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August 10, 1988


Robert E. Keeton, United States District Judge.

The opinion of the court was delivered by: KEETON



 Circumstances giving rise to the need for an evidentiary hearing concerning Ryan Quade Emerson ("Emerson") arose while this case was in trial. (A mistrial was subsequently declared after four jurors were excused on defendants' joint motion.) The specific circumstances involved are described more fully in a separate Memorandum and Order of this court dated April 8, 1988 and in the Findings of Fact of the present date.

 After the completion of the Emerson Hearing, the parties were invited to submit proposed findings of fact as well as briefs on the substantive issues of whether (and, if so, to what extent) the government violated any obligations of disclosure, whether defendants were prejudiced by any disclosure violations that could be determined, and what an appropriate remedy would be to correct any prejudice demonstrated or to deter future violations of disclosure obligations. Defendants filed a Memorandum Re: Emerson (Docket No. 1594) and the government filed a Final Submission Regarding Ryan Emerson (Docket No. 1602). This Memorandum responds to these submissions.

 Part I addresses the government's duties of disclosure exclusive of Emerson's status as a government witness at trial. Part II addresses the government's duties of disclosure stemming from Emerson's status as a proposed government witness at trial. Part III summarizes conclusions regarding which disclosure obligations were violated, what information would have been available to defendants had the government complied with its obligations, and when defendants were entitled to receive the information the government was obligated to disclose. Part IV addresses the extent of the prejudice suffered by defendants in light of the conclusions summarized in Part III. Finally, Part V addresses the issue of remedies.

 I. Disclosure Duties Exclusive of Emerson's Status as a Government Witness

 Defendants argue that the government violated several duties of disclosure with regard to evidence about Emerson exclusive of those obligations associated with Emerson's status as a proposed government witness. These include violation of the obligation (A) to disclose exculpatory evidence in accordance with Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and its progeny, (B) to make disclosures in accordance with Rule 16 of the Federal Rules of Criminal Procedure, (C) to disclose the identity of "informants" under United States v. Roviaro, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957), and its progeny, and (D) to disclose evidence pursuant to court order. I address each of these contentions in order.

 A. Brady Obligations

 1. The Standard for Determining Brady Obligations

 (a) The Basic Elements of a Brady Violation

 In Brady v. Maryland, the Supreme Court held 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. at 87. It follows that a violation of Brady involves three elements: (1) "suppression" by the prosecution of evidence that is both (2) favorable to the accused (exculpatory evidence) and (3) "material" to guilt or punishment.

 (1) Suppression

 Implicit in the concept of "suppression" is the idea that the prosecution possesses, or constructively possesses, the evidence at issue. The government does not have a duty to seek out exculpatory evidence not in its possession or constructive possession, United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975), cert. denied, 425 U.S. 905, 47 L. Ed. 2d 756, 96 S. Ct. 1498 (1976), and failure to disclose evidence the government does not have is not "suppression" of evidence. For this reason, it becomes necessary in some cases to discuss the scope of the prosecutor's duty to search for evidence in the files of other offices and agencies of the federal government. This court's Memorandum and Order of April 8, 1988 tentatively defined the scope of the search required at pages 36-37. Neither the government nor the defendants have called to my attention precedent supporting a different conclusion, and I adopt for purposes of this Memorandum the tentative view expressed earlier.

 Under the view tentatively stated April 8 and adopted here, I conclude that all of the evidence that is referred to in this Memorandum was within the constructive possession of the government as defined by the scope of the government's duty to search. Issues presented in the Emerson Hearing do require, however, further attention to the legal issues relevant to determining the time when a Brady obligation of disclosure arises and the need for precise articulation of a basis for the claim that the evidence is "exculpatory" and "material."

 I conclude that if other elements of a Brady violation are established, "suppression" occurs not only where the information is never disclosed voluntarily but also where the information is disclosed later than the time when the obligation arose under Brady. Cf. United States v. Levasseur, 1988 U.S. Dist. LEXIS 18243, Criminal No. 86-180-Y, slip op. at 35 (D. Mass. May 4, 1988) (Young, D.J.).

 Moreover, even if a delayed disclosure were to be regarded as not technically a Brady violation when made in time for use at trial without prejudice, it seems most likely that a duty closely analogous to that defined by Brady and its progeny will and should be recognized. For these reasons, although the fact that a "voluntary" disclosure has occurred in advance of any court ruling may be relevant to remedy, it does not establish that no violation of any disclosure obligation has occurred.

