NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0450n.06
                                                                                             FILED
                                            No. 09-5929
                                                                                         Jul 06, 2011
                            UNITED STATES COURT OF APPEALS
                                                                                  LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )         ON APPEAL FROM THE
       Plaintiff-Appellee,                                )         UNITED STATES DISTRICT
                                                          )         COURT FOR THE
v.                                                        )         WESTERN DISTRICT OF
                                                          )         KENTUCKY
TOMMY RAY LYKINS,                                         )
                                                          )                  OPINION
       Defendant-Appellant.                               )




BEFORE:        KENNEDY, SILER and McKEAGUE, Circuit Judges.

       PER CURIAM. Defendant Tommy Ray Lykins was found guilty of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On July 27, 2009, he was sentenced

to a prison term of 180 months and a five-year term of supervised release. On appeal, defendant

contends that the district court erred in admitting a photograph into evidence that the prosecution had

not disclosed in pre-trial discovery. Defendant argues that admission of the photograph resulted in

unfair prejudice because it prevented him from adequately preparing a defense.                On due

consideration, we affirm.

       Defendant Lykins was arrested at his home in Elkton, Kentucky on May 20, 2008, following

a domestic dispute involving his wife and her thirteen-year-old daughter. Sheriff’s Deputy Michael

Kline testified that he arrived on the scene and was informed by defendant’s frantic wife and her

daughter that defendant had a gun. R. 39, Trial Tr. vol. 1 at 22. Defendant emerged from the trailer
No. 09-5929
United States v. Lykins

carrying what Kline believed was a long rifle. 

Defendant fled out the back door with

the gun into the woods. 

Although Kline gave chase, he decided to wait for back-up

when he lost sight of defendant in the woods. 

While Kline was still on the scene waiting

for back-up to arrive, defendant returned from the woods without the gun and was arrested. 

He eventually cooperated with the police and led them to the location in the woods where the

rifle lay hidden. The rifle, a .30-30 Winchester, was seized and eventually admitted into evidence

at trial. 

98.

        Defendant was charged in the Western District of Kentucky with unlawful possession of a

firearm, 18 U.S.C. § 922(g)(1). A jury trial commenced on April 14, 2009. Deputy Kline testified

that defendant stated that he took off with the gun to hide it because he knew he was not supposed

to possess a firearm, but claimed the gun was purchased by his wife. 

Defendant’s wife

testified that she bought the gun at defendant’s direction and with his money. 

She also

testified that on the day of the offense, defendant held the gun and pointed it at her. 

        Defendant testified that the gun was his wife’s and that he hid the gun in the woods a week

before the domestic dispute. 

On cross-examination, defendant testified that he knew that

as a felon he was not permitted to hold a gun and asserted that since his felony convictions, he had

never hunted with a gun. 

The disputed photograph, showing defendant holding a rifle

other than the one he was convicted of possessing, was introduced by the government to rebut

defendant’s testimony. 

Defense counsel objected on grounds of authentication, but




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United States v. Lykins

the objection was overruled when defendant’s testimony authenticated the photograph. 

Subsequently, counsel objected on the grounds that the photograph had not been produced in pre-

trial discovery, thus depriving him of a chance to examine it before defendant testified. 

This objection was also overruled as the Assistant U.S. Attorney explained the photo was not

disclosed in discovery because he did not intend to introduce the photograph in his case-in-chief.

Defendant went on to explain that the photograph was taken on Thanksgiving Day

in 2007, when his wife shot a deer on her first hunting trip. 

        The trial concluded on April 15, 2009. The jury deliberated for thirty minutes before

returning its verdict, finding defendant guilty as charged. On July 27, 2009, defendant was sentenced

to a prison term of 180 months, the statutory mandatory minimum. On appeal, defendant raises one

issue, contending the conviction should be overturned because admission of the photograph was

unfairly prejudicial.

        It appears that in arguing that defense counsel did not have opportunity to review the

evidence with defendant and prepare a defense, he contends the district court erred in admitting the

photograph over his objection because the government had violated its pre-trial discovery obligations

under Rule 16 of the Federal Rules of Criminal Procedure. Rule 16(a)(1)(E) provides that, upon

defendant’s request, the government must permit the defendant to inspect items such as photographs

in its possession if: “(i) the item is material to preparing the defense; (ii) the government intends to

use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the


       1
        Defendant testified that he had seen the photo before, “right after the hunting season was
over.” 

He believed the photo had been taken by his wife’s brother. 

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United States v. Lykins

defendant.” Fed. R. Crim. P. 16(a)(1)(E). If a party fails to comply with Rule 16, the court has

discretion to impose a number of sanctions, including ordering discovery, granting a continuance,

excluding the evidence, or entering “any other order that is just under the circumstances.” Fed. R.

Crim. P. 16(d)(2). Construing the district court’s admission of the photograph over defendant’s

objection as a finding that the government had not violated Rule 16, we review the district court’s

decision under Rule 16 for abuse of discretion. United States v. Jordan, 

, 667 (6th Cir.

2008).


