UNITED STATES DISTRICT COURT

______________________ DISTRICT OF TEXAS

_____________________ DIVISION

UNITED STATES OF AMERICA	                 §
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						     §   		Cause No. __________________
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BRIEF IN SUPPORT OF MOTION FOR DISCOVERY
AND INSPECTION OF EVIDENCE

TO: THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:

	COMES NOW the Defendant, ///, and files this his/her brief in support of his/her motion for discovery and inspection of evidence and in support thereof would show the court as follows:
"In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to the storehouse of relevant facts . . . . [it] is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked."  Dennis v. United States, 384 U.S. 855, 873 (1966).

I.

STATEMENTS OF THE DEFENDANT
(Paragraphs 1 and 2 of Motion)
	Statements of the Defendant are discoverable pursuant to the express provisions of Rule 16(a)(1)(A), F.R.Cr.P. Disclosure by the Government of the contents of any statements attributable to the Defendant is necessary in order for the Defendant to adequately prepare for trial and for his counsel to intelligently advise said Defendant whether he should testify or invoke his privilege under the Fifth Amendment to the Constitution.  Johnson v. United States (D.C. Cir. 1964) 344 F.2d 163; Poe v. United States (D.D.C. 1964) 233 F.Supp. 173, aff'd (1965) 352 F.2d 639; Inqe v. United States (D.C. Cir. 1966) 356 F.2d 345.
	Discovery of statements or confessions of the Defendant under Rule (16(a)(1)(A) of the F.R.Cr.P. should not only include written or recorded statements made by the Defendant to Government agents but to other individuals as well.  United States v. Baker (D.D.C. 1966) 262 F.Supp 657, 671-672; Davis v. United States (5th Cir. 1969) 413 F.2d 1226, 1230-1231; United States v. Lubomski (N.D. Ill. 1967) 277 F.Supp. 713, 719-722.
	Discovery of the Defendant's statements under Rule 16(a)(1)(A) should include not only verbatim statements made by the Defendant but also any summaries of Government reports setting out the substances of the Defendant's statements or statements attributable to him.  Davis v. United States (5th Cir. 1969) 413 F.2d 1226; United States v. Crisona (2nd Cir. 1969) 415 F.2d 107, 112-114, cert. den. 297 U.S. 961; United States v. Federman (S.D. N.Y. 1967) 41 F.R.D. 339; United States v. Scharf (S.D. N.Y. 1967) 267 F.Supp. 19; United States v. Hasidwa (S.D. N.Y. 1969) 299 F.Supp. 1950; United States v. Kuperberq (S.D. Md. 1967) 288 F.Supp. 115; United States v. Jefferson (D.C. Cir. 1971) 445 F.2d 247 [including notes of names and dates of interviews]; United States v. Curry (N.D. Ill. 1967) 278 F.Supp. 508; United States v. Morrison (N.D. Ill. 1967) 43 F.R.D. 516; United States v. Pilnick (S.D. N.Y., 1967) 267 F.Supp. 791, at p. 801; United States v. Reid (N.D. Ill. 1967) 43 F.R.D. 520; United States v. Kaqeyanna (D. Hawaii, 1966) 252 F.Supp. 254, 285; United States v. Feinberg (N.D. Ill. 1974) 371 F.Supp. 1205.
	The Court, pursuant to Rule 16(d)(1), of the F.R.Cr.P., may enter a protective order requiring a partial disclosure of only those portions of the Government reports or summaries which relate to a summary of a Defendant's oral statements.  United States v. Killian, 639 F.2d 206 (5th Cir. 1981); Wright, Federal Practice and Procedure, Criminal 2nd §258; United States v. Garrett (N.D. N.Y. 1969) 305 F.Supp. 267.
	Those statements which are attributable to the Defendant, are controlled by the mandatory pre-trial production requirements of Rule 16(a), F.R.Cr.P. rather than Rule 26.2 and are therefore discoverable prior to trial.  Davis v. United States (5th Cir. 1969) 413 F.2d 1226; United States v. Crisona (2nd Cir. 1969) 416 F.2d 107, 112-114, cert. den. 297 U.S. 961.

	With respect to the precise statements attributable to the Defendant, which led government agents to conclude that Defendant was "associated" with the co-defendants and which the government will no doubt attempt to introduce against Defendant at trial, the substance of that conversation is necessary to adequately prepare for trial.
"[W]here the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements."  Dennis v. United States (1966) 384 U.S. 855, 872-873.