 (2) Exculpatory Evidence

 Exculpatory evidence is evidence that reasonably supports an inference the defendants seek to have drawn on any issue relevant to their guilt or punishment. Evidence is never exculpatory per se, or in the abstract. Rather, evidence is exculpatory only by reference to issues placed in dispute by substantive criminal law definitions of the offenses charged and any affirmative defenses asserted.

 Because the meaning of "exculpatory" for any particular claim of a Brady violation must be determined in relation to an identifiable issue in the case, it is necessarily implicit in the standard for determining Brady obligations that any determination as to whether the government had a Brady obligation of disclosure of information at any particular time depends on what was or reasonably should have been known to the appropriate government representative(s) at that time. This is so for the reason that one cannot know what issues will be in dispute, under substantive criminal law definitions of the offenses charged and any affirmative defenses asserted, without first knowing enough about the evidence on which the government relies and on which defendants may rely to be able to identify what are the legally relevant issues. From the foregoing point it follows that any determination as to existence or nonexistence of a Brady obligation of disclosure must be time-sensitive. It must be made on the basis of what was or should have been known to the government (through its appropriate representatives) at the time when the obligation is claimed to have arisen.

 The government, in deciding whether it has an obligation to disclose voluntarily, may at a later time, after it has access to more information bearing upon issues in the case, have a Brady obligation to disclose something long in its possession but first identifiable as Brady material only when additional evidence revealing new issues has become available to the government. Similarly, a court, in determining whether a defendant's claim of a Brady violation is supported, must examine the question by a time-sensitive standard, or by two or more such standards if it is claimed that as more information came into government hands it bridged any gaps previously existing in the claimed basis for a Brady obligation.

 For these reasons, with respect to any evidence as to which the defendants contend that a Brady obligation has been violated, the court cannot determine whether the claim is valid (and cannot determine that the government had an obligation of disclosure) without first identifying (whether with or without the assistance of defense counsel in articulating their contentions explicitly) a defense theory for which the evidence in question is exculpatory.

 (3) Material Evidence

 The government's Brady obligation attaches only to exculpatory evidence that is "material." It is not clear exactly what "material" means in this context. At the least, it means that the evidence required to be disclosed must be something more than simply exculpatory as defined above. Brady is based on the due process clause, and the prosecutor is only required to disclose evidence that, if suppressed, would deprive the defendant of a fair trial. See United States v. Bagley, 473 U.S. 667, 675, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Because the Supreme Court did not render a majority opinion on the issue of materiality in Bagley, the best definition available is that provided in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976): "A fair analysis of the holding in Brady indicates that implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial." Id. at 104 (emphasis added). Evidence is not material, and no Brady obligation to disclose it arises, unless it is evidence that "might have affected the outcome of the trial."

 (b) Articulated Issues and Time-Sensitive Determinations

 At various times during conferences in this case regarding defense claims of Brady violations, the court has invited defense counsel to articulate their Brady theories. Defense counsel have responded that they have no obligation to articulate any theory and, in addition, have chosen not to waive their right not to disclose to the government evidence they may offer after the government has rested at the close of its case in chief. Defense counsel's response, which has been repeated in written submissions during the Emerson Hearing, misses the mark because it disregards the necessity for a context of identifiable facts within which to make a determination as to whether particular information does or does not tend to support an inference relevant to a matter placed at issue by the substantive criminal law definitions of the offenses charged and any defenses asserted.

 Likewise off the mark, and for the same reason, are the defense contentions, first, that all Brady material must be disclosed in advance of the commencement of trial, second, that any evidence that tends to support any one element of a defensive theory must be disclosed pursuant to Brady without regard to whether the court (or the government acting "voluntarily") can determine that there will be some evidence bearing upon each other element of that defensive theory sufficient to support submission of the defense to the jury, and, third, that Brady requires disclosure of evidence that may lead to the discovery of other evidence not in possession of the government that, together with evidence to which the government has access, might be sufficient to support submission of some defense to the jury.

 A central fallacy in all these contentions is the failure to take account of the fact that no determination can be made either that evidence is exculpatory or that it is material unless the person making the determination first has in mind the essential elements of some identified criminal charge or some identified defense.

