United States 9th Circuit Court of Appeals Reports
U.S. v. FORT, 06-10473 (9th Cir. 1-8-2007) UNITED STATES OF AMERICA, Plaintiff — Appellant, v. EMILE FORT, aka Twin; EDGAR DIAZ, aka Hook; ROBERT CALLOWAY, aka Papa, Defendants — Appellees; UNITED STATES OF AMERICA, Plaintiff — Appellee, v. EMILE FORT, aka Twin; EDGAR DIAZ, aka Hook, Defendants — Appellants. Nos. 06-10473, 06-10478. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 19, 2006, San Francisco, California. Filed January 8, 2007.
Appeals from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding, D.C. Nos. CR-05-00167-WHA, CR-05-00167-WHA.
Erika R. Frick, Assistant United States Attorney, San Francisco, California, for Plaintiff-Appellant/Cross-Appellee.
Michael Satris, Law Offices of Michael Satris, Bolinas, California; and Martha Boersch and John D. Cline, Jones Day, San Francisco, California, for Defendant-Appellees/Cross-Appellants.
Before: GRABER, W. FLETCHER, and TALLMAN, Circuit Judges.
Opinion by Judge Graber.
OPINION
GRABER, Circuit Judge.
The federal criminal prosecution of Defendants Emile Fort,
Edgar Diaz, and Robert Calloway for racketeering and
various predicate crimes is pending trial. Defendants are
alleged to be members of the “Down Below Gang,” a San
Francisco-based street gang operating in the Sunnydale
Public Housing Project. They stand accused of engaging in an
illegal enterprise of individuals associated in fact, who
dealt drugs, committed robberies, and assaulted and killed
those they believed were cooperating with the police. The
witnesses who are expected to testify for the United States
are primarily residents of the housing project, and the
district court has found “that the government has made a
substantial showing of danger to inculpatory witnesses.”
The United States brings this interlocutory appeal to
challenge a discovery order issued by the district court
(“June 16 Order”). The June 16 Order ruled that police
reports created by San Francisco police officers prior to
the federal prosecution of Defendants do not qualify for
the discovery exception created by Federal Rule of Criminal
Procedure 16(a)(2), even though those investigative reports
are in the hands of the federal prosecutor for the purpose
of pursuing charges against Defendants under the Federal
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. §§ 1961-1968. The
government refused to comply with the discovery order, and
the district court sanctioned the non-compliance. On
appeal, the government seeks review of the sanction and of
the district court’s underlying decision regarding the
scope of Rule 16(a)(2). Defendants Fort and Diaz
cross-appeal the sanction order and seek additional
sanctions against the government.
We hold that the documents in dispute are not discoverable
because they are covered by Federal Rule of Criminal
Procedure 16(a)(2) whether prepared by federal, state, or
local officials. Accordingly, we vacate the June 16 Order
and do not reach the merits of the government’s challenge
to the sanction imposed. We do not have jurisdiction over
Defendants’ cross-appeal.
In addition, the government petitions for a writ of
mandamus to reverse a separate order (“August 26 Order”) of
the district court. The August 26 Order requires the
government to produce a list of witnesses to Defendants 21
days before trial, pursuant to 18 U.S.C. § 3432. The
government submitted a notice of non-compliance to the
district court but has not yet violated the order nor been
sanctioned. For the reasons that we explain below, we
remand the August 26 Order without ruling on the mandamus
petition.
FACTUAL AND PROCEDURAL BACKGROUND
A grand jury returned an 86-count second superseding
indictment charging Defendants Fort, Diaz, Calloway, and
several other people with racketeering crimes that include
predicate acts involving drugs, firearms, murder, and
attempted murder. In the course of discovery, the district
court issued a number of orders compelling the government
to turn over witness information to the defendants.
Defendants Fort, Diaz, and Calloway are the only three
defendants who are involved in this appeal.
A. Rule 16 Orders
The first set of orders at issue here relates to
inculpatory police reports created by the San Francisco
Police Department prior to the initiation of the federal
prosecution of Defendants. The government disclosed many
thousands of pages of these reports to Defendants during
discovery but redacted all witness names and locator
information.
The district court issued a series of orders relating to
the discoverability of the police reports. The first order,
dated May 18, 2006, held that all investigative reports
created by the San Francisco police that are “in the
possession, custody or control” of the United States
Attorney’s Office are “documents” subject to discovery
within the meaning of Federal Rule of Criminal Procedure
16(a)(1)(E). It further held that a report is exempt from
discovery under the provisions of Rule 16(a)(2) “only if
the report was prepared in connection with investigating or
prosecuting the subject case by police officers having a
relationship to the federal prosecutors substantially
equivalent to that of federal investigative agents.” The
court invited the government to demonstrate that the
reports were so prepared. The government made no such
showing.