Statements of co-conspirators made in the course and in furtherance of the conspiracy are admissible against and deemed to be statements of the Defendant, and should be discoverable as such. Wright, supra, §253, p. 50; United States v. Thevis, 84 F.R.D. 47, 56-57 (N.D. Ga. 1979; United States v. Agnello, 367 F.Supp. 444, 448-449 (E.D. N.Y. 1973).
	Statements of a defendant are discoverable under Rule 16(a)(1)(A) if they are relevant.  What is relevant under Rule 16(a)(1)(A) should be broadly construed.  This is so because the government and the court may have difficulty in determining what is relevant from a defendant's point of view.  A defendant cannot advise the court or the government of the relevance of a statement to his case if he does not know of its existence or content.  "Under these circumstances, Rule 16(a)(1)(A) can fully serve its intended purpose only if the government takes a broad view of what is relevant for purposes of this provision.  We believe the government should disclose any statement made by the defendant that may be relevant to any possible defense or contention that the defendant might assert.  Ordinarily, a statement made by the defendant during the course of the investigation of the crime charged should be presumed to be subject to disclosure, unless it is clear that the statement cannot be relevant.  Where the government is in doubt, the written or recorded statement should be disclosed, if a proper request is made.  "United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982); Wright, supra §253 (1986 Supp. p. 4).
II.
STATEMENTS ALLEGED TO BE ADMISSIBLE UNDER THE 
CO-CONSPIRATORS EXCEPTION TO THE HEARSAY RULE 

(Paragraph 3 of Motion)

	Statements of co-conspirators made during the course of the conspiracy and in furtherance of the claims and objects of that conspiracy may be exceptions to the hearsay rule and admissible pursuant to Rule 801 (d)(2)(E), F.R.E.  The rationale underlined in that rule is that each co-conspirator is the "agent" of the other, once the conspiracy is shown to exist.  See the Advisory Committee's Rule 801(a)(2)(E).  As a defendant's agent, statements made by co-conspirators within the scope of that agency and in furtherance of same are said to be impliedly authorized by the defendant as a principal and are, therefore, admissions by the defendant.  Given that such co-conspirator's statements are admissible because they are treated as statements of or adopted by the defendant, then such statements should be discoverable as the defendant's own, pursuant to Rule 16(a)(1)(A). Wright, supra, §253, p. 50; United States v. Thevis, supra; United States v. Agnello, supra.
III.
STATEMENTS OF CO-DEFENDANTS
(Paragraph 3 of Motion)
	The statements of the co-defendants, requested in Paragraph 3 hereof, are discoverable under to Rule 16(a), of the F.R.Cr.P. Wright, Federal Practice and Procedure, Criminal 2d §254 at p. 83;
United States v. Westmoreland (S.D. Ind. 1967) 41 F.R.D. 419,. 427; United States v. Percevault (2nd Cir. 1974) 490 F.2d 126, 130-132; United States v. McMillen (7th Cir. 1972) 489 F.2d 229; United States v. Disston, 612 F.2d 1035, 1037-1038 (7th Cir. 1980); United States v. Tanner (N.D. Ill. 1967) 279 F.Supp. 457, 471-472; United States v. Deardorff (S.D. N.Y. 1971) 343 F.Supp. 1033; United States v. Houston (N.D. Ga. 1972) 339 F.Supp. 762; United States v. Curry (N.D. Ill. 1967) 278 F.Supp. 508, 514; United States v. Jepson (E.D. Wis. 1971) 53 F.R.D. 289, at p. 291.  Such statements are discoverable as a matter of right under ABA Standards For Criminal Justice, 2nd Ed. 1980, §112.1(a)(ii).
	Production of a co-defendant's statement is important to adequately develop defensive evidence and to meet the government's evidence, to determine whether or not to advise the defendant to take the stand, and is critical to determination of whether or not to grant a severance from such co-defendants under Bruton v. United States, 391 U.S. 123 (1968).
IV.
CRIMINAL RECORD OF DEFENDANT
(Paragraph 4 of Motion)
	Rule 16(a)(1)(B), F.R.Cr.P. requires in mandatory terms the production by the government of the Defendant's prior criminal record, if any.
V.
TANGIBLE OBJECTS
(Paragraph 5-7, and 14 of Motion)
