Fort

dissenting.

I respectfully dissent.

The government seeks to use Federal Rule of Criminal Procedure 16(a)(2), which protects work product, to serve the purposes of Rule 16(d)(1), which protects witnesses. The government is very open in stating that it seeks to protect its witnesses rather than its work product. In the first paragraph of its brief, it writes:

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 steadfastly refused to assist the district court in crafting any protective order that would require disclosure of the names or identifying information of witnesses at any time before trial. The district court finally said in frustration:

[SER tab 11, at 44]

The protective order entered by the district court in this case requires the government to make available to defendants’ counsel the unredacted…

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 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…

The federal criminal prosecution of Defendants Emile Fort, Edgar Diaz, and Robert Calloway for racketeering and various 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 Sunny-dale Public Housing Project. They stand accused of engaging in an illegal enterprise of individuals associated in fact, who dealt drugs, committed 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 residents of the housing project, and the district court has found “that the government has made a substantial showing of danger to inculpato-ry witnesses.”

The United States brings this interlocutory appeal to challenge 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 prosecution 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 federal prosecutor for the…