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Criminal No. 97-0166 (RCL)









                The United States, by and through the Office of Independent Counsel, respectfully requests that defendant’s Motion to Compel Production of Brady Material be denied.  The United States has complied, and continues to comply, with its disclosure obligations under Brady.   Defendant, however, requests production of materials outside the scope of Brady.  As the United States is under no obligation to produce such materials to the defendant, his request should be denied.


                The United States has acted in accordance with its pre-trial discovery obligations.  On May 5, 1997, the United States produced to defendant twelve boxes of documents (numbering in the many thousands of pages) pursuant to Federal Rule of Criminal Procedure 16.  (Letter from Fahey to Jacobovitz of 5/5/97, attached as Exhibit 1).  Since that date, the United States has continued to produce to defendant materials pursuant to Rule 16 and Brady.  The United States produced additional Rule 16 materials to the defendant, including a handwriting analysis report and additional statements of Blackley on September 18, 1997, (letter from Fahey to Blackley of 9/18/97, attached as Exhibit 2), and a grand jury transcript of Blackley as well as checks and memos relating to the charges on October 1, 1997, (Letter from Fahey to Krantz of 10/1/97, attached as Exhibit 3).  On October 8, 1997, the United States produced to the defendant a specific listing of exculpatory information pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1964).  (Letter from Fahey to Krantz of 10/8/97, attached as Exhibit 4).  On October 10, 1997, in response to a specific request from defendant, the United States provided additional Rule 16 materials including two letters about which defendant still complains.[1]  (Letter from Fahey to Krantz of 10/10/97, attached as Exhibit 5).  On October 15, 1997, the United States acknowledged its continuing obligation to search for and produce Brady material and invited defendant to specify any additional materials which he is entitled to.  (Letter from Fahey to Krantz of 10/15/97, attached as Exhibit 6).


                Defendant’s motion demonstrates a fundamental misconception of the government’s obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).  Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation.”  United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978).  While the prosecution has an affirmative duty to disclose material evidence favorable to a criminal defendant,  Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, including evidence that could be used to impeach a witness, Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766 (1972), this obligation does not require the prosecutor to disclose any remotely relevant evidence that might impact a jury’s verdict.  United States v. Agurs, 427 U.S. 97, 108-09, 96 S.Ct. 2392, 2400 (1976).  Rather, the prosecution must provide such “evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.”  United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3380 (1985).  Importantly, where a defendant already possesses knowledge of the favorable evidence, Brady imposes absolutely no disclosure obligation upon the government.  See Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565 (1995) (a prosecutor’s obligation under Brady “is triggered by the potential impact of favorable but undisclosed evidence.”) (emphasis added).

                In his Motion to Compel Production, defendant asserts that Brady requires the government to produce several categories of documents.  Blackley’s requests, however, which are addressed in the order presented, ultimately identify documents that are not “material evidence favorable” to him and others that are not “undisclosed.”  Thus, these requests should be denied.

                1.             Inspector General Reports Concerning Mr. Blackley

                Blackley seeks to compel production of reports prepared by the Department of Agriculture Office of Inspector General and the Agency for International Development Office of Inspector General during their investigations into Blackley’s financial disclosure filings.  As an initial matter, given the prosecutorial discretion of government agencies, the decision of another agency not to pursue criminal actions against an individual are irrelevant to a determination of innocence or guilt for those crimes.

                Secondly, the United States reviewed the reports at issue, as well as the corresponding witness statements, and has produced to the defendant summaries of exculpatory witness testimony, as well as documents, favorable to him.

                Finally, as this Court ordered at the October 14, 1997 hearing, the government is producing in camera, ex parte concurrently herewith the entirety of the reports sought by defendant.  Absent a decision by this Court that the work product conclusions and analyses of the Inspectors General reviewed contain Brady material, defendant’s request for the Inspector General reports and related witness statements in toto should be denied.

                2.             Letter from Mr. Blackley to Farm Operations

                Upon a request from defendant, and without the necessity of this motion, the United States produced this letter to Blackley.  (See Exhibit 5).  Thus, this issue is moot.

                3.             Relevant Government Policies Concerning Prosecution

                The United States is under no obligation to seek out non-binding government policies, if they exist as described by defendant, to produce because (1) they can not be exculpatory in this case and (2) they are equally accessible to the defense.  Such policies do not fall within the purview of Brady as they are not “evidence [] material either to guilt or to punishment.”  See Brady, 373 U.S. at 87, 83 S.Ct. at 1197.  They are simply statements issued without consideration of any facts particular to this prosecution or this defendant.  See, e.g., United States Attorneys Manual at 1 (1988 ed.) (“The Manual provides only internal Department of Justice guidance.  It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.  Nor are any limitations hereby placed on otherwise lawful litigative prerogatives of the Department of Justice.”).  Thus, such information could not assist the trier-of-fact in making a determination of Blackley’s guilt.

