United States v. Jerome Gatto, Virgil Redmond, Joseph Bonanno, Jr., and Salvatore Bonanno

763 F.2d 1040 UNITED STATES of America, Plaintiff-Appellant, v. Jerome GATTO, Virgil Redmond, Joseph Bonanno, Jr., and Salvatore Bonanno, Defendants-Appellees. Nos. 84-1121, 84-1133. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 11, 1984. Decided June 14, 1985. Donald B. Ayer, U.S. Atty., Sacramento, Cal., for plaintiff-appellant. D. Gilbert Athay, Salt Lake City, Utah, Charles R. Garry, Dennis P. Riordan, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Eastern District of California. Before WALLACE, HUG, and SCHROEDER, Circuit Judges. WALLACE, Circuit Judge: 1 The federal government appeals the district court's order excluding evidence seized by Utah state officials in a trash search operation about which the federal government failed to notify the defense until a few weeks before trial was to begin, even though the state had obtained the evidence two years earlier. It also appeals the district court's subsequent dismissal of the action with prejudice for failing to proceed to trial before the appeal of the exclusion order was resolved. The district court had jurisdiction over this case pursuant to 18…

The federal government appeals the district court’s order excluding evidence seized by Utah state officials in a trash search operation about which the federal government failed to notify the defense until a few weeks before trial was to begin, even though the state had obtained the evidence two years earlier. It also appeals the district court’s subsequent dismissal of the action with prejudice for failing to proceed to trial before the appeal of the exclusion order was resolved. The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 . We have jurisdiction pursuant to 18 U.S.C. § 3731 . We reverse and remand.

I

Early in 1982, the Sacramento field office of the Federal Bureau of Investigation (FBI) began investigating operations at the Los Gatos, California, office of Sunburst Industries, a company with offices there and in Salt Lake City, Utah. On July 7, 1982, as a result of the Sacramento investigation, a grand jury returned an indictment charging the defendants with 47 counts of mail fraud, wire fraud, interstate transportation of forged or altered securities, and conspiracy. The district court ordered the federal government to provide discovery “in…

dissenting.

I respectfully dissent. Fed.R.Crim.P. 16(a)(1)(C) requires the prosecution to produce relevant documents anywhere within the government’s “possession, custody or control.” The rule is not limited to documents physically resting in federal agency file folders and should reach at least far enough to encompass these documents, which were at the prosecutors’ fingertips.

The documents in question were the product of a joint investigation by Utah and Federal Authorities. The Utah trash search was linked to this Sacramento prosecution by an extensive network of state and federal authorities, including an FBI agent in Utah who acted as liaison between the Utah investigators and the Sacramento prosecutors. The trash search was also linked to this prosecution by a federally funded computer network designed to make evidence readily available to all participating state and federal agencies. No reasonable explanation appears in this record for the prosecutors’ twin failures to obtain and disclose these documents long before the eve of trial. The district court found the prosecution negligent to the point of recklessness and came just short of finding an intentional withholding of…