*4 § 1952; possession U.S.C. in Count VI with NELSON, Before FERGUSON and Cir with intent to pounds distribute 100 mar- of Judges, JAMESON,* cuit and District ijuana aiding abetting, and and in violation Judge. § § 841(a)(1) 2; of 21 U.S.C. and 18 U.S.C. in importation Count XIV with of JAMESON, Judge: District pounds of marijuana aiding and and abet- §§ ting, 960(a)(1) of 21 Appellants Dupuy, violation Albert U.S.C. Christie Bu- § (b), 952(a), 2; and and and zard, 18 U.S.C. and indicted, and Antonio Tercero were possession in Count XV with with intent to others, with a 24-count indictment pounds marijuana, distribute 200 of in vio- charging conspiracy, all defendants with § 841(a)(1). lation of U.S.C. appellant and each with substantive of- fenses, importation in the and distribution charged Buzard was further Count marijuana and Dupuy cocaine. was con- possession XVIII with with intent to dis- counts, counts, on six victed Buzard on five pounds marijuana, tribute 100 in viola- four, § . 841(a)(1); and Tercero counts. tion of 21 Ú.S.C. and Counts * Jameson, tana, sitting by designation. The Honorable William J. Senior Unit- Judge ed States District for the District Mon- denying (4) erred in the district court with intent possession
XIX XX with and attorneys cocaine, to call in vio- Tercero’s distribute one-half ounce § his line- 841(a)(1). witnesses of co-defendants as two lation of U.S.C. identification; up and further in Count charged Tercero was in aid racket- VIII interstate travel (5) IX insuffi- the evidence on Count was of 18 U.S.C. eering enterprises, in violation his conviction. to warrant cient § X, pos- 1952; IX, and XI with in Counts appellants contend (6) Finally, all of the cocaine distribute with intent session allowing the erred in the district court abetting, in violation aiding and infor- exculpatory to withhold § 2; § 841(a)(1) U.S.C. U.S.C. duty pursuant to her under mation possession with intent XIII with Count ground she Maryland, on the cocaine, of 21 U.S.C. in violation distribute con- promised that their two co-defendants § impor- 841(a)(1); XIV with and Count with her would be “secret”. versations aid- marijuana and pounds tation of III. Material Jencks of 21 abetting, U.S.C. ing and in violation § §§ 952(a), 960(a)(1), 18 U.S.C. Appellants contend dis provide properly failed to Government commenced on June Trial until well days impeachment took material case in chief cernible Government’s informant, direct Jackson’s the cross-examination of testimony. informant after days, Jackson, key and his for four wit Larry continued Government’s *5 § days. Act, for five cross-examination 18 ness. The Jencks U.S.C. right inspect all gives to defendants a judgment entered July On a containing statements of documents X, XI, on as to Tercero Counts acquittal government witness which relate jury returned July and On 12 XIV. testimony. subject matter of that witness’s guilty appellants all three as to verdicts impeach required for disclosure is This remaining on the counts. v. Pol purposes only. Appeal II. Contentions (9th Cir.1974), cert. izzi, 893 appellants contend1 that All of the denied, (1) prosecution pro- to failure of the (1975). comply with Failure to L.Ed.2d ma- impeachment properly vide discernible striking the may Act result in the Jencks cross-examination until well after the terial § 3500(d), United testimony, U.S.C. key mandates witness of the Government’s Birrell, 421 F.2d Act; under the Jencks a reversal Cir.1970), convic or even reversal of the § (2) appellants 3500(d), denied tion, Sperling district court v. Unit 18 U.S.C. Cir.1982). right compel to States, (2d Amendment their Sixth ed refusing allow by to testimony of witnesses overlooked, af- had until prosecution The im- prosecutor at trial to them to call testified, of a an edited version ter Jackson regarding testimony crit- peach Jackson’s by The defend- Jackson. statement issues; ical original unedited had access to ants grant (3) a continu- court’s failure Upon discover- of the statement. version testimony, grant or ance, Jackson’s strike statement, only had a ing the edited viola- for the Government’s other sanctions version, from the unedited variations few 12.1, 12.1, de- Fed.R.Crim.P. tion of Rule coun- copies defense prosecutor gave Fifth and Sixth appellants nied their the edited report showed that The sel. rights. Amendment The had read Jackson. version been testi- Jackson’s to strike defendants moved appellant Tercero contends In addition mistrial. to declare a mony or that Buzará, joint brief. raised Tercero Buzard filed appeals Dupuy, and Tercero 1. THe separate questions argument. Dupuy in a brief. oral additional consolidated for were motions, original The court denied both find used it in the cross-examination. ing good that the had acted The court’s conclusion that late disclo- faith that the late disclosure of the prejudice sure did not the defendants is not prejudice edited version did the defend clearly erroneous. court, The in making ruling, ants. The finding prose court’s that although found that the document would in good cutor had acted faith was based Jackson, impeach already the defense had upon prosecutor’s prompt disclosure extensive impeaching “as material as this (within hours) upon discovery a few years court has ever encountered in over document. late discovery was due to experience.” though Even the court the volume of the documents and the fact that “any really found further evidence is agent case go been directed to superfluous” it allowed the defendants to through file copies and make of all further cross-examine Jackson. sec pertinent give documents to defend pages ond cross-examination filled 68 Although ants. he found the unedited ver
transcript.