                Additionally, defendant is in the same position as is the Office of Independent Counsel to obtain these materials.  These are not, as in United States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992), cited by defendant, files that have been acquired by a branch of the government in furtherance of a specific investigation and are unavailable to the public upon request.  The government is not obligated to act as an agent of the defendant and assist in searching for and collecting documents readily obtainable by the defendant.  See United States v. Dijan, 37 F.3d 398, 402 (4th Cir. 1994) (no Brady violation in failure to disclose Internal Revenue Service collection procedures because manual available to public).  This Court should not allow the defendant to manipulate Brady beyond its intended purpose.

                Moreover, defendant requests discovery of these materials because he believes they may contain evidence which would support a selective prosecution claim.  Memorandum of Points and Authorities in Support of Motion to Compel Production of Brady Material (“Mem.”) at 7.  But it is well settled law that to compel discovery in furtherance of a selective prosecution claim, a defendant must make a colorable showing of each prong of the defense.  United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983).  Here, defendant’s request provides absolutely no basis that (1) he was singled out for prosecution from among others similarly situated or (2) that his prosecution was improperly motivated, i.e., based on race, religion or another arbitrary classification.  See id.  Blackley’s request for these policy statements should be denied.

                4.             Correspondence Relating to Mr. Blackley

                Blackley requests this Court to compel the United States “to produce all correspondence relating to any investigations of possible violations of the Ethics in Government Act, Title I, and conflicts of interest being conducted of Mr. Blackley . . . [because] there is good reason to believe that such correspondence contains information favorable to Mr. Blackley . . . and may likely contain information relevant to the impeachment of witnesses for the OIC . . .”  Mem. at 7-8 (emphasis added).  This argument misconstrues the nature of Brady.

                Again, the government must produce to a defendant only material exculpatory information unknown to the defendant.  It need not produce all material a defendant speculates may contain exculpatory information.  See United States v. LaFayette, 983 F.2d 1102, 1106-07 (D.C. Cir. 1993) (no Brady violation in failure to disclose personnel files of police officers who participated in investigation where defendant merely speculated that files might contain Brady material).  Defendant has advanced no support for his assertion that the correspondence requested may contain exculpatory information or information relevant to the impeachment of government witnesses.

                5.             Letter from the OIC to Mr. Blackley’s Prior Counsel

                At defendant’s request, and without the necessity of this motion, the United States produced this letter to Blackley.  (See Exhibit 5).  Thus, this issue is moot.

                6.             Grand Jury Testimony and Interview Notes and Memoranda of Sharon Blackley, Ronald Blackley, Jr. and Other Witnesses Identified by the OIC.


                The United States has informed Blackley of the names of those witnesses who may not have been known to defendant and who have made statements that are possibly exculpatory, as well as a synopsis of that favorable testimony.  (See Exhibit 4).  Blackley now seeks discovery of these witnesses’ grand jury testimony as well as all interview notes and memoranda.

                As repeatedly recognized by the Supreme Court, the Brady rule concerns only “information which [is] known to the prosecution but unknown to the defense.”  Agurs, 427 U.S. at 103, 96 S.Ct. at 2397; see also Kyles, 514 U.S. at 433, 115 S.Ct. at 1565 (a prosecutor’s obligation under Brady “is triggered by the potential impact of favorable but undisclosed evidence.”) (emphasis added).  Thus, where the defendant has knowledge of the exculpatory information, Brady imposes no disclosure obligation on the prosecutor.[2]

                Lower courts have consistently held under this rationale that where a defendant has knowledge of the existence of exculpatory information coupled with the ability to acquire such information through reasonable means, the government is under no Brady obligation to disclose that evidence.  See United States v. Hicks, 848 F.2d 1, 4 (1st Cir. 1988) (government under no Brady burden to provide defense with grand jury transcript of individual where defendant was aware of individual and had access to interview the individual to discover exculpatory information); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (government under no duty to turn over grand jury testimony where the defendant knows of the witness’ identity; that the witness might have testified before the grand jury; and that the witness’ statements might have supported the defendant’s defense); United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (government under no duty to turn over exculpatory statements of witness where the information is available to the defendant and lies in a source where a reasonable defendant would have looked);  United States v. Campagnuolo, 592 F.2d 852, 860-61 (5th Cir. 1979) (no Brady violation where government turned over grand jury transcripts of witness containing exculpatory information day before trial as part of Jencks production where defendant knew who witness was and that he might give exculpatory information); United States v. McMahon, 715 F.2d 498, 501 (11th Cir. 1983) (“[T]he government is not obliged under Brady to furnish a defendant with information which he already has or, with any reasonable diligence, he can obtain himself.”) quoting United States v. Prior, 546 F.2d 1254, 1259 (5th Cir. 1977).

