US v. Doby

• Decision Date: 21 July 1987
• Docket Number: Hammond Crim. No. HCR 87-65.
• Parties: UNITED STATES of America v. Geane DOBY, et al.
• Court: U.S. District Court — Northern District of Indiana

665 F. Supp. 705

UNITED STATES of America v. Geane DOBY, et al.

Hammond Crim. No. HCR 87-65.

United States District Court, N.D. Indiana, Hammond Division.

July 21, 1987.

COPYRIGHT MATERIAL OMITTED

Gwen R. Rinkenberger, Asst. U.S. Atty., Hammond, Ind., for plaintiff.

Dock McDowell, Jr., Gary, Ind., for defendant.

ORDER

MOODY, District Judge.

This matter is before the court on several motions filed by defendant Geane Doby on June 30, 1987. The United States ("Government") filed responses to all of Doby's motions on July 8 and 9, 1987.

I. Motion to Dismiss Indictment

On May 22, 1987, defendant Doby, along with two co-defendants, was named in a three-count conspiracy, 18 U.S.C. § 371, indictment for allegedly committing arson, 18 U.S.C. § 1341. Doby was named only in the conspiracy and arson counts of the indictment. Count II of the indictment (the arson count) alleges that:

On or about July 20, 1985, in the Northern District of Indiana,

GEANE DOBY,

MOHAMAD S. SHAKER, and

RICKY S. GIBSON,

defendants herein, did maliciously damage and destroy, by means of fire and explosives, real property located at 629 Madison Street in Gary, Indiana, resulting in the death of Nicholas E. Grubich, which real property was used in interstate commerce and was used in activity affecting interstate commerce;

All in violation of Title 18, United States Code, Section 844.

In his motion to dismiss, Doby argues that the Government's indictment fails to invoke federal jurisdiction because there is "no allegation of any fact upon which there could be found probable cause to believe that the property located at 629 Madison Street, Gary, Indiana, was used in interstate commerce or in an activity affecting interstate commerce." In response, the Government does not directly respond to Doby's jurisdictional argument; instead, the Government asserts that the present indictment is valid in that it provides Doby "with a sufficient description of the offense charged so that Doby will be able to prepare a defense."

The court notes initially that the present indictment meets the "notice" requirements necessary to inform Doby of the charge against him so he can prepare an adequate defense.¹ However, Doby is not challenging the indictment on an inadequate notification basis, his challenge is more fundamental; he asserts that the Government has failed properly to invoke this federal court's subject matter jurisdiction. In support of his argument, Doby relies principally on United States v. Mennuti, 639 F.2d 107 (2d Cir.1981). The district court in Mennuti dismissed, on the basis of subject matter jurisdiction, an indictment alleging a violation of § 844(i) on the ground that the subject properties, which were private residences, were not used in or had any affect on interstate commerce. On appeal, the Second Circuit affirmed the district court's dismissal. The court of appeals reviewed the legislative history of the § 844(i) and reasoned that only business-related properties fell within the ambit of the statute. The Second Circuit stated: "To the ordinary mind, the destruction of two private dwellings would not constitute the destruction of buildings used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." Id. at 109.

The Seventh Circuit, in United States v. Zabic, 745 F.2d 464 (7th Cir.1984), addressed this very same jurisdictional issue in an indictment alleging a violation of § 844(i). The Zabic court was faced with a post-conviction objection by the defendant arguing that the district court lacked subject matter jurisdiction because the target property was not covered by the statute. Id. at 469. Defendant Zabic relied on Mennuti as support for his position. Id. In affirming the conviction, the Zabic court followed and adopted the private v. business distinction² made in Mennuti. The court stated:

Zabic completely overlooks the fact that in Mennuti, the property in question consisted of private residential "dwelling houses which were not being used for any commercial purpose at all." In the instant case, the building in issue is a 43-unit rental apartment building used exclusively for commercial purposes by its owner Ivan Buljubasic, not a private dwelling used for residential purposes.

Zabic, 745 F.2d at 469-70. (citation omitted).

After finding that rental property qualified as "business property" for purposes of § 844(i), the court in Zabic then held that a supply of natural gas from an out-of-state source constituted a sufficient interstate-commerce nexus. Id. at 470-71 and n. 4. Based on these two findings, the court concluded that subject matter jurisdiction was proper under § 844(i). Id. at 471.

