U.S. v. Fort

• Decision Date: 08 March 2007
• Docket Number: No. 06-10473.,No. 06-10478.,06-10473.,06-10478.
• Citation: 478 F.3d 1099
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Emile FORT, aka Twin; Edgar Diaz, aka Hook; Robert Calloway, aka Papa, Defendants-Appellees. v. Emile Fort, aka Twin; Edgar Diaz, aka Hook, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

478 F.3d 1099

UNITED STATES of America, Plaintiff-Appellant, v. Emile FORT, aka Twin; Edgar Diaz, aka Hook; Robert Calloway, aka Papa, Defendants-Appellees. v. Emile Fort, aka Twin; Edgar Diaz, aka Hook, Defendants-Appellants.

No. 06-10473.

No. 06-10478.

United States Court of Appeals, Ninth Circuit.

March 8, 2007.

Erika R. Frick, USSF—Office of the U.S. Attorney, Anjali Chaturvedi, Organized Crime Strike Force, San Francisco, CA, for Plaintiff-Appellant.

Michael Satris, Esq., Bolinas, CA, Harry C. Singer, Esq., John D. Cline, Esq., Martha Boesch, Esq., Jones Day, Tony Tamburello, Esq., Michael N. Burt, Dep. Pub. Def., San Francisco, CA, Seth P. Chazin, Esq., Albany, CA, Michael P. Thorman, Esq., Bonjour, Gough & Thorman, Hayward, CA, for Defendants-Appellees.

Before SUSAN P. GRABER, WILLIAM A. FLETCHER, and RICHARD C. TALLMAN, Circuit Judges.

ORDER

Judges Graber and Tallman voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge W. Fletcher voted to grant the petitions.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petition for panel rehearing and petition for rehearing en banc are DENIED. Judge Wardlaw's dissent from denial of en banc rehearing, and Judge Graber's concurrence in denial of en banc rehearing, are filed concurrently herewith.

GRABER, Circuit Judge, with whom TALLMAN, Circuit Judge, joins, concurring in the denial of rehearing en banc:

I write to concur in the order denying rehearing en banc, see, e.g., Defenders of Wildlife v. EPA, 450 F.3d 394, 402-06 (9th Cir.2006), with the limited purpose of addressing two material misunderstandings of the holding in United States v. Fort, 472 F.3d 1106 (9th Cir.2007), expressed in Judge Wardlaw's dissent from the order.

1. The most important clarification relates to the interaction between Fort and a prosecutor's duties to disclose exculpatory materials pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The sole question presented here was whether inculpatory (non-Brady), non-public investigative reports made by local police and then turned over to federal prosecutors for use in a federal prosecution concerning the same acts of the same persons are or are not exempted from disclosure by Federal Rule of Criminal Procedure 16(a)(2). The majority held that such materials are exempted from disclosure by Rule 16(a)(2). The parties did not raise an issue about, and we did not rule on, the scope or application of Brady disclosure requirements. Indeed, that issue was not ripe for review in this interlocutory appeal because the deadline set for production of Brady materials in advance of trial had not yet been reached.

2. The dissent predicts dire consequences for the criminal discovery process. Dissent 2656-58. Ironically, Judge Wardlaw concentrates most of her attention on a prediction that Fort will vastly expand the kinds of materials that the federal government will have to produce during discovery. Dissent 2656-59. These concerns hinge on a second key misunderstanding.

The dissent draws an incorrect parallel between the discovery obligations imposed on the government by Federal Rule of Criminal Procedure 16(a)(1)(E) and the discovery exemption provided by Rule 16(a)(1). For the purposes of Rule 16(a)(1)(E), this court has held, "[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.1989) (emphasis added). The majority opinion does not deem the prosecution to have knowledge of or access to anything generated by a state or local actor that is not actually known by and in the possession of the prosecutor. In other words, unlike Bryan, Fort establishes no principle of constructive possession. Fort holds only that evidence gathered by state and local actors becomes subject to the disclosure obligation established by Rule 16 when it passes into federal possession for the purposes of a federal prosecution of the same defendants for the same acts that were initially subject to the state or local investigation; specifically, in this case, those acts are alleged to establish a pattern of racketeering activity in a prosecution under 18 U.S.C. § 1962. See United States v. Gatto, 763 F.2d 1040, 1049 (9th Cir. 1985). Therefore, the opinion's conclusion that "investigative reports created by state police officers and turned over to federal prosecutors to support a unified federal prosecution of defendants [are] reports `made by an . . . other government agent in connection with investigating or prosecuting the case,'" Fort, 472 F.3d at 1118(emphasis added), is both limited in scope and consistent with the prior precedent of this court.

