                  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,                                ORDER
           Defendants-Appellants.
                                       
                    Filed March 8, 2007

     Before: Susan P. Graber, William A. Fletcher, and
            Richard C. Tallman, Circuit Judges.

                          Order;
               Concurrence by Judge Graber;
                Dissent by Judge Wardlaw


                          ORDER

  Judges Graber and Tallman voted to deny the petition for
panel rehearing and petition for rehearing en banc. Judge W.
Fletcher voted to grant the petitions.
                            2645
2646                UNITED STATES v. FORT
  The full court was advised of the petition for rehearing en
banc. A judge of the court called for a vote on whether to
rehear the matter en banc. On such vote, a majority of the
nonrecused active judges failed to vote in favor of en banc
rehearing.

  The petition for panel rehearing and petition for rehearing
en banc are DENIED. Judge Wardlaw’s dissent from denial
of en banc rehearing, and Judge Graber’s concurrence in
denial of en banc rehearing, are filed concurrently herewith.



GRABER, Circuit Judge, with whom TALLMAN, Circuit
Judge, joins, concurring in the denial of rehearing en banc:

   I write to concur in the order denying rehearing en banc,
see, e.g., Defenders of Wildlife v. EPA, 450 F.3d 394, 402-06
(9th Cir. 2006), with the limited purpose of addressing two
material misunderstandings of the holding in United States v.
Fort, 472 F.3d 1106 (9th Cir. 2007), expressed in Judge
Wardlaw’s dissent from the order.

   1. The most important clarification relates to the interac-
tion between Fort and a prosecutor’s duties to disclose excul-
patory materials pursuant to Brady v. Maryland, 373 U.S. 83
(1963). The sole question presented here was whether incul-
patory (non-Brady), non-public investigative reports made by
local police and then turned over to federal prosecutors for
use in a federal prosecution concerning the same acts of the
same persons are or are not exempted from disclosure by Fed-
eral Rule of Criminal Procedure 16(a)(2). The majority held
that such materials are exempted from disclosure by Rule
16(a)(2). The parties did not raise an issue about, and we did
not rule on, the scope or application of Brady disclosure
requirements. Indeed, that issue was not ripe for review in this
interlocutory appeal because the deadline set for production of
Brady materials in advance of trial had not yet been reached.
                     UNITED STATES v. FORT                   2647
   2. The dissent predicts dire consequences for the criminal
discovery process. Dissent 2656-58. Ironically, Judge
Wardlaw concentrates most of her attention on a prediction
that Fort will vastly expand the kinds of materials that the
federal government will have to produce during discovery.
Dissent 2656-59. These concerns hinge on a second key mis-
understanding.

   The dissent draws an incorrect parallel between the discov-
ery obligations imposed on the government by Federal Rule
of Criminal Procedure 16(a)(1)(E) and the discovery exemp-
tion provided by Rule 16(a)(1). For the purposes of Rule
16(a)(1)(E), this court has held, “[t]he prosecutor will be
deemed to have knowledge of and access to anything in the
possession, custody or control of any federal agency partici-
pating in the same investigation of the defendant.” United
States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989) (empha-
sis added). The majority opinion does not deem the prosecu-
tion to have knowledge of or access to anything generated by
a state or local actor that is not actually known by and in the
possession of the prosecutor. In other words, unlike Bryan,
Fort establishes no principle of constructive possession. Fort
holds only that evidence gathered by state and local actors
becomes subject to the disclosure obligation established by
Rule 16 when it passes into federal possession for the pur-
poses of a federal prosecution of the same defendants for the
same acts that were initially subject to the state or local inves-
tigation; specifically, in this case, those acts are alleged to
establish a pattern of racketeering activity in a prosecution
under 18 U.S.C. § 1962. See United States v. Gatto, 763 F.2d
1040, 1049 (9th Cir. 1985). Therefore, the opinion’s conclu-
sion that “investigative reports created by state police officers
and turned over to federal prosecutors to support a unified
federal prosecution of defendants [are] reports ‘made by an
. . . other government agent in connection with investigating
or prosecuting the case,’ ” Fort, 472 F.3d at 1118 (emphasis
added), is both limited in scope and consistent with the prior
precedent of this court.
2648                    UNITED STATES v. FORT
   In short, the local police reports generated by their criminal
investigations are treated the same as if they were any other
report of investigation with which federal courts are more
familiar, such as a DEA Form 6 or an FBI Form 302 compiled
in an identical federal criminal investigation. That symmetri-
cal treatment is the key to our analysis interpreting a federal
prosecutor’s discovery obligations under Rule 16 and the
Jencks Act.



