U.S. v. BAUBIE

PAUL MAGNUSON, Senior District Judge

This matter is before the Court on Defendant Baubie's Appeal from the Order of Magistrate Judge Raymond L. Erickson dated July 21, 2004. For the reasons that follow, the Order is affirmed.

Defendant Kerry Baubie is charged with conspiring to defraud various commercial airlines. Baubie now requests that the Court order the Government to disclose immediately all exculpatory and impeachment evidence.

On February 17, 2004, Baubie moved for immediate disclosure of exculpatory evidence related to United States v. Baubie et al., Crim. File No. 04-18. The Government did not oppose the motion, and acknowledged its obligations under Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. Magistrate Judge Erickson ordered the Government to disclose evidence that falls within the Brady rule. (See March 26, 2004 Order.)

On May 11, 2004, Baubie moved for disclosure of Brady evidence related to United States v. Jorgensen, Crim. File No. 04-169. Granting the motion, Magistrate Judge Erickson acknowledged that the Government had promised to produce all offers of immunity made to any individuals in the case. (See June 10, 2004 Order at 8-9.) He also ordered that "where material falls within the parameters of both Brady and the Jencks Act, the material should be considered Brady material, and should be disclosed, forthwith, to the Defendant." [Id.]

On May 19, 2004, the Government produced letters reflecting fifty-seven grants of immunity to various individuals related to its investigation of the instant cases. The Government supplemented its production on July 12, 2004. It is this Court's understanding that the Government has disclosed all grants of immunity relevant to the instant cases.

Baubie filed a motion on July 13, 2004, to enforce both Orders to disclose Brady material. He maintained that the Government possesses exculpatory and impeachment evidence yet has failed to disclose such evidence to the defense. The Government asserted that it has produced all material that Baubie is entitled to. Because Baubie failed to demonstrate that the Government had not produced all Brady material, Magistrate Judge Erickson denied the motion. (See July 21, 2004 Order.)

Baubie now asks the Court to reverse Magistrate Judge Erickson's July 21, 2004, Order, arguing that Magistrate Judge Erickson's findings were erroneous.

The Court reviews the Magistrate Judge's determinations on non-dispositive matters under a clearly erroneous standard. See 28 U.S.C. § 636(b)(1)(A); D. Minn. L.R. 72.1(b)(2).

In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that the Government's suppression of material evidence favorable to the defendant violates due process. Id. at 87. Evidence is material for purposes of Brady analysis 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. United States v. Bagley, 473 U.S. 667, 682 (1985); Clay v. Bowerrox, 367 F.3d 993, 1000 (8th Cir. 2004); see also Kyles v. Whitley, 514 U.S. 419, 432-37 (1995) (explaining the materiality standard). Thus, to establish a Brady claim, Baubie must show that (1) the information is favorable to the defendant; (2) the prosecution suppressed the evidence; and (3) the evidence was material to the issue of guilt or punishment. Strickler v. Green, 527 U.S. 263, 281-82 (1999);United States v. Brown, 360 F.3d 828, 832 (8th Cir. 2004). "Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation." United States v. Roach, 28 F.3d 729, 734 (8th Cir. 1994) (citations omitted).

Baubie contends that Magistrate Judge Erickson erred in rejecting Baubie's invitation to generically characterize certain categories of information as constituting Brady materials. Baubie correctly states that the Brady rule applies to both exculpatory and impeachment evidence. Bagley, 473 U.S. at 676Clay v. Bowersox, 367 F.3d 993, 1000 (8th Cir. 2004). However, Defendants' access to individuals who purportedly possess exculpatory evidence eliminates the Government's obligation under Brady to disclose these witnesses' statements. See United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (no Brady violation occurs when there is a failure to disclose witness statements if the defense have access to the witness); see also Mandacina v. United States, 328 F.3d 995, 1001-02 (8th Cir. 2003) (evidence that the defense can discovery through its own reasonable investigation is not illegally withheld by the Government); United States v. Walrath, 324 F.3d 966, 969 (8th Cir. 2003) ("A defendant fails to show the prosecution suppressed evidence when the defendant was aware of and had access to the evidence."). In these cases, Baubie seeks statements made by witnesses that he indeed has access to and has already interviewed. Thus, Magistrate Judge Erickson correctly found thatBrady cannot apply to evidence relating to the Government's interviews of Steven Adams, James Moen, and the other "numerous witnesses" that Baubie has likewise interviewed.

