Appeal from an order suppressing and excluding evidence from introduction at trial, pursuant to Fed.R.Crim.P. 16(g), entered in the United States District Court for the Eastern District of New York, by Jack B. Weinstein, Judge. Reversed.
Kaufman, Chief Judge, Waterman and Feinberg, Circuit Judges.
In this appeal, taken prior to trial, we are called on to consider several novel questions pertaining to discovery in criminal cases. The government appeals, pursuant to 18 U.S.C. § 3731, from an order by Judge Weinstein suppressing and excluding from introduction at the forthcoming trial of United States v. Dennis Carroll et al. statements of prospective witnesses which the government has refused to disclose to the defense. Fed.R.Crim.P. 16(g). Despite this court's leadership in the movement toward liberalized rules of criminal discovery, United States v. Youngblood, 379 F.2d 365, 368-70 (2d Cir. 1967); United States v. Giampa, 290 F.2d 83 (2d Cir. 1961); cf. Dennis v. United States, 384 U.S. 855, 874, 16 L. Ed. 2d 973, 86 S. Ct. 1840 (1966), we must reverse Judge Weinstein because we believe he exceeded his statutory authority.
Since the discovery stage in this criminal case has been quite prolonged and because the underlying prosecution is rather complex, it will serve clarity to turn first to the litigation that preceded Judge Weinstein's order. On April 4, 1973, Henry Percevault was named with sixteen other individuals and one corporation in a three count indictment charging conspiracy (18 U.S.C. § 371) and substantive securities law violations in connection with the sale of shares in Fleurette, Incorporated. (15 U.S.C. §§ 77q(a), 77x, 78j(b)). In addition to the co-defendants, four unindicted co-conspirators were named in the indictment.*fn1 Since the filing of the indictment, eight defendants have pleaded guilty to various counts and may testify for the government; four defendants are fugitives; and the charges against one defendant have been dismissed. Accordingly, only five defendants -- Henry Percevault, George Cohen, Norman Rubinson, Leonard Kozman, and Equity Financial Trading Corporation -- are currently awaiting trial.
On May 21, 1973, the lengthy process of discovery began when defendant Percevault, aided by able appointed counsel, filed a motion for severance and discovery in which he requested, inter alia, production of all confessions or statements of co-defendants as well as copies of all recorded statements made to the Securities and Exchange Commission and to the grand jury. After additional requests for disclosure were made, supported by memoranda of law and full argument, Judge Weinstein issued an order on October 10, 1973 (amended on October 26, 1973), 61 F.R.D. 338, in which he directed the government prior to trial to permit Percevault*fn2 to:
inspect and copy or photograph any relevant written or recorded statement or confession made
(1) by the defendant Percevault, or
(2) by any co-defendant, or
(3) by any co-conspirator during the course and in furtherance of the conspiracy charged which the government intends to introduce against the defendant Percevault as his admission.
In his amended order of October 26, Judge Weinstein directed similar discovery of:
any relevant written or recorded statement or confession made by a co-conspirator after the conspiracy terminated, including grand jury testimony, reporting a statement that the government intends to introduce against the defendant Percevault as his admission because it was made by a co-conspirator in the course of and in furtherance of the conspiracy charged.*fn3
During the course of oral argument before us, the government represented that it does not have in its possession any statements, including wiretaps, made during the lifetime of the conspiracy, and that it has not suppressed any exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Moreover, we have been advised that the government has turned over to the defense all statements made by the five defendants who are awaiting trial and by several other defendants originally named in the indictment who will not be testifying for the prosecution. The only items the government ...