WARDLAW, Circuit Judge, with whom PREGERSON,
REINHARDT, W. FLETCHER, FISHER and PAEZ, Circuit
Judges, join, dissenting from the denial of rehearing en banc:

   I respectfully must note my strong disagreement with my
colleagues who voted against rehearing this appeal en banc.
The issue is one of exceptional importance to the administra-
tion of justice in criminal proceedings: the scope of the work
product privilege in criminal discovery.1 The panel majority
ignores the plain meaning of the Federal Rules of Criminal
Procedure, as Judge W. Fletcher ably details in his dissenting
opinion. United States v. Fort, 472 F.3d 1106, 1122-31 (9th
Cir. 2007). Its interpretation of Rule 16 significantly alters the
landscape of criminal discovery. In the course of its interpre-
tative voyage, the panel majority works two sea-changes in
existing law. First, it fashions from whole cloth a retroactive
theory of agency between local and federal officials. Second,
its holding as to the scope of the work product privilege
directly conflicts with Supreme Court precedent, circuit court
precedent, and the way prosecutors, defenders and district
  1
   Nine Federal Public Defenders representing the Central, Eastern, and
Northern Districts of California, the District of Montana, the District of
Nevada, the Eastern and Western Districts of Washington, the District of
Idaho, the District of Guam, and the District of Oregon jointly filed an
amicus brief in favor of rehearing en banc, citing the effect of the panel
majority’s opinion on a significant percentage of all pending and future
criminal prosecutions in the Ninth Circuit.
                    UNITED STATES v. FORT                  2649
courts apply Rule 16 on a daily basis. The panel majority’s
opinion threatens to reduce prosecutorial transparency in
criminal prosecutions, provides tools for discovery games-
manship, unwittingly hampers prosecutors by creating traps
for reversible Brady error, and increases the costs and burdens
on criminal defendants, much of which is born by the federal
government. The panel majority’s opinion also has far-
reaching effects, touching a vast number of criminal prosecu-
tions in the Ninth Circuit. This is exactly the type of excep-
tional case that warrants rehearing en banc.

I.   Background

   This interlocutory appeal arises from a federal racketeering
and drug conspiracy prosecution of some alleged members of
the “Down Below Gang,” which operates in public housing
projects in San Francisco. The eighty-six count second super-
seding indictment, which includes one hundred and three
predicate acts as part of the racketeering and drug conspira-
cies, names eleven defendants. Eight defendants entered plea
agreements following the issuance of the panel majority’s
original unreasoned order that vacated the district court’s dis-
covery rulings. The government has filed notices of intent to
seek the death penalty against defendants Emile Fort and
Edgar Diaz.

   The predicate acts were investigated by local police author-
ities for years before there was ever any federal involvement.
As a result, there are thousands of pages of local police
reports critical to both the prosecution and defense of the
case. The Down Below Gang, like many violent criminal
organizations, has a documented history of using violence and
intimidation to thwart investigators and prosecutors. Citing
witness protection concerns, federal prosecutors have stead-
fastly refused to turn over unredacted versions of the local
police documents in their possession. The redactions in those
2650                    UNITED STATES v. FORT
documents include witness names and both inculpatory and
exculpatory evidence.2

   The district court found that the local police reports were
“material to preparing the defense,” under Federal Rule of
Criminal Procedure 16(a)(1)(E), and ordered the prosecutors
to turn the reports over in unredacted form. However, to
ensure witness safety, using its authority under Rule 16(d),
the district court limited disclosure of the documents, fashion-
ing a nuanced and thorough protective order. Nevertheless,
prosecutors adamantly refused to produce the local police
reports, asserting the work product protections of Rule 16(a)(2).3
The district court unsurprisingly held that the Rule 16(a)(2)
privilege applies only to documents made by agents of the
federal government in connection with investigating or prose-
cuting the case. The district court further deemed local police
officers, who at the time of the investigation of the case were
working with federal investigators, federal “agents” for the
purposes of the Rule 16(a)(2) privilege. However, such a
joint-investigation showing, which would have justified the
claim of privilege, was never made by the federal prosecutors.
The district court therefore ordered evidentiary sanctions
against the prosecutors for flouting its discovery holdings, and
the government appealed.
  2
     The panel majority insists that the documents include no exculpatory
information. This is simply not true. As District Court Judge Alsup noted
in one of his discovery orders in this case, “[T]he names of all witnesses
. . . have been redacted [by the prosecutors] — even as to witnesses
wholly or largely exculpatory to one or more defendants.” See United
States v. Diaz, No. 05-0167 (N.D. Cal. May 18, 2006) (Order re Discov-
erability of Local Police Reports under Rule 16 and Schedule for Further
Submissions) (Docket No. 367) at 1.
   3
     Witness protection was the government’s primary justification for its
recalcitrant conduct; it is unclear why, for non-testifying civilians, the
government did not simply assert its privilege under Roviaro v. United
States, 353 U.S. 53, 59 (1957).
                        UNITED STATES v. FORT                       2651
II.    Criminal Discovery

