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UNITED STATES v. KNELL

January 14, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGER L. KNELL, Defendant



The opinion of the court was delivered by: ROSZKOWSKI

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE

 Before the court is Defendant's motion for disclosure of Sentencing Guidelines information. For the reasons which follow, the court grants in part and denies in part Defendant's motion.

 BACKGROUND

 On November 13, 1990, Defendant, Roger L. Knell, was indicted in this court for counterfeiting, under 18 U.S.C. § 473 (1988). On November 16, 1990, Defendant filed a motion to compel production of Sentencing Guidelines information. In that motion Defendant asks the court to compel the United States to produce information as to the United States' position on the appropriate sentencing for Defendant. Specifically, Defendant asks for the government's view on applicable offense guidelines, the base offense level, the aggravating specific offense characteristics, the Chapter Three adjustments, the career offender and criminal livelihood provisions, and the grounds for arguing an upward or downward departure from the Sentencing guidelines. Further, Defendant asks the court to compel the United States to produce Defendant's criminal record and certain details regarding this record.

 DISCUSSION

 Guiding the court in its resolution of this motion are the following: Rule 16 of the Federal Rules of Criminal Procedure; Local Criminal Rule 2.04 a of the Rules of the United States District Court for the Northern District of Illinois; and the United States Supreme Court rulings in the key cases of United States v. Bagley, 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) and Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). None of these sources explicitly addresses the request Defendant makes in his motion. The source which the court finds relevant to Defendant's request for Sentencing Guidelines information is Federal Criminal Rule 16(a)(2). That subsection reads:

 
Information Not Subject to Disclosure.
 
Except as provided in paragraphs (A), (B), and (D) of subdivision (a)(1), 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, or of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500.

 Fed.R.Crim.P. 16(a)(2).

 The Advisory Committee notes on the 1974 amendment embodied in the above-quoted subsection state, "The only proposed change is that the 'reports, memoranda, or other internal government documents made by the attorney for the government' are included to make clear that the work product of the government attorney is protected." Fed.R.Crim.P. 16(a)(2) advisory committee's note. The court finds that the Sentencing Guidelines information which Defendant requests falls within the category of work product which, under Federal Rule 16(a)(2), the court cannot compel the government to produce. The government's assessment of the appropriate way to calculate Defendant's range of sentencing is a matter of legal conclusion and strategy. The court cannot require the government to disclose its thought processes or legal theories, whether or not they have been reduced yet to written form. Therefore, the court denies Defendant's request for discovery in paragraphs 1, 2, 3, 4, 5, 7, and 8 of Defendant's motion to compel.

 Paragraph 6 of Defendant's motion to compel requests: "Defendant's prior criminal record, including all judgments of conviction, sentences imposed thereon, all release dates from all committed sentences, and expiration dates of all terms of probation and parole". Defendant's motion to compel, filed Nov. 13, 1990. Rule 16(a)(1)(B) states:

 
Defendant's Prior Record. Upon request of the defendant, the government shall furnish to the defendant such copy of the defendant's prior criminal record, if any, as is within the possession, custody, or control of the government, the existence of which is known, or by the exercise ...

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