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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Criminal No. 97-0166 (RCL)
UNITED STATES OF AMERICA
UNITED STATES RESPONSE AND
INCORPORATED MEMORANDUM TO DEFENDANTS SUPPLEMENTAL MEMORANDUM RE: BRADY
MATERIAL
The
United States, by and through the Office of Independent Counsel, respectfully submits this
response to Defendant Blackleys Supplemental Memorandum In Support of Its Motion to
Compel Production of Brady Material. I. INTRODUCTION
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. Kellys existence and of the favorable testimony he may provide. Furthermore, as is evidenced by Blackleys
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 defendants 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. II. ARGUMENT
A.
DEFENDANT
MISCONSTRUES THE GOVERNMENTS BRADY OBLIGATIONS
Defendants
Supplemental Memorandum is replete with pure speculation, wholly-unsupported assertions
and improper analysis of law. Much like his
original Brady motion, defendants 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 Defendants Motion
to Compel Production of Brady Material (First Opposition) filed on
October 17, 1997, but as they are dispositive of defendants 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 defendants 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
defendants 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).
B.
THE UNITED
STATES HAS COMPLIED WITH ITS BRADY OBLIGATIONS
Despite
defendants 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 governments 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 Blackleys handling of
defendants 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.
Krantzs request for a misdescribed letter prepared by Mr. Kelly for defendants
signature confirms defendants 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 individuals
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.
Defendants 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 defendants
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 Courts 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.
Defendants
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 firms
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 defendants 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.
C.
THE
INSPECTOR GENERAL REPORTS ARE NOT BRADY MATERIAL
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 Blackleys 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
attorneys opinion as to strength or weakness of defendants 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).
Defendants
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]
CONCLUSION
For
the foregoing reasons, and those cited in the United States Opposition and
Incorporated Memorandum to Defendants Motion to Compel Production of Brady
Material filed October 17, 1997, defendant Blackleys 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]Defendants 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 governments
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]Defendants 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. Kellys
production of the letters to the defense. Defendants
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.
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