and Dupuy
Buzard
contend
sion, he
failed
discover the edited ver
court erred and that a reversal of
oversight
sion. This
could not be labeled
the convictions mandated. The
district
as a “willful
egregious
avoidance and
dere
finding
prejudice
no
court’s
is reversible
liction of the
statutory obligation.”
only if it is clearly
Campbell
erroneous.
Polizzi,
Cf
.
inquires an puy whether defendant has alibi and Buzard as witnesses line-up of his defense, specific if so defense and identification. call.
witnesses
intends to
The Govern-
he
Holmes,
Ruth
the ex-wife of the infor-
reciprocal obligation
ment’s
Rule
under
12.- mant,
conspirator
had occasion
a
to observe
1(b) is to
of
furnish
names
the witness- who had visited the informant at her home
which link the
es
defendant
scene of
Albuquerque
negotiate
purchase
crime.
If the
not
Government does
pounds
of marijuana.
of
She identified
advantage
particu-
take
12.1 as to
Rule
a
in line-up
Tercero
a
as the same individual.
time,
place
it
claim
lar
date
cannot
Tercero contends
identification
surprise
brings
when
unfair
the defense
was tainted because the Assistant United
Bouye,
forth alibi
trial.
witnesses at
Garcia,
Attorney,
pointed
had
to-
F.2d at 475.
him
ward
before Holmes had made her
urged
identification. Tercero
the court to
Vela,
F.2d
United States v.
him to call
allow
as witnesses the counsel
Cir.1982),
In
precisely
point.
present
for his co-defendants who had been
appellant
case the
claimed that the Govern
line-up.
at the
proof
ment was limited to
which
events
objected
Both
being
counsel
called as
place during
took
the time frame indicated
They
witnesses.
indicated to the court that
12.1(a) request
its
for notice of alibi.
they had seen Garcia make a
sort
a
reading,
held,
a
Such
court
would re
sweeping motion in the direction of the
quire the Government
invoke the rule
line-up. Tercero was in the
center
for an
entire transaction
eschew use of
line-up
gesture
so the
was
his
This,
stated,
entirely.
rule
it
would
direction. Garcia had no recollection of
render the rule unworkable.
Id. at 88-89.
making
gesture.
such
The court denied
The court found that Rule 12.1 allows the
request
Tercero’s
because it
found
no
to invoke
Government
the rule as
dis
actually
gesture
one had
seen
any-
temporal
aspects
crete
the crime
suggestive
one
to be
concluded
and that
charged.
If
defendant
con
becomes
prejudice
therefore
to Dupuy
Bu-
scope
charged,
about
fused
crime
zard,
attorneys
should their
be called as
he should
particulars.
seek bill of
Id. at
witnesses, outweighed
probative
value
appellant
case
was not
attorneys’
testimony.
limited
the Rule' 12.1
for notice-
August
of-alibi to alibi witnesses for
given
district court is
wide
bring
any
He
free to
forth
alibi
pursuant
discretion
to Fed.R.Evid. 403 to
appropriate
witnesses he deemed
for the
exclude
if
relevant evidence
there is a dan
encompassed by
days
charges
other
ger
prejudice.
of unfair
must
court
not,
against him. The Government could
probative
balance the
value
the evidence
days,
surprise
for those
claim unfair
be
See,
likely prejudicial
with its
e.g.,
effect.
it
cause
invoked Rule 12.1 as to
Martin,
days.
