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Criminal No. 97-0166 (RCL)









                The United States, by and through the Office of Independent Counsel, respectfully submits this response to Defendant Blackley’s Supplemental Memorandum In Support of Its Motion to Compel Production of Brady Material.



                In his Supplemental Memorandum, defendant accuses the government of intentionally withholding unspecified exculpatory evidence in violation of the Brady doctrine.  Attempting to support this baseless accusation, defendant provides but two “examples”: (1) the government did not inform defendant that Mr. J. Michael Kelly may provide favorable testimony and (2) the government has yet to provide defendant with copies of reports prepared by Offices of Inspector General.

                These examples, and the conclusion defendant draws from them -- that the government is intentionally withholding vast amounts of exculpatory evidence -- are completely devoid of merit.  Defendant has long had full knowledge of Mr. Kelly’s existence and of the favorable testimony he may provide.   Furthermore, as is evidenced by Blackley’s concession in his repetitious assertions, Mr. Kelly has been available to the defense for interview.

                As to the reports of the Offices of Inspector General, which the defendant shamelessly postulates as “Brady” material, these are in fact the opinions and analysis of reviewing officials. Under no circumstance can such reports be considered “material exculpatory evidence.”   Moreover, at the status conference of October 14, 1997, this Court ordered an in camera production of these reports, which the government complied with on October 17, 1997.

                In sum, despite defendant’s repeated references in motions and oral argument to Mr. Kelly and the OIG reports, and his attempt to elevate these matters into a Brady violation, the United States has complied, and will continue to comply, with its disclosure obligations under Brady.



                A.             DEFENDANT MISCONSTRUES THE GOVERNMENT’S BRADY OBLIGATIONS                                                                                     


                Defendant’s Supplemental Memorandum is replete with pure speculation, wholly-unsupported assertions and improper analysis of law.  Much like his original Brady motion, defendant’s supplemental memorandum demonstrates fundamental misconceptions regarding prosecutors’ disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The government has addressed these issues at length in its Opposition and Incorporated Memorandum to Defendant’s Motion to Compel Production of Brady Material (“First Opposition”) filed on October 17, 1997, but as they are dispositive of defendant’s supplemental memorandum we will briefly restate these principles here.

                It bears repeating that “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), which requires the government only to disclose material exculpatory evidence unknown to the defendant.  See generally United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976) (Brady rule concerns only “information which [is] known to the prosecution but unknown to the defense.”).

                Secondly, only evidence that is material to guilt or punishment falls within the scope of Brady.  See Brady, 373 U.S. at 87, 83 S.Ct. at 1197.  Brady does not require a prosecutor to disclose evidence which would support a claim of lack of jurisdiction or of selective prosecution.  Cf. United States v. Armstrong, --- U.S. ---, 116 S.Ct. 1480, 1488-89 (1996) (to compel discovery in furtherance of a selective prosecution claim, defendant must make a credible showing of different treatment of similarly situated persons).

                Third, a prosecutor must provide a defendant with material exculpatory evidence only when such evidence in fact exists; a defendant’s speculation that exculpatory evidence exists places no Brady burden on the government. See United States v. LaFayette, 983 F.2d 1102, 1106-07 (D.C. Cir. 1993) (speculation that exculpatory evidence may exist is insufficient to impose Brady obligation).

                Lastly, where a defendant has knowledge of the existence of exculpatory evidence and the ability to acquire such evidence through reasonable means, Brady imposes no obligation upon the government to provide the defendant with that evidence.   See, e.g., United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988) (Brady does not require prosecutor 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); see also United States v. Derr, 990 F.2d 1330, 1335 (D.C. Cir. 1993) (no violation of Brady where government failed to disclose allegedly exculpatory evidence acquired as the result of arrest of second individual where defendant had knowledge of that arrest before his trial).


                Despite defendant’s hyperbolic allegations of intentional government misconduct, the United States has strictly adhered to the mandates of Brady v. Maryland.  The United States has provided the defendant with notice of all material exculpatory evidence as to which the defendant may have no knowledge.[1]

                Defendant asserts that the information provided by the United States is underinclusive as evidenced solely by his having received so-called exculpatory information from Mr. J. Michael Kelly whose name did not appear on the government’s Brady letter.  However, this argument misses the mark because the government was under no Brady obligation to inform defendant that Mr. Kelly potentially had exculpatory information as defendant had full knowledge of this fact.  Blackley and Mr. Kelly had extensive dealings together at the USDA -- dealings specifically related to Blackley’s handling of defendant’s “conflicts of interest” when he entered the USDA.  It is these conflicts of interest which, in large part, underlie the counts charged in the indictment.

