reports made by an attorney for the government or other government agent in connection with investigating or prosecuting the case as a cherry court held there's no practical difference between federal and state local agents for purposes of this rule and yes you contend that there are not documents we made that argument in the district court your honor but we have not renewed that argument and again you know that when we take as a given these are documents you of course argue that they're not because of the two you don't have to hand them over  you have an argument for us to go on argument that the local police acting before the federal government gets actively involved you want to forgo an argument very agents of the federal government for  forego the possibility of arguing in the district court should the court rule against us that go back to the district court and argue that you know that some of these reports were but you're not arguing one way or the other here as to whether or not the local police operating construed as part of the federal investigation so in that sense yes the local agency reports would be part of the would cover be covered by federal government so these things i think turn out to be after the fact agents of the federal government even though they weren't at the time they were initially acting to collect the state or documents excuse me that's nice yes your honor i believe that that could be one fair reading of the rule because the case as a rule sixteen eighty two defines the case has to be defined at the point when the indictment is issued and given that you can i think fairly read that any investigation leading up to that was was ultimately part of the federal investigation leading to a federal indictment you know i'm not sure i saw that argument in your brief hearing my star very clearly in your brief was the term government to move to includes not only federal government but also state and local governments did you make the the government means federal government but nonetheless we win because these local police officers acting before federal government involvement are nonetheless agents within the meaning of the two did you make that argument  the brief say i don't think we need exactly those those words i do think it's fairly encompassed under our general principle here which is you have a federal indictment and anything leading up to that as part of the federal  is that's not workable either and i guess the question is what why did the district court's formulation prove unworkable and well that's i mean that's a different type of which is to try to determine rather than taking what i'm advocating which is to say you have a federal indictment you measure the federal case by an indictment that's a different apparatus if you will for defining this and that's what we think is unworkable which is to try to define exactly when pretty indictment this turned into a federal investigation we don't think that's workable because it's too informal of the process most of these investigations never get formally categorized as a joint task force type of situation and in fact you know no one at a local investigators are going to call the u s attorney's office and just have an informal phone call with is that when the line gets strong or you know is it does it happen when we bring the indictment at that point all these investigations have already occurred what the problem is as i understand it deals with the nature of the case this is a rico prosecution in which the predicate acts for me in the pattern of racketeering activity are based upon the violation of certain offenses that are normally prosecuted in state superior court is felonies street robberies homicides assaults and it is only when at some point the united states determines that this is that there is the illegal in or prize here that is engaging in this conduct as a pattern of racketeering activity that these typical state crime suddenly now become federalized and the investigation that underlies those crimes becomes part and parcel of the federal prosecution right so is that the problem that we're wrestling with here because there's no real way for us to draw a line in the sand and say on this date there it's all federal other than i guess we could use your formulation and say the data the indictment well what we're saying is that you can define the case by the date of the indictment but that all investigation leading up to that ought to be considered as part of that case now there's really very little on the question that we're faced with here and a lot of your arguments are practical policy based arguments that in terms of the practical policy based arguments why wouldn't the opportunity for the district court to thrash on a protective order be sufficient to protect  federal to get to answer a question your honor there are several problems with the protective order which gives you and i don't mean whether this one is in its particulars precisely the right one i'm asking a more global question let's assume it was the most protective protective order you possibly a mansion i'm asking about the mechanism of the rule and whether that is a sufficient mechanism within the rule as a whole to deal with the policy problems that you have raised well the policy problems that i mean first of all no as we've argued in this case no protective order can protect these witnesses in this case so we do not believe a protective order is is an answer secondly rule sixteen eighty two really the main purpose of it although it has a corollary corollary effects in terms of witness safety certainly but its main purpose is to protect the investigation so it is a protective order wouldn't really address that at all and it would still not solve the problem of dampening cooperation between federal and local investigators because  witness safety but if we can't ensure that we can protect these local police reports and not have to turn them over and because the lie and nude federal involvement may occur at any stage so say a local investigation start s and then later it somehow a federal involvement begins but we can't we can't if we take that case and we can't protect those reports we can't protect those witnesses were not and we're not going to take that case you know at the time know because as we specified in our brief even under the california penal code and this is universal among all the federal case law and statutes and in rules and the local law but under the penal code if there is a danger to the witnesses  names can be withheld until trial names and identifying information but that's true here too that is to say there's a possibility of a protective order to protect the witnesses now a judge also presented one but i want to come back would could be sufficient in this case so i do see your point