	Rule 16(a)(1)(C), F.R.Cr.P., requires that upon request of the Defendant, the Government shall permit the Defendant to inspect and copy books, papers, documents, photographs and other tangible objects or portions thereof, which are (1) within the possession, custody and control of the government and (2)(a) which are material to the preparation of the defense, or (b) are intended for use by the government as evidence in its case in chief at the trial, or (c) were obtained from or belonged to the Defendant. Wright, Federal Practice and Procedure, Criminal 2nd, §254, p.66.  A Defendant's request need not make a specific designation of what he is requesting.  The Court should view leniently the Defendant's description of what he is requesting.  United States v. Hughes, 413 F.2d 1244, 1254 (5th Cir. 1969), vacated as moot 1970, 90 S.Ct. 817, 397 U.S. 93, 25 L.Ed.2d 77; Wright, supra, at p. 65. Defendants are not obliged to specify with particularity the documents sought if they are unaware of what particular items the government possesses.  United States v. Tanner, 279 F.Supp. 457, 469 (D.C.Ill. 1967).
	Materiality means that there must be some indication that pretrial disclosure of the disputed evidence would have enabled the Defendant significantly to alter the quantum of proof in his favor. United States v. Ross, 511 F.2d 757, 762-3 (5th Cir. 1975), cert. den. 96 S.Ct. 62, 423 U.S. 836, 46 L.Ed.2d 242; United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1979), cert. den. 99 S.Ct. 1972, 440 U.S. 982, 60 L.Ed.2d 242.  The materiality that must be shown is materiality to the preparation of the defense, not proof of the charges.  United States v. Hughes, supra.  Any matter in the custody, actual or constructive, of the government that tends to connect the Defendant to the events leading to the indictments, either directly or through his codefendant or a government witness, is material to the preparation of the defense because pre-trial discovery would be necessary to give the Defendant an opportunity to plan to refute such inference or connection by calling witnesses or acquiring contradicting evidence.  Any tangible evidence relied on by the government in securing the indictments against the Defendant would likely be interpreted as tending to connect the Defendant with the charges.  The Defendant should be given a reasonable opportunity to prepare to refute that evidence.
	Items that are intended to be used by the Government as evidence in its case in chief are discoverable upon request by the Defendant. Rule 16(a)(1)(C), F.R.Cr.P.  Documents to be offered into evidence by the government or which will be relied upon or referred to in any way by any witness called by the government in its case in chief, is discoverable as being "used by the government in its case in chief."  United States v. Countryside Farms. Inc., 428 F.Supp. 1150, 1154 (D.C. Utah 1977); United States v. Turkish, 458 F.Supp. 874, 882, (D.C. N.Y. 1978).
	Rule 16(a)(1)(C) also explicitly requires the government to disclose any document or tangible object that was acquired from or belongs to the Defendant. Wright, supra, at p. 69.
VI.
PERSONS HAVING KNOWLEDGE OF CASE
(Paragraphs 8, 9 and 12 of the Motion)
	The names of persons with knowledge of the facts is often the most important information for the proper defense of a case.  Wright, Federal Practice And Procedure, Criminal 2d §254, p. 85.  This is so because in most cases the government's evidence will be offered through the testimony of witnesses. Knowledge of the whereabouts of such witnesses will give the defense an opportunity to interview the witnesses prior to trial so that the defense will have an opportunity to prepare to meet or rebut that testimony.  Rule 16 of the Federal Rules of Criminal Procedure does not require the government to provide the defense with a list of government witnesses. However, neither does the rule prevent the court from ordering the government to disclose the names of witnesses it intends to call if the court chooses to do so.  United States v. Baggett, 455 F2d 476, (5th Cir. 1972).  The Fifth Circuit has held that the names and address of government witnesses must ordinarily be disclosed to the defense and that the burden falls on the government to show why, in a particular case, such disclosure should not be made. United States v. Opager, 589 F.2d 799 (5th Cir. 1979).  The mere wish of a witness not to be interviewed is insufficient to meet this burden since that desire becomes relevant only after the witness' whereabouts has been disclosed and because it is the witness' decision whether or not to agree to be interviewed. United States v. Opager, supra.
"Witnesses, particularly eyewitnesses to a crime are the property of neither the prosecution not the defense.  Both sides have an equal right, and should have an equal opportunity to interview them."  Gregory v. United States (D.C. Cir. 1966) 369 F.2d 185.

