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Date: 09-28-2021

Case Style:

United States of America v. Rebecca Stampe

Case Number: 19-6293

Judge: John Baylor Nalbandian


Plaintiff's Attorney: Jay Woods, UNITED STATES ATTORNEY’S

Defendant's Attorney:

Cincinnati, Ohio - Criminal defense Lawyer Directory


Cincinnati, Ohio - Criminal defense lawyer represented defendant with a conspiring to distribute at least 500 grams of methamphetamine charge.

Relying on a warrant based on confidential-informant information, police searched
Stampe’s home and found drugs, scales, guns, and cash. Police arrested her, and she admitted to
selling about 15 kilograms of methamphetamine that year. And she said that Michael Loden had
been purchasing distribution quantities of methamphetamine from her for at least two months. The
government used that information, on top of information provided by a confidential informant in
the two months after Stampe’s arrest, to get a warrant to search Loden’s house.
The government charged Stampe with possession with intent to distribute, and it charged
Stampe and Loden with conspiring to distribute. Loden did not plead guilty, but Stampe entered
a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and did. Under the
agreement, Stampe agreed to plead guilty to the conspiracy and have the lesser included offense
dismissed. The agreement contemplated a 168-month sentence. But it also provided that the
government could “bring to the Court’s attention the nature, extent, and value of the defendant’s
No. 19-6293 United States v. Stampe Page 3
cooperation” in Loden’s case to inform the court’s determination of “a fair and appropriate
sentence.” (R. 41, PageID 137.) Because it was a Rule 11(c)(1)(C) agreement, if the district court
accepted the agreement, it was obliged to impose the sentence contemplated by the agreement. In
this case, the contemplated sentence included the possibility of a reduction based on Stampe’s
cooperation in Loden’s case but only if the government brought her cooperation to the district
court’s attention.
Before Stampe’s sentencing and shortly before Loden’s trial, the United States moved to
dismiss all charges against Loden. The motion stated that “during trial preparation, [the
government had] discovered circumstances apart from evidence of [Loden’s] guilt which
prevent[ed] the United States from moving forward.” (R. 71, PageID 289.)
Stampe asked the government for information about the dismissal. But the government
just said the dismissal related to inappropriate conduct of a confidential informant that did not
affect Stampe’s case.
Stampe then moved to have the court compel production or review the materials in camera.
Her motion explained that she had positioned herself for a downward departure for cooperating in
Loden’s case. And it explained that she failed to see how information could lead to the entire
dismissal of Loden’s case but have no relevance in his co-defendant’s case for the same conspiracy.
The government responded to the motion, claiming that the issues in Loden’s case occurred
while Stampe was in custody and so did not affect her case. And it noted that the plea agreement
did not specifically require the government to seek a downward variance for cooperation in
Loden’s now-dismissed case.
At a hearing on the motion, the district court asked, “[i]s it the government’s unequivocal
representation to the Court that it has complied fully with all Brady obligations to Ms. Stampe?”
(R. 92, PageID 341.) It also asked the same question about obligations under Giglio, Federal Rule
of Criminal Procedure 16, and the Jencks Act. The government responded yes to these questions.
Although the district court stated that it did not “fully understand what the government[]” was
saying “when they say, well, it couldn’t affect Ms. Stampe because she was in custody,” the district
court was satisfied with “the government’s representation in open court” that the government had
No. 19-6293 United States v. Stampe Page 4
complied with disclosure obligations. (Id. at 342, 348.) And because Stampe had provided no
reason to doubt the government’s representations beyond “pure speculation,” the district court
denied the motion. (Id. at 348.)
Given the court’s decision, Stampe moved the court to “not accept her plea agreement”
while “allow[ing] her to persist in her guilty plea.” (R. 98, PageID 373.) She wanted the court to
reject the agreement because, as a Rule 11(c)(1)(C) agreement, it gave the judge no discretion to
impose a lesser sentence based on her actual and intended cooperation in the Loden investigation
and case. Because the government had said it would not request a downward variance in the wake
of Loden’s dismissal, Stampe argued she should be relieved from the plea agreement that
prevented her from trying to get a lesser sentence based on her actual and intended cooperation in
