Opinion
05 Cr. 18 (DC).
December 22, 2005
MICHAEL J. GARCIA, Esq., United States Attorney for the Southern District of New York, By: Jacob W. Buchdahl, Esq., Elizabeth Carpenter, Esq., Assistant United States Attorneys One St. Andrew's Plaza, New York.
LAW OFFICES OF JEFFREY LICHTMAN, Attorney for Defendant Horatio Hamilton, By: Jeffrey Lichtman, Esq., New York, New York.
MEMORANDUM DECISION
In this case, defendant Horatio Hamilton is charged with conspiracy to distribute and possess with intent to distribute 1000 kilograms of marijuana and with using and carrying a firearm in relation to a narcotics crime. He moved for an order compelling the government to immediately produce Brady material, arguing that he would be unable to fully exploit the material unless it is produced three weeks in advance of the scheduled January 2006 trial date. Defendant's motion focuses on the production of the "rap sheets" of two cooperating witnesses who may testify at Hamilton's trial.
In a prior trial involving a different defendant, several cooperating witnesses, including the two in question, implicated Hamilton. When they testified at the prior trial, the two witnesses were cross-examined about their rap sheets. Hamilton alleges that the two lied, falsely disputing the accuracy of entries on their rap sheets. Because of these alleged discrepancies, Hamilton argues that the rap sheets are Brady material and requests their immediate production. The government objects, arguing that defendant's "request is little more than a thinly veiled attempt to procure a Government witness list well in advance of trial." (Gov't Dec. 9 Letter at 1).
In alleging that these witnesses disputed entries on their rap sheets, Hamilton points to the first witness's testimony denying that she was sentenced to imprisonment for 1997 and 1999 shoplifting charges. (Tr. at 325). Hamilton further argues that the second witness denied the existence of a bench warrant. (Id. at 697-99). Based on these supposed denials, Hamilton argues that Brady and Giglio require the immediate disclosure of the rap sheets of these witnesses so that he can make effective use of them at trial. (Def. Dec. 6 Letter at 2).See United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (explaining that Second Circuit has never held more than that "Brady material must be disclosed in time for its effective use at trial").
References to "Tr." are to the transcript of the trial inUnited States v. John, S4 03 Cr. 140 (GBD).
Defendant's request is denied.
First, after reviewing the transcript, it is unclear that there were any inconsistencies between the witnesses' rap sheets and their testimony. When the first witness denied being sentenced to imprisonment on two occasions, defense counsel did not suggest that the rap sheet indicated otherwise. (Id. at 325). Additionally, the witness admitted that she was sentenced to seven months for one of her shoplifting convictions. (Tr. 321, 325). During the second witness's testimony, she acknowledged that a warrant had been issued on one of her cases, testifying that "I didn't pay a fine in time and they issue a warrant for me." (Id. at 697). These statements were made during the course of lengthy cross-examination on the witnesses' criminal records, during which both acknowledged their involvement in numerous crimes. Accordingly, Hamilton's assertion that the two witnesses "virulently denied information contained in the rap sheets" is wrong.
Second, even assuming the witnesses falsely denied information on their rap sheets, these denials are not material. See Coppa, 267 F.3d at 141 ("[E]vidence is material in the Brady context only if its suppression undermines confidence in the outcome of the trial.") (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). At the prior trial, both witnesses testified as to their voluminous criminal records. The first witness testified that she had been convicted of at least ten misdemeanors and that she had committed even more crimes for which she was not arrested. (Tr. 320). She further acknowledged that she had failed to appear for one of her scheduled court appearances and had been sentenced to a seven-month term of imprisonment on one occasion. (Id. at 321, 327-28). Likewise, the second witness testified that she had been engaged in drug dealing, she had used marijuana, and she had been involved in stealing at least ten times. (Tr. 691-697). Indeed, apparently frustrated by the lengthy cross-examination about whether or not she was arrested on a bench warrant, she began to recite her criminal record: "I'm the one get the fine. I'm the one that shoplifted. I'm the one that sell the crack cocaine. I get five years probation for my first felony. My second, the second arrest was a shoplifting. I did come in. I did come to service on my third case. I pay fine, not right away, but I went back and paid the fine." (Id. at 704).
Where, as here, impeachment evidence "merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable . . ., [the impeachment evidence] may be cumulative, and hence not material."United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998). In light of the numerous admissions of acts of wrongdoing by these witnesses, the existence or non-existence of a bench warrant or a thirty-day sentence is not material within the meaning ofBrady. See United States v. Gambino, 59 F.3d 353, 363-67 (2d Cir. 1995) (finding undisclosed tape recording of cooperating witness teaching an associate to deceive a grand jury not material in light of witness's testimony acknowledging his involvement in numerous murders).
For the forgoing reasons, the government shall disclose this rap sheets of the two cooperating witnesses two business days before they testify, if they are expected to testify. This is a sufficient period of time to allow for their effective use at trial. See United States v. Underwood, No. 04 Cr. 424 (RWS), 2005 WL 927012, *3 (S.D.N.Y. Apr. 21. 2005).
SO ORDERED.