	One reason to not allow a Defendant to have the name and address of a government witness is if as a result there would be some danger to or intimidation of the witness.  However, the court has ample power to control possible abuses pursuant to Rule 16(d)(1).  For example, a court could order that defense counsel be provided an opportunity to interview a witness but to do so at a safe place and without requiring revelation of the witnesses address.  Where there is potential danger to a witness, the court must balance that risk versus the need of the Defendant and his right to a fair trial. Where there is no danger to a witness there would seem to be no reason not to allow the Defendant discovery of his identity and address. See United States v. Shoher, 555 F.Supp. 346 (D.C. N.Y. 1983); United States v. Austin, 99 F.R.D. 292 (D.C. Mich. 1983).
	Where the Government has knowledge of individuals whose testimony might be of benefit to the defense, either because it is exculpatory or mitigating, the government is under a constitutional obligation to disclose the names of such individuals. United States  ex rel Meers v. Wilkins (2nd Cir. 1964) 326 F.2d 135; United States v. Houston,  (N.D. Ga. 1972) 339 F.Supp. 762; Brady v. Maryland (1963) 373 U.S. 83.
	The names and addresses of the persons whom the government intends to call as witnesses at the trial is necessary in order to afford the Defendant and his counsel effective confrontation and cross-examination of these witnesses as guaranteed by the Sixth Amendment to the Constitution of the United States, Pointer v. Texas (1965) 380 U.S. 400, since effective confrontation and cross-examination requires that a government witness ". . . be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood . . . that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment . . . and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased,"Alford v. United States 282 U.S. 687, 691-692 (1931).
	It is therefore critical in order to effectuate meaningful confrontation and cross-examination that the identity and addresses of the witnesses and of others having knowledge of the case be disclosed well in advance of trial. When ". . . the credibility of a witness is in issue, the very starting point in 'exposing falsehood and bringing out the truth through cross-examination' must necessarily" begin with the witnesses' name and address.  Smith v. Illinois 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968).  It is the "witnesses" name and address [which] opens countless avenues of in-court examination and out-of-court investigation."  Smith v. Illinois, supra.  And this necessary "out-of-court investigation" cannot be conducted unless the names and addresses of these witnesses are furnished well in advance of trial.
	The need for disclosure of the identity and address of witnesses or persons with knowledge of the case would apply equally in regard to a Defendant's motion to suppress.  In most cases those persons with the most knowledge about probable cause, warnings given to Defendants, waiver of rights and confessions are, other than the Defendant, law enforcement officers or other witnesses working with the government.  Those persons often can give crucial testimony in regard to the issues raised on the motion to suppress evidence, but the Defendant rarely knows the identity and address of those witnesses because they are government agents or informants.  Failure to disclose the identity and address of those persons so they may be subpoenaed to court would deprive a Defendant of the ability to protect the rights guaranteed to him under the Fourth, Fifth, Sixth and Fourteenth Amendments.  It would certainly be a violation of due process of law to deny the Defendant access to the evidence necessary to defend those rights.
	Accordingly, unless the government can show a compelling reason not to do so, the court should order the government to disclose to the Defendant the identity, address and telephone number of all of the government's witnesses and any other persons who have knowledge relevant to the case.  United States v. Opager, supra.
VII.
CRIMINAL RECORDS OF GOVERNMENT WITNESSES
(Paragraph 10 of the Motion)
	The arrest and conviction records, or "rap sheets," of individuals the Government plans to call as witnesses requested in paragraph 10 of the motion and those of the Defendant's alleged co-conspirators, 16(a)(1)(C), F.R.Cr.P., are discoverable as being material to the preparation of the defense.
	This information is critically important for meaningful cross-examination by the Defense. United States v. Auten, 632 F.2d 478 (5th Cir. 1980).  The Defendant, unlike the federal Government with its vast data storage and investigative facilities, is at a substantial disadvantage without such information. Wright, Federal Practice and Procedure, Criminal 2nd §254, at p. 92, noting that Defense Counsel is at a "substantial disadvantage" without the criminal records of Government witnesses in advance of trial.
	Furthermore, the vast investigatory resources of the United States far outstrip those of this Defendant creating an unfair imbalance of advantage favoring the prosecution.  The Supreme Court has stated that the "due process" clause of the Fifth Amendment ". . . does speak to the balance of forces between the accused and his accuser.  "Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973).  These vast investigative resources, if not open to the minimal disclosure herein requested, provide the Government with "non-reciprocal benefits" in preparing this case, and ". . . when the lack of reciprocity interferes with the Defendant's ability to secure a fair trial" such constitutes a violation of the Defendant's constitutionally protected right to due process. Wardius v. Oregon, supra.
"[t]he [prosecution's] inherent information gathering advantages suggest that if there is to be imbalance in discovery rights, it should work in the Defendant's favor."  Wardius v. Oregon, supra.