The district court finalized its discovery ruling with
regard to the police reports in its June 16 Order. It held
that “all of the local police reports related to this case
in the possession of the United States Attorney’s Office
are producible under Rule 16 and are not within the
work-product exemption to Rule 16(a)(2).” The district court
also made two alternative rulings relating to waiver.
First, it held that any Rule 16(a)(2) protection that may
have attached to the police reports was waived by the
government when it voluntarily and intentionally produced
portions of the reports to Defendants. Second, it held that
the government further waived any Rule 16 protection with
regard to a number of the police reports by allowing a
witness for the government who is an expert on gang crimes
to rely on the reports in forming his conclusions. The June
16 Order directed the government to allow Defendants access
to the information redacted from the police reports
pursuant to the terms of an accompanying Protective Order
for Witness Security (“Protective Order”) and memorandum
opinion, also issued on June 16, 2006.
The district court devised the Protective Order without
the government’s cooperation. In its related memorandum
opinion, the court found that the government had made a
substantial showing of serious physical danger to
inculpatory witnesses. In its view, the terms of the
Protective Order would improve, rather than impede, the
witnesses’ security. The Protective Order contained
extensive regulation of the discovery and use of protected
information.
The government promptly filed a notice of non-compliance
with regard to the Protective Order. The district court
issued a sanction order on July 20, 2006, that precludes
the government from using against Defendants the testimony
of any inculpatory civilian witness whose name was redacted
from discoverable materials, unless the government
demonstrates that the refusal to allow access was
substantially harmless.
The government appealed both the Rule 16 ruling and July
20, 2006, sanction order. Defendants Fort and Diaz filed a
cross-appeal challenging the sanction order, arguing that
the district court should, additionally, preclude the
government from seeking the death penalty against them.
B. 18 U.S.C. § 3432 Order
Before making its Rule 16 determination, the district court
had issued a separate discovery order on August 26, 2005,
requiring the government to disclose its witness list 21
days before trial, pursuant to 18 U.S.C. § 3432. The
government submitted a notice of non-compliance to the
court. The government petitions for mandamus, seeking
reversal of the § 3432 discovery order. The
government filed its mandamus petition more than 21 days
before the date on which the trial is scheduled to commence,
so at the time of the filing the government had not yet
violated the discovery order and the court had not yet
imposed any sanction.
STANDARD OF REVIEW
We review de novo a district court’s interpretation of the
Federal Rules of Criminal Procedure. United States v.
Navarro Viayra, 365 F.3d 790, 793 (9th Cir. 2004). We also
review de novo questions of waiver. Feldman v. Allstate
Ins. Co., 322 F.3d 660, 665 (9th Cir. 2003).
DISCUSSION
A. Jurisdiction
As a preliminary matter, Defendants argue that we lack
jurisdiction to review the district court’s interpretation
of the scope of Rule 16. Defendants assert that, because
the government appealed the July 20, 2006, sanction order,
the “collateral bar” rule precludes us from reviewing the
district court’s underlying substantive ruling contained in
the June 16 Order. That argument is foreclosed by our
precedent, which permits an appeal on the merits in this
situation. See United States v. Fernandez, 231 F.3d 1240,
1245 (9th Cir. 2000) (“For while discovery orders
themselves are not generally `final’ for purposes of
section 1291, parties who face such an order have the option
of making the decision `final’ simply by refusing to
comply, and appealing the resulting sanction.” (citation
and internal quotation marks omitted)). We turn, therefore,
to the merits of the government’s appeal.
B. Rule 16
This appeal presents the question whether investigative
reports prepared by a local police department prior to a
federal prosecutor’s involvement qualify for the discovery
exemption created by Rule 16(a)(2) when they are turned
over to the federal prosecutor for use in the federal
investigation and prosecution of the same acts by the same
people.[fn1] From the outset, it is important to note that
this appeal does not involve the government’s disclosure
obligations under Brady v. Maryland, 373 U.S. 83 (1963), or
other disclosure rules. The identifying information here
pertains to inculpatory, not exculpatory, evidence, and
nothing in this opinion should be interpreted to diminish
or dilute the government’s Brady obligations. We review only
the district court’s determination that local police
reports do not qualify for the Rule 16(a)(2) exemption and
that they are, therefore, discoverable materials under Rule
16(a)(1)(E). This is an issue of first impression for our
court. No constitutional or statutory provisions control
the outcome, so we must begin by reviewing the text of Rule
16. See United States v. John Doe, Inc., 481 U.S. 102, 109
(1987) (stating that an appellate court must look first to
the plain meaning of the text when interpreting a Federal
Rule of Criminal Procedure).
