United States v. Mandel, Crim. No. HM75-0822.

• Decision Date: 08 April 1976
• Docket Number: Crim. No. HM75-0822.
• Parties: UNITED STATES of America v. Marvin MANDEL et al.
• Court: U.S. District Court — District of Maryland

415 F. Supp. 1079

UNITED STATES of America v. Marvin MANDEL et al.

Crim. No. HM75-0822.

United States District Court, D. Maryland.

April 8, 1976.

Jervis S. Finney, U. S. Atty., for the District of Maryland, Barnet D. Skolnik, Ronald S. Liebman and Daniel J. Hurson, Asst. U. S. Attys., Baltimore, Md., for the United States of America.

Arnold M. Weiner, Baltimore, Md., for Marvin Mandel.

William G. Hundley, Washington, D. C., for W. Dale Hess.

Thomas C. Green, Washington, D. C., for Harry W. Rodgers, III. Michael E. Marr, Baltimore, Md., for William A. Rodgers.

Norman P. Ramsey, Baltimore, Md., for Irvin Kovens.

Joseph A. DePaul, College Park, Md., for Ernest N. Cory, Jr.

MEMORANDUM AND ORDER

HERBERT F. MURRAY, District Judge.

Presently before the Court is a motion filed by defendant Kovens requesting an order requiring the government to furnish prior to trial certain grand jury testimony under the doctrine enunciated in Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The government contends that the material requested is not discoverable under Brady. The question before the Court is whether the Brady doctrine applies to defendant Kovens' request.

On February 5, 1976, defendant Kovens filed a "Motion for an Order Requiring the Government to Furnish Certain Information", together with a legal memorandum in support thereof. Contained in that motion was a broad, generalized request for the production of "exculpatory" material under the Brady doctrine. Thereafter, on March 9, 1976, counsel for defendant Kovens, in a letter addressed to government counsel, specifically requested the grand jury testimony of Irving Schwartz, which testimony the defendant Kovens claimed he had reason to believe was exculpatory.

After hearing oral argument on this motion on March 4, 1976, the Court issued an Order dated March 11, 1976 requiring, inter alia, that the government file a further written response to defendant Kovens' motion for Brady materials. In making this Order, the Court was not aware of the March 9 letter which counsel for defendant Kovens had directed to the government, but reference had been made during the course of argument to the defendant's request for Irving Schwartz's grand jury testimony.

On March 16, 1976, pursuant to the Order dated March 11, the government filed a further written response, stating inter alia that:

having found no even arguably Brady information to which counsel for Defendant Kovens does not otherwise have access, the Government hereby avers that it has no material discoverable to counsel for Defendant Kovens under the Brady doctrine.

On March 17, 1976, this Court met in conference in chambers with counsel for defendant Kovens and with counsel for the government to discuss the Brady request impasse. At that conference, the general contours of the dispute became apparent, and the Court requested counsel to submit legal memoranda on the disputed issue so that the Court could rule on the matter. Both sides have filed memoranda and agreed that the Court should decide on the basis of the arguments made therein without further oral argument.

The government contends that defendant Kovens is not entitled to Schwartz's grand jury testimony prior to trial under the Brady doctrine, even if it contains exculpatory material, because counsel for defendant Kovens may otherwise discover such exculpatory information by simply interviewing Schwartz himself. Schwartz is alleged to be "an extremely close friend, business associate, employee and social companion of defendant Kovens". Since counsel for defendant Kovens has access to Schwartz himself, the government argues, any exculpatory information contained in Schwartz's grand jury testimony is not in the "exclusive control" of the government and consequently, the denial of the request to produce the grand jury testimony cannot constitute a "suppression" within the meaning of the Brady decision. The government has proffered that Schwartz will be called as a government witness and that his grand jury testimony will be made available to defense counsel during trial under the Jencks Act, 18 U.S.C. § 3500.