	Effective confrontation and cross-examination at trial requires that the criminal records of Government witnesses be produced.  Prior convictions are admissible for impeachment purposes, and these convictions may be proved conclusively only by certified copies of convictions.  These documents can be obtained only from the Clerk of the Court in the jurisdiction where the conviction occurred. Accordingly, pre-trial access to F.B.I. arrest and conviction records is necessary to provide information upon the basis of which these documents may be obtained.
	The Defendant submits that this evidence constitutes exculpatory material within the meeting of Brady v. Maryland, supra, and therefore production is required as a matter of due process.  The fact that such information would serve to impeach any testimony by government witnesses is sufficient to bring the statement under the scope of Brady v. Maryland, supra, since the duty imposed upon the Government by Brady to disclose evidence it has in its possession applies to any information " . . . favorable to the accused either as direct or impeaching evidence."  United States v. Auten, supra; Williams v. Dutton 400 F.2d 797 (5th Cir.1968); United States v. Keogh 391 F.2d 138 (2nd Cir.1968).
VIII.
STATEMENTS OF INDIVIDUALS
WHO WILL NOT BE GOVERNMENT WITNESSES

(Paragraph 11 of Motion)

	The written statements in the possession of the Government of individuals who the Government does not plan to call as witnesses which have been requested in Paragraph 11 of Defendant's Motion are discoverable under the provisions of Rule 16(a)(l)(C), F.R.Cr.P., as being material to the preparation of the defense, for the same reasons as the statements of co-defendants who will testify.  The need for statements of witnesses who will not testify is more compelling because such statements would not be obtainable at any time under Rule 26.2, since that rule provides for discovery only of statements of witnesses who actually testified at trial.  Pursuant to Rule 16(a), the Defendant should be granted discovery of the statements of any witnesses whom the Government does not intend to call as witnesses at trial. Davis v. United States, 413 F.2d 1226 (5th Cir. 1969); United States v. McMillen, 489 F.2d 229 (7th Cir. 1972); United States v. Gleason (S.D. N.Y. 1967) 265 F.Supp. 880, 887; United States v. Ladd (D.C. Ala. 1969) 48 F.R.D. 266, at p. 267.
IX.
IDENTITY OF INFORMERS
(Paragraph 15 of Motion)
	The name, identity and whereabouts of any informers who gave information leading to the arrest of the Defendant as well as whether said informer was paid by the Government for such information, requested in Paragraph 15 of Defendant's Motion, is discoverable pursuant to Rule 16(a)(1)(C) where said informant is a witness to or has knowledge of facts relevant to the case because such an informant will be a source of information that is material to the preparation of the defense. United States v. Opager, 589 F.2d 799 (5th Cir. 1979); United States v. Barnes (8th Cir. 1973) 486 F.2d 776; Roviario v. United States (1967) 353 U.S. 53, 64, 77 S.Ct. 623, 1 L.Ed. 2d 639 (1957); United States v. Solomon (N.D. Ill. 1967) 26 F.R.D. 297.  Revelation of the identity and whereabouts of an informant is particularly necessary if the informer was a witness to or participant in the transaction subject of the prosecution. Roviario v. United States, supra.
X.
TESTS AND EXPERIMENTS
(Paragraph 16 of Motion)
	Rule 16(a)(1)(D) requires that upon request by the Defendant, the government must disclose the results or reports of scientific tests or experiments, or copies thereof which are in the possession, custody or control of the government or the existence of which is known or in the exercise of due diligence may become known to the attorney for the government, if they are material to the preparation of the defense or are intended for use by the government in its case in chief.  "Materiality" and "intended for use . . ." are defined the same as for the production of documents and tangible objects under Rule 16(a)(1)(C). Wright, Federal Practice and Procedure, Criminal 2nd, §254. See paragraph V above.  The disclosure of such scientific material is particularly appropriate for the following reasons:
	(a)	Any danger of intimidation of witnesses concerning these matters is so slight as to be for all practical purposes nonexistent, 
	(b)	Any expert testimony regarding such matters cannot be effectively subjected to cross-examination or rebuttal without ample opportunity prior to trial to prepare appropriate material for that purpose,
	(c)	Video tape, audio tape, film and certain documents generally have, in the eyes of a jury, unusually high probative value and credibility because it is concrete evidence that is supposedly difficult to alter or change,
	(d)	Expert testimony generally has, in the eyes of a jury, unusually high probative value, coming as it does from a supposedly disinterested party and concerning matters generally beyond the realm of ordinary lay information.

	The defense may therefore wish to obtain its own expert witnesses to inspect these materials, conduct appropriate tests, and give testimony at the trial. Accordingly, such specimens, experiments, tests and scientific reports and comparisons should be discoverable prior to trial.  United States v. Didly (D.C.D.C. 1966) 39 F.R.D. 340 [prior to new discovery rules], copies of fingerprints and expert analysis of same; United States v. Kaminsky, (N.Y. 1967) 275 F.Supp. 365, chemical analysis of narcotics; United States v. Cobb, (S.C.N.Y. 1967) 271 F.Supp. 159; United States v. Kelly (2nd Cir. 1969) 420 F.2d 26.
XI.
TRANSCRIPT OF GRAND JURY TESTIMONY
(Paragraph 13 of Motion)
	The transcript of testimony of individuals who testified before the Grand Jury in this case which is requested in Paragraph 13 of Defendant's Motion is discoverable pursuant to Rule 16(a)(l)(c) of the F.R.Cr.P., since such transcripts are "documents" under the rule.  United States v. Hughes (5th Cir. 1969) 413 F.2d 1244, 1255-1257, vacated as moot sub nom, United States v. Gifford-Hill American (1970) 90 S.Ct. 817.  Additionally, the defense is entitled to any "recorded testimony of the Defendant before a Grand Jury."  Rule 16(a)(1)(A), F.R.Cr.P.  Discovery of recorded testimony of witnesses other than the Defendant is discoverable pursuant to Rule 6(e)(3), F.R.Cr.P., which expressly provides for pre-trial discovery of such Grand Jury testimony.  Dennis v. United States, 384 U.S. 855 (1966).
	Grand Jury testimony should be disclosed anytime the government demonstrates no need for secrecy, Nowlin v. United States (5th Cir. 1968) 395 F.2d 283, 286, and the defense shows a semblance of need, (e.g. where said witnesses are individuals the government intends to call at trial); United States v. Machi (D. Wis. 1971) 324 F.Supp. 153; Allen v. United States (D.C. Cir. 1968) 390 F.2d 482; Gibson v. United States (D.C. Cir. 1968) 403 F.2d 166, 169; United States v. Tanner (N.D.Ill. 1967) 279 F.Supp. 457, at p. 472; United States v. National Dairy Products, Corporation. (W.D. Mo. 1967) 262 F.Supp. 447, 471 rec’d. in part on other grounds (8th Cir. 1967) 384 F.2d 457.  As the investigation giving rise to the subject indictment appears to be finished, there is little, if any, need for secrecy. The Defendant needs the transcripts of Grand Jury testimony to aid in cross-examination and impeachment of witnesses. Texas v. United States Steel Corp., 546 F.2d 626 (5th Cir.), cert. den. 434 U.S. 884 (1977); Allis-Charmers Mfg. Co. v. City of Fort Pierce, 323 F.2d 233 (5th Cir. 1963). The Defendant's ability to prepare his/her cross-examination and other aspects of his/her case is greatly enhanced by pre-trial discovery of Grand Jury testimony. 
	And where, as here, the Government's case may depend upon oral, unrecorded statements of the Defendant or alleged coconspirators, then any of the Grand Jury testimony regarding the substance of those statements is necessary to adequately prepare a defense and disclosure should be required prior to trial. 
"[W]here the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is reasonably available to ascertain the precise substance of the statements."  Dennis v. United States (1966) 384 U.S. 855, 872-873.
XII.