 It is true, as defendants argue, that in this district Local Rule 42 provides that in all criminal cases, all exculpatory evidence within the meaning of Brady "in the possession, custody or control of the parties, the existence of which is known, or by the exercise of due diligence may become known, to the attorneys for the parties, shall be disclosed to the opposing party" in all events within fourteen (14) days after arraignment. Local Rule 42 also recognizes, however, that the duty of disclosure is a continuing one. Local Rule 42(c).

 The need for a continuing obligation, applicable after as well as before trial commences, arises in part from the fact that some evidence may first come into the possession of the government after trial commences. It arises also, however, from the fact that evidence in the possession of the government from the outset may not be recognizable as exculpatory and material until the government has access to information that comes into its possession at a later time. Thus, it defies common sense to say, as defendants have argued in effect, if not explicitly, that a Brady violation occurred where the government did not disclose before commencement of trial information then in its possession but first recognizable as exculpatory only when additional information came into its possession during trial.

 Defendants are, of course, correct in saying that they cannot be required to waive their right not to disclose in advance their strategy as to what evidence they may offer after the government has completed its case in chief. It does not follow, however, that they are therefore entitled (as they have argued) to have the jury hear during cross-examination of government witnesses, or even after the government has rested, whatever evidence defendants wish to offer that they contend is relevant to some defense (entrapment, for example) when they have made no showing to the court, by proffer or otherwise, that the evidence will be relevant to any issue to be submitted to the jury.

 Defendants have argued, quite explicitly, that they have a right to have the jury hear evidence they claim to be admissible on a theory of entrapment, without any showing from which the court can determine that entrapment is an issue properly to be submitted to the jury, and that the government has only a right to have the court instruct the jury to disregard the evidence if defendants do not make good their representation that they will, before the trial is over, offer evidence sufficient to take the issue of entrapment to the jury. This argument must be rejected. If it were sustained, a court would be without power to limit the evidence heard by the jury to evidence relevant to the issues submitted to the jury. Courts would then lack control essential to both the fairness of trials and to reasonable limitations of length.

 The court will not require a proffer by defendants. The court will, however, make its determinations regarding claimed Brady violations on the basis of the submissions before the court. If defendants wish not to disclose evidence of which neither the government nor the court is aware, they are free to take that course. If that undisclosed evidence is sufficient (when taken together with other evidence that is known or should be known to the government) to trigger a Brady obligation, the obligation will arise only when the disclosure is made, not before.

 2. Evidence Related to Obstruction-of-Justice State of Mind

 It is worth noting, first, that the defendants' characterization of the government's position with respect to the significance of the notebooks is not accurate. The government's primary argument has been that the notebook entries show that the defendants were aware of the Boston situation and cultivated sources with information on Boston. Further, the notebook entries were used, the government argues, for later discussions among defendants about the Boston situation and to brief Lyndon LaRouche. The defendants' erroneous overstatement of the government's position is not determinative, however, because after the overstatement is disregarded there remains a distinct difference between the government's view of the notebooks and that of the defendants.

 The principal reason for rejecting defendant's argument with respect to the Brady character of information about Emerson as it relates to differing interpretations of the notebooks is that nothing revealed about Emerson at the hearing has any rational tendency to support one of these interpretations over the other. Emerson's contacts with the government, whatever their scope may have been, do not speak to the issue of the character of defendants' notebooks. There is no logical chain of argument that begins "Emerson had extensive contact with the FBI" and ends "thus you should conclude that the defendants merely recorded whatever a source told them and did not use their notebooks for later discussions or to brief Mr. LaRouche." Therefore, the Emerson information is not exculpatory on this theory, and no Brady obligation attached on this ground.

 Defendants make a second state-of-mind argument under Brady. Defendants have made well known that one of their major theories of defense is lack of corrupt intent as defined by the substantive criminal law of obstruction of justice. Specifically, defendants have argued that certain acts allegedly undertaken in violation of the obstruction-of-justice laws were done not with the intent to obstruct the grand jury but solely with the intent to thwart perceived FBI harassment. The court already has made an in limine ruling that this is a valid defense, if supported by evidence. See Memorandum and Order of April 8, 1988, pp. 23-24. That same Memorandum noted, however, that not all evidence of "FBI harassment" is relevant to state of mind (and, on this ground, exculpatory). Id.

