[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT JAN 19 2001 THOMAS K. KAHN No. 00-11114 CLERK ________________________
D. C. Docket No. 00-01562-CV-DTKH
UNITED KINGDOM, requesting the assistance of the United States Government in securing documentary evidence in the case of Regina V. Olumbummi Wood et. Al., FRANK MARTIN, OLADELE RAJI,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeals from the United States District Court for the Southern District of Florida _________________________ (January 19, 2001)
Before MARCUS, WILSON and MAGILL*, Circuit Judges.
* Honorable Frank J. Magill, U.S. Circuit Judge for the Eighth Circuit, sitting by designation. MARCUS, Circuit Judge:
Appellants Oladele Raji and Frank Martins appeal the district court’s order
declining to compel the disclosure of certain sensitive law enforcement documents
possessed by the United States, including grand jury materials, work product, and
wiretap information, all of which Appellants contend are relevant to their defense
of a criminal prosecution in England. The United States agreed to produce certain
records related to Appellants’ prosecution, but refused to produce others. The
district court found that the undisclosed documents are privileged or protected by
statute, and that Appellants had failed to demonstrate a compelling need for them.
Because the district court did not abuse its discretion in declining to order further
disclosure of these documents, we affirm.
I.
The background to this appeal is relatively straightforward. Appellants are
currently awaiting trial in England on criminal charges related to an alleged credit
card fraud scheme.1 The indictment in that case alleges that Appellants
participated in a conspiracy whose members used, in the United Kingdom,
American Express credit card numbers that they had obtained from American co-
1 This Court has been advised that Appellants’ trial is scheduled to begin in February 2001.
2 conspirators. The American co-conspirators were tried in a separate proceeding
before a federal district court in the Southern District of Florida following an
investigation by the United States government (the “Ojomo prosecution”).2
In January 1999, Appellants and a third defendant in the English proceeding,
Olumbummi Woods, applied to Judge Elwen of the Crown Court -- the judge
presiding over the criminal trial -- for the issuance of a letter rogatory seeking the
disclosure of various materials related to the Ojomo prosecution. Judge Elwen
granted the request, and accordingly issued two letters rogatory on behalf of the
Appellants, dated February 8, 1999, and February 26, 1999, respectively. The
letters asked the United States District Court for the Southern District of Florida to
assist the three English criminal defendants by ordering agents of the United States
government (“Government”) and American Express to produce various materials
gathered during and generated by the investigation giving rise to the Ojomo
prosecution.
Appellants then moved in the Southern District of Florida for discovery and
inspection of the materials identified in the letters rogatory. In response, the
Government agreed to produce voluntarily some of the requested materials,
2 According to the Government, that investigation is not complete, because two fugitives (one of whom is fighting extradition from the United Kingdom) have yet to be tried. 3 including grand jury and wiretap information. On July 20, 1999, the district court
memorialized these voluntary disclosures in an order which lifted secrecy
protections applicable to the wiretap and grand jury materials and thereby
permitted the Government to disclose them. In addition, the district court
authorized Appellants to take the deposition of Joan Ojomo, in connection with
which the Government gave the British Crown Prosecution Service (“CPS”) access
to additional materials from the Ojomo investigation.
Meanwhile, on or about August 23, 1999, the CPS, apparently pursuant to its
discovery obligations under English law, served Appellants with a disclosure
schedule prepared by the CPS and a British police constable after a visit to the
offices of the U.S. Secret Service in Miami.3 That schedule inventoried several
hundred files and boxes of unused investigative materials related to the Ojomo
prosecution still in the possession of the United States. The listed materials are
generally of three types: grand jury materials, work product (including written
summaries and memoranda) of the local U.S. Attorney’s Office and the Secret
3 It is unclear to what extent British law enforcement “stud[ied] in depth” these items (as Appellants claim) rather than examining them solely for the purpose of cataloguing them. This Court is not aware of any evidence that the Government disclosed the contents of these items to British law enforcement; indeed, the Government asserts that most if not all of these items have never been disclosed publicly. 4 Service, and records of intercepted conversations obtained during the Ojomo
investigation. It is these materials, not the items covered by the earlier requests,
which are the subject of this appeal.
