APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA -- PITTSBURGH.
Hunter, Higginbotham, Circuit Judges and Giles,*fn* District Judge.
1. In these consolidated appeals the government asks us to review a district court order excluding certain evidence in two related criminal prosecutions. Relying on Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the district court held that the government was required to turn over to appellees prior to trial the names and addresses of any government witnesses who had been offered immunity and/or leniency for their cooperation, as well as the substance of any promises made to those witnesses by the government. The government, citing evidence of threats to the witnesses' lives, respectfully refused to turn over that information before trial. As a result the district court held that those witnesses would be barred from testifying. The government appealed, contending that the district court erred in requiring them to produce the information under the terms of its order. We hold that, based on the unique circumstances of this case, it was an abuse of discretion for the district court to require disclosure before trial.
2. Appellees were named in two related indictments filed on February 2, 1983, in the United States District Court for the Western District of Pennsylvania. The indictment at 83-10 charged a conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1976), and two substantive counts in violation of 21 U.S.C. § 843(b) (1976). The indictment at 83-11 charged a conspiracy to distribute and possess with the intent to distribute heroin in violation of 21 U.S.C. § 846 (1976), and thirty-three substantive counts in violation of 21 U.S.C. §§ 841(a)(1), 843(b) (1976) and 18 U.S.C. § 2 (1976). At arraignment all appellees entered pleas of not guilty.*fn1
3. Appellees filed a number of individual pretrial motions including motions containing requests for disclosure of certain evidence by the government.*fn2 The district court ruled on those motions at a hearing on April 29, 1983. Inter alia, the district court denied appellees' request for the names and addresses of any and all witnesses and potential witnesses that the government intended to call at trial. Transcript of April 29, 1983, at 7-8. It also denied appellees' request for early disclosure of all Jencks Act material, see 18 U.S.C. § 3500 (1976). Transcript of April 29, 1983, at 24. Those rulings are not before us in these appeals.
4. The district court granted appellees' request for the names and addresses of all intended government witnesses who had been offered immunity and/or leniency for their cooperation, as well as the substance of any grants of immunity, plea bargains, promises, and preferential treatment offered to those witnesses by the government. Transcript of April 29, 1983, at 8. The district court ruled that information had to be disclosed under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and United States v. Gengler, 574 F.2d 730 (3d Cir. 1978). Transcript of April 29, 1983, at 9. The government objected to the court's ruling on the grounds that, assuming any witnesses had entered into any agreements, disclosing their identity and the substance of their agreements would put them in serious physical jeopardy. It requested that the court "delay any disclosure of those matters until such time as we're nearing the point where the witnesses could be called to vitiate any potential hazards that may result." Transcript of April 29, 1983, at 9-10. The district court denied the government's request and ordered the information turned over immediately. Id.
5. On May 2, 1983, the government filed a motion for reconsideration and in the alternative for a stay of the district court's April 29 order. On May 2, 1983, the district court entered an order stating:
IT IS HEREBY ORDERED that [the government's] Motion is GRANTED insofar as reconsideration is sought, but DENIED insofar as relief is sought. This Court's Order of April 29, 1983, directing the government to disclose immediately the names and addresses of those witnesses with whom the government has entered into plea bargains or made promises of preferential treatment or given grants of immunity and whom the government intends to call at trial, is hereby AFFIRMED. The government's request for a stay is hereby DENIED.
United States v. Funn, Nos. 83-10, 83-11 (W.D. Pa. May 2, 1983) (emphasis in original).
6. On May 4, 1983, the government filed in our court a motion to stay the district court's April 29 order and a petition for a writ of mandamus directing the district court to vacate that order. The motion to stay was granted until the petition for mandamus could be heard before a full panel of the court. On May 12, 1983, a panel heard argument and issued following order:
After consideration of the contentions of the parties and oral argument, it is ORDERED that the ...