Argued: December 14, 2017
T. Mills, Attorney General, and Leanne Robbin, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellant State of Maine
J. Drake, Esq. (orally), Drake Law, LLC, Auburn, for appellee
Abdi A. Hassan.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
The State of Maine appeals from a judgment of the trial court
(Androscoggin County, Oram, D.C.J.) denying its
motion to reconsider the court's order dismissing, with
prejudice, thirteen of the State's fifteen counts against
Abdi A. Hassan as a sanction for the State's alleged
discovery violation. The State argues that the court erred as
a matter of law by concluding that it violated its discovery
obligations. We agree that the State did not commit a
discovery violation, vacate the judgment, and remand the case
A grand jury indicted Hassan on December 4,
2013. The indictment consisted of two counts of
theft by deception (Class B), 17-A M.R.S. § 354 (2017);
seven counts of aggravated forgery (Class B), 17-A M.R.S.
§ 702 (2017); one count of negotiating a worthless
instrument (Class C), 17-A M.R.S. § 708 (2017); and five
counts of unsworn falsification (Class D), 17-A M.R.S. §
453 (2017). Thirteen of the fifteen counts involved
assistance programs administered, in part, by the Department
of Health and Human Services.
Because Hassan and his co-defendant needed interpreters to
assist their attorneys and to participate in the proceedings,
and because the discovery in the case involved hundreds of
pages of documents, Hassan's case presented timing and
staffing challenges for the parties and for the court.
Apparently due to these challenges, the case lingered on the
docket for nearly three years. In November of 2016, the court
issued an order that scheduled the trial to begin in May of
2017. Pursuant to this schedule, a jury was selected over the
course of three days during the first week of May. Although
originally scheduled to begin on May 8, the start of the
trial was postponed until May 15, 2017.
On May 11, 2017, the State conducted a second pretrial
interview with one of its potential witnesses, a former
Department employee who purportedly processed some of
Hassan's claims for benefits back in 2005. During this
second interview, the former employee-for the first time-
expressed doubt about some signatures and handwriting on
three "standard" Department forms that the State
planned to introduce against Hassan. Those forms were
identified as Exhibits 57, 60, and 61. Specifically, the
former employee expressed uncertainty about whether one form
contained her signature and which other employees at the
Department may have completed or processed the forms.
The State had provided Hassan with copies of the exhibits in
question about three years earlier. "Within hours"
after learning the information, the State disclosed to Hassan
what it had learned from the former Department employee. Upon
receipt of this information, Hassan asserted that the State
had violated Rule 16 of the Maine Rules of Unified Criminal
Procedure, and he moved to dismiss the indictment-or in the
alternative to continue the case-as a sanction for what he
claimed was a violation of the State's discovery
obligations. The State objected to the motion to dismiss but
took no position on the request for a continuance. The court
held a nontestimonial hearing on the motion to dismiss or
continue on May 12, 2017.
In an order dated May 14, 2017, the court stated that
"both the nature of the information, and the timing of
the disclosure, cause the court grave concern." The
court referred to the information obtained from the former
Department employee as "potentially exculpatory
material, " and, in one portion of the order, noted that
it "potentially calls into question the integrity or
reliability of the documentation and witnesses as to all the
counts ... related to the Department of Health and Human
Services." In another portion of its order, the court
stated, "Perhaps neither the documents nor the witness
is central to the State's case. However, the potentially
exculpatory information is significant to the defense."
The court also noted that "[m]uch earlier in the life of
this case, it would have been reasonable for the prosecution
to look at a document that appears to be a standard
[Department] form, appears to be signed by a [Department]
employee, appears to be signed by [Hassan], and conclude that
the document is what it appears to be." The court went
on to acknowledge that "[n]othing on the face of Exhibit
61, standing alone, is initially suspicious" and that
Hassan "is not surprised by information about his
Despite these findings, the court determined that the
State's failure to uncover the information from the
former employee earlier in the life of the case was a
discovery violation. Referencing Rule 16 of the Maine Rules
of Unified Criminal Procedure and Brady v. Maryland,
373 U.S. 83 (1963), the court held that the State had failed
to meet its obligation of "reasonable diligence, "
and that "the State should have known the
information" that it obtained from the former employee,
"at the very latest, . . . when the State
submitted its proposed jury voir dire."
Although the court stressed that the late disclosure was not
the "result of any bad faith or improper effort to
conceal information on the part of the [State], " it
determined that dismissal was the appropriate sanction
because the "case ha[d] been pending for far too long,
" "[approximately 180 residents of Androscoggin
County devoted three days of their lives to the jury
selection process, " and "a delay of a day or two
[would] not give [Hassan] an adequate opportunity to prepare
his case." See M.R.U. Crim. P. 16(e).
Ultimately, the court ...