986
F.Supp. 600
United States District Court,
District of
Columbia.
UNITED STATES of
America
v.
Ronald
Henderson BLACKLEY, Defendant.
No. CRIM.
97-0166(RCL).
Nov. 10, 1997.
MEMORANDUM
OPINION AND ORDER
LAMBERTH, District Judge.
This matter comes before the court on defendant's motion to compel production of Brady
material. Based upon the written memoranda of the parties, oral arguments, and the
relevant case law, defendant's motion is denied.
A. The Brady Obligation
[1] Under Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the government is
required to disclose all evidence that is favorable to defendant and "material either
to guilt or to punishment." Id. at 87, 83
S.Ct. at 1196. The materiality of evidence depends on its importance to the case:
"The evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. A reasonable probability' is a probability sufficient to undermine confidence
in the outcome." United
States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).
[2][3] Particularly relevant to the instant Motion to Compel is the Supreme Court's
abandonment of the distinction between "specific request" and "general-or
norequest" situations in Bagley. See id. at 678-82, 105
S.Ct. at 3381-84. Regardless of whether or not the information is requested by the
defense, suppression by the government of favorable material evidence is constitutional
error, "if there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have been different." See Kyles
v. Whitley, 514 U.S. 419, 430-32, 115 S.Ct. 1555, 1564, 131 L.Ed.2d 490 (1995)
(quotinq Bagley, 473 U.S. at 682, 105 S.Ct. at 3383). Therefore, the government's
responsibility to produce Brady materials is neither heightened nor relaxed by the
presence or absence of a written Brady request or a motion to compel. The government has
an ongoing burden to provide material exculpatory evidence whenever it discovers that it
has such information in its possession. Finally, the due process concerns underlying Brady
are present "irrespective of the good faith or bad faith of the prosecution." Brady,
373 U.S. at 87, 83 S.Ct. at 1196.
B. Defendant's Specific Brady Requests
1. Copies of the Department of Agriculture Inspector General (USDA-IG) and the Agency
for International Development Inspector General (U.S. AID-IG) Reports
[4] The first category of documents sought by the defense are the USDA-IG and U.S.
AID-IG reports on their respective investigations of Ronald Henderson Blackley. Defense
counsel contends that information contained in these reports will demonstrate that the
Office of Independent Counsel's ("OIC") prosecutorial action against him was
improper. In addition, he argues that the reports contain information relevant to the
impeachment of government witnesses, Giglio
v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United
States v. White, 116 F.3d 903, 918 (D.C.Cir.1997) and prior inconsistent statements by
government witnesses who will likely testify at trial. See United
States v. Cuffie, 80 F.3d 514, 517 (D.C.Cir.1996) (quoting United States v. Smith, 77
F.3d 511, 515(D.C.Cir.1996)) (Evidence is material if "the undisclosed information
could have substantially affected the efforts of defense counsel to impeach the witness,
thereby calling into question the fairness of the ultimate verdict.") Defendant
claims that the OIC's failure to produce these reports will seriously undermine confidence
in the outcome of the trial.
Defendant's belief that these reports may be exculpatory is based on more than mere
speculation. Defense counsel claim in both in their supplemental memorandum and at oral
argument that Larry Byrne, a former high level administrator at U.S. AID, had the
opportunity to review the U.S. AID report for the purpose of determining whether Mr.
Blackley could be employed at AID. Mr. Byrne apparently told defense counsel that the
report is highly favorable to Mr. Blackley because it concludes that allegations that he
received payments in 1993 reportable under the Ethics in Government
Act, 18 U.S.C. s 1001, are unfounded.
[5] The Independent Counsel makes three arguments in support of its claim that it does
not have to produce these reports under prevailing Brady Giglio doctrine. First, to the
extent that Mr. Blackley is seeking these materials in order to support his motions to
dismiss for lack of prosecutorial jurisdiction or to support dismissal on a selective
prosecution basis, the OIC argues that they are not Brady because they are not being
sought as evidence "material either to guilt or to punishment." Brady,
373 U.S. at 87, 83 S.Ct. at 1196. The OIC asserts that even if the reports conclude
that no administrative or criminal action should be filed against Mr. Blackley by the
respective executive departments or by DOJ, that conclusion is not "material
exculpatory evidence" relevant to a determination of Mr. Blackley's guilt or
innocence for the crimes with which he has been charged by the grand jury. For the reasons
stated in more detail in part 2, below, this court agrees with the Independent Counsel
that Brady/Giglio production is only required when the materials are being sought to prove
defendant free from blame, and not when the defense seeks to obtain a collateral
dismissal. This court therefore will not order the release of the reports on the basis
that they might demonstrate that this prosecution is contrary to DOJ policy, outside of
the Special Division's jurisdictional mandate, or that Mr. Blackley is a target of
selective prosecution.
