Opinion
1:20-cr-00424
11-17-2021
UNITED STATES, Plaintiff, v. MARGARET COLE, Defendant.
OPINION & ORDER [RESOLVING DOC. 49]
JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE
Defendant Margaret Cole faces charges for conspiracy to defraud the United States and alleged false statements to an adoption accrediting entity and a Polish government agency. The indictment charged two co-defendants.
Doc. 1-2 at ¶¶ 90-98.
Defendant Cole moves this Court to: (1) compel the government to identify known favorable evidence in the produced discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963); (2) compel the government to separately produce the documents related to the Poland adoption at issue in charges against Cole; and (3) order the State Department be considered part of the prosecution team for discovery purposes. The government responded. Defendant Cole replied.
Doc. 49.
Doc. 52.
Doc. 60.
With this motion, the Court must decide whether, under Brady, the government must identify potentially exculpatory materials within the voluminous discovery it produced for Defendant Cole. The Court must further decide whether the State Department-as the agency that initiated the investigation leading to Defendant Cole's indictment-should be considered part of the prosecution team for discovery purposes.
For the following reasons, this Court DENIES the motion to compel the government to identify known Brady material and to separately produce documents related to the Poland adoption. This Court ORDERS the government to provide Defendant Cole with a preliminary list of trial exhibits by December 1, 2021. This Court further ORDERS that the State Department be considered part of the prosecution team for purposes of discovery and ORDERS the government to seek a confirming letter that it has received all the State Department's investigatory materials.
The government may make changes to the exhibit list without prejudice until the final exhibit list is submitted to the Court.
I. Background
Defendant Cole operated an international adoption business, European Adoption Consultants. After a State Department referral, the FBI began investigating European Adoption Consultants and its employees, including Defendant Cole.
Doc. 68-1 at 2; Doc. 63-2 (First Nowak Affidavit) at ¶ 7.
In August 2020, the United States indicted Defendant Cole on three charges: (1) conspiracy to defraud the United States, (2) false statement to the Council on Accreditation, and (3) false statement to the Polish Central Authority. These three counts involve a single European Adoption Consultants adoption involving two Polish children. The United States also charged co-defendant Debra Parris in one of these counts.
Doc. 1-2 at ¶¶ 90-98.
Id. at ¶¶ 90-94.
Co-defendants Parris and Dorah Mirembe were indicted on ten additional charges related to intercountry adoptions involving Ugandan children.
Id. at ¶¶ 73-89.
Defendant Cole moves this Court to: (1) compel the government to identify known favorable evidence in the produced discovery pursuant to Brady v. Maryland, 373 U.S. 83 (1963); (2) compel the government to separately produce the documents related to the Poland adoption at issue in charges against Cole; and (3) order the State Department be considered part of the prosecution team for discovery purposes. Defendant Cole argues that the government has buried the defense team with over two million documents, most of which are “entirely irrelevant” to Cole. In doing so, Defendant Cole argues the government has not met its Brady obligations.
Doc. 49.
Id. at 2.
The government in turn argues that it has fully complied with its Rule 16 discovery and Brady obligations. The government states that it is not required to specifically identify exculpatory documents in its produced discovery, and that it has repeatedly assisted Cole's defense team to help them navigate the materials.
Doc. 52.
II. The Government's Discovery and Brady Obligations.
The government has an affirmative duty to disclose evidence favorable to the accused. The Sixth Circuit has held, however, that the government is not obligated to specifically identify favorable evidence within disclosed discovery. To do so would be to force the “government to act as a private investigator and valet for the defendant.” The government only fails to meet its obligations under Brady if it suppresses material impeachment or exculpatory evidence.
Brady v. Maryland, 373, U.S. 83, 87 (1963).
United States v. Warshak, 631 F.3d 266, 297-98 (6th Cir. 2010). See also United States v. Mmahat, 106 F.3d 89, 94 (5th Cir. 1997) (government had no obligation under Brady to point the defense to specific documents within a larger mass of material that had already been turned over; to show a Brady violation defendant must show that the allegedly withheld information was not available through due diligence).
United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002).
Strickler v. Greene, 527 U.S. 263, 280-82 (1999).
