United States of America v. Pouncy et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Case No: 23-20262
Plaintiff, 	Hon. F. Kay Behm
U.S. District Judge
v.
D-1 OMAR RASHAD POUNCY,
Defendant.
________________________________/
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
(ECF No. 331)
Before the court is Defendant Omar Pouncy’s Motion to Dismiss
(ECF No. 331) (filed September 19, 2025, prior to the pretrial motion
deadline). The government responded (ECF No. 363), and Pouncy filed
a reply (ECF No. 394). Although titled as a motion to dismiss (which
would be untimely), the motion is likely better construed as a motion for
discovery sanctions brought under Fed. R. Crim. P. 16(d)(2).
In 2006, a jury convicted Pouncy of violating several Michigan
laws: four counts of carjacking, four counts of armed robbery, two
counts of carrying a firearm while committing a felony, and one count of
being a felon in possession of a firearm. He was sentenced to a lengthy
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prison term: 562 months for the carjackings and armed robberies, and
24 months for the felony firearm convictions. In 2013, Pouncy filed a
federal habeas action seeking his release. 	Pouncy v. Palmer, No. 21-
1811, 2025 U.S. App. LEXIS 11315, at *1 (6th Cir. May 8, 2025).
This case arises from allegations that during the course of that
habeas action, in which he asserted actual innocence of the carjacking
convictions, Pouncy “devised a scheme to elicit, in conspiracy with
others, false statements and false testimony . . . , and to obstruct
justice, in order to secure his release from state prison, including by
prevailing on his actual innocence claims . . . .” 	See ECF No. 14,
PageID.107.
Relevant to this motion, in June 2018, the Michigan Department
of Corrections allegedly seized two contraband cell phones at the Carson
City Correctional Facility where Pouncy was incarcerated. In April
2019, an MDOC certified analyst conducted a forensic extraction of the
data on the cell phones. On the phones, investigators allegedly found
chats and other evidence showing that Pouncy had used both phones in
2018 as part of the present charged offense conduct. ECF No. 288,
PageID.2010.
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On July 10, 2025, while proceeding pro se, Pouncy filed a motion
to turn over the physical cell phones to a defense expert under Rule of
Criminal Procedure 16(a)(1)(E). ECF No. 268. Because Pouncy, after
failing to timely file supplemental briefing, was unable to show why this
request for physical possession of the cell phones was “material” to
preparing his defense, the court denied the motion. ECF No. 326.
However, part of what Mr. Pouncy was requesting was a full extraction
to reveal what the government did not turn over in their disclosures.
He believed (and, perhaps, continues to believe) that the government
withheld what he refers to as Brady material in the portions of the cell
phone extractions they provided him. For that proposition, Mr. Pouncy
now relies on a report authored by Cynthia Fitch with Speckin Forensic
Laboratories. ECF No. 331, PageID.2273.
The government has consistently stated that they originally did
not turn over what was identified to them as attorney-client privileged
material, and so they had not reviewed it. ECF No. 363, PageID.2906.
At the hearing on August 6, 2025, the government indicated that,
although they opposed his defense expert taking physical possession of
the phones at that point, they did not object to providing the full
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extractions in their possession and would do so given Defendant’s
outstanding request. ECF No. 343, PageID.2626-27 (transcript of
hearing on August 6, 2025).
In the briefings on this motion, the parties do not agree what
happened next. The government says it “provided the defense with full
data extractions from [the] two contraband cellular phones” at issue.
ECF No. 363, PageID.2903. Specifically, “on August 14, 2025, the
government sent the full cell phone extractions to Pouncy’s stand-by
counsel.” ECF No. 363, PageID.2906. Defendant says the government
is “falsely telling this Court that the discovery obligations have been
fulfilled.” ECF No. 331, PageID.2271; ECF No. 331, PageID.2272
(“Despite the representations made, to-date by the Government, the
Government has not provided all relevant discovery—and is indeed
withholding Brady/Giglio/Rule 16 material”). Pouncy now moves for
“dismissal with prejudice or exclusion of all jail calls and cellphone
evidence.” ECF No. 331, PageID.2269. However, in subsequent filings,
Pouncy backtracks his assertions made in these briefings, and states
that the government has in fact provided the material he claims is
missing. 	See ECF No. 434, PageID.3306 (seeking time to review
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discovery “in light of all of the new discovery materials that the
Government have recently turned over to appointed standby counsel
and court funded discovery coordinator”); ECF No. 417, PageID.3226
(indicating the government has produced “massive volumes of new
digital data”).
I. 	Standard of Review
Pouncy appears to bring his motion pursuant to Fed. R. Crim. P.
16 as well as Brady v. Maryland, 373 U.S. 83 (1963). However, a Brady
argument is, by definition, one that there is missing evidence that ought
properly to have been put before the jury which, if it had presented at
trial, would have been exculpatory and may have changed the outcome.