Second, the Independent Counsel asserts that it has reviewed the reports at issue as
well as the corresponding witness statements, and, in accordance with its Brady
obligation, has produced summaries of material exculpatory witness testimony and
documents. This court has no reason to believe that the OIC has not done its due diligence
in this regard. And, at least as to the reports, the defense has not vigorously contested
this assertion by the OIC, as it is not more summaries that it seeks, but rather the
reports in their entirety.
The OIC's final argument against production of the reports is arguably the most
straightforward--they claim that the reports simply do not contain Brady material.
Pursuant to this court's order at the October 14, 1997 motions hearing, the OIC has
produced, in camera, the reports sought by defendant, allowing an independent evaluation
as to whether they contain material exculpatory information relevant to guilt or
punishment and must be provided to the defendant.
Having now had the opportunity to review the two reports, this court concludes that
they do not contain Brady/Giglio material. The reports, taken as a whole, do not contain
"evidence favorable to the accused that, if suppressed, would deprive the defendant.
of a fair trial." Bagley,
473 U.S. at 675, 105 S.Ct. at 3379. Nor are there subsections within the reports or
even individual statements that, if not disclosed to the defense, would result in a
verdict lacking in trustworthiness. Based upon its in camera review, this court will not
order the production of the U.S. AID-IG or USDA-IG reports under Brady.
2. Relevant Government Policies Concerning Prosecution
[6] Defense counsel has requested that the OIC provide copies of the policies of the
USDA-IG, the USDA General Counsel and the USDA Ethics Officer, as well as the Department
of Justice relating to the criteria for making referrals to DOJ of purported violations of
the Ethics in Government Act, and that relate to decisions to prosecute individuals for
such purported violations. Defendant seeks these policies in order to ascertain whether
the USDA has ever referred information concerning a Form SF 278 to DOJ for criminal
prosecution, in the hopes of obtaining a dismissal of the charges on a selective
prosecution basis, or in support of his claim that the OIC is statutorily bound to follow
DOJ's prosecutorial policies. See Defendant's Motion to Compel Production of Brady
Material at 7.
[7] This court appreciates defense counsel's candor at oral argument in recognizing
that, as among its requests to compel production of Brady material, this one has the
weakest foundation in the law. The trouble with defendant's claim is that the scope of
Brady is limited by its own language to "evidence that is material either to guilt or
to punishment." Brady,
373 U.S. at 87, 83 S.Ct. at 1197. Only material that is exculpatory is covered under
Brady; with exculpatory defined as that which would tend to show freedom from fault, guilt
or blame. See Webster's Third New International Dictionary (unabridged ed.1965). It is
therefore not material that would only support jurisdictional challenges, claims of
selective prosecution, or any other collateral attacks on the indictment, because
prevailing on those claims would not prove defendant free from fault, guilt or blame.
The general agency policies at issue contain no material specifically addressing
Ronald Blackley or any of the events that are the subject of this prosecution. Therefore,
these reports can neither tend to exculpate nor help to reduce the penalty against Mr.
Blackley. Also, because these manuals were not authored by individuals expected to testify
at trial, they need not be disclosed as potential impeachment evidence. That these reports
are not being sought in the hopes of proving defendant innocent, but rather to prove that
the charges should not have been brought at all, is a matter that defense counsel readily
admits [FN1]. However, whether or not the charges should have been brought by the OIC is a
totally distinct question from whether the conduct alleged actually occurred and whether
the conduct, if it did occur, violated the law. It is only the second inquiry--the one
focused on innocence and guilt--that Brady was meant to address. Because the policies are
not material to a determination of defendant's guilt or punishment, this court will not
order the Independent Counsel to provide copies to the defense.
FN1. This
assertion comes from defendant's own motion, in which he states "Mr. Blackley is
requesting the DOJ's policies and guidelines because, in part, he believes that they will
support a selective prosecution claim." Defendant's Reply to the United States'
Opposition at 4. See also Defendant's Supplemental Memorandum of October 16, 1997 at 1.