Dupuy
those
If
was confused
(9th Cir.1979). The trial court’s decision to
request,
sought
Rule 12.1
he
should
exclude
if
only
evidence
reversible
particulars.
7(f).
bill
Fed.R.Crim.P.
We
See,
its
abused
discretion.
Unit
e.g.,
agree with
the court
Vela that “the
Patterson,
ed
States v.
*8
rule is
notice-of-alibi
not intended to serve
(9th Cir.),
denied,
cert.
459 U.S.
the office of such a bill.”
joinder grant the court single a presented highly in the form of seeking party a “The reversal severance. significant incriminating event.” Unit Rule denying of a decision severance under Morando-Alvarez, 520 F.2d ed States v. ‘clear’, proving ‘mani- has the burden of (9th Cir.1975). Also, “a 884-85 when fest’, prejudice joint from the or ‘undue’ possession may joint joint venture is found trial____ prejudice must have been [T]he found”, jury also be id. at magnitude was that the defendant such infer had both may defendant a fair trial.” United v. Esca- denied knowledge and control over the contra (9th Cir.1980). lante, 637 F.2d possession companion. band “no the district court found that Here Campbell, F.2d gesture anyone actually one saw a which Cir.1974). Morando-Alvarez, See Mr. pointing was out of Terce- concluded properly ro.” The exercised its dis- denying motion. cretion severance case of fact a rational trier concluded that Tercero and could have Sufficiency Evidence VII. jointly pur Preece were involved there in- Tercero also contends that marijuana. This conclusion chase jury to sufficient evidence for the convict flow from fact that Tercero could IX, charged him which Tercero on Count informant; original contact with possession with and Ronald Preece Tercero the informant he advised approximately nine intent to distribute when delivered should contact Preece he pounds of cocaine. marijuana; participated in and Tercero the informant arrived Phoenix When price. the determination cocaine pounds of with 100 September jury finding joint of a venture With agreed marijuana had which Tercero joint posses infer could that Tercero Preece, the purchase, he contacted Ronald of fact of the cocaine. A rational trier sion by Tercero as the contact person indicated Tercero had been in could have found that delivery marijuana person. After the cocaine. possession they to Preece’s home wait went Upon Preece his arrival offered' Tercero. VIII. Material partial payment marijua- for the cocaine as to the one contention We come now participated in the discussion na. Tercero question on this presents a serious price for the cocaine. Tercero setting the five weeks before appeal. Approximately evidence contends that there insufficient *9 prosecutor into began the entered he the trial jury from the could conclude that which
1501
Gardner,
two co-de- v.
plea negotiations
770,
with
separate
(9th
611 F.2d
775
Cir.
fendants,
also
Donley
1980).
Patrice
and Forrest Col-
See
United
v. Goldberg,
States
483,
(9th
each
present
Cir.1978).
lins.
Counsel
for
582 F.2d
488
Consulta
throughout
negotiations.
the
As a condi-
judge
particularly
tion with the
appropri
negotiations
of the
prosecutor
tion
the
the
legitimate
ate when
Government has
agreed that the discussion would be off the
protecting
reasons for
confidentiality
the
pur-
any
record
would not be used for
requested,
the material
judge
for the trial
pose except possible impeachment
the
weigh
can then
the Government’s need for
prosecutor
took
individual defendant.
confidentiality against the defendant’s need
notes of the interviews.
to use the material in
order
obtain a fair
Bocra,
trial. United States v.
623 F.2d
About
trial
a week after
281,
(3d Cir.1980).
See United States
285
began,
prosecutor
decided that her
Nixon,
v.
711,
683,
3090,
418 U.S.
94 S.Ct.
potentially exculpatory
notes contained
ma
8109,
(1974).
counsel the
might
any exculpatory
memorialized
that he
ants whose interviews were
cert.
197,
(2d Cir.)
the notes
notes.6 The court ordered
the
furnish.”
582 F.2d
200
not,
did
denied,
placed
915,
289,
seal. The court
how
under
99
58
439 U.S.
camera
ever,
to
itself review the notes
(1978).
262
L.Ed.2d
exculpa
they contained
whether
determine
case,
no
nor
Counsel have cited
material,
if so
decide which
tory
and
to
involving
precise
the
any,
have we found
be disclosed
portions of the material should
Unit
presented.
factual situation here
Cf.
v.
States
United
to
defendants.
the
Cf.
Cadet,
(9th
v.
