UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA	)	Criminal No.: H-97-93

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v.	)	Violations:

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MARK ALBERT MALOOF,	)	15 U.S.C. §1

)	18 U.S.C. § 371

Defendant.	)	Filed 6/23/97

UNITED STATES' COMBINED RESPONSE TO DEFENDANT'S

MOTION FOR PRODUCTION AND DISCLOSURE AND DEFENDANT'S SUPPLEMENTAL MOTION FOR PRODUCTION AND DISCLOSURE

The United States of America, through its undersigned attorney, hereby responds to both Defendant's Motion for Production and Disclosure ("Defendant's Motion") and Defendant's Supplemental Motion for Production and Disclosure ("Defendant's Supplemental Motion").

The United States is ready and able to provide defendant with Fed. R. Crim. P. 16 discovery. The United States also is aware of its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, and will provide defendant with Brady material in a timely fashion. However, the United States filed a Motion for Protective Order on June 11, 1997, in order to maintain grand jury secrecy and meet its obligations under Fed. R. Crim. P. 6(e). The United States, therefore, will immediately make available Rule 16 discovery to defendant once this Court has ruled on its Motion.

The United States' Responses

With these considerations in mind, the United States responds specifically to each request contained in the Defendant's Motion and Defendant's Supplemental Motion. The paragraph numbers of this Response correspond directly to numbering of the requests in those motions.

REQUESTS:

I.	Rule 16 Requests:

1.	(a) Any and all statements purporting to be those of the Defendant, whether oral, written, recorded, transcribed or otherwise.

(b) Any and all reports, notes or memoranda, containing any statement by the Defendant, which are in the possession of, or available to, the Government.

The United States will meet its obligations under Rule 16(a)(1)(A) and provide to defendant any statements made by him which are in the possession, custody or control of the government. Further disclosure is neither authorized nor warranted.

(c) The substance of any oral statements made by the Defendant, before or after his arrest, to any law enforcement officer, official or employee.

The United States will meet its obligations under Rule 16(a)(1)(A) and provide to defendant the substance of any oral statement made by defendant to any person then known by him to be a government agent.

2.	Any and all written or oral waivers or consents given or executed by the Defendant or agents acting on Defendant's behalf.

The United States will meet its obligations under Rule 16(a)(1)(A) and provide to defendant any statements made by him which are in the possession, custody or control of the government.

3.	Statements of asserted co-conspirators made during the course of and in furtherance of the conspiracy.

4.	Statements of asserted co-conspirators which concern activities conducted during the course of and in furtherance of the conspiracy.

The United States objects to defendant's request for statements of asserted co-conspirators on the grounds that defendant is not entitled to such information under Rule 16. United States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988), cert denied 488 U.S. 840 (1988); United States v. Orr, 825 F.2d 1537 (11th Cir. 1987); United States v. Roberts, 811 F.2d 257 (4th Cir. 1987) en banc; United States v. Bennett, 158 F.R.D. 482 (D. Kan. 1994). Therefore, defendant's request for co-conspirator statements under Rule 16 should be denied.

The United States will disclose statements of testifying co-conspirators as required by Fed. R. Crim. P. 26.2 and 18 U.S.C. § 3500 ("Jencks Act") three days before trial, as set forth in response to Defendant's Motion, ¶ III(9), below. The United States will produce any exculpatory evidence contained within co-conspirator statements to defendant pursuant to Brady and its progeny.

5.	Any and all papers, documents, records, photographs, books, tangible objects, videotapes, tape recordings or portions of any of these things within the possession, custody, or control of the Government that are:

a.	Material to the preparation of the Defendant's defense,	specifically including:

i.	All documents, records or computer data	produced to the grand jury by Bay Industries, Inc., Mizell Bros. Company, Hiplax International Corporation d/b/a Brite Insulation Corporation and any other laminating company whose employees allegedly or assertedly conspired with the Defendant, including all price lists, transactional data, telephone bills, correspondence, and documents describing conversations with customers, such as call reports.

ii.	All documents produced to the grand jury by	customers of Bay Industries, Inc., Mizell Bros. Company, Hiplax International Corporation d/b/a Brite Insulation Corporation and any other laminating company whose employees allegedly or assertedly conspired with the Defendant, including all price lists, transactional data, telephone bills, correspondence, and documents describing conversations with employees of laminating companies.

iii.	All documents produced to the grand jury by	fiberglass suppliers (i.e., Owens-Corning, Schuller Manville, Knauf, Certainteed Manson), including all documents containing any of the following information: price of fiberglass to laminators; market shares of laminators; allocations of fiberglass to laminators; quarterly quantities (or revenues) sold by laminators; and number and identity of laminators in each geographic market.