See Clark v. Louisville-Jefferson Cty. Metro Gov’t, 130 F.4th 571, 578
(6th Cir. 2025); Weems v. Kent, 19-CV-1492, 2020 U.S. Dist. LEXIS
30383, at *7 (W.D. La. Jan. 24, 2020) (“Brady claims involve the
discovery, after trial of information which had been known to the
prosecution but unknown to the defense.”) (cleaned up). The Sixth
Circuit has held that the only remedy to a Brady violation is a “new
trial,” and then only if the defendant is convicted and he can meet the
materiality prong. 	United States v. Presser, 844 F.2d 1275, 1286 (6th
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Cir. 1988) (the “remedy is available to a defendant only after a first trial
has ended in a conviction”). Exclusion of evidence pretrial is not an
appropriate remedy “to sanction noncompliance with the Brady doctrine
which comes to light before or during trial.” 	Id.
In regard to alleged Rule 16 violations, the government construed
Pouncy’s motion as one brought under Fed. R. Crim. P. 16(d)(2). 	See
ECF No. 363, PageID.2910 (citing United States v. Maples, 60 F.3d 244,
246 (6th Cir. 1995)). For Rule 16 violations, the Sixth Circuit has
directed district courts to impose “the least severe remedy available to
cure prejudice.” 	United States v. Maples, 60 F.3d 244, 247 (6th Cir.
1995); see also United States v. Collins, 799 F.3d 554, 573 (6th Cir.
2015).
II. 	Analysis
First, the court addresses the disagreement about the scope of
what has been turned over to Mr. Pouncy. At the hearing held on
October 29, 2025, the court heard argument or representations by
Pouncy, the government, and standby counsel. The court has since
received a number of new briefings by Pouncy. The court is satisfied
that the government has provided the full extractions to the defense; an
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evidentiary hearing is not necessary to inquire further. 	See ECF No.
394, PageID.3114 (reply, filed October 28, 2025, requesting evidentiary
hearing). Pouncy himself repeatedly refers to the extractions provided
in various other motions and briefings. In those motions, the only issue
is how Mr. Pouncy may access that material, not whether it has been
provided to the defense in the first place. The court will address
elsewhere the issue of how Pouncy may access discovery material – as
to this particular motion and relief, the court sees no basis to exclude
any evidence.
Regarding any alleged deficiencies in what has been provided to
him, Mr. Pouncy relies on a report authored by Cynthia Fitch with
Speckin Forensic Laboratories to argue that the government is
withholding relevant and exculpatory cell phone data. ECF No. 331,
PageID.2273. However, the report does not say that “Brady evidence”
or exculpatory evidence is being withheld. It says that what was
originally disclosed was incomplete, which is not the same thing as
stating that exculpatory evidence exists. ECF No. 331-1, PageID.2286
(“it is not possible to determine . . . whether additional relevant
evidence (including potentially exculpatory data) exists but remains
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unproduced”). Anyway, Fitch’s report was written in July 2025 and
indicates that the full extraction would obviate many of her concerns by
allowing her to review it; the full extraction is now available to Pouncy
and by extension, is available to his defense team. In any delay in
turning over such material, the court finds that the government did not
act intentionally to prejudice the defendant, and Pouncy has suffered no
prejudice in the delay. 	See Maples, 60 F.3d at 247.
As far as any other undisclosed material related to the cell phones
– beyond the full extractions now available to him – it is not clear what
other material Pouncy is referring to, if any. If his claim relates to the
physical phones, the court agrees that “Pouncy has failed to show that
the physical phones contain evidence that is favorable to him which has
not already been produced or made available. And Pouncy has failed to
show that such evidence would be ‘material’ to the issue of guilt or
innocence.” ECF No. 363, PageID.2909. The court previously pointed
out a number of questions that Pouncy had not satisfactorily answered
regarding physical possession of the phones, and he once again answers
none of those questions in his briefs. 	See ECF No. 326, PageID.2218-19.
The “government has kept open its offer to allow Pouncy to inspect the
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phones while they are the government’s custody,” ECF No. 363,
PageID.2909, and Pouncy has not come close to explaining why
anything more than that is necessary.
One last item: Pouncy’s motion is largely about the cell phones. In
a footnote, however, he adds a single unexplained allegation introducing
a new subject entirely: “In addition to withholding favorable (indeed
exculpatory) cellphone data, the Government is also withholding
favorable recordings of jail phone calls.” ECF No. 331, PageID.2273.
This unadorned allegation is unsupported by any evidence, is unrelated
to the rest of the brief, and is insufficient to show that he is entitled to
the relief he seeks at this stage.
Because the court finds no bad faith in the government’s conduct
and no prejudice to Defendant’s case in regard to the cell phones and
cell phone extractions, neither dismissal of any count nor exclusion of
any evidence is appropriate.
The motion is DENIED.
SO ORDERED.
Date: December 8, 2025 	s/F. Kay Behm
F. Kay Behm
United States District Judge
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