During the trial of this criminal case, while the Government was putting on its case in chief, the district court dismissed the indictment with prejudice on the ground of prosecutorial misconduct. According to the court, the prosecutor's withholding and/or untimely production of evidence and other material discoverable under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), and the Jencks Act, 18 U.S.C. § 3500, denied the defendants rights guaranteed them by the Fifth and Sixth Amendments. After a thorough examination of the record, we conclude that the court misapplied the rules established by Brady, Giglio, and the Jencks Act and that the prosecutor did nothing that justified the dismissal of the indictment, let alone the imposition of any other sanction. Because the court's dispositive action resulted from an erroneous application of the law, the action constituted an abuse of discretion, requiring that we vacate the judgment of dismissal and remand the case for further proceedings.

In November 1998, Jimmy Woodward was the incumbent Sheriff of Jefferson County, Alabama. The two largest cities in Jefferson County are Birmingham and Bessemer. Woodward, a Republican, ran for reelection on November 3, 1998, but lost by 37 votes out of the 212,000 votes cast.1 Woodward's opponent, Mike Hale, a Democrat, was certified the winner.

Woodward planned to challenge the election results, and, on November 4, secured the services of Albert Jordan, an attorney who specialized in election cases. Woodward hoped to obtain a vote recount, so Jordan at first went to work seeking a recount in several Alabama courts. Jordan failed to obtain a vote recount, however, so he filed an election contest in the Jefferson County Circuit Court on November 24, 2000, alleging, among other things, that convicted felons had voted in violation of Alabama law. See Ala. Const. of 1901, art. VIII, § 182.

On the day Woodward hired Jordan, Woodward telephoned Assistant Sheriff Royce Fields, who served under Woodward as the head of the Bessemer branch of the Jefferson County Sheriff's Department (JCSD), and informed him that he had decided to conduct a voter fraud investigation. The investigation began with the running of computer checks on the names of those in Bessemer who voted by absentee ballot to determine whether any convicted felons had voted.2

The computer checks were conducted through the Alabama Criminal Justice Information System (ACJIS), which is connected to a system that houses nationwide criminal records, the National Crime Information Center (NCIC).3 The ACJIS, which is based in Montgomery, Alabama, is maintained for the use of Alabama law enforcement personnel. The NCIC, which is based in Clarksburg, West Virginia, is maintained by the Federal Bureau of Investigation (FBI) and is used nationwide by police agencies. If a name is checked through the ACJIS, it is usually automatically run through the NCIC databases as well. Access to both the ACJIS and NCIC is circumscribed by strict rules requiring that they be utilized for law enforcement purposes only.4 Specifically, to access the ACJIS and NCIC, local law enforcement agencies must agree in writing to adhere to the rules and regulations governing the NCIC, and to use the system only for legitimate law enforcement purposes.

The Government believes that Woodward and Jordan, in pursuit of Woodward's election contest, conspired illegally to use, and in fact illegally used, JCSD employees and resources to conduct computer checks on the ACJIS and NCIC to determine whether any of the Bessemer absentee voters had felony convictions.5 The Government contends that Woodward started the voter fraud investigation as a means to conceal his use of the ACJIS and NCIC for his private purposes. Accordingly, on June 21, 2000, following a joint investigation by the Alabama Attorney General and the U.S. Attorney for the Northern District of Alabama, a Northern District of Alabama grand jury, which had been empaneled in September 1999,6 returned the instant five-count indictment7 against Woodward and Jordan.8 The defendants were arraigned on July 20, 2000, and entered pleas of not guilty.9 The district court scheduled their trial for Tuesday, October 10, 2000.10

On the day the defendants were arraigned, the Government served them with a Discovery Notice in anticipation of their request for discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure. With respect to Rule 16(a)(1)(A),11 the Discovery Notice stated that the Government was providing defense counsel with the following:

Copies of a 302 interview with Woodward on March 31, 199[9], a 302 of an interview with Jordan on February 16, 2000, a November 6, 1998 letter, a November 6, 1998 press release, a January 15, 1999 letter, a January 15, 1999 press release, and a March 23, 2000 letter with attachments, will be made available upon request.

With respect to Rule 16(a)(1)(C),12 the Discovery Notice informed defense counsel that they could "review" at the U.S. Attorney's office and "make notes of" "grand jury transcripts and summaries of interviews,"13 but they "w[ould] not be permitted to copy these materials."14 The Discovery Notice, in recognition of the prosecution's constitutional obligations under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),15 and Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972),16 went on to state:

If, after reviewing the [grand jury transcripts and summaries of interviews, defense] counsel believes certain documents or portions thereof contain Brady/Giglio information, counsel may provide a list of such materials to the prosecuting Assistant United States Attorney with a brief written statement of the reasons counsel believes they contain Brady/Giglio information. If the prosecutor agrees, he will provide hard copies. If the prosecutor disagrees, the defendant may move the court to review the material in camera; this office will make the materials available to the court for its review if so directed.17

...

Agreements and use immunity orders are available [with respect to witnesses who testified before the grand jury or who had been interviewed by an investigator].

In the view of Jordan's attorney, William Clark, it was the Government's responsibility, not his, to identify the portions of the grand jury transcripts and summaries of interviews that constituted Brady/Giglio material. Accordingly, on July 27, he served the Government with a Request for Disclosure in which he asked that the Government identify all of the Brady and Giglio material in its possession and to make available for inspection and copying all the items discoverable under Rule 16. His Request went one step further, however, and sought the production of materials not discoverable under Rule 16. For example, even though Rule 16(a)(2) states that internal reports and documents prepared by government agents investigating or prosecuting the case are not discoverable, counsel asked the Government to produce (1) "all notes taken by each and every federal or state agent, investigator, or employee during conversations, interviews, or investigations of this Defendant or any alleged accomplice, whether said accomplice is identified or unidentified in the indictment," and (2) "any and all correspondence between the United States of America or any agent thereof, and Alabama Attorney General Bill Pryor or any member of his staff, Jefferson County District Attorney David Barber or any member of his staff, or Bessemer District Attorney Sam Russell or any member of his staff regarding the facts contained in the indictment or any aspect of the investigation or prosecution of these Defendants during the [investigative period]." And, notwithstanding the prohibitions of Rule 16(a)(3) and the Jencks Act, counsel also asked the Government to produce the grand jury testimony and/or statements of every witness who would be testifying at the defendants' trial.18

Recognizing that these requests were outside the scope of authorized discovery, the Government responded, on July 31, to Jordan's Request for Disclosure by stating that "the government's Discovery Notice proffers practically all the materials and information gathered and developed in the investigation ... [and] provides all the material the defen[se] is entitled to under the law.... As to the material requested but not provided, the United States either does not have, or declines to provide, [such materials]."

On July 31, Clark repeated his demand that the Government identify the Brady and Giglio material contained in the items listed in its July 20 Discovery Notice. In a Motion to Compel Specific Production of Exculpatory Statements, Documents or Information (hereinafter "Motion to Compel Specific Production"), he stated that because the Government had produced "such a voluminous amount of information," it would be "easy [for him] to overlook some document or statement." In his view, the Government's "production of thousands of documents which [it] ha[d] no intent on using at trial [was] really no more than a ploy to make difficult the discovery of exculpatory information."

On August 7, Clark took issue with the Government's July 31 response to his Request for Disclosure. Because he considered the Government's response to be woefully inadequate, Clark filed a Motion to Compel which sought a court order requiring the Government to respond specifically to each and every paragraph of his Request for Disclosure, and to produce the documents referred to therein. While the Motion to Compel was in transit, the Government prepared a response to Jordan's July 31 Motion to Compel Specific Production, which it sent to Clark on August 8. The response stated:

[T]he grand jury testimony of 15 witnesses has been provided. If there are any more statements, they will be provided according to Jencks. The defendants have been given practically all the evidence gathered in this investigation. Inter office correspondence or memoranda is simply not discoverable. It does not constitute any evidence that the defendants are guilty or not guilty or evidence that witnesses are or are not credible; to the extent that such correspondence or memoranda comments on any exculpatory evidence, that evidence has been made available.

On August 28, the Government answered Jordan's August 7 Motion to Compel. Using a photocopy of Clark's July 27 Request for Disclosure, Assistant U.S. Attorney Michael Rasmussen handwrote a response next to every paragraph of the document. Once again, the Government "declined" to produce the notes the investigators made following witness interviews.

