Case o' The Week: Unwelcome FORTIFICATION of Rule 16 Discovery, U.S. v. Fort

"Manifestly absurd," complains dissenting Judge William Fletcher of Judge Graber's statutory interpretation of Rule 16 in United States v. Emile Fort, __ F.3d. __, No. 06-10473 (9th Cir. Jan. 8, 2007), opinion available here. (Or, to be fair, that's how Fletcher characterizes the logical consequences of the majority's statutory reading . . . .)
In Fort, Judges Graber and Tallman deliver an extraordinarily disappointing discovery decision; an opinion that could have a profound impact on federal criminal practice. Judge Fletcher predicts defense chaos will ensue based on the decision's new (and strained) interpretation of Rule 16: let's oblige.

Players: Graber (above right) writes, Tallman (below right) joins; W. Fletcher (upper left) dissents.

Facts: Feds inherited previous state gang investigations and made them into federal, RICO, capital charges. While developing their case, federal AUSAs got copies of San Francisco (local) police reports. The federal prosecutors disclosed many of these reports to the defense, but redacted key names due to witness safety. N.D. Cal. Judge Alsup ordered disclosure of the unredacted reports under a restrictive protective order. Slip op. at 4-5. In a heated hearing, the government refused to comply: Alsup imposed sanctions. Id. at 3. The government took up the discovery and sanction orders in an interlocutory appeal. Id.

Issue(s): “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.” Id. at 9 (emphasis added).

Held: “We hold that the documents [the police reports] 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 [discovery] order . . . .” Id. at 3.

Of Note: Judge William Fletcher questions the majority's statutory interpretation in a forceful and persuasive dissent. [ed. note: This particular judge does not use phrases like “manifestly absurd” lightly: en banc antennae should be quivering].

Judge Fletcher's plain reading of the rule is right; the majority’s interpretation of an exemption to Rule 16 disclosure requirements turns the statute on its head. Moreover, the majority’s strained interpretation opens up all sorts of “sauce for the goose, sauce for the gander” arguments for the defense (as Judge Fletcher warns in his dissent). If this decision doesn’t go en banc, it is a wide-open invitation for a whole raft of new defense challenges (see "How to Use" below).

What a mess this opinion could cause. Imagine not getting the local cop’s police report in a simple felon-in-possession case, or no report disclosed in a little one-shot crack sale that goes federal. The police report is the discovery, in those cases -- and those cases are the bulk of the federal criminal docket. The majority's decision ignores the fact that feds don’t make their own cases anymore: by and large, they just snag investigations from state cops. Fort will profoundly gum up the works in the vast number of state investigations that go federal: how can one defend or resolve a case without even seeing the police report?

How to Use: The majority in Fort oddly interprets Rule 16's use of “agent” of the “government” to include state officers working on a case long before the federal investigation begins. White collar defense bar, take note: given the majority’s novel interpretation, a symmetrical reading of Rule 16(b)(2) would allow the defense to avoid reciprocal defense disclosure of many documents under a dramatically broadened theory of what constitutes the defendant’s “agents” (such as corporate employees, accountants, investigators, firm lawyers, etc.). See Fletcher, W., dissenting at 11-12.

What about dirt from a state or local officer’s personnel file? Under United States v. Henthorn, 931 F.2d 29 (9th Cir. 1990) the defense traditionally only got disclosure if the law enforcement officer was federal, or an officially cross-designated state/federal agent. But, the Fort majority’s strained reading of “agent” should broaden Henthorn discovery obligations. According to Judge Graber, local cops are now federal government “agents,” even before a case goes federal. [I can’t explain it; I just report it]. If that’s true, then Henthorn disclosure obligations should apply to those local cops when a federal case is initiated. Use Fort to broaden federal government disclosure obligations, when seeking impeachment information from local or state officers’ personnel files.

Finally, what about actually getting needed police reports? Try Rule 17(c) subpoenas – a tool not touched by this opinion at all. District court judges unimpressed with Fort's reasoning (and unwilling to tolerate the chaos the opinion will cause for their docket) may now have a new view of the relevance of a 17(c) subpoena for a local police report.

For Further Reading: For a good description of the back story to this heated battle, see Justin Scheck’s Recorder article here (subscription required, free trial available at this link).

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org


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