The United States of America, through the United States Attorney for the Eastern District of North Carolina, responds to the defendant's Motion for Discovery and Inspection of Documents, etc., Pursuant to Federal Rule of Criminal Procedure 16 filed herein, as follows:

With regard to paragraph three of defendant's Motion, the Government agrees to furnish the defendant copies of any relevant written or recorded statements made by the defendant which are within the possession, custody or control of the Government, including transcripts of recordings made by Mr. Alfred Kassab which were given to the Government and statements made to Government agents during which said agents made notes and later had those notes transcribed into a type written summary of the defendant's statement. However, the Government does not agree to furnish the defendant reports by agents of the Government of their recollections and interpretations of prior conversations with the defendant, when said agents were not taking notes of said conversation during said conversation. United States v. Battaglia, 410 F.2d 279, 283 (7th Cir. 1969). Copies of said reports will be produced for the defendant pursuant to 18 United States Code Annotated, Section 3500, after any of said Government agents have testified at the time of the trial of this matter. Nor does the Government agree to provide the defendant, pursuant to Rule 16(a) of the Federal Rules of Criminal Procedure, with copies of transcriptions by Government agents of defendant's oral statements to a third party who then made an oral statement to the Government agent. Rule 16(a) does not require the discovery of utterances made by defendants to non-government agent witnesses that are not written or recorded. United States v. Dorfman, 53 F.R.D. 477, 479-480 (D.C. N.Y. 1971); United States v. Politi, 334 F.Supp. 1318, 1321 (D.C. N.Y. 1971); United States v. Wilkerson, 456 F.2d 57, 61 (6th Cir. 1972). If such a witness is called to testify at trial a transcript will be tendered to the defendant at the appropriate time under Section 3500.

With regard to paragraph five of the defendant's Motion, the Government agrees that the defendant is entitled to his recorded testimony for the United States Grand Jury for the Eastern District of North Carolina in connection with this case.

With regard to paragraphs seven through twenty-six of the defendant's Motion, the Government agrees to furnish the defendant with copies of results or reports of physical or mental examinations and of scientific tests or experiments made in connection with this case which are within the possession, custody or control of the Government. However, the Government does not agree to furnish lab notes, methodology, nature and name of physical examinations, scientific tests and experiments made in connection with this case. When the results of the tests and the substance tested are offered to the defense, denial of discovery of detailed laboratory findings and records of testing procedures is not an abuse of discretion. United States v. Smaldone, 484 F.2d 311, 320-321 (10th Cir. 1973), cert. denied, 415 U.S. 915 (1974).

With regard to paragraph twenty-eight of the defendant's Motion, the Government agrees to make available to the defendant, at his own expense, copies of photographs and photographs of diagrams and sketches which are within the possession, custody or control of the Government, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for the Government. The Government has no model within its possession, custody or control. The Government asserts that many of these photographs, diagrams and sketches were made available to the defendant during the time of the Article 32 proceeding at Fort Bragg in 1970; in order to avoid duplication and expense, the Government will not make available photographs, diagrams and sketches which are already in the possession of the defendant.

With regard to paragraphs thirty-one and thirty-four of the defendant's Motion, the Government does not agree to furnish to the defendant, pursuant to Rule 16, the names and addresses of all persons known to the Government who may or do have knowledge of facts in connection with this case and all written or recorded statements made concerning this case by any persons who are not prospective Government witnesses. The Government is well aware of its responsibilities under Brady v. Maryland, 373 U.S. 83 (1963) and intends, pursuant to the Brady doctrine, to make the defendant in this case aware of any evidence favorable to him where that evidence is material either to guilt or punishment. The instant requests, however, go far beyond the usual Brady request. What the defendant is doing is relying an the Brady doctrine in order to seek review of all evidence of any kind in the possession of the Government so that he may determine if any of the evidence is favorable to his cause. He is, in effect, seeking the Government's help in developing his case. United States v. Isaacs, 347 F.Supp. 743, 760 (1962).

Brady did not deal in any way with pretrial discovery by a defendant nor with any duty on the Court in that respect. No pretrial remedies were intended to be created by Brady. United States v. Manhattan Brush Company, 38 F.R.D. 4. 7 (D.C. N.Y. 1965); United States v. Zive, 299 F.Supp. 1273, 1274 (D.C. N.Y. 1969). In addition, the Court in United States v. Zive, supra, stated that:

Brady does not place upon the Government a general duty to help a defendant find witnesses who might be favorable to the defendant. United States v. Callahan, 300 F.Supp. 519, 525 (D.C. N.Y. 1969). Nor does it require the Government to disclose the myriad immaterial statements and names and addresses which any extended investigation is bound to produce. United States v. Jordan. 399 F.2d 610, 615 (2nd Cit.1968), cert. denied, 393 U.S. 1005; United States v. Leta, 60 F.R.D. 127, 130 (D.C. Pa. 1973); United States v. Anderson, 481 F.2d 685, 694 (4th Cit. 1973), affirmed, 94 S.Ct. 2253.