                Mr. Krantz’s request for a misdescribed letter prepared by Mr. Kelly for defendant’s signature confirms defendant’s knowledge that Mr. Kelly was involved in these matters. (See Letter from Krantz to Fahey dated 9/29/97 attached as Exhibit 1).  Despite the inaccurate description by defense counsel, the government located and produced to defendant two letters on October 10, 1997. (See Letter from Fahey to Krantz dated 10/10/97 attached as Exhibit 2).[2]   These letters purported to be “recusal” letters, that is, correspondence by defendant attempting to distance himself from his clients outside the USDA. Because defendant knew Mr. Kelly was involved in these matters and might possess exculpatory information, the United States was under no Brady obligation to superfluously inform defendant of this fact.  See United States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990) (defendant is not entitled to the benefit of Brady doctrine where he has knowledge of individual’s involvement in matters at issue such that reasonable defendant would interview that individual to determine if he could supply exculpatory evidence); cf. Agurs, 427 U.S. at 103, 96 S.Ct. at 2397 (Brady only requires disclosure of “information which [is] known to the prosecution but unknown to the defense.”).

               Defendant next makes the specious claim that the government has “delayed” in satisfying its Brady obligation, and thus has prejudiced him.   Defendant’s claims of delay by the government ring hollow.  The United States has long been prepared to deliver to defendant all Brady material in accordance with its prior agreement.  However, while the motion to disqualify defendant’s prior attorneys was pending, the United States felt it to be improper to produce further discovery materials until defendant obtained conflict-free counsel.  Then, despite this Court’s disqualification of his attorneys on August 21, 1997, Blackley appeared three weeks later at the September 10, 1997 status conference with the same disqualified counsel.  After being chastised by this Court, Blackley finally obtained conflict-free representation on September 22, 1997.  Thereafter, the government unilaterally and in response to specific defense requests made additional discovery available.  (See generally United States’ First Opposition).  Thus, any blame for the delay in the production of discovery materials can be laid nowhere but with the defendant.

                Defendant also complains that it lacks the time to interview the 24 witnesses identified by the United States as potential Brady witnesses to determine the nature and extent of their exculpatory statements, but that this problem could be cured by the government by providing the defense with the underlying statements and grand jury testimony of these witnesses.  Supp. Mem. at 3.  With this argument, defendant apparently now concedes that he is not entitled to the underlying statements of these witnesses as of right.[3]   However, the position now taken by defendant -- that he is entitled to these underlying statements because of the time constraints he now faces -- is equally unavailing.

                Defendant’s argument ignores the well-established law of this circuit that the Brady rule does not mandate that a defendant be provided a fixed amount of time prior to trial to prudently and exhaustively develop information produced by the government pursuant to Brady.  See United States v. Tarantino, 846 F.2d 1384, 1416 (D.C. Cir. 1988) (government producing Brady material during trial as part of Jencks production did not violate Brady rule 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).  This circuit has repeatedly denied claims of error where the government produced exculpatory evidence pursuant to Brady immediately before or during trial.  See United States v. Pollack, 534 F.2d 964, 973-74 (D.C. Cir. 1976) (no Brady violation where Brady material produced three days and one day before trial); Tarantino, 846 F.2d at 1416 (no Brady violation where Brady material produced during trial after some government witnesses had already testified).  In the present matter, the government provided the defense with notice of exculpatory witnesses on October 8, 1997, three weeks prior to trial.

                Several factors support the position that three weeks is more than ample time for the defense to effectively use this favorable material in the preparation and presentation of its case.  First and foremost, the United States provided the defense with the identity of the witnesses as well as a summary of exculpatory testimony that witness may give.  This focus having been supplied, interviews of the identified individuals could be completed in a fraction of the time of a typical interview as defense counsel need not waste time searching for a witness’ import, but rather develop the exculpatory areas provided by the government.

                Secondly, given the vast resources of Piper & Marbury, L.L.P., a three week period should not impose a significant time restriction upon the interviewing of 24 witnesses.  The firm, employing over 320 attorneys and numerous investigators and paralegals in six offices as of publication of the firm’s 1997 West Law Firm Profile and armed with the information provided by the government, has the resources to develop the potentially exculpatory testimony of these witnesses, in person and by telephone, well in advance of trial.

