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Criminal No. 97-0166 (RCL)









                The United States, by and through the Office of Independent Counsel, respectfully submits that defendant's post-hearing Supplemental Memorandum regarding Brady material offers no persuasive authority supporting the position he has advanced before this Court -- that the Brady rule requires prosecutors prior to trial to provide defendants with Jencks material, such as grand jury transcripts and/or interview summaries of witnesses, where that witness' testimony may be exculpatory to the defendant.

                In his successive Brady motions and at the October 29, 1997 hearing before this Court, defendant, without citation to any authority, repeatedly has asserted that the government has acted improperly by failing to provide him with grand jury transcripts of witnesses whose testimony may be exculpatory to defendant.  Conversely, the United States has cited numerous cases which hold that Brady imposes no such burden upon the government.  This Court during oral argument questioned defense counsel closely about the clear difference between the obligations imposed by Brady in contrast with those imposed by the Jencks Act.  Defendant has now filed his Supplemental Memorandum in response to this Court’s request for controlling authority.

                Defendant's Supplemental Memorandum cites numerous cases relied upon in his earlier motions, all of which have been previously analyzed and none of which support his position.  The new cases defendant cites are equally unpersuasive.  Defendant now cites United States v. McVeigh, 923 F.Supp. 1310, 1315 (D. Colo. 1996), United States v. Poindexter, 727 F.Supp. 1470, 1485 (D.D.C. 1989), United States v. Byrne, 83 F.3d 984 (8th Cir. 1996),[1]               and United States v. Starusko, 729 F.2d 256, 265 (3d Cir. 1984), for the proposition that the Brady  doctrine somehow requires the early production of Jencks material.  Def.'s Supp. Mem. Supp. of Mot. to Compel Prod. of Brady Material ("Supp. Mem") at 1-2.[2]  None of these cases assists defendant here.

                The two appellate decisions now cited by defendant are not on point.  United States v. Starusko involved a violation by the prosecution of a court order to turn over certain FBI reports.  The trial court then precluded the government from calling the witness whose reports were not timely produced.  In reversing the lower court, the Third Circuit held “under Brady, the defendant [must be] apprised of the existence of exculpatory material,” 729 F.2d at 265, and admonished the prosecution for violating the court order.

                Here, of course, the government has produced exhausted Rule 16 documentary discovery which may well contain exculpatory information.  Additionally, the government produced, without court order or a request from defendant, an itemized listing of “Brady” witnesses.  This list was produced on October 8, 1997 - five weeks before the November 17, 1997 trial date.

                Defendant's Supplemental Memorandum also cites United States v. Byrne, 83 F.3d 984 (8th Cir. 1996), as having addressed the issue of a "requirement" under Brady to provide defendant pre-trial with grand jury transcripts and witness statements of government witnesses. Defendant implies that the transcripts at issue in Byrne did not have to be produced only because the information therein was not exculpatory.  Supp. Mem. at 2.  However, nothing in the Byrne opinion addresses the issue of whether the defendant would have been entitled to the actual grand jury transcripts pretrial even if the information contained therein had been exculpatory.  Thus, Byrne is simply irrelevant to the issue now before this Court.[3]

                Defendant also cites two district court cases in his attempt to have the Brady rule supplant the Jencks Act.  One case, United States v. McVeigh, is a capital murder case arising from the Oklahoma City bombing.  There, the trial court ordered the early production of witness statements.  That ruling was not contested by the government on appeal.

                Similarly, in the extraordinarily complex case of United States v. Poindexter, which arose from the Iran-Contra Independent Counsel investigation, the trial court ordered the early production of exculpatory evidence contained in Jencks materials.  727 F. Supp. at 1485.  Again, that order was not contested on appeal.

                Neither McVeigh or Poindexter are binding on this Court.  And, given the unique nature of those two cases, neither provides any persuasive authority to this Court in dealing with a straightforward three count false statement case such as this one.  Certainly none of defendant’s “new” cases overturn the settled law concerning the timing of Jencks Act and Brady productions.


                Every appellate court decision located by our research that has addressed the precise issue now before the Court concluded that when statements by government witness’ contain some exculpatory information, the timing of disclosure of this information is governed by the Jencks Act.  See United States v. Scott, 524 F.2d 465, 467-68 (5th Cir. 1975) (where exculpatory information contained in statements of government witnesses, Jencks Act controls); United States v. Presser, 844 F.2d 1275 (6th Cir. 1988) (deciding and explaining purpose of rule that Jencks Act overrides Brady with respect to timing of disclosure); United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979) ("When the defense seeks evidence which qualifies as both Jencks Act and Brady material, the Jencks Act standards control.").  Additionally, the District of Columbia, Second and Third Circuits have strongly implied such a rule.  See United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir. 1976) (while discussing timing of disclosure of government witness' statements that contained some exculpatory information stating "[a]lthough the government could have withheld [the witness' statement] until after the witness had taken the stand in this case, 18 U.S.C. 3500, the prosecutor allowed appellants to examine [his] statements nearly two weeks prior to that time.") (emphasis added); United States v. Regan, 503 F.2d 1, 3 n.1 (2d Cir. 1974) (government not required to produce before trial statement of government witness even though statement contained some exculpatory information); United States v. Kaplan, 554 F.2d 577 (3d Cir. 1977) (no error to provide defendant with exculpatory information as part of Jencks production).

                In conclusion, defendant has once again failed to provide this Court either controlling or persuasive authority for the position he has advanced.   This is not surprising since any such case would violate the axim that "Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation."  See United States v. Beasley, 576 F.2d 626, 630 (5th Cir. 1978).   For the foregoing reasons, and those cited in the United States’ previous motions regarding Brady, defendant's Motion to Compel Production of Brady Material should be denied.

Date: November 4, 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] Mis-cited in defendant’s supplemental memorandum as United States v. Santonelli, 83 F.3d 984 (8th Cir. 1996).


[2] Defendant also cites United States v. Sheets, a table opinion at 101 F.3d 706 (9th Cir. 1996).  Sheets is an unpublished opinion which under Ninth Circuit Rule 36-3 is not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

[3] Defendant's continuous reliance on Xydas v. United States, 445 F.2d 660 (D.C. Cir. 1970) is mystifying.  Before the Xydas court was the issue of whether the government violated Brady by failing to disclose a witness' grand jury statement.  In resolving the issue against the defendant, the court clearly held at 445 F.2d 668 that there was no Brady violation since "reasonable pre-trial preparation by the defense" would have produced the information.