United States v. Fort ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v. No. 06-10473
EMILE FORT, aka Twin; EDGAR  D.C. No.
DIAZ, aka Hook; ROBERT CR-05-00167-WHA
CALLOWAY, aka Papa,
Defendants-Appellees.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-10478
v.
 D.C. No.
CR-05-00167-WHA
EMILE FORT, aka Twin; EDGAR
DIAZ, aka Hook, OPINION
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
October 19, 2006—San Francisco, California
Filed January 8, 2007
Before: Susan P. Graber, William A. Fletcher, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge W. Fletcher
335
UNITED STATES v. FORT 339
COUNSEL
Erika R. Frick, Assistant United States Attorney, San Fran-
cisco, California, for the plaintiff-appellant-cross-appellee.
340 UNITED STATES v. FORT
Michael Satris, Law Offices of Michael Satris, Bolinas, Cali-
fornia; and Martha Boersch and John D. Cline, Jones Day,
San Francisco, California, for the defendants-appellees-cross-
appellants.
OPINION
GRABER, Circuit Judge:
The federal criminal prosecution of Defendants Emile Fort,
Edgar Diaz, and Robert Calloway for racketeering and vari-
ous 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 enter-
prise of individuals associated in fact, who dealt drugs, com-
mitted 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 resi-
dents of the housing project, and the district court has found
“that the government has made a substantial showing of dan-
ger to inculpatory witnesses.”
The United States brings this interlocutory appeal to chal-
lenge 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 prosecu-
tion 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 fed-
eral prosecutor for the purpose of pursuing charges against
Defendants under the Federal Racketeer Influenced and Cor-
rupt 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
UNITED STATES v. FORT 341
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 gov-
ernment.
We hold that the documents in dispute are not discoverable
because they are covered by Federal Rule of Criminal Proce-
dure 16(a)(2) whether prepared by federal, state, or local offi-
cials. 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 manda-
mus 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 submit-
ted 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 with-
out ruling on the mandamus petition.
FACTUAL AND PROCEDURAL BACKGROUND
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. Defen-
dants Fort, Diaz, and Calloway are the only three defendants
who are involved in this appeal.
A. Rule 16 Orders
The first set of orders at issue here relates to inculpatory
police reports created by the San Francisco Police Department
342 UNITED STATES v. FORT
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 wit-
ness 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 “docu-
ments” 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 intention-
ally produced portions of the reports to Defendants. Second,
it held that the government further waived any Rule 16 pro-
tection with regard to a number of the police reports by allow-
ing 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 pur-
suant to the terms of an accompanying Protective Order for
UNITED STATES v. FORT 343
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 opin-
ion, the court found that the government had made a substan-
tial 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 Pro-
tective 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 govern-
ment 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.
B. 18 U.S.C. § 3432 Order
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 govern-
ment 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 sched-
uled to commence, so at the time of the filing the government
344 UNITED STATES v. FORT
had not yet violated the discovery order and the court had not
yet imposed any sanction.
STANDARD OF REVIEW
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).
DISCUSSION
A. Jurisdiction
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 govern-
ment appealed the July 20, 2006, sanction order, the “collat-
eral 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) (“For while
discovery orders themselves are not generally ‘final’ for pur-
poses of section 1291, parties who face such an order have the
option of making the decision ‘final’ simply by refusing to
comply, and appealing the resulting sanction.” (citation and
internal quotation marks omitted)). We turn, therefore, to the
merits of the government’s appeal.
B. Rule 16
[1] This appeal presents the question whether investigative
reports prepared by a local police department prior to a fed-
eral 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
UNITED STATES v. FORT 345
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 (1963), or other disclosure rules.
The identifying information here pertains to inculpatory, not
exculpatory, evidence, and nothing in this opinion should be
interpreted to diminish or dilute the government’s Brady obli-
gations. We review only the district court’s determination that
local police reports do not qualify for the Rule 16(a)(2)
exemption and that they are, therefore, discoverable materials
under Rule 16(a)(1)(E). This is an issue of first impression for
our court. No constitutional or statutory provisions control the
outcome, so we must begin by reviewing the text of Rule 16.
See United States v. John Doe, Inc., 481 U.S. 102, 109 (1987)
(stating that an appellate court must look first to the plain
meaning of the text when interpreting a Federal Rule of Crim-
inal Procedure).
1. Text of the Rule
[2] Rule 16(a)(1)(E) sets out the types of information that
the government must disclose to defendants during discovery:
Upon a defendant’s request, the government must
permit the defendant to inspect and to copy or photo-
graph . . . documents . . . if the item is within the
government’s possession, custody, or control and:
(I) the item is material to preparing the defense;
1
The dissent vigorously pursues a ghost when it attacks as illogical the
government’s witness-protection motive for pursuing this appeal. Dissent
at 368-70, 384-85. We do not rely on the government’s motive or on wit-
ness protection to interpret Rule 16(a)(2). Our interpretation of Rule
16(a)(2) applies regardless of the content of the non-disclosed inculpatory
information and regardless of the potential effect of disclosure on witness
safety.
346 UNITED STATES v. FORT
(ii) the government intends to use the item in its
case-in-chief at trial; or
(iii) the item was obtained from or belongs to
the defendant.
(Emphasis added.) Rule 16(a)(2) limits the scope of discover-
able materials:2
Except as Rule 16(a)(1) provides otherwise, this
rule does not authorize the discovery or inspection
of reports, memoranda, or other internal government
documents made by an attorney for the government
or other government agent in connection with inves-
tigating or prosecuting the case. Nor does this rule
authorize the discovery or inspection of statements
made by prospective government witnesses except as
provided in 18 U.S.C. § 3500.
(Emphasis added.)
[3] It is undisputed that the written police reports at issue
here are “documents” within the “possession, custody, or con-
trol” of the federal prosecutor and that they are “material to
preparing the defense.” Thus, the reports are discoverable
under Rule 16(a)(1)(E) unless exempted by Rule 16(a)(2). We
2
In United States v. Rudolph, 224 F.R.D. 503 (N.D. Ala. 2004), the dis-
trict court addressed whether Rule 16(a)(2) provides an exception to the
discovery requirements of Rule 16(a)(1)(E). Because Rule 16(a)(2) begins
with the general statement, “Except as Rule 16(a)(1) provides otherwise,”
the court wrote that a plain reading of the text would lead to the conclu-
sion that all materials meeting the parameters of Rule 16(a)(1)(E) must be
produced. After a survey of the history of the rule’s purpose and structural
amendments, however, the court concluded that this conflict resulted from
a “scrivener’s error” and was not intended by the Advisory Committee or
by Congress. Id. at 507. Neither party raises that issue here. But, for the
purpose of clarity, we observe that the Rudolph court’s analysis is persua-
sive, and we adhere to its reading of Rule 16(a)(2) as an exception to the
discovery requirements of Rule 16(a)(1)(E).
UNITED STATES v. FORT 347
must decide whether the reports were “made by an . . . other
government agent in connection with investigating or prose-
cuting the case.” This inquiry requires us, in turn, to deter-
mine what is meant by “government agent” and “the case.”
a. “Government agent”
[4] The Rules do not define the phrase “other government
agent.” Although the constituent term “government” is not
explicitly defined, it is used as shorthand for “federal govern-
ment” throughout the Rules.3 In accordance with that con-
struction, Rule 1(b)(1) defines restrictively the term “attorney
for the government” to mean (as relevant here) a federal prosecu-
tor.4
3
See, e.g., Rule 7(f) (“The court may direct the government to file a bill
of particulars.”); Rule 9(a) (“The court must issue a warrant—or at the
government’s request, a summons—for each defendant named in an
indictment or named in an information if one or more affidavits accompa-
nying the information establish probable cause . . . .”); Rule 11(a)(2)
(“With the consent of the court and the government, a defendant may enter
a conditional plea of guilty or nolo contendere . . . .”); Rule 12(b)(4) (enti-
tled “Notice of the Government’s Intent to Use Evidence”); Rule 12(h)
(“At a suppression hearing, a law enforcement officer is considered a gov-
ernment witness.”); Rule 12.1(b) (requiring attorney for the government to
disclose information for “each witness the government intends to rely on
to establish the defendant’s presence at the scene” and “each government
rebuttal witness to the defendant’s alibi defense”); Rule 12.2(c)(3) (refer-
ring to the “government’s examination” of the defendant’s mental compe-
tency in context of insanity defense); see also Rules 5(c)(3)(D)(I),
5.1(a)(3) & (4), 5.1(f), 12.3(a)(4), 12.4(a)(2), 14(a), 14(b), 15(d), 17(b),
18, 23(a)(2), 24(b)(1) & (2), 26.3, 28, 29(a), 29.1, 31(b)(3),
32.1(a)(5)(B)(I), 32.2(a), 32.2(b)(1) & (4), 32.2(e)(1) & (2), 35(b),
41(a)(2)(C), 42(a)(2), 46(f)(3)(A) & (C), 48(a).
