with whom TALLMAN, Circuit Judge, joins, concurring in the denial of rehearing en banc:
I write to concur in the order denying rehearing en banc, see, e.g., Defenders of Wildlife v. EPA, 450 F.3d 394, 402-06 (9th Cir.2006), with the limited purpose of addressing two material misunderstandings of the holding in United States v. Fort, 472 F.3d 1106 (9th Cir.2007), expressed in Judge Wardlaw’s dissent from the order.
1. The most important clarification relates to the interaction between Fort and a prosecutor’s duties to disclose exculpatory materials pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The sole question presented here was whether inculpatory (non-Brady), non-public investigative reports made by local police and then turned over to federal prosecutors for use in a federal prosecution concerning the same acts of the same persons are or are not exempted from disclosure by Federal Rule of Criminal Procedure 16(a)(2). The majority held that such materials are exempted from disclosure by Rule 16(a)(2). The parties did not raise an issue about, and we did not rule on, the scope or application of Brady disclosure requirements. Indeed, that issue was not ripe for review in this interlocutory appeal because the deadline set for production of Brady materials in advance of trial had not yet been reached.
2. The dissent predicts dire consequences for the criminal discovery process. Dissent 2656-58. Ironically, Judge Ward-law concentrates most of her attention on a prediction that Fort will vastly expand the kinds of materials that the federal *1100government will have to produce during discovery. Dissent 2656-59. These concerns hinge on a second key misunderstanding.
The dissent draws an incorrect parallel between the discovery obligations imposed on the government by Federal Rule of Criminal Procedure 16(a)(1)(E) and the discovery exemption provided by Rule 16(a)(1). For the purposes of Rule 16(a)(1)(E), this court has held, “[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.” United States v. Bryan, 868 F.2d 1032, 1036 (9th Cir.1989) (emphasis added). The majority opinion does not deem the prosecution to have knowledge of or access to anything generated by a state or local actor that is not actually known by and in the possession of the prosecutor. In other words, unlike Bryan, Fort establishes no principle of constructive possession. Fort holds only that evidence gathered by state and local actors becomes subject to the disclosure obligation established by Rule 16 when it passes into federal possession for the purposes of a federal prosecution of the same defendants for the same acts that were initially subject to the state or local investigation; specifically, in this case, those acts are alleged to establish a pattern of racketeering activity in a prosecution under 18 U.S.C. § 1962. See United States v. Gatto, 763 F.2d 1040, 1049 (9th Cir.1985). Therefore, the opinion’s conclusion that “investigative reports created by state police officers and turned over to federal prosecutors to support a unified federal prosecution of defendants [are] reports ‘made by an ... other government agent in connection with investigating or prosecuting the case,’ ” Fort, 472 F.3d at 1118(emphasis added), is both limited in scope and consistent with the prior precedent of this court.
In short, the local police reports generated by their criminal investigations are treated the same as if they were any other report of investigation with which federal courts are more familiar, such as a DEA Form 6 or an FBI Form 302 compiled in an identical federal criminal investigation. That symmetrical treatment is the key to our analysis interpreting a federal prosecutor’s discovery obligations under Rule 16 and the Jencks Act.