United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON MOTION OF DEFENDANT FREDERICK BAKER TO COMPEL PRODUCTION OF MANDATORY DISCOVERY MATERIALS BY THE GOVERNMENT (Dkt. No. 22)
KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE
Before the court in this criminal case is a motion by defendant Frederick H. Baker (“Defendant”) to compel the production of discovery (Dkt. No. 22). The government opposes the motion (Dkt. No. 28). The court held a hearing on Defendant’s motion on September 2, 2015. For the following reasons, and as more fully set forth below, the court grants in part and denies in part Defendant’s motion.
II. Relevant background
a. Summary of factual allegations
On February 5, 2015, the government filed an information (“the Information”) charging Defendant, in Count One, with conspiring with others to violate the Clean Air Act, 42 U.S.C. § 7413(c)(2)(C) (“the Act”) by knowingly and willfully falsifying, tampering with, and rendering inaccurate a monitoring device and method required to be maintained by Defendant’s employer, the Berkshire Power Plant, and in Counts Two through Four with tampering with a monitoring device and method required to be maintained under the Act (Dkt. No. 1 at 9-12). According to the Information, Defendant was the operations and maintenance manager at Berkshire Power Plant (“the Plant”), a natural gas-fired power plant located in Agawam. Among other things, Defendant was responsible for overseeing Plant operators and the instrumental control and environmental compliance technician, whose responsibilities included calibration and maintenance of the Plant’s continuous emissions monitoring system (“CEMS”). In summary, the Information alleges that Defendant, at the direction of the Plant’s general manager (now deceased) and over a period of years, directed employees to tamper with the CEMS to save money, delay repairs, and avoid reporting to federal and state regulators that the Plant, at times, was releasing certain pollutants in excess of the hourly legal limits established by the Plant’s operating permit (id. at 1-2).
b. Procedural posture
On January 15, 2015, before the Information was filed, Defendant signed a plea agreement (“the Agreement”) which provided that, at the earliest practicable date, Defendant would waive indictment and plead guilty to the Information (Dkt. No. 2). In signing the Agreement, Defendant acknowledged that he understood the crimes to which he was agreeing to plead guilty; the maximum penalties for those crimes; and the penalties potentially applicable under the United States Sentencing Guidelines (“U.S.S.Gs.” or “U.S.S.G.”). He further acknowledged that he was entering into the Agreement “freely, voluntarily, and knowingly because [he was] guilty of the offenses to which [he was] pleading guilty, and [he] believe[d] this Agreement [wa]s in [his] best interest” (id. at 8). On February 10, 2015, the court scheduled a March 16, 2015 hearing (subsequently rescheduled to March 24, 2015) for Defendant’s waiver of indictment and plea to information before District Judge Mark G. Mastroianni (Dkt. Nos. 3, 6). On March 19, 2015, Defendant filed an emergency motion to convert the waiver of indictment and plea hearing into a discovery conference (Dkt. No. 8). Judge Mastroianni canceled the plea hearing and referred the case to the undersigned for a discovery conference, following which Defendant filed his motion to compel discovery; the government filed its opposition thereto; and the court heard argument from the parties.
a. Discovery in connection with a guilty plea
Defendant’s primary contention is that the government must produce all so-called Brady material in advance of his guilty plea and that it has failed and refused to do so (Dkt. No. 23 at 2-4). In the memorandum in support of Defendant’s motion, he has identified a lengthy list of documents and information, all of which, he contends, is Brady material that the government must produce in advance of his plea (id. at 14-32). “Before making rulings on the individual requests contained in the [m]otion, some preliminary remarks are [appropriate] to establish the discovery landscape.” United States v. Geas, No. 08-CR-30029-MAP, 2009 WL 4430100, at *1 (D. Mass. Nov. 30, 2009).
Under Brady v. Maryland, 373 U.S. 83 (1963), a criminal defendant is entitled to the production by the government of exculpatory evidence that is material to guilt or punishment. See, e.g., United States v. Bulger, 928 F.Supp.2d 305, 324 (D. Mass. 2013). Evidence is considered “material if its disclosure has a ‘reasonable probability’ of affecting the outcome at trial.” Id. (quoting United States v. Aviles-Colon, 526 F.3d 1, 20 (1st Cir. 2008)). “The animating principle of Brady is the ‘avoidance of an unfair trial.’” United States v. Mathur, 624 F.3d 498, 506-07 (1st Cir. 2010) (quoting Brady, 373 U.S. at 87). Accordingly, notwithstanding Brady, the United States Supreme Court has held that “the Constitution does not require the Government to disclose material impeachment evidence prior to entering into a plea agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002). Nor does the Constitution require the government to produce information in advance of a plea regarding any “affirmative defense” a defendant might raise at trial. Id. This is so because:
the need for this information is more closely related to the fairness of a trial than to the voluntariness of the plea; the value in terms of the defendant’s added awareness of relevant circumstances is ordinarily limited; yet the added burden imposed upon the Government by requiring its provision well in advance of trial (often before trial preparation begins) can be serious, thereby significantly interfering with the administration of the plea-bargaining process.