1. Text of the Rule
Rule 16(a)(1)(E) sets out the types of information that the
government must disclose to defendants during discovery:
Upon a defendant’s request, the government must permit
the defendant to inspect and to copy or photograph . . .
documents . . . if the item is within the government’s
possession, custody, or control and:
(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
defendant.
(Emphasis added.) Rule 16(a)(2) limits the scope of
discoverable materials:[fn2]
Except as Rule 16(a)(1) provides otherwise, this rule
does not authorize the discovery or inspection of reports,
memoranda, or other internal government documents made by
an attorney for the government or other government agent
in connection with investigating or prosecuting the
case. Nor does this rule authorize the discovery or
inspection of statements made by prospective government
witnesses except as provided in 18 U.S.C. § 3500.
(Emphasis added.)
It is undisputed that the written police reports at issue
here are “documents” within the “possession, custody, or
control” of the federal prosecutor and that they are
“material to preparing the defense.” Thus, the reports are
discoverable under Rule 16(a)(1)(E) unless exempted by Rule
16(a)(2). We must decide whether the reports were “made by
an . . . other government agent in connection with
investigating or prosecuting the case.” This inquiry
requires us, in turn, to determine what is meant by
“government agent” and “the case.”
a. “Government agent”
The Rules do not define the phrase “other government
agent.” Although the constituent term “government” is not
explicitly defined, it is used as shorthand for “federal
government” throughout the Rules.[fn3] In accordance with
that construction, Rule 1(b)(1) defines restrictively the
term “attorney for the government” to mean (as relevant
here) a federal prosecutor.[fn4]
Even though “government” means “federal government” in Rule
16(a)(2), we are still left to determine who qualifies as
an “agent” of the federal government in the context of the
discovery process in a federal criminal prosecution.
Defendants urge us to limit the concept of “government
agent” to those individuals who were employed directly by
the federal government or who were acting at the federal
prosecutor’s direction at the time that they drafted a
report. In contrast, the government urges that the term
“government agent” be given a broader definition that would
include state or local police officers whose investigation
of a defendant provides evidence to support a federal
prosecution of the same defendant for the activities so
investigated. Both readings are plausible, so we must look
more deeply.
It is a general rule of statutory construction that
“identical words used in different parts of the same act
are intended to have the same meaning.” Gustafson v. Alloyd
Co., 513 U.S. 561, 570 (1995) (internal quotation marks
omitted). Accordingly, we first examine the other parts of
Rule 16 for guidance. Rule 16(a)(1)(A) and (B) both refer to
a “government agent.” Rule 16(a)(1)(A) provides:
Upon a defendant’s request, the government must disclose
to the defendant the substance of any relevant oral
statement made by the defendant, before or after arrest,
in response to interrogation by a person the defendant
knew was a government agent if the government intends to
use the statement at trial.
(Emphasis added.)[fn5] As is true of Rule 16(a)(2), the term
“government agent” is not specifically defined in Rule
16(a)(1)(A). But Rule 16(a)(1)(A) has been read to require
federal prosecutors to disclose statements made by
defendants to local law enforcement officers so long as
such statements are in the federal prosecutor’s possession
at the time of trial. See United States v. Mitchell, 613
F.2d 779, 781 (10th Cir. 1980) (holding that Rule
16(a)(1)(A)’s disclosure requirement applies to a statement
made by the defendant to a state probation officer); see
also United States v. Rinn, 586 F.2d 113, 120 (9th Cir.
1978) (analyzing under Rule 16(a)(1)(A) the government’s
failure to disclose the defendant’s statement to an
undercover state police officer and holding that there was
no violation, but only because the defendant’s statement
was not in response to “interrogation”); United States v.
Cooper, 800 F.2d 412, 416 (4th Cir. 1986) (same, with
regard to the defendant’s incriminating statements to a D.C.
corrections officer); United States v. Brazel, 102 F.3d
1120, 1150 (11th Cir. 1997) (holding that the government
did not violate Rule 16(a)(1)(A) by failing to disclose the
defendant’s state-court guilty pleas before trial, where it
disclosed them as soon as it gained possession). We have
found no contradictory construction of Rule 16(a)(1)(B).
The government’s proposed reading of “government agent” is
consistent, then, with decisions implementing the same
phrase in Rule 16(a)(1)(A). Even so, Defendant’s narrower
construction is still plausible. Therefore, we look beyond
Rule 16 for additional insight.
Few of the Rules address the kind of potential cooperation
between federal and non-federal players raised in this
appeal, so they offer little guidance in interpreting Rule
16’s use of the term “government agent.” See supra note 2.
Federal Rule of Criminal Procedure 6 is one of the few
Rules, other than Rule 16, that pertains to potential
cooperation among federal, state, and local law enforcement.
The commentary to Rule 6 assists us in understanding the
Advisory Committee’s general concerns for a practical,
cooperative approach.