Baubie also requests witness statements that contradict one another, as well as a single witness's statement that contradicts previous statements by that same witness. Baubie specifically identifies James Moen and contends that his statements will provide "significant impeachment material." However, the Government has no duty to identify inconsistencies in the evidence provided by witnesses. See United States v. Fountain, 83 F.3d 946, 949 (8th Cir. 1996). Moreover, because Baubie has access to this information, the material does not fall within the ambit of Brady.

Finally, Baubie requests copies of plea agreements and letters of immunity. The Government has already produced all immunity letters relevant to the instant cases. Plea agreements are filed with the Clerk of Court and readily available to Baubie, and therefore fall outside the scope of Brady. Jones v. United States, 160 F.3d 473, 479 (1998) (no Brady violation where the government failed to inform defense counsel of a plea agreement and transcripts of the plea and sentencing hearing were readily available). Consequently, Baubie's arguments on this point likewise fail. Magistrate Judge Erickson was not clearly erroneous in refusing to generically characterize general categories of information as Brady material.

Baubie also argues that Magistrate Judge Erickson erred in finding that the Government has complied with Brady. The Government assured Magistrate Judge Erickson that it has made all required disclosures. The Government, which alone can know what is undisclosed, is assigned the duty to gauge the effect of the evidence and make disclosures when it determines that the evidence is material. Kyles v. Whitley, 514 U.S. 419, 437 (1995). Thus, the Government must resolve doubtful questions in favor of disclosure. Id. (citations omitted).

The Government has disclosed numerous grants of immunity to individuals involved in its investigations in the instant cases, and Baubie makes no showing that the Government is withholding additional immunity grants or other considerations. See United States v. Pou, 953 F.2d 363, 366-67 (8th Cir. 1992) ("Mere speculation that a government file may contain Brady material is not sufficient to require . . . in camera inspection."). Likewise, Baubie's access to the witnesses who have provided statements to the Government obviates any Brady challenge relating to those witnesses. Accordingly, Magistrate Judge Erickson was not clearly erroneous is finding that Baubie failed to demonstrate a Brady violation.

A final note bears mentioning. The Court realizes that Brady does not require pretrial disclosure as long as ultimate disclosure is made "before it is too late for the defendant to make use of any benefits of the evidence." Nassar v. Sissel, 792 F.2d 119, 121 (8th Cir. 1986); se e also United States v. Kime, 99 F.3d 870, 882 (8th Cir. 1996) (Brady rule limited to the discovery of information after trial that was known to the prosecution but unknown to the defense). Thus, even if the Government delays the disclosure of evidence. Brady is not violated if the evidence is nonetheless disclosed at trial and the defense has the opportunity to use it. United States v. Einfeldt, 138 F.3d 373, 377 (8th Cir. 1998) (citingUnited States v. Gonzalez, 90 F.3d 1363, 1368 (8th Cir. 1996)).

Nonetheless, the Court also notes that the Government maintains its willingness to exchange before trial all Jencks material and other witness statements if Baubie agrees to reciprocate in disclosing witness statements it has obtained. The Court strongly encourages mutual disclosure of witness statements and the equivalent to avoid surprise and unnecessary delay at trial for all parties, and therefore urges the parties to confer before the commencement of trial to assure that disclosures can be effected in the context of a reciprocal approach.

Accordingly, IT IS HEREBY ORDERED that:

A. Defendants' Objections to the Order of Magistrate Judge Erickson dated July 21, 2004 (Clerk Docket No. 113 in Crim. No. 04-18(02) (PAM/RLE) and Clerk Docket No. 78 in Crim. No. 04-169(02) (PAM/RLE)) are DENIED; and

B. The Order dated July 21, 2004 (Clerk Docket No. 111 in Crim. No. 04-18(02) (PAM/RLE) and Clerk Docket No. 77 in Crim. No. 04-169(02) (PAM/RLE)) is AFFIRMED.