In short, the local police reports generated by their criminal investigations are treated the same as if they were any other report of investigation with which federal courts are more familiar, such as a DEA Form 6 or an FBI Form 302 compiled in an identical federal criminal investigation. That symmetrical treatment is the key to our analysis interpreting a federal prosecutor's discovery obligations under Rule 16 and the Jencks Act.

WARDLAW, Circuit Judge, with whom PREGERSON, REINHARDT, W. FLETCHER, FISHER and PAEZ, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I respectfully must note my strong disagreement with my colleagues who voted against rehearing this appeal en banc. The issue is one of exceptional importance to the administration of justice in criminal proceedings: the scope of the work product privilege in criminal discovery.¹ The panel majority ignores the plain meaning of the Federal Rules of Criminal Procedure, as Judge W. Fletcher ably details in his dissenting opinion. United States v. Fort, 472 F.3d 1106, 1122-31(9th Cir.2007). Its interpretation of Rule 16 significantly alters the landscape of criminal discovery. In the course of its interpretative voyage, the panel majority works two sea-changes in existing law. First, it fashions from whole cloth a retroactive theory of agency between local and federal officials. Second, its holding as to the scope of the work product privilege directly conflicts with Supreme Court precedent, circuit court precedent, and the way prosecutors, defenders and district courts apply Rule 16 on a daily basis. The panel majority's opinion threatens to reduce prosecutorial transparency in criminal prosecutions, provides tools for discovery gamesmanship, unwittingly hampers prosecutors by creating traps for reversible Brady error, and increases the costs and burdens on criminal defendants, much of which is born by the federal government. The panel majority's opinion also has far-reaching effects, touching a vast number of criminal prosecutions in the Ninth Circuit. This is exactly the type of exceptional case that warrants rehearing en banc.

I. Background

This interlocutory appeal arises from a federal racketeering and drug conspiracy prosecution of some alleged members of the "Down Below Gang," which operates in public housing projects in San Francisco. The eighty-six count second superseding indictment, which includes one hundred and three predicate acts as part of the racketeering and drug conspiracies, names eleven defendants. Eight defendants entered plea agreements following the issuance of the panel majority's original unreasoned order that vacated the district court's discovery rulings. The government has filed notices of intent to seek the death penalty against defendants Emile Fort and Edgar Diaz.

The predicate acts were investigated by local police authorities for years before there was ever any federal involvement. As a result, there are thousands of pages of local police reports critical to both the prosecution and defense of the case. The Down Below Gang, like many violent criminal organizations, has a documented history of using violence and intimidation to thwart investigators and prosecutors. Citing witness protection concerns, federal prosecutors have steadfastly refused to turn over unredacted versions of the local police documents in their possession. The redactions in those documents include witness names and both inculpatory and exculpatory evidence.²

The district court found that the local police reports were "material to preparing the defense," under Federal Rule of Criminal Procedure 16(a)(1)(E), and ordered the prosecutors to turn the reports over in unredacted form. However, to ensure witness safety, using its authority under Rule 16(d), the district court limited disclosure of the documents, fashioning a nuanced and thorough protective order. Nevertheless, prosecutors adamantly refused to produce the local police reports, asserting the work product protections of Rule 16(a)(2).³ The district court unsurprisingly held that the Rule 16(a)(2) privilege applies only to documents made by agents of the federal government in connection with investigating or prosecuting the case. The district court further deemed local police officers, who at the time of the investigation of the case were working with federal investigators, federal "agents" for the purposes of the Rule 16(a)(2) privilege. However, such a joint-investigation showing, which would have justified the claim of privilege, was never made by the federal prosecutors. The district court therefore ordered evidentiary sanctions against the prosecutors for flouting its discovery holdings, and the government appealed.

II. Criminal Discovery

"There is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Over time a patchwork of...