4
Rule 1(b)(1) provides:
“Attorney for the government” means:
(A) the Attorney General or an authorized assistant;
(B) a United States attorney or an authorized assistant;
(C) when applicable to cases arising under Guam law, the
Guam Attorney General or other person whom Guam law autho-
rizes to act in the matter; and
348 UNITED STATES v. FORT
Even though “government” means “federal government” in
Rule 16(a)(2), we are still left to determine who qualifies as
an “agent” of the federal government in the context of the dis-
covery process in a federal criminal prosecution. Defendants
urge us to limit the concept of “government agent” to those
individuals who were employed directly by the federal gov-
ernment or who were acting at the federal prosecutor’s direc-
tion at the time that they drafted a report. In contrast, the
government urges that the term “government agent” be given
a broader definition that would include state or local police
officers whose investigation of a defendant provides evidence
to support a federal prosecution of the same defendant for the
activities so investigated. Both readings are plausible, so we
must look more deeply.
It is a general rule of statutory construction that “identical
words used in different parts of the same act are intended to
have the same meaning.” Gustafson v. Alloyd Co., 513 U.S.
561, 570 (1995) (internal quotation marks omitted). Accord-
ingly, we first examine the other parts of Rule 16 for guid-
ance. Rule 16(a)(1)(A) and (B) both refer to a “government
agent.” Rule 16(a)(1)(A) provides:
Upon a defendant’s request, the government must
disclose to the defendant the substance of any rele-
vant oral statement made by the defendant, before or
after arrest, in response to interrogation by a person
the defendant knew was a government agent if the
government intends to use the statement at trial.
(Emphasis added.)5 As is true of Rule 16(a)(2), the term “gov-
(D) any other attorney authorized by law to conduct proceed-
ings under these rules as a prosecutor.
5
Rule 16(a)(1)(B) provides:
Upon a defendant’s request, the government must disclose to
the defendant . . . all of the following:
UNITED STATES v. FORT 349
ernment agent” is not specifically defined in Rule
16(a)(1)(A). But Rule 16(a)(1)(A) has been read to require
federal prosecutors to disclose statements made by defendants
to local law enforcement officers so long as such statements
are in the federal prosecutor’s possession at the time of trial.
See United States v. Mitchell, 613 F.2d 779, 781 (10th Cir.
1980) (holding that Rule 16(a)(1)(A)’s disclosure requirement
applies to a statement made by the defendant to a state proba-
tion officer); see also United States v. Rinn, 586 F.2d 113,
120 (9th Cir. 1978) (analyzing under Rule 16(a)(1)(A) the
government’s failure to disclose the defendant’s statement to
an undercover state police officer and holding that there was
no violation, but only because the defendant’s statement was
not in response to “interrogation”); United States v. Cooper,
800 F.2d 412, 416 (4th Cir. 1986) (same, with regard to the
defendant’s incriminating statements to a D.C. corrections
officer); United States v. Brazel, 102 F.3d 1120, 1150 (11th
Cir. 1997) (holding that the government did not violate Rule
16(a)(1)(A) by failing to disclose the defendant’s state-court
guilty pleas before trial, where it disclosed them as soon as it
gained possession). We have found no contradictory construc-
tion of Rule 16(a)(1)(B).
(i) any relevant written or recorded statement by the defendant
if:
• the statement is within the government’s possession, cus-
tody, or control; and
• the attorney for the government knows—or through due
diligence could know—that the statement exists;
(ii) the portion of any written record containing the substance
of any relevant oral statement made before or after arrest if the
defendant made the statement in response to interrogation by a
person the defendant knew was a government agent; and
(iii) the defendant’s recorded testimony before a grand jury
relating to the charged offense.
(Emphasis added.)
350 UNITED STATES v. FORT
The government’s proposed reading of “government agent”
is consistent, then, with decisions implementing the same
phrase in Rule 16(a)(1)(A). Even so, Defendant’s narrower
construction is still plausible. Therefore, we look beyond Rule
16 for additional insight.
Few of the Rules address the kind of potential cooperation
between federal and non-federal players raised in this appeal,
so they offer little guidance in interpreting Rule 16’s use of
the term “government agent.” See supra note 2. Federal Rule
of Criminal Procedure 6 is one of the few Rules, other than
Rule 16, that pertains to potential cooperation among federal,
state, and local law enforcement. The commentary to Rule 6
assists us in understanding the Advisory Committee’s general
concerns for a practical, cooperative approach.
[5] Rule 6 governs federal grand jury proceedings. In estab-
lishing exceptions to the general rule of secrecy for grand jury
proceedings, Rule 6(e)(3) allows disclosure to “any govern-
ment personnel—including those of a state, state subdivision,
Indian tribe, or foreign government—that an attorney for the
government considers necessary to assist in performing that
attorney’s duty to enforce criminal law.” Fed. R. Crim. P.
6(e)(3)(A)(ii) (emphasis added). Thus, “government person-
nel” is defined expressly to incorporate not only federal
authorities, but also employees of non-federal government
entities that are engaged in assisting federal criminal law
enforcement. In explaining the rationale for this expansive
definition, the Advisory Committee described concerns
equally apropos to Rule 16:
It is clearly desirable that federal and state authori-
ties cooperate, as they often do, in organized crime
and racketeering investigations, in public corruption
and major fraud cases, and in various other situations
where federal and state criminal jurisdictions over-
lap. Because of such cooperation, government attor-
neys in complex grand jury investigations frequently
UNITED STATES v. FORT 351
find it necessary to enlist the help of a team of gov-
ernment agents. While the agents are usually federal
personnel, it is not uncommon in certain types of
investigations that federal prosecutors wish to obtain
the assistance of state law enforcement personnel,
which could be uniquely beneficial. The amendment
permits disclosure to those personnel in the circum-
stances stated.
Fed. R. Crim. P. 6(e)(3)(A)(ii) (1985 amendments) advisory
committee’s note.
[6] Although the Advisory Committee has not amended
Rule 16 to include a similar (or, indeed, any) express defini-
tion of “government agent,” Rule 16 has not been subject to
the type of conflict among district courts that prompted the
Advisory Committee to amend Rule 6.6 The practical and pol-
icy considerations are parallel. We thus find it more reason-
able that, read in context, “government agent” includes non-
federal personnel whose work contributes to a federal crimi-
nal “case.”
b. “The case”
Defendants argue that, even if “government agent” is read
to include local law enforcement officers, the police reports
at issue here do not fall within the scope of Rule 16(a)(2)
because they were prepared before the federal prosecutor ini-
6
See Rule 6(e)(3)(A)(ii) (1985 amendments) advisory committee’s note
(noting that definition of “government personnel” was intended to clarify
the rule in light of the conflict among the courts). In contrast, to date no
circuit court has addressed directly the issue presented in this appeal, and
very few district courts have done so. See United States v. Cherry, 876 F.
Supp. 547, 551 (S.D.N.Y. 1995); United States v. Green, 144 F.R.D. 631,
641 (W.D.N.Y. 1992); United States v. Duncan, 586 F. Supp. 1305, 1313
(W.D. Mich. 1984); United States v. DeBacker, 493 F. Supp. 1078, 1082
(W.D. Mich. 1980). We discuss the holdings of those cases in the text
below at pp. 354-56, 362-63.
352 UNITED STATES v. FORT
tiated “the case.” In other words, Defendants argue that, for
the purposes of Rule 16(a)(2), a “case” does not begin until
a federal prosecutor becomes involved. Again, the govern-
ment urges a more expansive reading of the term that includes
the investigative work done before a federal prosecutor takes
on a federal prosecution, if the investigative work concerns a
particular defendant and the particular conduct for which he
is federally prosecuted.
Defendants assert that the Supreme Court and our court
have already addressed this question and have defined “the
case” in the limited manner that Defendants propose. To the
contrary, the ambiguity of this term remains. Indeed, the opin-
ions that Defendants cite actually weigh in favor of the gov-
ernment’s proposed definition.
In United States v. Armstrong, 517 U.S. 456 (1996), the
Supreme Court considered whether Rule 16 entitled the
defendant to discovery for the purpose of gathering materials
in support of a proposed counterclaim of selective prosecution
against the federal prosecutors. The defendant sought a list of
the racial identities of all defendants prosecuted federally for
possession of drugs and firearms during a three-year period.
Id. at 459. The Court held that a “defense” to which the docu-
ments must be material means only “an argument in response
to the prosecution’s case in chief” and, thus, did not include
separate counterclaims such as selective prosecution. Id. at
462. In arriving at that conclusion, the Court stated that the
term “case,” as used in Rule 16(a)(2), does not extend to pros-
ecutions against other people. Id.
The logic of Armstrong cuts against Defendants’ proposed
interpretation of “case.” In Armstrong, the key question in
determining the scope of a “case” under Rule 16(a)(2) was
whether it involves the same defendant and the same crime.
When state or local officials conduct an investigation that ulti-
mately leads to a federal (instead of a state) prosecution
against the same defendant for the very activities investigated,
UNITED STATES v. FORT 353
Armstrong suggests that there is but one “case” against the
defendant within the meaning of Rule 16. This concept is par-
ticularly applicable in RICO prosecutions where state crimes
can be charged as predicate acts to establish a “pattern of
racketeering activity.” 18 U.S.C. § 1961(1) & (5).