Upon receipt of the CPS schedule, Appellants asked the district court to
permit additional discovery. In an order dated October 4, 1999, the district court
explained that it stood “ready to respond to any request issued by its sister court in
Britain,” but would only consider granting relief if Judge Elwen first issued such a
request after determining that “the interests of justice would be served by
additional discovery in the United States.”
Appellants then moved in the English court for additional discovery. Judge
Elwen determined that the very fact that the items were listed on the CPS’s
disclosure schedule meant that these items satisfied the threshold test of “relevance
or possible relevance” and therefore were discoverable under English law.
Accordingly, on October 8, 1999, Judge Elwen ruled that Appellants were entitled
to discovery of the items. In so doing, however, Judge Elwen emphasized that this
ruling was “subject to any claim as to privilege, immunity, or otherwise as may be
asserted by those with possession of the documents and upheld by the appropriate
American judicial authority” (emphasis added).
5 Citing this ruling and the February 1999 letters rogatory, Appellants, on
October 19, 1999, filed a second motion with the district court, seeking an order
compelling disclosure of the items. The district court referred the matter to a
United States Magistrate Judge. The magistrate judge conducted a three-hour
hearing on the matter, during which the magistrate judge and the parties considered
in detail each of the several hundred items on the disclosure schedule. The
Government agreed to disclose voluntarily certain of the requested materials,
including wiretap applications, supporting affidavits, court orders authorizing
wiretaps, and Secret Service interviews of persons arrested in the Ojomo
prosecution. The Government did not, however, agree to produce all of the
requested items. The Assistant United States Attorney responsible for the matter
repeated an earlier representation that the Government’s investigation and the
requested materials did not relate to, mention, or incriminate the Appellants.
On October 29, 1999, the magistrate judge issued a Report and
Recommendation. In her report the magistrate judge ordered American Express to
disclose certain account information relating to the Ojomo investigation, excluding
work product and personal customer or proprietary information, and also
recommended that the district court approve the Government’s voluntary
disclosures. Otherwise, however, the magistrate judge recommended against
6 disclosure of the items on the disclosure schedule. She concluded that the grand
jury and work product materials were privileged, implicitly finding as well that
Appellants had not shown a sufficient basis to overcome the privilege. As for the
records of intercepted conversations, she concluded that the federal wiretap statute,
18 U.S.C. § 2510, et seq., barred their disclosure, and that moreover Appellants
had not shown a compelling need for them.
Appellants filed a timely objection to the Report and Recommendation. On
November 18, 1999, the district court affirmed the report and adopted its
recommendations. The district court issued an amended order to the same effect
on December 3, 1999, after considering Appellants’ objections a second time. This
appeal followed.
II.
As an initial matter, it is essential to clarify the laws or treaties by which
Appellants may assert their entitlement to the materials in dispute. Appellants
identify three sources for their entitlement to these materials: 28 U.S.C. § 1782; the
Treaty Between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland on
Mutual Legal Assistance in Criminal Matters, S. Treaty Doc. No. 104-2
(“MLAT”); and the Hague Convention on the Taking of Evidence Abroad in Civil
7 and Commercial Matters. The United States agrees that § 1782 provides authority
for the potential disclosure of the materials.4 It disputes, however, that the MLAT
and the Hague Convention are implicated by this case. We agree.
The MLAT in relevant part authorizes United States courts to give effect to
certain requests made by the United Kingdom for information relevant to criminal
investigations or prosecutions. See MLAT, art. 5, ¶ 1. The MLAT with the United
Kingdom is one of a series of modern mutual legal assistance treaties negotiated by
the United States in order to counter criminal activities more effectively. The
MLAT provides for a broad range of cooperation in criminal matters, including (1)
the taking of testimony or statements of witnesses; (2) the provision of documents,
records, and evidence; (3) the service of legal documents; (4) the location or
identification of persons; (5) the execution of requests for searches and seizures;
and (6) the provision of assistance in proceedings relating to the forfeiture of the
proceeds of crime and the collection of fines imposed as a sentence in a criminal
prosecution. See Letter of Transmittal from the President of the United States to
the Senate, Jan. 23, 1995. The MLAT is a self-executing treaty, and was in effect
at the time this proceeding commenced.