the Loden case. In response, the government construed her motion as a motion “to withdraw”
from the plea agreement. (R. 105, PageID 396.) And it argued that the standards that govern guilty
plea withdrawal under Federal Rule of Criminal Procedure 11(d)(2)(B) also apply to requests to
withdraw from an agreement while persisting in a guilty plea under United States v. Schuhe, 688
F. App’x 337 (6th Cir. 2017) (per curiam). Stampe disagreed that Rule 11(d)(2)(B) governed her
request because she was not seeking to withdraw the plea itself. The court sided with the
government. Applying “basic contract law principles” and relying on the standards under Rule
11(d)(2)(B), the court denied Stampe’s motion and accepted the plea agreement. (R. 113, PageID
Stampe’s principal argument on appeal is that the district court erred when it denied her
motion for production or in camera review. We review that decision for an abuse of discretion.
See United States v. Hernandez, 31 F.3d 354, 361 (6th Cir. 1994). Stampe’s appeal implicates
both constitutional and procedural standards about the showing required to trigger criminal
discovery in specific-request cases.
“There is no general constitutional right to discovery in a criminal case . . . .” Weatherford
v. Bursey, 429 U.S. 545, 559 (1977). But due process does protect defendants from government
“suppression . . . of [material] evidence favorable to” them. Brady v. Maryland, 373 U.S. 83, 87
No. 19-6293 United States v. Stampe Page 5
(1963). Evidence is material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). Brady creates a freestanding government obligation to disclose
material evidence. But it also contemplates that the government might sometimes withhold
information either in good or bad faith. And that brings us to specific Brady requests for
undisclosed materials—something one might call constitutional criminal discovery.
The Supreme Court has explained that a criminal defendant may be able to force disclosure
or in camera review of some materials if he “establish[es] a basis,” “some plausible showing,”
“for his claim that [something undisclosed] contains material evidence.” Pennsylvania v. Ritchie,
480 U.S. 39, 58 n.15 (1987) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). This standard does not appear to require “a particularized showing of what information”
is sought for the simple reason that before disclosure a defendant likely will not know the content
of an undisclosed item—hence the request. Id. But the “plausible showing” standard remains a
difficult hurdle; without knowing the content of a requested item, the defendant can likely provide
little more than informed speculation as to materiality.
The Constitution is not the only option for criminal defendants though. They may also
seek discovery under Federal Rule of Criminal Procedure 16. Relevant to Stampe’s appeal, Rule
16(a)(1)(E)(i) provides that “[u]pon a defendant’s request, the government must permit the
defendant to inspect and to copy or photograph [a document or object] within the government’s
possession, custody, or control [if] the item is material to preparing the defense.” This court has
not fully defined the showing needed to trigger discovery under Rule 16(a)(1)(E)(i). But we have
held that “a mere conclusory allegation that the requested information is material to the preparation
of the defense” falls short. United States v. Conder, 423 F.2d 904, 910 (6th Cir. 1970). Other
courts have waded deeper into this issue, and they have come to different conclusions about the
required showing. Compare United States v. Ross, 511 F.2d 757, 762–63 (5th Cir. 1975), with
United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013). Whatever showing is
required, it appears to be less onerous than the showing contemplated by Ritchie because Rule 16’s
materiality bar differs from the Brady one—some items “material to preparing the defense” may
not necessarily be “material either to guilt or to punishment.” See Muniz-Jaquez, 718 F.3d at 1183
No. 19-6293 United States v. Stampe Page 6
(concluding that Rule 16 is “broader than Brady” because “[i]nformation that is not exculpatory
or impeaching may still be relevant to developing a possible defense”).
Here, Stampe argued that the dismissal of Loden’s identical conspiracy charge raised a red
flag, and she requested that the court compel disclosure or review the undisclosed information
itself in camera. The government’s response? Timing and on-the-record statements of
compliance. Faced with these arguments, the district court did two things. First, it categorized
Stampe’s arguments supporting disclosure as “pure speculation.” Second, it credited the
government’s on-the-record representations that the government had fully complied with
disclosure obligations because any misconduct happened after Stampe’s arrest and thus could not
