United States District Court, E.D. Michigan, Northern Division
ORDER RESOLVING PENDING MOTIONS
L. LUDINGTON United States District Judge.
25, 2016 the Grand Jury issued an indictment charging
Defendant Jeffrey W. Patrick, Chief Engineer of the
Uninspected Towing Vessel Victory (“UTV
Victory”), with one count of discharging oil into Lake
Huron in a quantity that caused a film or sheen upon the
water from on or about May, 2014 to June 30, 2014 in
violation of the Clean Water Act, 33 U.S.C. §§
1321(b)(3) and 1319(c)(2)(A). See ECF No. 11. On
June 22, 2016 a superseding indictment issued adding a charge
against Assistant Engineer William J. Harrigan for violating
§§ 1321(b)(3) and 1319(c)(2)(A), and charging both
Defendants with conspiracy to violate the Clean Water Act in
violation of 18 U.S.C. § 371. See ECF No. 14.
The Government alleges that Defendants took a number of over
acts in furtherance of the conspiracy, including the
installation of a removable by-pass system in the engine room
of the UTV Victory, which members of the conspiracy then
allegedly used to discharge water contaminated with oil into
Lake Huron and other parts of the Great Lakes. Id.
The Government further alleges that members of the conspiracy
took steps in order to avoid detection, including discharging
the contaminated water at night, failing to notify the
National Response Center of the discharge, and later removing
and concealing the by-pass system.
October 11, 2016 Defendant Harrigan filed two motions to
exclude evidence. See ECF Nos. 35, 36. That same day
Defendant Patrick filed six motions to exclude and suppress
evidence, a motion to compel discovery, and a motion to join
in the relief requested by Defendant Harrigan. See
ECF Nos. 37-44. For the reasons stated below Defendants'
motions will be denied.
threshold matter, Defendants seek to join in and concur in
each other's requested relief. See ECF Nos. 43,
45. The Government objects to this joinder, arguing that the
motions are not sufficiently supported and that joinder does
not promote efficiency for the Court. While the Government is
correct that joinder of this sort is generally discouraged,
in the present matter the joinder requests promote
efficiency, and will be granted. However, in the future such
request will not be granted again absent a showing of good
cause; counsel should not take this ruling as a license to
file excessive overbroad and unsupported motions.
Patrick first moves to dismiss the superseding indictment, or
in the alternative to suppress evidence based on the
Government's failure to obtain samples of the purportedly
contaminated water. See ECF No. 44. Defendant argues
that the Government's failure to obtain a sample of the
water constitutes a failure to preserve material and
exculpatory evidence in violation of Patrick's Due
Process rights under the Fourteenth Amendment. “The Due
Process Clause of the Fourteenth Amendment requires the State
to disclose to criminal defendants favorable evidence that is
material either to guilt or to punishment.”
California v. Trombetta, 467 U.S. 479, 480 (1984).
To be considered material, “evidence must both possess
an exculpatory value that was apparent before the evidence
was destroyed, and be of such a nature that the defendant
would be unable to obtain comparable evidence by other
reasonably available means.” Id. at 489.
Patrick cannot meet his burden of showing materiality. First,
the exculpatory value of the samples was not readily apparent
at the time. While it is true that water samples may
have proven exculpatory, they also may have inculpated
Defendant further. Martinez-Martinez, 369 F.3d 1076,
1087. This latter possibility may be bolstered through other
evidence presented at trial, including witness testimony and
photographs of the alleged oil sheen. Second, Defendant has
not met his burden of establishing materiality because no
evidence was destroyed; it simply did not exist in the
first place. The Government's failure to collect
potentially useful evidence does not constitute a Due Process
violation absent a showing of bad faith. See United
States v. Martinez-Martinez, 369 F.3d 1076, 1086-87
(holding that there was no violation of the defendant's
due process rights where the government did not collect and
preserve evidence of his intoxication, namely blood and urine
samples, where there was no evidence that the failure to
collect the samples was in bad faith); Trombetta,
467 U.S. at 489 (holding that the government did not violate
the defendant's constitutional rights in failing to
preserve breath samples where evidence suggested the evidence
would not likely have been exculpatory and where destruction
of the sample was pursuant to state procedures and not in bad
argues that the mere fact that the Government did not collect
the evidence shows bad faith. This position is untenable.