1453, 1457
ed
727 F.2d
Cir.1979) (“In
(9th
Jones, 456
Cir.1984) (abuse
failing
to
discretion
camera
inspection and excision is a sound
personnel
ordering dis
inspect
files before
Brady inquiry.”), cert. de
approach to a
Chacon, closure);
United States v.
nied, Cir.1977) (abuse
of discre
F.2d
contend
Appellants
L.Ed.2d 242
inspect
to
records
failing
juvenile
tion in
disclosing only
erred in
the
the court
sealed).
recog
ordering them
We
before
had made
identity of the individuals who
nize, however,
appellants here seek
statements,
exculpatory
and in
potentially
by
prosecutor
prepared
the
of her
notes
sealing the notes themselves.
interviews with the co-defendants
rather
seeking
appellants
If the
were
to obtain
them
than statements
defendants
Collins,
by Donley
statements made
and
selves,
prosecutor
and that
considered
by the district
procedures
followed
Brady
her notes
material. We conclude
Brady
judge
could have satisfied the
re-
ap
any possible prejudice
to avoid
to
quirement.
note 5
See cases cited under
pellants,
trial
made
court should have
Brown,
States v.
particularly
and
in camera examination of
an
the prosecu
held that
where
court
where witness
ordering
*11
files
observed,
mine whether a disclosure of the
could district court
majority
and the
opinion
have affected the outcome of the trial. 564
recognizes,
“prosecutor
the
con-
procedure
While
the same
sidered her
Brady
Major-
notes
material.”
here,
might
ity Opinion,
be
we conclude that
followed
supra,
Instead of
above,
under the circumstances set forth
disclosing
defense,
the material to the
how-
the
is in a
position
ever,
district court
better
than
prosecutor
the
submitted her notes to
this court
this
to make
determination. Ac-
district
the
court. The court sealed the
cordingly,
we remand
the district court
notes and failed to review their contents.
inspection
prosecu-
for an in camera
of the
The court chose instead to refer the defend-
tor’s notes to
whether disclosure
determine
learning
ants
alternate means of
the
might
of the
have
the out-
notes
affected
contents of the conversations memorialized
Agurs,
come of the
427 U.S. at
trial.
prosecutor’s
the
notes. The district
(specific request
IX. Conclusion Brady material. holdings We affirm the the of district reject procedure We this as error appeal, court on all raised in issues this Brady remand the claim to except the the district court’s failure to examine in for court the assessment it should prosecutor’s camera the We have notes. re- made when it first received the notes mand to the court from district for an camera prosecutor. the There inspection only of one differ- the notes to de- ence between inquiry termine district court whether failure to disclose the should initially have made inquiry notes and the would have affected the outcome of it must now conduct on If, remand. On re- upon inspection the trial. in camera mand the notes, district court must further ascer- the district court concludes that any tain whether disclosure prosecutor this determination cannot from alone, should have made notes constitutes harmless er- may cop- court submit ror under parties Chapman California, v. respective ies the notes to the argument court. 87 S.Ct. 17 L.Ed.2d (1967). REMANDED. opinion correctly The holds district
FERGUSON, Judge, concurring: Circuit accept Brady court cannot conceded mate- rial fail either to disclose make it or I opinion concur in the majority determination whether it be dis- should I only clarify and write the limited na- opinion The closed. identifies four other opinion's holding regarding ture of the propositions, necessary disposi- Brady Unfortunately, defendants’ claim. case, tion this that are I dicta. write language much contained the dis- separate clarify concurrence to the sta- Brady only cussion of the issue not out- propositions. tus these strips and disposition the facts of this claim, disposition it also conflicts with the The first dicta item of is contained in the holding of this case. With limited prosecutor court’s statement that the “sat- defined, court I properly concur duty exculpatory isfied her to disclose ma- disposition Brady claim. by “submitting terial” the issue to the judge.” prosecutor engaged Majority Opinion pretrial dis- at 1501. cases where the of certain material status ap- with the cussions codefendants question, as material is a close promised we pellants conceal occur- procedure approved whereby meeting. rence and contents some can submit the material to the prosecutor took notes of her conver- codefendants, however, for a with these final resolution of its status. sations Gardner, and one week into trial she turned the States v. (9th Cir.1980). judicial *12 1194, (1963), 215 L.Ed.2d S.Ct. demonstrated, specific need for evidence however, prosecution shifts from the never pending trial.” at criminal Id. Cadet, to the court. v. See United States the at We need address 3110. not (9th