Entrapment by estoppel is a defense applicable only to crimes that do not require fraudulent intent, because the establishment of entrapment by estoppel would also negate the intent requirement of such crimes. This Court explored this point in United States v. Gil, 297 F.3d 93, 107 (2d Cir. 2002). In Gil, the Second Circuit held that a defendant's claim that he was authorized to submit false invoices would have negated the intent to defraud element of the mail fraud statute under which the defendant was being prosecuted.

In the Second Circuit, a prosecutor's constructive knowledge only extendsto those individuals who are “an arm of the prosecutor” or part of the “prosecution team.” United States v. Gil, 297 F.3d 93, 106 (2d Cir.2002); Morell, 524 F.2d 550, 555 (2d Cir.1975); United States v. Bin Laden, 397 F.Supp.2d 465, 481 (S.D.N.Y.2005). Whether someone is part of the prosecution team depends on the level of interaction between the prosecutor and the agency or individual.

Information coming within the scope of this principle . . . includes not only evidence that is exculpatory, i.e., going to the heart of the defendant's guilt or innocence, but also evidence that is useful for impeachment, i.e., having the potential to alter the jury's assessment of the credibility of a significant prosecution witness.United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002) (alterations in original) (quoting Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001)). A Brady violation requires three elements.

Whether arguably exculpatory or impeachment information can be effectively used at trial is a function of the circumstances in which it is turned over to the defense. For example, in United States v. Gil, 297 F. 3d 93, (2d Circ. 2002), the two-page memo containing exculpatory information that went to he central issue in the case — whether an agreement that defendant claims he had made in fact existed — was part of a production of more than 2,700 pages made "the Friday before the Monday trial." 297 F. 3d at 106.

]'" Def. Morrow's Reply at 5 (quoting Pollack, 534 F.2d at 973). In support of his proposition, Defendant Morrow relies almost completely on a decision by another jurisdiction, the Second Circuit's ruling in United States v. Gil, 297 F.3d 93 (2d Cir. 2002). See Def. Morrow's Reply at 3-5.

Silvester's initial version of that conversation, however, provided scant if any support for the inference that Spadoni possessed the requisite intent to bribe or defraud. By suppressing Urso's notes of that proffer, the government deprived Spadoni of exculpatory evidence going to the core of its bribery case against him. Spadoni could have used the proffer notes not merely to support his version of his conversation with Silvester, but also to impeach Silvester's credibility. While the notes did not record Silvester's words, Spadoni could have attributed them to him through cross-examining Silvester, questioning Agent Urso, and if necessary calling Silvester's attorney. See, e.g., United States v. Gil, 297 F.3d 93, 104 (2d Cir. 2002) (noting that Brady material need not be admissible if it "could lead to admissible evidence" or "would be an effective tool in disciplining witnesses during cross-examination by refreshment of recollection or otherwise," and citing cases). The notes were taken at a meeting where Silvester's attorney approached the government on Silvester's behalf to relate Silvester's account of his criminal activity in an attempt to convince the government to offer him a cooperation agreement.

Instead, “[i]n the Second Circuit, a prosecutor's constructive knowledge only extends to those individuals who [or entities that] are ‘an arm of the prosecutor' or part of the ‘prosecution team.'” United Statesv.Meregildo, 920 F.Supp.2d 434, 440-41 (S.D.N.Y. 2013) (quoting United States v. Gil, 297 F.3d 93, 106 (2d Cir. 2002); United Statesv. Morell, 524 F.2d 550, 555 (2d Cir. 1975)), aff'd sub nom. United Statesv.Pierce, 785 F.3d 832 (2d Cir. 2015); see also United Statesv.Locascio, 6 F.3d 924, 949-50 (2d Cir. 1993); United Statesv.Middendorf No. 18-CR-36 (JPO), 2018 WL 3956494, at *4 (S.D.N.Y. Aug. 17, 2018) (“The prosecution's obligation to disclose Brady material extends to any material in the possession of any entity that has acted as an ‘arm of the prosecutor' in a given case.”

And the defense may be unable to assimilate the information into its case." United States v. Gil, 297 F.3d 93, 106 (2d Cir. 2002) (quoting Leka v. Portuondo, 257 F.3d 89, 101 (2001)). Even where "the government discounts the significance of the [Brady material] . . . the government runs a certain risk when it turns so late documents sought by the defense for so long."

It is well-settled that, "[i]n a criminal prosecution, the government is constitutionally obliged to disclose evidence favorable to the accused when such evidence is material to guilt or punishment." United States v. Gil, 297 F.3d 93, 101 (2d Cir. 2002) (citing Brady, 373 U.S. at 87.)

(Def. Mem. at 30.) In support of her position, defendant cites United States v. Gil, 297 F.3d 93 (2d Cir. 2002), in which the Second Circuit found insufficient disclosure where the government include a two-page memorandum containing Brady material "among five reams of paper labeled `3500 material,' delivered sometime on the Friday before a Monday trial, at a time presumably when a conscientious defense lawyer would be preoccupied working on an opening statement and witness cross-examinations and all else," because under such conditions, "the defense was not in a position to read [the memo], identify its usefulness, and use it." Id. at 106.