The United States will permit defendant to inspect and copy any and all materials in the possession, custody and control of the government and within the scope of the charged offense, pursuant to Rule 16(a)(1)(C). Such materials will include all documents produced to the grand jury by: Bay Industries, Inc., Houston branch and defendant; Mizell Bros. Co., Dallas and Atlanta branches; Hiplax International Corp. d/b/a Brite Insulation Corp; PBI/Selle; TMG Corp; all customers of laminating companies doing business in Texas; and, all fiberglass suppliers who sold or provided fiberglass to Bay Industries, Inc., Mizell Bros., Co., Brite Insulation Corp., PBI/Selle, and TMG.

iv.	All documents written by Wally Rhodes, Jerry	Killingsworth, Peter Yueh and anyone else the Government contends conspired with the Defendant, as well as the "Defendant's statement of the offense" portion of the Pre-Sentence Investigation Reports concerning Messrs. Rhodes, Killingsworth, and Yueh if quoted from written submissions made by those Defendants to the United States Probation Office.

As stated previously, the United States objects to defendant's request for co- conspirator statements, including defendant's request for the "Defendant's statement of the offense" portion of their Pre-Sentence Investigation Reports ("PSI"), as being outside the scope of Rule 16. PSIs are kept confidential "to ensure the free flow of information so that a district court has as complete a set of facts as is possible for fashioning an appropriate sentence . . . ." United States v. McKnight, 771 F.2d 388, 390 (8th Cir. 1985); United States v. Martinello, 556 F.2d 1215 (5th Cir. 1977). Additionally, PSI reports are not statements under the Jencks Act. United States v. Jackson, 978 F.2d 903, 909 (5th Cir. 1992).

Therefore, the United States will not produce PSI reports under Rule 16 or the Jencks Act. The United States, however, will provide any exculpatory information, including possible impeachment materials, contained within the PSI reports pursuant to its obligations under Brady and its progeny. The defendant has provided no other legal basis for disclosure of the PSI reports and, accordingly, his request should be denied.

v.	Copies of all draft and final transcripts of any	tape recordings of the Defendant, or any tape recordings where the Defendant's name is mentioned, or any tape recordings in which the Government contends the Defendant's activities were discussed, as well as the original tapes themselves.

The United States will provide to the defendant copies of tape recordings of the defendant which are in the possession of the government, pursuant to Rule 16(a)(1)(A).

Defendant also requests the original tapes to determine if they were altered. See Defendant's Motion For Production Of Original Tape Recordings For Analysis By Defendant's Expert ("Motion For Original Tapes"). The United States will produce the original tape recordings to the defendant after they have been examined by a government expert.

The United States objects to defendant's request for any tapes containing statements other than those of the defendant as outside the scope of Rule 16. While defendant states in his Memorandum of Law in Support of Defendant's Motion, ¶ 5(a)(v) that such tapes are material, he mistates the facts and finding in United States v. Rojas, 502 F.2d 1042 (5th Cir. 1974). In Rojas, the government voluntarily produced to defendant a tape recording of a law enforcement officer and a co-defendant. The court did not comment on the rationale behind the government's production of the tape, nor imply that the recording provided a contextual setting in which to view defendant's actions. The defendant has provided no legal basis for requesting third-party statements contained on any tape, and his request should be denied.

The United States also objects to defendant's request for all draft and final transcripts of the tape recordings of defendant as being outside the scope of Rule 16. The defendant's statements are contained on the tape recordings themselves. See, e.g., United States v. Bailey, 689 F.Supp. 1463 (N.D. Ill. 1987)(ruling that transcripts and drafts only discoverable to impeach person preparing drafts and undermine accuracy of transcripts); United States v. Crisona, 416 F.2d 107 (2nd Cir. 1969).

Defendant's reliance on United States v. Shields, 767 F.Supp. 163 (N.D. Ill. 1991), to obtain Rule 16 discovery of tape transcripts is premature. In Shields, the court ruled that drafts of transcripts should be turned over to the defense because the tapes were difficult to understand and there were disputes as to the accuracy of final transcripts. Id. at 166. The United States will satisfy its obligations under Rule 16 by producing the tape recordings themselves, as these constitute the defendant's statements. Any disputes concerning the accurancy of any transcript prepared either by the government or defendant can be resolved in a separate proceeding.

vi.	Evidence of any consensually recorded telephone calls which were not supervised by law enforcement authorities.