VIDEO TAPES. AUDIO TAPES ETC.

(Paragraph 17 of Motion)
	It is well settled that the provisions of Rules 16(a)(1)(C) requiring production of tangible things includes the production of electronic recordings and reproductions such as video and audio tape recordings.  United States v. James, 495 F.2d. 434 (5th Cir. 1974), cert. den. 95 S.Ct. 181; Davis v. United States, 413 F.2d 1226 (5th Cir. 1969); United States v. Crisona, 416 F.2d 107, 114-115 (2nd Cir. 1969), cert. den. 90 S.Ct. 991; United States v. Haldeman, 559 F.2d. 31, 74, n.80 (D.C. Cir. 1976); Murphy v. Federal Bureau of Investigation, 490 F.Supp. 1138 (D.C.D.C. 1980).  Included within the ambit of the rule are things that the Defendant said before, during and after the commission of the crime and his arrest. Davis v. United States, 413 F.2d 1226, 1230-1231 (5th Cir. 1969); United States v. Bryant,  439 F.2d 642 (D.C. Cir. 1971); United States v. Haldeman, supra; United States v. Crisona, supra; United States v. Isa, 413 F.2d 244 (7th Cir. 1969).
	Any electronic recordings of conversations or statements by alleged co-conspirators should be discoverable whether or not the Defendant's voice appears on that particular tape because statements of co-conspirators made during the course of or in furtherance of a conspiracy of which the co-conspirators and the Defendant were alleged to be members, are deemed to be statements of the Defendant and should be discoverable as such.  United States v. Thevis, 84 F.R.D. 47, 56-57; United States v. Agnello, 367 F.Supp. 444, 448-449 (D.C. N.Y. 1973).  While statements of co-conspirators may be deemed to be statements of the Defendant, in reality a Defendant may not be aware of other statements made by co-conspirators.  Certainly fairness would dictate that if a person is to be held liable for statements made by somebody else, he should be made aware of those statements so that he has an opportunity to prepare to refute those statements.  Such recorded statements of co-conspirators would be material to preparation of the defense, and as tangible objects are discoverable under Rule 16(a)(l)(c).  Written transcripts of electronically recorded statements are also tangible objects that bear the statements of the Defendant and/or his/her alleged co-conspirators and therefore such transcripts should be as discoverable as any other written statement or any tape recordings of video tapes.
	Accordingly, all photographs, film, video tapes, audio tapes or written transcriptions thereof should be produced by the government prior to trial so that the Defendant will have time to adequately prepare for trial.
XIII.
DISCLOSURE OF WITNESSES
(Paragraph 18 of Motion)
	The Defendant has requested a list of all persons who will be called as witnesses at trial.  The Court has ample authority to order disclosure of witnesses before trial, even though such disclosure is not expressly covered by Rule 16, F.R.C.P.  See United States v. Cannone, 528 F.2d 296 (2d Cir. 1975) United States v. Jackson, 508 F.2d 1001, 1005-08 (7th Cir. 1975); United States v. Price, 448 F.Supp. 503 (D. Cola. 1978).  However, such disclosure is within the discretion of the court. United States v. Price, supra, at 508.  The better cases indicate "a liberal approach toward the problem of discoverability of witness lists," particularly in complex cases.  See United States v. Greater Syracuse Board of Realtors. Inc., 438 F.Supp. 376, 382 (N.D.N.Y. 1977).  In this case, the court's discretion should be exercised in favor of disclosure for the following reasons:
		a.	Tactical Disadvantage.  A list of witnesses will significantly narrow counsel's investigation and preparation for trial, instead of dissipating efforts on investigation of unimportant or irrelevant witnesses.