affect her case.
The district court’s first decision implicates the constitutional and procedural standards
discussed above. It discounted Stampe’s arguments as supported by no more than “pure
speculation”—a showing certainly below that required by Rule 16 and Ritchie. But it is not
immediately clear that the district court’s characterization was accurate. That Stampe’s contention
is speculative to a certain extent is, of course and unavoidably, true (if we knew the content, we
would be spilling our ink elsewhere). But whether it was purely speculative is a closer question.
This is not a case in which the defendant fired blindly into the prosecution’s papers alleging
materiality. Her speculation was at least to a certain degree informed.
We need not dwell on this issue though. Even assuming Stampe said enough to trigger
Rule 16 or Brady disclosure in the abstract, her arguments here ultimately fail because of the
court’s second move—relying on the government’s representations. A defendant’s ability to
trigger forced disclosure or review under the Constitution or Rule 16 turns on her ability to make
some type of showing that items sought might be material (what “materiality” means may depend
on the rule at issue). But when the government in response shows that items sought are immaterial,
it nips the defendant’s request in the bud—disclosure or in camera review is unnecessary. And
that is the case here.
In Hernandez, this court gave the government a powerful tool to avoid criminal discovery
requests. 31 F.3d at 361. We held that because a “prosecuting attorney is an officer of the court,”
No. 19-6293 United States v. Stampe Page 7
a district “court is entitled to accept his representations” about whether a specifically requested
item is material “absent some indication of misconduct.” Id. This is especially true in cases like
this one in which the government both represents compliance with its disclosure obligations and
backs up that assertion in some way. Cf. id. (noting that circumstances beyond the government’s
averments supported deference in relation to materiality). Here, the government’s timing
explanation made some sense. It is hard to think how misconduct in a related case after a criminal
defendant has been arrested and admitted guilt might affect the government’s case against that
defendant—the cat was out of the bag, so Stampe and Loden were not similarly situated. And
relying on the candidly limited information she had, Stampe did not help the district court walk
through that tricky riddle. Under Hernandez, the district court did not abuse its discretion in
denying Stampe’s motion.1
Alternatively, Stampe argues that the district court erred when it declined to let her
withdraw from her plea agreement while persisting in her guilty plea. We review for abuse of
discretion. United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006); Schuhe, 688 F. App’x at 338.
Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant can withdraw her plea
if she “can show a fair and just reason for requesting the withdrawal.” We look to “a general, nonexclusive list” without a controlling factor in assessing whether a defendant meets this burden:
(1) the amount of time that elapsed between the plea and the motion to withdraw it;
(2) the presence (or absence) of a valid reason for the failure to move for withdrawal
earlier in the proceedings; (3) whether the defendant has asserted or maintained his
innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the
defendant’s nature and background; (6) the degree to which the defendant has had
1That conclusion, however, does not mean that it would have been an abuse of discretion for the court to
have reviewed the materials in camera before accepting the government’s position. The district court suggested that
review in this case would have been an “extraordinary step” with “the potential to set a precedent” that would
“fundamentally [change] the federal criminal justice system” by requiring judges to review government materials in
an overwhelming number of cases. (R. 92, PageID 344, 347.) But this case is unique—dismissals like Loden’s “rarely
happen[],” and the district court said it didn’t “fully understand” the government’s contentions that materials related
to Stampe’s co-conspirator’s identical charge “couldn’t affect” her “because she was in custody.” (Id. at 343, 348.)
Thus, we are skeptical that in camera review under these unique circumstances would have forced district courts “into
the government’s files in any case where . . . a defendant wants” review. (Id. at 348.)
No. 19-6293 United States v. Stampe Page 8
prior experience with the criminal justice system; and (7) potential prejudice to the
government if the motion to withdraw is granted.
Ellis, 470 F.3d at 281 (quoting United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994)). And