The United States is not aware of any recordings which were made without supervision by law enforcement authorities.

vii.	FBI policies, procedures, and guidelines effective in June 1995 for consensual recordings made by confidential informants, cooperating witnesses, or confidential sources.

The United States objects to defendant's request for FBI materials as outside the scope of Rule 16. Furthermore, such materials "are neither exculpatory nor do they contain material which could be used for impeachment purposes." United States v. Johnson, 872 F.2d 612, 619 (5th Cir. 1989). Therefore, defendant's request should be denied.

viii.	Any and all documents written by or provided to the Government by any confidential informant, cooperating witness, or confidential source.

ix.	Any document corroborating or not corroborating information supplied by any confidential informant, cooperating witness, or confidential source.

The United States objects to defendant's request as it falls outside the scope of Rule 16, though if such evidence exists, it may be provided generally in the United States' Rule 16 production under other requests. See response to Defendan'ts Motion, ¶ 5(a)(i-iii). The United States will provide any exculpatory evidence contained in the requested materials pursuant to Brady, and also comply with Jencks as to any informant, witness or source who testifies at trial.

x.	FBI policies, procedures and guidelines effective in 1994-1995 for using and handling confidential informants, cooperating witnesses, and confidential sources.

The United States objects to defendant's request for FBI materials as outside the scope of Rule 16. See Response to Defendant's Motion, ¶ 5(a)(vii). Therefore, defendant's request should be denied.

xi.	Any and all records of electronic eavesdropping, wiretapping or other surveillance of communications to which the Defendant was a part or which otherwise concerns the prosecution of the Defendant in this case, including any and all documents, transcripts or writings relating thereto, as well as any orders from any Judge or Magistrate and any supporting affidavits thereto.

xii.	Results of any polygraph, sodium pentothal or similar "truth-finding" test of the Defendant or of any other person which is relevant or material to this case.

xiii.	Any and all arrest or search warrants, whether executed or not, together with supporting affidavits, which were obtained in connection with this case.

The United States is unaware of any such information or evidence.

xiv.	Department of Justice personnel files for, and any Office of Professional Responsibility files or other disciplinary files, memos or documents regarding, Antitrust Division attorneys Mark R. Rosman, Karen J. Sharp and Scott M. Garelick.

xv.	Federal Bureau of Investigation personnel file for, and any disciplinary files, memo or documents regarding, Special Agent Frank I. Eldredge.

The United States objects to defendant's requests for personnel information regarding government attorneys and agents as immaterial, irrelevant and outside the scope of Rule 16. While the United States will provide impeachment materials commensurate with its obligations under United States v. Bagley, 473 U.S. 667 (1985), defendant's requests under Rule 16 should be denied.

xvi.	The names and addresses of all witnesses interviewed or persons interrogated or questioned in connection with the investigation or prosecution of this case.

The United States objects to defendant's request as outside the scope of Rule 16. Defendant provides no legal support for this overbroad request. Defendant is seeking to discover work product and grand jury information to which he is not entitled. Indeed, the United States is unable to provide such information pursuant to Fed. R. Crim. P. 6(e), which requires the government to protect from disclosure matters occurring before the grand jury. Defendant's request, therefore, should be denied.

xvii.	Copies of any and all federal forms executed by any person permitting consensual recording of any telephonic communications or personal communications, including, but not limited to, any forms FD472 and 473.

The United States objects to defendant's request as such information is specifically exempt from disclosure under Rule 16(a)(2), which provides, in pertinent part:

this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case.

Fed. R. Crim. P. 16(a)(2).

b.	Intended for use by the Government as evidence at the	trial; or

c.	Obtained from or belonging to the Defendant, specifically including handwriting exemplars provided by the Defendant.

The United States will provide such information pursuant to Rule 16(a)(1)(C).

6.	Any results or reports of physical or mental examinations or scientific tests or experiments made in connection with this particular case which are within the possession, custody or control of the Government, specifically including any handwriting analysis done based on handwriting exemplars provided by the Defendant.

The United States will meet its obligation under Rule 16(a)(1)(D) and provide this information to defendant.