4 Section 1782 is discussed below. 8 A key feature of the MLAT is the requirement that a request for assistance
be made, not directly to the courts, but rather between the “Central Authorities,”
which the treaty defines as the Secretary of State of the Home Department (for the
United Kingdom), and the Attorney General (for the United States), or their
designees. MLAT, art. 2, ¶ 2. There is no provision for private parties, such as
individual criminal defendants in the English (or American) courts, to request the
production of information. See MLAT, art. 1, ¶ 3 (“The provisions of this Treaty
shall not give rise to a right on the part of any private person to obtain, suppress, or
exclude any evidence . . . .”). Moreover, the request itself must comply with
various requirements. Specifically, it must include (a) the name of the authority
conducting the proceedings to which the request relates; (b) the subject matter and
nature of the proceedings for the purposes of which the request is made; (c) a
summary of the information giving rise to the request; (d) a description of the
evidence or information or other assistance sought; and (e) the purpose for which
the evidence or information or other assistance is sought. Id., art. 4, ¶ 2; see also
art. 4, ¶ 3 (listing additional items to be included “[t]o the extent necessary and
possible”).
We need not consider Appellants’ arguments under the MLAT, because no
valid MLAT request was ever made for the specific materials at issue in this
9 appeal.5 Appellants refer to a document sent by the CPS to the district court on or
about October 21, 1999, entitled “Response by Crown Prosecution Service to the
Defense Application for Disclosure of Unused Material in the United States of
America,” and suggest that it constituted a MLAT request. That document,
however, did not conform to the requirements of the MLAT, and thus cannot be
viewed as a proper MLAT request. The document was not transmitted between
Central Authorities or their designees, but rather was sent by the CPS directly to
the district court. Appellants suggest that the October letter should be viewed as a
supplement to the prior requests, which they contend were transmitted in
conformity with the MLAT. But there is simply no dispute that the original
communications did not discuss, let alone request, the specific material referenced
by the October letter; the material underlying the October letter was far more
expansive and entirely different in scope. The letter cannot be viewed as a valid
5 We note, however, that compliance with an MLAT request is not mandatory with respect to records held by governmental agencies. See MLAT, art. 9, ¶ 2 (“The Requested Party may provide a copy of any record or information in the possession of a government department or agency but not publicly available to the same extent and on the same conditions as to its own law enforcement or judicial authorities. The Requested Party may refuse a request pursuant to this paragraph entirely or in part.”). Thus, even if the October letter were a valid MLAT request, it would not automatically follow that Appellants are entitled to the documents they seek in this appeal. 10 MLAT request solely because a proper MLAT request had been made earlier for
other records relating generally to the same subject matter.6
Appellants’ alternative suggestion that the Hague Convention provides a
source for the disclosure of this information fares no better. The Convention
permits signatory nations (such as the United States and the United Kingdom) to
respond to a request from another signatory for evidence related to civil and
commercial matters. See 28 U.S.C. § 1781 note; see also id., art. 1 (“In civil or
commercial matters a judicial authority of a Contracting State may, in accordance
with the provisions of the law of that State, request the competent authority of
another Contracting State, by means of a Letter of Request, to obtain evidence, or
to perform some other judicial act.”). The Convention plainly does not apply to
this proceeding. The materials at issue here are sought for use in a criminal
proceeding; the Convention, by contrast, by its terms applies only to civil and
commercial matters. See In re Letter of Request from the Amtsgericht Ingolstadt,
Federal Republic of Germany, 82 F.3d 590, 593 (4th Cir. 1996) (“[T]he
6 Moreover, the document did not specifically request any disclosure; although it stated the CPS’s “hope[] that all unused material in the United States relevant to the defense is disclosed to them,” the CPS’s position was ultimately “one of neutrality” regarding production of the items in question. Appellants do not dispute this fact, but insist that Government counsel described the letter as a “request” during the hearing before the magistrate judge, and that the magistrate in turn accepted this description. The Government counters that it never described the letter as a proper MLAT request.
11 Convention on the Taking of Evidence Abroad in Civil and Commercial Matters,
as its title verifies, applies only to civil and commercial cases[.]”).