On September 5, the magistrate judge held a hearing on several pending motions, including Jordan's Motion to Compel Specific Production and Motion to Compel. Concluding that the first motion sought witness statements, i.e., "Jencks materials," the judge denied the motion on September 7. In his order, he stated that the statements would be produced at trial, pursuant to the Jencks Act, after the witnesses testified on direct examination.

As for the Motion to Compel more specific responses to the defense's Request for Disclosure, Clark, after acknowledging that the Government had permitted defense counsel to read, and make notes of, grand jury transcripts and summaries of interviews (principally 302s), asked the magistrate judge to order the Government to produce hard copies of those 302s, as well as hard copies of the "raw notes" the FBI agents made during or after the interviews and used to dictate the 302s. The Government's response was that neither the 302s nor the agents' notes were discoverable; if an agent testified about an interview, the 302 might constitute a Jencks Act statement of the agent (not the person interviewed) which would have to be produced at the conclusion of the agent's direct examination.19 The magistrate judge agreed with the Government's position that the 302s and the agents' notes were not discoverable, and, on September 7 (in the same order that disposed of Jordan's Motion to Compel Specific Production), denied the Motion to Compel.20

On September 15, Jordan, joined by Woodward, filed objections to each of the magistrate judge's rulings. The district court deferred its ruling on the objections until the day of trial; at that time, the court disposed of the objections in one word, "denied."

The trial began, as scheduled, on Tuesday, October 10, 2000, with jury selection. The voir dire of the venire lasted five court days. The jury was sworn on the morning of the sixth day, Tuesday, October 17; after that, the parties made their opening statements.

Michael Rasmussen outlined the Government's case. First, he explained the ACJIS and NCIC systems, as well as the rules and regulations surrounding their use. He said that the defendants had been indicted because they developed a plan to use the ACJIS/NCIC to obtain information for a private purpose, namely, to contest the sheriff's election. As part of this plan, Woodward and Jordan decided, the day after the election, to ask Assistant Sheriff Royce Fields to run the ACJIS/ NCIC checks. Accordingly, two days later, on November 5, Jordan called Fields at home, told him that Woodward had retained him to contest the election, and instructed him to obtain the list of absentee voters from the Bessemer area so they could determine if anyone on the list was a convicted felon or deceased. After speaking to Woodward, Fields sent a deputy to the courthouse in Bessemer to retrieve the list of the absentee voters.

Once he had the list, Fields called Jordan and asked what to do next. Jordan told Fields to run criminal history checks on the names on the list, and Fields had JCSD employees, Arnetta Sayers and Charlotte Lackey, secretaries in the Bessemer office, carry out the task. When Fields informed Woodward that the project could not be done quickly, Woodward offered Fields the services of Kathy Ayers, a secretary in his Birmingham office.

The checks produced some "hits."21 On November 9, Woodward told Fields to compile the results of the checks run to date and take them to Jordan. As instructed, Fields went to Jordan's office, accompanied by Ray Edwards, a private investigator who was working on Woodward's election contest. Fields discussed the list with Jordan, mentioning that the list contained NCIC information. Jordan reviewed the results, photocopied them, instructed Fields to keep running the names, and told Edwards to determine if any of the elderly people on the list were deceased.

A JCSD deputy learned that the checks were being conducted, and, shortly thereafter, the Alabama Criminal Justice Information Center (ACJIC) had one of its investigators look into the situation — to determine whether Woodward was using the ACJIS to prepare his election contest. On November 19, the ACJIC investigation became public when the Birmingham News published an article entitled "Officials Eye Woodward's Use of Crime Databases."

The morning the newspaper hit the newsstand, Woodward called a meeting in his Birmingham office. "Everybody" was there. Woodward told those assembled that he had decided to form a voter fraud task force, which Rasmussen suggested was a "cover up" for Woodward's improper use of the NCIC.

To buttress the cover-up and provide further proof that the ACJIS/NCIC searches were being done pursuant to an official investigation into voter fraud, Woodward spoke briefly with Jefferson County District Attorney David Barber in Birmingham.22 Woodward told Barber that he was conducting a voter fraud investigation and asked Barber if he could use one of his investigators to run criminal history checks. Barber gave him Carl Wideman, who happened to be the husband of Woodward's secretary, and he ran the checks through the ACJIS/NCIC. Rasmussen completed his opening statement by informing the jury of the elements of the charged offenses.

Woodward's attorney, David Johnson, went next. He told the jury that the case was all about Sheriff Woodward's investigation into the complaints of voter fraud the sheriff had received during 1998. He said that the sheriff's department had been "besieged and bombarded by voter fraud allegations" about the November 3, 1998 election, and had decided to investigate these complaints the day after the election. Because the District Attorney in Bessemer, Sam Russell, refused to investigate the allegations, Sheriff Woodward had his office launch an investigation. This is why Woodward went to the District Attorney in Birmingham, David Barber, for help.

Johnson then noted that Woodward had hired Jordan to seek a vote recount, but Jordan was forced to contest the election when his effort to obtain the recount failed. Johnson then detailed the steps Jordan took in Woodward's behalf. He remarked that although Jordan did meet with Fields on November 9, and Fields did show Jordan information regarding criminal histories, Jordan did not use that information in the election contest; instead, Jordan ran his own criminal histories on a public database. Johnson closed his opening statement with the suggestion that the prosecution was politically motivated, and that Fields had turned against Woodward because he knew that the sheriff planned to fire him after the election.

After a lunch break, William Clark delivered Jordan's opening statement. He immediately rejected the notion that Jordan was implicated in any improper use of the NCIC. He acknowledged that Jordan had met with Fields in Jordan's law office on November 9, and that Fields subsequently provided him with information taken from the NCIC. Jordan, though, did not know what the NCIC was or that the use of the NCIC was restricted. To the contrary, Jordan assumed that Fields' use of the NCIC was legal. His only concern was that because the majority of voters in Bessemer were African-American, to avoid a charge of race discrimination, Fields, in running the criminal histories of the names of the absentee voters, should be careful not to single out African-Americans. Finally, in contesting the election for sheriff, Jordan did not use the NCIC information Fields had given him; instead, he used information he obtained from other sources.

Clark addressed Woodward's voter fraud investigation in this way. He disputed Rasmussen's claim that the investigation commenced the morning of November 19, after the Birmingham News story reported on the ACJIC investigation, and said that the investigation began "almost immediately" after the polls closed on November 3. The NCIC information Fields had shared with Jordan had been gathered in pursuit of that investigation. Clark finished his opening statement by informing the jury that Fields would be testifying for the Government under a grant of use immunity.23 Stating that Fields had "lied" during the investigation, Clark suggested the jury should give his testimony no credence.

Following the parties' opening statements, which ran until 3:00 p.m., the Government called its first witness, Sara Fields, Royce Fields' wife, to establish one point — that Jordan called her husband at home on the morning of November 5, 1998 (she answered the telephone). On cross-examination, defense counsel explored her history of depression, and got her to admit that sometimes, due to her depression, she had trouble telling the truth. At the conclusion of her testimony, the court adjourned for the day.

The next day, Wednesday, October 18, the Government called Royce Fields to the stand.24 Fields testified that on the morning of November 5, 1998, he received a phone call from Jordan during which Jordan said that Sheriff Woodward had employed him to contest the election. Jordan asked him to obtain the Bessemer absentee voter list. Fields retrieved the list the same day and called Jordan back. Jordan told him to start running criminal histories of the names on the list. Fields testified that he was "uncomfortable" running the checks without an official complaint; nevertheless, he undertook the inquiry and instructed his secretary, Arnetta Sayers, to run the names through the NCIC.

On November 9, Woodward called and asked him to bring the results of the checks to him in Birmingham. Fields complied. When he gave Woodward the information, the sheriff did not review it; instead, he directed Fields to take the results to Jordan's office. He did so, and discussed the results with Jordan. In the process, he told Jordan that the information came from the NCIC. Jordan directed him to continue running the checks.

