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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal No. 97-0166 (RCL)
UNITED STATES OF AMERICA v. RONALD HENDERSON BLACKLEY, Defendant. UNITED STATES OPPOSITION AND
INCORPORATED MEMORANDUM TO DEFENDANTS MOTION TO COMPEL PRODUCTION OF BRADY
MATERIAL
The United States, by and through the Office of Independent Counsel, respectfully
requests that defendants 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. INTRODUCTION
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). ARGUMENT
Defendants motion demonstrates a fundamental misconception of the governments
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
jurys 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 prosecutors 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.
Blackleys 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 Blackleys 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, defendants 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 Blackleys
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, defendants 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. Blackleys 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. Blackleys Prior Counsel
At defendants 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 prosecutors 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 defendants 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 defendants 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 defendants knowledge of the arrest, noting that because Brady
only requires disclosure of information unknown to the defendant . . . Derrs
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. Defendants
additional request for the grand jury testimony for these witnesses should be denied.[3]
CONCLUSION
For
the foregoing reasons, defendant Blackleys 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 defendants 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]Blackleys 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)
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