Rule 6 governs federal grand jury proceedings. In
establishing exceptions to the general rule of secrecy for
grand jury proceedings, Rule 6(e)(3) allows disclosure to
“any government personnel — including those of a
state, state subdivision, Indian tribe, or foreign
government — that an attorney for the government
considers necessary to assist in performing that attorney’s
duty to enforce criminal law.” Fed.R.Crim.P. 6(e)(3)(A)(ii)
(emphasis added). Thus, “government personnel” is defined
expressly to incorporate not only federal authorities, but
also employees of non-federal government entities that are
engaged in assisting federal criminal law enforcement. In
explaining the rationale for this expansive definition, the
Advisory Committee described concerns equally apropos to
Rule 16:
It is clearly desirable that federal and state
authorities cooperate, as they often do, in organized
crime and racketeering investigations, in public
corruption and major fraud cases, and in various other
situations where federal and state criminal jurisdictions
overlap. Because of such cooperation, government attorneys
in complex grand jury investigations frequently find it
necessary to enlist the help of a team of government
agents. While the agents are usually federal personnel, it
is not uncommon in certain types of investigations that
federal prosecutors wish to obtain the assistance of state
law enforcement personnel, which could be uniquely
beneficial. The amendment permits disclosure to those
personnel in the circumstances stated.
Fed.R.Crim.P. 6(e)(3)(A)(ii) (1985 amendments) advisory
committee’s note.
Although the Advisory Committee has not amended Rule 16 to
include a similar (or, indeed, any) express definition of
“government agent,” Rule 16 has not been subject to the
type of conflict among district courts that prompted the
Advisory Committee to amend Rule 6.[fn6] The practical and
policy considerations are parallel. We thus find it more
reasonable that, read in context, “government agent”
includes non-federal personnel whose work contributes to a
federal criminal “case.”
b. “The case”
Defendants argue that, even if “government agent” is read
to include local law enforcement officers, the police
reports at issue here do not fall within the scope of Rule
16(a)(2) because they were prepared before the federal
prosecutor initiated “the case.” In other words, Defendants
argue that, for the purposes of Rule 16(a)(2), a “case” does
not begin until a federal prosecutor becomes involved.
Again, the government urges a more expansive reading of the
term that includes the investigative work done before a
federal prosecutor takes on a federal prosecution, if the
investigative work concerns a particular defendant and the
particular conduct for which he is federally prosecuted.
Defendants assert that the Supreme Court and our court have
already addressed this question and have defined “the case”
in the limited manner that Defendants propose. To the
contrary, the ambiguity of this term remains. Indeed, the
opinions that Defendants cite actually weigh in favor of
the government’s proposed definition.
In United States v. Armstrong, 517 U.S. 456 (1996), the
Supreme Court considered whether Rule 16 entitled the
defendant to discovery for the purpose of gathering
materials in support of a proposed counterclaim of
selective prosecution against the federal prosecutors. The
defendant sought a list of the racial identities of all
defendants prosecuted federally for possession of drugs and
firearms during a three-year period. Id. at 459. The Court
held that a “defense” to which the documents must be
material means only “an argument in response to the
prosecution’s case in chief” and, thus, did not include
separate counterclaims such as selective prosecution. Id.
at 462. In arriving at that conclusion, the Court stated
that the term “case,” as used in Rule 16(a)(2), does not
extend to prosecutions against other people. Id.
The logic of Armstrong cuts against Defendants’ proposed
interpretation of “case.” In Armstrong, the key question in
determining the scope of a “case” under Rule 16(a)(2) was
whether it involves the same defendant and the same crime.
When state or local officials conduct an investigation that
ultimately leads to a federal (instead of a state)
prosecution against the same defendant for the very
activities investigated, Armstrong suggests that there is
but one “case” against the defendant within the meaning of
Rule 16. This concept is particularly applicable in RICO
prosecutions where state crimes can be charged as predicate
acts to establish a “pattern of racketeering activity.” 18
U.S.C. § 1961(1) & (5).
Similarly, in United States v. Cedano-Arellano, 332 F.3d
568 (9th Cir. 2003) (per curiam), we interpreted Rule
16(a)(2) to apply only to documents generated with a view
toward the prosecution of a defendant. In Cedano-Arellano,
the defendant sought access to the training records of the
narcotics-sniffing dog that had alerted police to drugs in
the gas tank of the defendant’s vehicle. Id. at 570. We
held that Rule 16(a)(2) did not except the training records
from discovery because “they were not made in connection
with investigating or prosecuting this or any other case.”
Id. at 571.
The clearest reading of Cedano-Arellano supports the
conclusion that documents that are “made in connection with
investigating or prosecuting this or any other case”
against a defendant are exempt from discovery under Rule
16(a)(2). Local police reports that result in a federal
investigation or prosecution of the same defendant for the
same acts are part of “the case” as so understood.