but but not now looking at and i'm not sure how much the actual protective order itself in this case is in front of us but looking at the protective order i was quite struck by judge also saying you know i'm between a rock and a hard spot either i grant fairly long continuance of this air after for example you will hand over the witness statements presumed to jenks right after the witness testimony which may result in a mistrial may result in a very long trial so that there's ample time for your witnesses are vulnerable anyway so what we have in a protective order is actually a requirement of revealing thanks act material before the statute requires  all kinds of odd things are going on here because of that in dynamics of this very complicated multipath and trial and what i see happening here is you're trying to use rule sixteen rule sixteen a two which looks primarily like a work product rule as a witness protection device and of course you would have the side effect of being witness protection but we've got something here that talks about which is protection there's a protective order so i think you're trying to do something indirectly very difficult for me in the cherry take a few of them in turn first of all we believe that the protective order is a clear abuse of discretion even within the four corners of the court's orders the court has made a finding that there's a the gang of abide by a code of silence that encourages revenge on snitches and that if the if these i then if these witnesses were found they could expect harm that they would be at risk now at the same time reveal an identity but there is no feasible way for them to do that if they start telling these defendants the testimony and you've already got two players you have the defense counsel and the investigator who might separately talk to the defendant doesn't take very much for these defendants put two and two together and figure out who why didn't the government participate in the drafting process of the order it seems to me that the district court was all but help from the government was very frustrated by the fact that he was meant my son well your honor and we did participate in the process but this is also litigation that's been going on for a year and a half in a dozen different ways at least the government has told th court that if you disclose the witness names even if it's just to counsel even if it's under protective order we can't ensure the safety of the witnesses and i would point the court to excerpts for four eleven four forty five fifty five two twenty three footnote two for thirteen and then of course the wilson case which we cited where a witness was killed but these are all instances that show that  wrestling with is the district court is asking for help and in response to that request he's not getting much help other than a response from the government we're just not going to disclose this information and he's looking at it how long  train wreck in his words if there isn't some order to the presentation trying to address witnesses protection concerns at the same time that he's trying to address the legitimate concerns of the defense under the s directly answer your question meet one thing is going back to the august twenty third of two thousand and five transcript where we had a pretty exhaustive hearing of some of these issues the government clearly explained his position the defense counsel conceded it for excerpts for eleven that you can have a protective order in that and when but when defense counsel talks to their clients that's going to reveal may very well reveal an identity so we have concessions on the transcript there and we have the government in great detail saying why a protective order isn't adequate if it reveals the defendant's names or you essentially say the best we can do here is to follow the jinx act literally just flows just before the trial commences and we will do everything within our power and resources of state local law enforcement agencies involved in this matter to protect everybody as best we can that's right and because this questions come up a couple times i really do want to answer because the defendants main argument here is that they can't defend themselves without these reports and that is not the case first of all the government has turned over as so we're doing right things that are either neutral or inculpatory by definition well brady is not at issue in this appeal there are some materials that are both in color i know that exports coppa tory but i have not understood your position to be that she material on whether discovery is available of that that's right that's right your honor and i want to continue on because there are other reasons why they're not there's no argument here they can't make their defense first of all case which we sat in our briefs in the district court case from the from d c and that is a case that strikingly similar to this case it's a complex case it's a death penalty prosecution involves multiple defendants and it has the same sort of witness safety concerns and the district court in that case acknowledge that many courts have held that a few days a sufficient to receive these sort of materials and here i understand that argument but of course they want those materials because they think it might be in some respects helpful even though my definition now this is not brady material and it's not material because that's handled separately and you have an independent obligation to hand that over and given that for  front of us you can see that these are documents whose within the meaning of rule sixteen the only protection you've got within the rule is either sixteen a two state government degree of helpfulness board have moved into the witnesses yet you're right you're absolutely right and i'm not i'm definitely not making an argument what i am doing is responding to their argument that they can't prepare their case if this were again i obviously prepare the case they think they might be able to very little better which is why there is conflict but that in terms of them having a constitutionally adequate ability to prepare their case i well they're not now making a constitutional argument there are a lot of constitutional arguments floating around they're just making  the court my name is martha burch and i represent the defendant robert callaway and i will be speaking for all three defendants with counsel table as michael burke for a meal floor neal forbes and i'm michael satirist so i got the wrong michael we're not talking about chinks steak knives because they will be there on the world sixteen question we're not talking about drink statements and we're not talking about brady material we're talking about other stuff we are not talking about joint statements we are not talking about a witness list