United States of America v. Rusty James Driscoll

United States Court of Appeals
For the Eighth Circuit
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No. 23-3660
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United States of America
Plaintiff - Appellee
v.
Rusty James Driscoll
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: October 23, 2024
Filed: December 17, 2024
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Before GRUENDER, BENTON, and KOBES, Circuit Judges.
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BENTON, Circuit Judge.
A jury convicted Rusty J. Driscoll of one count of conspiracy to distribute
controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court1 sentenced him to 540 months. Driscoll appeals the conviction and sentence,
1 The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.

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challenging his restricted access to discovery, the admission of some photos at trial,
and the reasonableness of his sentence. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
I.
Before trial, Driscoll’s counsel stipulated to entry of the District of South
Dakota’s standard discovery order restricting dissemination of discovery materials.
See https://www.sdd.uscourts.gov/sites/sdd/files/LR%2016.1%20DISCOVERY_0
.pdf (Local Rule 16.1, incorporating former Standing Order 19-03). See also
https://www.sdd.uscourts.gov/sites/sdd/files/LR%2057.10%20ACCESS%20TO%2
0CRIMINAL%20DOCUMENTS_0.pdf (Local Rule 57.10, incorporating former
Amended Standing Order 16-04). Driscoll moved twice for personal access to
discovery materials. Both motions were denied.
Driscoll argues he showed good cause for relief from the standard discovery
order. “A district court has broad discretion with respect to discovery motions, and
we will uphold the decision of the district court unless, considering all the
circumstances, its rulings are seen to be a gross abuse of discretion resulting in
fundamental unfairness at trial.” United States v. Hoeffener, 950 F.3d 1037, 1043
(8th Cir. 2020) (internal quotation marks omitted). Federal Rule of Criminal
Procedure 16(d)(1) “requires only ‘good cause’ to modify or restrict discovery.”
United States v. Ladeaux, 61 F.4th 582, 585 (8th Cir. 2023), quoting Fed. R. Crim.
P. 16(d)(1) (“At any time the court may, for good cause, deny, restrict, or defer
discovery or inspection, or grant other appropriate relief.”). The good cause
requirement does “not mandate an individualized inquiry” but “an individualized
inquiry assists a court in analyzing whether the moving party has met its burden of
proof.” Id. at 585–86.
Local Rule 16.1 “restricts dissemination of discovery materials and precludes
defense counsel from giving discovery materials to the defendant without the court’s
express permission.” Local Rule 16.1. See also Local Rule 57.10 (restricting

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“access to certain criminal documents”). This court held in Ladeaux that the
“general purpose” of South Dakota’s standard discovery order “satisfies Rule
16(d)’s good-cause requirement.” Ladeaux, 61 F.4th at 586, discussing Local Rule
57.10(A) (limiting discovery access “[i]n order to protect the safety of federal
defendants and the integrity of ongoing investigations and related prosecutions”).
The magistrate judge here conducted an individualized inquiry emphasizing:
the parties’ voluntary stipulation; the “not . . . above average amount of discovery”
in the case; Driscoll’s review of “all of his discovery twice” with counsel; his “own
disruptive behavior” causing his relocation to a facility hours away; and his
imminent transfer to a nearer facility. Most importantly, a cooperating co-defendant
had testified that Driscoll shared information from a proffer report, demonstrating
the good cause required. The district court properly concluded that Driscoll had not
shown good cause for exemption from the discovery order.2
II.
Driscoll challenges the admission of photos of items found during a search—
a backpack, cash, and a letter addressed to Driscoll. DEA Agent Jason Dziedzic had
taken photos of the items after another DEA agent had discovered them. At trial,
Agent Dziedzic testified that the photos accurately depicted the items. This court
“must give substantial deference to the district court’s decision on admissibility, and
will find error only if the district court clearly abused its discretion.” United States
v. Smith, 63 F.3d 766, 770 (8th Cir. 1995).
2 This court reiterates its Sixth Amendment concerns about the District of
South Dakota’s standard discovery order. See United States v. Ladeaux, 61 F.4th
582, 586 n. 4 (8th Cir. 2023) (“A criminal defendant has a constitutional right to
conduct his own defense. . . . Conducting a defense necessitates adequate time and
resources to prepare for trial. . . . Denying a self-represented criminal defendant the
ability to prepare for trial can effectively abrogate his constitutional right to self-
representation.” (internal citations and quotation marks omitted)). These concerns
need not be examined here because the district court had good cause to restrict
Driscoll’s access to discovery.