7.	Any and all information about the Defendant's prior criminal record, including, but not limited to, arrests, convictions, periods of incarcerations and present probationary or parole status.

The United States will provide this information to defendant under Rule 16(a)(1)(B).

8.	Any and all memoranda, correspondence, communication, copies of press releases or writings of any kind related to the Government's deliberate dissemination of information concerning this case to the media in Birmingham, Alabama, Houston, Texas, Green Bay, Wisconsin, Washington, D.C., or any other city in which the Government has by conscious and deliberate act formulated philosophies, instructions, or directions concerning what information needed to be disseminated to the public concerning this case and what policies, procedures, practices, strategies or other matters are to be incorporated into disseminating information or responding to requests for information.

The United States objects to defendant's request as immaterial, irrelevant and outside the scope of Rule 16.

II.	Brady, Giglio and Bagley Material:

9.	Any and all evidence which is in the possession of or known to the Department of Justice or the Federal Bureau of Investigation which would negate the charges against the Defendant, lead to a reasonable doubt about the Defendant's guilt, or which may otherwise tend to exculpate the Defendant or which is arguably exculpatory in nature.

The United States is aware of its obligations under Brady and its progeny, and will provide to defendant all Brady material in its possession.

"The holding in Brady v. Maryland requires disclosure only of evidence that is both favorable to the accused and 'material either to guilt or punishment.'" United States v. Bagley, 473 U.S. 667, 674 (1985)(citing Brady, 373 U.S. 83, 87 (1963)). The Supreme Court has made clear, however, that Brady and its progeny constitute a rule of fairness and minimum prosecutorial obligation, not a rule of discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); See also United States v. Campagnuolo, 592 F.2d 852 (5th Cir. 1979). The prosecution has no duty under Brady to provide unlimited discovery, United States v. Agurs, 427 U.S. 97, 106 (1976), nor is there a duty to deliver the entire prosecution file to the defendant. Id. at 111. Likewise, the government is under no obligation to "make a complete and detailed accounting to the defense of all . . . investigating work on a case." Moore v. Illinois, 408 U.S. 786, 795 (1972).

Furthermore, the prosecution is not obligated to produce potential Brady material when the evidence is already known to the defendant.

Brady does not oblige the government to provide the defendants with evidence that they could obtain from other sources by exercising reasonable diligence. When evidence is available equally to the defense and the prosecution, the defendants must bear the responsibility of their failure to diligently seek its discovery.

United States v. McKenzie, 768 F.2d 602, 608 (5th Cir. 1985).

With these principles in mind, the United States specifically responds to each of defendant's requests.

The above request includes, but is not limited to, any of the following evidence which is currently in the possession of or under the custody or control of the Government:

a.	Evidence of price competition in the January 1994-June	1995 period among Bay Industries, Inc., Mizell Bros. Company, Hiplax International Corporation d/b/a Brite Insulation Corporation and any other laminating company which allegedly or assertedly conspired with the Defendant.

b.	Evidence provided by customers interviewed during this	investigation who have denied being deceived into believing that the prices they paid for metal building insulation were arrived at independently and without consultation or agreement with competing suppliers.

As noted in response to Defendant's Motion, ¶ 5(a)(i-iii), the United States will permit defendant to inspect and copy all Rule 16(a)(1)(C) material in the possession of the government and within the scope of the charged offense. The United States, therefore, necessarily will disclose to defendant anything constituting Brady evidence within these files.

c.	Evidence, including grand jury transcripts, that Bay employees, including sales personnel supervised by the Defendant, had no knowledge of the charged conspiracies.

The United States objects to defendant's request as it is outside the requirements of Brady and its progeny. "Information is not exculpatory merely because it is not inculpatory." United States v. Jackson, 850 F.Supp. 1481, 1501 (D. Kan. 1994). Evidence that Bay employees, including those personnel supervised by defendant, had no knowledge of the charged conspiracies is not exculpatory. United States v. Montgomery, 990 F.2d 266, 271 (7th Cir. 1993)(finding that statements of co-conspirators who denied knowing that defendant carried a gun were not exculpatory when those co-conspirators were not present at the time when other witnesses saw defendant carrying gun).

Additionally, evidence is only material if it is admissible at trial. Brady, 373 U.S. at 89-90. Defendant supervised numerous Bay sales employees who sold insulation outside the geographical area of the charged conspiracy. The knowledge of Bay sales personnel operating outside the Texas market is irrelevant to the proof to be adduced at trial showing that defendant conspired to fix the price of metal building insulation sold from facilities in Texas.

