Case: 1:20-cr-00424-JG Doc #: 94-1 Filed: 11/17/21 1 of 6.

PageID #: 1386

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

:
UNITED STATES, : CASE NO. 1:20-cr-00424
:
Plaintiff, : OPINION & ORDER
: [Resolving Doc. 49]
v. :
:
MARGARET COLE, :
:
Defendant. :
:

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.1 The indictment charged two co-defendants.

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.2 The government

responded.3 Defendant Cole replied.4

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

 
1
Doc. 1-2 at ¶¶ 90–98.
2
Doc. 49.
3
Doc. 52.
4
Doc. 60.
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Case No. 1:20-cr-00424

GWIN, J.

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, 2021.5 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.

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.6

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.7 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.8

Co-defendants Parris and Dorah Mirembe were indicted on ten additional charges

related to intercountry adoptions involving Ugandan children.9

 
5
The government may make changes to the exhibit list without prejudice until the final exhibit list is submitted
to the Court.
6
Doc. 68-1 at 2; Doc. 63-2 (First Nowak Affidavit) at ¶ 7.
7
Doc. 1-2 at ¶¶ 90–98.
8
Id. at ¶¶ 90–94.
9
Id. at ¶¶ 73–89.
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Case No. 1:20-cr-00424

GWIN, J.

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.10 Defendant Cole argues

that the government has buried the defense team with over two million documents, most of

which are “entirely irrelevant” to Cole.11 In doing so, Defendant Cole argues the government

has not met its Brady obligations.

The government in turn argues that it has fully complied with its Rule 16 discovery

and Brady obligations.12 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.

II. The Government’s Discovery and Brady Obligations.

The government has an affirmative duty to disclose evidence favorable to the

accused.13 The Sixth Circuit has held, however, that the government is not obligated to

specifically identify favorable evidence within disclosed discovery.14 To do so would be to

force the “government to act as a private investigator and valet for the defendant.”15 The

government only fails to meet its obligations under Brady if it suppresses material

 
10
Doc. 49.
11
Id. at 2.
12
Doc. 52.
13
Brady v. Maryland, 373, U.S. 83, 87 (1963).
14
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).
15
United States v. Tadros, 310 F.3d 999, 1005 (7th Cir. 2002).
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Case No. 1:20-cr-00424

GWIN, J.

impeachment or exculpatory evidence.16

This is true even where—like in this case—the government has handed over “millions

of pages of evidence.”17 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.”18 There is no evidence, however, that the government did any of that in this case.

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.19

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.20 Defendant Cole should be familiar with the

material.

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.21 The government responds that

 
16
Strickler v. Greene, 527 U.S. 263, 280–82 (1999).
17
Warshak, 631 F.3d at 297.
18
United States v. Skilling, 554 F.3d 529, 577 (5th Cir. 2009).
19
Doc. 52 at 4.
20
Id. at 1.
21
Doc. 49 at 2.
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Case No. 1:20-cr-00424

GWIN, J.

the Uganda and Poland adoption schemes are interrelated and therefore the discovery is

necessarily also interrelated.22 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.23 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.24

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.”25 Here, the

State Department is considered part of the prosecution team.

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.26 The Department

 
22
Doc. 52 at 11.
23
Id. at 11–12.
24
Skilling, 554 F.3d at 577.
25
United States v. Tyson, No. 18-cr-708, 2020 WL 255533, at *2 (N.D. Ohio Jan. 16, 2020) (internal quotations
omitted).
26
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).
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Case No. 1:20-cr-00424

GWIN, J.

issued a notice of temporary debarment, requiring the company “to immediately cease

engaging in intercountry adoptions.”27 The State Department later conducted a hearing

and issued findings which were upheld by the District Court for the District of Columbia.28

After the State Department referred the case, the FBI began investigating European

Adoption Consultants and its employees, including Defendant Cole.29

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.30

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, 2021.31 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.

IT IS SO ORDERED.

Dated: November 17, 2021 s/ James S. Gwin

JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

 
27
Id.
28
Id. at *1–2.
29
Doc. 68-1 at 2; Doc. 63-2 (First Nowak Affidavit) at ¶ 7.
30
During the November 12, 2021 Status Conference, the government represented that all State Department
investigatory materials have already been disclosed to Defendant.
31
The government may make changes to the exhibit list without prejudice until the final exhibit list is submitted
to the Court.
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