   “There is no general constitutional right to discovery in a
criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559
(1977). Over time a patchwork of statutory and judge-made
rules has evolved to govern criminal discovery. Those rules
include: (1) the Jencks Act;4 (2) the Federal Rules of Criminal
Procedure; and (3) Brady v. Maryland, 373 U.S. 83 (1963).

  i.    The Rules of Criminal Procedure

   Rule 16 of the Federal Rules of Criminal Procedure gov-
erns criminal discovery. It has been significantly expanded
since the Rules were first adopted, and it now imposes discov-
ery obligations both on the government and the defense. See
Fed. R. Crim. P. 16 (1966 Amendment); id. (1974 Amend-
ment); id. (1975 Enactment). Unlike civil discovery, where
some materials are automatically produced as a matter of
right, in criminal discovery, the defendant must invoke the
right to discovery. Compare Fed. R. Crim. P. 16(a)(1) with
Fed. R. Civ. P. 26(a). Once a defendant makes a Rule 16 dis-
covery request and the government complies, the government
is entitled to seek reciprocal discovery from the defendant.
See Fed. R. Crim. P. 16(b)(1). Work product of the United
States and of the defense are not subject to discovery under
Rule 16. See Fed. R. Crim. P. 16(a)(2), 16(b)(2).

  Among the items that the government must produce upon
request are:

       Documents and Objects. Upon a defendant’s request,
       the government must permit the defendant to inspect
       and to copy or photograph books, papers, docu-
  4
    The Jencks Act requires prosecutors to turn over to the defense state-
ments made by testifying witnesses if those statements are in the prosecu-
tor’s possession. See 18 U.S.C. § 3500; Fed R. Crim. P. 26.2; United
States v. Polizzi, 801 F.2d 1543, 1552 (9th Cir. 1986).
2652                     UNITED STATES v. FORT
        ments, data, photographs, tangible objects, buildings
        or places, or copies or portions of any of these items,
        if the item is within the government’s possession,
        custody, or control and:

            (i)     the item is material to preparing the
                    defense;

            (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.

Fed. R. Crim. P. 16(a)(1)(E). In the Ninth Circuit, federal
prosecutors are deemed to have “possession and control” over
material in the possession of other federal agencies as long as
they have “knowledge” of and “access” to that material.
United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995).
Thus, for the purposes of Rule 16, possession can be imputed
to federal prosecutors even if they do not physically possess
the materials.

  ii.     Brady

   Though not technically a rule of criminal discovery, Brady
and its progeny play an important role in the process. Discov-
ery decisions made by prosecutors must always be made with
one eye on successful prosecution and the other on the poten-
tial for reversible error for failure to disclose information. See
Brady, 373 U.S. at 87 (“[T]he suppression by the prosecution
of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.”). The prosecutor’s duty to disclose information
includes a duty to disclose information known to other agents
of the government. See Giglio v. United States, 405 U.S. 150,
154 (1972) (citing Restatement (Second) of Agency, and not-
                       UNITED STATES v. FORT                      2653
ing that prosecutors speak for the government as a whole).
This principle was reiterated in the context of a state court
prosecution in Kyles v. Whitley, 514 U.S. 419, 433 (1995)
(imputing knowledge of state police investigators to the pros-
ecutor). “[E]vidence is material ‘if there is a reasonable prob-
ability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’ ”
Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)).