By seeking grand jury transcripts of Bay employees, defendant is attempting to use Brady as a discovery mechanism. Defendant's reliance on Campagnuolo to skirt Brady is misplaced: there, the court merely noted that while Brady might require disclosure of exculpatory evidence prior to the time mandated by Jencks, the defendant was not prejudiced when the government turned over a grand jury transcript containing exculpatory evidence on the eve of trial. Campagnuolo, 592 F.2d at 859-60. The defendant was not prejudiced, in part, because he already knew that the witness in question was a potential exculpatory witness, Id. at 860, and the prosecution is "not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself." Id. at 861 (quoting United States v. Prior, 546 F.2d 1254, 1259 (5th Cir. 1977)).

It is apparent that defendant possesses information as to the Bay employees mentioned in this request. See Defendant's Motion to Dismiss Indictment For Prosecutorial Misconduct in Grand Jury Proceedings ("Motion to Dismiss") and accompanying affidavits (wherein five of seven Bay employees deny knowledge of alleged conspiracies involving defendant). While none of these five transcripts contains Brady evidence, as none contains any information relevant to the charged conspiracy, the United States will disclose any exculpatory statements contained in other grand jury transcripts that are material and relevant to the charged offense, pursuant to Brady and its progeny.

d.	Evidence that the Defendant lacked knowledge of any	overt acts to be proven at trial by the Government.

The United States is unaware of any such evidence. Moreover, there is no legal requirement that defendant have knowledge of all overt acts committed by co-conspirators in furtherance of the conspiracy. United States v. Basey, 816 F.2d 980, 997-99 (5th Cir. 1987). Therefore, the United States objects to defendant's request as irrelevant.

e.	Evidence that the Defendant lacked the required criminal	intent, specifically including all documentation of Trial Attorney Mark Rosman's offer of immunity from prosecution to the Defendant on June 21, 1995, and the Defendant's rejection of this offer.

As stated in response to Defendant's Motion, ¶ 1(c), the United States will provide to defendant the substance of any oral statement made by defendant to any person then known by him to be a government agent, including any statements made to government attorney Mark Rosman, pursuant to Rule 16. This information, however, is obviously known to defendant and is, therefore, outside the requirements of Brady. The United States objects to the defendant's request to provide internal government documentation as outside the requirements of Brady and protected by work product. See, e.g., United States v. Koskerides, 877 F.2d 1129, 1133-34 (2d Cir. 1989)(ruling that Rule 16(a)(2) specifically exempts disclosure of internal government documents, recognizing "the prosecution's need for protecting communications concerning legitimate trial tactics")(quoting United States v. Pfingst, 490 F.2d 262, 275 n.14 (2d Cir. 1973).

f.	Evidence of statements of any Government witness which	are inconsistent with prior statements made by those witnesses, specifically including notes of meetings with witnesses Wally Rhodes, Janne Smith, Jerry Killingsworth and Peter Yueh that contain inconsistent statements made by those witnesses.

g.	Statements of witnesses which conflict with statements	of other witnesses concerning this case.

h.	Evidence which impeaches the credibility or testimony	of any Government witness.

I.	Evidence regarding a Government witness' motives in	testifying for the Government or against the Defendant.

j.	Evidence regarding any prejudices or hostility felt by any	Government witnesses against the Defendant.

The United States will provide to defendant any such evidence pursuant to its obligations under Brady and progeny.

k.	Any promise or indication to any Government witness	of immunity from prosecution, leniency in disposition, or recommendations of specific sentences concerning actual or alleged crimes, whether related to this case or to other cases, specifically including all correspondence, including draft plea agreements, regarding the plea agreements of Wally Rhodes, Jerry Killingsworth, Peter Yueh, and Hiplax International Corporation d/b/a Brite Insulation Corporation.

The United States will provide any such material to defendant that is exculpatory and material pursuant to Brady and its progeny. The United States, however, objects to defendant's request for internal prosecution files as irrelevant, immaterial and non- discoverable work product. See United States v. Jackson, 850 F.Supp. 1481, 1506 (D. Kan. 1994)(denying defendant's request for drafts of plea agreements pursuant to Rule 16(a)(2) as the "request appears to be a fishing expedition since the defendant's have [the] plea agreement . . .").

l.	Threats of, or statements regarding, possible prosecution	of any Government witness or member of a Government witness' family.

m.	Statements made to or by any Government witness,	specifically including Janne Smith, to the effect that the witness' cooperation was limited, that the witness' cooperation would be kept confidential, or that the witness would not have to testify at trial.

