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 documents.

In my view, these documents were within the government’s “control” pursuant to the meaning of rule 16. The majority’s contrary holding rewards prosecutors who wait until the last minute to examine available evidence. It encourages gamesmanship and delay rather than forthrightness and efficiency.

That these documents were material, indeed key, to the prosecution is demonstrated by the government’s refusal to go forward with its case upon their suppression. Prejudice to the defendants, had the district court refused to order suppression, is similarly clear. As the district court observed, the government created a dilemma for defendants by forcing them to go to trial unprepared or to expend more time and money in further preparation of an already very costly case. Therefore, I would hold that in the circumstances of this case, the district court did not abuse its discretion when it dismissed the indictment with prejudice after the government refused to proceed. I would affirm.