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’ POST-HEARING RESPONSE AND INCORPORATED MEMORANDUM TO DEFENDANT’S SUPPLEMENTAL MEMORANDUM IN SUPPORT OF HIS MOTION TO COMPEL PRODUCTION OF  BRADY MATERIAL

 

                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.