Appellants contend that because this request involves “discovery” it should
be deemed a civil matter. But that argument, in addition to being wholly
unsupported, would contradict the plain meaning of the text of the Convention by
making the Convention potentially applicable in all disputes, not merely civil or
commercial cases. Appellants also contend that because the underlying criminal
case involves commercial transactions, the Convention should be triggered. But
that argument suffers from the very same defects: it is unsupported, and would
rewrite the text of the Convention. In any event, even if we were to hold that the
Convention could be applied in connection with a criminal proceeding, the CPS’s
October letter plainly did not comply with the Convention’s requirements for a
letter of request. See U.S.C. § 1781 note, art. 3.7
In short, it is § 1782, and § 1782 alone, that provides a potential basis for
disclosing to Appellants the information now at issue.
7 Among other requirements, the Convention specifies that a letter of request must contain “(a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority; (b) the names and addresses of the parties to the proceedings and their representatives, if any; (c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; (d) the evidence to be obtained or other judicial act to be performed.” 28 U.S.C. § 1781 note, art. 3. 12 III.
Under 28 U.S.C. § 1782, district courts have the power to provide assistance
to foreign courts by responding to letters rogatory and other requests from
interested parties such as Appellants here. The statute provides in pertinent part:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. . . . The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
28 U.S.C. § 1782(a). The last sentence of the statute contains an important caveat,
by explaining that “[a] person may not be compelled to give his testimony or
statement or to produce a document or other thing in violation of any legally
applicable privilege.” Id.
Whether, and to what extent, to honor a request for assistance pursuant to §
1782 has been committed by Congress to the sound discretion of the district court.
See, e.g., Lo Ka Chun v. Lo To, 858 F.2d 1564, 1565-66 (11th Cir. 1988); In re
13 Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago,
848 F.2d 1151, 1154 (11th Cir. 1988); S. Rep. No. 1580, 88th Cong., 2d Sess.
(1964), reprinted at 1964 U.S.C.C.A.N. 3782, 3788 (explaining that section 1782
“leaves the issuance of an appropriate order to the discretion of the court which, in
proper cases, may refuse to issue an order or may impose conditions it deems
desirable”). Two important points flow from this fact. First, a district court’s
compliance with a § 1782 request is not mandatory; contrary to Appellants’
repeated suggestions, the district court was not obliged to grant their application
simply by virtue of the English court’s order or for any other reason. Second, our
review of the district court’s decision in this case is extremely limited and highly
deferential. Because “Congress has given the district courts such broad discretion
in granting judicial assistance to foreign countries, this court may overturn the
district court’s decision only for abuse of discretion.” Lo Ka Chun, 858 F.2d at
1565-66; accord, Trinidad and Tobago, 848 F.2d at 1154.8 This deferential
standard is identical to that used in reviewing the district court’s ordinary
discovery rulings, such as rulings as to whether the foundation for a claim of
8 Of course, to the extent the district court’s decision is based on an interpretation of law, our review is de novo. See, e.g., SunAmerica Corp. v. Sun Life Assur. Co., 77 F.3d 1325, 1333 (11th Cir. 1996) (holding that the district court necessarily abuses its discretion if it “has applied an incorrect legal standard”). 14 privilege has been established. See Harris v. Chapman, 97 F.3d 499, 506 (11th Cir.
1996) (“District judges are accorded wide discretion in ruling upon discovery
motions, and appellate review is accordingly deferential.”); Cox v. Administrator
United States Steel & Carnegie, 17 F.3d 1386, 1413 (11th Cir. 1994) (“Discovery
orders should not be overturned ‘unless the district court has abused its discretion
and such abuse has resulted in substantial harm to the party seeking relief.’”)
(citation omitted); see also Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095,
1101 n.6 (2d Cir. 1995) (stressing that “if the district court determines that a
party’s discovery application under section 1782 is made in bad faith, for the
purpose of harassment, or unreasonably seeks cumulative or irrelevant materials,
the court is free to deny the application in toto, just as it can if discovery was
sought in bad faith in domestic litigation”).
Appellants contend that the district court abused its discretion in declining to
order production of items that the Government refused to produce voluntarily.
Appellants challenge particular aspects of the district court’s reasoning with
respect to the grand jury, work product, and wiretap materials in question. More
broadly, they contend that the magistrate judge (whose report was adopted by the
district court) ignored Judge Elwen’s finding regarding the relevance of these
materials to the defense of the English prosecution.
