The opinion of the court was delivered by: GESELL
GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE
Having heard the parties, the Court has before it the March 14, 1989 Motion (# 76) of Defendant Oliver L. North for an Order Compelling Production of Brady Material. Defendant requests that the Court enter an Order compelling production of Brady material for those persons on the government's original witness list who have been dropped since the dismissal of Counts One and Two. The government understands that it has a continuing obligation to provide Brady material forthwith, but contends it is unaware of any in the Jencks material from witnesses who have been withdrawn.
The dispute between the parties once again centers on what falls within the ambit of Brady. Under the circumstances of this case, the theoretical availability of each witness to the defense will not satisfy Brady requirements. The Court has not yet ruled on what its jury instructions will be or otherwise specified what is exculpatory as a matter of law. However, defendant is entitled to have any material
(a) from grand jury statements, FBI 302's, or other non-public Jencks material
(b) that has not been provided to the defendant through discovery
(c) for any withdrawn witness
(d) who was a member of the cabinet, a chief deputy of a cabinet member or a superior of North in his chain of command at the NSC
(e) showing evidence of orders, directions, requests or encouragement to conceal activities of North or other executive branch officials
(f) with respect to private fund-raising on behalf of the Contras, or tactical or other assistance in continuing the supply of military goods to the Contras
(g) while a Boland Amendment was in effect.
ORDER RE RECIPROCAL DISCOVERY - March 17, 1989
The Government's Supplemental Memorandum in support of its Motion for Reciprocal Discovery Under Rule 16 of the Federal Rules of Criminal Procedure, following the Court's ruling of January 23 on its motion, is denied. The defendant's Response, dated March 16, 1989, shows an understanding ...