The continuing ambiguity of Rule 16(a)(2), notwithstanding
Armstrong and Cedano-Arellano, is illustrated by the
conflicting approaches that district courts have taken in
interpreting it. Compare United States v. Cherry, 876 F.
Supp. 547, 551-52 (S.D.N.Y. 1995) (holding that, where the
federal prosecution is a direct outgrowth of an
investigation by local authorities, the local investigation
and federal prosecution are one “case,” and the local
police reports generated prior to federal involvement are
exempt from discovery under Rule 16(a)(2)), and United
States v. Duncan, 586 F. Supp. 1305, 1313 (W.D. Mich. 1984)
(denying under Rule 16(a)(2) the defendant’s discovery
request for all police reports related to his prosecution),
with United States v. DeBacker, 493 F. Supp. 1078, 1082
(W.D. Mich. 1980) (holding that, where state police began
an investigation prior to federal involvement, police
reports were discoverable under Rule 16); and United States
v. Green, 144 F.R.D. 631, 641 (W.D.N.Y. 1992) (“However, to
the extent that the government has in its possession
reports or records from state or local law enforcement
agencies or prisons, these items are discoverable unless
they are the product of a joint investigation or unless
they have become the work product of the federal
investigators.”).
Because the text of Rule 16(a)(2) remains ambiguous after
considering its text and context, we turn to other
interpretative aids to help resolve the question before us.
2. Advisory Committee’s Intentions
The Advisory Committee’s explanatory notes do not address
the question presented here. We must, therefore, find
indirect ways to understand the Committee’s intent.
Defendants contend that the drafters intended Rule 16(a)(2)
to be a “work product” exception and, therefore, that we
should limit the rule to the contours of the work product
privilege codified in Federal Rule of Civil Procedure 26.
We are not persuaded that the drafters meant to limit
Criminal Rule 16 to the civil “work product” doctrine. Rule
16 itself, while encompassing government work product and
having its genesis in the idea of work product, draws its
boundaries more broadly than those of Civil Rule 26.[fn7]
It is true that Rule 16(a)(2) is often referred to as a
“work product” rule. See, e.g, Fed.R.Crim.P. 16 (1975
enactment) advisory committee’s note D (“Rules 16(a)(2) and
(b)(2) define certain types of materials (`work product’)
not to be discoverable.”); Armstrong, 517 U.S. at 463
(stating that “under Rule 16(a)(2), [the defendant] may not
examine Government work product in connection with his
case”); United States v. Fernandez, 231 F.3d 1240, 1247 (9th
Cir. 2000) (“Additionally, Rule 16[(a)(2)] of the Federal
Rules of Criminal Procedure recognizes the work product
privilege and exempts from production `reports, memoranda,
or other internal government documents made by the attorney
for the government or any other government agent
investigating or prosecuting the case.'”).
At the same time, it is clear that Rule 16(a)(2)’s
protection of investigative materials extends beyond the
work product privilege as defined in the civil context.
Although the Advisory Committee used the term “work
product” to describe the materials discoverable under Rule
16(a)(2), it purposefully defined the Rule’s scope
differently than that of Rule 26. See Fed.R.Crim.P. 16
(1975 enactment) advisory committee’s note D.
As note D states, in 1975 the House of Representatives
proposed to limit the materials covered by Criminal Rule
16(a)(2) to accord with Civil Rule 26. Specifically, the
House sought to exempt only “the mental impressions,
conclusions, opinions, or legal theories of the attorney
for the government or other government agents.” Id. The
Committee rejected that proposal and maintained the more
expansive scope that includes all “reports, memoranda, or
other internal government documents.” Id.; see also In re
Grand Jury Subpoenas, 318 F.3d 379, 383 (2d Cir. 2003)
(noting that Rule 16 imposes a stricter limit to discovery
in criminal matters than Rule 26 imposes in civil
litigation).
The Fifth Circuit in United States v. Mann, 61 F.3d 326
(5th Cir. 1995), also has cautioned that Rule 16 is not
coextensive with the work product privilege, despite their
interrelatedness. The Mann court expressly rejected the
contention, raised by the defendants there (and by
Defendants here), that the Supreme Court equated the two in
United States v. Nobles, 422 U.S. 225 (1975). Mann, 61 F.3d
at 331.
Although Rule 16 was an issue in Nobles, the Court
addressed the work product doctrine separately from Rule 16
and did not equate them. 422 U.S. at 234-40. The Court’s
comments regarding the work product doctrine are
instructive in pointing to a practical interpretation:
At its core, the work-product doctrine shelters the
mental processes of the attorney, providing a privileged
area within which he can analyze and prepare his client’s
case. But the doctrine is an intensely practical one,
grounded in the realities of litigation in our adversary
system. One of those realities is that attorneys often
must rely on the assistance of investigators and other
agents in the compilation of materials in preparation for
trial. It is therefore necessary that the doctrine protect
material prepared by agents for the attorney as well as
those prepared by the attorney himself.