[7] Similarly, in United States v. Cedano-Arellano, 332
F.3d 568 (9th Cir. 2003) (per curiam), we interpreted Rule
16(a)(2) to apply only to documents generated with a view
toward the prosecution of a defendant. In Cedano-Arellano,
the defendant sought access to the training records of the
narcotics-sniffing dog that had alerted police to drugs in the
gas tank of the defendant’s vehicle. Id. at 570. We held that
Rule 16(a)(2) did not except the training records from discov-
ery because “they were not made in connection with investi-
gating or prosecuting this or any other case.” Id. at 571.
[8] The clearest reading of Cedano-Arellano supports the
conclusion that documents that are “made in connection with
investigating or prosecuting this or any other case” against a
defendant are exempt from discovery under Rule 16(a)(2).
Local police reports that result in a federal investigation or
prosecution of the same defendant for the same acts are part
of “the case” as so understood.
The continuing ambiguity of Rule 16(a)(2), notwithstand-
ing Armstrong and Cedano-Arellano, is illustrated by the con-
flicting approaches that district courts have taken in
interpreting it. Compare United States v. Cherry, 876 F. Supp.
547, 551-52 (S.D.N.Y. 1995) (holding that, where the federal
prosecution is a direct outgrowth of an investigation by local
authorities, the local investigation and federal prosecution are
one “case,” and the local police reports generated prior to fed-
eral involvement are exempt from discovery under Rule
16(a)(2)), and United States v. Duncan, 586 F. Supp. 1305,
1313 (W.D. Mich. 1984) (denying under Rule 16(a)(2) the
defendant’s discovery request for all police reports related to
his prosecution), with United States v. DeBacker, 493 F.
354 UNITED STATES v. FORT
Supp. 1078, 1082 (W.D. Mich. 1980) (holding that, where
state police began an investigation prior to federal involve-
ment, police reports were discoverable under Rule 16); and
United States v. Green, 144 F.R.D. 631, 641 (W.D.N.Y.
1992) (“However, to the extent that the government has in its
possession reports or records from state or local law enforce-
ment agencies or prisons, these items are discoverable unless
they are the product of a joint investigation or unless they
have become the work product of the federal investigators.”).
[9] Because the text of Rule 16(a)(2) remains ambiguous
after considering its text and context, we turn to other inter-
pretative aids to help resolve the question before us.
2. Advisory Committee’s Intentions
The Advisory Committee’s explanatory notes do not
address the question presented here. We must, therefore, find
indirect ways to understand the Committee’s intent.
Defendants contend that the drafters intended Rule 16(a)(2)
to be a “work product” exception and, therefore, that we
should limit the rule to the contours of the work product privi-
lege codified in Federal Rule of Civil Procedure 26. We are
not persuaded that the drafters meant to limit Criminal Rule
16 to the civil “work product” doctrine. Rule 16 itself, while
encompassing government work product and having its gene-
sis in the idea of work product, draws its boundaries more
broadly than those of Civil Rule 26.7
7
Rule 26(b)(3) states in relevant part:
Subject to the provisions of subdivision (b)(4) of this rule, a party
may obtain discovery of documents and tangible things otherwise
discoverable under subdivision (b)(1) of this rule and prepared in
anticipation of litigation or for trial by or for another party or by
or for that other party’s representative (including the other party’s
attorney, consultant, surety, indemnitor, insurer, or agent) only
upon a showing that the party seeking discovery has substantial
UNITED STATES v. FORT 355
[10] It is true that Rule 16(a)(2) is often referred to as a
“work product” rule. See, e.g., Fed. R. Crim. P. 16 (1975
enactment) advisory committee’s note D (“Rules 16(a)(2) and
(b)(2) define certain types of materials (‘work product’) not
to be discoverable.”); Armstrong, 517 U.S. at 463 (stating that
“under Rule 16(a)(2), [the defendant] may not examine Gov-
ernment work product in connection with his case”); United
States v. Fernandez, 231 F.3d 1240, 1247 (9th Cir. 2000)
(“Additionally, Rule 16[(a)(2)] of the Federal Rules of Crimi-
nal Procedure recognizes the work product privilege and
exempts from production ‘reports, memoranda, or other inter-
nal government documents made by the attorney for the gov-
ernment or any other government agent investigating or
prosecuting the case.’ ”).
At the same time, it is clear that Rule 16(a)(2)’s protection
of investigative materials extends beyond the work product
privilege as defined in the civil context. Although the Advi-
sory Committee used the term “work product” to describe the
materials discoverable under Rule 16(a)(2), it purposefully
defined the Rule’s scope differently than that of Rule 26. See
Fed. R. Crim. P. 16 (1975 enactment) advisory committee’s
note D.
need of the materials in the preparation of the party’s case and
that the party is unable without undue hardship to obtain the sub-
stantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been
made, the court shall protect against disclosure of the mental
impressions, conclusions, opinions, or legal theories of an attor-
ney or other representative of a party concerning the litigation.
By contrast, Rule 16(a)(2) states in relevant part:
Except as Rule 16(a)(1) provides otherwise, this rule does not
authorize the discovery or inspection of reports, memoranda, or
other internal government documents made by an attorney for the
government or other government agent in connection with inves-
tigating or prosecuting the case.
356 UNITED STATES v. FORT
As note D states, in 1975 the House of Representatives pro-
posed to limit the materials covered by Criminal Rule
16(a)(2) to accord with Civil Rule 26. Specifically, the House
sought to exempt only “the mental impressions, conclusions,
opinions, or legal theories of the attorney for the government
or other government agents.” Id. The Committee rejected that
proposal and maintained the more expansive scope that
includes all “reports, memoranda, or other internal govern-
ment documents.” Id.; see also In re Grand Jury Subpoenas,
318 F.3d 379, 383 (2d Cir. 2003) (noting that Rule 16
imposes a stricter limit to discovery in criminal matters than
Rule 26 imposes in civil litigation).
The Fifth Circuit in United States v. Mann, 61 F.3d 326
(5th Cir. 1995), also has cautioned that Rule 16 is not coex-
tensive with the work product privilege, despite their interre-
latedness. The Mann court expressly rejected the contention,
raised by the defendants there (and by Defendants here), that
the Supreme Court equated the two in United States v. Nobles,
422 U.S. 225 (1975). Mann, 61 F.3d at 331.
Although Rule 16 was an issue in Nobles, the Court
addressed the work product doctrine separately from Rule 16
and did not equate them. 422 U.S. at 234-40. The Court’s
comments regarding the work product doctrine are instructive
in pointing to a practical interpretation:
At its core, the work-product doctrine shelters the
mental processes of the attorney, providing a privi-
leged area within which he can analyze and prepare
his client’s case. But the doctrine is an intensely
practical one, grounded in the realities of litigation in
our adversary system. One of those realities is that
attorneys often must rely on the assistance of investi-
gators and other agents in the compilation of materi-
als in preparation for trial. It is therefore necessary
that the doctrine protect material prepared by agents
UNITED STATES v. FORT 357
for the attorney as well as those prepared by the
attorney himself.
Id. at 238-39.
Mann’s distinction between the work product doctrine and
Rule 16(a)(2) is further illustrated by the differing treatment
of investigative reports. Under the work product doctrine,
police reports are rarely protected. See, e.g., Miller v.
Pancucci, 141 F.R.D. 292, 303 (C.D. Cal. 1992); 6 James
Wm. Moore et al., Moore’s Federal Practice § 26.70(c)(iii)
(2006). But police reports (at least those created by federal
law enforcement officers) plainly are protected under Rule
16(a)(2). United States v. Jordan, 316 F.3d 1215, 1227 n.17
(11th Cir. 2003). Thus, again, we can see that Rule 16 is not
just a work product rule.
[11] Rather, the drafters intended Rule 16(a)(2) to be a rule
of discovery, related to the work product doctrine but not syn-
onymous or coextensive with it. Therefore, we must go
beyond the work product doctrine to determine the scope of
Rule 16(a)(2).
3. Symmetry of Obligations
Rule 16 does not stand in isolation as the sole source of dis-
covery obligations placed on parties to criminal litigation.
Instead, Rule 16 acts in concert with other statutory and com-
mon law obligations.
a. The Jencks Act
[12] The text of Rule 16(a)(2) delimits its own scope by
reference to the Jencks Act: “Nor does this rule authorize the
discovery or inspection of statements made by prospective
government witnesses except as provided in 18 U.S.C.
§ 3500.” The best clue that we have as to what the Advisory
Committee that drafted Rule 16 intended regarding the scope
358 UNITED STATES v. FORT
of Rule 16(a)(2)’s exception is its reference in its committee
note to two Jencks Act-related cases, Palermo v. United
States, 360 U.S. 343 (1959); and Ogden v. United States, 303
F.2d 724 (9th Cir. 1962).8
[13] The Jencks Act requires the government to disclose to
criminal defendants any statement made by a government wit-
ness that is “in the possession of the United States” once that
witness has testified. 18 U.S.C. § 3500(a) & (b) (emphasis
added).9 The Act, in its current form, does not distinguish
8
“Reports, memoranda, and other internal government documents made
by government agents in connection with the investigation or prosecution
of the case are exempt from discovery. Cf. [Palermo and Ogden].” Fed.
