Friday, March 09, 2007

Case o' The Week: So Long, Sweet Sixteen - Fort en banc petition denied

In a very disappointing order, the Ninth refused to take en banc United States v. Fort, et al., 472 F.3d 1106, 1107 (9th Cir. 2007), Ord. denial of en banc available here. The discovery ramifications from Fort will long haunt the Ninth, but the case presents defense opportunities as well.

Players: Admirable amicus fight by San Diego F.D. Chief Appellate Attorney Steve Hubachek – with compelling stats provided by Nine Defenders and hundreds of AFPDs across the Ninth Circuit.

Facts: As reported in greater depth in an earlier memo, available here, Fort is a capital case where the government refused to give discovery despite the district court’s order. Judge Graber (right) wrote that a state officer (a cop) who works on a case long before a federal investigation begins is an “agent” of the federal government, and that this cop’s police reports need not be disclosed to the defense under F.R. Crim. Proc. 16(a)(2). See United States v. Fort, 472 F.3d 1106, 1107 (9th Cir. 2007). Judge W. Fletcher (left) dissented – persuasively, and vigorously. Id. at 1122.

Issue(s): En banc?

Held: No. Judge Wardlaw (right) writes a very thoughtful dissent from denial, joined by Judges Pregerson, Reinhardt, W. Fletcher, Fisher, and Paez.

Of Note: As noted in the earlier memo, Fort is a Big Deal, and this en banc denial is a bitter loss. (Nine Defenders join the amicus, and this isn’t an "issue of exceptional importance" worthy of an en banc call?) There’s now talk of a cert. petition, and the Rules Advisory Committee should take a look at this novel approach. Until then, there’s much mischief to be made.

How to Use: Judge Wardlaw writes a great defense primer on the use of Fort’s -- unique -- interpretation of Rule 16. See Ord., 2006 WL 686615, *2 (Wardlaw, J., dissenting). Her dissent is a must-read, for Fort does much to “alter the landscape of criminal discovery.” Id. at *2. Here’s highlights:

1. Expansion of government agency: The Fort decision dramatically changes the Ninth’s approach to what constitutes a “federal agent.” Id. at *6. If local cops are now federal agents for the “work product” protections of Rule 16(a)(2), they are federal agents for the disclosure provisions of 16(a)(1) – and it doesn’t make a difference if the feds don’t physically possess the materials sought. Id. Also, a cop who is now a “federal agent” for Rule 16 is also a federal agent for Henthorn disclosure. AUSAs should now shoulder an affirmative duty to dig up dirt on their cop/agents and disclose them to the defense. Cite Fort prominently in your next motion. HenthornSee id. at *6; see also United States v. Henthorn, 931 F.2d 29 (9th Cir. 1990).

2. “Sauce for the Goose”: Those 538 white-collar defense attorneys working full time on Apple stock backdating? They should take a break and read Fort. Under Fort’s broad (odd) new definition of agency, a whole new slew of defense materials are now not subject to Rule 16 disclosure. See Wardlaw dissent at *6. A broadened agency theory for the government means less disclosure under Rule 16. Apply that same broad agency theory to defense materials subject to disclosure, and defense disclosure obligations shrivel.

3. Broadened Brady: Now that cops have been swept under Rule 16's wings, federal prosecutors have a duty to burrow for Brady/Giglio material among all the state files of their new “agents.” Preserve this discovery issue in every state-origin case; it’s a safe bet that we’ll see a nice percentage of later Brady reversals for non-disclosure of state Brady material. Id. *6.

4. Federalize state searches: Sloppy state searches got a pass under Crim Pro Rule 41 because cops aren’t federal agents – but no longer, under Fort. Revisit suppression challenges under Fort’s novel new cop-agent theory. Id. at *7.

5. Educate the district court: The big loser in Fort isn’t the defense – it’s the district court. Id. at *8. Explain to your federal judge that the Executive just took a big bite out of the district court's case-management power. Id. There’s nothing like Executive encroachment on Article III power to make a trial judge rethink his or her views on defense requests. (Requests, for example, like Rule 17(c) subpoenas for police reports. (Fort doesn’t touch Rule 17(c) subpoenas)).

For Further Reading:
White collar folks, wake up and beat the drums: you too will soon face Fort when looking for routine accountant, regulatory, or expert docs completed long before your federal case. See Wardlaw dissent. at *6; see also Linda S. Eads, Adjudication by Ambush, 67 NCLR 577 (1989).

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


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