ORDER GRANTING IN PART AND DENYING IN PART WILLIAM L. HART'S MOTION FOR DISCLOSURE OF BRADY MATERIAL AND EVIDENCE FAVORABLE TO THE DEFENDANT

GADOLA, District Judge.

William L. Hart seeks pretrial disclosure of Brady material, Jencks Act material and Fed.R.Crim.P. 16 material.

The government does not oppose the motion with respect to the Fed.R.Crim.P. 16 material.

With respect to the Brady and Jencks Act material, the dispute is primarily over when, not whether, the requested information will be disclosed. The court will deal separately with four categories of information. First, the court will analyze Brady material that is directly exculpatory and not covered by the Jencks Act. Second, the court will analyze Brady material that is nonexculpatory impeachment evidence and not covered by the Jencks Act. Third, the court will analyze nonexculpatory impeachment material that is covered by both Brady and the Jencks Act. Fourth, the court will analyze directly exculpatory information that is covered by both Brady and the Jencks Act.

A. Directly Exculpatory Material Covered by Brady and Not Covered by the Jencks Act

The government argues that "it is within the sole discretion of the government, within due process limits, when and whether to turn over [ Brady] material to the defendants." Government's brief at p. 3. Granted, the government must disclose material within due process limits. However, it is the court's responsibility to fix those due process limits, rather than have the same determined by the government's "sole discretion." As the court pointed out in United States v. Starusko, 729 F.2d 256, 261 (3rd Cir. 1984), "the district court has general authority to order pretrial disclosure of Brady material `to ensure the effective administration of the criminal justice system.'" (Citation omitted).

Ordinarily, Brady material must be disclosed "in time for its effective use at trial." United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983); accord, United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988). However, in United States v. Starusko, 729 F.2d 256, 261 (3rd Cir. 1984), the court noted that an order requiring pretrial disclosure of Brady material "perpetuated our longstanding policy of encouraging early production." Whether pretrial disclosure would be required under the "effective use" standard depends on the circumstances of each individual case. However, some courts have held that due process obligates the prosecutor to disclose exculpatory information as soon as the character of such information is recognized, which may require pretrial disclosure. See e.g., United States v. Hildebrand, 506 F.2d 406 (5th Cir. 1975), cert. denied 421 U.S. 968, 95 S.Ct. 1961, 44 L.Ed.2d 457; United States v. Pollack, 534 F.2d 964 (D.C. Cir. 1976), cert. denied 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292.

Conversely, other courts have held that due process is not violated when Brady material is not disclosed until the time of trial or until immediately before introduction of the corresponding inculpatory evidence. See e.g., Patler v. Slayton, 503 F.2d 472 (4th Cir. 1974); United States v. Cole, 449 F.2d 194 (8th Cir.), cert. denied 405 U.S. 931, 92 S.Ct. 987, 30 L.Ed.2d 806 (1972). The Sixth Circuit has specifically held as follows:

In general, the principles announced in Brady do not apply to a tardy disclosure of exculpatory information, but to a complete failure to disclose. (Citation omitted). If previously undisclosed evidence is disclosed, as here, during trial, no Brady violation occurs unless the defendant has been prejudiced by the delay in disclosure.

B. Nonexculpatory Impeachment Material Covered by Brady and Not Covered by the Jencks Act

As the court noted in United States v. Five Persons, 472 F. Supp. 64, 67 (D.N.J. 1979), "it is difficult to imagine information more material to the preparation of the defense than credibility items for critical or major government witnesses." (emphasis supplied). In Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972) the Court held that "[w]hen the `reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within [the Brady rule]. (citation omitted)." In United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) the Court held for purposes of the Brady rule there is no difference between exculpatory evidence and impeachment evidence. In United States v. Buchanan, 891 F.2d 1436, 1443-44 (10th Cir. 1989) the court expounded, as follows, on the scope of Brady with respect to impeachment evidence:

Brady does not "automatically require a new trial `whenever a combing of the prosecutors' files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict[.]'" Giglio, 405 U.S. at 154, 92 S.Ct. at 766 (quoting United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968)). Only where a witness' credibility is material to the question of guilt does the prosecutor's failure to disclose impeachment evidence violate Brady. In Giglio, the government failed to disclose its plea agreement with the only witness linking defendant with the crime. 405 U.S. at 151, 92 S.Ct. at 764-65. Because that witness' credibility was "an important issue in the case, and any understanding or agreement as to a future prosecution . . . [was] relevant to his credibility," failure to disclose such an agreement violated Brady. Giglio, 405 U.S. at 155, 92 S.Ct. at 764-65. See also Davis [ v. Alaska], 415 U.S. [308], 317, 94 S.Ct. [1105], 1111 [ 39 L.Ed.2d 347] (credibility of prosecuting witness was a key element in state's case); Talamante v. Romero, 620 F.2d 784, 787 (10th Cir.) (where government's case rested entirely on eyewitness identification, failure to disclose police investigation of suspect resembling defendant violated Brady), cert. denied, 449 U.S. 877, 101 S.Ct. 223, 66 L.Ed.2d 99 (1980).