The investigation in the present case has taken place over a period of approximately five years; during that period, a large volume of people were contacted and interviewed during the course of the investigation. The Court is well aware that in the course of investigating a crime, law enforcement authorities may often report and check into a great variety of matters which ultimately prove to have absolutely no relevance to the crime under investigation. The Court simply should not consider that a prosecutor should be held to a duty of making a disclosure of every "dead end" lead contained in the police investigative reports. Smith v. United States, 375 F.Supp. 1244, 1253 (D.C. Va. 1974). As pointed out in Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.EA.2d 706, 713 (1972), "We know of no Constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case."

Although the Brady doctrine places a burden on the prosecution to disclose Brady material prior to trial, it does not authorize pretrial motions by the defense to obtain all allegedly exculpatory evidence. United States v. Crisona, 416 F.2d 107 2nd Cit. 1969), cert. denied, 397 U.S. 961 (1970). Discovery motions cannot be used for fishing expeditions for Brady material. United States v. Conder, 423 F.2d 904 (6th Cit. 1970).

Under Rule 16(b) of the Federal Rules of Criminal Procedure, the defendant must show the materiality of the items to his defense and the request must be reasonable. United States v. Mahany, 305 F.Supp. 1205, 1209 (D.C. 111. 1969). The defendant in this case has failed to show materiality of the items requested in paragraphs thirty-one and thirty-four of his Motion. A mere conclusory statement that the documents or objects sought are material to a defense is insufficient. United States v. Morrison, 43 F.R.D. 516, 519 (D.C. Ill. 1967). The defendant has made no assertion of materiality other than the general contention that the statements, names and addresses may be favorable to his defense. If the material requested is exculpatory in nature, the defendant is protected by the Brady doctrine and the Government assures this Court that it intends to meet its obligation under the Brady doctrine. United States v. Leta, supra. In United States v. Marks, 364 F.Supp. 1022 (D.C. Ky. 1973) the Court ruled that the defense claim that production of sought after material would protect the defense against illegally seized evidence, provide a fair trial, guarantee proper confrontation with witnesses, enable effective assistance of counsel, insure that all relevant evidence would be brought before the Court, and either dispense with or shorten the trial failed to meet the standard of proof envisioned by Rule 16 of the Federal Rules of Criminal Procedure.

The requests of the defendant under paragraphs thirty-one and thirty-four of his Motion are not reasonable, considering the circumstances. As pointed out in United States v. Ahmad, 53 F.R.D. 186, 191 (D.C. Pa. 1971):

The defendant has cited as authority for his requests the case of United States v. Hardy, Criminal Number 869-68 (D.D.C. 1968). In addressing itself to the cited case, the Court in Ahmad stated:

Therefore, the Government respectfully requests that the Court deny the requests in paragraphs thirty-one and thirty-four of the defendant's Motion.

With regard to paragraph thirty-seven of the defendant's Motion, the Government agrees to make available to the defendant, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, all tangible objects and documents which the Government considers may be used as evidence at the trial of this case including the material mentioned in subparagraphs b), c), d)and e). With regard to the request of the defendant in subparagraph e), the Government agrees to make said objects available to the defendant provided they not be removed from the Government's custody and that the chain of custody with regard to said items shall not be broken. The Government does not agree to make available to the defendant the item requested in subparagraph a) because the defendant has failed to establish the materiality or relevancy of said item; any exculpatory material within said document will be provided the defendant by the Government pursuant to the Brady doctrine.

With regard to paragraph thirty-nine of the defendant's Motion, the Government assures the defendant and the Court that it will produce, pursuant to the Brady doctrine, any evidence or information which is exculpatory in connection with this case. The Government would reiterate the point made earlier in this Response that although the Brady doctrine places a burden on the prosecution to disclose Brady material prior to trial, it does not authorize pretrial motions by the defense to obtain all allegedly exculpatory evidence. United States v. Crisona, supra.

It is well established that an application for relief under the discovery rules is a matter within the sound discretion of the district court and is reviewable only for an abuse of discretion. Hemphill v. United States, 392 F.2d 45, 48 (8th Cit. 1968), cert. denied, 393, U.S. 877 (1968); and an error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant. Meyer v. United States, 396 F.2d 279, 283 (8th Cit. 1968), cert. denied, 393 U.S. 1017 (1968); Hemphill v. United States, supra; United States v. Anderson, supra.

Therefore, the Government contends that the Court should deny all requests in the defendant's Motion which the Government does not agree to provide for the reasons stated. Said denial would not constitute an abuse of discretion.

Respectfully submitted this  25th  day of April, 1975.

By: /Victor C. Woerheide/