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United States v. Patrick

United States District Court, E.D. Michigan, Northern Division

November 9, 2016



          THOMAS L. LUDINGTON United States District Judge.

         On May 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.

         On 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.


         As a 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.


         Defendant 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.

         Defendant 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 faith).

         Defendant 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.


         Defendant 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.

         Furthermore, 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”).

         Rule 16 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).

         Under 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. 1994).

         Under 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 ...

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