D.S.D. June 20, 2008) (“Rule 16 ... imposes on the prosecutor a duty to seek out potentially exculpatory evidence known to others acting for the government, including ... other law enforcement officers.” (citing Kyles v. Whitley, 514 U.S. 419, 438, (1995)).

If a party fails to disclose evidence in compliance with Rule 16, the court may enter any order “that is just under the circumstances.” Fed. R. Crim. P. 16(d)(2)(D). Courts exercise broad discretion over the imposition of discovery sanctions, so long as they “carefully weigh several factors.” United States v. Swenson, 894 F.3d 677, 684 (5th Cir. 2018) (quoting United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000)). Those factors are “1) the reasons why disclosure was not made; 2) the amount of prejudice to the opposing party; 3) the feasibility of curing such prejudice with a continuance of the trial; and 4) any other relevant circumstances.” Id. (quoting Garrett, 238 F.3d at 298). When sanctions are levied, the Court “should impose the least severe sanction that will accomplish the desired result—prompt and full compliance with the court's discovery orders.” Id. (quoting Garrett, 238 F.3d at 298).

B. Analysis

Defendant argues that the Court should exercise its “ ‘broad discretion’ to impose sanctions for discovery violations” to dismiss his indictment due to the Government's failure to provide discovery as required by the Court's Standing Discovery Order. Mot. 3 (citing Garrett, 238 F.3d at 293). In the alternative, Defendant requests that the Court exclude the Government's untimely discovery. Id. at 5. Defendant argues that the Government's excuses for its failure to disclose the A-File and bodycam footage sooner are insufficient and that it cannot point to delays with other government agencies to justify the tardiness of its disclosure. Id. at 3. He states that he has experienced “significant prejudice” because the Government's delay has “denied defense counsel the access to information it needs to prepare for trial.” Id. at 4. Defendant argues that continuing the trial would violate his speedy trial rights and would thus not cure the prejudice caused by the Government's delay. Id. Defendant also argues that continuing the trial would unfairly prolong his time in pre-trial detention and asserts that he is already approaching the upper end of the sentencing guideline range that would apply here given the crime charged and his individual circumstances. Id. at 5. Finally, during the pre-trial conference Defendant further argued that the Government's delay has effectively placed him in the position of choosing between his rights to a speedy trial and his ability to mount a defense that vindicates his other constitutional rights. Oct. 16, 2024, Minute Entry. Specifically, Defendant argued that the body camera footage raises concerns that he may have been subject to a custodial interrogation without first having been advised of his Fifth Amendment rights as established by Miranda v. Arizona, 384 U.S. 436 (1966). Id.

*3 For its part, the Government argues that it did not act in bad faith but rather, worked diligently to obtain the discovery. Resp. 5. At the pretrial conference, the Government also argued that Defendant has not been prejudiced, though this argument is not developed in its briefing. See generally id. Finally, the Government argues that if there has been a discovery violation, any prejudice could be cured by a continuance of the trial date, such that other sanctions like exclusion or dismissal are unwarranted. Id. at 5.

The Government explains its untimely disclosure by pointing out that the U.S. Attorney's Office did not have custody of the A-File and body camera footage until October 8, the same day it turned these items over to Defendant. Id. at 4–5. For two reasons, the Government's explanation falls well short of excusing its dilatory conduct. First, by the Government's own admission, it did not begin to seriously prepare this case until mid-September. Id. at 3. This is despite the fact that the Government was ordered to provide discovery by mid-June. Standing Discovery Order 1. At the least, this behavior constitutes negligent disregard for the Court's instructions.

Second, the Government attempts to shirk responsibility by arguing that the items were not within its possession, while they were held by other agencies of state and federal government. But as this Court has previously instructed the U.S. Attorney's Office, materials in the possession of federal agencies that contribute to the investigation of the case are considered within the Government's possession under Rule 16. See United States v. de Leon, 627 F. Supp. 3d 682, 688 (W.D. Tex. 2022) (citing Scott, 2021 WL 2210925, at *2 & n.8). It was therefore incumbent upon the Government to diligently investigate whether other discoverable material existed, obtain that material, and disclose it to the Defendant within the deadlines ordered by the Court. See also Standing Discovery Order 1 (ordering the Government to produce materials “the existence of which is known, or by the exercise of diligence could become known to the Government”) (emphasis added). In sum, the Government's apparent negligent—or even reckless—abdication of its discovery obligations in this case is inexcusable.