Conversely, where a witness' credibility is not material to the question of guilt, failure to disclose impeachment evidence does not violate Brady. In United States v. Bonnett, 877 F.2d 1450, 1459 (10th Cir. 1989), we held that the government's failure to disclose that the author of a letter admitted into evidence was under indictment did not violate Brady where the content of the letter was "legally irrelevant" to defendant's guilt; hence the author's credibility was immaterial. In cases where the withheld impeachment evidence is merely cumulative, we have similarly declined to find a Brady violation. See United States v. Page, 808 F.2d 723, 730 (10th Cir.) (where jury already knew that government's principal witness had been arrested several times, failure to disclose additional arrest did not violate Brady), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987); United States v. Haskins, 737 F.2d 844, 852 (10th Cir. 1984) (failure to disclose government assistance to witnesses in obtaining prison transfer was only cumulative impeachment). Moreover, where a prosecuting witness is not key to the government's case, his credibility is not material; hence the failure to reveal impeachment evidence concerning a minor witness does not violate Brady. See [ U.S. v.] Warhop, 732 F.2d [775], 778-79 (credibility of co-conspirator immaterial to defendant's guilt where focal point of government's case is conspiracy between defendant and other charged parties). Thus, while impeachment evidence falls under the general Brady rule requiring disclosure of exculpatory evidence, it is subject to the same standard of materiality as other forms of exculpatory evidence.

Thus, evidence that tends to impeach a key government witness falls within the ambit of Brady if the witness' credibility is material to the question of guilt. Defendant's motion seeks information affecting the credibility of any and all witnesses. Because this court was not asked to determine whether impeachment evidence relating to any particular witness would be material under Brady, it cannot rule on defendant's motion at this time. However, the court notes that to the extent the government makes an independent determination that impeachment evidence with respect to any key witness is material under Brady, the government is ordered to disclose such information prior to trial and as expeditiously as possible.

C. Nonexculpatory Impeachment Material Covered by Both Brady and The Jencks Act

To the extent that nonexculpatory impeachment material is covered by both Brady and the Jencks Act, 18 U.S.C. § 3500(a), pretrial disclosure has been held to be violative of the Jencks Act. In United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988), for example, the Sixth Circuit held as follows:

If impeachment evidence is within the ambit of the Jencks Act, then the express provisions of the Jencks Act control discovery of that kind of evidence. The clear and consistent rule of this circuit is that the intent of Congress expressed in the Act must be adhered to and, thus, the government may not be compelled to disclose Jencks Act material before trial. See United States v. Algie, 667 F.2d 569, 571 (6th Cir. 1982); United States v. Carter, 621 F.2d 238, 240 (6th Cir. 1980). Accordingly, neither Giglio nor Bagley alter the statutory mandate that any "statement"⁸ in the government's possession related to the subject matter of a government witness's testimony shall not "be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a).

In the past, we have noted that the Act was designed to prevent defendants from engaging in "blind fishing expeditions" through the government's files, see, e.g., United States v. Pope, 574 F.2d 320, 324 (6th Cir. 1978), but at the same time, to assure defendants of their Sixth Amendment right to confront their accusers by compelling the government to produce statements useful for impeachment of government witnesses. United States v. Carter, 613 F.2d 256 (10th Cir. 1979). The Act accommodates both of these concerns by protecting the government's interests before trial and by protecting the defendant's rights at trial, since under the Act the impeachment material is disclosed in time to be used by the defense at trial. We have found only one federal appellate court which has discussed whether material arguably exempted from pre-trial disclosure by the Jencks Act yet also arguably exculpatory material under the Brady doctrine must be disclosed before trial. The Third Circuit stated in United States v. Higgs, 713 F.2d 39 (3rd Cir. 1983), and also in United States v. Starusko, 729 F.2d 256 (3rd Cir. 1984), that it believes the Brady doctrine is not violated if Brady material is disclosed in time for its "effective" use at trial. See Starusko, 729 F.2d at 262; Higgs, 713 F.2d at 44. We agree with this reasoning. Preserving the defendant's ability to defend himself effectively at trial is the underlying purpose of the criminal discovery rules. Therefore, so long as the defendant is given impeachment material, even exculpatory impeachment material, in time for use at trial, we fail to see how the Constitution is violated.⁹ Any prejudice the defendant may suffer as a result of disclosure of the impeachment evidence during trial can be eliminated by the trial court ordering a recess in the proceedings in order to allow the defendant time to examine the material and decide how to use it.