The United States denies that any such threats or statements were made.

n.	Criminal records of any Government witness which list	(1) convictions for felonies and (2) convictions for misdemeanors involving false statement or dishonesty.

The Unites States will produce to defendant such information consistent with its obligations under Brady and its progeny.

o.	Any exculpatory or impeachment evidence contained	in the presentence investigation reports for Government witnesses Wally Rhodes, Jerry Killingsworth, and Peter Yueh.

To the extent that any such evidence exists in these reports, the United States will produce to defendant such information consistent with its obligations under Brady and its progeny.

p.	Evidence concerning pending indictments, criminal charges or criminal investigations against or involving any Government witness.

q.	Evidence regarding any defects in the mental, intellectual,	retentive or sensory capacity or ability of any Government witness.

r.	The results of any scientific, physical or medical tests	which may exculpate the Defendant or reflect adversely on the credibility or testimony of any Government witness.

The United States is unaware of any such evidence, but will continue to comply with its obliations under Brady and its progeny.

s.	The questions asked, answers provided and interpretive	results of any polygraph, sodium pentothal or other similar "truth-finding" tests or examinations administered to any witness during the Government's investigation or preparation of this case.

No such examinations or tests were performed by the United States during the investigation or preparation of this case.

t.	A handwritten memo written by Ron Travathan to Jim	Denton of PBI describing a telephone conversation between Travathan and the Defendant that occurred around November 19, 1993 in which the Defendant described price competition among Bay, PBI, Brite and Mizell Bros. and characterized Brite and Mizell as low-life laminators.

The United States will produce this memorandum with its Rule 16 production described in response to Defendant's Motion, ¶ 5(a)(i-iii).

III.	Jencks Material:

9.	In the interests of judicial economy, all statements of Government witnesses required to be produced under 18 U.S.C. § 1500 are requested to be produced at least two weeks prior to the start of the trial.

The Jencks Act, 18 U.S.C. § 3500, specifically defines the time at which the government must disclose any statement of a prospective government witness. In relevant part, the Jencks Act states:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a government witness or prospective government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

18 U.S.C. § 3500(a).

Courts generally cannot require "disclosure of a witness's statement until after that witness has testified." United States v. Lowenberg, 853 F.2d 295, 300 (5th Cir. 1988)(emphasis in original). Accord United States v. Welch, 810 F.2d 485, 489 n.2 (5th Cir. 1987) (Fifth Circuit has previously "ruled that a pretrial discovery order was invalid to the extent that it allowed discovery beyond the limitations of the Jencks Act . . . We are unaware of any authorizing the district court to amend this mandate"); United States v. McKenzie, 768 F.2d 602, 609 (5th Cir. 1985), (trial court cannot compel disclosure of Jencks material at any earlier point than after the witness testifies). While the United States believes that defendant's request is not supported by the Jencks Act or legal authority, the United States will disclose to the defendant all Jencks Act statements three days before trial.

UNITED STATES' RESPONSE TO DEFENDANT'S SUPPLEMENTAL MOTION FOR PRODUCTION AND DISCLOSURE

I.	Rule 16 Material:

1.	Pursuant to Rule 16(a)(1)(A), statements made by the Defendant to any third party who then made a statement to the	Government in which any of the Defendant's remarks were repeated or reported and included in the third party's statement.

The United States objects to defendant's request as outside the scope of Rule 16. Statements made by a third party to the government, and containing statements allegedly made by the defendant, are not the defendant's statements under Rule 16. United States v. Cole, 857 F.2d 971, 975-76 (4th Cir. 1988); United States v. Walk, 533 F.2d 417, 418-19 (9th Cir. 1975); United States v. Williams, 113 F.R.D. 177, 180-81 (M.D. Fla. 1986). The United States will produce to defendant any such statements as to testifying witnesses commensurate with its obligations under the Jencks Act.

