U.S. v. Cadet, 82-1631

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Citation: 727 F.2d 1453
• Docket Number: No. 82-1631,82-1631
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raymond J. CADET, Barry Saffaie, Tabassom Ayazi, Defendants-Appellees.
• Decision Date: 02 July 1984

Page 1453

727 F.2d 1453

UNITED STATES of America, Plaintiff-Appellant, v. Raymond J. CADET, Barry Saffaie, Tabassom Ayazi, Defendants-Appellees.

No. 82-1631.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 13, 1983.

Decided March 13, 1984.

As Amended July 2, 1984.

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellant.

Lawrence A. Callaghan, Goldstein & Phillips, San Francisco, Cal., Daniel Cook, San Jose, Cal., Paul B. Meltzer, Santa Cruz, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before ALARCON, CANBY, and REINHARDT, Circuit Judges.

ALARCON, Circuit Judge:

I.

The government has appealed from the judgment dismissing a four-count indictment against Raymond J. Cadet (Cadet), Barry Saffaie (Saffaie), and Tabassom Ayazi (Ayazi) with prejudice.

We must decide whether the district court erred in dismissing this matter because of the government's good faith refusal to obey certain provisions of the court's discovery order. We have concluded that it

was improper to dismiss the indictment since significant portions of the order were invalid.

II.

PERTINENT FACTS

An indictment was returned by the grand jury on June 30, 1982, charging Cadet, Saffaie, and Ayazi with transporting, receiving, and selling documents allegedly stolen from International Business Machines Corporation (IBM).

On July 9, 1982, the court ordered that the defendants' pretrial motions be filed by July 30, 1982. The government was ordered to file its response to such motions by August 6, 1982. Counsel for Saffaie asked the court to set a trial date outside the "statutory 70-day period because of the complexity of the case" and to schedule the hearing motions "sometime in either October or November." The court was advised by Saffaie's attorney that the government had no objection. The court denied this request and set the matter for trial within the statutory time after stating that the alleged complexity of the case did not constitute good cause for the suggested delay. The court ordered that all pretrial motions be heard on August 13, 1982. September 7, 1982 was scheduled as the date for trial by jury.

On July 30, 1982, Saffaie and Ayazi filed a joint motion for discovery and requested that a hearing be conducted on August 13, 1983. Cadet filed a separate discovery motion requesting a hearing on the same date.

On July 30, 1982, counsel for Saffaie and Ayazi also filed a motion to dismiss the charges against them with prejudice "due to the government's failure to comply with formal and informal requests for discovery pursuant to Rules 12(d)(2) and 16 of the Federal Rules of Criminal Procedure."

On August 6, 1982, the government filed its response to these motions.

III.

Hearing on the discovery motions was held on August 13, 1982.

The court granted Cadet's request for discovery as to the following material described in his motion filed July 30, 1982.

"(1) All statements, confessions, admissions, remarks, or utterances of the defendants, made to investigating officers or to third parties, including IBM Corporation, National Semiconductor (NSC) and National Advance Systems (NAS) or employees or agents of said companies, as well as those statements, admissions, remarks, and utterances which may have been incorporated in any report, statement, memorandum, or other document or recording prepared by federal, state, or local government agents, including but not limited to investigators and/or attorneys of the FBI or the Department of Justice, or by any other persons working in conjunction with such agents, including but not limited to Richard Callaghan and/or other employees of IBM Corporation (IBM). In addition, the names of those present at the time the above statements were made.

"(2) The results and laboratory reports of scientific tests made in connection with this case, including, but not limited to fingerprints, or handwriting, which are in the possession, custody, or control of the United States or its agents, including IBM. Further, the results and reports of any analysis and/or expert opinion regarding the value and/or use of materials allegedly converted, stolen, or copied from IBM.

"(3) If any expert witness will be called by the prosecution, the name, address, qualifications, and subject of testimony of such expert, together with a copy of any report prepared by or for him or her, as well as copies of financial and accounting worksheets used as back-up by said expert.