15 Turning first to the broadest objection, we find no reversible error in the
magistrate’s approach to the issue of relevance. In deciding whether to respond to
a request under § 1782, “the district court must decide whether the evidence would
be discoverable in the foreign country before granting assistance.” Trinidad and
Tobago, 848 F.2d at 1156; see also Euromepa, 51 F.3d at 1100 (noting that
“inquiry into the discoverability of requested materials should consider only
authoritative proof that a foreign tribunal would reject evidence obtained with the
aid of section 1782”). Here, the English court determined that, as a matter of
English law, the items listed on the CPS’s disclosure schedule were relevant or
possibly relevant to Appellants’ defense and thus were discoverable. The
magistrate judge demonstrated proper respect for that finding, and did not
expressly reject Appellants’ request because they failed to show relevance.
The magistrate judge did, at certain junctures in her opinion, question the
sufficiency of Appellants’ showing of a powerful need for some of these materials;
she did so, however, not in the context of discussing relevance, but rather in the
analytically distinct context of determining whether the Government’s claims of
privilege and statutory immunity should be sustained. Moreover, although the
relevance of a piece of evidence to the subject matter of the case is obviously a
consideration in evaluating a party’s need for that evidence, it is by no means the
16 only consideration. It is often the case that a piece of evidence may be relevant (as
that concept is defined under applicable law) without being so vital or unique that
powerful competing interests such as those embodied in a privilege must give way.
Indeed, Judge Elwen expressly recognized this fact by qualifying the ruling as to
discoverability and making it “subject to any claim as to privilege, immunity, or
otherwise as may be asserted by those with possession of the documents and
upheld by the appropriate American judicial authority.” As this language
underscores, Judge Elwen made no attempt to rule that the Appellants had
demonstrated sufficient particularized need for the materials to overcome a claim
of privilege or statutory immunity; indeed, Judge Elwen made no express finding
at all regarding Appellants’ relative need for these materials, and simply held that
Appellants met the threshold test for discoverability under English law subject to
any satisfactory claims of privilege.
Accordingly, the district judge did not err by failing to equate Judge Elwen’s
finding of “relevance or possible relevance” with a finding that the Appellants’
need for these materials is powerful enough to overcome the privileges and
immunities that otherwise attach to these items.9
9 Appellants suggest that by her approach, and particularly her stated intent to “enforce” Judge Elwen’s order, the magistrate judge denied them a sufficient opportunity to establish their need for the materials. Having reviewed the record, 17 We turn, then, to the particular claims of privilege upheld by the magistrate
judge. We see no reversible error in the district court’s implicit finding that
Appellants failed to establish the particularized need required for disclosure of
secret grand jury materials. With limited exceptions not applicable here, the
disclosure of grand jury materials must first be authorized by the court. See Fed.
R. Crim. P. 6(e)(2),(3). In light of the benefits of maintaining the secrecy of grand
jury proceedings, “disclosure is appropriate only in those cases where the need for
it outweighs the public interest in secrecy, . . . the burden of demonstrating this
balance rests upon the private party seeking disclosure.” Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 218-19 (1979). The Supreme Court has repeatedly
stressed the wide discretion given district courts in evaluating whether disclosure
of grand jury materials would be appropriate. See, e.g., United States v. John Doe,
Inc. I, 481 U.S. 102, 116 (1987).
including the transcript of the hearing before the magistrate judge, we reject Appellants’ contention. This argument is little more than a variation on Appellants’ unpersuasive claim that Judge Elwen’s order had already decided Appellants’ substantial, particularized need for the materials. In any event, Appellants had ample opportunity during the hearing before the magistrate judge, and thereafter, to take into account case law discussing the need requirement and make whatever presentation or motion (such as an application for in camera review) that they felt might be helpful in overcoming the Government’s objections. 18 Under this Court’s precedent, in order to obtain disclosure of protected
grand jury materials, a person must show a “particularized need” for them. United
States v. Cole, 755 F.2d 748, 758-59 (11th Cir. 1985) (citing United States v.
Tucker, 526 F.2d 279, 282 (5th Cir. 1976)). Parties seeking grand jury materials
“must show that the material they seek is needed to avoid a possible injustice in
another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that their request is structured to cover only the material so
needed.” Douglas Oil, 441 U.S. at 222; see also id. at 221 (holding that the
requesting party must demonstrate that without the requested materials “a defense
would be greatly prejudiced or . . . an injustice would be done”).
