U.S. v. Fort
| Decision Date | 08 January 2007 |
| Docket Number | No. 06-10473.,No. 06-10478.,06-10473.,06-10478. |
| Citation | 472 F.3d 1106 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Erika R. Frick, Assistant United States Attorney, San Francisco, CA, for Plaintiff-Appellant/Cross-Appellee.
Michael Satris, Law Offices of Michael Satris, Bolinas, CA; and Martha Boersch and John D. Cline, Jones Day, San Francisco, CA, for Defendant-Appellees/Cross-Appellants.
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.
Before GRABER, W. FLETCHER, and TALLMAN, Circuit Judges.
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 noncompliance. 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 noncompliance 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.
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.
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 noncompliance 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.
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 noncompliance 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.
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).
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) . We turn, therefore, to the merits of the government's appeal.
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.1 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or...
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