II.	Brady, Giglio, and Bagley Material:

1.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not participate in an agreement, understanding and concert of action the substantial term of which was to raise, fix and maintain prices of metal building insulation sold from facilities in the State of Texas, as alleged in ¶ 5 of Count one;

2.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not discuss prices to be charged for metal building insulation sold from facilities in the State of Texas, as alleged in ¶ 6(a) of Count One;

3.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not agree to raise, fix and maintain prices for metal building insulation sold from facilities in the State of Texas, as alleged in ¶ 6(b) of Count One and ¶ 4 of Count Two;

4.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not raise, fix and maintain prices for metal building insulation sold from facilities in the State of Texas, as alleged in ¶ 6(c) of Count One;

5.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not monitor and enforce compliance with the agreement to raise, fix and maintain prices for metal building insulation sold from facilities in the State of Texas, as alleged in ¶ 6(d) of Count One;

6.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not conspire to commit wire fraud, as alleged in ¶ 3 of Count Two;

7.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not act willfully for the purpose of executing and carrying out a scheme and artifice to defraud customers of money by means of false and fraudulent pretenses, as alleged in ¶ 3 of Count Two

8.	All documents or information (in whatever form) indicating or tending to establish that the Defendant did not deceive customers into believing that the prices they were charged for metal building insulation were arrived at independently and without consultation or agreement with competing suppliers, as alleged in ¶ 5 of Count Two.

The United States is unaware of any such information or evidence, but will continue to comply with obligations under Brady and its progeny, and will produce any such information should it come into the possession of the government.

9.	All documents or information (in whatever form) indicating or tending to establish that the prices charged to customers were not noncompetitive and had not been arrived at as a result of a conspiratorial agreement, as alleged in ¶ 5 of Count Two;

The United States will produce to defendant all pricing information that is relevant and within the scope of the indictment, pursuant to Rule 16. To the extent that any such Brady evidence exists, it will be contained within the Rule 16 production.

10.	All documents or information (in whatever form) indicating or tending to establish that the Defendant had telephone conversations in January 1994 with an alleged co-conspirator in Atlanta and Stone Mountain for purposes other than entering into an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(a) of Count Two;

11.	All documents or information (in whatever form) indicating or tending to establish that the Defendant had telephone conversations in February 1994 with an alleged co-conspirator in Kansas City, Missouri and with a Bay employee in Houston, Texas for purposes other than monitoring and enforcing an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(b) of Count Two;

12.	All documents or information (in whatever form) indicating or tending to establish that the Defendant sent a fax and had a telephone conversation with an alleged co-conspirator in Dallas, Texas in April 1994 for purposes other than executing and carrying out an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(c) of Count Two;

13.	All documents or information (in whatever form) indicating or tending to establish that the Defendant received a faxed draft price sheet from and had telephone conversations with an alleged co-conspirator in May 1994 for purposes other than executing and carrying out an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(d) of Count Two;

14.	All documents or information (in whatever form) indicating or tending to establish that the Defendant faxed a Bay price sheet to and had telephone conversations with a co-	conspirator in Atlanta, Georgia in May 1994 for purposes other than executing and carrying out an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(e) of Count Two;

15.	All documents or information (in whatever form) indicating or tending to establish that the Defendant faxed a Bay price sheet to and had a telephone conversation with a co- conspirator in Atlanta, Georgia in November 1994 for purposes other than executing and carrying out an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(f) of Count Two;

16.	All documents or information (in whatever form) indicating or tending to establish that the Defendant had interstate telephone conversations regarding panel insulation pricing in February and March 1995 with a co-conspirator for purposes other than executing and carrying out an agreement to raise, fix and maintain prices of metal building insulation, as alleged in ¶ 6(g) of Count Two;

The United States objects to defendant's request as irrelevant. The fact that defendant may have had communications with co-conspirators in addition to the overt acts charged in the Indictment is in no way exculpatory or relevant.

17.	All documents or information (in whatever form) indicating or tending to establish the absence of any words of agreement to conspire by the Defendant or any co-conspirators;

The United States does not understand the language "absence of any words of agreement," but will answer defendant's request should he provide a clearer request.

18.	All documents or information (in whatever form) indicating or tending to establish acts by the Defendant inconsistent with the alleged concerted behavior;

19.	All documents or information (in whatever form) indicating or tending to establish the absence of a single agreement among the Defendant and all his alleged co-conspirators;

The United States is unaware of any such information or evidence, but will continue to comply with obligations under Brady and its progeny, and will produce any such information should it come into the possession of the government.

