United States v. Emile Fort, AKA Twin Edgar Diaz, AKA Hook Robert Calloway, AKA Papa v. Emile Fort, AKA Twin Edgar Diaz, AKA Hook

478 F.3d 1099 UNITED STATES of America, Plaintiff-Appellant, v. Emile FORT, aka Twin; Edgar Diaz, aka Hook; Robert Calloway, aka Papa, Defendants-Appellees. v. Emile Fort, aka Twin; Edgar Diaz, aka Hook, Defendants-Appellants. No. 06-10473. No. 06-10478. United States Court of Appeals, Ninth Circuit. March 8, 2007. Erika R. Frick, USSF—Office of the U.S. Attorney, Anjali Chaturvedi, Organized Crime Strike Force, San Francisco, CA, for Plaintiff-Appellant. Michael Satris, Esq., Bolinas, CA, Harry C. Singer, Esq., John D. Cline, Esq., Martha Boesch, Esq., Jones Day, Tony Tamburello, Esq., Michael N. Burt, Dep. Pub. Def., San Francisco, CA, Seth P. Chazin, Esq., Albany, CA, Michael P. Thorman, Esq., Bonjour, Gough & Thorman, Hayward, CA, for Defendants-Appellees. Before SUSAN P. GRABER, WILLIAM A. FLETCHER, and RICHARD C. TALLMAN, Circuit Judges. ORDER 1 Judges Graber and Tallman voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge W. Fletcher voted to grant the petitions. 2 The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a…

ORDER

Judges Graber and Tallman voted to deny the petition for panel rehearing and petition for rehearing en banc. Judge W. Fletcher voted to grant the petitions.

The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petition for panel rehearing and petition for rehearing en banc are DENIED. Judge Wardlaw’s dissent from denial of en banc rehearing, and Judge Graber’s concurrence in denial of en banc rehearing, are filed concurrently herewith.

with whom TALLMAN, Circuit Judge, joins, concurring in the denial of rehearing en banc:

I write to concur in the order denying rehearing en banc, see, e.g., Defenders of Wildlife v. EPA, 450 F.3d 394 , 402-06 (9th Cir.2006), with the limited purpose of addressing two material misunderstandings of the holding in United States v. Fort, 472 F.3d 1106 (9th Cir.2007), expressed in Judge Wardlaw’s dissent from the order.

1. The most important clarification relates to the interaction between Fort and a prosecutor’s duties to disclose exculpatory materials pursuant to Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). The sole question presented here was whether inculpatory (non-Brady), non-public investigative reports made by local police and then turned over to federal prosecutors for use in a federal prosecution concerning the same acts of the same persons are or are not exempted from disclosure by Federal Rule of Criminal Procedure 16(a)(2). The majority held that such materials are exempted from disclosure by Rule 16(a)(2). The parties did not raise an issue about, and we did not rule on, the scope or application of Brady disclosure requirements. Indeed, that…

with whom PREGERSON, REINHARDT, W. FLETCHER, FISHER and PAEZ, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I respectfully must note my strong disagreement with my colleagues who voted against rehearing this appeal en banc. The issue is one of exceptional importance to the administration of justice in criminal proceedings: the scope of the work product privilege in criminal discovery. 1 The panel majority ignores the plain meaning of the Federal Rules of Criminal Procedure, as Judge W. Fletcher ably details in his dissenting opinion. United States v. Fort, 472 F.3d 1106, 1122-31 (9th Cir.2007). Its interpretation of Rule 16 significantly alters the landscape of criminal discovery. In the course of its interpretative voyage, the panel majority works two sea-changes in existing law. First, it fashions from whole cloth a retroactive theory of agency *1101 between local and federal officials. Second, its holding as to the scope of the work product privilege directly conflicts with Supreme Court precedent, circuit court precedent, and the way prosecutors, defenders and district courts apply Rule 16 on a daily basis. The panel majority’s opinion threatens to…