		b.	Judicial Efficiency.  Cross-examination can be shortened and the case tried more expeditiously if counsel can interview witnesses in advance and has some prior knowledge of their potential testimony.  See United States v. Cannone, supra, ("At a minimum, pretrial ignorance of the identity of the prosecution's witnesses tends to detract from the effectiveness of the defense's objections and cross-examination.  Although continuances, which tend to mitigate the detrimental effects of unpreparedness, are sometimes obtainable, not only are they merely a partial solution to the problem of unpreparedness, in addition, their prolongation of trials is, of course, costly to both the government and the defendant.")  See also United States v. Jackson, 508 F.2d 1001, 1007 (7th Cir. 1975) (witness list approved to "expedite the trial by fostering more purposeful cross-examination").
		c.	Effective Voir Dire of the Jury.  The right to effectively voir dire the jury (or even to submit knowledgeable voir dire questions to the court) is adversely affected if the identity and character of government witnesses is not disclosed sufficiently in advance of trial to permit a meaningful investigation of such witnesses.  See United States v. Jackson supra, 1007 (witness list approved to "protect against the adverse consequences of a situation in which a juror is acquainted with a witness, by permitting knowledgeable voir dire questions").
		d.	Countervailing Considerations are Absent or Can Be Minimized by Protective Order.  There are few, if any, countervailing considerations involved in this case. If there is a legitimate fear that the Defendant will intimidate witnesses or suborn perjury, concealment of the identity of government witnesses can be appropriate.  United States v. Cannone, supra, at 301.  However, the crime alleged in this case is not a crime of violence or of perjury.  There is not reason to believe that this defendant would resort to violence or subornation of perjury. See e.g. United States v. Greater Syracuse Board of Realtors Inc., 438 F. Supp. 376, 382 (N.D.N.Y. 1977) ("The court also takes judicial notice that the probability of witness harassment and attempts to suborn witness perjury in a case of this type is far less than in the average criminal case, and certainly less than that demonstrated in Cannone.").  If, however, the government has a legitimate fear of witness harassment or subornation of perjury as to any particular witness or defendant, it may move for a protective order under Rule 16(e). See United States v. Cannone supra, 301; United States v. Richter supra, 175.

XIV.

EXCULPATORY EVIDENCE

(Paragraph 21 of Motion)