"(4) An inventory of all physical or documentary evidence intended to be offered as evidence at the trial of this case, including the time, place, and means of its acquisition or seizure, its present location, and the name, address, and telephone number of its present custodian, and also an opportunity to inspect, examine, and make copies thereof, exclusive of documents provided informally by the United States.

"(5) All physical or documentary evidence, including but not limited to tangible objects, books, papers, documents, and interviews of defendants by non-government entities, including present or past employees, in custody or control of the United States, connected with this case which the plaintiff intends to offer as evidence at the trial, including those documents to be used to refresh recollection or for impeachment purposes, including the so-called Adirondack work books, including all editions and revisions, for the IBM 3081 Computer Processor Unit and its system development technology.

"(6) An inventory of all physical and documentary evidence relevant to the case obtained by the plaintiff by seizure, process, or any other means, which the prosecution does not intend to offer as evidence at trial, including its time, place, and means of acquisition or seizure, its present location, the name, address, and telephone number of its present custodian, and an opportunity to inspect and make copies thereof.

"(10) The names and addresses of all witnesses to the actions described in the Indictment whom the government does not intend to call as witnesses at the trial. ¹

"(11) Copies of all statements made by witnesses in this case, whether or not the prosecution intends to call the witnesses, which are in the possession or control of the prosecution or the existence of which is known, or by diligence may become known to the attorney for the government. ²

"(12) All statements or acts of persons believed by the government to be co-participants of the defendant, which the government intends to offer into evidence, as declarations or acts of co-participants of co-conspirators. ³

"(15) Describe any prior or subsequent similar acts of defendants or co-defendants the government intends to introduce at trial.

"(16) Any matter which would tend in any way to impeach any government witness, particularly including promises to agreements with any witness which may in any manner whatsoever be construed as inducement or reward for testimony at trial. ⁴

"(17) All information in whatever form, notwithstanding its nature or sources, which would tend in any way to benefit the defendants, whether by way of exculpation or of preparation for or presentation of their defense against the charges in this Indictment, ... as well as the complete set of the so-called Adirondack work books, including all revisions, editions, amendments, and dates of editions and revisions for the IBM 3081. This request encompasses the work books for all components of the IBM Processor Unit, including both Central Processor Units, the System Controller, External Data Controller and Central Storage Units.

"(19) It is requested that the Court direct the United States Attorney to supply to counsel for the defendants any material previously requested or which is subject to discovery or inspection which comes into the possession, knowledge or control of the United States Attorney."

IV.

The court ordered the prosecution to comply with the following requests for discovery which were set forth in the motion filed by Saffaie and Ayazi.

"1. A statement of the past and present relationship of International Business Machines (hereinafter "IBM"), and Palyn Associates, or their officers, agents, employees, contractors and/or consultants with the United States government, its agencies, departments, and other entities, and its agents and/or employees and, in particular, law enforcement or other political agencies, departments or entities, or their employees or agents, involved, directly or indirectly, in the investigation or prosecution of the instant case, of the case of United States v. Hitachi, Ltd. et al., Cr. No. 82-372 SW (S.J. (N.D.Cal.1982) (hereinafter the "Hitachi case"), or of the case of United States v. Mitsubishi Electric Corp., et al., Cr. No. 82-396-WAI (S.J.) (N.D.Cal.1982) (hereinafter the "Mitsubishi case"), and a like statement concerning all other criminal or civil cases, past or present, of a similar nature; production of the names, addresses, and titles of all persons involved in the relationship, any documents pertaining to the relationship, and the time period of the beginning and end of the relationship. ⁵

"2. A statement of all written or oral agreements or understandings, express or implied, between IBM or Palyn Associates, their officers, agents, employees, consultants and/or contractors with the United States government, its agencies, departments, and other entities and its agents and employees, and, in particular, law enforcement or other political agencies, departments or entities, or its agents and/or employees, concerning any aspect of IBM cooperation or assistance in the investigation or prosecution in the instant case, of the Hitachi case, or the Mitsubishi case, and a like statement concerning cooperation or assistance in all other criminal or civil cases, past or present, of a similar nature; production of the names, addresses, and titles of...