Fields next testified that, on the morning of November 19, the Birmingham News ran an article stating that the ACJIC was looking into whether Sheriff Woodward had improperly used criminal databases to check the backgrounds of voters who had applied for an absentee ballot for the November 3 election. Shortly after the newspaper hit the newsstand, Woodward called a meeting at his Birmingham office. Present, in addition to Woodward, were Fields, Jordan, JCSD attorneys, and several deputies. When the meeting began, Woodward announced that he had decided to create a task force to investigate claims of voter fraud. Woodward said that rumors had been circulating to the affect that the Bessemer District Attorney (Sam Russell) was considering indicting him and Fields for their use of the NCIC in the investigation of the absentee voters. The gist of Fields' testimony about the meeting was that Woodward was creating the task force in an effort to avoid indictment. The task force would focus on voter fraud complaints that had been lodged with the Bessemer office. To that end, Woodward directed Fields to fax the complaints to him in Birmingham. Fields explained that one of the complaints had been filed by State Representative McAdory, who had been defeated in the June primary; another complaint involved an allegation that a prison inmate had voted in the City of Bessemer elections. Fields said that he had informed Woodward of these complaints when they were originally filed, but that Woodward told him to let the Bessemer District Attorney handle them. At the conclusion of his direct examination, Fields acknowledged that he had appeared before the grand jury under a court order.25

Jordan's attorney, William Clark, began the cross-examination.26 He asked Fields whether he had testified before the grand jury, and Fields said that he testified twice, first on October 28, 1999, and a second time on June 21, 2000. On October 25, three days before the first appearance, he was interviewed by Special Agent Dupuis of the FBI (the case agent), Assistant Alabama Attorney General Gregory Biggs and Special Agent Edward Hunneyman of the Alabama Attorney General's office, and Assistant U.S. Attorney Robert Posey. All four made notes of what he told them. When Fields said this, Jordan's attorney asked the court to order the Government to produce the notes. The court excused the jury, and the following colloquy ensued.

Clark spoke first. He contended that the defense was entitled to the interviewers' "raw notes" because, he represented, they contained "exculpatory information."27 The prosecutor, Rasmussen, disagreed. Interpreting Clark's request as a demand for Jencks Act statements,28 Rasmussen said that the notes did not qualify as Jencks statements because they were not "an exact, [] verbatim rendition of what [Fields] said" during the interview. At this point, the court asked Fields if Rasmussen was present during the interview. When Fields replied that he was not, the court instructed Agent Dupuis (who was seated at the prosecutor's table) to give the defense "whatever notes were prepared of the interview." Dupuis said that he doubted that he still had his notes. Turning to Rasmussen, the court instructed him to produce all of the notes made in connection with the Fields interview on October 25. Still convinced that the notes were not Jencks statements, Rasmussen asked the court if he could read "the rule" (referring to Fed.R.Crim.P. 26.2, which incorporates the Jencks Act). The court denied the request and declared a brief recess so that Rasmussen could retrieve the notes.

When the proceedings resumed, Rasmussen gave the court Posey's notes for in camera review. He also produced his own notes, made following a separate meeting with Fields.29 As for Biggs' and Hunneyman's notes, he told the court that he had called Biggs and Hunneyman at the Alabama Attorney General's office and left a message that the court wanted their notes. After examining Rasmussen's and Posey's notes and redacting from the latter the part that reflected Posey's "thought processes," the court gave both sets of notes to defense counsel, and declared another recess.30

Meanwhile, Dupuis retrieved an "internal communication" he had sent to the Birmingham FBI office on November 2, 1999, which detailed the information Fields had provided during the interview on October 25. He gave copies of the communication to Rasmussen, who, in light of the court's ruling that all notes were to be turned over, gave copies of the internal communication to defense counsel. As lunchtime was approaching, the court recessed until 2:00 pm.

The afternoon session began with Rasmussen producing Biggs' notes and Hunneyman's typewritten summary (dictated from Hunneyman's notes, which had been destroyed) of the Fields interview. The notes and summary were marked together as a court exhibit, and pursuant to the court's order, Rasmussen handed them to defense counsel. After receiving the exhibit, and reviewing the items previously marked as court exhibits, Clark moved the court to "dismiss the indictment ... on the grounds of prosecutorial misconduct ... in that they have withheld exculpatory information." Counsel focused specifically on Dupuis' "internal communication," observing that it contained "details" Fields had not furnished on direct examination and statements "directly in conflict" with Fields' testimony. Specifically, according to Clark, (1) Fields testified on direct that he obtained for Jordan an absentee voter list, whereas Dupuis' internal communication indicated that Fields obtained an "absentee voter application list"; (2) Fields testified on direct that he met Jordan on November 9, whereas the internal communication indicated that the meeting took place on November 17 or 18; (3) Fields testified on direct that Woodward's voter fraud investigation commenced on November 19, after the Birmingham News article appeared, whereas the internal communication indicated that an investigation into voter fraud began on November 6; and (4) on direct examination, Fields said nothing about having heard rumors that Woodward was planning to replace him after the election, whereas the internal communication indicated that he had heard such rumors. When Clark finished, Woodward's attorney, Johnson, who joined in the motion to dismiss, stepped forward, pointing out (what he considered to be) an additional discrepancy between Fields' testimony on direct and Dupuis' internal communication: (in Johnson's view) Fields testified that Jordan instructed him to use the NCIC to check criminal histories,31 but the internal communication indicated that it was not Jordan's idea to use the NCIC.32

Rasmussen responded to the motion to dismiss as follows. First, nothing in Dupuis' internal communication was exculpatory. And, even if the document could be viewed as exculpatory, it could not have been so until Fields testified on direct examination. Therefore, the Government had no obligation to produce the document until it completed Fields' direct examination. And, the argument that the Government should have produced the internal communication prior to trial was frivolous. Also frivolous was the argument that the document was exculpatory because it contained information the Government had not elicited from Fields on direct examination. Consequently, the Government's failure to produce Dupuis' internal communication could not be deemed prosecutorial misconduct.33

At the conclusion of Rasmussen's response, the court stated that it would not rule on the motion at that time, but required Rasmussen immediately to turn over all exculpatory documents to both the court and the defense. Clark then reiterated his argument that the Government had disregarded the requirements of Brady and Giglio by withholding exculpatory material — namely, Dupuis' internal communication. The court agreed, offering this comment (which echoed the point Johnson had stressed): "I will say this,... with respect to [the internal communication]... there is nothing in there that says that Mr. Jordan suggested that Mr. Fields use NCIC." Rasmussen, in turn, said "I agree with that, your honor. [But,] Mr. Fields didn't testify that Mr. Jordan told him to run NCIC records." The court-counsel colloquy ended shortly thereafter, and the proceedings were adjourned for the day.

That evening, the Government delivered a considerable number of items to defense counsel and to the court. The material included three transcripts of Dupuis' testimony before the grand jury;34 an internal communication Dupuis sent to the Birmingham FBI office on May 12, 2000, which detailed information Fields had provided him, Rasumssen and Posey on May 8, 2000; five pages of handwritten notes unidentified FBI agents made during interviews of Jordan on February 16, 2000;35 and a letter from Craig Donsanto and Rasmussen to Woodward's and Jordan's attorneys regarding the costs of running NCIC checks.

The next morning, Thursday, October 19, the court began where it left off the previous afternoon. Rasmussen informed the court of the materials delivered to defense counsel (and the court), which included the transcripts of Dupuis' grand jury testimony. Although he remained convinced that none of the material was exculpatory, he decided to give it to defense counsel "out of an abundance of caution." The court asked the attorneys whether they had anything further to say about the defendants' motion to dismiss the indictment. Clark spoke first. He began by stating that in providing the defense with the discovery required under Rule 16(a), the Government stated that it was producing whatever exculpatory material it had in its possession. "That," he said, "was a false statement." Next, he accused Rasmussen of not being "candid with the court," and alleged that Rasmussen and other federal officials were engaged in "a conspiracy to withhold evidence" discoverable under Rule 16, Brady, Giglio, and the Jencks Act. An example of withheld exculpatory evidence, he said, was the grand jury transcripts of Dupuis' testimony, which contained at least one contradiction of Fields' testimony on direct examination:36 on direct, Fields said that he had given Jordan an absentee voter list; Dupuis, however, told the grand jury that Fields told him that he had given Jordan an absentee voter "application" list. Dupuis' testimony on this point was exculpatory, Clark insisted, and therefore should have been produced prior to trial.37

Further evidence of the conspiracy, according to Clark, involved the FBI 302s. He reminded the court that the Government's practice in the Birmingham Division of the Northern District of Alabama had always been to "produce[ ] 302s in discovery and, certainly, in response to Jencks." He contended that in this case, though, the Government, in an effort to keep defense counsel in the dark, evidently instructed the investigating FBI agents not to prepare 302s following witness interviews; instead, "[t]hey start using interoffice memos," which are not discoverable under the Jencks Act or Rule 16(a). The Government, he continued, employed this strategy in dealing with Fields, a key prosecution witness. Although Dupuis interviewed him — perhaps several times — he prepared no 302s. "So, the pattern is that the FBI agent had these interoffice memos that the government responds, well, we don't have to produce interoffice memos and, even if we did, they're not exculpatory." Clark concluded his argument by asking the court, once again, "to dismiss the charges."

