ORDER
Dеfendant Roger Thomas Eley [“defendant”] has moved this court for a. preliminary hearing, for severance and separate trial, for the production of certain investigative reports, and for the disclosure of all evidence favorable to him including:
“(1) The statements of all persons who have been interviewed by an agent of the Government in connection with the subject matter of this case and whom the Government does not presently intend to call at trial.
(2) The memoranda or summaries of any oral statement made to an agent of the Government by any person in connection with the subject matter of this case whether or not
(a) the statement, if in writing, has been signed, or approved by the witness, and
(b) the statment relates to the proposed subject matter of the direct testimony of the witness at trial.
(3) The stenographiс recording or transcription of any oral statement made by any person to an agent of the Government in connection with the subject matter of the case, whether or not
(a) the stenographic recording or transcription is substantially verbatim recital of the statement, and
(b) the statement was recorded contemporaneously with its making, and
(c) the statement relates to the proposed subject matter of the direct testimony of the witness at trial.
(4) The statements of persons or memoranda or recordings of any oral statement of any person, whether or not made to an agent of the Government.
(5) The transcript of the testimony given before the Grand Jury during its investigation and consideration of the subject matter • herein by any persons whether or not the Government intends to call them to testify at trial.
(6) Any memoranda, documents or statements used by the Government during the investigation of this ease.
(7) The names and addresses of all persons who may have some knowledge of the facts of the present case.
(8) A summary reflecting the criminal records of all persons the Government intends to call at trial.
(9) All reports and memoranda prepared on behalf of the Government or otherwise in connection with the investigation оf this case.
(10) Written or recorded statements, or a summary of any statement made by defendant or copies of such statements.
(11) The results of reports of any scientific or economic tests or experiments or studies made in connection with the instant case, or copies of those reports.”
Turning first to the motion for a preliminary hearing, the court notes
*355
that defendant was indicted by the grand jury July 7, 1971. Since probable cause has already been established, there is no need for a preliminary hearing. Bayless v. United States,
%
The Government does not oppose defendant’s motion for severance and separate trial and concurs in defendant’s belief that a trial in which Eley would be joined with the other two defendants would be prejudicial to him. Defendant’s motion for severance will therefore be granted.
Defendant’s discovery requests are based on Brady v. Maryland,
In contrast to these decisions, however, the Fifth Circuit reversed this court’s denial of an accused’s motion for pretrial discovеry of certain information on the ground that such action may have denied the accused the due process requirements which the Supreme Court in
Brady
had announced. Williams v. Dutton,
“It is now clear that Brady imposes an affirmative duty on the prosecution to produce at the appropriate time requested evidence which is materially favorable to the accused either as direct or impeaching evidence.” At 800.
Other courts have explicitly held that under
Brady
favorable evidence must bе disclosed by the prosecution well in advance of trial. United States v. Leichtfuss,
The Fifth Circuit recently affirmed this court’s ruling in
White
and again lapped the shores of the
Brady
problem by quoting with apparent approval this court’s conclusion that
Brady
is a factor in pretrial discovery. United States v. White,
(1) defendant failed to make a showing of materiality; and
(2) this court had expressly observed that the prosecution had a duty under Brady to disclose all evidence favorable to the accused “well in advance of trial” and there was no reason to believe it had not complied with that duty.
*356 Judge Rives went further, however, and added that even if this court committed error in denying White’s motion, the error was harmless. The inference this court has drawn is that in other circumstances it could well be reversible error to deny motions seeking pretrial discovery of all favorable evidence. The court therefore deems it proper to reconsider its method of dealing with Brady motions in order to better guarаntee the accused his due process rights and to retard the occurrence of reversible error.
Clearly an accused would prefer that the court order the prosecution to turn over its entire file to him for inspection so that he may determine which material is favorable to him and which is not. But
Brady
calls only for the disclosure by the prosecution of evidence favorable to the accused;
Brady
provides no basis for ordering the prosecution to disclose everything it has. Moreover, the file may contain information relating to other investigations still in progress or classified information. These considerations impel the court to reject such an approach to the
Brady
problem. United States v. Mitchell,
An intermediate approach, suggested by Judge Frankel in United States v. Gleason, supra, calls upon the prosecution to submit to the court for in camera inspection all material which might conceivably be considered evidence favorable to the accused. This approach has its own problems. For example, the prosecution might take an unduly restrictive view of “evidenсe favorable to the accused.” In addition, as the Supreme Court has remarked with respect to in camera inspections by a court:
“In our adversary syste^n, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.” Dennis v . United States,384 U.S. 855 , 875,86 S.Ct. 1840 , 1851,16 L.Ed.2d 973 (1966).