                              *    *   *

   Rule 16 is in essence a procedural prophylactic for Brady
error. “Generally, Brady violations first come before a court
after the trial and the court may then consider the materiality
of what was suppressed or omitted from disclosures made, in
the context of the complete trial record. Indeed, it is not possi-
ble to apply the materiality standard in Kyles before the out-
come of the trial is known.” United States v. McVeigh, 954 F.
Supp. 1441, 1449-50 (D. Colo. 1997).5 The panel majority’s
opinion and its impact must be evaluated through the Brady/
Rule 16 lens.

III.    Panel Majority’s Decision

  There is no dispute that the local police reports at issue
qualify under Rule 16(a)(1)(E) as documents “material to pre-
paring the defense.” Thus, the only question before the panel
was whether the local police reports qualified as privileged
work product. This required the panel to interpret Rule
16(a)(2):

       Information Not Subject to Disclosure. Except as
       Rule 16(a)(1) provides otherwise, this rule does not
       authorize the discovery or inspection of reports,
  5
  The interplay between these rules is thoughtfully explored by Judge
Matsch in his discovery order from the capital trial of Timothy McVeigh.
2654                    UNITED STATES v. FORT
     memoranda, or other internal government documents
     made by an attorney for the government or other
     government agent in connection with investigating
     or prosecuting the case. Nor does this rule authorize
     the discovery or inspection of statements made by
     prospective government witnesses except as pro-
     vided in 18 U.S.C. § 3500.

Fed. R. Crim. P. 16(a)(2). “The meaning of Rule 16(a)(2) is
so plain that it should be unnecessary to do anything more
than simply read the text in order to conclude that it does not
protect documents prepared by the San Francisco Police
Department without any involvement by the federal govern-
ment.” Fort, 472 F.3d at 1124 (W. Fletcher, J., dissenting).

   Nonetheless, the panel majority dissected the language of
Rule 16 and imbued it with new meaning. The panel majority
first concluded that the word “government” refers to the fed-
eral government. Id. at 1111. It then concluded that the term
“ ‘government agent’ includes non-federal personnel whose
work contributes to a federal criminal ‘case.’ ” Id. at 1113.
Finally, it held that the phrase “in connection with investigat-
ing or prosecuting the case,” is so broad as to include any
such work by any “government agent,” at any time, even
before there is a federal case. Id. at 1119-20. This combina-
tion of rulings transforms local police officers involved in
local investigations years before any federal prosecution was
even contemplated into federal “government agents.” Id. As
a result, all “reports, memoranda, or other internal govern-
ment documents” generated by the San Francisco Police
Department while investigating the Down Below Gang magi-
cally became material not subject to discovery under Rule 16
at all.6
  6
    There is no criminal discovery analog to the “substantial need” safety
valve to compel discovery of “fact work product.” See Fed. R. Civ. P.
26(b)(3). In the absence of a Jencks Act or Brady compulsion to divulge
such materials, the only way a defendant can acquire them is through pro-
secutorial largesse.
                    UNITED STATES v. FORT                  2655
IV.    Consequences

   In bypassing the plain meaning of Rule 16(a)(2), the panel
majority ignored well-established canons of statutory con-
struction, relied on inapposite cases and commentaries, and
failed to consider the far-reaching consequences of its ruling,
especially its redefinition of agency. Judge W. Fletcher’s dis-
sent expertly provides a proper textual analysis of Rule 16, id.
at 1123-26, and explains the fallacies in the panel majority’s
reasoning, id. at 1126-31. That said, we do not rehear en banc
every appeal where the panel gets it wrong. See Fed. R. App.
P. 35(a) (limiting en banc rehearing to “question[s] of excep-
tional importance” and conflicts with Supreme Court or exist-
ing Ninth Circuit precedent). There are numerous reasons that
this appeal meets these criteria and should have been reheard
en banc.