Id. at 238-39.
Mann’s distinction between the work product doctrine and
Rule 16(a)(2) is further illustrated by the differing
treatment of investigative reports. Under the work product
doctrine, police reports are rarely protected. See, e.g.,
Miller v. Pancucci, 141 F.R.D. 292, 303 (C.D. Cal. 1992); 6
James Wm. Moore et al., Moore’s Federal Practice §
26.70(c)(iii) (2006). But police reports (at least those
created by federal law enforcement officers) plainly are
protected under Rule 16(a)(2). United States v. Jordan, 316
F.3d 1215, 1227 n. 17 (11th Cir. 2003). Thus, again, we can
see that Rule 16 is not just a work product rule.
Rather, the drafters intended Rule 16(a)(2) to be a rule of
discovery, related to the work product doctrine but not
synonymous or coextensive with it. Therefore, we must go
beyond the work product doctrine to determine the scope of
Rule 16(a)(2).
3. Symmetry of Obligations
Rule 16 does not stand in isolation as the sole source of
discovery obligations placed on parties to criminal
litigation. Instead, Rule 16 acts in concert with other
statutory and common law obligations.
a. The Jencks Act
The text of Rule 16(a)(2) delimits its own scope by
reference to the Jencks Act: “Nor does this rule authorize
the discovery or inspection of statements made by
prospective government witnesses except as provided in 18
U.S.C. § 3500.” The best clue that we have as to what
the Advisory Committee that drafted Rule 16 intended
regarding the scope of Rule 16(a)(2)’s exception is its
reference in its committee note to two Jencks Act-related
cases, Palermo v. United States, 360 U.S. 343 (1959); and
Ogden v. United States, 303 F.2d 724 (9th Cir. 1962).[fn8]
The Jencks Act requires the government to disclose to
criminal defendants any statement made by a government
witness that is “in the possession of the United States”
once that witness has testified. 18 U.S.C. § 3500(a)
& (b) (emphasis added).[fn9] The Act, in its current form,
does not distinguish between statements obtained by federal
officials and statements obtained by state or local
officials. Rather, the text of the statute requires that
the government disclose all witness statements, regardless
whether state obtained or federally obtained, so long as
the statements are in the actual possession of the federal
government at the time of the trial. See Palermo, 360 U.S.
343 (describing Jencks Act disclosure requirements and
making no distinction based on affiliation of official
obtaining the statement); Ogden, 303 F.2d 724 (same).[fn10]
In cases relating to the Jencks Act, the key question posed
by most courts is that of possession. For example, in
United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976),
we addressed a defendant’s request that the federal
prosecutors produce photographs that the state police had
included in a photo array used to obtain witness
identifications of the defendant. We held that the
defendants did not have the right to production because the
federal prosecutor never had possession of the photos. Id.
at 21. We analogized the case to a Jencks Act request:
[T]he demand to produce these photographs might well be
likened to an attempt to require production under the
Jencks Act of statements in the possession of state
police. See Beavers v. United States, 351 F.2d 507 (9th
Cir. 1965), where the statements were never in possession
of the United States and production was not required.
Id.; see also United States v. Weaver, 267 F.3d 231, 245 (3d
Cir. 2001) (noting, in dictum, that “the Jencks Act only
applies to evidence in the possession of the United States,
and not state authorities”); United States v. Harris, 368
F. Supp. 697, 709 (E.D. Pa. 1973) (finding no Jencks Act
violation because, “[n]otwithstanding the cooperative law
enforcement effort of the Federal and state authorities, the
fact of the matter is that the reports in question were
compiled by the city police officers, submitted as a matter
of course to their superiors in the police department, and
are now (and were at the time of trial) in the lawful
possession and control of the Philadelphia Police
Department”). We think that the drafters intended the same
inquiry to be made here.
b. Rule 16(a)(1)(E)
Our case law supports a symmetrical reading of Rule 16’s
discovery obligations. In United States v. Gatto, 763 F.2d
1040 (9th Cir. 1985), we examined the scope of the
prosecution’s duty to disclose evidence to the defendants
under Rule 16(a)(1)(E).[fn11] Specifically, we were asked
whether evidence found and held by state authorities until
the eve of trial was discoverable to defendants under Rule
16(a)(1)(E). We focused on physical possession as the
dispositive factor. Gatto, 763 F.2d at 1046-49. We held
that the evidence became discoverable only when the state
authorities placed it in the hands of the federal
authorities, because “the triggering requirement under rule
16[(a)(1)(E)] is that the papers, documents, and tangible
objects be in the actual possession, custody or control of
the government.”[fn12] Id. at 1049.
