United States District Court, D. Maine
ORDER ON DEFENDANT MALCOLM A. FRENCH’S MOTION FOR DISCOVERY OF BRADY MATERIAL
JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
The Court dismisses without prejudice Defendant’s motion for discovery of Brady material. The Government has represented that it has turned over to Mr. French all the written reports responsive to his requests for information. To the extent the law might require the Government to disclose exculpatory or impeaching evidence material to sentencing that has not been reduced to writing, the Court concludes that Mr. French has failed to demonstrate that the additional information, if it exists, would be material to any sentencing issue.
On September 14, 2012, a federal grand jury indicted Malcolm A. French and others for a series of federal crimes relating to their alleged involvement with a marijuana growing operation in Maine. Indictment (ECF No. 2). On November 13, 2013, a grand jury issued a superseding indictment. Superseding Indictment (ECF No. 187). On January 24, 2014, at the close of a jury trial that lasted from January 8, 2014 through January 24, 2014, the jury returned verdicts finding Mr. French guilty of engaging in a conspiracy to manufacture marijuana, of manufacturing marijuana, of managing or controlling a drug-involved premises, of harboring illegal aliens, and of engaging in a conspiracy to distribute marijuana. Jury Verdict Form (ECF No. 311).
After delay caused primarily by the Defendants’ post-trial motions, the Court has scheduled a sentencing hearing for September 30, 2015 for all Defendants. Notice of Hr’g (ECF No. 538). On June 5, 2015, Malcolm French filed a motion for discovery of so-called Brady material. Def.’s Mot. for Disc. of Brady Material (ECF No. 521) (Def.’s Mot.). On June 8, 2015, the Government responded in opposition to Mr. French’s motion. Gov’t’s Objection to Def.’s Mot. for Disc. of Brady Material (ECF No. 526) (Gov’t’s Opp’n). On June 12, 2015, Mr. French filed a supplemental memorandum in support of his motion for the discovery of Brady material, narrowing his request. Def. Malcolm French’s Suppl. Mem. in Supp. of Def.’s Mot. for Disc. of Brady Material (ECF No. 529) (Def.’s Suppl. Mem.). On June 22, 2015, the Government filed a supplemental response in opposition to Mr. French’s supplemental memorandum. Gov’t’s Resp. to Def.’s Suppl. Mem. in Supp. of Mot. for Disc. of Brady Material (ECF No. 534) (Gov’t’s Suppl. Opp’n).
II. THE PARTIES’ POSITIONS
A. Defendant’s Request
In his initial motion, Mr. French wrote that after new counsel entered his appearance, it “became apparent upon discussion with the defendant that there might be exculpatory evidence relevant to sentencing issues within the possession of the government which has possibly not yet been provided.” Def.’s Mot. at 1. In his supplemental memorandum, Mr. French limited the material he is seeking to:
1) A report by a Warden who examined Mr. French’s boots on September 22, 2009 while he was detained by the side of the road;
2) A report of statements made by Warden Ron Dunham to Garry Higgins regarding whether Mr. French stated to Warden Dunham that Mr. French told him that he was threatened in connection with pot-growing before 2009; and
3) A report about the marijuana grown in LaGrange.
Def.’s Suppl. Mem. at 1-4. Mr. French says that a report on his boots would show two sets of foot tracks at the side of the road were not his, that the statements Mr. French made to Warden Dunham relate to the leadership enhancement under the Sentencing Guidelines, that Mike Smith’s threat would be exculpatory, and that the LaGrange marijuana grow is relevant to drug quantity. Id.
B. The Government’s Response
In its response, referring to two letters requesting discovery that defense counsel sent the Government, the Government argues that Mr. French “offers no non-speculative explanation as to how the items listed in the two letters would be material to any sentencing issues” and it contends that he “offers no legal authority upon which the Court could endorse the fishing expedition that he proposes to go on.” Gov’t’s Opp’n at 1. The Government quoted the First Circuit case of United States v. DeCologero, 530 F.3d 36, 64-65 (1st Cir. 2008) as confirming that Brady did not create “a general constitutional right to discovery in a criminal case.” Id. at 2 (quoting DeCologero, 530 F.3d at 64) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). Instead, in order to establish a violation of Brady, “a defendant must provide the court with some indication that the materials to which he or she needs access contain material and potentially exculpatory evidence.” Id. (quoting DeCologero, 530 F.3d at 64-65). Moreover, the Government observes that its obligations under Brady only extend “to information in its possession, custody, or control. . . . While a prosecutor must disclose information maintained by government agents even if the prosecutor herself does not possess the information, this duty does not extend to information possessed by government agents not working with the prosecution.” Id. (quoting United States v. Hall, 434 F.3d 42, 55 (1st Cir. 2006) (citations omitted)).
Once Mr. French narrowed his discovery requests in his supplemental filing, the Government responded specifically to his three points. Regarding the boot report, the Government says it “does not know whether or not the boot exam occurred” and, regardless, it “provided the defendant pre-trial with reports from both law enforcement witnesses [Mr. French] claims were present for the alleged examination.” Gov’t’s Suppl. Opp’n at 2. Regarding the Warden Dunham report, the Government says it learned about the conversation between Warden Dunham and Mr. French during the latter’s testimony at trial. Id. at 4. As such, the Government contends the information was unknown to the Government before trial, yet known to the Defendant at that time, and so it cannot constitute Brady material. Id. Finally, regarding the LaGrange search, the Government says it “provided the information that [it] had regarding” the search, and points out that agents who did not write reports “were at least identified in the reports that were written as being present.” Id. at 6. Moreover, the Government asserts it “cannot be faulted for failing to turn over a document that was not prepared or failing to turn over a non-existent report . . . .” Id. (citing United States v. Alverio-Meléndez, 640 F.3d. 412, 424 (1st Cir. 2011)).
A. Legal Standards
To establish a Brady violation, “a defendant must make three showings. The evidence at issue (whether exculpatory or impeaching) must be favorable to the accused; that evidence must have been either willfully or inadvertently suppressed by the government; and prejudice must have ensued.” United States v. Alverio-Meléndez, 640 F.3d at 424 (internal punctuation and citation omitted). The Government’s disclosure obligations under Brady extend beyond trial to a sentencing hearing. Brady v. Maryland, 373 U.S. 83, 87-88 (1963) (“A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant”) (emphasis supplied). Finally, “evidence is not suppressed if the defendant either knew, or should ...