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Driscoll disputes the items’ authenticity. Specifically, he argues Agent
Dziedzic lacked personal knowledge because he was not the agent who discovered
them. “Authentication is satisfied by ‘evidence sufficient to support a finding that
the item is what the proponent claims.’” United States v. Needham, 852 F.3d 830,
836 (8th Cir. 2017), quoting Fed R. Evid. 901(a). “The party authenticating the
exhibit need only prove a rational basis for that party’s claim that the document is
what it is asserted to be. This may be done with circumstantial evidence.” Id.
(internal quotations omitted). See also Smith, 63 F.3d at 770 (admitting
“circumstantially authenticated” documents found at defendant’s residence). Agent
Dziedzic’s participation in the search and personal knowledge that the items were
seen in the apartment are sufficient to circumstantially authenticate the items; no rule
requires him to have found the items first. Because Driscoll’s challenge does not
raise a genuine question about the items’ authenticity, the photos are admissible
duplicates. See Fed. R. Evid. 1003 (“A duplicate is admissible to the same extent
as the original unless a genuine question is raised about the original’s authenticity or
the circumstances make it unfair to admit the duplicate.”).
Driscoll argues that the photo of the letter addressed to Driscoll violates the
best evidence rule. See Fed. R. Evid. 1002 (“An original writing, recording, or
photograph is required in order to prove its content unless these rules or a federal
statute provides otherwise.”). The advisory committee notes to Rule 1002 explain
that when a witness identifies a photo “as a correct representation of events which
he saw or of a scene with which he is familiar,” “he adopts the picture as his
testimony . . . . Under these circumstances, no effort is made to prove the contents
of the picture, and the rule is inapplicable.” Fed. R. Evid. 1002, Advisory
Committee Notes. The best evidence rule does not apply here because Agent
Dziedzic adopted the photo as his testimony.
Driscoll objects to Agent Dziedzic’s testimony as unfairly prejudicial for its
implication that the items belonged to Driscoll. See Fed. R. Evid. 403 (“The court
may exclude relevant evidence if its probative value is substantially outweighed by

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a danger of . . . unfair prejudice . . . .”). But Agent Dziedzic never testified they
belonged to Driscoll. The district court did not abuse its substantial discretion when
concluding that Driscoll’s concerns went to the weight of the evidence, not its
admissibility.
III.
Driscoll asserts his sentence is unreasonable because of disparities between
his and his co-conspirators’ sentences. This court considers the substantive
reasonableness of a sentence under “a deferential abuse-of-discretion standard.”
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), quoting Gall
v. United States, 552 U.S. 38, 41 (2007). “[I]t will be the unusual case when we
reverse a district court sentence—whether within, above, or below the applicable
Guidelines range—as substantively unreasonable.” Id. at 464, quoting United States
v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008). “Where a district court has
sentenced a defendant below the advisory guidelines range, it is nearly inconceivable
that the court abused its discretion in not varying downward still further.” United
States v. Deering, 762 F.3d 783, 787 (8th Cir. 2014) (cleaned up).
“The district court has wide latitude to weigh the § 3553(a) factors in each
case and assign some factors greater weight than others in determining an
appropriate sentence.” Id. Weighing the § 3553(a) factors, district courts consider
“the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct[.]” 18 U.S.C. § 3553(a)(6).
Because “the statutory direction to avoid unwarranted sentence disparities . . . refers
to national disparities, not differences among co-conspirators,” there is “no
principled basis for an appellate court to say which defendant received the
‘appropriate’ sentence.” United States v. Baez, 983 F.3d 1029, 1044 (8th Cir. 2020).
“In any event, disparate sentences among dissimilar defendants are not
unwarranted.” United States v. Fry, 792 F.3d 884, 893 (8th Cir. 2015) (holding
“differential treatment” was “justified” where co-conspirators pled guilty and
accepted responsibility).

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The district court found Driscoll had a total offense level of 43 and a criminal
history category of III, resulting in a range of life. It sentenced him to 540 months—
below the advisory guidelines range. His co-conspirators Sean R. Gross and
Chrisopher M. Daniels received shorter sentences—320 and 360 months,
respectively. Driscoll’s criminal history category and offense level were higher than
Gross’s (though the same as Daniels’s). Unlike co-conspirators Daniels and Gross,
Driscoll did not plead guilty or accept responsibility. Based on evidence that
Driscoll was responsible for sourcing the drugs, the court found Driscoll was the
head of the conspiracy. Due to the dissimilarities between Driscoll and his co-
conspirators, his disparate sentence was not unwarranted. The district court did not
abuse its discretion by imposing a sentence below the guidelines range.
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The judgment is affirmed.
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