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UNITED STATES v. CHERRY

February 17, 1995

UNITED STATES OF AMERICA against GREGORY CHERRY, a/k/a "G," a/k/a "Ninja," et al., Defendants.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

 HAIGHT, District Judge:

 The government and the New York City Police Department ("NYCPD") move to quash four subpoenas served by defendant Gregory Cherry upon the NYCPD pursuant to Rule 17(c) of the Federal Rule of Criminal Procedure. The subpoenas variously seek the production of arrest reports, aided cards, unusual occurrence reports, complaint reports and complaint follow-ups *fn1" concerning the homicides of Javier Torres and Frank Robles on May 14, 1992 and Lourdes Cintron on July 8, 1992; and a robbery which occurred on October 10, 1992. The homicides are alleged as predicate acts against Cherry in the superseding indictment. In support of its motion, the government *fn2" argues: (1) that Cherry's use of Rule 17(c) subpoenas is an impermissible circumvention of the discovery bar of Rule 16(a)(2); (2) alternatively, that Cherry cannot meet the requirements for provision of the documents under Rule 17(c); and (3) that the documents are protected by the "law enforcement privilege."

 Because I agree with the government's first two arguments, the subpoenas will be quashed. I do not reach the third asserted basis for doing so.

 Rule 16(a)(2)

 Rule 16 governs the conduct of discovery in criminal cases. It is a rule of checks and balances. Rule 16(a) provides for governmental disclosure of evidence. Rule 16(b) provides for reciprocal disclosure by a defendant who invokes Rule 16(a).

 Other balances appear within Rule 16(a). Rules 16(a)(1) identifies the evidence the government is required to disclose on defendant's request. Several specific forms of evidence are covered by sub-paragraphs within Rule 16(a)(1): defendant's statements, P (A); his prior record, P (B), documents and tangible objects, P (C); reports of examinations and tests, P (D); and opinions of expert witnesses, P (E). Rule 16(a)(2) then identifies information not subject to disclosure to a defendant. It provides:

 
Except as provided in paragraphs (A), (B), (D), and (E) of subdivision (a)(1), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case. Nor does the rule authorize the discovery or inspection of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.

 Rule 16(a)(2) does not define "government." That is to say, the draftsmen did not specify whether the rule's protection against disclosure is limited to documents generated by the federal government, or whether it also extends to documents generated by local or state agents "in connection with the investigation or prosecution of the case" which have subsequently come into the hands of federal prosecutors. Similarly Rule 16(a)(1)(A), which requires disclosure to defendant of, inter alia, the substance of his oral statements to "any person then known by the defendant to be a government agent," does not define "government."

 The distinction makes a difference in this case because about 95 percent of the federal prosecutors' investigatory file consists of documents generated by the NYCPD during the course of its own, independent activities prior to a reference to the United States Attorney for prosecution under the RICO statute and other provisions of federal criminal law. Predictably, in the Rule 16(a)(2) context the government argues for a broad definition of "government," so as to include a local force such as the NYCPD, while Cherry argues for a narrow definition, limited to federal agents.

 It is clear enough that if this issue is resolved in the government's favor, the subpoenas must be quashed. They seek to reach the sort of documents that have traditionally been held to be barred from disclosure by Rule 16(a)(2). See United States v. Koskerides, 877 F.2d 1129, 1133-34 (2d Cir. 1989) (IRS agent's tax report precluded from discovery under Rule 16(a)(2)); United States v. Rufolo, No. 89 Cr. 938 (KMW), 1990 WL 29425, at *1 (S.D.N.Y. March 13, 1990) (Rule 16(a)(2) held to bar disclosure of investigative, agent, and surveillance reports prepared by federal agents), aff'd, 930 F.2d 911 (2d Cir.), cert. denied, 112 S. Ct. 130 (1991); United States v. Feola, 651 F. Supp. 1068, 1142-43 (S.D.N.Y. 1987) (disclosure of investigative files and interview reports of law enforcement officials barred by Rule 16(a)(2)) (Brieant, Ch.J.); United States v. Sileven, 985 F.2d 962, 966 (8th Cir. 1993) (Rule 16(a)(2) precluded disclosure of government's case files and investigative reports concerning the defendant's investigation).

 A number of cases have extended Rule 16(a)(2) protection to reports generated by local or state law enforcement officers. See United States v. Jones, No. 85 Cr. 1075 (CSH), 1986 WL 275, at *6 (S.D.N.Y. May 28, 1986) (defendants not entitled to disclosure of FBI and NYCPD police reports relating to identifications of defendants; such material "falls squarely within [Rule 16(a)(2)'s] prohibition"); United States v. Marshak, 364 F. Supp. 1005, 1008 (S.D.N.Y. 1973) (NYCPD investigative reports concerning the case exempt from discovery under predecessor to Rule 16(a)(2)); United States v. Johnson, No. 87 Cr. 348 (WF), 1988 WL 42409, at *1 (D.Mass. April 12, 1988) (pursuant to Rule 16(a)(2) defendant not entitled to disclosure of police reports made in connection with investigation of case); United States v. Duncan, 586 F. Supp. 1305, 1313 (W.D.Mich. 1984) (police reports related to the investigation of defendant's federal narcotics case which initially began as state investigation and prosecution barred from disclosure by Rule 16(a)(2)). They do so without analysis or discussion of whether such officers are "government" agents within the ambit of the rule. Nor, with the exception of United States v. Duncan, do these cases reveal whether the federal and local investigations were joint, or whether local officers conducted an independent inquiry prior to federal involvement. *fn3" That factor made no difference to the court in Duncan. The case began as a locally investigated state narcotics prosecution which was dismissed "to permit the federal authorities to prosecute defendant for the same acts." 586 F. Supp. at 1308. The court held that "all police reports related to the investigation and prosecution of defendant" were shielded from disclosure by Rule l6(a)(2).

 However, two district courts, in decisions equally lacking in analysis or discussion, have held that local or state reports prepared prior to the federal governments involvement in the case were subject to disclosure, notwithstanding the rule. See United States v. Green, 144 F.R.D. 631, 640-41 (W.D.N.Y. 1992) (in federal racketeering prosecution, court held that government must disclose reports and records prepared by state or local law enforcement agencies unless they were prepared as the product of a joint federal-state investigation or became the work product of federal investigators); United States v. DeBacker, 493 F. Supp. 1078, 1082 (W.D.Mich. 1980) (state police reports made before federal involvement in narcotics prosecution were not exempt from discovery under Rule 16(a)(2)).

 In another case, the court held that only police reports prepared after the criminal investigation "acquired its joint city-federal character" were afforded the protection of Rule 16(a)(2), but denied defendant's motion to compel the balance of the reports holding that the materials were not "documents" subject to disclosure under Rule 16(a)(1). United States v. Jones, 149 F.R.D. 139, 141 (N.D.Ohio 1993). Finally, in United States v. Gatto, 729 F. Supp. 1478 (D.N.J. 1989), the court denied a government motion to quash a subpoena which sought production of documents "from various state law enforcement agencies." The court ruled that the materials were not excluded from discovery by Rule 16(a)(2) because the rule applies ...


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