  i.   Work Product Rule

   One of the major justifications underpinning the panel
majority’s expansion of the scope of Rule 16(a)(2) is that the
rule was intended “to be a rule of discovery, related to the
work product doctrine but not synonymous or coextensive
with it.” Fort, 472 F.3d at 1116. The panel majority’s novel
assertion that Rule 16(a)(2) is not a work product exception
is directly contrary to the way that Rule 16 has consistently
been interpreted by federal courts. In United States v. Arm-
strong, 517 U.S. 456, 463 (1996), the Supreme Court noted
that “under Rule 16(a)(2), [a defendant] may not examine
Government work product in connection with his case.” See
United States v. Nobles, 422 U.S. 225, 239 & n.13 (1975)
(describing Rule 16(a)(2) as embodying the work product
exception). That Rule 16(a)(2) is a work product exception
has been reiterated by our and other courts of appeal. See,
e.g., Virgin Islands v. Fahie, 419 F.3d 249, 257 (3d Cir. 2005)
(“The exception in Rule 16(a)(2) applies to work product. The
ATF Report was not government work product of a type
exempted from discovery. It did not contain mental impres-
2656                     UNITED STATES v. FORT
sions, conclusions, opinions or legal theories concerning liti-
gation of an attorney or other representative of a party.”)
(citations and quotations omitted); United States v. Fernan-
dez, 231 F.3d 1240, 1247 (9th Cir. 2000) (“Rule 16 of the
Federal Rules of Criminal Procedure recognizes the work
product privilege.”).

  ii.        Vast Expansion of Government Agency

   The panel majority relies on its mistaken notion that physi-
cal possession of materials by the federal government is the
touchstone of discoverability analysis under Rule 16. Fort,
472 F.3d at 1118-19 (discussing United States v. Gatto, 763
F.2d 1040 (9th Cir. 1985)). Our law is to the contrary. We
have held that “[t]he prosecutor will be deemed to have
knowledge of and access to anything in the possession, cus-
tody or control of any federal agency participating in the same
investigation of the defendant.” United States v. Bryan, 868
F.2d 1032, 1036 (9th Cir. 1989) (discussing Rule 16(a)(1)(C),
which has since been moved to Rule 16(a)(1)(E)); see also
Santiago, 46 F.3d at 895.7 Rule 16 discoverability analysis
thus hinges on federal government agency, not on federal
government possession. If local authorities are “government
agents” for the purposes of 16(a)(2) privilege, then they must
also be government agents for the purposes of 16(a)(1) pro-
duction. The panel majority’s broad expansion of “govern-
ment agents” portends a number of deleterious downstream
effects.

        1.    Expanded Prosecution Claims of Privilege

   Here, the documents at issue are local police reports. But,
the panel majority does not draw any lines as to the type of
  7
    The panel majority’s focus on physical possession is misguided, and
even if it were correct, would lead to the bizarre result that the local police
reports become privileged work product only if they are physically handed
to federal prosecutors, but remain unprivileged if they are not.
                       UNITED STATES v. FORT                       2657
state or local agency that may be deemed an after-the-fact
agent of the federal government under Rule 16. So, depending
on the prosecution, its holding readily embraces reports made
by state environmental or business regulation bodies long
before a prosecution is even contemplated by the federal govern-
ment.8 Those reports need not contain any mental impressions
particularly geared towards federal prosecution of a particular
case under the panel majority’s rule, but rather must simply
be made “in connection with investigating or prosecuting the
case.” This means that many documents that were previously
discoverable by the defense can now be flagged as privileged
work product.

      2.   Defense Claims of Privilege

   What’s sauce for the goose is sauce for the gander. Put
another way, the panel majority’s opinion means that a defen-
dant may invoke the retroactive agency holding to make any
individual who has material relevant to the defense case an
after-the-fact agent, and similarly lock up “reports, memo-
randa, or other documents made by . . . the defendant’s . . .
agent, during the case’s investigation or defense” as privi-
leged work product under Rule 16(b)(2). The symmetrical
structure of Rules 16(a) and 16(b) demands that the panel
majority’s novel interpretation of agency applies for defen-
dants as well as for the government. This will lead to broad
invocations of privilege designed by defendants to thwart
criminal prosecution by locking up as much potentially rele-
vant material as possible.

      3.   Brady Implications

  The panel majority asserts that “nothing in this opinion
  8
   There is no reason under the panel majority’s opinion that agents of
another sovereign, such as Mexico or Canada, could not also retroactively
become federal agents for the purpose of invoking the work product privi-
lege.
2658                 UNITED STATES v. FORT
should be interpreted to diminish or dilute the government’s
Brady obligations.” Fort, 472 F.3d at 1110. Indeed, the panel
majority’s opinion has the exact opposite effect: it enhances
the scope of the federal government’s Brady obligations. The
extension of Brady to knowledge not personally held by the
prosecutor has been driven by theories of government agency.
See Giglio, 405 U.S. at 154 (applying agency principles to
prosecutors as spokesmen for the federal government). As
noted previously, Rule 16 and Brady are in many ways two
sides of the same coin. If a local agency is a “government
agent” for Rule 16 purposes, it should also be deemed an
agent for Brady purposes. This extends the federal govern-
ment’s Brady duties to include information in the control of
local agencies that participated in the “case.”