R. Crim. P. 16(b)(2) (1966 amendment) advisory committee note. (Rule
16(a)(2) was numbered as (b)(2) at the time the committee wrote its note.)
9
The Jencks Act provides, in pertinent part:
(a) In any criminal prosecution brought by the United States,
no statement or report in the possession of the United States
which was made by a Government witness or prospective Gov-
ernment witness (other than the defendant) shall be the subject of
subpena, discovery, or inspection until said witness has testified
on direct examination in the trial of the case.
(b) After a witness called by the United States has testified
on direct examination, the court shall, on motion of the defen-
dant, order the United States to produce any statement (as herein-
after defined) of the witness in the possession of the United States
which relates to the subject matter as to which the witness has
testified. If the entire contents of any such statement relate to the
subject matter of the testimony of the witness, the court shall
order it to be delivered directly to the defendant for his examina-
tion and use.
....
(e) The term “statement,” as used in subsections (b), (c), and
(d) of this section in relation to any witness called by the United
States, means —
(1) a written statement made by said witness and signed or
otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording,
or a transcription thereof, which is a substantially verbatim recital
UNITED STATES v. FORT 359
between statements obtained by federal officials and state-
ments obtained by state or local officials. Rather, the text of
the statute requires that the government disclose all witness
statements, regardless whether state obtained or federally
obtained, so long as the statements are in the actual posses-
sion of the federal government at the time of the trial. See
Palermo, 360 U.S. 343 (describing Jencks Act disclosure
requirements and making no distinction based on affiliation of
official obtaining the statement); Ogden, 303 F.2d 724 (same).10
[14] In cases relating to the Jencks Act, the key question
posed by most courts is that of possession. For example, in
United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976),
we addressed a defendant’s request that the federal prosecu-
tors produce photographs that the state police had included in
a photo array used to obtain witness identifications of the
defendant. We held that the defendants did not have the right
to production because the federal prosecutor never had pos-
session of the photos. Id. at 21. We analogized the case to a
Jencks Act request:
[T]he demand to produce these photographs might
well be likened to an attempt to require production
under the Jencks Act of statements in the possession
of state police. See Beavers v. United States, 351
of an oral statement made by said witness and recorded contem-
poraneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription
thereof, if any, made by said witness to a grand jury.
18 U.S.C. § 3500 (emphasis added).
10
Circuit courts that have addressed cases involving state-gathered state-
ments have come to differing conclusions regarding the Jencks Act obliga-
tions. Compare United States v. Heath, 580 F.2d 1011, 1018-19 (10th Cir.
1978) (holding that the federal prosecutor violated the Jencks Act by fail-
ing to disclose state-obtained witness statements), with United States v.
Smith, 433 F.2d 1266, 1269 (5th Cir. 1970) (holding that a statement made
by a government witness to a state police officer was not subject to the
Jencks Act).
360 UNITED STATES v. FORT
F.2d 507 (9th Cir. 1965), where the statements were
never in possession of the United States and produc-
tion was not required.
Id.; see also United States v. Weaver, 267 F.3d 231, 245 (3d
Cir. 2001) (noting, in dictum, that “the Jencks Act only
applies to evidence in the possession of the United States, and
not state authorities”); United States v. Harris, 368 F. Supp.
697, 709 (E.D. Pa. 1973) (finding no Jencks Act violation
because, “[n]otwithstanding the cooperative law enforcement
effort of the Federal and state authorities, the fact of the mat-
ter is that the reports in question were compiled by the city
police officers, submitted as a matter of course to their superi-
ors in the police department, and are now (and were at the
time of trial) in the lawful possession and control of the Phila-
delphia Police Department”). We think that the drafters
intended the same inquiry to be made here.
b. Rule 16(a)(1)(E)
[15] Our case law supports a symmetrical reading of Rule
16’s discovery obligations. In United States v. Gatto, 763
F.2d 1040 (9th Cir. 1985), we examined the scope of the pros-
ecution’s duty to disclose evidence to the defendants under
Rule 16(a)(1)(E).11 Specifically, we were asked whether evi-
dence found and held by state authorities until the eve of trial
was discoverable to defendants under Rule 16(a)(1)(E). We
focused on physical possession as the dispositive factor.
Gatto, 763 F.2d at 1046-49. We held that the evidence
became discoverable only when the state authorities placed it
in the hands of the federal authorities, because “the triggering
requirement under rule 16[(a)(1)(E)] is that the papers, docu-
ments, and tangible objects be in the actual possession, cus-
tody or control of the government.”12 Id. at 1049.
11
At the time of Gatto, that provision was numbered 16(a)(1)(C). Rule
16 was renumbered in 2002.
12
We expressly avoided deciding whether “government” included the
FBI agents investigating the case, or whether it was limited to the federal
prosecutor. Gatto, 763 F.2d at 1047.
UNITED STATES v. FORT 361
Gatto’s emphasis on possession as the triggering require-
ment for Rule 16 accords with decisions by this and other cir-
cuits. See, e.g., United States v. Friedman, 593 F.2d 109, 119-
20 (9th Cir. 1979) (holding that neither Rule 16 nor the Jencks
Act required the production of a document held by a foreign
government, because the federal prosecutor did not have pos-
session of it); United States v. Adkins, 741 F.2d 744, 747 (5th
Cir. 1984) (holding that Rule 16(a)(1)(E)’s predecessor “re-
quire[s] the government only to turn over those records actu-
ally in its possession”).13
[16] Under Gatto, state-gathered evidence becomes subject
to the disclosure obligation established by Rule 16(a)(1)(E)
when it passes into federal possession. We believe that Rule
16(a)(2) is best read to create symmetry between the disclo-
sure obligation and the exception to that obligation. Rule
16(a)(2) is, after all, an exception to the disgorgement require-
ment of Rule 16(a)(1)(E), which depends on the document’s
being “within the government’s possession, custody, or con-
trol.” In the context of this appeal, then, investigative reports
created by state police officers and turned over to federal
prosecutors to support a unified federal prosecution of defen-
dants should be considered reports “made by an . . . other
government agent in connection with investigating or prose-
cuting the case.”
13
We note our accord with the Second Circuit’s cautionary statement in
In re Jury Subpoenas, 318 F.3d 379, 384-85 (2d Cir. 2003), that the pro-
tection established by Rule 16(a)(2) does not extend to “discovery materi-
als in an attorney’s possession that were prepared neither by the attorney
nor his agents . . . [but, rather, by] a third party in the ordinary course of
business and that would have been created in essentially similar form irre-
spective of any litigation anticipated by counsel.” (Citation omitted.) In
that case, the documents in question were bank records. Here, we address
reports created by local police officers for the purpose of recording evi-
dence of Defendants’ illegal conduct to support a prosecution of Defen-
dants for that conduct.
362 UNITED STATES v. FORT
c. Form 302s
In addition to establishing symmetry between the govern-
ment’s Jencks Act obligations and those imposed by Rule 16,
the government’s proposed reading of Rule 16(a)(2) creates
symmetry between the treatment of like investigative reports
created by investigating officers. Rule 16(a)(2) exempts
reports created by FBI agents (Form 302s) from disclosure.
Jordan, 316 F.3d at 1227 n.17.
Under Defendants’ limited reading of the Rule, parallel
investigative reports created by state or local police officers
would be treated differently for the purpose of discovery. The
similar reports would be treated differently even if they were
created in order to support a prosecution, turned over to fed-
eral prosecutors, and used by federal prosecutors in the prepa-
ration of a case. That asymmetry is illogical. Symmetry is
particularly compelling when evidence of state crimes such as
drug dealing, robbery, and murder are predicate acts under
RICO to establish a “pattern of racketeering activity” in viola-
tion of federal law. 18 U.S.C. § 1961.
4. Policy Considerations
Finally, to determine the intent of the drafters of Rule
16(a)(2), we examine policy considerations. In Cherry, the
District Court for the Southern District of New York
addressed squarely the issue before us. It noted:
This federal prosecution is a direct outgrowth of
investigations by local authorities. Those investiga-
tions covered the same conduct by the same defen-
dants charged in the federal indictment. For all
practical purposes, including the application of Rule
16(a)(2), this local investigation and federal prosecu-
tion should be considered one “case.” To hold other-
wise, thereby making underlying local or state
investigatory files subject to pre-trial discovery by a
UNITED STATES v. FORT 363
subsequently federally indicted defendant, would in
all likelihood inhibit cooperation between local and
federal law enforcement agencies, to the benefit of
criminals but to the detriment of the public good.
876 F. Supp. at 551-52 (footnotes omitted). Those concerns
are echoed here.