Gatto’s emphasis on possession as the triggering
requirement for Rule 16 accords with decisions by this and
other circuits. See, e.g., United States v. Friedman, 593
F.2d 109, 119-20 (9th Cir. 1979) (holding that neither Rule
16 nor the Jencks Act required the production of a document
held by a foreign government, because the federal
prosecutor did not have possession of it); United States v.
Adkins, 741 F.2d 744, 747 (5th Cir. 1984) (holding that
Rule 16(a)(1)(E)’s predecessor “require[s] the government
only to turn over those records actually in its
possession”).[fn13]
Under Gatto, state-gathered evidence becomes subject to the
disclosure obligation established by Rule 16(a)(1)(E) when
it passes into federal possession. We believe that Rule
16(a)(2) is best read to create symmetry between the
disclosure obligation and the exception to that obligation.
Rule 16(a)(2) is, after all, an exception to the
disgorgement requirement of Rule 16(a)(1)(E), which depends
on the document’s being “within the government’s
possession, custody, or control.” In the context of this
appeal, then, investigative reports created by state police
officers and turned over to federal prosecutors to support
a unified federal prosecution of defendants should be
considered reports “made by an . . . other government agent
in connection with investigating or prosecuting the case.”
c. Form 302s
In addition to establishing symmetry between the
government’s Jencks Act obligations and those imposed by
Rule 16, the government’s proposed reading of Rule 16(a)(2)
creates symmetry between the treatment of like
investigative reports created by investigating officers.
Rule 16(a)(2) exempts reports created by FBI agents (Form
302s) from disclosure. Jordan, 316 F.3d at 1227 n. 17.
Under Defendants’ limited reading of the Rule, parallel
investigative reports created by state or local police
officers would be treated differently for the purpose of
discovery. The similar reports would be treated differently
even if they were created in order to support a
prosecution, turned over to federal prosecutors, and used by
federal prosecutors in the preparation of a case. That
asymmetry is illogical. Symmetry is particularly compelling
when evidence of state crimes such as drug dealing,
robbery, and murder are predicate acts under RICO to
establish a “pattern of racketeering activity” in violation
of federal law. 18 U.S.C. § 1961.
4. Policy Considerations
Finally, to determine the intent of the drafters of Rule
16(a)(2), we examine policy considerations. In Cherry, the
District Court for the Southern District of New York
addressed squarely the issue before us. It noted:
This federal prosecution is a direct outgrowth of
investigations by local authorities. Those investigations
covered the same conduct by the same defendants charged in
the federal indictment. For all practical purposes,
including the application of Rule 16(a)(2), this local
investigation and federal prosecution should be considered
one “case.” To hold otherwise, thereby making underlying
local or state investigatory files subject to pre-trial
discovery by a subsequently federally indicted defendant,
would in all likelihood inhibit cooperation between
local and federal law enforcement agencies, to the benefit
of criminals but to the detriment of the public good.
876 F. Supp. at 551-52 (footnotes omitted). Those concerns
are echoed here.
The present case involves the federal prosecution of
Defendants for, in part, gang activities in violation of
RICO, 18 U.S.C. §§ 1961-1968. A number of the
predicate acts on which the RICO charge is based are state
law crimes, including various counts of murder and attempted
murder. It is precisely this type of case in which
cooperation between state and federal law enforcement is
most crucial. As we explained above, the Advisory Committee
signaled the importance and desirability of federal-state
cooperation when it explained changes to Criminal Rule 6.
Here, San Francisco police officers investigated Defendants’
illegal conduct and then turned the results of their
investigation over to federal authorities, allowing their
work to be subsumed within a single, unified prosecution of
Defendants by the federal authorities.[fn14]
In conclusion, we hold that Rule 16(a)(2) extends to the
San Francisco police reports created prior to federal
involvement but relinquished to federal prosecutors to
support a unified prosecution of Defendants for the same
criminal activity that was the subject of the local
investigation. It is an overstatement by the dissent to
suggest that our opinion expands the scope of documents
covered by Rule 16 and the Jencks Act. We here address
witness statements to be used in a federal criminal
prosecution but initially given to San Francisco police
officers along with the officers’ case reports revealing
the identities of the witnesses and summarizing their
statements. These types of documents have always been
protected under federal law if compiled by federal
officers. Our opinion recognizes no principled reason why
the law should be any different in a federal prosecution
regardless of who gathered the statements.[fn15]
C. Waiver
Notwithstanding its ruling that the police reports were
discoverable under Rule 16, the district court held, in the
alternative, that the government had waived any potential
Rule 16(a)(2) protection of the documents by turning over
redacted copies of the reports to Defendants. Applying the
principles of the work product privilege, the court held:
“Disclosure of privileged material waives the privilege as
to all material on the same subject.”