                Lastly, as most, if not all, of the identified witnesses are individuals who have had some contact with defendant, he should be capable of providing additional screening assistance.  Given defendant’s knowledge of these individuals and the events relating to the indicted matters in which they have been involved, defendant in particular possesses the capacity to recognize the importance of each witness and can likely inform the decision as to which witnesses in fact must be interviewed.


                Defendant again repeats his complaints that the government supposedly violated Brady by failing to produce reports created by Offices of Inspector General as a result of their investigation into whether Blackley was involved in conflicts of interest.  However, a defendant has no right to these reports as they are not themselves “material exculpatory evidence” relevant to a determination of Blackley’s guilt or innocence for the crimes with which he has been charged.  See United States v. NYNEX Corp., 781 F.Supp. 19, 25-26 (D.D.C. 1991) (internal government documents expressing government attorney’s opinion as to strength or weakness of defendant’s case not Brady material as not relevant to guilt or punishment).  These reports are the work product of a separate investigative agency and contain analysis based upon evidence far less complete than that which is now in the hands of the Office of Independent Counsel.  Thus, even assuming arguendo that the reports ultimately suggested that no administrative or criminal action be filed against defendant, such conclusions are irrelevant to a finding of guilt or innocence on the current charges brought by the Office of Independent Counsel.[4]  Id.  The government has, however, already reviewed the reports at issue, as well as the corresponding witness statements, and has produced to defendant summaries of exculpatory witness testimony, as well as documents, favorable to him.   This is all Brady requires.  See id. at 26 (although internal government documents themselves are not Brady material, the government should disclose exculpatory facts contained in those documents).

                Defendant’s arguments repeatedly make clear, however, that the defendant seeks these reports not to support a claim of innocence, but rather to support claims of lack of jurisdiction and/or selective prosecution.  Supp. Mem. at 5.  As explained in greater length in the United States’ First Opposition, evidence pertinent to such claims does not fall within the scope of the Brady rule.  Rather, the government must produce such materials only upon a credible showing of different treatment of similarly situated persons.  United States v. Armstrong, --- U.S. ---, 116 S.Ct. 1480, 1488-89 (1996).[5]




                For the foregoing reasons, and those cited in the United States’ Opposition and Incorporated Memorandum to Defendant’s Motion to Compel Production of Brady Material filed October 17, 1997, defendant Blackley’s Motion to Compel Production of Brady Material should be denied.

Date: October 21, 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]Defendant’s assertion in his Reply to the United States’ Opposition to His Motion to Compel Production of Brady Material (filed October 20, 1997) that the government believes that it need not produce Brady/Giglio material unless it is specifically requested by Mr. Blackley (Reply at 1, 3), in effect, knocks down a straw man.  The government’s position is not that it need produce Brady material only upon specific request, but rather, that the government is under no Brady obligation to provide defendant with the documents he seeks because they do not constitute material exculpatory evidence unknown to the defendant.  Defendant, in his reply, again fails to establish otherwise.

[2]Defendant’s Supplemental Memorandum implies a sinister intent on the part of the United States to keep these letters from defendant, producing them only after realizing that the plot had been foiled by Mr. Kelly’s production of the letters to the defense.  Defendant’s Supp. Mem. In Support of Its Mot. To Compel Production of Brady Material (“Supp. Mem.”) at 3, 4. The United States does not believe that a response to this allegation is necessary but would only point out that on October 1, 1997, the government informed Mr. Krantz that it would search for the letter as described (inaccurately, as it turned out) by defendant and supply it once located. (See Letter from Fahey to Krantz dated 10/1/97 attached as Exhibit 3).

[3]The United States addressed prosecutors’ lack of obligation under Brady to provide a defendant with the underlying statements and grand jury transcripts of witnesses at length in its First Opposition filed October 17, 1997 and will not revisit that issue here.

[4]Furthermore, defendant is not entitled to an evidentiary hearing to attempt to develop an “exculpatory nature” to these reports.  United States v. Franicevich, 471 F.2d 427 (5th Cir. 1973), cited by defendant, noted that the district court judge utilized such a hearing rather than reviewing the reports himself in camera.  Id. at 429.  As this Court has ordered an in camera review of the OIG reports at issue, an evidentiary hearing is unnecessary. 

[5]Blackley also asserts that the government has inaccurately summarized “Brady/Giglio” material.  (Supp. Mem. at 1, 2)  But he submits no support by way of example or declaration for this bald, inflammatory claim.  At a bare minimum, defendant should provide some substantiation for his wild assertions.