(1) a written statement made by said witness and signed or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or

(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury. 18 U.S.C. § 3500(e).

⁹ In Starusko, however, the Third Circuit did indicate that in its view, there may be special circumstances when the Brady doctrine may require the disclosure of Jencks Act material before trial. In the Third Circuit's view, the situation could arise when the Jencks Act material truly is exculpatory of the charge against the defendant. See Starusko, 729 F.2d at 262-65. The court implied however, that the Brady doctrine may require pre-trial disclosure in such a situation because of the due process foundation of the doctrine, that is, that it is fundamentally unfair of the prosecution to withhold from the defendant until trial material which seemingly does prove innocence and therefore, which could obviate the need for a trial altogether. The Third Circuit noted that a prosecutor who withholds such material most likely violates professional ethical canons. However, the court did not state that it was establishing the rule that if exculpatory material is disclosed in time for use at trial, but that the material could have been disclosed earlier, a violation of constitutional law has occurred. Given the court's explicit holding that disclosure in time for effective use at trial is all that the Brady doctrine requires, we do not read the Starusko decision as undermining the conclusion we have reached in this case.

Thus, under Presser, the government cannot be compelled to make pretrial disclosure of nonexculpatory impeachment material that is covered by both Brady and the Jencks Act. Such material need not be disclosed "until the witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a). If prejudice might otherwise result from such delayed disclosure, the trial court can obviate the prejudice by "ordering a recess in the proceedings in order to allow the defendant time to examine the material and decide how to use it." Presser, at 1284. Accordingly, to the extent the defendant seeks pretrial disclosure of nonexculpatory impeachment material that is covered by both Brady and the Jencks Act, his motion will be denied. The government will not be required to disclose such material "until the witness has testified on direct examination." 18 U.S.C. § 3500(a).

D. Directly Exculpatory Material Covered by Both Brady and the Jencks Act

The law with respect to disclosure of Brady material that is directly exculpatory and also covered by the Jencks Act is less than clear. This court reads the decision in Presser as standing for the proposition that any Brady material, even if directly exculpatory, that is also covered by the Jencks Act need not be disclosed until after the witness whose statements are sought has testified on direct examination. In any event, the rationale behind the Presser opinion applies with equal force to both directly exculpatory statements and impeachment statements covered by the Jencks Act.

The holding in Presser with respect to the potential conflict between the Jencks Act and Brady material is that "[i]f impeachment evidence is within the ambit of the Jencks Act, then the express provisions of the Jencks Act control discovery of that kind of evidence." Presser, 844 F.2d at 1283 (emphasis supplied). However, the court goes on to say as follows:

[S]o long as the defendant is given impeachment material, even exculpatory impeachment material, in time for use at trial, we fail to see how the Constitution is violated. Any prejudice the defendant may suffer as a result of disclosure of the impeachment evidence during trial can be eliminated by the trial court ordering a recess in the proceedings in order to allow the defendant time to examine the material and decide how to use it." Id. at 1283-84 (footnote omitted) (emphasis supplied).

The reference to "exculpatory impeachment material" clearly refers to material that is directly exculpatory. Obviously, the categories of impeachment evidence and exculpatory evidence are not mutually exclusive. If a person makes a statement that is directly exculpatory, the Jencks Act is only implicated if the government decides to call that person as a witness. It follows that in such a circumstance, the person's exculpatory statement will always have impeachment value, i.e. why would the person testify against the defendant after making a directly exculpatory statement? In most cases, the impeachment use of the directly exculpatory statement will be as a prior inconsistent statement. Further, all impeachment material covered by Brady is exculpatory in a general sense. Thus, the court's reference in Presser to "exculpatory impeachment material" would be tautological unless it referred to directly exculpatory statements.

The rationale of Presser is that there need not be a conflict between Brady and the Jencks Act. Because Brady requires that material be disclosed only in time for its effective use at trial, the Presser court noted that "[a]ny prejudice the defendant may suffer as a result of [not receiving material covered by both Brady and the Jencks Act until after the witness has testified on direct examination] can be eliminated by the trial court ordering a recess in the proceedings in order to allow the defendant time to examine the material and decide how to use it." Presser, 844 F.2d at 1283-84. Obviously, any prejudice that might result from not disclosing Brady material that is also covered by the Jencks Act until after the witness has testified on direct examination would be effectively eliminated by a recess, regardless of whether the statements were directly exculpatory or merely impeachment material.