Nevertheless, the state of the law in this Circuit is such that more is required in order to impose the sanctions Defendant requests. On the present record, there is no indication that the Government acted in bad faith with some “improper motive,” such as to purposely prevent Defendant from timely obtaining discovery. See Garrett, 238 F.3d at 299. Rather, the Government's failure to comply with its discovery obligations appears to be the result of policies under which cases are not seriously investigated until plea negotiations reach an impasse. A court's finding that “the government's tardy disclosure was not in bad faith militates against the imposition of a sanction so severe as to effectuate a dismissal of the charges.” Garrett, 238 F.3d at 299. Without a finding of bad faith, the Court is unable to impose the severe sanctions of dismissal or exclusion of evidence. See id. (“[S]uch a severe sanction as suppression of evidence would rarely be appropriate when the trial court finds the violation not to have been made in bad faith and where a less dramatic remedy, such as a continuance, would mitigate any prejudice.” (citing United States v. Marshall, 132 F.3d 63, 70 (D.C. Cir. 1998)); Swenson, 894 F.3d at 684–85 (overturning district court's dismissal of charges against defendant and stating that “[d]ismissal of an indictment with prejudice is a rare result ... even in the face of prosecutorial misconduct”). Accordingly, though the Government falls well short of justifying its conduct, the first factor weighs in its favor.

*4 Defendant argues that the Government's delay has impacted his ability to defend himself effectively, including his assertion of his constitutional rights. But Defendant does now have access to the discovery at issue and, critically, has had access to it since October 8—nearly two weeks prior to the eventual trial date of October 21. To warrant sanctions under Rule 16, the Fifth Circuit has held that the prejudice experienced by a defendant must be “prejudice to [their] substantial rights, that is, injury to their right to a fair trial.” Garrett, 238 F.3d at 299 (emphasis in original). This requires more than “putting trial preparation into minor disarray.” Id. (collecting cases). Thus, “the question of prejudice is whether the defendant had time to put the information to use, not whether some extra effort was required by defense counsel.” Id.

To the extent there is information in the A-file or other discovery that undermines an element of the Government's case or gives rise to a defense, Defendant has adequate time to review that discovery and prepare to use it at trial. And to the extent that Defendant wishes to pursue a suppression motion based on his review of the body camera footage and other discovery, he may do so, and the Court will take any such motion up at a hearing prior to the start of trial on October 21.

The Court is not unsympathetic to the impact of the Government's late disclosure of evidence on Defendant's counsel. But though challenging and inconvenient, this “disarray” does not rise to the level of prejudice under the Fifth Circuit's standards for imposing discovery sanctions. Garrett, 238 F.3d at 299. This factor thus also weighs in favor of the Government.

Because the Court finds there is no prejudice to Defendant resulting from the Government's delay, the third factor is inapplicable.

Defendant does not explicitly raise any other circumstances in his Motion. At the pretrial conference, however, he alluded to the need to deter the Government from its practice of failing to timely comply with its discovery obligations. “ ‘[D]eterring future misconduct’ is among the additional considerations that may be relevant to adjudicating a Rule 16 sanctions motion.” De Leon, 627 F. Supp. 3d at 701 (quoting United States v. Dvorin, 817 F.3d 438, 453 (5th Cir. 2016)). In the Court's experience, the Government's late disclosure of evidence in criminal cases is a problem that goes beyond this one case. Accordingly, this factor weighs in favor of Defendant.

In sum, only one of the four Garrett factors weighs in favor of Defendant here, and it is not enough to overcome the lack of bad faith and prejudice, as those terms have come to be understood in this context. Because a “court should impose the least severe sanction that will accomplish the desired result—prompt and full compliance with the court's discovery orders,” United States v. Sarcinelli, 667 F.2d 5, 7 (5th Cir. 1982), the Court is unable to impose the severe sanctions of dismissing Defendant's charges or excluding the Government's untimely discovery. See United States v. Welborn, 849 F.2d 980, 985 (5th Cir. 1988) (holding that the trial court erred by ordering dismissal with prejudice as a sanction given the “the public interest in having indictments prosecuted”); United States v. George, No. 17-cr-201, 2019 WL 11853328, at *2 (E.D. La. Oct. 31, 2019) (Douglas, J.) (deciding against the “draconian sanction of excluding all of the belatedly-produced evidence [because it] would undermine the search for the truth that is the ultimate objective of all criminal trials and this country's criminal justice system”).

Although the Court does not grant Defendant's Motion, it reiterates its concern with the Government's extreme delay in providing discovery. The Government engaged in “contumacious and dilatory conduct” that blatantly and materially disregarded the Court's orders. See George, 2019 WL 11853328 at *2. The Government has not provided anything approaching a satisfactory reason for its failure to provide discovery, and its delay has caused significant inconvenience for Defendant. The Court admonishes the Government that it will not look favorably on similar misconduct in future cases.

III. CONCLUSION

*5 For the foregoing reasons, Defendant's Motion, ECF No. 45, is DENIED.

IT IS FURTHER ORDERED that if Defendant wishes to file a motion to suppress or exclude evidence on other grounds—such as the alleged Miranda violation raised during the pretrial conference—it must do so by no later than 5:00 p.m. on October 18, 2024, to provide the Government and the Court with adequate time to review the motion and prepare for a hearing before trial on October 21.

SO ORDERED.