 Evidence tending to show that the FBI in fact infiltrated or otherwise "harassed" entities associated with Mr. LaRouche but were never detected by NCLC members is not exculpatory (on this state-of-mind theory) because it does not tend to make less likely a reasoned inference that any alleged act of obstruction of justice or overt act in furtherance of the conspiracy was undertaken with an obstruction-of-justice state of mind. Cf. United States v. Burks, 152 U.S. App. D.C. 284, 470 F.2d 432, 434-35 & n.5 (D.C. Cir. 1972) (holding that extrinsic proof of specific acts of violence is admissible where a claim of self-defense is raised and where there is evidence that defendant knew of the deceased's character). Defendants have not argued that they were aware, at the time any alleged acts of obstruction or overt acts occurred, that Emerson was connected with the FBI. Indeed, they have argued the contrary. Because information about Emerson of which they were unaware could not have affected their state of mind, defendants argument (on this theory) that undisclosed information of Emerson's FBI connections is exculpatory and Brady material must be rejected.

 3. Evidence Related to Entrapment Theories

 Another of the primary strategies defendants have declared they intend to pursue in this case is an entrapment defense. The backbone of this argument is that Forrest Lee Fick and Roy Frankhauser were government agents who suggested the very conduct the prosecution relies upon to make its case and, further, "fed" incriminating entries into the defendants' notebooks. Under this defense theory, Fick and Frankhauser were government agents during the life of the alleged conspiracy. Defendants contend that it is exculpatory that Emerson, another government "plant", made "similar suggestions" to those made by Fick and Frankhauser.

 On the record before me, defendants' contention, as stated, suffers from serious gaps in factual support. As factfinder, with respect to issues presented by the Emerson Hearing, I have found that Emerson did not make any suggestions to defendants that "closely parallel" (as defendants' phrase their contention) the statements of Fick and Frankhauser relied on by the government. In fact, I have found no entries attributed in the defendants' notebooks to Emerson that contain an invitation to criminal wrongdoing. See Findings of Fact, paras. 20, 36. A narrower contention remains to be addressed, however.

 Defendants contend that even if Emerson's suggestions are not similar to those of Fick and Frankhauser, evidence of Emerson's association with the FBI is nevertheless exculpatory because Emerson, like Fick and Frankhauser, was an intelligence source of the Security Staff and the fact that he was recruited by the FBI reinforces the inference that Fick and Frankhauser were also. Some of the elements of this narrower contention are supported by the facts. As noted in Part I.A.1. above, however, support for some but not all of the elements essential to presenting an issue for the jury is not enough to trigger a Brady obligation. See supra slip op. at pp. 6-9.

 A Brady obligation to disclose evidence arises only where that evidence "might have affected the outcome of the trial." At a minimum, it is clear that evidence supportive of a theory on which there is insufficient evidence to create a jury issue cannot be material. Such evidence could never affect the outcome of the trial (unless the jury disregarded the court's instructions). Therefore, the court cannot determine that a Brady obligation attaches on an entrapment theory unless it finds (1) there is enough evidence within the government's possession to create a jury issue on entrapment, or (2) the evidence in the government's possession in combination with evidence the defendants have called to the attention of the court is enough to support a court ruling that the evidence supports an instruction to the jury on entrapment.

 "[A] valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews v. United States, 485 U.S. 58, 108 S. Ct. 883, 886, 99 L. Ed. 2d 54 (1988). The trial court will not instruct on entrapment and make it a jury issue unless the evidence presented is sufficient to support both elements of the entrapment defense. United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986); United States v. Murphy, 852 F.2d 1, slip op. at 8-11 (1st Cir. 1988). In the case at bar, the only evidence of entrapment before the court at this stage, involving Emerson in any way, is the evidence that Emerson was an intelligence source of the defendants' Security Staff and was recruited by the FBI. Viewed most favorably to defendants, this evidence is insufficient to support the chain of argument that Fick and Frankhauser were government agents during the life of the conspiracy. Without more, this evidence is too attenuated for a reasoned inference that defendants were induced by government agents to commit the crimes with which they are charged. Nor have defendants called to the court's attention other evidence that would, when considered together with this evidence about Emerson, be sufficient to support the reasoned chain of inference essential to this entrapment theory.

 A second reason the court cannot determine that the evidence at the Emerson Hearing is exculpatory in relation to an entrapment theory is that defendants have not called to the court's attention evidence supporting the second required element of entrapment -- lack of predisposition.