In the present case, Doby's indictment is similar to the ones in Mennuti and Zabic; it sufficiently alleges all the elements of a violation of § 844(i).³ But, Doby points out, the indictment does not set out any facts to support the allegations that the subject property was a business property or that it affected interstate commerce. The court agrees, there are no such facts. However, because this matter is before the court on a motion to dismiss, the allegations in the indictment must be taken as true. United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 175, 9 L.Ed.2d 136 (1962); Boyce Motor Lines v. United States, 342 U.S. 337, 343 n. 16, 72 S.Ct. 329, 332 n. 16, 96 L.Ed. 367 (1952); United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986). Doby has not offered any proof to contradict or even denied these allegations in the indictment; in fact, all he has done is note the absence of supporting facts.

Therefore, having found that the indictment sufficiently informs Doby of the offense charged against him and given the early stage of the proceedings, the court finds that Doby's Motion to Dismiss the Indictment should be DENIED.⁴

II. Motion for Additional Discovery and Motion for Immediate Production of Exculpatory Material

Doby seeks an order from the court directing the Government to disclose any exculpatory material and impeaching information of potential Government witnesses. In its response, the Government represents to the court that it has no exculpatory evidence, however, it acknowledges its continuing obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), to disclose such evidence in the future. The Government correctly points out that the Brady rule is not a rule of discovery, United States v. Navarro, 737 F.2d 625, 631 (7th Cir.), cert. denied, 469 U.S. 1020, 105 S.Ct. 438, 83 L.Ed.2d 364 (1984). United States v. Winner, 641 F.2d 825, 833 (10th Cir.1981), and it does not create or broaden any pretrial discovery privileges already in force under the Federal Rules of Criminal Procedure. Navarro, 737 F.2d at 631; United States v. Flores, 540 F.2d 432, 438 (9th Cir.1976). Thus, there is no obligation on the Government to disclose neutral or inculpatory evidence to defendant. United States v. Little, 753 F.2d 1420, 1440-41 (9th Cir.1984); United States v. McClintock, 748 F.2d 1278, 1287 (9th Cir. 1984).

Actually, Doby's motions are redundant and wasteful of the court's time. Brady is a judicial remedy for an error of constitutional magnitude. When the prosecution fails to divulge material evidence of an exculpatory nature, the defendant's right to due process is violated. The constitution requires the prosecution to observe this right with vigilance: a court order is unnecessary because the duty to protect the right already exists. An order to produce Brady materials makes as little sense as an order to preserve the accused's right to be free from unreasonable searches and seizures. Instead, once a search-and-seizure or due-process violation occurs, the exculsionary rule and the Brady doctrine provide remedies.

There is no need for the defendant to preserve his Brady objection for purposes of appeal. "Under Brady and its progeny, the prosecution's suppression of material evidence favorable to the defendant, even if such evidence is not requested by the accused, is a violation of due process." United States v. Jackson, 780 F.2d 1305, 1308 (7th Cir.1986) (emphasis added) (citing United States v. Allain, 671 F.2d 248, 255 (7th Cir.1986) (citing Agurs, 427 U.S. 97, 96 S.Ct. 2392)).

Defendant's motion does not contain any specific requests, rather, it asks for "any" exculpatory evidence without reference to a particular witness or specifying a particular document. The court finds that defendant's motion is fairly characterized as what the Supreme Court termed a "general request," one which asks for "`all Brady material' or for `anything exculpatory.'" Agurs, 427 U.S. at 107-08, 96 S.Ct. at 2399. A general request is treated as if no request were made, for it gives the Government no better notice than if no request were made. Id.

In the case at bar, given the early stage of the proceedings⁵ and because defendant has made only a general request and the Government has assured the court that it has no such evidence at this time, while acknowledging its continuing duty to disclose Brady material in the future, the court finds that defendant's motion should be denied.

It is possible that the court could conduct an in camera inspection of the Government's files in an effort to satisfy itself that there is in fact no exculpatory evidence. But because defendant has made a general request, he is only speculating that the Government has such evidence. Mere speculation that a Government file may contain Brady material is not sufficient to require an in camera inspection by the court. Navarro, 737 F.2d at 631. Moreover, defendant has offered nothing to rebut the Government's explicit representation to the court that it has no such evidence. Id. at 632. The court understands that it is difficult for defendant to prove the existence of such evidence in the Government's files...