	The exculpatory or favorable evidence requested in Paragraph 21 of the motion is discoverable pursuant to the "due process" clause of the Fifth and Fourteenth Amendments to the Constitution, Brady v. Maryland (1963) 373 U.S. 83, and Rule 16 (a)(l)(C), F.R.Cr.P. United States v. Thevis, 84 F.R.D. 47 (D.C. Ga. 1979).
	The right of the Defendant to disclosure of "favorable" evidence exists whether such evidence is material to the Defendant's guilt or innocence or to mitigation of his punishment, Brady v. Maryland (1963) 373 U.S. 83, 87, and regardless of whether such exculpatory evidence would be admissible in the Defendant’s behalf at trial “... or in obtaining further evidence."  Giles v. Maryland (1967) 386 U.S. 66, 74.  The evidence need not be competent evidence or admissible at trial. United States v. Gleason (S.D. N.Y. 1967) 265 F.Supp. 880, 886.  It includes evidence "favorable to the accused either direct or impeaching".  (emphasis added).  Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2nd 215 (1963); Giles v. Maryland, 386 U.S. 66, 76, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).  The obligation to disclose favorable evidence to the accused is that of the government and failure to disclose such information is not excused merely because the prosecutor did not have actual knowledge of such favorable evidence. United States v. Auten, 632 F.2d 478 (5th Cir. 1980); Rhinebart v. Rhay, 440 F.2d 725 (9th Cir. 1971), cert. den. 404 U.S. 825. "The duty of disclosure affects not only the prosecutor, but the government as a whole, including its investigative agencies."  United States v. Bryant, 439 F.2d 642, 650 (D.C. Cir. 1971).
	This right to disclosure under Brady includes the right to pre-trial discovery by the Defendant. Williams v. Dutton, 400 F.2d 797, 800 (5th Cir. 1968), cert. den. 89 S.Ct. 908, 393 U.S. 1105, 21 L.Ed.2d 799; United States v. Kaplan, 554 F.2d 577 (3rd Cir. 1977); United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976), cert. den. 97 S.Ct. 324, 429 U.S. 924, 50 L.Ed.2d 292; United States v. Penix, 516 F.Supp. 248 (D.C. Okla. 1981); United States v. Gleason (S.D. N.Y. 1967) 265 F.Supp. 880, 884-885; United States v. Ladd (D. Alaska, 1969) 48 F.R.D. 266; United States v. Ahmad, (M.D. Pa. 1971) 53 F.R.D. 186, at pp. 193-194; United States v. Partin, (S.D. La. 1970) 320 F.Supp. 275, 284-285; United States ex rel Drew v. Myers, (3rd Cir. 1964) 327 F.2d 174.
	Evidence which may serve to impeach the testimony or credibility of a Government witness is discoverable under Brady, since the duty upon the Government to disclose evidence favorable to a Defendant under Brady applies to any information ". . . favorable to the accused either as direct or impeaching evidence.  "Williams v. Dutton, (5th Cir. 1968), supra; United States v. Keogh (2nd Cir. 1968) 391 F.2d 138 [disclosure of financial report which may have impeached Government witness]; Guerrero v. Beto (5th Cir. 1968) 384 F.2d 886 [fact that eyewitness to crime initially failed to identify Defendant at lineup]; Powell v. Wiman (5th Cir. 1961) 287 F.2d 275 [mental instability on part of key prosecution witness]: Giles v. Maryland 386 U.S. 66 (1967) [evidence of prior unchastity and mental condition of complaining witness]; Levin v. Clark, 408 F.2d 1209 (D.C. Cir. 1967) [prior statements by a witness that are inconsistent with later statements]; Mesarosh v. United States, 352 U.S. 1 (1956) [facts or evidence indicating the unreliability of any state's witness]; Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) [evidence of information indicating the untruthfulness of a state's witness]; Gregory v. United States, 369 F.2d. 185 (D.C. Cir. 1966) [instructions to a state's witness not to speak with defense counsel or to do so only in the presence of the state's counsel].
	Where exculpatory evidence is contained in a statement of a Government witness, discoverable under Rule 26.2 only after the witness has testified, the rule's ". . . statutory restrictions must be accommodated to the demands of due process," and the relevant portions of the statement disclosed prior to trial.   United States v. Kaplan, 554 F.2d 577 (3rd Cir. 1977) [referring to the precursor of Rule 26.2, the Jenck's Act); United States v. Gleason (S.D. N.Y. 1967) 265 F.Supp. 880, 887.
	Under Brady a particularized request is a practical impossibility since the "due process" requirements of Brady require that the Government provide the Defendant with exculpatory, mitigating or favorable evidence not in the possession of the defense.  Consequently, if the defense is unaware of such evidence it would be hard pressed to request the same with any particularity.
"If the defense does not know of the existence of the evidence, it may not be liable to request its production.  A murder trial-indeed any criminal proceeding is not a sporting event." (Fortis, J., concurring) Giles v. Maryland 386 U.S. 66 (1967).

XV.
PROMISES OR BENEFITS TO CO-DEFENDANTS, UNINDICTED 
CO-CONSPIRATORS OR OTHER WITNESSES

(Paragraph 21 of Motion)

	Evidence of any promises, compensation or benefits to any witness by the government or which the government will make at any future time is discoverable pursuant to the due process clause of the Fifth and Fourteenth Amendments, United States Constitution, and the withholding of any such evidence constitutes a denial to the Defendant herein of his/her constitutionally protected rights to due process and fundamental fairness in the criminal proceedings now brought against his/her.  Giglio v. United States 405 U.S. 150, 92 S.Ct. 763, 31, L.Ed.2d, 104 (1972); Brady v. Maryland, supra.  Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the Defendants, Williams v. Dutton 400 F.2d 797 (5th Cir. 1968) [impeachment evidence is exculpatory evidence discoverable under Brady], but also is discoverable by the Defendant in order to show such witnesses' bias or prejudice in testifying at trial.  Davis v. Alaska 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
XVI.
	The Defense believes that the United States Attorney or other agents of the United States Government involved in the investigation and preparation of this case may have the possession, custody or control of each of the above requested items and information, or through the exercise of reasonable diligence would be able to obtain such possession or locate the whereabouts of such items or information.  Each of these items is material to the preparation of an adequate defense and is reasonable in light of the facts and allegations.
	WHEREFORE, the Defendant, ///, respectfully moves this Honorable Court to Order the production of the above described papers, documents, and information requested in his/her Motion for Discovery and Inspection of Evidence, and for such other further relief as this Honorable Court should deem just and proper.
							Respectfully Submitted,

							___________________________________
							Name
							Attorney for Defendant
							State Bar No. 
							Address
							Telephone

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Brief In Support Of Motion For Discovery And Inspection Of Evidence was hand delivered to  Assistant United States Attorney at _________________, on the _____ day of __________________, 20______.

							______________________________________
							Attorney for Defendant