Cir.1984) (govern- 727 F.2d unlikely prospect availability of the of a duty to disclose bears constitutional privilege prosecu this case because the order). notwithstanding judicial absence of any privilege. any not tor did assert government’s disclosure Vindication of event, Brady already decision iden has simply by the court means determination where the Fifth Amendment has tified under government any was not suppression struck balance between the Where duty place. in the first disclose exculpatory infor or disclosure of material however, it remains required, disclosure is requested by the Bra mation defendant. duty prosecutor to disclose in of the prose teaches trial in dy that a which duty conformity her constitutional un- with exculpatory material in cution withholds Cadet, Brady. der v. United States by is requested formation the defendant By accepting judicial at 1467. Brady Maryland, not a fair trial. v. reviewing discovery disputes be- task 1194, 1196, 10 83 S.Ct. L.Ed.2d litigants, does tween the court not (1963) requested excul (suppression thereby prosecution’s constitu- assume pro patory material evidence violates due responsibilities. imposed min- Brady tional cess). Moreover, compliance Brady’s obligations prosecu- imal disclosure good minimal demands does not on the turn tion, judiciary. not In this case the on the prosecutor. faith or bad of the individual some, if prosecutor has admitted that not 1196; Id. at at States United all, disputed subject material at at 2400. Agurs, 96 S.Ct. Brady. The district disclosure under Accordingly, the defendant’s constitutional enforce, judicial court’s task is as- infor right exculpatory disclosure sume, duty. court’s reten- through improvident mation cannot be lost Brady material does not
tion
submitted
pros
impermissible representations by a
into party
court
such that
transform the
party
ecutor to
third
as to the confiden
obligations other-
it
the disclosure
assumes
tiality
Brady
material. The
However,
government.
by
borne
wise
authority to
good faith
as to her
belief
government could
its Brady
if the
meet
claims
away
Brady
the defendant’s
barter
merely
responsibilities by
using the court
simply
immaterial.
soon
repository,
as a
district courts would
of filing
inherit a
cabinets.
warehouse
by
expressed
dicta
The third item of
in footnote
majority opinion is contained
by
assertion offered
the ma-
second
innocuous
presence
Its
there is
five.
sup-
jority
precedential
factual or
without
enough
it not for the fact
it
were
that,
reviewing
port
suggestion
is the
holding
of this
appears to contradict
material,
judge
Brady
“the trial
can
opinion
Quoting an Eleventh Circuit
case.
con-
weigh the Government’s need for
then
context,
appears
the footnote
out of
need
fidentiality against the defendant’s
position that
disclosure of
adopt the
mere
order
a fair
the material in
to obtain
use
identity
by
prosecution
agree
I
of a witness
Opinion
Majority
trial.”
Brady.1
to meet the demands of
endowed with
suffices
that the executive branch is
Majority
(“
Opinion
1501 n.
quotation
United States v.
'Where defend-
1. The "succinct"
from
ants,
trial,
knowledge
(11th Cir.1983),
prior
Griggs,
had within their
recited
they
ascer-
could have
deletion.
See
the information
in footnote five has
critical
Opinion
(quoting
at 1501 n. 5
Majority
Griggs,
the district the trial below WAINWRIGHT, Louie L. ruling is the now reverse. we Respondent-Appellee. material this case—the notes involved by the court No. 84-3196. retained —was We and withheld from defendants. Appeals, Court of identity hold that the disclosure Circuit. Eleventh meeting attending those described May notes, disclosing if the notes instead of warranted, the com- disclosure is violated Rehearing Rehearing En Banc Brady. mands 21, 1985. Denied June *13 by The final of dicta offered item
majority opinion suggestion is the that “the
procedures by followed the district court Brady require-
could have satisfied the seeking
ment” if the defendants had been
to obtain their statements code- Opinion at 1502. As Majority
fendants. observes, majority opinion we are not
faced with a for statements made Instead,
by the only codefendants. question procedure
Brady issue is the
followed regarding the district court found notes. We have
procedure We, error. like
court, speculate have no on which to basis prosecutor’s obligation
as to the to disclose statements,
material exculpatory written or
oral, by the codefendants. conclusion, I majority concur in the
opinion’s Brady question discussion
only disposition insofar as it relates to the
