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, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (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).
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.
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.
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, 175 U.S. App. D.C. 227, 534 F.2d 964, 973 (D.C. Cir. 1976) Defendant claims that "the 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
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, 269 U.S. App. D.C. 398, 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.
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. § 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. 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.
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, 115 S. Ct. at 1565; Bagley, 473 U.S. at 682. 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, 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, 51 L. Ed. 2d 30, 97 S. Ct. 837 (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 "defendant 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.
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.
Royce C. Lamberth
United States District Judge