United States v. Fort

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).