Nevertheless, upon reversing this court’s denial of a pretrial discovery motion for fear а violation of
Brady
may have occurred, the Fifth Circuit in Williams v. Dutton,
supra,
remanded the case to this court with instructions that the court conduct an in camera inspection of the material in question to determine if it had to be disclosed under
Brady.
The panel recognized that this approach was only a compromise and might constitute a hardship, but it nevertheless adopted it. The Fifth Circuit reaffirmed its adoption of that method in United States ex rel. Williams v. Dutton,
While the device of an in camera inspection may present the fewest difficulties for the ultimate resolution of
Brady
.motions by a district court, it would seem to be inappropriate and unnecessary in the initial stages of a criminal proceeding. Instead, it appears to the court that in the overwhelming number of cases the
Brady
problem could be handled routinely by the prosecution and the accused through a simple requеst procedure. Such a procedure is now the local rule in the United States District Court for the Northern District of Illinois.
See
United States v. Leichtfuss,
supra,
When a formal motion for pretrial discovery of some information is made, the court will have to determine both
whether
the information must be disclosed under
Brady
and
when
such disclosure, if necessary, must be made. The Supreme Court has so far refrained from elaborating upon the phrase “evidence favorable to an accused.” Giles v. Maryland,
“. . . information merely repetitious, cumulative, or embellishing of facts otherwise known to the defense or presented to the court, or without importance to the defense for purposes of the prepаration of the case or for trial . . . [nor] preliminary, challenged, or speculative information.” Giles v. Maryland, supra,386 U.S. at 98 ,87 S.Ct. at 809 .
On the other hand, the Supreme Court in Giles held that Brady may well require the disclosure of specific, favorable information to the accused, even if such information is contained in statements, reports, memoranda, or other “work product” materials. 2 In the initial stage, at least, the prosecution will be ordered to give the accused аccess to any information which might be considered helpful to his case.
Once the court determines that under
Brady
the prosecution cannot suppress the information in question, it must decide when the prosecution should disclose it. At a minimum, the court should be convinced that the information would have a “material bearing on defense preparation” before it grants pretrial discovery of such information.
See
United States v. White,
*358 It should be emphasized that Brady does not replace Rule 16 of the Federal Rules of Criminal Procedure or the Jencks Act, 18 U.S.C. § 3500 (1970). Rule 16 and the Jencks Act provide for general discovery of certain information under certain conditions. Brady is an expression of the constitutional mandate of due process and declares that any trial, whether in state or federal court, is inherently unfair if the accused has not been apprised of information in the possession of the prosecution which may exonerate him or reduce punishment. In some instances Brady will allow for pretrial discovery by the accused, but such discovery will be limited to favorable evidence. If this aspect of Brady conflicts with state or federal statutory restrictions, those restrictions, of course, must fall in favor of the constitutional mandate.
It should also be pointed out that the
Brady
duty affects not only the office of the United States Attorney in Atlanta, but also any other investigative agencies of the Government which have gathered information as part of the case of the prosecution against the accused who seeks disclosure. Thus if the Bureau of Narcotics and Dangerous Drugs or the Federal Bureau of Investigation have participated in the case and have in their possession informаtion which may be favorable to the accused, it must be disclosed to him. United States v. Bryant,
supra,
Applying the fоregoing principles to the instant case, the court will order the prosecution to allow Eley to inspect and copy any information in its possession that might be considered helpful to his case, including such information contained in the material covered by defendant’s requests numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11. The pi'osecution need not give defendant access to any other information contained in the material сovered by those numbered requests. 4 Request No. 10 seeks *359 the transcript of any statement defendant has given to the Government. Since the Government, in response, has indicated that defendant has given no statements to the Government, that request will be denied.
Although the procedure adopted today may impose some hardship on the prosecution and this court, it must be remembered that:
“Society wins not only when the guilty are convictеd but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ ” Brady v. Maryland, supra,373 U.S. at 87 ,83 S.Ct. at 1197 .
For the foregoing reasons, defendant’s motion for a preliminary hearing is denied. His motion for severance and sеparate trial is granted. His motion for discovery of all evidence favorable to him and his motion for discovery of investigative reports are granted to the extent that the prosecution shall permit him to inspect and copy any information in its possession which might be considered helpful to his case, including information contained in the materials covered by defendant’s requests numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11. Defendant’s request for discovery numbered 10 is denied.
It is so ordered. 5
APPENDIX
In light of the decision of this court in United States v. Eley,
(1) The United States Attorney, upon request of an accused, shall permit the accused to inspect and copy any information in the possession of the prosecution which might be considered helpful to the accused’s case.