   And, in turn, the scope of the prosecutor’s policing respon-
sibilities with respect to their non-federal information sources
is now greatly extended. While the DOJ likely has internal
“procedures and regulations . . . to carry that [Brady] burden
and to insure communication of all relevant information [held
by DOJ appendages] on each case to every lawyer who deals
with it,” Giglio, 405 U.S. at 154, it seems unlikely that any
prosecutor would want the additional duty of ferreting out any
and all relevant Brady material from every state or local (or
foreign) agency that provides investigative material to the fed-
eral government. The panel majority’s opinion expands the
government’s Brady obligations into a space where even the
best-intentioned prosecutor will never be able to comply.

    4.   Conflicting Doctrines of Agency

   The conduct of federal agents is constrained by laws and
rules that do not apply to local officials or private parties. To
ensure that federal agents cannot avoid those rules by using
straw men, we have applied agency concepts to extend their
applicability. For example, Federal Rule of Criminal Proce-
dure 41 governs search and seizure by federal agents, and
imposes various restrictions related to warrants. We have
                     UNITED STATES v. FORT                  2659
extended the strictures of Rule 41 to local officials only when
they perform a search that is “federal in character,” that is,
“from the beginning it was assumed a federal prosecution
would result.” United States v. Palmer, 3 F.3d 300, 303 (9th
Cir. 1993). This interpretation of who is a federal agent sensi-
bly takes into consideration the temporal aspect of the relation
between the investigating official and the prosecution. Thus,
only if there is some reason at the time of the search to deem
it a federal search does Rule 41 apply to searches performed
by local officials.

   The panel majority’s definition of a “government agent”
ignores examples like Rule 41 and runs roughshod over the
traditional tenet of agency that a principal-agent relationship
must exist at the time of the agent’s actions in order to ascribe
culpability to the principal. See, e.g., United States v. Veatch,
674 F.2d 1217, 1221-22 (9th Cir. 1981) (“A private person
cannot act unilaterally as an agent or instrument of the state;
there must be some degree of governmental knowledge and
acquiescence. In the absence of such official involvement, a
search is not governmental.”) (quoting United States v. Sher-
win, 539 F.2d 1, 6 (9th Cir. 1976) (en banc)); United States
v. Birnstihl, 441 F.2d 368, 370 (9th Cir. 1971) (per curiam)
(holding that no Miranda warnings were required because
“[t]he evidence was completely inadequate from which to
conclude that the [private security] guard in this case was an
actual or ostensible agent of the police”); see also United
States v. Jones, 231 F.3d 508, 517 (9th Cir. 2000) (“A person
is a government agent when the government authorizes,
directs and supervises that person’s activities and is aware of
those activities.”) (quotation and citations omitted).

  iii.    Practical Concerns

     1.    Encouraging Gamesmanship

  Rule 16 prevents criminal trials from becoming “a sporting
contest in which the game of cat and mouse is acceptable.”
2660                    UNITED STATES v. FORT
United States v. Howell, 231 F.3d 615, 626 (9th Cir. 2000);
see also Berger v. United States, 295 U.S. 78, 88 (1935)
(“The United States Attorney[’s] . . . interest, therefore, in a
criminal prosecution is not that it shall win a case, but that
justice shall be done.”). When defendants invoke Rule 16,
they open themselves up to discovery to gain access to infor-
mation held by the government; thus, they invariably give the
government some inkling of the defense theory of the case.
Through this process, prosecutors become more informed
about their own case and the evidence in their possession.
This interplay during criminal discovery also often causes
prosecutors to reevaluate the possible Brady relevance of
material. In a criminal prosecution like this, where there are
thousands of pages of local police documents, it is even more
likely that prosecutors will be unaware of the potential impor-
tance of materials that they, or the local police, may possess.
The panel majority drives a significant wedge into the discov-
ery process. First, the defense is unlikely to even ask for dis-
covery if the government is entitled to the broad privilege
created by the majority. If the government is aggressive in
labeling material “privileged,” little material of any use to the
defense is likely to be turned over in any event. Second, even
if the defense does participate, it will now be able to assert a
similar privilege for materials garnered from “agents.”