we often refer to these factors as the Bashara factors. Furthermore, while Rule 11 and some of
these factors seem better suited for their intended inquiry than the inquiry here, we have applied
these factors (albeit in an unpublished decision) when a defendant still desires to plead guilty and
asks a court to “set aside [a] plea agreement.” See Schuhe, 688 F. App’x at 338.
Before the district court, Stampe argued that Rule 11(d)(2)(B) and our Circuit’s standards
for analyzing requests under that rule should not apply to her request at all. That rule, by its plain
terms, only applies to requests to “withdraw a plea of guilty.” Fed. R. Crim. P. 11(d)(2)(B)
(emphasis added). And she had merely asked the court to reject her plea agreement, not her plea.
There may be something to this argument. It does not appear that any of our published cases have
defined the governing standard in this unique circumstance. And the text of the rule supports
Stampe’s reading. On a related note, it may also be the case that there is a meaningful difference
between a request to withdraw from an agreement and a request for the court to reject an agreement
under Rule 11(c)(1)(C) even though both moves would be functionally identical in cases like this
But Stampe did not provide the district court with any meaningful alternative to the
Bashara factors and Rule 11(d)(2)(B). And she does not press this argument on appeal. True, she
briefly suggests that the Bashara factors that apply to Rule 11(d)(2)(B) requests “appear not even
relevant under [the] circumstances” here. (Appellant Br. at 31.) And she does point out that
Schuhe is unpublished and thus does not bind us. But she does not explain what alternative
standard should apply. And she does not argue that the district court erred in turning to the factors.
Rather, she focuses her attention on arguing that the district court should have let her withdraw
from her plea agreement under the Bashara factors.
2The Rule 11(c)(1)(C) nature of this agreement prevented the trial court from letting the agreement stand and
then taking into account the possibility of any unfairness to Stampe resulting from the Loden situation in sentencing.
Of course, if the court had rejected the agreement or let Stampe withdraw from it, both sides would have reverted to
square one for sentencing, creating the possibility of both additional risk and reward for Stampe.
No. 19-6293 United States v. Stampe Page 9
Her Bashara argument boils down to one central claim: Loden’s dismissal was a sea
change that undermined a central purpose of her agreement—the possibility that she might get a
reduction if she cooperated in Loden’s case. Without that possibility, she would not have agreed
to the terms of the deal.
The problem with Stampe’s argument is that it oversells the importance of that possibility
based on the plea agreement itself. While we do not doubt that Stampe sincerely believed that she
might avoid some prison time because of her putative cooperation in Loden’s case, the plea
agreement contemplated but did not require that possibility. So contrary to her assertion on appeal,
it was not the “principal purpose” of the agreement. (Appellant Br. at 34.) The main purpose was
the exchange of her plea for the government dropping the other charge against her and agreeing to
a 168-month sentence: “In consideration of the defendant’s guilty plea, the United States agrees to
move the Court at the time of sentencing to dismiss the remaining count against the defendant in
the Superseding Indictment.” (R. 40, PageID 126.) The possibility of another reduction was a
sweetener, not the main purpose. Consequently, the district court did not abuse its discretion,
especially because several factors that we have suggested apply in this context support its decision:
the large gap of time separating her plea and her motion to withdraw; her undisputed guilt; her
extensive background with the criminal justice system; and that she was not rushed into the
agreement. The court did not abuse its discretion.

Outcome: Our decision leaves stones unturned—an unsatisfying result for Stampe who will be left puzzling about why the government so adamantly opposed her request if the undisclosed information was in fact immaterial to her case. This result highlights why it may be good prosecutorial policy to provide access to even immaterial evidence in some cases to promote perceptions of fairness. But we are not in the business of policing prosecutorial policy. And the government may have had legitimate reasons for its decision beyond its materiality determination.

Because the district court was entitled to rely on the government’s representations and acted within its discretion in holding Stampe to her plea agreement, we AFFIRM

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