The present case involves the federal prosecution of Defen-
dants for, in part, gang activities in violation of RICO, 18
U.S.C. §§ 1961-1968. A number of the predicate acts on
which the RICO charge is based are state law crimes, includ-
ing various counts of murder and attempted murder. It is pre-
cisely this type of case in which cooperation between state
and federal law enforcement is most crucial. As we explained
above, the Advisory Committee signaled the importance and
desirability of federal-state cooperation when it explained
changes to Criminal Rule 6. Here, San Francisco police offi-
cers investigated Defendants’ illegal conduct and then turned
the results of their investigation over to federal authorities,
allowing their work to be subsumed within a single, unified
prosecution of Defendants by the federal authorities.14
[17] In conclusion, we hold that Rule 16(a)(2) extends to
the San Francisco police reports created prior to federal
involvement but relinquished to federal prosecutors to support
a unified prosecution of Defendants for the same criminal
14
If the roles were reversed, and FBI officials conducted an investiga-
tion, the results of which they delivered to a district attorney for prosecu-
tion under state law, the federal rules of procedure would not apply and
those reports would be subject to the discovery rules of the state. See, e.g.,
People v. Santorelli, 741 N.E.2d 493, 497-98 (N.Y. 2000) (holding that
district attorney did not violate Brady obligations by failing to turn over
FBI 302s because the reports were not in the actual possession of the dis-
trict attorney, the federal authorities refused to allow the district attorney
access to the reports, and the trial court made a finding that the federal and
state investigators acted independently). Again, our interpretation of Rule
16 preserves symmetry, as we believe the drafters intended.
364 UNITED STATES v. FORT
activity that was the subject of the local investigation. It is an
overstatement by the dissent to suggest that our opinion
expands the scope of documents covered by Rule 16 and the
Jencks Act. We here address witness statements to be used in
a federal criminal prosecution but initially given to San Fran-
cisco police officers along with the officers’ case reports
revealing the identities of the witnesses and summarizing their
statements. These types of documents have always been pro-
tected under federal law if compiled by federal officers. Our
opinion recognizes no principled reason why the law should
be any different in a federal prosecution regardless of who
gathered the statements.15
C. Waiver
Notwithstanding its ruling that the police reports were dis-
coverable under Rule 16, the district court held, in the alterna-
tive, that the government had waived any potential Rule
16(a)(2) protection of the documents by turning over redacted
copies of the reports to Defendants. Applying the principles
of the work product privilege, the court held: “Disclosure of
privileged material waives the privilege as to all material on
the same subject.”
[18] As we stated above, Rule 16(a)(2) is not, strictly
speaking, a work product privilege. It is, rather, a broader rule
of discovery. Therefore, we look for guidance to the general
principles of waiver. Waiver is the “intentional or voluntary
relinquishment of a known right.” Black’s Law Dictionary
1580 (6th ed. 1990). It can be either express or implied. Id.
15
Also, contrary to the dissent’s assertion, dissent at 384, we do not hold
that “virtually all documents” that happen to fall into the hands of the fed-
eral prosecutor qualify for Rule 16(a)(2)’s discovery exemption. Although
federal possession is necessary in order to qualify for the Rule 16(a)(2)
exemption, it is not sufficient. A document also must be an internal (non-
public) document made by an “other government agent in connection with
investigating or prosecuting the case.” Rule 16(a)(2).
UNITED STATES v. FORT 365
The Fifth Circuit’s discussion in Mann analyzes a situation
similar to the one we consider here. In Mann, the government
had allowed the defendants access to documents protected by
Rule 16(a)(2) through an express agreement between the par-
ties that the defendants would not copy the materials. 61 F.3d
at 329. The defendants broke the no-copying agreement, and
the government rescinded access. Id. The defendants
challenged—on the basis of waiver—the validity of the gov-
ernment’s change of heart. They argued “waiver” as it applies
to the work product privilege and cited Nobles in support. Id.
at 331. The Mann court held, first, that Rule 16(a)(2) and the
work product privilege are not synonymous and that Nobles
did not make them so:
Nobles, which was not concerned with Rule
16(a)(2), cannot be read to alter the plain language
of a rule it did not address. . . . In short, we do not
think that Nobles expands the attorney work product
privilege to other government agent internal reports,
such as those contemplated in Rule 16(a)(2).
Id. Applying general principles of waiver, the Fifth Circuit
held that the government did not waive its Rule 16(a)(2) pro-
tection by allowing the defendants to have conditional access
to the protected documents. Id. at 332.
Although the facts before us differ from those of Mann in
certain respects, we reach the same result. Here, the govern-
ment did not execute an express disclosure agreement. But it
has clearly and consistently articulated its intention to pre-
serve the confidentiality of inculpatory-witness identifica-
tions. It carried through on that intention with regard to the
police reports by systematically redacting all witness locator
information, while permitting Defendants access to the sub-
stantive information contained within the reports. The govern-
ment’s consistent and systematic retention of control over
witness-identifying information demonstrates that it did not
366 UNITED STATES v. FORT
intentionally or voluntarily relinquish its rights under Rule
16(a)(2) to hold back this information from discovery.
[19] We hold that the government’s disclosure of redacted
copies of local police reports, where the redactions were con-
sistent and supported by an articulated intention to protect
witness identities in the context of a case in which the district
court has already found a serious risk of harm to witnesses,
does not constitute a waiver of the documents’ Rule 16(a)(2)
protection.
D. Expert Use
The district court also held, in the alternative, that the gov-
ernment had waived any potential Rule 16(a)(2) protection by
allowing one of its gang-crimes experts to rely on the pro-
tected materials in developing his opinions. The government
concedes that materials on which a proposed expert witness
relies must be produced to Defendants in discovery, and we
agree. The government disputes, however, that the expert
relied on the police reports at issue here. This is a question of
fact that we remand to the district court for it to determine.
E. Sanction Appeal
Because we reverse the district court’s June 16 discovery
order, we also reverse its July 20, 2006, sanction order. Con-
sequently, we need not reach the government’s challenge to
the sanction imposed by the district court.
F. Cross-Appeal
We do not have jurisdiction over Defendant’s cross-appeal
of the July 20, 2006, sanction order. See United States v.
Eccles, 850 F.2d 1357, 1361 (9th Cir. 1988) (“[A] defendant
may not cross-appeal from an interlocutory appeal under [18
U.S.C. §] 3731.”).
UNITED STATES v. FORT 367
G. Petition for Mandamus
[20] Finally, we turn to the government’s petition for man-
damus, which challenges the district court’s August 26, 2005,
order requiring the government to produce a list of witnesses
21 days before trial, pursuant to 18 U.S.C. § 3432.16 Given our
ruling regarding the government’s discovery obligations
under Rule 16 and the effect that this ruling will have on the
overall management of discovery in this case, and given the
fact that the time for compliance has not yet arrived, we
decline to reach the merits of the government’s petition for
mandamus at this time and, instead, remand all discovery
issues to the district court for reconsideration.
CONCLUSION
The cross-appeal filed by Defendants Fort and Diaz (No.
06-10478) is DISMISSED. The following orders issued by
the district court are VACATED:
1. May 18, 2006 — Order re Discoverability of
Local Police Reports Under Rule 16 and Sched-
ule for Further Submissions, Doc. #367;
2. June 16, 2006 — Concluding Order re Local
Police Reports and Rule 16 Discovery, Doc.
#472; and
16
Title 18 U.S.C. § 3432 provides:
A person charged with treason or other capital offense shall at
least three entire days before commencement of trial be furnished
with a copy of the indictment . . . and of the witnesses to be pro-
duced on the trial for proving the indictment, stating the place of
abode of each . . . witness, except that such list of the . . . wit-
nesses need not be furnished if the court finds by a preponder-
ance of the evidence that providing the list may jeopardize the
life or safety of any person.
368 UNITED STATES v. FORT
3. July 20, 2006 — Testimony Preclusion Order as
Sanction for Non-Compliance with Rule 16
Orders, Doc. #578.
All matters relating to the discovery of materials pursuant to
Rule 16 are REMANDED to the district court for reconsidera-
tion in the light of this opinion.
W. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent.
The government seeks to use Federal Rule of Criminal Pro-
cedure 16(a)(2), which protects work product, to serve the
purposes of Rule 16(d)(1), which protects witnesses. The gov-
ernment is very open in stating that it seeks to protect its wit-
nesses rather than its work product. In the first paragraph of
its brief, it writes:
This combined appeal and petition arise out of a
complex prosecution of twelve members of . . . a
violent street gang in San Francisco, California. . . .
[C]ivilian witness safety is a paramount concern in
this prosecution. The legal issues presented by this
brief are critically important for the protection of
civilian witnesses.
The district court entered what it described as a “very
strong, muscular protective order.” The government, however,
is not satisfied with the protection this order — or indeed any
order — can provide to its witnesses. The government writes
that it “firmly believes that no protective order, no matter how
restrictive its terms, is sufficient to protect the safety and lives
of these witnesses.” For that reason, the government stead-
fastly refused to assist the district court in crafting any protec-
tive order that would require disclosure of the names or
UNITED STATES v. FORT 369
identifying information of witnesses at any time before trial.
The district court finally said in frustration:
I gave you two opportunities [to participate in the
drafting process]. I said, “Government, please, help
me draft this protective order.” You said no, you
thumbed your nose at the Court, and said, “No, a
thousand times no, we don’t want a protective
order.” That’s all you said.
The protective order entered by the district court in this
case requires the government to make available to defendants’
counsel the unredacted names of prospective witnesses. The
order then places severe restrictions on the use counsel may
make of the names and any identifying information. Up until
21 days before trial, defendants’ counsel are strictly forbidden
from disclosing to defendants any “identifying information on
protected witnesses” either “directly or indirectly.” Within 21
days of trial, witness names and identifying information can
be revealed to the defendants, subject to certain restrictions.