Following a brief recess, the court denied the motion to dismiss the indictment. Although its ruling favored the Government, the court indicated that it was "extremely disturbed with the prosecution's handling of this case," and warned the prosecutors (Rasmussen and Donald Cochran, who occupied the second chair) that "if I find, later on during this trial, anything omitted that is exculpatory to the defendants, the motion will be granted at that time." Continuing, the court expressed its agreement with defense counsel that FBI 302s are discoverable under Jencks, and that the FBI may have attempted to skirt the requirements of Jencks by creating internal communications, instead of 302s, for the Fields interviews: "I do find some credibility [in defense counsel's position], not just some, I do believe that there is something to suggest that interoffice memos [i.e., FBI internal communications] are created so that materials cannot be produced to the defendant."38

After the denial of the motion to dismiss, Clark orally moved the court to declare a mistrial as an alternative remedy for the Government's misconduct. Joining in the motion, Johnson argued that statements in Dupuis' grand jury transcripts indicated that Rasmussen had "lied to" the grand jury: "So the grand jury, from the absolute beginning of the case, ... was misled, lied to, and wrongfully told [by Rasmussen] a falsehood about how the investigation began." Despite these assertions, the court denied the motion for a mistrial. Undeterred, Clark immediately asked the court to strike all of Fields' testimony. Without hearing from the Government, the court granted the motion and excluded Fields' testimony.39 With this ruling in hand, the defendants requested a continuance. The court granted their request, stating that the trial would resume the following Monday, October 23. Defense counsel were concerned that, although the court had stricken Fields' testimony, subsequent prosecution witnesses — specifically, the JCSD employees who had run the ACJIS/NCIC checks for Fields — might be asked why they ran the checks, and they would say that Fields instructed them to do so. Accordingly, before court adjourned for the day, the defendants moved the court for a ruling that Fields' instructions to these employees would constitute "hearsay." The court granted their motion, and instructed Rasmussen to tell his witnesses not to testify on the stand to anything Fields may have said to them about running the checks; in the court's words, the witnesses were "not to say what Mr. Fields said to them."

During the continuance, on Thursday and Friday afternoons, October 19 and 20, Jordan filed the following motions, which Woodward adopted:

Motion to Compel the Government to produce "any notes, inter-office memoranda, or other recordings of any type or sort of any and all interviews or conversations with [nineteen] individuals."

Motion to Dismiss [the Indictment Due to the Government's] Failure to Timely Produce Exculpatory Evidence.

Motion to Dismiss [the Indictment] Due to Presentation of False Testimony to the Grand Jury and Cumulative Prosecutorial Misconduct [based on the discovery violations previously cited to the court].

Motion to Compel Production of Additional Documents or Things, including "all grand jury testimony ... [all] reports, in whatever form, of interviews conducted by the Office of the Alabama Attorney General... [c]omplete 302s of Government witnesses... [and] all audio, video or other recordings of witness statements."

The Government filed responses to these motions on Monday morning, before the trial resumed. The Government's position was essentially the position Rasmussen articulated earlier in responding to defense counsel's previous demands for what the defendants considered to be Brady, Giglio, or Jencks Act material. With respect to the materials it had produced — both before and during the trial — the Government contended that the production was timely; therefore, the motion to dismiss the indictment should be denied.

Court reconvened on Monday, October 23, at 8:45 a.m. In the absence of the jury, the court took up the defendants' several motions. After denying both motions to dismiss the indictment, the court turned to the Motion to Compel, and asked Rasmussen if he had turned over to the defense the items it had directed him to produce. He said that he had. Apparently satisfied with his response, the court did not rule on the motion.40

After addressing Jordan's motions to dismiss and Motion to Compel, the court turned to another motion Clark had filed on October 19: Jordan's Motion for Order to Direct Response to Subpoena, filed at 4:10 p.m. that day. This motion stated that on October 19, Jordan "served a subpoena on the Custodian of Records for the [FBI] requesting the production of notes, reports, summaries of interviews, statements, inter-office memoranda, or other documents or recordings of any type or sort of interviews of or conversations with [the nineteen] individuals ... identified in this subpoena [which is attached to the motion]." The nineteen individuals were the same individuals named in Jordan's Motion to Compel, cited above, also filed on October 19 at 4:10 p.m. On October 20, the FBI responded to Jordan's motion with a motion to quash, styled Federal Bureau of Investigation's Motion to Quash Subpoena or Alternative Motion to Submit Materials In Camera.41 The FBI's motion said, essentially, that Rule 17(h) of the Federal Rules of Criminal Procedure rendered Jordan's subpoena unenforceable to the extent that it sought witness statements.42 Regarding the other material covered by the subpoena, the motion stated that, at the court's request, the FBI would submit the material to the court for in camera inspection.43 Speaking to Assistant U.S. Attorney Winfield Sinclair, the court said:

I'm going to request that you make a list of what has not been produced.... I think that [it] is your burden to show the court what has already been produced.... You can leave, for en camera inspection, what has not been produced and I will be glad to look at it personally. And I need you to do that this morning.

Sinclair left the courtroom to prepare the list; he returned following the noon recess.

Meanwhile, at 10:40 a.m., with the jury back in the courtroom, the trial resumed. After the court instructed the jury to disregard Fields' testimony, the prosecution called (in succession) three JCSD employees to the stand.44 The first was a deputy sheriff who obtained for Fields "a list of absentee voters."45 The second and third witnesses were secretaries in the Bessemer office who, at Fields' request, ran ACJIS/NCIC checks on names appearing on the absentee voter list.46 In examining these three witnesses, the prosecutors, in an effort to comply with the court's earlier ruling and to keep them from uttering what Fields may have told them, used leading questions. The defense objected on thirteen occasions; every objection was sustained. When the prosecutor asked the deputy why he gave Fields the voter list or asked the secretaries why they ran the ACJIS/NCIC checks, defense counsel objected to the question as calling for hearsay.47 The prosecutor, in turn, argued that the response would not constitute hearsay; rather, it would simply explain why the witness performed the act in question. On all but two occasions, the court sustained the hearsay objection; if, however, the witness answered the question, the court struck the response. When the prosecutor finished his direct examination of the third witness, the court declared the noon recess, at 12:15 p.m.

At 1:30 p.m., court reconvened, and, in the absence of the jury, Clark moved the court to dismiss the indictment on the ground of prosecutorial misconduct: in examining the two secretaries, the prosecutor had engaged in "an intentional effort... to get that information [i.e., Fields' instructions to run the NCIC checks] that the court had specifically [excluded]." The court denied the motion.48

By this time, Sinclair had returned to the courtroom with the list the court had instructed him to prepare. He told the court that he had prepared a list that itemized "the complete FBI file." Of the items on the list, he identified one document the defense had not received. The court instructed him to give it to defense counsel, and he did so immediately.49 He also informed the court that he was unable to determine whether the defense had all of the other documents on the list. In response, the court suggested that he go over the list with defense counsel, to ensure that they had everything.

The trial thereafter resumed, and the second secretary took the stand for cross-examination. When she stepped down, the Government called a member of Jordan's law firm.50 He produced a firm billing record which showed that Jordan and Fields had met on November 9. He was followed by Ray Edwards, the private investigator Woodward had hired, who was present at the Jordan-Fields November 9 meeting.51 Next, a secretary in the JCSD Birmingham office testified that she ran NCIC checks on absentee voters.52 After she testified, the court sent the jury home for the day.