(2) If the United States Attorney entertains a genuine doubt as to whether *360 he must disclose certain information or questions the necessity of granting an accused pretrial discovery of certain information which must be disclosed, he may withhold such information from the accused. If he chooses to withhold such information, he shall notify the accused of the reason for this action and generally describe the information in question.
(3) If the accused, upon receipt of such notice from the United States Attorney, nevertheless desires discovery of such information, he shall so move in this court within ten days after arraignment or waiver thereof. The court may extend the time within which such motion shall be made in exceptional circumstances. Should the accused so move, the court will order the prosecution to submit the information in question for in camera inspection and proceed to dispose of the controversy on its merits.
Done this 30th day of December, 1971.
/s/ Newell Edenfield_
NEWELL EDENFIELD
/s/ Charles A. Moye, Jr._
CHARLES A. MOYE, JR.
/s/ Richard C. Freeman_
RICHARD C. FREEMAN United States District Judges
Notes
. Tlie writer of this opinion sat by designation on that panel.
. The Fifth Circuit in White spoke of the accused's obligation to show materiality in order to get Brady disclosures. This would certainly apply to those instances in which the accused has knowledge of specific information which is in the possession of the prosecution and which would be favorable to him. Howevеr, in those instances in which the accused is unaware of what the prosecution possesses and must resort to a broadside request for "all favorable evidence,” it would be unrealistic to expect him to show anything more than a general need.
. Thus in Gleason the court observed that pretrial discovery of the statements in question might conflict.- with the provi *358 sions of the Jencks Act since it was possible that the author of the stаtements would be called as a Government witness. The court noted, however, that if that were the only obstacle in the face of pretrial discovery, the statutory timetable would have to fall in favor of the demands of due process.
. Requests numbered 1, 2, 3, 4, 6, and 9 as worded seek general discovery of various statements and memoranda. Under Brady the prosecution need disclose only information in those materiаls which might be helpful to defendant’s case. United States v. Leichtfuss, supra; United States v. Ladd, supra.
Request No. 5 seeks the transcript of testimony given before the grand jury in this case by any persons, whether or not the prosecution intends to call them as witnesses at trial. In Dennis v. United States, supra, the Supreme Court held it was reversible error to deny a defendant’s motion for the production of the grand jury testimony given by persons who had testified on direct examination at trial, .so long as defendant bad made a showing of “particularized need.” The Jencks Act, as amended, now explicitly allows tlie defendant general discovery of tlie grand jury testimony given by persons who are later called as witnesses at trial, on condition that the motion for sucli discovery is made after tlie witness has testified on direct examination. Apart from Dennis and tlie Jencks Act, however, tlie due process requirement, of Brady guarantees the accused disclosure — in some cases well in advance of trial — of the grand jury testimony of any person, whether or not he is later called as a witness at trial, but such disclosure is limited to the extent the testimony may be favorable to tlie accused. Xydas v. United States, supra, 445 F.2d at CCC. Defendant is entitled under Rule 16 of the Federal Rules of Criminal Procedure to unrestricted discovery of his own testimony before the grand jury but he has not so moved. Therefore tlie prosecution need only disclose that portion of the grand jury testimony which might be helpful to defendant’s case.
*359
Request No. 7 asks for the names and addresses of all persons who may have some knowledge of the facts of the present case. It has been suggested that this information might be available to the accused under Rule 16(b). Recent Changes in the Fеderal Rules of Procedure, Proceedings of the 29th Judicial Conference of the Third Circuit, 42 F.R. D. 552, 569 (1966) (remarks of Prof. Charles Wright). However, it would seem that under
Brady
the prosecution has a duty to disclose this information if it possesses it since such persons might contribute evidence favorable to the accused. United States v. Gleason,
supra,
Request No. 8 sеeks the criminal records of all persons the Government intends to call at trial. In Williams v. Dutton,
supra,
the Fifth Circuit held that
Brady
imposed an affirmative duty on tlie prosecution to disclose information which is favorable to the accused “either as direct or impeaching evidence.”
Request No. 11 seeks the results of any tests or experiments made in connection with this case. Defendant would be entitled to unrestricted discovery of this material under Rule 16(a). However, he lias chosen not to move under that rule and has based his request instead, on Brady. As a result, the prosecution neеd give him access to that material only to the extent it might be considered helpful to his case.
. Should the prosecution entertain a genuine doubt as to the applicability of Brady to certain information in its possession, or should it question the necessity of pretrial discovery of certain information which must be disclosed under Brady, it may so inform defendant. Defendant may then move for discovery of such information if he so desires. Should he so move, the court will order the prosecution to submit such information for in camera inspection and will then dispose of the matter on its merits.