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UNITED STATES v. GATTO

November 22, 1989

UNITED STATES OF AMERICA,
v.
LOUIS GATTO, SR., et al., Defendants



The opinion of the court was delivered by: BROTMAN

 On July 31, 1989, this court entered an order of detention pending trial for defendants Stephano Mazzola, Joseph Gatto, and Alan Grecco, finding that there was a serious risk that the defendants would endanger the safety of another person or the community and that no set of bail conditions could reasonably assure the safety of the community at large or potential witnesses in this case. Defendants have requested a de novo hearing to reconsider this detention order.

 Defendants subpoenaed documents from various state law enforcement agencies, returnable at the detention hearing held October 26, 1989. The government sought to quash the subpoenas. Noting that defendants are not entitled to full scale discovery at a pretrial detention hearing under United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986), this court ordered that the government produce the documents for in camera review to determine compliance with the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).

 I. MATERIAL TO WHICH DEFENDANTS ARE ENTITLED

 Under Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the defendants are entitled, upon request, to evidence in the government's possession that is material either to guilt or to punishment. Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule. United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Federal Rule of Criminal Procedure 16(a)(1) provides that, during discovery, the government must furnish any relevant statement made by the defendant, the substance of any statement made by defendant in response to interrogation, and any grand jury testimony of the defendant. The government must also furnish any copy of the defendant's criminal record, and permit inspection of any documents or tangible objects that are material to the preparation of the defense, are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed. R. Crim. P. 16(a)(1). Rule 16 also permits discovery of reports of physical or mental exams that are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial. Id.

 The material to which defendants are entitled has many limits. Rule 16 expressly excludes the discovery of reports or documents made by "the attorney for the government or other government agents in connection with the investigation or prosecution of the case," or of statements made by prospective government witnesses, except as permitted by the Jencks Act, 18 U.S.C. § 3500.

 The Jencks Act, 18 U.S.C. § 3500(a) provides that no statement of a prospective government witness shall be subject to subpoena or discovery until the witness has testified on direct examination.

 Defendants' discovery is also limited by Federal Rule of Criminal Procedure 17, which provides that this court may quash the subpoena for documents if compliance would be unreasonable or oppressive. Fed. R. Crim. P. 17(c).

 Under Bowman Dairy Co. v. United States, 341 U.S. 214, 221, 95 L. Ed. 879, 71 S. Ct. 675 (1951), this court must be solicitous to protect against disclosures of the identity of informants, and the method, manner and circumstances of the government's acquisition of the materials described in the subpoenas. Id.

 Because the case is at the pretrial detention stage, and not in full discovery, defendants are further limited in what materials they may subpoena. In United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986), the Third Circuit noted that a pretrial detention hearing is not intended to serve as a vehicle for discovery from the government. In Suppa, the defendant sought to call an FBI informant as a witness at the pretrial detention hearing to challenge the weight of the evidence against him. Id. at 116. The trial court denied his request, and the Third Circuit affirmed on this issue. *fn1" Unfortunately, the Third Circuit did not define the limits of discovery available at this stage.

 At least one other district court confronting the issue agrees that defendants are not entitled to full scale discovery at a pretrial detention hearing. In United States v. Hazzard, 598 F. Supp. 1442, 1453 (N.D. Ill. 1984), the district court held that defendant was not entitled to discovery of all evidence concerning lineups, photographic identifications, the statements of all witnesses, fingerprints and documents, as well as the identity of confidential informants. The court noted that the only exculpatory evidence was that some of the persons who viewed the lineup did not identify him. Id. at 1453. The court further noted that defendants were able to discuss this matter at the hearing because counsel was present at the lineup, thus further details of the lineup were unnecessary. Id.

 Defendants argued at the hearing held November 9, 1989 that the difference in the standard of proof at the detention hearing and at trial does not justify withholding information from them. This court notes that Third Circuit precedent limits discovery at the pretrial detention stage, not the differing standard of proof. Nothing in the Bail Reform Act or its legislative history indicates that the pretrial detention hearing may be used as a vehicle for discovery. Suppa, 799 F.2d at 120.

 The government argues that exclusion by Rule 16 of the discovery of reports or documents made by "the attorney for the government or other government agents in connection with the investigation or prosecution of the case" excludes most of the documents covered in the subpoena, because they are mostly police and investigative reports. This reading of Rule 16's exclusions is overly broad. The rule excludes reports prepared in connection with the investigation or prosecution of the case, not of other cases that may have come prior to it. The language of the statute suggests that it refers only to attorney work product on the current case, not to investigations and prosecutions from the past. Legislative history supports this reading. See 1975 Amendments: Conference Committee Notes, H. Rep. No. 94-414, at D. (reprinted in 18 U.S.C.A. Rule 16, Notes of Advisory Committee on Rules, at 203) ("work product" not discoverable); 18 U.S.C.A. Rule 16, Notes of Advisory Committee on Rules, 1974 Amendments, at 198 (work product of government attorney protected). Because the reports in the subpoena are not the work product of the United States Attorney in prosecuting this case, there is no blanket exclusion of reports by government agents as the government suggests.

 In sum, the court must balance the defendants' rights to exculpatory materials against the prohibition of full scale discovery at the pretrial detention stage. ...


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