With the jury excused, Clark asked the court to rule on his Motion to Compel Production of Additional Documents or Things, which he had filed on Friday, October 20. Among other materials, the motion sought the production of "any and all reports, in whatever form, of interviews conducted by the Office of the Alabama Attorney General including, but not limited to, any reports recorded on a document titled `Interview Report Form.'" The court inquired of Rasmussen whether he had produced these items and the others listed in the motion, and he stated that every item had been turned over, although he was unsure with respect to a few reports of interviews conducted by the Alabama Attorney General's office. The court instructed Rasmussen to call the Attorney General's office and "make sure that they've turned over their investigative file."53

After a brief lull in the court-counsel colloquy, Sinclair returned to the courtroom and reported on his meeting with defense counsel. He informed the court that he and defense counsel tentatively agreed on the documents that had not yet been produced. These documents were photocopied, produced to the defense, and marked as court exhibits. Included among the documents were the following: three 302s;54 handwritten notes of seventeen interviews;55 three internal communications;56 a copy of an interoffice memorandum (from the Alabama Attorney General's office) authored by Hunneyman on December 14, 1998; a July 14, 2000 memorandum written by Jefferson County Attorney Edwin Strickland to the Jefferson County Commissioner's office regarding Woodward's request that the County Commission pay the attorney's fees incurred in his defense in the instant case; a February 15, 2000 credit report on Ray Edwards; and a document dated October 19, 1999 acknowledging the FBI's receipt of property from Mike Lann of the ACJIC.

The next morning, Tuesday, October 24, Clark reminded the court that it had instructed Rasmussen to call the Alabama Attorney General's office. Rasmussen said that he had made several unsuccessful calls to Biggs and Hunneyman, and had left a message on Biggs' answering machine. The court asked Rasmussen for Biggs' telephone number, called the number, and wound up speaking to Hunneyman. The court ordered Hunneyman to produce the items called for by Jordan's Motion to Compel Production of Additional Documents or Things.

While the court was trying to reach Biggs, Rasmussen reported that he had given defense counsel three more transcripts of Dupuis' testimony before the grand jury (on December 1, 1999 and February 16 and May 17, 2000). The testimony had been transcribed the night before. He explained that his office had not asked the court reporter to transcribe the testimony earlier because the testimony only dealt with administrative matters. As Rasmussen put it, Dupuis' three appearances were "record returns. That's when we issued a subpoena and the agent comes in to the grand jury and says `we're conducting this investigation, we issued a subpoena, and we got these records returned.' Typically, we don't transcribe those because they're administrative."57 The court reporter for the grand jury happened to be present in the courtroom, and Clark took her aside and asked her if all of Dupuis' grand jury testimony had been transcribed. She said that Dupuis' appearance on June 21, 2000 (the date the grand jury returned the instant indictment) had not been transcribed. Clark informed the court of this, and Rasmussen said he would have the reporter prepare a transcript immediately. At this juncture, the court declared a brief recess.

When the proceedings resumed (still in the absence of the jury), Clark once again moved the court to dismiss the indictment on the ground of prosecutorial misconduct, to-wit: the Government's delay in producing the transcripts of Dupuis' grand jury testimony. He insisted that the these transcripts contained "exculpatory" evidence, although he pointed to nothing exculpatory in any of the transcripts.58 He concluded his argument by accusing the Government of deliberately delaying its production of discoverable materials in an "attempt[ ] to provoke a mistrial."

Johnson, who joined in Clark's motion, elaborated on a theme he had been developing from the outset — that Woodward's indictment was the product of political shenanigans. Johnson drew the court's attention to Gary Carroll's September 15, 1999 memorandum to file (labeled "Work Product of the District Attorney's Office"), and then read an October 5, 1999 letter from District Attorney of the Seventh Judicial Circuit, Joseph D. Hubbard, to Bessemer District Attorney Russell, contending that, considered together, these exhibits revealed that "Woodward was indicted ... because of grand jury misconduct."59 The memorandum Carroll (an investigator in Hubbard's office) wrote referred to a September 15, 1999 meeting he, Hubbard, and Michael Lann (the ACJIC investigator) had at the Vestavia Hills Police Department to discuss the Woodward investigation. Reading from the memorandum, Johnson said: "Mr. Lann states, categorically and unequivocally, Sheriff Woodward is not guilty of any crime." He then read the following passage from Hubbard's October 5, 1999 letter to Russell:

I wanted to inform you that after investigating the facts surrounding this indictment [by the state grand jury] as fully and fairly as possible, I have concluded that it is not in a posture for successful prosecution at this time. Due to the present state of the evidence, as well as some exculpatory matters that have now come into my possession concerning the grand jury itself, I have decided to ask the court to enter a nolle prosequi concerning this indictment. This, of course, would not preclude future prosecution if needed.

In fact, I have met with U.S. Attorney Doug Jones several times over the course of my investigation and he suggested this indictment should be dismissed for a related federal investigation he is considering conducting. I concur this is the best move at this time.

After reading this letter, Johnson attempted to buttress his prosecutorial misconduct claim by examining Dupuis. With the court's leave, he called Dupuis to the stand and asked him whether Rasmussen was aware of his internal communication of October 25, 1999. Dupuis said that Rasmussen knew about it. The court interrupted Johnson's questioning and asked Dupuis why he prepared an internal communication instead of a 302 following the October 25, 1999 Fields interview. Dupuis explained that, at the time of the interview, the FBI had not determined whether to use Fields as a "confidential informant," a "standard witness," or a "cooperating witness." Under Bureau policy, he said, each required a different report, inferring that, had the plan been to use Fields as a standard witness, he would have prepared a 302. Because, on October 25, 1999, Fields's role, if any, was undecided, his supervisor had him prepare an internal communication.

After Dupuis answered the court's questions, Johnson, by way of argument, compared Fields' testimony before the grand jury with what Dupuis wrote in his internal communication of May 12, 2000 (digesting the information Fields gave him in a May 8, 2000 interview), and told the court that "they let Mr. Fields testify untruthfully [before the grand jury on June 21, 2000]."60 With this, Johnson sat down, and Clark took over. Pursuing Johnson's line of inquiry, he asked Dupuis whether he had told Rasmussen about his internal communications. Dupuis' response was, "after I wrote them up, I told him I had documents." Clark concluded his questioning by having Dupuis acknowledge that, in his February 16, 2000 grand jury appearance, he testified to more than administrative matters. Rasmussen then asked Dupuis one question, "Did you view those [internal communications] as exculpatory?" Dupuis' response was "I don't know. I mean, I would have to think back. Yeah, I think — yeah, there were some things in there that certainly would have helped the defense." Rasmussen turned then to defense counsel's claims of prosecutorial misconduct.

Reduced to its essentials, Rasmussen's response was that none of the materials the Government had turned over during the trial contained exculpatory material; that he was not trying to provoke a mistrial; that the number of times Dupuis appeared before the grand jury was irrelevant; that he had no obligation to produce Dupuis' grand jury testimony because the Government never intended to call Dupuis, who was strictly a case agent, as a witness in its case in chief; and that the questions he put to the Government's witnesses — in an attempt to comply with the court's order precluding them from explaining why they obtained the absentee voter lists or why they ran the NCIC checks Fields wanted — had to be, of necessity, somewhat leading. When Rasmussen finished his presentation, the court declared a recess.

Following the recess, the court heard from Biggs and Hunneyman who gave defense counsel what was left of the Alabama Attorney General's file concerning the Woodward matter. Included in the file were two interview report forms — relating to the Alabama Ethics Commission's investigation of Woodward's use of the NCIC — and some handwritten notes. The report forms were self explanatory, but since the handwritten notes were not legible, Rasmussen had Biggs interpret them. After that, Biggs and Hunneyman were excused. By this time, the court reporter had transcribed Dupuis' grand jury testimony of June 21, 2000, and Rasmussen furnished defense counsel and the court with copies. A fifteen minute recess followed, so that they could read the transcript. Thereafter, the court entertained the parties' comments.