we are to some extent talking about brady material because the government has redacted exculpatory witnesses from the discovery it has produced so in other words and these pages are referenced in our excerpts of of manner of construction of the rule we're looking at just documents of some kind that are in the possession now of the federal government that's correct and the government ha conceded that these documents are documents in their possession that are material to the preparation the defense so they're clearly discoverable under rule sixteen right exactly we give a real life example that will help me are we talking about for example san francisco police incident if this were a state prosecution would such a police report be discoverable yes and they are routinely disclosed in state court prosecutions as the government pointed out the state court judge may just as the federal judge here may  the as i said these these reports are routinely disclosed in state court in some of the instances in this case where there were actual state prosecutions the reports were in fact disclosed for some of the defendants there was no state court prosecution so they were not disclosed  it basically says that which is covered by the junks act you have to give over and all the other stuff that's in your possession that is prepared by a government agent whatever that may be you don't have to turn over you do not argue so whether there's danger regardless of what you don't have to turn it over that's correct and our position is that the government in trying to construe rule sixteen eighty two to include state court governments in addition to federal the federal government  the one example and in rule sixty congress they're made it explicit that in that case in that case only they were going to have the word government refer also to state governments and to fed into foreign governments they made it explicit in that rule and nowhere else they did not subsequently or at the same time the mineral sixteen a two in every other rule in every other context the word government is meant to mean the federal what if we follow the reasoning of the judges from the southern district of new york who recognize the significance social cost that would be implicated if we did not encourage cooperation between state and federal investigative agencies when they result in the discovery in prosecution of federal crime because those decisions are with respect to those courts were wrong in the sense that the rule interpreting the rule the way the defense believes it should be interpreted the way the tensing is plainly meant to be does not discourage cooperation between the state and federal government in fact it encourages cooperation between the state and federal government as it does also find the rule only protects state police reports if the state i the rico case results in either harm to witnesses in the federal prosecution or an unwillingness on the part of witnesses who have knowledge of the facts to come forward because those identities have not been made known in their neighborhood that with all due respect that concern does not really go to how you interpret rule sixty two what that goes to is the district judges ability as you did here if that is in fact a concern if the government  disputing it but what i am saying is that the government has never presented any evidence other than their claim that the protective order is in adequate to address those concerns and the district judge i want to i want to get back material and everything else you have to give up the tank secretarial you don't have to have anything else and if it's protected under a two well but that's the court but that's that's the question we're trying to take that step back if a statement of the witnesses were taken by a san francisco police officer and handed over to the federal government and that witnesses called in the federal prosecution don't you get that statement under the junks act yes yes that's my point yes and so what we're all sixteen seems to me to do is to divide the world in two parts those things that have discoverable as documents material to the defense that's we start with that premise and the district court found that the government doesn't dispute that they can see that these police reports because they're in the possession of the government because they're document wants to give them to your entitle to these and the government doesn't want to give them to us because they just convince the district court that that there are significant witness security concerns here's the question we have to decide it's how can we solve this tension between your need for the information and the government's legitimate reason for not wanting to turn it over as soon as you want it well you would have from the district court as not abusing his discretion in resolving that tension and he spent months and months trying to but by an agent of the government and the question then is ok who is an agent of the government and you can answer it either by saying who the government is and it isn't purely the federal government then again the pressure goes on the agent and if the government mean state or local government well that means anything  agent or not of the earlier time but i mean that's our understanding statute but the but the first provision let's say the work product carve out specifies by a government agent and we've got to figure out what that means is that narrowing so that it only protects if it is literal government with a narrow definition of agent which is your argument that's right thank you for making  found that rule sixteen eight to other government agent means other federal government aid and if we were to disagree with that and i know you're not conceding anything but assuming that we were to read other government agent to mean the agent of another government as well as another agent of the federal government what would be the result would we them send everything back to the district you know hurt to reconsider the remainder are under a correct understanding of the law no because the judge also police reports and under well settled law once a party produces fact work product in part it waves the privilege as to the whole document that addresses the same subject matter so they of work product but well is it just purely translight of all i think it's clearly a discovery rule but it absolutely has its roots in the work product doctrine and it was clearly intended by the drafters to be a because theoretically the rule certainly in theory could cover the work product of state or local government agents when the federal government takes over prosecution there's no overarching principle that says it couldn't do that they could clearly they could  amend the rule as they didn't succeed and say when we say government