Neither the majority nor I address the government’s manda-
mus challenge to the district court’s requirement that names
and identifying information be turned over within 21 days of
trial.
The government has refused to comply with the district
court’s order. Specifically, it has refused to provide witness
names or identifying information contained in police reports
prepared by officers of the San Francisco Police Department.
The government contends that these reports are protected as
government work product under Rule 16(a)(2), even though
the reports were prepared long before it had any involvement
with the investigation and prosecution of these defendants.
Despite its claim that the entire reports are protected as work
product under Rule 16(a)(2), the government is willing to
hand them over after redaction. But it insists that Rule
16(a)(2) allows it to redact names and identifying informa-
tion.
370 UNITED STATES v. FORT
The government and the majority misunderstand and there-
fore misuse Rule 16(a)(2). Rule 16(a)(2) is designed to protect
only the government’s work product in connection with a
criminal case: “[U]nder Rule 16(a)(2), [a defendant] may not
examine Government work product in connection with his
case.” United States v. Armstrong, 517 U.S. 456, 463 (1996)
(emphasis added). Because the reports in question are the
work product of the San Francisco Police Department, not of
the government, they are not protected by Rule 16(a)(2). To
the extent the government is concerned about the safety of its
witnesses, its remedy is a protective order under Rule
16(d)(1).
I. Overview
Federal Rule of Criminal Procedure 16 deals with pretrial
discovery in federal criminal cases. Rule 16 was adopted “in
the view that broad discovery contributes to the fair and effi-
cient administration of criminal justice by providing the
defendant with enough information to make an informed deci-
sion as to plea; by minimizing the undesirable effect of sur-
prise at the trial; and by otherwise contributing to an accurate
determination of the issue of guilt or innocence.” Fed. R.
Crim. P. 16 advisory committee’s note (1974 Amendment);
see also United States v. Howell, 231 F.3d 615, 626 (9th Cir.
2000).
Notwithstanding the goal of “broad discovery,” two subsec-
tions of Rule 16 — Rules 16(a)(2) and 16(b)(2) — carve out
“information not subject to disclosure” by the government and
the defendant respectively. As the Advisory Note to Rule 16
explains, these subsections “set forth ‘work product’ excep-
tions to the general discovery requirements.” Fed. R. Crim. P.
16 advisory committee’s note (1975 Enactment); see also
Armstrong, 517 U.S. at 463; United States v. Fernandez, 231
F.3d 1240, 1247 (9th Cir. 2000) (“Rule 16 of the Federal
Rules of Criminal Procedure recognizes the work product
privilege . . . .”). Because Rule 16(a)(2), which protects the
UNITED STATES v. FORT 371
government’s work product, is an exception to the disclosure
provisions that comprise the greater part of Rule 16(a), the
exception must be construed “narrowly in order to preserve
the primary operation of the provision.” Comm’r v. Clark, 489
U.S. 726, 739 (1989).
II. The Text of Rule 16(a)(2)
Statutory interpretation begins with the text of the statute or
rule. United States v. Hoffman, 794 F.2d 1429, 1431 (9th Cir.
1986) (interpreting Rule 16). The plain meaning of a statute
or rule is “controlling absent a clearly expressed Congressio-
nal intention to the contrary.” Id. at 1432. We presume that
“identical words used in different parts of the same [rule]” are
“intended to have the same meaning.” Gustafson v. Alloyd
Co., 513 U.S. 561, 570 (1995) (internal quotation marks omit-
ted). Ordinarily, a rule should be interpreted to give effect to
every clause and word contained in it. See Negonsott v. Samu-
els, 507 U.S. 99, 106 (1993); Moskal v. United States, 498
U.S. 103, 109 (1990). In considering plain meaning, it is nec-
essary to keep in mind the context of particular language and
the structure of the statute or rule as a whole. See Davis v.
Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It is a
fundamental canon of statutory construction that the words of
a statute must be read in their context and with a view to their
place in the overall statutory scheme.”).
Rule 16(a)(1) requires the government to turn over certain
things to the defendant in advance of trial. Pertinent to this
case, Rule 16(a)(1)(E) requires the government, upon request,
to permit the defendant to “inspect and to copy . . . documents
. . . if the item is within the government’s possession, custody,
or control and . . . the item is material to preparing the
defense.” The government has conceded that the police
reports in question are “documents” within the meaning of
Rule 16(a)(1)(E).
Rule 16(a)(2) provides a work-product exception to the
obligation imposed under Rule 16(a)(1)(E). See United States
372 UNITED STATES v. FORT
v. Cedano-Arellano, 332 F.3d 568, 571 (9th Cir. 2003);
Majority Op. at 346 n.2. In relevant part, Rule 16(a)(2) pro-
vides:
[T]his rule does not authorize the discovery or
inspection of reports, memoranda, or other [1] inter-
nal government documents [2] made by [3] an attor-
ney for the government or other government agent in
connection with investigating or prosecuting the
case.
(Bracketed numbers and emphasis added.) The meaning of
Rule 16(a)(2) is so plain that it should be unnecessary to do
anything more than simply to read the text in order to con-
clude that it does not protect documents prepared by the San
Francisco Police Department without any involvement by the
federal government. But because the majority concludes oth-
erwise, I engage in a detailed analysis of the text.
Rule 16(a)(2) contains three phrases that have particular
relevance to this case. These are the numbered italicized
phrases above — “internal government documents,” “made
by,” and “an attorney for the government or other government
agent.” I discuss each in turn.
A. “Internal Government Documents”
Rule 16(a)(2) limits the “information” it protects to “re-
ports, memoranda, or other internal government documents.”
(Emphasis added.) “Internal government documents” are a
subclass of documents “within the government’s possession,
custody, or control” that must otherwise be produced under
Rule 16(a)(1)(E). The Oxford English Dictionary (2d ed.
1989) defines “internal” as “[p]ertaining to the inner nature or
relations of anything, as distinguished from its relations to
things external to itself.” Id. at 1121 (vol. VII). We have pre-
viously held that the term “government” in Rule 16, as used
in relation to documents within the government’s “possession,
UNITED STATES v. FORT 373
custody, or control,” refers to the “federal government.”
United States v. Gatto, 763 F.2d 1040, 1048-49 (9th Cir.
1985); see also United States v. Chavez-Vernaza, 844 F.2d
1368, 1374-75 (9th Cir. 1987). The majority concedes that the
term “government,” as it is used throughout Rule 16(a)(2),
refers to the “federal government.” Majority Op. at 348
(“ ‘government’ means ‘federal government’ in Rule
16(a)(2)”). “Internal government documents” are therefore
documents “pertaining to the inner nature or relations of [the
federal government], as distinguished from its relations to
things external to itself.” Documents generated outside the
federal government without federal involvement for non-
federal purposes are not “internal government documents”
within the meaning of the rule.
B. “Made By”
Rule 16(a)(2) further requires that the documents be “made
by” a federal government attorney or other government agent.
The Oxford English Dictionary defines “made” as “produced
or obtained by ‘making’ as distinguished from other modes of
origin or acquisition.” Id. at 174 (vol. IX). Documents cannot
be made by federal government attorneys or agents if they are
made by someone else. The phrase “made by,” like “internal
government,” thus signals that documents protected from dis-
closure by Rule 16(a)(2) are a subclass of the broader class of
documents “within the government’s possession, custody, or
control” described in Rule 16(a)(1)(E).
C. “An Attorney for the Government or Other
Government Agent”
Finally, internal government documents must be made by
“an attorney for the government or other government agent.”
It is undisputed that the police reports at issue were not made
by an attorney. Rather, they were made by officers of the San
Francisco Police Department. The question is whether the San
Francisco police officers who made the reports were “other
374 UNITED STATES v. FORT
government agents” within the meaning of Rule 16(a)(2). To
answer this question, we must determine the meaning of the
terms “government” and “agent,” and the function of the
modifier “other.”
1. “Government”
The term “government” refers to the federal government in
Rule 16(a)(2), as conceded by the majority.
2. “Agent”
The term “agent” encompasses only a person who acts with
the authority or apparent authority of the principal. Black’s
Law Dictionary defines “agent” as “[o]ne who is authorized
to act for or in the place of another.” Black’s Law Dictionary
68 (8th ed. 2004) (emphasis added). To “authorize” is “to give
legal authority; to empower . . . to formally approve; to sanc-
tion.” Id. at 143. The term “agent” is sufficiently broad to
encompass state or local law enforcement personnel working
alongside, or on behalf of, the federal government, as in a
cooperative joint investigation. However, the term does not
encompass state and local personnel who at the time of their
actions had no authority, real or apparent, from the federal
government. That is, the term “agent” requires prior or con-
temporaneous authorization of the agent by the federal gov-
ernment.