         We note that the parties were specifically required by a pre-trial order to comply with the

discovery requirements of Rule 16. The government does not deny that defendant made a request

for materials discoverable under Rule 16. Further, defendant does not dispute the government’s

contention that it did not intend to use the photograph in its case-in-chief. Nor has he asserted that

the photo was obtained by the government from him. 

n.1. Hence, the government’s

nondisclosure of the photo can be found violative of Rule 16 only if the photo is shown to have been

“material to preparing the defense.”


         The government first contends that defendant’s nonspecific objection that the photograph had

not been timely produced was insufficient to preserve the issue for appeal as a Rule 16 violation.

The government contends that because defendant did not clearly object on the basis that the

photograph was material to preparing a defense or even cite Rule 16 in his objection, plain error

review should apply. United States v. Seymour, 

, 384 (6th Cir. 2006) (explaining that

appellate courts review for plain error where a defendant does not state the “specific ground” for his

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United States v. Lykins

objection). However, a party is only required to state the specific ground of objection to the

admissibility of evidence if the ground is not “apparent from the context.” United States v.

Haywood, 

, 725 (6th Cir. 2002) (holding that objection to evidence as irrelevant and

prejudicial was sufficient to preserve Fed. R. Evid. 404(b) issue). Here, although defense counsel

did not specifically cite Rule 16, his objection complained of his inability to prepare defendant to

testify regarding the evidence. Moreover, in response to defendant’s objection, the prosecution

referred to the other subsection of Rule 16, the “case-in-chief” provision. The context thus made it

clear that defendant’s objection implicated Rule 16. Hence, we review for abuse of discretion, not

just for plain error. See 

.


       Nevertheless, defendant fails to demonstrate that the district court abused its discretion in

admitting the photograph. “A defendant does not satisfy [the] requirement that an object be ‘material

to the preparation of the defendant’s defense’ by means of merely conclusory arguments concerning

materiality.” United States v. Phillip, 

, 250 (6th Cir. 1991) (internal citation omitted).

Rather, defendant must make a prima facie showing of materiality. 

Rule 16

has not been authoritatively defined in this Circuit. However, the Supreme Court has determined

that “defense” within the meaning of Rule 16 means the “defendant’s response to the Government’s

case in chief.” United States v. Armstrong, 

, 462 (1996). Therefore, the rule applies

only to “‘shield’ claims that ‘refute the Government’s arguments that the defendant committed the

crime charged.’” United States v. Robinson, 

, 532 (6th Cir. 2007) (quoting 

). It follows that information which does not counter the government’s case or


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United States v. Lykins

bolster a defense is not material “merely because the government may be able to use it to rebut a

defense position.” United States v. Stevens, 

, 1180 (2d Cir. 1993). Rather, there must

be an indication that pre-trial disclosure would have enabled the defendant to “alter the quantum of

proof in his favor,” not merely that a defendant would have been dissuaded from proffering easily

impeachable evidence. 

materiality, we consider the logical relationship between the

information withheld and the issues in the case, as well as the importance of the information in light

of the evidence as a whole. See 

government correctly notes, the photograph at issue depicting a firearm different from

the one defendant was charged with possessing, was not essential to the government’s case and

would not have assisted defendant in refuting the government’s case. The photograph was

unfavorable to defendant because it contradicted his testimony that he had not held or hunted with

a gun. Although a chance to reconsider his plan to testify would certainly have been beneficial to

defendant, a Rule 16 violation cannot be sustained based merely on an argument that disclosure

would have resulted in reconsideration of defendant’s decision to testify or formulation of a more

effective defense strategy. See 

we persuaded that the quantum of proof in defendant’s favor would have been

significantly altered if the photograph had been disallowed. The government presented considerable

evidence, in the form of the testimony of defendant’s wife and Deputy Kline, supporting the finding

that defendant possessed a firearm on the date he was arrested. Moreover, defendant admitted he

had possessed the rifle when he carried it into the woods—although he testified that he actually

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United States v. Lykins

carried it into the woods a week before the date of his arrest. R. 39, Trial Tr. vol. 1, at 119-20, 140-

41. Furthermore, defendant had an adequate opportunity to explain the photograph to the jury in

response to cross-examination and on redirect examination. 

148-49.


        Accordingly, defendant has failed to demonstrate that the photograph was so material to the

preparation of his defense as to render its admission at trial an abuse of discretion.2 Furthermore,

even if we were to find that admission of the photograph was in error, the error would be deemed

harmless because it did not materially affect the verdict, given the substantial evidence supporting

the government’s case. See 

(Rule 16 error held to be harmless under Fed.

R. Crim. P. 52(a) unless “more probable than not that the error materially affected the verdict”).


        Accordingly, the district court’s judgment is AFFIRMED.




        2
          The district court did not expressly consider materiality, resting its decision solely on the fact
that the prosecution did not intend to introduce the evidence in its case-in-chief. Nonetheless, we
may affirm on any grounds supported by the record, even if different from the reasons cited by the
district court. See United States v. Howard, 

, 457 (6th Cir. 2010).

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