Defendant Kovens argues that the plain lanuage of the Brady case itself is controlling here, and that there is no indication in that case that discovery hinges on the evidence requested by the defense being in the exclusive control of the government. It is the defendant's position that where the defense makes a pretrial request for specific evidence in the possession of the government, as in Brady and as in the present case, that evidence must be furnished to the defense if it contains exculpatory matter. If the government refuses to furnish the material, and such evidence turns out to be exculpatory, then the argument is made that the refusal is a "suppression" within the meaning of Brady, and there is a violation of due process. The defendant further urges that the interpretation of Brady advanced by the government would require the government to intrude impermissibly into defense preparations in order to determine to whom defense counsel did or did not have "access." Even where a defendant may have theoretical access to a witness, Kovens claims that practical considerations may bar pretrial interviewing of that witness if the witness is represented by counsel and reluctant to cooperate with the defense, particularly where, as is alleged to be the situation here, the witness will be called as a government witness and possibly faces prosecution for perjury in connection with his grand jury testimony.¹ That the government should have the right to determine to whom the defense does and does not have access, for the purpose of triggering the production of Brady materials, is thus said to be unworkable as well as impermissible.

Finally, defendant Kovens attacks the government's suggestion that compliance with the Jencks Act will be sufficient to protect his due process rights. In the present case, defendant Kovens argues, where the government plans to call as its own witness someone who conceivably may offer substantial exculpatory testimony, the defense needs that witness' grand jury testimony prior to trial not for the purpose of impeachment, as in the usual Jencks Act situation, but for the purpose of preparing a defense and using that exculpatory testimony in its own case. Without access to the grand jury testimony prior to trial, the defendant argues that he will be unable to prepare his defense and thereby his right to a fair trial will be violated.

A starting point for the examination of the arguments offered here is the Brady decision itself. In that Supreme Court case, the defendant Brady, who had been charged with and convicted of first degree murder, had asked to examine prior to trial the extrajudicial statements of an accomplice who was to be tried in a separate trial. The theory of Brady's defense was that the accomplice was the one who had actually done the killing, and that the jury should consequently return a verdict without capital punishment. The prosecution produced some of the accomplice's statements, but withheld one in which the accomplice admitted that he, rather than Brady, had committed the homicide. The Supreme Court held,

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218. In Moore v. Illinois, 408 U.S. 786, 794-795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706, 713, the Supreme Court reiterated the above language and noted,

The heart of the holding in Brady is the prosecution's suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by the prosecution after a request by the defense, (b) the evidence's favorable character for the defense, and (c) the materiality of the evidence.

The defendant contends that the language of the case plainly requires the government to turn over, upon request, any evidence favorable to an accused, without regard to whether that evidence is in the exclusive control of the government. The validity of the defendant's argument turns on the interpretation of the word "suppression". If by "suppression", the Court merely means "refusal to supply upon request", then the defendant's argument is correct. But if, as the government contends, the word "suppression" implies that there is a violation of due process only where the favorable evidence requested is so in the exclusive control of the government that a refusal to supply the favorable requested evidence would result in the defendant's inability to discover the favorable evidence through his own reasonable and diligent efforts, then the defendant's argument must fail.

A number of cases decided after Brady deal with the duty of defense counsel to make reasonable and diligent efforts to discover favorable information that is not in the exclusive control of the government. Those cases have indicated that there is no violation of due process where the government failed to produce favorable evidence in its possession, where there was no pretrial request for the information and where defense counsel had access to the favorable information. See, e. g., United States v. Brawer, 367 F.Supp. 156 (S.D.N.Y.1973); United States v. Kapatos, 276 F.Supp. 43 (S.D.N.Y.1967); and other cases cited in 34 A.L.R.3d 16, 79-91 (1970). The general rule formulated in those cases is that a

prerequisite to relief for nondisclosure of required information is that the defense did not have independent knowledge of and access to the evidence in question at the time of trial.

Smith v. United States, 375 F.Supp. 1244, 1247 (E.D.Va.1974), citing ...