Reading the term “agent” to require prior or contemporane-
ous authorization is consistent with other uses of that term in
Rule 16. For example, Rule 16(a)(1)(C) speaks of persons
who are “legally able to bind the defendant regarding the sub-
ject of [a] statement . . . [or] conduct because of that person’s
position as the defendant’s director, officer, employee, or
agent.” (Emphasis added). This passage mirrors the ordinary
definition of “agent” as “[o]ne who is authorized to act for or
in the place of another.” In United States v. Taylor, 417 F.3d
1176 (11th Cir. 2005), the Eleventh Circuit employed this
UNITED STATES v. FORT 375
definition of “agent” under Rule 16(a)(1)(A). The court held
that a former cellmate of the defendant, who wrote a letter to
the government six months before trial describing the defen-
dant’s purported jailhouse confession, “was not, at any time,
a government agent” under Rule 16. Id. at 1181-82.
There is clear symmetry between Rules 16(a)(2) and
16(b)(2). Both sections employ virtually identical language
when describing the protected work product of the govern-
ment (Rule 16(a)(2)) and the defendant (Rule 16(b)(2)). Rule
16(b)(2) allows the defendant to refuse to disclose “reports,
memoranda, or other documents made by the defendant, or
the defendant’s attorney or agent, during the case’s investiga-
tion or defense,” as well as certain statements “made to the
defendant, or the defendant’s attorney or agent.” In interpret-
ing Rule 16, the Supreme Court has been guided by “percepti-
ble symmetr[ies]” in its language. Armstrong, 517 U.S. at
462. The majority does not even mention Rule 16(b)(2), let
alone consider the implications for that section of its broad
reading of “agent” in Rule 16(a)(2). If making and later giv-
ing a document to the federal government can make a person
a “government agent” within the meaning of Rule 16(a)(2),
virtually all of the materials that would otherwise be required
by Rule 16(a)(1) to be disclosed can be protected from disclo-
sure by the mere act of giving them to the government. I
would be very surprised if the majority would embrace a sym-
metrical reading of Rule 16(b)(2), in which the same defini-
tion of “agent” would provide a criminal defendant the same
ability to avoid disclosure of documents otherwise required to
be disclosed under Rule 16(a)(1).
3. “Other”
The natural reading of the phrase “other government agent”
is that it means any “agent of the federal government” other
than an “attorney for the government.” See Fed. R. Crim. P.
1(b)(1) (defining “attorney for the government” as an attorney
employed or “authorized by” the federal government). How-
376 UNITED STATES v. FORT
ever, the government argues that the word “other” modifies
only the word “government” rather than the two-word phrase
“government agent.” Under the government’s reading, “other
government agent” means agent of some government other
than the federal government. If we read “other government
agent” to mean “agent for another government,” as the gov-
ernment suggests, there would still be work-product protec-
tion for the work of an “attorney for the government.” But
there would be no work-product protection for the work of
any other agent of the federal government. That is, under the
government’s reading, there would be no work-product pro-
tection for documents prepared by an FBI agent working on
a federal criminal case. This is manifestly absurd. I am confi-
dent that the government would not argue for this reading of
“other government agent” in a case where documents made
by an FBI agent were at issue. See United States v. Jordan,
316 F.3d 1215 (11th Cir. 2003).
D. Conclusion
I conclude from the foregoing that reports made by mem-
bers of the San Francisco Police Department, long before the
involvement of the federal government in the investigation
and prosecution of the defendants in this case, are not pro-
tected work product under the plain meaning of Rule 16(a)(2).
III. Majority’s Arguments
The majority makes a number of arguments to escape from
the plain meaning of Rule 16(a)(2). I address them in turn.
A. Meaning of “Government Agent” in Rule 16(a)(1)
The majority argues that “other government agent” in Rule
16(a)(2) should be given the same meaning as “government
agent” in Rule 16(a)(1). In relevant part, Rule 16(a)(1) pro-
vides:
UNITED STATES v. FORT 377
(A) Defendant’s Oral Statement. Upon a
defendant’s request, the government must disclose to
the defendant the substance of any relevant oral
statement made by the defendant, before or after
arrest, in response to interrogation by a person the
defendant knew was a government agent if the gov-
ernment intends to use the statement at trial.
(B) Defendant’s Written or Recorded State-
ment. Upon a defendant’s request, the government
must disclose to the defendant
...
(ii) the portion of any written record containing
the substance of any relevant oral statement made
before or after arrest if the defendant made the state-
ment in response to interrogation by a person the
defendant knew was a government agent[.]
(Emphasis added.) One court of appeals has held, without dis-
cussion, that “government agent,” as used in Rule 16(a)(1),
includes an agent of a state or local government. See United
States v. Mitchell, 613 F.2d 779, 781 (10th Cir. 1980). Other
courts of appeals, including our own, have treated state or
local police officers as “government agents” under Rule
16(a)(1), but only in the context of cooperative activity. See
United States v. Cooper, 800 F.2d 412, 416 (4th Cir. 1986)
(official at prison housing District of Columbia and federal
prisoners); United States v. Rinn, 586 F.2d 113, 115, 120 (9th
Cir. 1978) (local police officers cooperating in a joint investi-
gation financed by the Drug Enforcement Agency).
For two reasons, I disagree with the majority’s argument.
First, the majority’s argument is, in effect, an argument that
the word “government” in the phrase “other government
agent” in Rule 16(a)(2) means any government, whether fed-
eral, state, or local. But the majority has explicitly disavowed
378 UNITED STATES v. FORT
this interpretation of the term “government” in Rule 16(a)(2).
Two paragraphs before it argues for a parallel interpretation
of the term “government agent” in Rule 16(a)(1) and “other
government agent” in Rule 16(a)(2), the majority writes that
“ ‘government’ means ‘federal government’ in Rule
16(a)(2).” Majority op. at 348.
Second, the functions of Rules 16(a)(1) and 16(a)(2) are
entirely different. Rule 16(a)(1) imposes a broad discovery
obligation on the government. As we wrote in Howell, Rule
16 was intended to facilitate the “broad discovery” needed for
“the fair and efficient administration of criminal justice.” 231
F.3d at 625 (quoting Fed. R. Crim. P. 16 advisory commit-
tee’s note (1974 Amendment)). The history of amendments to
Rule 16 makes clear the fundamental importance attached by
the rulemakers to broad discovery and avoidance of unfair
surprise. See Fed. R. Crim. P. 16 advisory committee’s note
(1966 Amendment) (“The rule has been revised to expand the
scope of pretrial discovery.”); id. (1974 Amendment) (“Rule
16 is revised to give greater discovery to both the prosecution
and the defense.”); id. (1975 Enactment) (“The Committee
believes that it is desirable to promote greater pretrial discov-
ery.”); id. (1991 Amendment) (“The amendment . . . expands
slightly government disclosure . . . .”); id. (1993 Amendment)
(“New subdivisions . . . expand federal criminal discovery
. . . .”). “One of the objectives of Rule 16 is to eliminate the
idea that a criminal trial is a sporting contest in which the
game of cat and mouse is acceptable.” Howell, 231 F.3d at
626. It is thus at least consistent with the purpose of Rule 16
to read Rule 16(a)(1) broadly to include a requirement that the
federal government disclose to a defendant any prior state-
ment made by that defendant to a law enforcement official,
whether that statement was made to a federal, state, or local
official.
By contrast, Rule 16(a)(2) is a work-product exception to
the broad disclosure requirement imposed by Rule 16(a)(1),
which we read narrowly to preserve the operation of the pro-
UNITED STATES v. FORT 379
vision to which it is an exception. Clark, 489 U.S. at 739.
Rule 16(a)(2) protects only the work product of the federal
government. It therefore makes sense that the phrase “other
government agent” in Rule 16(a)(2) be read to refer only to
agents of the federal government whose work product is being
protected. If Rule 16(a)(2) were read more broadly to protect
documents made by state or local law enforcement officials,
the rule would be protecting the work product of a state or
local government as well as the work product of the federal
government.
B. Parallel to Rule 6
Notwithstanding its concession that the term “ ‘govern-
ment’ means ‘federal government’ in Rule 16(a)(2),” the
majority argues that the text of Federal Rule of Criminal Pro-
cedure 6(e)(3) indicates the term might include state and local
government. Rule 6(e)(3)(A)(ii) carves out a limited excep-
tion to grand jury secrecy by allowing “an attorney for the
government” to disclose “grand-jury matter” to “any govern-
ment personnel — including those of a state or state subdivi-
sion, Indian tribe, or foreign government” if “necessary to
assist in performing that attorney’s duty to enforce federal
criminal law.” (Emphasis added.) The Rules Advisory Com-
mittee added the italicized language in 1985 after some dis-
trict courts held that the phrase “government personnel” did
not include state or local officials cooperating with federal
attorneys. Fed. R. Crim. P. 6 advisory committee’s note (1985
Amendment); United States v. Pimental, 380 F.3d 575, 595
(1st Cir. 2004).
Ordinary rules of statutory construction demand that the
term “government” not be interpreted to mean the same thing
as the phrase “any government . . . including . . . a state or
state subdivision, Indian tribe, or foreign government.” See
Negonsott, 507 U.S. at 106; Moskal, 498 U.S. at 109. In fact,
Rule 6(e)(3)(A)(ii) itself shows that if the Rules Advisory
Committee intended Rule 16(a)(2) to protect the work product
380 UNITED STATES v. FORT
of state and local, as well as federal, law enforcement officers,
it knew very well how to express that intent. See Gozlon-
Peretz v. United States, 498 U.S. 395, 404 (1991) (“Where
Congress includes particular language in one section of a stat-
ute but omits it in another section of the same Act, it is gener-
ally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.” (internal quotation
marks and brackets omitted)). The committee has likely
declined to amend Rule 16(a)(2) because the phrase “govern-
ment agent” means exactly what the committee and Congress
intend it to mean — an agent of the federal government.