of the case before us. material, alleged Brady simply tamed the there is no week after the trial commenced. It is (deleted ”) suppression by government.’ disingenuous suggest ma- concealment italics). By prose- terial in her own conduct Brady midway through known material until guaranteed cutor the defendants would suppression trial does not constitute while nothing know about the occurrence of her meet- upholding "propriety prosecu- same time codefendants, ing with the the conversations timing decisions” tor as to disclo- therein, notes Moreover, 803(5). suant to Fed.R.Evid. knew that defendants Jackson recital; nor were not a notes were verbatim jury Dupuy grand testified before the they adopted August pre- the witness. to on was New Mexico marijuana to pare pounds to haul request the defense to The court denied day. next This basis Arizona the was witness, finding a prosecutor as call the 10 in I of the indictment. of overt act Count need” to do compelling was that there “no day the first of testi- Jackson testified on so, “approxi- noting that there had been mony overt act 10 had occurred on testimo- mately impeachment weeks of two (not alleged August September 1 as Jackson”, impeach- ny Mr. August 31 as stated in the indictment or produced would sought to be evidence Dupuy). Dupuy’s to counsel the notice be “cumulative best”. discrepancy in dates was aware general rule federal courts As later, however, days It that time. was permit prosecutor to be called refuse to brought discrepancy to the he before partici in a trial in which he is as witness court, when he moved for a attention of “compelling is a need.” pating unless there permit for one month to him to continuance Tamura, go Dupuy to relatives of Mexico locate (9th Cir.1982). agree with the dis We his defense. He did call support alibi compelling trict court that there was no Dupuy’s testify and mother-in-law wife appellants were need in this case. family party Dupuy was at a No- use the notes on allowed to evening of gales lasted into the Au- which agents Three were cross-examination. gust debriefing; present during portions of the read seem to yet appellants made no effort call though it were Rule 12.1 as bill addition, as indi them as witnesses. charges limits as particulars above, ample testimony cated there was time, place, and date indicated prone which indicated that Jackson
Notes
notes See the sealed contain material. 582 F.2d denied, Griffin, Cir.), States v. cert. 439 U.S. 99 S.Ct. Cir.1981). said, L.Ed.2d 262 As Justice White has
notes them sealed.7 tor’s before government not re- is involved “[t]he Chacon, v. in- “in the known quired to make statement witness’ judicial economy,” ex- this court defendant is on notice of the terest who amined in camera files deter- personnel enable him to essential facts would Donley allegation Appellants subpoena "any suppression boils did not either or down an apparently knows at trial assessment of what the State made no effort to ascer- Collins knowledge by comparison given held the de tain from either them information Maryland, fense.” Giles the interview. J., (1967) (White, S.Ct. concurring). Cravero, argue prosecutor Appellants See United States vio- 7. also (5th Cir.1976); United States v. F.2d lated because she should revealed (1st Cir.1982). Grandmont, 680 negotiations plea the contents of ly immediate- the interviews. disclosure of the after Donley ap- 6. indicated that if Counsel for remarks, week existence of the one after Donley proached, would claim the Fifth Amend- commenced, argue, appellants would trial had privilege. Collins was not Counsel for advantage time to take not have allowed them by Dupuy for present. asked counsel for When material, they exculpatory even if had stipulation as to Collins’ intentions with rela- able to its nature. This been ascertain exact Amendment, stated, to the Fifth court tion impact preparing for trial was focus on the may your whether or own ascertain "You Supreme rejected in United States Court speak you not.” client will his Agurs, at S.Ct. 2401 427 U.S. 112 n. n. say, may, you if went on to "You The court recognized Supreme Court also co-defendants, wish, Collins____ Donley subpoena decisions, propriety as to what Amendment, they If claim the Fifth voluntarily revealed to defense coun- should sel, upon appropri- at the court would rule during course trial. Id. at request Upon time.” counsel for Buzard ate out, points As Government 96 S.Ct. immunity they if for the co-defendants frequent for four weeks with this trial lasted said, testify, agree court “The would recesses, ample opportunity may they government decide whether or not advantage provided to concerning of the information take immunity. want to offer a defendant [sic] identity possible sources government issue will face that if exculpatory testimony. to the court.” makes
notes
district
over
court. As the
774-75
Once this
court,
general privilege for the confidences es
accepted by
task
course,
appropri-
the court must make the
to its
functions. United
sential
basic
Agurs,
683, 711-13,
findings.
Nixon,
ate
See United
States
418 U.S.
427 U.S.
(1974).
3109-10,
notes and her of their discussion. The Opinion Majority sure. See at 1502 n. suppressed the information until a