[8] The OIC's alternative argument against compelling production of the policies is
equally if not more persuasive to this court. Defendant has not sufficiently explained why
the government is required to forward copies of these policies, as opposed to defense
counsel obtaining them through their own efforts. For an item to be Brady, it must be
something that is being "suppress[ed] by the prosecution." Brady,
373 U.S. at 87, 83 S.Ct. at 1196. The policies requested by defense counsel are
available to the public and something that can be readily obtained by others is, by
definition, not "suppressed." See e.g., United
States v. Dijan, 37 F.3d 398, 402 (8th Cir.1994) (IRS manual not Brady because it is
public). The OIC is correct when it asserts that it is "not obligated to act as an
agent of the defendant and assist in searching for and collecting documents." United
States' Opposition at 5. Because the defense is in basically the same position as the OIC
to obtain copies of these policies, this court will not order them produced under Brady.
3. Grand Jury Testimony and Interview Notes and Memoranda of Sharon Blackley, Ronald
Blackley Jr. and Other Witnesses Identified by the OIC
On October 8, 1997, the Independent Counsel provided defense counsel with a list of
twenty-four persons whom, if contacted, would be expected to provide information favorable
to Ronald Blackley. In this letter, the OIC included synopses of the favorable testimony
that they expect these individuals would provide. Defense counsel contends that the OIC
has not met its Brady obligation through these summaries and is required to produce
transcripts of the grand jury testimony as well as interview notes and memoranda. They
claim that the synopses are an inaccurate reflection of the exculpatory grand jury
testimony, and that it is therefore unfair to restrict the defense to these synopses. In
opposition, the Independent Counsel asserts that under Brady it is only required to
provide information that is "known to the prosecution but unknown to the defense,
..." United
States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976). Having
provided the summaries, the OIC claims that defendant is not also entitled to the grand
jury transcripts and other information because he now has both knowledge of the
exculpatory information and the present ability to acquire the specific information
through reasonable means.
Whether Brady obligates the government to provide a defendant with a grand jury
transcript after the government has advised defendant that the witness may have given
exculpatory testimony has been addressed by other circuits. In United
States v. Grossman, 843 F.2d 78 (2d Cir.1988), defendant sought to have his conviction
overturned by contending that under Brady he should have been provided with the allegedly
exculpatory grand jury testimony of a witness. Prior to trial, the government sent
defendant a letter informing him that the witness in question may have given exculpatory
testimony to the grand jury. The court held that the letter constituted sufficient
disclosure under Brady of "information which had been known to the prosecution but
unknown to the defense" and determined that the government had "no duty actually
to turn over grand jury testimony where the defendant knows of the witness'
identity." Id. at 85 (citing United
States v. LeRoy, 687 F.2d 610, 619 (2d Cir.1982)). The court noted that the rationale
underpinning Brady is to " 'assure that the defendant will not be denied access to
exculpatory information only known to the government.' " Id. (quoting LeRoy,
687 F.2d at 619)). Once the letter was received, the defense at that point "knew
or should have known the essential facts permitting him to take advantage of any
exculpatory evidence," id. (citing United
States v. Gaggi, 811 F.2d 47, 59 (2d Cir.1987), and the Brady burden was thereby
satisfied.
Other courts have similarly concluded that the government's Brady obligation to
disclose exculpatory material does not extend to grand jury transcripts when the defendant
has both knowledge of the existence of the exculpatory evidence and the means to acquire
and take advantage of the information. See United
States v. Wilson, 901 F.2d 378, 381 (4th Cir.1990) (no Brady violation if the defense
is free to question the witness in preparation for trial); United
States v. Hicks, 848 F.2d 1 (1st Cir.1988) (noting that the statement of a potential
witness is not being "suppressed" when the defense has the opportunity to
interview the witness); United
States v. Campagnuolo, 592 F.2d 852, 860-61 (5th Cir.1979).
[9][10] Holding aside for the moment the special circumstances concerning the
testimony of Charles Fuller, this court concludes that the Independent Counsel is under no
obligation to turn over the grand jury testimony from the Brady witnesses to the defense.
This court has reviewed the October 8, 1997 letter from William Fahey to Sheldon Krantz
advising the defense of the existence of the twenty-four witnesses, and concludes that the
Independent Counsel has met its Brady obligation. First, the letter provides adequate
disclosure of the essential facts concerning the exculpatory evidence. The summaries
fairly indicate the nature of the exculpatory testimony that, each witness might offer.