Finally, if the Presser court did not intend for its holding to extend to all Brady material, there would have been no reason to disapprove of an inference the Presser court drew from the court's opinion in Starusko:

In Starusko, however, the Third Circuit did indicate that in its view, there may be special circumstances when the Brady doctrine may require the disclosure of Jencks Act material before trial. In the Third Circuit's view, the situation could arise when the Jencks Act material truly is exculpatory of the charge against the defendant. See Starusko, 729 F.2d 262-65. The court implied however, the Brady doctrine may require pretrial disclosure in such a situation because of the due process foundation of the doctrine, that is, that it is fundamentally unfair of the prosecution to withhold from the defendant until trial material which seemingly does prove innocence and therefore, which could obviate the need for a trial altogether.

* * * * * *

[However], [g]iven the court's explicit holding that disclosure in time for effective use at trial is all that the Brady doctrine requires, we do not read the Starusko decision as undermining the conclusion we have reached in this case.

Through its own research, the court has only uncovered one other recent case, besides Presser and Starusko, that deals with the issue of the potential conflict between Brady and the Jencks Act. In United States v. Gallo, 654 F. Supp. 463, 474 (E.D.N.Y. 1987) the court stated that a strict interpretation of the Jencks Act would lead to the conclusion that pretrial discovery is never permissible for any material contained in the statements of prospective witnesses, even if there are alternative bases for such discovery. But that interpretation has never been accepted. For instance, compliance with the Jencks Act discovery schedule does not necessarily satisfy the due process requirements for Brady material. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). If witness' statements contain material exculpatory to the defendant, due process requires pretrial production under Brady despite the fact that it may be Jencks material as well. See United States v. Starusko, 729 F.2d 256, 263 (3rd Cir. 1984); United States v. Layton, 564 F. Supp. 1391, 1396 (D.Oregon 1983); United States v. Thevis, 84 F.R.D. 47, 54 (N.D.Ga. 1979).

(emphasis supplied). First, although it is true that "compliance with the Jencks Act discovery schedule does not necessarily satisfy the due process requirements for Brady material" Id., as the Presser court pointed out, that potential conflict between the Jencks Act and Brady can be "eliminated by the trial court ordering a recess in the proceedings in order to allow the defendant time to examine the material and decide how to use it." Presser, 844 F.2d at 1283-84. Second, that due process generally requires pretrial disclosure of Brady material is a shaky proposition at best.

According to the only court of appeals case relied on by the court in Gallo for this proposition, "`[n]o denial of due process occurs if Brady material is disclosed in time for its effective use at trial.'" (Citation omitted). Starusko, 729 F.2d at 262. Obviously, the effective use at trial standard does not necessarily require pretrial disclosure. Significantly, the court in Presser relied on this very language from Starusko in support of its holding that material covered by both Brady and the Jencks Act needs not be disclosed until after the witness has testified on direct examination.

The other authority relied on by the court in Gallo does arguably support the proposition that material covered by both Brady and the Jencks Act must be disclosed prior to trial. In United States v. Thevis, 84 F.R.D. 47, 54 (N.D.Ga. 1979), the court held "that the better rule requires the pretrial disclosure of Brady material in accordance with the timetable set forth in this order even though that material is part of a Jencks Act statement." Thevis, however, has never been cited by a court of appeals, not even in its own circuit. In United States v. Layton, 564 F. Supp. 1391, 1396 (D.Oregon 1983), the court held that if notes covered by the Jencks Act "constituted evidence favorable to the accused, however, the government would be obligated to produce them before trial." As with Thevis, Layton has never been cited by a court of appeals. Moreover, the only case ever to cite Layton was the Gallo opinion itself. Thus, even if the law in this circuit were not clear, the court would be unpersuaded by the proposition espoused by Gallo that the government is required to produce material that is covered by both the Jencks Act and Brady before commencement of trial or even that the government might be required under Brady to disclose material also covered by the Jencks Act prior to the witness being subjected to direct examination.

ORDER

NOW, THEREFORE, IT IS HEREBY ORDERED that insofar as the information requested is Brady material, not impeachment information and not covered by the Jencks Act, 18 U.S.C. § 3500, the same shall be provided as expeditiously as possible and in advance of trial.

FURTHER, IT IS ORDERED that insofar as the information requested is impeachment information covered under Brady and not otherwise covered by the Jencks Act, 18 U.S.C. § 3500, the government shall disclose the same as expeditiously as possible and in advance of trial.

FURTHER, IT IS ORDERED that insofar as the information requested is covered under both Brady and the Jencks Act, 18 U.S.C. § 3500, the government need not disclose the same until the witness has been subjected to direct examination.

FURTHER, the government having stated that it did not oppose defendant's motion in this regard, IT IS ORDERED that the government shall comply with the provisions of Fed.R.Crim.P. 16, and shall comply with the requirements and provisions of this court's prior order of February 21, 1991 as contained in the corrected trial notice issued on said date.