Id. (emphasis in original).
In Ruiz, the Supreme Court acknowledged that to be voluntary, a plea must be knowing, intelligent and sufficiently aware, and that the more information a defendant has, the more informed will be his plea decision. See Id. at 629. “To date, [however, ] the Supreme Court has not addressed the question of whether the Brady right to exculpatory material, in contrast to impeachment information might be extended to the guilty plea context[, ]” United States v. Moussaoui, 591 F.3d 263, 286 (4th Cir. 2010) (emphasis in original), and there is a split among the circuits on this point. See and compare United States v. Conroy, 567 F.3d 174, 179 (5th Cir. 2009) (Brady does not require that exculpatory information be turned over before entry of a plea); McCann v. Mangialardi, 337 F.3d 782, 787-88 (7th Cir. 2003) (Ruiz implies that Brady-type disclosures of exculpatory evidence might be required before a plea). The First Circuit has not ruled on this issue, although it has stated, in the context of a defendant’s collateral attack on his conviction, that “Brady does not protect against the possible prejudice that may ensue from the loss of an opportunity to plea-bargain with complete knowledge of all relevant facts. That makes good sense: when a defendant chooses to admit his guilt, Brady concerns subside.” Mathur, 624 F.3d at 507. It bears noting that the Supreme Court has rejected the notion that “whenever a defendant alleges that [undisclosed] evidence might be material, the appropriate method of assessing this claim is to grant full access to the disputed information[.]” Pennsylvania v. Ritchie, 480 U.S. 39, 9 (1987). “There is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977); see United States v. Tsarnaev, Criminal Action No 13-10200-GAO, 2013 WL 6196279, at *2 (D. Mass. Nov. 27, 2013). “’The government is primarily responsible for deciding what evidence it must disclose to the defendant under Brady.’” Tsarnaev, 2013 WL 6196279, at *2 (quoting United States v. Prochilo, 629 F.3d 264, 268 (1st Cir. 2011)). Further, the First Circuit has held that evidence that is cumulative of other exculpatory evidence that has been disclosed generally is not material for purposes of Brady. See United States v. Paladin, 748 F.3d 438, 446 (1st Cir. 2014) (citing Aviles-Colon, 536 F.3d at 19; Moreno-Morales v. United States, 334 F.3d 140, 148 (1st Cir. 2003)). Finally, “if the defendant knows of the specific exculpatory information, Brady does not require disclosure.” United States v. Clark, 767 F.Supp.2d 12, 52 (D.D.C. 2011).
“[E]vidence is exculpatory only by reference to issues placed in dispute by substantive criminal law definitions of the offenses charged[.]” United State v. LaRouche Campaign, 695 F.Supp. 1290, 1296 (D. Mass. 1988). Defendant is charged with conspiring to violate the Act by knowingly and willfully falsifying, tampering and rendering inaccurate a monitoring device and method required to be maintained under the Act. Defendant acknowledges knowing about three types of adjustments that were made to the Plant’s CEMS in different time frames. The Information alleges that, beginning in or around at least October 2008 and continuing through in or about the spring of 2010, the Plant’s general manager instructed Defendant to direct the instrumental control and environmental compliance technician to make adjustments to the CEMS oxygen and the nitrogen oxides monitor. Defendant denies knowing that these adjustments were illegal. At the September 2, 2015 hearing, the government represented that (while it had its suspicions), it would not argue at sentencing that Defendant caused these adjustments to be made willfully (in other words, with knowledge of their illegality). From in or around May 2010 and continuing through in or about March 2011, Defendant directed staff members at the Plant to make additional adjustments to the CEMS monitors. The government contends that Defendant gave these directions with knowledge of their illegality; Defendant contends otherwise (Dkt. No. 1 at 10; Dkt. No. 23 at 6). Finally, according to the Information, in or around late 2010 through March 2011, at the direction of Defendant and the Plant’s general manager, staff members at the Plant made additional mid-shift adjustments to the CEMS monitors “to disguise the fact that the plant was releasing emissions at warning levels and beyond its hourly permit limits” (Dkt. No. 1 at 10). Defendant acknowledges knowing that some adjustments made at the very end of his employment at the Plant were illegal (Dkt. No. 23 at 6). Defendant claims that the additional discovery he seeks from the government is material to the question of whether he acted with knowledge of illegality as to certain adjustments made from in or around May 2010 through March 2011, and that this question of willfulness, or knowledge of illegality, could affect the punishment imposed on him by the District Judge.
Assuming that Defendant has a right to exculpatory information in advance of his guilty plea, there are questions (in addition to materiality) about whether certain disclosures are required to be made prior to a plea to information and the form in which the government is required to disclose exculpatory information. Defendant contends that, before any Rule 11 hearing in this case, he is entitled to the disclosures mandated by Local Rule 116.2(b)(1)-(3), and the “written summary of any information in the government’s possession that tends to diminish the degree of the defendant’s culpability or the defendant’s Offense Level under the United States Sentencing Guidelines” mandated by ...