C. Parallel to Protection of Work Product in Civil Cases
The majority argues that we need not read Rule 16(a)(2)
narrowly because it is “not just a work product rule.” Majority
Op. at 357. As the majority concedes, however, the Rules
Advisory Committee, the Supreme Court, other courts of
appeals, and our own court have all characterized Rule
16(a)(2) as a work-product exception. See Fed. R. Crim. P. 16
advisory committee’s note (1975 Enactment); Armstrong, 517
U.S. at 463; Fernandez, 231 F.3d at 1247; In re Grand Jury
Subpoenas, 318 F.3d 379, 383-84 (2d Cir. 2003); Virgin
Islands v. Fahie, 419 F.3d 249, 257 (3d Cir. 2005); Velsicol
Chem. Corp. v. Parsons, 561 F.2d 671, 676 (7th Cir. 1977);
United States v. Fallen, 498 F.2d 172, 175 (8th Cir. 1974).
Neither the language nor history of Rule 16(a)(2) suggests
that the rulemakers intended to expand its protection beyond
traditional work product — that is, protection of materials
made by a party or its agent in connection with litigation,
including, but not limited to, mental impressions, conclusions,
opinions, and legal theories. The text of Rule 16(a)(2), the
criminal work-product exception, differs somewhat from that
of Federal Rule of Civil Procedure 26(b)(3), the civil work-
product exception. But the important difference between the
criminal and civil work-product rules lies not in the types of
materials they protect, but rather in the fact that the criminal
UNITED STATES v. FORT 381
rule, unlike the civil rule, protects against the disclosure of
work product even upon a showing of need. See Fed. R. Civ.
P. 26(b)(3); Holmgren v. State Farm Mut. Auto. Ins. Co., 976
F.2d 573, 576-77 (9th Cir. 1992); In re Cendant Corp. Sec.
Lit., 343 F.3d 658, 663 (3d Cir. 2003); In re Grand Jury Sub-
poenas, 959 F.2d 1158, 1166 (2d Cir. 1992). There is nothing
in the two rules to suggest that they define differently the gov-
ernment and its agents in describing the scope of the govern-
ment’s work product.
D. Symmetry
The majority argues that the work-product protection of
Rule 16(a)(2) should be read “symmetrically” with other dis-
covery obligations under Rule 16. The majority takes this
term from Armstrong, in which the Supreme Court construed
the then-current version of Rule 16(a)(1)(C) “symmetrically.”
Armstrong, 517 U.S. at 462. The defendant had sought to
prove selective prosecution by the government, and had
accordingly sought discovery of documents in other cases
brought by the government. The defendant relied on his enti-
tlement, under Rule 16(a)(1)(C), to “documents . . . which are
within the possession, custody or control of the government,
and which are material to the preparation of the defendant’s
defense or are intended for use by the government as evidence
in chief at the trial[.]” Fed. R. Crim. P. 16(a)(1)(C) (1996)
(emphasis added). The Court held that these documents were
not discoverable, concluding that the defendant’s “defense,”
within the meaning of Rule 16(a)(1)(C), was symmetrical to
the government’s “evidence in chief.” Armstrong, 517 U.S. at
462. Since the defense of selective prosecution would not be
presented as responsive to the government’s case in chief,
information material to that defense was not discoverable at
trial.
I agree with the majority that “symmetry” is relevant to the
construction of Rule 16. But the majority seeks to create sym-
metry where none should exist. Worse, it ignores the symme-
382 UNITED STATES v. FORT
try that clearly does exist. I first respond to the majority’s
erroneous symmetry arguments. I then point out the symmetry
that the majority ignores.
1. The Majority’s Symmetry Arguments
a. The Jenks Act and Rule 16(a)(1)(E)
The majority argues that because “physical possession” is
the “dispositive factor” in determining whether material is
discoverable under the Jencks Act and Rule 16(a)(1)(E), sym-
metry requires that it also be the test for whether documents
are excepted from discovery under the work-product protec-
tion of Rule 16(a)(2). Majority Op. at 357, 358. This argu-
ment ignores the plain language of Rule 16(a)(2), which
protects only “internal documents . . . made by” the federal
government. On its face, this category of documents is not
coterminous with documents in the “possession” (Jencks Act),
or “possession, custody, or control” (Rule 16(a)(1)(E)), of the
federal government. Rather, it represents a narrower subset of
them.
Moreover, the result of the majority’s argument is absurd.
Like Rule 16(a)(1)(A), the Jencks Act and Rule 16(a)(1)(E)
are discovery rules requiring disclosure. By contrast, Rule
16(a)(2) is an exception to a rule requiring disclosure. Read-
ing an exception so that its scope is identical to the rule that
it modifies makes no sense. In that event, the exception
entirely obliterates the rule. This is why the Supreme Court
has counseled not that exceptions be read as symmetrical to
rules, but rather that they be read narrowly. Clark, 489 U.S.
at 739.
b. FBI “Form 302” Reports
The majority argues that it would create an “asymmetry” to
protect Form 302 reports made by FBI agents under Rule
16(a)(2), but not to protect similar reports created by state or
UNITED STATES v. FORT 383
local police officers. Majority Op. at 362. This difference in
treatment is, indeed, an asymmetry. But it is one clearly con-
templated by the work-product protection of Rule 16(a)(2).
The difference in treatment between FBI reports and state and
local police reports reflects the distinction, fundamental to the
work-product exception, between documents made by a party
or its agent, which are protected, and documents created by a
non-party, which are not. The purpose of the work-product
exception — to give parties freedom and incentive to develop
their own cases, see United States v. Nobles, 422 U.S. 225,
239-40 (1975) — simply is not “promoted by shielding from
discovery materials in an attorney’s possession that were pre-
pared neither by the attorney nor his agents.” In re Grand
Jury Subpoenas, 318 F.3d at 384.
2. Symmetry Argument Ignored by the Majority
The majority ignores the obvious symmetry between Rule
16(a)(2) and the parallel provision in Rule 16(b)(2). Rule
16(a)(2) protects the work product of the government. Rule
16(b)(2) protects the work product of the defendant. In rele-
vant part, Rule 16(a)(2) protects against “the discovery or
inspection of reports, memoranda, or other internal govern-
ment documents made by an attorney for the government or
other government agent in connection with investigating or
prosecuting the case.” In relevant part, Rule 16(b)(2) protects
against “discovery or inspection of . . . reports, memoranda,
or other documents made by the defendant, or the defendant’s
attorney or agent, during the case’s investigation or
defense[.]” That Rule 16(a)(2) and Rule 16(b)(2) share nearly
identical texts is consistent with the rulemakers’ broader
intent that Rule 16 create reciprocal discovery rights and obli-
gations between the government and the defendant. See Fed.
R. Crim. P. 16 advisory committee’s note (1975, 1993, and
1997 Amendments).
Symmetry demands that if the government is allowed,
under Rule 16(a)(2), to refuse to disclose any document that
384 UNITED STATES v. FORT
comes into its possession, custody, or control, regardless
whether it was “made by” a federal “agent,” defendants
should be afforded comparable protection from disclosure by
Rule 16(b)(2). But I find it difficult to believe that either the
government or the majority would support such a “symmetri-
cal” reading where documents in the possession of the
defense are at issue and are otherwise discoverable under
Rule 16.
Conclusion
The government is very appropriately concerned in this
case about the safety of prospective witnesses. But the witness
protection problem cannot be solved by reading the work-
product exception in Rule 16(a)(2) so broadly that it effec-
tively obliterates the discovery mandated by Rule 16(a)(1). As
the government and the majority read Rule 16(a)(2), the
work-product rule protects virtually all documents now in the
possession of the government, whether or not those docu-
ments were made by agents of the federal government, and
whether or not those documents endanger the safety of any
witnesses. Under the majority’s reading, it is enough that the
documents be relevant to the case, and that they have been
given to and are in the possession of the federal government.
The government has emphasized throughout this case, both
in the district court and here, that it is concerned about wit-
ness safety. Rule 16 includes a provision that is much better
suited for the protection of witnesses than the work-product
rule. That provision is Rule 16(d)(1) (“Protective and Modify-
ing Orders”), under which the court may “[a]t any time . . .
for good cause, deny, restrict, or defer discovery or inspec-
tion, or grant other appropriate relief.” The Rules Advisory
Committee specifically designed Rule 16(d)(1) to provide a
mechanism to protect witness safety, and to grant consider-
able discretion to the district court in drafting orders under
that rule. See Fed. R. Crim. P. 16 advisory committee’s note
(1974 Amendment). In fact, the district court in this case
UNITED STATES v. FORT 385
entered a very extensive protective order under Rule 16(d)(1).
Any debate about whether the district court’s order has suffi-
ciently protected witnesses is a debate about the drafting of a
protective order under Rule 16(d)(1). It should not be a debate
about the scope of work-product privilege under Rule
16(a)(2).