Appellants contend that the magistrate judge should have ordered disclosure
of the grand jury materials over the Government’s objection. They do so in part
based on the mistaken premise, discussed above, that the English court’s finding of
“relevance or possible relevance” under English law suffices as a determination of
particularized need under American law regulating the disclosure of grand jury
material. They also assert that there is sufficient evidence in the record to
demonstrate the exculpatory nature of the materials sought and thereby to show a
particularized need for those materials. But Appellants’ blanket request for all of
the unused grand jury materials from the Ojomo prosecution cannot be described
19 as the kind of particularized request required for the production of otherwise secret
information. Moreover, the breadth of Appellants’ request, while understandable
to some extent given their lack of access to the materials, makes it virtually
impossible for them to demonstrate that each of hundreds of sought-after grand
jury items is likely to be exculpatory in the ways they suggest, especially given the
representation by the Government’s attorney on the record that these items do not
mention, let alone exculpate, the Appellants.10
Finally, Appellants’ arguments as to need are presented at the very highest
order of abstraction; the fact that these items are being sought by defendants in a
criminal case for use in defending the charges brought against them is insufficient
standing alone. See Cole, 755 F.2d at 758-59; see also United States v. Rockwell
Int’l Corp., 173 F.3d 757, 760 (10th Cir. 1999) (discussing particularized need
requirement and stressing that “[n]o grand jury testimony is to be released for the
purpose of a fishing expedition or to satisfy an unsupported hope of revelation of
10 For example, Appellant Raji asserts that disclosure of these items is vitally necessary so that he may prove that he was not involved in the alleged fraud; as he sees it, the absence of any reference to him in the materials helps him establish his lack of connection to the fraud. But we fail to see how this theory establishes a sufficiently compelling need for the production of literally hundreds of sensitive items, particularly when the Government has apparently volunteered to provide sworn affidavits confirming that Appellants are not mentioned at all in the materials. 20 useful information”). The district court did not abuse its broad discretion in
declining to grant Appellants’ request for secret grand jury material.
Similarly, the district court did not abuse its discretion by declining to order
the production of the Government’s confidential work product. The work-product
doctrine reflects the strong “public policy underlying the orderly prosecution and
defense of legal claims.” Hickman v. Taylor, 329 U.S. 495, 510 (1947). The
privilege applies in criminal matters as it does in civil cases. See, e.g., United
States v. Nobles, 422 U.S. 225, 238 (1975) (“Although the work-product doctrine
most frequently is asserted as a bar to discovery in civil litigation, its role in
assuring the proper functioning of the criminal justice system is even more vital.
The interests of society and the accused in obtaining a fair and accurate resolution
of the question of guilt or innocence demand that adequate safeguards assure the
thorough preparation and presentation of each side of the case.”). Specifically,
Rule 16(a)(2) of the Federal Rules of Criminal Procedure does not permit “the
discovery or inspection of reports, memoranda, or other internal government
documents made by the attorney for the government or any other government agent
investigating or prosecuting the case.” Fed. R. Crim. P. 16(a)(2).
Although we have never addressed the precise contours of Rule 16(a)(2),
courts have generally explained in civil matters that to overcome the work product
21 privilege a person must show both a substantial need for the information and that
seeking the information through other means would cause undue hardship. See,
e.g., Fed. R. Civ. P. 26(b)(3); Hickman, 329 U.S. at 512-13 (party must show that
production of the material is not merely relevant, but also necessary). Even that
showing does not suffice when considering so-called “opinion” work product, such
as internal memoranda, that reflects an attorney’s mental impressions; these
materials are almost always protected from disclosure. See, e.g., Hickman, 329
U.S. at 510; Williamson v. Moore, 221 F.3d 1177, 1182 (11th Cir. 2000) (noting in
dispute under Fed. R. Crim. P. 16(a)(2) that “opinion work product enjoys almost
absolute immunity” from discovery). We observe that some courts appear to have
read Fed. R. Civ. P. 16(a)(2) as providing that same kind of unwavering protection
to all work product in criminal matters. See United States v. Fernandez, 231 F.3d
1240, 1247-48 (9th Cir. 2000); United States v. Mann, 61 F.3d 326, 331 (5th Cir.
