concluding “the federal government had no duty to obtain from state officials documents of which it was aware but over which it had no control” in federal prosecution resulting from state-initiated investigation
How later courts described this case
- concluding “the federal government had no duty to obtain from state officials documents of which it was aware but over which it had no control” in federal prosecution resulting from state-initiated investigation
- following Gatto in concluding that documents in the possession of state officials are not within the custody or control of the federal government which has the duty to obtain them
- stating that, absent a strong reason to do so, this court will not create an inter-circuit conflict
- triggering requirement under Rule 16 is that evidence be in actual custody or control of federal government
Written by the judges who cited it.
The opinion
PREGERSON, Circuit Judge,
concurring in the result.
Although I agree with the result in Section II of the majority opinion, I would affirm on the statutory ground alone. As noted in part IIB of the opinion, Chavez did not allege that the prosecutor still had possession of the financial records. Thus, he did not meet his burden for disclosure under Fed.R.Crim.P. 16(a)(1)(c). See United States v. Gatto, 763 F.2d 1040 1047-49 (9th Cir.1985).
I part company with the majority opinion in this respect: There is no evidence of any violation of state law. Perhaps such evidence would have come to light had the court granted the motion for disclosure. That, however, is purely a matter of speculation. Because there is no evidence that the state officers obtained the financial records in violation of state law, I cannot see any basis for deciding the question discussed in section IIA of the majority opinion — whether evidence obtained by state officers in violation of state law should be excluded in federal court. That question was not before us.
If I were to decide the exclusionary issue, however, I would adhere to our language in United States v. Henderson, 721 F.2d 662, 665 (9th Cir.1983) (per curiam) (“federal courts should, in the interest of comity, defer to a state’s more stringent exclusionary rule with respect to evidence secured without federal involvement”, cert. denied, 467 U.S. 1218 , 104 S.Ct. 2665 , 81 L.Ed.2d 370 (1984). To hold otherwise is to allow state officers to violate state law with impunity. As we noted in Henderson , “it would undercut the deterrent function of a state’s exclusionary rule if state officers were able to turn illegally seized evidence over to federal authorities whenever they suspected the subject of the investigation of an offense susceptible to federal, as well as state, prosecution.” Id. If the issue were properly before us, I would reverse on this basis.