                In United States v. Grossman, the Second Circuit addressed the precise issue defendant now presents before this Court -- whether Brady obligates the government to provide a defendant with a grand jury transcript where the government has already advised the defendant that the witness might have given the grand jury exculpatory evidence.  That court correctly held that the defendant is not entitled to grand jury transcripts, reasoning:


. . . Brady does not require the government to turn over exculpatory evidence if the defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory evidence.  The rationale for our rule is that Brady is designed to assure that the defendant will not be denied access to exculpatory evidence only known to the Government.  Accordingly, the government had a duty to disclose only information which had been known to the prosecution but unknown to the defense.  The government has no duty actually to turn over grand jury testimony where the defendant knows of the witness’ identity; that the witness might have testified before the grand jury; and that the witness’ statement might have supported the defendant’s defense.



Id., 843 F.2d at 85 (second emphasis added) (citations and quotations omitted); see also Hicks, 848 F.2d at 4.

                This reasoning has likewise been adopted by this Circuit.   In United States v. Derr, 990 F.2d 1330 (D.C. Cir. 1993), the defendant asserted that the prosecution violated Brady by failing to apprise him of exculpatory evidence collected in an arrest of another individual.  The D.C. Court of Appeals rejected the argument in light of the defendant’s knowledge of the arrest, noting that “because Brady only requires disclosure of information unknown to the defendant . . . Derr’s knowledge at trial of the [other] arrests combined with his failure to seek any information about the fruits of the accompanying search necessarily defeat this Brady claim.”  Id. at 1335.

                Xydas v. United States, 445 F.2d 660 (D.C. Cir. 1970), cited by defendant, is not to the contrary.  In dicta, that court noted that a defendant is entitled to exculpatory information contained in witness’ grand jury transcripts.  Id. at 666 n. 16.  But the court did not require the government to produce the actual grand jury transcripts to a defendant as requested by Blackley.  Id.

                Here, as required by Grossman, supra, the United States has provided Blackley with (1) the names of individuals who have provided information exculpatory to Blackley; (2) a synopsis of that exculpatory testimony; and (3) the forum in which such testimony was provided.  With this information, the defendant may through reasonable efforts further investigate and develop this exculpatory information.  The United States has fulfilled its Brady obligation.  Defendant’s additional request for the grand jury testimony for these witnesses should be denied.[3]




                For the foregoing reasons, defendant Blackley’s Motion to Compel Production of Brady Material should be denied.

Date: October 17, 1997                                            Respectfully submitted,


                                                                                                OFFICE OF INDEPENDENT COUNSEL

                                                                                                In Re Alphonso Michael (Mike) Espy



                                                                                                William F. Fahey, Counsellor to

                                                                                                   the Independent Counsel

                                                                                                Joseph P. Guichet, Associate

                                                                                                   Independent Counsel

                                                                                                103 Oronoco Street, Suite 200

                                                                                                P.O. Box 26356

                                                                                                Alexandria, Virginia  22314

                                                                                                Tel:  (703) 706-0010

                                                                                                Fax:  (703) 706-0050



[1]Indeed, much of defendant’s complaint seems to be that, although he received thousands of pages of documents months ago, two additional documents were produced approximately three weeks before trial -- immediately after defendant specifically identified them to the government.  This cannot be a so-called Brady violation because defendant obviously will have the ability to use these two documents at trial if they are admitted by the Court.  See, e.g., United States v. Tarantino, 846 F.2d 1384, 1416 (D.C. Cir. 1988) (no Brady violation where government produced Brady material during trial as part of Jencks production because defense had opportunity to use such material during trial even though main government witness, who could have been impeached with this material, had already testified by time of production).

[2]A classic example of a situation where Blackley misconstrues Brady is his demand for discovery pertaining to his wife, Sharron Blackley, and his son, Ronald Blackley, Jr., persons obviously known to and available to him.

[3]Blackley’s request for the agents’ notes of interviews of these individuals should be denied under this same analysis.  Furthermore, the rough notes of agents are generally undiscoverable even under Jencks unless they “could properly be called the witnesses’ own words” rather than those of the agent. United States v. Donato, 99 F.3d 426, 433 (D.C. Cir. 1997)