20.	All documents or information (in whatever form) indicating or tending to establish that the Defendant or Bay Industries, Inc. engaged in price competition during the span of the conspiracies alleged in Counts One and Two;

21.	All documents or information (in whatever form) indicating or tending to establish that the prices for metal building insulation contained in Bay's price lists during the time period of the conspiracies alleged in Counts One and Two were the product of independent action and were not the product of the alleged conspiracies.

22.	All documents or information (in whatever form) indicating or tending to establish that the prices for metal building insulation actually charged by Bay Industries, Inc. during the time period of the conspiracies alleged in Counts One and Two were the product of independent action and were not the product of the alleged conspiracies.

The United States is unaware of any such information or evidence, but will continue to comply with obligations under Brady and its progeny, and will produce any such information should it come into the possession of the government.

23.	All documents or information bearing adversely on the character or reputation of any intended Government witness, including all evidence of community reputation for lack of truthfulness; and

24.	All documents or information relating to each specific instance of conduct from which it could be inferred that any intended Government witness was untruthful.

25.	All documents or information, specifically including grand jury testimony, containing statements by witnesses derogating the truthfulness of any intended Government witness.

The United States will provide to defendant any such evidence in its possession, commensurate with its obligations under Brady and its progeny.

26.	All documents or information concerning statements made by any Government agent or prosecutor to intended Government witnesses, specifically including Janne Smith, concerning restrictions or limits, including suggested restrictions or limits, on those witnesses' ability to talk to defense counsel, Bay Industries officials, or counsel for Bay Industries.

The United States denies that any such statements were made.

27.	All documents or information, including grand jury testimony, concerning Trial Attorney Mark Rosman's offer of immunity from prosecution to the Defendant on June 21, 1995 and the Defendant's rejection of this offer, specifically including:

a.	what statements Mr. Rosman and/or Ms. Karen Sharp	made to Mr. Maloof at the beginning of this conversation regarding their identity, role and position;

b.	what statements Mr. Rosman and/or Ms. Karen Sharp	made to Mr. Maloof concerning the evidence against Mr. Maloof and Mr. Maloof's culpability;

c.	what statements Mr. Rosman and/or Ms. Karen Sharp	made to Mr. Maloof concerning their office's offer of immunity from prosecution to Mr. Maloof; and

d.	all statements made by Mr. Maloof.

The United States will provide to defendant any such evidence in its possession, commensurate with its obligations under Brady, Rule 16, and the Jencks Act. To the extent that defendant has knowledge of such information, however, the United States is not obligated further to provide evidence pursuant to Brady and its progeny.

CONCLUSION

The United States is aware of its obligations and understands the rules and cases governing criminal discovery and will provide defendant with all discovery, as well as Brady and Jencks Act material, to which he is entitled. Insofar as Defendant's Motion requests information not authorized by Rule 16, Brady or the Jencks Act, his motion should be denied.

Respectfully submitted,

/s/

MARK R. ROSMAN

Attorney-in-Charge

Florida State Bar No. 0964387

U.S. Department of Justice

Antitrust Division

1601 Elm Street, Suite 4950

Dallas, Texas 75201-4717

(214) 880-9401

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the United States' Response to Defendant's Motion for Production and Disclosure and Defendant's Supplemental Motion for Production and Disclosure was sent via Federal Express this day of June, 1997, to:

J. Mark White, Esq.

White, Dunn & Booker

1200 First Alabama Bank Building

Birmingham, AL 32503

Albert C. Bowen, Esq.	Beddow, Erben & Bowen, P.A.

Second Floor - 2019 Building

2019 3rd Avenue, North

Birmingham, AL 35203

/s/

MARK R. ROSMAN

Attorney-in-Charge

Florida State Bar No. 0964387

U.S. Department of Justice

Antitrust Division

1601 Elm Street, Suite 4950

Dallas, Texas 75201-4717

(214) 880-9401

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA	)	Criminal No.: H-97-93

)

v.	)	Violations:

)

MARK ALBERT MALOOF,	)	15 U.S.C. §1

)	18 U.S.C. § 371

Defendant.	)

ORDER

Before the Court is Defendant's Motion for Production and Disclosure and Defendant's Supplemental Motion for Production and Disclosure. The government having acknowledged its continuing responsibility to provide defendant with access to all Rule 16 and Brady materials,

IT IS HEREBY ORDERED that Defendant's Motions are hereby DENIED.

DONE AND ENTERED THIS day of , 1997.

United States District Judge