 For these reasons, I conclude that, because the information the government failed to disclose (in combination with other information the government possesses or in combination with other information called to the court's attention by defendants) would not create a jury issue on entrapment, the court cannot determine that the information is material within the meaning of Brady and cannot determine that a duty to disclose it was violated. Cf. United States v. Giry, 818 F.2d 120, 130-31 (1st Cir.) (holding that no duty to disclose the name and address of an informant arose because the informant's testimony could not reasonably have provided evidence on lack of predisposition without which there would be no jury issue on entrapment), cert. denied, 484 U.S. 855, 108 S. Ct. 162, 98 L. Ed. 2d 116 (1987); United States v. Imbruglia, 617 F.2d 1, 6 (1st Cir. 1980) (noting that "though this [undisclosed] evidence may possibly indicate solicitation, solicitation alone is not entrapment").

 Defendants have argued, in addition to their contentions about the similarity between the government's recruitment of Emerson and the alleged recruitment of Fick and Frankhauser, that the government's reference in its opening to a notebook entry attributed to Emerson makes exculpatory the evidence that Emerson made the "successful blocking" statement at a time after he had been asked by Special Agent Klund to re-establish contact with the defendants. Defendants contend that this evidence is exculpatory because it supports an argument (though exactly how or in what way it can be said to support the argument has not been made explicit) that the government entrapped the defendants by "feeding" statements into their notebooks and relying on those statements as overt acts of the conspiracy. For substantially the reasons stated above, I conclude that the evidence that Klund had asked Emerson to re-establish contact with the defendants is not Brady information because other evidence essential to making it material has not been called to the court's attention. The unexplained assertion that evidence supports an argument, without any reasoned explanation of how it does so, leaves a gap in the chain of reasoned explanation. Thus, this is another instance in which defendants argue that evidence of a single link in a chain of reasoning is exculpatory, without calling attention to evidence supporting other links, the absence of which makes this evidence immaterial.

 4. Other Brady Theories

 Defendants make two further contentions with respect to other evidence they argue the government was obligated to disclose pursuant to Brady.

 (a) The "Cover Story "

 The defendants argue that the failure to disclose until well into the Emerson Hearing AUSA John Markham's personal role in conceiving the Emerson "cover story" was a "blatant violation of Brady." Although I find that Markham knowingly failed to disclose his role until late in the hearing, I conclude that the government had no reason to believe, at any earlier time, that his personal involvement in the cover story was exculpatory and, as a result, the government was not obligated to disclose it under Brady. Even now, defendants have articulated no theory in relation to issues presented by this case, and the court is not aware of any, under which Markham's personal role in the cover story is material to any issue to be submitted to the jury. Moreover, long before Markham's role was disclosed, the government disclosed that Klund, without question a government agent, told Emerson what to say when he met defendants in late September 1986. Thus, even if the fact that Emerson was provided a cover story by a government agent may become relevant to some issue before the jury at trial -- whether entrapment, state of mind, or any other defense -- I conclude that I cannot determine that the government should have determined, at a time before Markham's involvement was disclosed, that the fact of his involvement was exculpatory.

 (b) The Franks Argument

 Defendants argue that the government's failure to disclose information that would have provided evidence for relief under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), was a violation of Brady. Under Franks, defendants are entitled to an evidentiary hearing as a prelude to a motion to suppress if (1) they make a substantial preliminary showing that a false statement was made, with knowledge of its falsity or with reckless disregard for its truth or falsity, in connection with a warrant affidavit and (2) the false statement is necessary to a finding of probable cause. Id. at 155-56. Defendants are required to support their allegations with specific offers of proof. Id. at 171-72.

 (1) The Evidence Not Disclosed

 The evidence not disclosed in this case that defendants rely upon is evidence that (1) contrary to the literal statement in paragraph 4 of the affidavit, Special Agent Richard Egan did not personally speak with Emerson (John Doe No. 15) but relied on Klund's representations as to Emerson's reliability and the information he provided with respect to the location of the security offices, (2) John Doe No. 15 was never invited into the office by Michelle Steinberg, and (3) no map with the particularity detailed in the affidavit was ever described to Egan or (perhaps) ever existed. Findings of Fact, paras. 71-75. If available to defendants, this evidence would have provided them with substantial evidence that one or more false statements were made in connection with the warrant affidavit. Nevertheless, even if a finding of reckless disregard could be made (a finding I do not make on the record before me), a Franks hearing would not ...

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