   As a practical matter, in a complex case, it is impossible for
prosecutors to mentally catalog everything in their possession
and predict how its Brady relevance may be affected by the
defense presented at trial. For example, each of the one hun-
dred and three predicate acts for just two of the eighty six
counts in the indictment is presumably supported by a variety
of witnesses, physical evidence, and other material, as well as
police reports and investigatory documents prepared by the
local police. Without some back and forth with the defense,
the prosecution will not even know where to look for Brady
material. As a result, avoiding Brady error will depend solely
on prosecutorial epiphany when the defense puts on its case.9
  9
    This is invariably true for some Brady material related to wholly unan-
ticipated defense theories, but typically Brady material will be found
before trial if there is meaningful discovery.
                        UNITED STATES v. FORT                         2661
This is a recipe for mistrial or reversal on appeal—a result
that delays justice, and wastes prosecutorial resources, judi-
cial resources, and jury time, particularly in complex criminal
cases (the very cases most affected by the panel majority’s
opinion). These expanded Brady obligations exacerbate the
potential for error, since federal prosecutors must also dis-
close Brady material in the possession of local authorities
now deemed “government agents.”

       2.   Stripping Case Management Power from District
            Courts

   Rule 16(d) gives district courts the authority to control
criminal discovery and to enter protective orders as needed.
That is precisely what the able and experienced district court
judge sought to do here. That power has proven adequate to
allow for the fair trial in this circuit of members of other orga-
nizations that may have threatened witness safety, including
violent criminal gangs such as the Aryan Brotherhood and the
Mexican Mafia. But here, the government refused to cooper-
ate on the novel and incorrect theory of privilege now
endorsed by the panel majority. This is a classic example of
over-aggressive prosecutors seeking a short-term advantage
without fully contemplating the potential negative impact on
the success of their own future prosecutions.10 The majority
opinion whisks away from the district court the discretion to
decide what material is important to a fair trial and vests it in
the prosecution. In this case, the panel majority’s intervention
  10
     The district court made a number of highly critical findings about the
conduct of the prosecutors, which the panel majority fails to address. See
United States v. Diaz, No. 05-0167 (N.D. Cal. July 20, 2006) (Testimony-
Preclusion Order as Sanction for Noncompliance with Rule 16 Order)
(Docket No. 578) at 6 (“[D]efense counsel still remain in the dark — and
are intended by the government to remain in the dark — as to the source
of the potential evidence.”) (emphasis in original); id. at 12 (“Despite the
Court’s considerable respect for government counsel herein, this order
must find that they have acted willfully to abridge Rule 16 rights to gain
trial advantage over the defense.”).
2662                    UNITED STATES v. FORT
halted a complex criminal trial in its tracks and thwarted the
ability of the trial court to manage its own trial.

       3.   Broad Impact

   The panel majority’s opinion will affect a sizeable number
of criminal defendants in this circuit. For most judicial dis-
tricts in the Ninth Circuit, between thirty and sixty percent of
criminal prosecutions assigned to the Federal Public Defend-
er’s office originated with or involve local law enforcement.11
In those cases, federal prosecutors can now assert a work
product privilege over any and all investigatory materials
acquired from local authorities and refuse to turn them over
to the defense. This will force defense counsel to dedicate
more resources to tracking down that information through
means other than Rule 16. Ultimately, the increased time and
effort spent in criminal discovery will affect the quality and
cost of criminal defense. The effectiveness of defense counsel
will be decreased by the reduced access to information. Costs
under the Criminal Justice Act, paid from the public treasury,
will increase as counsel are forced to pursue other avenues to
acquire material already in the hands of prosecutors.

V.     Conclusion

   In addition to deciding an exceptionally important issue in
a way that directly conflicts with every controlling authority,
the panel majority’s opinion is just plain wrong. It gets the
textual interpretation wrong. It gets the policy analysis wrong.
It deviates from Supreme Court and circuit law on agency and
work product privilege. It hamstrings district court judges. It
condones trial by ambush in a capital case. It increases the
costs of defending and trying complex criminal cases. It hurts
the prosecution, the defense, and the quest for truth. For those
  11
     This estimate of potential cases affected throughout the Ninth Circuit
is set forth in the Federal Public and Community Defenders’s amicus brief
in support of rehearing en banc.
                   UNITED STATES v. FORT             2663
reasons this appeal merited rehearing by our en banc court
and an ultimate ruling that affirms the district court.
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                              © 2007 Thomson/West.