Second, the defense now has the present opportunity and ability, with reasonable
diligence, to contact these individuals and develop their testimony for trial. That is
what Brady requires, and nothing more. [FN2]
FN2. The
defense cites Xydas
v. United States, 445 F.2d 660, 666 n. 16 (D.C.Cir.1971) for the proposition that they
are entitled to the grand jury transcripts. However, in Xydas, the court did not order the
grand jury transcripts produced; rather, they were submitted in camera, and only the
exculpatory statements were forwarded. The opinion did not squarely address the issue
presented here, and this court agrees with the conclusion reached by the overwhelming
majority of jurisdictions that have given the matter full consideration: (that there is no
general right to grand jury transcripts as part of a Brady disclosure.)
Defense's inclusion of Ronald Blackley, Jr. and Sharon Blackley on its list of persons
for whom it is entitled to grand jury testimony demonstrates its misconception of how
Brady operates in this context. First, it strains credulity to believe that defendant was
unaware that his son and his wife would provide exculpatory testimony. Second, the defense
has had access to these individuals and ample time to acquire the exculpatory information
through reasonable efforts, as six months have elapsed from the date of the indictment to
the time of the filing of the motion to compel. Nothing has been "suppressed."
For the court to order production of the grand jury transcripts for Sharon Blackley and
Ron Jr. would be to create a categorical rule requiring the furnishing of such transcripts
whenever a witness' name is disclosed by the government pursuant to its Brady obligation.
[11] Defendant's claim of entitlement to the transcripts and notes revolves in large
part around counsel's contention that the OIC's "delay" in forwarding Brady
material has left it without the necessary time or resources to properly develop the
exculpatory evidence, jeopardizing the fairness of the upcoming trial. "Disclosure by
the government must be made at such a time as to allow the defense to use the favorable
material effectively in the preparation and presentation of its case...." United
States v. Pollack, 534 F.2d 964, 973 (D.C.Cir.1976) Defendant claims that "[t]he
24 witnesses live in different parts of the country, and some who were in the government
have since retired and relocated." Defendant's Supplemental Memorandum at 3. This
court disagrees with defendant's claim of unreasonableness and finds no difficulty with
the timing of the Independent Counsel's Brady disclosure. Three weeks [FN3] of lead time
is sufficient for defense counsel to contact these witnesses and obtain their testimony.
Disclosures much closer to-trial have been upheld by this circuit. See United
States v. Tarantino, 846 F.2d 1384, 1417 (D.C.Cir.1988) (Brady production during trial
reasonable because the defense had the opportunity to use the materials); Pollack,
534 F.2d at 973-74 (production three days and one day before trial adequate). Also, if
this court were to conclude that the timing of the Brady disclosures substantially
handicapped Mr. Blackley's ability to prepare an effective defense, the proper remedy
prior to trial would have been the granting of a continuance rather than ordering
production of the requested transcripts. Because this court has already continued this
trial, moving it from October 27 to November 18, 1997, defendant has, in a sense, already
been awarded the proper relief for this particular Brady challenge.
FN3. At the
time of the filing of the original Motion to Compel Production of Brady Material, there
were three weeks remaining before trial. Because this court granted defendant's Motion to
Continue, the actual time available to develop these Brady witnesses is approximately six
weeks.
Finally, there is the matter of the grand jury testimony of Charles Fuller, one of the
individuals who, according to the indictment, wrote checks to the Blackleys that went
unreported on his financial disclosure forms. Mr. Fuller refuses to talk to the defense
without a grant of immunity; consequently, the defense is unable to acquire the
exculpatory evidence through reasonable means, strengthening the argument that the
government should be required to produce the grand jury testimony. The Fuller testimony
(and, potentially, many of the other witness statements) calls into question the
relationship between the duty to turn over exculpatory and impeachment information under
Brady and the production of witness statements under the Jencks
Act, 18 U.S.C. s 3500, which proscribes the subpoena, discovery or inspection of
government witness statements or reports until that witness has testified on direct
examination at trial. There is division on this question, with some courts proclaiming the
primacy of Brady, see, e.g., United
States v. Starusko, 729 F.2d 256, 265 (3d Cir.1984); 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), while others contend that
Jencks takes precedence, see, e.g., United
States v. Presser, 844 F.2d 1275, 1280-86 (6th Cir.1988); United
States v. Scott, 524 F.2d 465, 467-68 (5th Cir.1975) (citing supporting cases).