Johnson said that the transcript showed that "[t]he grand jury was completely misled by Mr. Dupuis and Mr. Rasmussen[, who examined Dupuis before the grand jury that day,] in hiding from the grand jury all of the facts that have been presented to [the court] in the last couple of days." Clark echoed Johnson's view that the grand jury had been manipulated, raising four points. First, Dupuis' testimony, which consumed thirty-four pages, was not about "the production of documents." Second, Rasmussen erred in reading to the grand jury only a part of 28 C.F.R. § 20 (a regulation governing the use of the NCIC); he should have read the whole regulation. Third, Dupuis inaccurately reported what Jefferson County District Attorney Barber "knew" about the NCIC checks. Fourth, in telling a grand juror that the "usual procedure" in voter fraud cases was to refer the matter to the U.S. Attorney General, Rasmussen downplayed the authority of the "sheriff" to investigate the matter. After Jordan made these four points, the court interjected and suggested that Dupuis' statement — that "no criminal complaints were presented to either the Jefferson County District Attorney's office or the Bessemer District Attorney's office for any allegations of voter fraud" — was incorrect; complaints to one of those offices had been made.

Rasmussen's response to the court's comment was that when Dupuis mentioned the complaints, he was referring to the fact that Woodward's voter fraud task force presented no formal complaints to a District Attorney's office until after Woodward was indicted in this case. Rasmussen's reply to Clark's comments were, essentially, that the grand jury had not been misled, and that, while he was not required to do so, he informed the grand jury of Jordan's "basic defense."

Earlier, the court had instructed defense counsel to make a list of the documents they had received "for the first time" during the trial. Brett Bloomston, one of Johnson's law partners, read (on behalf of both defendants) the list, which consisted of twenty-four court exhibits and is reproduced in the margin,61 into the record. Thereafter, Clark orally moved the court PAGE CONTAINED FOOTNOTES to dismiss the indictment. He based his motion on the "cumulative effect" of

the things that have occurred since [the commencement of the trial], including today, the production of the four transcripts of [Dupuis'] grand jury testimony, as well as other information, the testimony of Mr. Dupuis today, in which [Dupuis] acknowledged that he had told Mr. Rasmussen, over a year ago, of the existence of the so-called interoffice memoranda of Mr. Fields.

After acknowledging that "the government didn't have to [produce] all of this information," Clark suggested that the Government's intent in producing "thousands and thousands of documents" enabled it to withhold information that it was required by law to produce and rendered defense counsel's task in defending the case extremely difficult.

Johnson, joining in Clark's motion, said that "it all boils down ... to three documents, [Dupuis' November 2, 1999 internal communication, Dupuis' May 12, 2000 internal communication, and Dupuis' June 21, 2000 grand jury transcript]." First, endorsing Clark's specific criticisms of Rasmussen's handling of the grand jury (as reflected in the transcripts of Dupuis' testimony on June 21, 2000), Johnson urged the court to dismiss the indictment on the ground that the Government had abused the grand jury process.62 Then, citing what he considered exculpatory evidence in Dupuis' internal communications of November 2, 1999, and May 12, 2000, Johnson contended the Government's delay in producing the documents materially prejudiced his client's defense.63

Rasmussen, in his response, treated the defense as advancing three discrete arguments: the court should dismiss the indictment on the grounds of (1) selective prosecution, to-wit: the Bessemer District Attorney's office, the U.S. Attorney's office for the Northern District of Alabama, and the Department of Justice, all Democrats, were after a Republican sheriff; (2) grand jury abuse; and (3) discovery abuse. As for the first and second grounds, he said, the defendants had made no showing. Turning to the third ground, Rasmussen argued that no abuse occurred. He insisted that none of the material handed over to the defense after the trial commenced constituted Brady or Giglio material in that it was exculpatory or impeaching. That being the case, none of the grand jury testimony, and none of the FBI 302s or any other documents, including Dupuis' internal communications, were discoverable under the Jencks Act.

As soon as counsel's arguments were finished, the court ruled from the bench and dismissed the indictment with prejudice for "Fifth [and] Sixth amendment" violations. The court explained why it took this step:

The court has considered the prosecution, the manner in which it has proceeded, and I feel like it has prevented the defendants from preparing, even for cross-examination of the government's witnesses, because of the multitude of documents that have been given to them every night, or almost every night, in violation of repeated, not necessarily orders, but in violation of repeated representations by the government that they have produced everything to the defendants beginning three weeks ago.

The next day, October 25, the court entered a written order in conformance with its ruling from the bench. The order stated that "the cumulative effect of the prosecutorial misconduct has deprived the defendants of their rights guaranteed by the 5th and 6th amendments of the Constitution of the United States." On October 27, the Government took this appeal.

Our jurisdiction to entertain this appeal is conferred by 18 U.S.C. § 3731. That statute provides, in relevant part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment ... as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.64

The defendants contend that the district court's order dismissing the indictment with prejudice is the functional equivalent of an acquittal of the charges lodged against them. We disagree.

In United States v. Torkington, 874 F.2d 1441(11th Cir.1989), the district court dismissed the indictment with prejudice, pursuant to Rule 29 of the Federal Rules of Criminal Procedure,65 at the beginning of the prosecution's presentation of evidence, based, as here, "on prosecutorial misconduct." Id. at 1445. The misconduct, according to the court, occurred when a Government witness referred to a matter the court had ruled inadmissible. The Government appealed under 18 U.S.C. § 3731, and the defendant took the same position the defendants take here: the Double Jeopardy Clause barred the appeal. We disagreed. We said that "[r]egardless of how the district court styled its order ... it is clear that the court did not base its decision on the resolution of any of the factual elements necessary for conviction." Id. at 1444. The Double Jeopardy Clause therefore presented no obstacle to the Government's right to prosecute the appeal. Torkington is squarely on point. As in Torkington, the district court, here, dismissed the indictment early in the prosecution's case, and "did not base its decision on the resolution of any of the factual elements necessary for conviction." We therefore consider the merits of the Government's appeal.

The district court dismissed the indictment in this case on the grounds that the cumulative effect of prosecutorial misconduct had prevented defense counsel from preparing their cross-examination of the Government's witnesses and thereby infringed the defendants' rights under the Fifth and Sixth Amendments. In other words, the prosecutor's misconduct operated to deprive the defendants of their Sixth Amendment right to the effective assistance of counsel,66 and, at the same time, their due process right to a fundamentally fair trial.67

The dismissal of an indictment on the ground of prosecutorial misconduct is a discretionary call;68 we therefore review the court's action for abuse of discretion. See United States v. Pendergraft, 297 F.3d 1198 (11th Cir.2002). A district court abuses its discretion if, in making the decision at issue, it applies the incorrect legal standard or makes findings of fact that are clearly erroneous. See In re Celotex Corp., 227 F.3d 1336, 1338 (11th Cir. 2000). Put in the context of this case, the question is whether the manner in which the prosecutor responded to the Government's discovery responsibilities under Rule 16(a), Brady, Giglio, and the Jencks Act — both before and after the trial began — could reasonably be labeled "misconduct," such that the court was justified in taking the action it did.

Before we assess the propriety of the prosecutor's conduct in this case, it is necessary to review what the law required the Government to reveal to the defendants — in terms of evidence and other materials — during the pretrial and trial stages of the prosecution. We begin with the pretrial stage.

Our starting point is Rule 16(a) of the Federal Rules of Criminal Procedure, which spells out the materials the prosecution must produce on the defendant's request.69 While Rule 16(a) only applies to materials within the "possession, custody, or control of the government," courts have found that the "possession, custody, or control of the government" requirement includes materials in the hands of a governmental investigatory agency closely connected to the prosecutor. See, e.g., United States v. Scruggs, 583 F.2d 238, 242 (5th Cir.1978).70 Moreover, under the rule, the prosecution has a continuing duty to disclose any evidence that is subject to discovery or inspection. Fed. R.Crim.P. 16(c).71 On the other hand, the government need not produce the materials unless there is a request by the defendant, see, e.g., United States v. Lambert, 580 F.2d 740, 745 (5th Cir.1978). And even if there is a request, the government is not obligated to make copies of the items.72

Rule 16(a)(1)(C) addresses the discovery of documents and tangible objects.73 Under Rule 16(a)(1)(C), the government must permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, if the requested items (1) are material to the preparation of the defendant's defense;74 (2) are intended for use by the government as evidence in chief at the trial;75 or (3) were obtained from or belong to the defendant.76

An item in the first category need not be disclosed unless the defendant demonstrates that it is material to the preparation of his defense. A general description of the item will not suffice; neither will a conclusory argument that the requested item is material to the defense. See United States v. Carrasquillo-Plaza, 873 F.2d 10, 12-13 (1st Cir.1989); United States v. Cadet, 727 F.2d 1453, 1466 (9th Cir.1984). Rather, the defendant must make a specific request for the item together with an explanation of how it will be "helpful to the defense." See, e.g., United States v. Marshall, 132 F.3d 63, 67-68 (D.C.Cir.1998) ("helpful" means relevant to preparation of the defense and not necessarily exculpatory); United States v. Olano, 62 F.3d 1180, 1203 (9th Cir.1995). As the Fifth Circuit put it in United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.1975)), the defendant must "show" "more than that the [item] bears some abstract logical relationship to the issues in the case.... There must be some indication that the pretrial disclosure of the [item] would ... enable[ ] the defendant significantly to alter the quantum of proof in his favor."