Nothing in the Clean Water Act requires the Government to
prove violations through direct - as opposed to
circumstantial - evidence. If there are weaknesses in the
Government's case that create a reasonable doubt as to
Patrick's guilt, then it is the job of the defense
attorney to identify these weaknesses on cross-examination
and during the presentation of Defendant's case.
Defendant's motion to dismiss the superseding indictment
or suppress evidence will be denied.
Patrick has also filed a motion to compel discovery and the
disclosure of Brady materials. See ECF No. 42. This
motion will be denied for two reasons. First, the Court's
scheduling order issued on July 27, 2016 requires the
government to “[p]ermit defense counsel to inspect,
copy or photograph any exculpatory/impeachment evidence
within the meaning of Brady v. Maryland, 373 U.S. 83
(l963), United States v. Agurs, 427 U.S. 97 (l976),
and Giglio v. United States, 405 U.S. 105 (l972).
ECF No. 28 at (2)(B). The order further provides that the
duty to disclose is “continuing, even throughout
trial.” Id. at (4). Because the government is
already required to turn over any Brady materials,
Patrick's motion is meritless without any allegation
suggesting that the Government has not complied.
as explained by the Government, Brady is not a
discovery tool. In contrast to the broad scope of discovery
in civil cases, the discovery available to a criminal
defendant is relatively constricted, and is generally
circumscribed by three rules: (1) Federal Rule of Criminal
Procedure 16; (2) The Jencks Act, 18 U.S.C. § 3500; and
(3) the doctrine set forth in Brady. See United
States v. Presser, 844 F.2d 1275, 1285, fn. 12 (6th
Cir.1988) (stating that in most criminal prosecutions, these
three rules “exhaust the universe of discovery to which
the defendant is entitled”).
requires that the Government disclose discovery materials
related to the defendant upon the defendant's request.
Specifically, the Government must disclose oral, written, or
recorded statements made by the defendant, the
defendant's prior record, certain photographs, papers,
documents, data, or places within the government's
possession or control, examination and test results, and
expert witnesses. See Rule 16(a)(1). Rule 16 does
not authorize the discovery of internal government documents
or any statements made by prospective government witnesses in
addition to discovery required by the Jenck's Act. Rule
16 also does not require pretrial discovery of
co-conspirators statements. See United States v.
Presser, 844 F.2d 1275, 1281 (6th Cir. 1988) (citing
United States v. Roberts, 811 F.2d 257, 258-59 (4th
Cir. 1987); United States v. Boykins, 1990 WL
143559, at *7 (6th Cir. Oct. 2, 1990) (holding
“co-conspirator statements do not fall within the ambit
of Rule 16(a)(1)(A)” as a Defendant's statement and
were therefore not discoverable pretrial).
the Jenck's Act, upon motion of the Defendant the
government must produce “statements in its possession
of witnesses who testify at trial.” United States
v. Short, 671 F.2d 178, 185 (6th Cir.1982). The
Government need not provide statements or reports of
witnesses until the witness “has testified on direct
examination in the trial of the case.” 18 U.S.C. §
3500(a). The Sixth Circuit has held that the Jencks Act
controls the timing of Brady disclosures. See
United States v. Bencs, 28 F.3d 555, 560-61 (6th Cir.
Brady, the government violates due process when it
fails to disclose evidence related to guilt or sentencing in
a criminal case that is favorable to the defendant.
Brady, 373 U.S. at 87. The Brady rule
extends to material that could be used to impeach the
credibility of a government witness. Giglio v. United
States, 405 U.S. 150, 154-55, (1972) (impeachment
evidence falls within Brady “[w]hen the reliability of
a given witness may well be determinative of guilt or
innocence”). However, as explained by the Supreme
Court, “[t]here 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). Instead, Brad ...