1995).11
11 Even items that are material and exculpatory to a defendant, and therefore potentially within the ambit of Brady v. Maryland, 373 U.S. 83 (1963), are not necessarily outside the protections of Rule 16(a)(2). See Mincey v. Head, 206 F.3d 1106, 1133 n.63 (11th Cir. 2000) (noting that neither the Supreme Court nor this Court has held that Brady requires disclosure of a prosecutor’s work product). Rule 16(a)(2), unlike its civil counterpart (Fed. R. Civ. P. 26(b)(3)), does not contain any express exception or state any circumstances under which work product may be discovered, although the Rule does not necessarily preclude the possibility that other laws may nevertheless require production of work product. See United States v. 22 We need not define today the additional limitations, if any, imposed by Rule
16(a)(2) on the discoverability of work product for use in criminal matters because
even using the common-law standard of Hickman for non-opinion work product in
a civil case, Appellants have not shown reversible error. Having reviewed the
record in detail, we conclude that the magistrate judge did not abuse her discretion
by sustaining the Government’s claims of work product. Although Appellants
assert that the magistrate judge accorded work product status to documents that did
not constitute work product, they fail to identify the specific items that they believe
should not have been regarded as work product. Our own review of the hearing
transcript and the descriptions printed on the CPS’s disclosure schedule confirm
that most if not all of the items identified by the magistrate judge as work product
fall acceptably within that definition (indeed, at least some of these items appear to
be opinion work product). Moreover, for the reasons stated above, Appellants
have not shown a substantial need for production of these materials at this time.
Although Appellants cite frequently to Judge Elwen’s finding of “relevance or
possible relevance,” that finding alone does not overcome a valid claim of work
product privilege. On this record, we find no abuse of discretion in the district
court’s conclusion.
Armstrong, 517 U.S. 456, 474 (Breyer, J., concurring). 23 We reject as well Appellants’ argument that the magistrate judge erred in
rejecting their request for records of intercepted conversations. Title III of the
Federal Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et seq.,
regulates the collection and disclosure of wiretap evidence. The statute requires
that the contents of intercepted conversations be sealed. See 18 U.S.C. §
2518(8)(a). Those contents may be disclosed only in a limited number of
instances. See id. § 2517. The statute also makes it an offense to disclose material
covered by the statute in the absence of statutory authorization. Id. § 2511(1).
Courts interpreting these provisions have held that the statute generally bars the
disclosure of the contents of conversations intercepted through a wiretap absent a
specific statutory authorization. See, e.g., Nix v. O’Malley, 160 F.3d 343, 351
(6th Cir. 1998) (noting that the federal wiretap statute permits disclosure in limited
instances but that its plain language allows no additional exceptions); In re Motion
to Unseal Elec. Surveillance Evid., 990 F.2d 1015, 1018 (8th Cir. 1992) (en banc)
(“When addressing disclosure of the contents of a wiretap, the question is whether
Title III specifically authorizes such disclosure, not whether Title III specifically
prohibits disclosure, for Title III prohibits all disclosures not authorized therein.”);
United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982) (“[By permitting
disclosure of lawfully obtained wiretap evidence only under the specific
24 circumstances listed in 18 U.S.C. § 2517, Title III implies that what is not
permitted is forbidden[.]”).
The magistrate judge properly concluded that the involuntary disclosures of
wiretap material sought here are not permitted by the statute. Appellants maintain
that the wiretap material should be ordered produced pursuant to the exception
contained in § 2517(1), which provides:
Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire, oral, or electronic communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
18 U.S.C. § 2517(1). Appellants emphasize that the material in question has been
sought by British law enforcement officials (the CPS, in its October 1999 letter).
Appellants also emphasize that the agents of the United States from whom the
materials are sought will be called as witnesses during the English prosecution, at
which point they will be called upon to testify regarding the disputed materials,
making eventual disclosure inevitable.