here we mean state and foreign not just federal they could do that right there's no reason they couldn't do that and in addition so for that reason it isn't necessarily termin they could but they haven't so our view is they haven't they could have they didn't it refers to federal government agency only and it essentially coach terminus with the work product privilege but i do want to point out if you construe the rule the way the government wants and say that other government agent means state agents in other words they're saying that the rule says the anything made by an attorney for the government everybody agrees that refers only to federal attorneys only rule that way what result what the the end result is that documents prepared by the u s they are protected and documents prepared by state and local agents are protected but documents prepared by f b i agents are not because they're not and other government agent a federal government agent so it leads to the absurd result that federal agent reports are not protected while state agent reports are protected i can't we in light of the current discovery rules with regard to federal agent reports why can't we  both and say it includes federal as well as state and you've just read the word other out of the word i mean the word out of the rule other means with we define other two means local state or foreign well a couple responses to that if you every other place in rule sixteen and in the rules of procedure other than the rule sixty where they explicitly expand the definition in every other rule government refers to the federal government to construe just this one use of the word in this one to be interpreted the same way through that status or have you have to be right linguistically if other government agent if other modifiers government so we're talking about another government that means that we're talking about the agent of another government  of this government so we were stuck either way i think you i think the way you lose if you're going to lose is that agent has a very broad meaning and that wealth includes not only federal agents working after the federal those reports might have been protected the problem here is the government failed repeatedly time after time despite multiple invitations from the district court who said come in prove to me that these police officers were acting as you were agents when they made these leader charged federal as a public appearance you can't know at that point in time that that might be the beginning of a federal criminal case you can't know and you know i but but but i guess it's sort of so what so the reports prepared at that time are not your work product if in fact district court the answer with regard to the key legal issue and send it back to him to take another look at these discovery obligations in the light of the guidance that he would receive from this court as to how that rule should be interpreted i'm not i'm not sure i understand what the ruling of this court would be and what you would be asking the district court to do if there were government is construed to mean state then presumably none of these police reports are discoverable and at all and we never are entitled to them so we would be completely in the dark as to what have you but it may depend if they contain it's got the tory material as you allege some of them do for example identifying a witness who this identifies somebody who's present at the scene of the homicide the documents are discoverable there is no downside to construe the rule the way the district judge here did and the way we believe it's absolutely correct there's simply no real downside to the government the government is others in this district involving outlaws motorcycle games organized crime cases continuing criminal enterprises that's what is so unique about this case that it requires the extraordinary pretrial production of information that you're going to get eventually and in substantial amount but later that you want it well what is unique about this case is that the government has uniquely to its practice in every other one of those cases refused to disclose this information and all of the other take cases in this district that information was disclosed that the prejudice is we are talking about a large complex case we are talking about multiple homicides multiple defendants over a long period of time the prejudice to the defense and being able to adequately represent our clients and to investigate the case is huge we've already suffered a six month delay in being able to fully investigate our cases as a result of the government's intransigence and its refusal to produce the information that is otherwise discoverable the district court recognized that difficulty he recognized the defendant's right to a fair trial and he made it extremely thorough efforts to balance our interests in representing our clients against the government's interest in protecting  the prosecution is seeking to execute at the same time that they are willfully disobeying a ground rule to the prosecution set forth by the court and there's no question that this defiance gives the prosecution an advantage if disputed whether that's the old theory or motive in this case or not but the effect of the disobedience that preclusion of the death penalty should be imposed to cure the prejudice that defendants were suffering and  that's a kind of a lesser sanction should be imposed and we certainly joining in that observance and that you know to to use a  image of justice blackmun that's because with the machinery of death it must be well or old by due process in order to meet constitutional demands and when the breakdown is due to the purposeful conduct of the very governmental body that is seeking death courts should not and need not think or with that and see what should be done as a sanction it should really close down that machinery as hazardous to human life and that so i think we do understand your position and you have used more than your two minutes thank you thank you very of tactical advantage doesn't is not even explained in the order there's no support for that the defendants are not prejudiced because as i stated before if these were three o two reports they wouldn't be entitled to them so it's hard for them to claim prejudice here and we have thirdly that the prejudiced here it would be cured by trial continuances as were granted in addling case out of d c and the maple's court which we signed it has said that the only the least severe sanctions should be imposed and we believe that would be brief and  and at the same time the court is saying that we have to put out a witness list twenty one days ahead of time this thirty four thirty two clearly says that that is an error of law so with that unless the court has any further question