The discovery afforded by Rule 16(a)(1)(C) is limited by Rules 16(a)(2) and (3).77 Rule 16(a)(2) exempts from disclosure "reports, memoranda, or other internal government documents made by the attorney for the government or any other government agent investigating or prosecuting the case," and "statements made by government witnesses or prospective government witnesses." Rule 16(a)(3) exempts the discovery of statements of persons who have testified before a grand jury. The Jencks Act, of course, mandates that a statement by a prospective prosecution witness to an investigative agent or the grand jury must be provided to the defense after the witness has testified on direct examination.78 In addition to the government's discovery obligations under Rule 16(a), the government must also honor the defendant's constitutional rights, particularly the due process right Brady v. Maryland established.79 Brady requires the prosecutor to turn over to the defense evidence that is favorable to the accused, even though it is not subject to discovery under Rule 16(a), since, eventually, such evidence may "undermine[ ] the confidence in the outcome of the trial." United States v. Newton, 44 F.3d 913, 918 (11th Cir.1995) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 3381, 87 L. Ed. 2d 481 (1985)). The defendant's right to the disclosure of favorable evidence, however, does not "create a broad, constitutionally required right of discovery." Bagley, 473 U.S. at 675 n. 7, 105 S. Ct. at 3380 n. 7.80 Indeed, a "defendant's right to discover exculpatory evidence does not include the unsupervised right to search through the [government's] files," Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S. Ct. 989, 1002, 94 L. Ed. 2d 40 (1987), nor does the right require the prosecution to deliver its entire file to the defense. See Agurs, 427 U.S. at 109, 96 S. Ct. at 2400. Rather, Brady obligates the government to disclose only favorable evidence that is "material." The "touchstone of materiality is a `reasonable probability' of a different result." Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490 (1995). Accordingly, under Brady, the government need only disclose during pretrial discovery (or later, at the trial) evidence which, in the eyes of a neutral and objective observer, could alter the outcome of the proceedings. Not infrequently, what constitutes Brady material is fairly debatable. In such cases, the prosecutor should mark the material as a court exhibit and submit it to the court for in camera inspection. See Buckley, 586 F.2d at 506 (citing Agurs, 427 U.S. at 106, 96 S. Ct. at 2399).81

Once the trial begins, the government must produce the Jencks Act statements of a witness when the witness is tendered for cross-examination.82 As mentioned, "statement," under the Act, is a term of art; "Congress[, in enacting the Jencks legislation,] was concerned that only those statements which [can] properly be called the witness' own words should be made available to the defense.... It [is] important that the statement[s reflect] fully and without distortion what had been said." Palermo v. United States, 360 U.S. 343, 352, 79 S. Ct. 1217, 1224, 3 L. Ed. 2d 1287 (1959). Consequently, an interviewer's raw notes, and anything prepared from those notes (such as an FBI 302), are not Jencks Act statements of the witness unless they are substantially verbatim and were contemporaneously recorded, or were signed or otherwise ratified by the witness. See United States v. Delgado, 56 F.3d 1357, 1364 (11th Cir.1995). On the other hand, if the agent is called as a witness, these statements — depending on the scope of the agent's testimony on direct examination — may constitute Jencks material. See United States v. Saget, 991 F.2d 702, 710 (11th Cir.1993).

In addition to producing Jencks Act statements, the prosecutor must continue to comply with Brady's demands once the trial begins. Accordingly, the prosecutor must turn over any newly discovered items that materially favor the defense, see High v. Head, 209 F.3d 1257, 1265 n. 8 (11th Cir.2000) (prosecutor has "ongoing" duty to disclose exculpatory evidence), as well as any impeachment evidence that is likely to cast doubt on the reliability of a witness whose testimony "may well be determinative of guilt or innocence." Bagley, 473 U.S. at 676-77, 105 S. Ct. at 3380-81 (quoting Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L. Ed. 2d 104 (1972)). See United States v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir.1996). Impeachment evidence should be disclosed in time to permit defense counsel to use it effectively in cross-examining the witness. See United States v. Bueno-Sierra, 99 F.3d at 379-80; United States v. Higgs, 713 F.2d 39, 43-44 (3d Cir.1983).

With the foregoing principles in mind, we evaluate the prosecutor's compliance with the Government's discovery obligations in this case.

i.

Part I.B., supra, describes in considerable detail the discovery the Government provided the defense prior to trial — beginning with the Discovery Notice it served on the defendants, on July 20, 2000, immediately following their arraignment. The Discovery Notice gave defense counsel access to far more evidence and other material than Rule 16(a) required. Among other non-discoverable items, they were given access to transcripts of grand jury testimony and summaries of witness interviews, including FBI 302s.83 Because the Government produced the summaries of interviews and 302s, defense counsel insisted on the production of the agents' and other investigators' "raw notes," implying that the Government had waived its right, under Rule 16(a)(2), to withhold those items. In addition, they demanded access to everything the Government and the Alabama Attorney General's office possessed that related to their investigation of the case. When the Government resisted, defense counsel sought court orders compelling the Government to produce these materials. The magistrate judge, concluding that counsel's requests had no support in the law, denied their motions, and the district court summarily affirmed his decisions.

The defendants complain that the Government's discovery was so voluminous that it hindered their pretrial preparation. The discovery was indeed voluminous — because the Government gave the defense access to far more information and materials than the law required. The defendants could hardly complain about that. If they had insufficient time to sort things out, they should have asked for a continuance.84

The defendants also contend that the Government attempted to avoid its Brady obligation by requiring them to search the discovered materials for exculpatory material. Their request for Brady material was nothing more than a general request for favorable information. As far as we can tell, the defendants never told Rasmussen or anyone else on the prosecution team what their "defense" would be. As Rasmussen said to the magistrate judge at the September 5th hearing on the defendants' motions to compel further discovery, "I don't know what [Clark's] theories are. I don't think there is a defense in this case. And I don't know exactly what he's going to say or not say."

The defendants may have had a defense, but, given the court's dismissal of the indictment, there was no need to disclose it. Whatever their defense may have been, the defendants apparently needed far more help than the Government's Rule 16(a) discovery provided; hence, their blanket demands for everything the Government, the Alabama Attorney General's office, and anyone else who had investigated the case may have uncovered. They were obviously searching for anything that might persuade a jury to acquit.85 In sum, the defendants' discovery requests went far beyond what the law, as we have expounded it, requires. As the Supreme Court observed, in reversing the D.C. Circuit in Agurs:

The Court of Appeals appears to have assumed that the prosecutor has a constitutional obligation to disclose any information that might affect the jury's verdict. That statement of a constitutional standard of materiality approaches the "sporting theory of justice" which the Court expressly rejected in Brady. For a jury's appraisal of a case "might" be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt. If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice.

Whether or not procedural rules authorizing such broad discovery might be desirable, the Constitution surely does not demand that much.

427 U.S. at 108-09, 96 S. Ct. at 2400 (footnotes omitted). We cannot tell from what the district court stated on the record on October 24, or what it wrote in its order the next day, whether the court thought the dismissal of the indictment was warranted because of the manner in which the prosecution discharged its pretrial discovery obligations. If the court believed that the prosecution was derelict in discharging those obligations, the belief was unfounded.

ii.