As we stated above, Rule 16(a)(2) is not, strictly
speaking, a work product privilege. It is, rather, a
broader rule of discovery. Therefore, we look for guidance
to the general principles of waiver. Waiver is the
“intentional or voluntary relinquishment of a known right.”
Black’s Law Dictionary 1580 (6th ed. 1990). It can be
either express or implied. Id.
The Fifth Circuit’s discussion in Mann analyzes a situation
similar to the one we consider here. In Mann, the
government had allowed the defendants access to documents
protected by Rule 16(a)(2) through an express agreement
between the parties that the defendants would not copy the
materials. 61 F.3d at 329. The defendants broke the
no-copying agreement, and the government rescinded access.
Id. The defendants challenged — on the basis of
waiver — the validity of the government’s change of
heart. They argued “waiver” as it applies to the work
product privilege and cited Nobles in support. Id. at 331.
The Mann court held, first, that Rule 16(a)(2) and the work
product privilege are not synonymous and that Nobles did
not make them so:
Nobles, which was not concerned with Rule 16(a)(2),
cannot be read to alter the plain language of a rule it
did not address. . . . In short, we do not think that
Nobles expands the attorney work product privilege to
other government agent internal reports, such as those
contemplated in Rule 16(a)(2).
Id. Applying general principles of waiver, the Fifth Circuit
held that the government did not waive its Rule 16(a)(2)
protection by allowing the defendants to have conditional
access to the protected documents. Id. at 332.
Although the facts before us differ from those of Mann in
certain respects, we reach the same result. Here, the
government did not execute an express disclosure agreement.
But it has clearly and consistently articulated its
intention to preserve the confidentiality of
inculpatory-witness identifications. It carried through on
that intention with regard to the police reports by
systematically redacting all witness locator information,
while permitting Defendants access to the substantive
information contained within the reports. The government’s
consistent and systematic retention of control over
witness-identifying information demonstrates that it did
not intentionally or voluntarily relinquish its rights
under Rule 16(a)(2) to hold back this information from
discovery.
We hold that the government’s disclosure of redacted copies
of local police reports, where the redactions were
consistent and supported by an articulated intention to
protect witness identities in the context of a case in
which the district court has already found a serious risk
of harm to witnesses, does not constitute a waiver of the
documents’ Rule 16(a)(2) protection.
D. Expert Use
The district court also held, in the alternative, that the
government had waived any potential Rule 16(a)(2)
protection by allowing one of its gang-crimes experts to
rely on the protected materials in developing his opinions.
The government concedes that materials on which a proposed
expert witness relies must be produced to Defendants in
discovery, and we agree. The government disputes, however,
that the expert relied on the police reports at issue here.
This is a question of fact that we remand to the district
court for it to determine.
E. Sanction Appeal
Because we reverse the district court’s June 16 discovery
order, we also reverse its July 20, 2006, sanction order.
Consequently, we need not reach the government’s challenge
to the sanction imposed by the district court.
F. Cross-Appeal
We do not have jurisdiction over Defendant’s cross-appeal
of the July 20, 2006, sanction order. See United States v.
Eccles, 850 F.2d 1357, 1361 (9th Cir. 1988) (“[A] defendant
may not cross-appeal from an interlocutory appeal under [18
U.S.C. § ] 3731.”).
G. Petition for Mandamus
Finally, we turn to the government’s petition for mandamus,
which challenges the district court’s August 26, 2005,
order requiring the government to produce a list of
witnesses 21 days before trial, pursuant to 18 U.S.C.
§ 3432.[fn16] Given our ruling regarding the
government’s discovery obligations under Rule 16 and the
effect that this ruling will have on the overall management
of discovery in this case, and given the fact that the time
for compliance has not yet arrived, we decline to reach the
merits of the government’s petition for mandamus at this
time and, instead, remand all discovery issues to the
district court for reconsideration.
CONCLUSION
The cross-appeal filed by Defendants Fort and Diaz (No.
06-10478) is DISMISSED. The following orders issued by the
district court are VACATED:
1. May 18, 2006 — Order re Discoverability of Local
Police Reports Under Rule 16 and Schedule for Further
Submissions, Doc. #367;
2. June 16, 2006 — Concluding Order re Local Police
Reports and Rule 16 Discovery, Doc. #472; and
3. July 20, 2006 — Testimony Preclusion Order as
Sanction for Non-Compliance with Rule 16 Orders, Doc. #578.
All matters relating to the discovery of materials pursuant
to Rule 16 are REMANDED to the district court for
reconsideration in the light of this opinion.
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