This is true even where-like in this case-the government has handed over “millions of pages of evidence.” The government's voluminous discovery productions might constitute suppression of exculpatory evidence in violation of Brady where the government “‘padded' an open file with pointless or superfluous information to frustrate a defendant's review of the file, ” created “a voluminous file that is unduly onerous to access, ” or “hid[] [known] Brady material . . . in a huge open file in the hope that the defendant will never find it.” There is no evidence, however, that the government did any of that in this case.
Warshak, 631 F.3d at 297.
United States v. Ski ling, 554 F.3d 529, 577 (5th Cir. 2009).
The government is not required to identify Brady material within the Cole discovery production. While the government's productions have been voluminous, there is no evidence the government used its sizable document productions to suppress exculpatory evidence in violation of Brady. Rather, the government has produced the discovery in a navigable format, separated into sub-folders and labeled with bates ranges.
Doc. 52 at 4.
Further, most of the discovery consists of documents that belonged to Defendant Cole or to the adoption business she oversaw, or relate to prior administrative and judicial proceedings in which she was involved. Defendant Cole should be familiar with the material.
Id. at 1.
Defendant Cole argues that the government “larded its production with entirely irrelevant documents” by including discovery related to an allegedly fraudulent Uganda adoption scheme in which her co-defendants are charged. The government responds that the Uganda and Poland adoption schemes are interrelated and therefore the discovery is necessarily also interrelated. Further, the government states that much of the discovery generally relates to the adoption business and is therefore related to the Poland scheme for which Cole is charged. The Court finds that the government has not “padded” its discovery productions with “pointless or superfluous information to frustrate [Defendant Cole's] review” of the material.
Doc. 49 at 2.
Doc. 52 at 11.
Id. at 11-12.
Skilling, 554 F.3d at 577.
Therefore, the government is not required to identify Brady material within the discovery it produced for Defendant Cole. In addition, the government is not required to separately produce documents related to the Poland scheme as the schemes are interrelated and most of the discovery relates to the adoption business overall.
Given the extensive discovery in this case, however, the government is required to provide Defendant Cole with a preliminary list of trial exhibits by December 1, 2021.
III. The Role of the State Department.
For purposes of discovery, “the prosecution team includes any federal agenc[ies] that participated in the investigation that led to the defendant's indictment.” Here, the State Department is considered part of the prosecution team.
United States v. Tyson, No. 18-cr-708, 2020 WL 255533, at *2 (N.D. Ohio Jan. 16, 2020) (internal quotations omitted).
The State Department's administrative proceeding involving European Adoption Consultants laid the groundwork for this criminal case. In 2016, the State Department reviewed a series of complaints about European Adoption Consultants. The Department issued a notice of temporary debarment, requiring the company “to immediately cease engaging in intercountry adoptions.” The State Department later conducted a hearing and issued findings which were upheld by the District Court for the District of Columbia.After the State Department referred the case, the FBI began investigating European Adoption Consultants and its employees, including Defendant Cole.
European Adoption Consultants, Inc. v. Pompeo, 18-CV-1676, 2020 WL 515959, at *1 (D.D.C. Jan. 31, 2020), appeal dismissed, 20-5053, 2020 WL 3406482 (D.C. Cir. May 28, 2020).
Id.
Id. at *1-2.
Doc. 68-1 at 2; Doc. 63-2 (First Nowak Affidavit) at ¶ 7.
Because the State Department initiated the investigation that ultimately led to Defendant Cole's indictment, the State Department is considered part of the prosecution team for discovery and Brady purposes.
During the November 12, 2021 Status Conference, the government represented that all State Department investigatory materials have already been disclosed to Defendant.
IV. Conclusion
For the foregoing reasons, this Court DENIES the motion to compel the government to identify known Brady material and to separately produce documents related to the Poland adoption. This Court ORDERS the government to provide Defendant Cole with a preliminary list of trial exhibits by December 1, 2021. This Court further ORDERS that the State Department be considered part of the prosecution team for purposes of discovery and ORDERS the government to seek a confirming letter that it has received all the State Department's investigatory materials.
The government may make changes to the exhibit list without prejudice until the final exhibit list is submitted to the Court.
IT IS SO ORDERED.