At trial, the items the prosecutor failed to produce — the items that appear to have concerned the court the most — fell into two categories: Jencks Act statements and Brady materials — more specifically, materials that, under Giglio, amounted to "impeaching evidence." We discuss these categories in order.

a.

Government agents' reports of witness interviews and summaries of those interviews are not Jencks Act statements unless they are (1) substantially verbatim, contemporaneously recorded transcripts, or (2) signed or otherwise adopted by the witness. See United States v. Delgado, 56 F.3d 1357, 1364 (11th Cir.1995). The statements at issue — those the court required Rasmussen to produce (namely, the raw notes, summaries of interviews, FBI 302s and internal communications, and other writings made by investigating agents, assistant U.S. attorneys, and personnel in the Alabama Attorney General's office) — were, according to defense counsel and the court, Fields' Jencks Act statements. We fail to see how any of the statements qualify under either of the Jencks Act definitions.

As used in the Jencks Act, "substantially verbatim" means using the nearly exact wording or phrasing the witness uttered during the interview; if only some of the exact wording is used, it is not Jencks material. See United States v. Cole, 634 F.2d 866, 867 (5th Cir. Jan.1981) ("[A]lthough the notes may have contained phrases or isolated sentences identical to the language used by the witness, they were not a `substantially verbatim report' of the interview."). Whether a 302, raw notes, or other government document contains sufficiently extensive verbatim recitation to come within the Act is a matter of fact to be decided by the trial court. See United States v. Loyd, 743 F.2d 1555, 1566 (11th Cir.1984). In this case, the defense proffered nothing to show the statements were verbatim transcripts, see Delgado, 56 F.3d at 1364, nor did the court ascertain the sufficiency of the recitation. Moreover, our review of the statements indicates that none are probably sufficiently verbatim. Regardless of our review, however, it is clear that the court could not have properly dismissed the indictment based on the fact that the Government failed to produce what obviously constituted Fields' "substantially verbatim" Jencks Act statements.

Nor could the court have based its dismissal on the Government's failure to produce Fields' "adopted" Jencks Act statements. If, after reading the statements, the court thought Fields may have "adopted" them as his own, the court should have held an evidentiary hearing to determine if Fields had in fact done so. See Loyd, 743 F.2d at 1566. Fields was present in the courtroom; it would have been a simple matter to show him the statements and ask him whether he had adopted them. But no hearing was held. Furthermore, defense counsel provided no evidence that Fields adopted or approved the reports or that any of the government agents "read back his notes or asked [Fields] to confirm their accuracy." Delgado, 56 F.3d at 1364.86

That the district court misapplied the Jencks Act, however, does not end our inquiry into whether the prosecutor engaged in misconduct justifying the dismissal of the indictment. We must decide whether he withheld exculpatory or impeaching evidence, in derogation of his duties under Brady and Giglio, such that he could be charged with prosecutorial misconduct sufficient to warrant the dismissal of the indictment.

b.

It becomes evident from a reading of the record that, after the trial began, defense counsel and the court sometimes referred to the documents the prosecution produced, or was instructed to produce, as Jencks Act material; sometimes they labeled them Brady or Giglio material. We have examined the materials marked as court exhibits and find that none constitutes Brady material in the sense that the material is exculpatory. The question thus becomes whether any of the material was "impeaching" under Giglio. To answer the question, we focus on Assistant Sheriff Fields' testimony on direct examination and the controversy it engendered.87

Before defense counsel commenced Fields' cross-examination, they had the transcripts of his grand jury testimony. They also knew that he had appeared before the grand jury under a grant of immunity. Early in the cross-examination, Fields revealed that prior to his first grand jury appearance, he had been interviewed by Dupuis, Posey, Biggs, and Hunneyman. At this point, counsel demanded the interviewers' raw notes because, as Clark put it, "[a] lot of what he said [to the interviewers], we would contend, at least has some exculpatory information in it and we would be entitled to it."88 Of course, counsel had not seen the notes (or the summaries or reports made from the notes), so counsel was purely speculating. Nonetheless, the district court ordered the prosecutor to produce the notes. Rasmussen produced those that were available, and the summaries and internal FBI communications prepared from the notes that were thereafter discarded.89 Later, the prosecutor obtained and gave the defense similar documents maintained in the Alabama Attorney General's office. According to defense counsel, this evidence impeached Fields' testimony. For example, Dupuis' internal communication of November 2, 1999 contained "details" the prosecutor failed to bring out on direct examination. These details contradicted Fields' testimony as follows: (1) contrary to Fields' testimony on direct, he obtained for Jordan an "absentee voter application list" (not an "absentee voter list"); (2) Fields and Jordan met on November 9, not November 17 or 18 as Fields told Dupuis; (3) Fields told Dupuis that Woodward's voter fraud investigation began on November 5, not on November 19; (4) Fields failed to reveal on direct examination (because he was not asked) that he had heard a rumor that Woodward was going to replace him after the election; and (5) Fields testified incorrectly that Jordan instructed him to use the NCIC.

We do not believe the omission of such details amounted to the withholding of impeaching evidence, such that Giglio required the prosecutor to disclose it when Fields took the stand. The first point is frivolous — there can be no doubt that Fields retrieved a list for Jordan with the names of those who intended to, or did, vote absentee. The second point is likewise frivolous: in his opening statement to the jury, Clark said that Fields and Jordan had met on November 9. Regarding the third point, we note that defense counsel knew in advance of trial that, as early as November 5, Woodward's office was investigating voter fraud. The fourth point is frivolous; in his grand jury testimony (a transcript of which defense counsel possessed), Fields said that his job was on "thin ice"; Woodward contemplated replacing him after the election. Also frivolous is the fifth point because, contrary to counsel's representation to the court, Fields did not testify that Jordan instructed him to use the NCIC.

The withholding of information such as the above provided the basis for defense counsel's allegation of prosecutorial misconduct and the defendants' motions to dismiss the indictment. Defense counsel contend that Dupuis' grand jury testimony materially contradicted what Fields said on direct examination. We have examined Dupuis' testimony and find nothing that could reasonably be used to impeach Fields' testimony. Similarly, we find no Giglio material in any of the other materials the prosecutor turned over at trial. The same is true with respect to the FBI files Sinclair produced in response to Jordan's subpoena.

We have concluded that the district court misapplied the Brady and Giglio rules as well as the Jencks Act. The court therefore abused its discretion to the extent that it struck Fields' testimony,90 and then dismissed the indictment on the ground that the prosecutor grievously mishandled the Government's discovery obligations created by those cases and the statute. There remains, however, one other possible basis for the court's actions. Shortly before it dismissed the case, the court indicated that the prosecutor had engaged in highly inappropriate conduct in examining the JCSD witnesses who took the stand after Fields stepped down. The misconduct consisted of asking leading questions and eliciting hearsay, to-wit: what Fields said to them that caused them to run the ACJIS/NCIC checks. We find no misconduct, for several reasons.

First, the court's ruling that the witnesses could not say what Fields told them was erroneous because Fields made the challenged statements as a member of the conspiracy alleged in Count One of the indictment, and he made them during and in furtherance of the conspiracy. Fed. R.Evid. 801(d)(2)(E). Moreover, what Fields said to the witnesses — in response to which they ran the checks — was admissible to show the witnesses' state of mind. See Fed.R.Evid. 801(c); 2 John W. Strong, McCormick on Evidence § 249 (5th ed.1999); 6 John Henry Wigmore, Wigmore on Evidence § 1789, at 214 (Chadbourn rev.1976).91 In addition, our review of the prosecutor's questions — to which defense counsel objected as leading (as well as calling for hearsay) — convinces us that most of the questions were not leading; accordingly, the objections should have been overruled. Finally, even if the questions were somewhat leading or elicited hearsay, we are satisfied that the prosecutor, forced to tiptoe through a veritable minefield, was doing his best to keep the witness from uttering anything Fields had said. We therefore find nothing in the manner in which the prosecutor handled his direct examination of the JCSD employees that reasonably could be labeled prosecutorial misconduct.

In conclusion, because the bases for the district court's dispositive action — the dismissal of the indictment with prejudice — have no foundation in the law, such action constituted an abuse of discretion. The judgment of the district court is accordingly VACATED, the indictment is REINSTATED, and the case is REMANDED for further proceedings.

SO ORDERED.