Crim. No. 02-127(2) ADM/AJB
July 1, 2002
Mark D. Larsen, Esq., Assistant United States Attorney, for the United States of America.
Janice M. Symchych, Esq., Dorsey Whitney, Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the undersigned United States District Judge pursuant to Defendant Joseph Paul Biernat's Appeal [Doc. No. 87] of Magistrate Judge Arthur J. Boylan's Orders dated May 30, 2002, and June 5, 2002 [Doc. Nos. 81, 83]. Judge Boylan granted Defendant Biernat's Motion for Discovery of FBI policy materials, and ordered disclosure of "(1) a four-page document drafted by CDC Coleen Rowley, dated May 24, 2000; (2) a three-page memorandum regarding electronic recording of confessions and witness interviews, dated July 24, 1998; (3) a one-page blank authorization form; and (4) material entitled SECTION 7. CONFESSIONS AND INTERROGATIONS, pp. 70-88." Order of June 5, 2002 [Doc. No. 83], at 2. Judge Boylan denied Biernat's Motion for Discovery of the personnel file of FBI Special Agent Boylan. After conducting an in camera review of the materials sought by Biernat, Judge Boylan found that "the file contains no documents or materials pertinent to this case, and contains no information directly or indirectly relating to investigation and interview technique issues that have been raised by defendant Biernat." Order of June 5, 2002 [Doc. No. 83], at 2. Biernat appeals the denial of his Motion for Discovery of the personnel file of FBI Special Agent Boylan. For the reasons set forth below, the Appeal is denied and the Orders are affirmed.
All of the listed documents shall remain confidential, be disclosed only to counsel for Biernat, and be returned to the government at the conclusion of this case.
FBI Special Agent Sean Boylan is not related to Magistrate Judge Arthur J. Boylan.
In ruling on an appeal from a non-dispositive matter decided by a magistrate judge, a district court must affirm an order by a magistrate judge unless it is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). This standard of review is extremely deferential. See Reko v. Creative Promotions, Inc., 70 F. Supp.2d 1005, 1007 (D.Minn. 1999); Banbury v. Omnitron Int'l., Inc., 818 F. Supp. 276, 279 (D.Minn. 1993). "A finding is `clearly erroneous' when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Chakales v. Comm'r. of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
At this early stage, there has been no evidentiary record developed or argument on the anticipated motions to suppress evidence. Biernat is seeking preliminary discovery of materials for use in witness examination in subsequent proceedings on the motions to suppress evidence. Such pre-suppression hearing disclosure of Brady materials is without precedential support in the Eighth Circuit.
In Brady v. Maryland, the Supreme Court held that the Due Process Clause requires a prosecutor to disclose, upon request, information favorable to the accused "that is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963).
Yet to be introduced in this case is any evidence that Biernat's statements were involuntarily made or that he was subjected to any type of coercion or agent misconduct. Apparently premised on the single common element that the same case agent, Special Agent Sean Boylan, was the interrogating agent in United States v. Czichray, No. 01-307, 2002 WL 54504 (D.Minn. Jan. 7, 2002), Biernat seeks extraordinary access to the agent's personnel file. In United States v. Czichray, U.S. District Judge John Tunheim found that the totality of the circumstances indicated Czichray was subjected to custodial interrogation, and that Agent Boylan should have read Czichray the Miranda warnings before interviewing him. See Czichray, 2002 WL 54504 at *4-5. As a result, Czichray's statements were suppressed. Czichray was convicted by jury verdict without his statements being admitted.
Given the procedural posture presented here, that is, with no evidence of the circumstances under which Biernat's statements were made, a comparison to the facts of Czichray is impossible. If a showing of relevance or particularized need were to be required for pre-suppression disclosure of private personnel file information, the defense would fall short. See United States v. Stott, 245 F.3d 890, 902 (7th Cir. 2001) (finding no consensus among circuit courts, "we cannot say that the law is clear on the question of whether Brady should apply to suppression hearings."); United States v. Bowie, 198 F.3d 905, 912 (D.C. Cir. 1999).
Acting only on the defense request for the materials and the prosecution's willingness to provide them to the court, Judge Boylan chose to conduct an in camera review of the personnel file to determine if it contained information which would be useful for impeachment of Agent Boylan at a suppression hearing. By Order of June 5, 2002, Judge Boylan concluded that the file contains no information directly or indirectly relevant to the investigation and interview technique issues raised in this case. Accordingly, Judge Boylan denied the defense request for Agent Boylan's personnel file.
Biernat's speculation that the file contains useful information for impeachment of Agent Boylan is insufficient to require its production to the defense. See United States v. Pou, 953 F.2d 363, 366-67 (8th Cir. 1992); see also United States v. McMahan, 744 F.2d 647, 651 (8th Cir. 1984) (stating that Brady "does not require the government to provide defendants with all information it has regarding each of its witnesses"). Judge Boylan's denial of the request for discovery of the personnel file of Agent Boylan is not clearly erroneous or contrary to law.
Defense counsel's expressed concern that Judge Boylan's in camera review of the file is an insufficient guaranty that no impeachment material is present may be addressed by a request to have this Court also review the personnel file in camera.
Biernat also relies upon United States v. Acosta, 111 F. Supp.2d 1082 (E.D.Wis. 2000), but it is not helpful to his cause. In Acosta, the evidence used to impeach the witness was a videotaped interrogation in which the government conceded the agent violated FBI policy. See Acosta, 111 F. Supp.2d at 1090 (finding that Agent Craft "forthrightly and unwaveringly acknowledged his videotaped misconduct in that case."). Acosta is distinct from the case at hand because in Acosta, the agent's misconduct was admitted and reliably demonstrated by the videotape. Here, there is no such reliable evidence or admission of misconduct. Indeed, there is no record evidence of the circumstances of Agent Boylan's conduct here at all.
Biernat additionally cites a 1978 case from the Court of Appeals of New York, People v. Puglisi, 376 N.E.2d 1325 (N.Y. 1978), in support of his request for Agent Boylan's personnel file. The Puglisi court held that it was "not harmless error, despite the subsequent extensive cross-examination," to not require disclosure to defense counsel of "the disciplinary file as to prior misconduct" on the part of the detective in the case. Id. at 1326. Puglisi determined that the "cumulative effect" of several errors required a reversal. Id. Here, unlike Puglisi, there is no disciplinary file regarding prior misconduct of Agent Boylan. An in camera review of the file revealed "no information directly or indirectly relating to investigation and interview technique issues that have been raised by defendant Biernat." Order of June 5, 2002 [Doc. No. 83], at 2. An examination of the circumstances of this case does not create a definite and firm conviction that a mistake has been committed. The Orders are affirmed.
Judge Boylan's denial of Biernat's request for a bill of particulars is also affirmed. Biernat did not "specifically designate . . . the basis for" the appeal. D. Minn. LR 72.1(b)(2). No clear error by Judge Boylan is evident.
III. CONCLUSIONBased upon the foregoing, Judge Boylan's Orders, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that:
(1) Judge Boylan's Orders of May 30, 2002, and June 5, 2002 [Doc. Nos. 81, 83] are AFFIRMED;
(2) Biernat's Appeal [Doc. No. 87] is DENIED.