The opinion of the court was delivered by: LAMBERTH
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.
Under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (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. 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, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).
Particularly relevant to the instant Motion to Compel is the Supreme Court's abandonment of the distinction between "specific request" and "general- or no- request" situations in Bagley. See id. at 678-82. 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, 115 S. Ct. 1555, 1564, 131 L. Ed. 2d 490 (1995) (quoting Bagley, 473 U.S. at 682). 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.
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 (US AID-IG) Reports
The first category of documents sought by the defense are the USDA-IG and US 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, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972); United States v. White, 325 U.S. App. D.C. 282, 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, 317 U.S. App. D.C. 38, 80 F.3d 514, 517 (D.C. Cir. 1996)(quoting United States v. Smith, 316 U.S. App. D.C. 199, 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 US AID, had the opportunity to review the US 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. § 1001, are unfounded.
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. 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. 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 ...