This court declines to choose between the two conflicting approaches, as the debate
not squarely before it. The OIC was directed to provide a transcript of the Fuller grand
jury testimony so that this court could make an in camera determination as to whether it
constituted Brady material. Having completed its review of the Fuller grand jury
transcript, this court concludes that it does not contain any material exculpatory
statements or other exculpatory evidence that "is of sufficient significance to
result in the denial of the defendant's right to a fair trial." Agurs,
427 U.S. at 108, 96 S.Ct. at 2400. Since there is no exculpatory material, it need not
be produced under Brady. Consequently, either resolution of the Brady /Jencks primacy
issue would lead to the same, result: if Jencks controls, the testimony would not need to
be produced until after Fuller testifies; if Brady is the primary obligation, then the
transcript need not be produced because it is not Brady material. Therefore, even though
Charles Fuller is unavailable to the defense, this court will nonetheless not order the
production of his grand jury testimony because the court is satisfied that the transcript
is not Brady material.
4. Correspondence Relating to Mr. Blackley; the Inadequacy of the List of Brady
Witnesses
These two claims will be considered together because they largely allege the same
thing; namely, that the Independent Counsel's Brady production has been under inclusive.
[12] In their motions and in oral argument, the parties clash over the manner in which
Brady disclosures have been handled in this case. Defendant expresses frustration that it
has only been able to acquire Brady materials through formal requests, though it is well
settled that a defendant's failure to request favorable evidence does not relieve the
government of its Brady obligation. See Kyles,
514 U.S. at 436-38, 115 S.Ct. at 1565; Bagley,
473 U.S. at 682, 105 S.Ct. at 3383-84. Defendant alleges that having to consistently
acquire exculpatory evidence by motion places it in an impossible conundrum: if the motion
has any specificity to it, the Independent Counsel may avoid its obligation by claiming
that the defendant is aware of the exculpatory material, and therefore it cannot be Brady;
if there is no motion or the motion is overly general, no materials are being produced.
The OIC responds to defendant's charge of under inclusiveness by contending that this
claim is based upon nothing more than mere speculation and a general feeling by the
defense that there must be something more out there. The OIC correctly notes that Brady
does have a materiality threshold and that the government is not required to disclose all
evidence that could possibly have some remotely favorable impact on a jury's consideration
of the case. See Kyles,
514 U.S. at 436-38, 115 S.Ct. at 1567 (noting that the Constitution is not violated
every time the government fails to or chooses not to disclose evidence that might prove
helpful to the defense, and that Brady does not require an "open files" policy
on the part of the government). The OIC also contends that defense counsel is attempting
to use Brady as a discovery device, which is not a function contemplated by this
constitutional rule of due process. See Weatherford
v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) ("There is
no general constitutional right to discovery in a criminal case, and Brady did not create
one....")
The debate concerning Michael Kelly illustrates the conflict between the parties. Mr.
Kelly was not on the October 8, 1997 list of witnesses provided by the OIC who, if
contacted by the defense, would be expected to provide exculpatory testimony. Defense
counsel contends that Mr. Kelly has "very significant" exculpatory information.
The OIC supports its decision to not include him on the list by claiming that
"[d]efendant has long had full knowledge of Mr. Kelly's existence and the favorable
testimony he may provide"--much like Sharon Blackley or Ron Jr.--and therefore is
outside the auspices of Brady because he was not "unknown to defendant." See
United States' Response and Incorporated Memorandum at 1.
[13] This court is in no better position than the parties to determine whether there
exists some great body of Brady evidence that has not yet been produced by the government,
or to resolve disputes as to whether a given witness' potentially exculpatory testimony is
"known to the defense" as in the Michael Kelly conflict. This court simply
responds to defendant's claim of under inclusiveness by noting that if the sword of
Damocles is hanging over the head of one of the two parties, it is hanging over the head
of the Independent Counsel. Brady is first and foremost a post-trial remedy, and the
penalty for failing to disclose material exculpatory evidence relevant to a finding of
guilt or punishment is the setting aside of a conviction on appeal. If, as defendant
argues, the OIC "is engaging in a pattern of intentionally withholding, belatedly
providing, and inaccurately summarizing Brady/ Giglio material," Defendant's
Supplemental Memorandum at 1, defendant's ultimate remedy is not this court's granting of
a motion to compel, but rather the Court of Appeals' overturning of a guilty verdict,
should one be obtained. That possibility should be sufficient to direct the Independent
Counsel to comply with both the letter and the spirit of Brady, with the reminder that the
prosecution has the "affirmative duty to resolve doubtful questions in favor of
disclosure." United
States v. Whitehorn, 710 F.Supp. 803, 827 (D.D.C.1989).
For the reasons stated in this opinion, defendant's motion to compel production of
Brady Material is DENIED.
SO ORDERED.
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