These arguments are unhelpful. No language in the federal wiretap statute
suggests that foreign law enforcement officers are covered by § 2517(1). Nor are
we aware of any indication in the statute or elsewhere that Congress intended this
25 narrow exception to apply to foreign law enforcement officers. On the contrary,
the statute defines “[i]nvestigative or law enforcement officer” as “any officer of
the United States or of a State or political subdivision thereof, who is empowered
by law to conduct investigations of or to make arrests for offenses enumerated in
this chapter, and any attorney authorized by law to prosecute or participate in the
prosecution of such offenses.” 18 U.S.C. § 2510(7) (emphasis added). Section
2517(1), therefore, does not authorize the involuntary disclosure sought here. Nor
does § 2517(2), also cited by Appellants, permit the Court to order this disclosure
over the objection of the Government. See 18 U.S.C. § 2517(2) (“Any
investigative or law enforcement officer who, by any means authorized by this
chapter, has obtained knowledge of the contents of any wire, oral, or electronic
communication or evidence derived therefrom may use such contents to the extent
such use is appropriate to the proper performance of his official duties.” (emphasis
added)).
Moreover, even if we were to assume that the wiretap statute leaves a federal
court the discretion to order in limited circumstances the release of wiretap
information over the objection of the Government and in the absence of a clear
statutory authorization (a proposition squarely at odds with the case law), the
district court did not abuse its discretion by finding that Appellants failed to
26 demonstrate a sufficient need for this information. We observe as well that none of
the particular information at issue has been made public, and that speculation by
the Appellants that some of this protected information may eventually be revealed
voluntarily by agents of the United States during the English court proceedings
cannot justify present involuntary disclosure in violation of American law.
Finally, Appellants’ argument that the Government is required to produce
the requested items under the doctrine of “judicial estoppel” is without merit.
Appellants contend that, by previously volunteering to disclose certain materials,
the Government is estopped from claiming now that related but undisclosed
documents are protected from disclosure by either a privilege or a lack of statutory
authorization. “‘Judicial estoppel is applied to the calculated assertion of divergent
sworn positions. The doctrine is designed to prevent parties from making a
mockery of justice by inconsistent pleadings.’” McKinnon v. Blue Cross & Blue
Shield of Ala., 935 F.2d 1187, 1192 (11th Cir. 1991) (quoting American Nat’l
Bank v. Federal Dep. Ins. Corp., 710 F.2d 1528, 1536 (11th Cir. 1983)). There has
been no such change of positions here. The fact that the Government agreed to
disclose certain information in response to limited initial requests, but then
declined to do so again when the scope of the requests expanded to include a
substantial amount of additional, different information, does not gives rise to
27 judicial estoppel. Moreover, at all times, the Government took the position that
court approval would be required before any disclosure of grand jury or wiretap
information could be made. We see no basis for applying judicial estoppel in this
case; indeed, a contrary holding might effectively discourage the Government from
attempting to narrow potential document production disputes voluntarily when
confronted with future requests for assistance from courts or persons abroad.
To summarize, the scope of our review in this appeal is limited and
deferential. The district court gave the required respect to the English court’s order
and the important considerations of comity underlying § 1782, but recognized that
competing domestic law enforcement and privacy concerns articulated by the
Government justified withholding some (but not all) of the items in question. On
this record, we are unconvinced that the district court abused its broad discretion in
declining to order further disclosure. See Davenport Recycling Assocs. v.
Commissioner of Internal Revenue, 220 F.3d 1255, 1258 (11th Cir. 2000) (“We
will reverse for abuse of discretion only if we have a definite and firm conviction
that the [c]ourt committed a clear error of judgment in the conclusion it reached.”)
(citation omitted). We therefore must affirm the district court’s order.12
12 During proceedings below the Government “preserved” but did not press its argument that this proceeding is barred by the doctrine of sovereign immunity. The Government took a similar approach at oral argument. The applicability of sovereign 28 AFFIRMED.
immunity principles to proceedings under § 1782 is a substantial and largely unexplored question that has not been sufficiently briefed by the parties. We therefore follow the Government’s lead and do not resolve that issue today, because we conclude that the Government plainly is entitled to prevail on narrower grounds. See also Al Fayed v. United States, 210 F.3d 421, 425 (4th Cir. 2000) (declining to reach the question of whether the Government constituted a “person” under § 1782 after finding that the district court did not abuse its discretion in denying the disclosure of material that could impact national security). 29