regarding the significance of Mr. Dennison's potential
testimony, moreover, is further weakened by their inability to
establish that he was working at the Wheaton Post Office on
the nights when Austin and Garton are alleged to have
committed the wrongful acts described in the Information.
From the above, it is apparent that defendants-appellants
Austin and Garton were not sufficiently prejudiced by the
pre-indictment delay under discussion to warrant dismissal of
the Information. See United States v. Edwards, 577 F.2d 883,
890-91 (5th Cir. 1978); United States v. Lee, 413 F.2d 910,
913-14 (7th Cir. 1969); United States v. Moore, 378 F. Supp. 990,
991 (E.D.Pa. 1974). Magistrate Sussman's denial of their
motion to dismiss, therefore, cannot properly be considered
The defendants-appellants also argue that their convictions
must be set aside because Magistrate Sussman improperly denied
them certain pretrial discovery. Specifically, they contend
that the Magistrate erred when denying their Requests for
Production dealing with the personnel folders of those postal
employees the government intended to call as witnesses, and
for those Postal Service and Wheaton Post Office regulations,
bulletins and internal guidelines pertaining or applicable to
the parcel post handling functions performed by the
It is the defendants-appellants' position that the materials
in question are discoverable both under the Federal Rules of
Criminal Procedure*fn5 and pursuant to Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). With respect to
the personnel files of those postal employees who actually
testified as government witnesses at trial, the court agrees
with the defendants-appellants that this material was, at least
in part, properly discoverable. As it is reasonable to assume
that information contained in said folders might prove useful
to the defendants-appellants for impeachment purposes, under
Brady such information is discoverable, and
accordingly should have been ordered produced. Giglio v. United
States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104
(1972); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir.
1973). Magistrate Sussman's denial of this Production Request
of Austin and Garton, therefore, to the extent that it related
to any Brady impeachment material contained in the personnel
files of those postal employees who testified for the
government at trial, was erroneous.
The Magistrate's denial of the defendants-appellants'
Request for Production of those Postal Service and Wheaton
Post Office regulations, bulletins and internal guidelines
bearing on the parcel post handling functions they performed
also appears to have been erroneous. That said regulations,
bulletins and guidelines were relevant to the proceedings
under discussion clearly cannot be questioned. Indeed, the
principal defense raised by Austin and Garton at trial was
that their actions, rather than being willfully wrongful,
actually represented good faith compliance with the
regulations, etc. applicable to the job they were
performing.*fn6 As that is so, because these materials were
otherwise discoverable, see United States v. Leichtfuss,
331 F. Supp. 723, 738-41 (N.D.Ill. 1971); United States v. Jepson,
53 F.R.D. 289, 290-91 (E.D.Wis. 1971); United States v.
Faulkner, 53 F.R.D. 299, 300 (E.D.Wis. 1971), this court
believes that production of them should have been ordered.
This court's finding that the defendants-appellants were
erroneously denied the discovery under discussion, however,
does not necessarily require that their convictions be set
aside. To the contrary, before reversal can be considered
warranted, a determination first must be made as to whether
defendants Austin and Garton were, as a consequence of the
erroneous discovery rulings, in fact deprived of something
material to their defense. See Giglio v. United States, supra
405 U.S. at 154, 92 S.Ct. at 766. As that is so, because such a
determination cannot be made from the materials presently
before this court, the following is directed:
The present matter is ordered remanded to Magistrate
Sussman. Upon remand, those materials this court believes
should have been produced will be produced by the government
for review by the Magistrate. If after reviewing said
documents Magistrate Sussman believes that they contain
information which, if made available to the defendants, would
have proved material to the development of Austin and Garton's
defense, he is to vacate the defendants-appellants'
convictions and order a new trial. If, however, after
performing his review the Magistrate finds that defendants
Austin and Garton were not impermissibly prejudiced by the
earlier erroneous rulings, the defendants-appellants'
convictions will stand as affirmed.*fn7 See United States v.
Deutsch, supra at 58; United States v. Hand, 472 F.2d 162,
162-63 (5th Cir. 1973).
IT IS SO ORDERED.