Opinion
00 CR. 432 (DLC)
July 17, 2002
David Burns, Office of the United States Attorney, Southern District of New York, New York, NY.
Labe M. Richman, New York, NY, for the Defendant.
OPINION AND ORDER
Following his conviction at trial on narcotics charges, and in the course of a motion for a new trial, the defendant requested a hearing into the Government's failure to disclose what the defendant asserted was Section 3500 material. See 18 U.S.C. § 3500 ("Section 3500"). The undisclosed material was a name written on a photograph used in a photospread identification of the defendant. The request for a hearing was granted on December 13, 2001, and a hearing held on June 3, 2002. For the reasons that follow, the defendant's motion for a new trial is denied.
PROCEDURAL HISTORY
Edgar Ortega ("Ortega") was found guilty by a jury on January 25, 2001, of one count of conspiracy to distribute and to possess with the intent to distribute heroin and five grams or more of crack cocaine, and one count of distribution and possession with the intent to distribute heroin within 1000 feet of a public elementary school. On March 9, 2001, Ortega filed a motion for a new trial pursuant to Rule 33, Fed.R.Crim.P, or in the alternative for a hearing, on the ground, inter alia, that the Government did not disclose a photospread identification of the defendant prior to trial. In a December 13, 2001 Opinion, the Court denied the request for a new trial but granted Ortega's request for an evidentiary hearing regarding the Government's failure to produce at trial names written on certain photographs that the defendant asserted were Section 3500 material. United States v. Ortega, No. 00 Cr. 432 (DLC), 2001 WL 1588930, at *8 (S.D.N.Y. Dec. 13, 2001).
The Government submitted the direct testimony of Assistant United States Attorney Steven Glaser ("AUSA Glaser" or "Glaser"), the trial Assistant, in the form of an affidavit. The Government also called as witnesses NYPD Sergeant Damion Santiago ("Santiago"), a trial witness and the person who had identified the defendant from a photospread, and NYPD Detective Hector Nolasco ("Nolasco"), the officer who had shown the photospread to Santiago prior to trial and whose handwriting appears on the photographs. AUSA Glaser, Santiago and Nolasco were cross-examined by the defendant.
FINDINGS OF FACT
In late 1999, then-Detective Santiago was working in an undercover capacity with the South Bronx Initiative, a unit of the Bronx Narcotics Bureau that makes undercover purchases of illegal drugs, on the investigation of a drug trafficking organization operating in the area near Union Avenue and 156th Street in the Bronx, New York. During this investigation, Detective Santiago made three purchases of heroin: on November 26, December 2, and December 8, 1999. In reports he created regarding the heroin purchases ("buy reports"), Detective Santiago identified "J.D. Bubble," "J.D. Green," and "J.D. Danny," as individuals involved in the sales. These individuals were, respectively, the defendant, his brother Oscar Ortega, and Daniel Chaparro ("Chaparro").
Oscar Ortega and Chaparro have pleaded guilty and been sentenced for their participation in this drug conspiracy.
Detective Nolasco was one of the individuals in charge of the investigation at the South Bronx Initiative. At the time, Nolasco was working on three to four "buy and busts" per week in addition to the investigation involving the defendant. On December 16, 2001, Nolasco called Santiago to his desk at the South Bronx Initiative offices, gave him approximately ninety mug shot photographs of people who had been previously arrested in the vicinity of 156th Street and Union Avenue, and asked him if he could identify any of the individuals from whom he had purchased heroin and to whom he referred in his buy reports.
Santiago, standing by Nolasco's desk, flipped through the photo array. He recognized three of the photographs as mug shots of individuals involved in the heroin purchases. Santiago identified a picture of the defendant as "J.D. Bubble," of Oscar Ortega as "J.D. Green," and of Chaparro as "J.D. Danny." He removed each of these three photos and said, "this is J.D. Bubble," "this is J.D. Green," and "this is J.D. Danny." While Santiago was viewing the photos, Nolasco carried on with other tasks at his desk, talked with Santiago, and walked through the office, returning periodically to his desk to ask Santiago if he had finished viewing the entire photo array. Santiago did not write anything on the photos or concerning the identification, nor did Nolasco ask him to repeat or confirm what he said in making the identifications.
Nolasco, who was working on other paperwork, took no action immediately following Santiago's identification to memorialize the names Santiago had given for each of the three mug shots.
Between forty-five minutes and one hour after Santiago had left the area of Nolasco's desk, Nolasco paused to write down the nicknames on the photographs before he forgot them. He wrote "J.D. Bubble" on Ortega's photo, and "J.D. Green" on Oscar Ortega's photo. Chaparro's mug shot already bore the name Daniel so Nolasco did not write on Chaparro's photo. Nolasco subsequently placed the photos in the case file.
Although Nolasco could not articulate precisely why he remembered waiting 45 minutes to an hour until after the identification to write the names down, he testified that he specifically remembered being in the middle of other paperwork and thinking, "Let me write down the names before I forget."
At some point, although he did not remember when or why, Noalsco also wrote a telephone phone number on Oscar Ortega's photograph. In addition, the name "Vido" was written on Chaparro's photograph. Nolasco testified that he believed his supervisor, Detective Zerbo, added the name "Vido."
On January 7, 2000, the police conducted "an observation" in front of one of the houses used by the drug organization so that Detective Santiago could identify individuals who had been involved in the heroin transactions. The defendant, Oscar Ortega, Chaparro and another individual were arrested after Santiago identified them while they were lined up in a group of eight to ten individuals.
The case was referred to the United States Attorney's Office from the Bronx District Attorney's Office ("DA's Office"). The case was assigned to AUSA Glaser in February 2000. A federal grand jury returned an indictment on April 25, 2000.
The file forwarded to AUSA Glaser from the Bronx DA's Office included the mug shot photographs of the defendant and Oscar Ortega bearing Detective Nolasco's handwritten notations of "J.D. Bubble" and "J.D. Green." There was no indication that these had been removed from any photospread. Because AUSA Glaser assumed that the Bronx Assistant District Attorney ("ADA") assigned to the case had made the notations on the mug shots in order to better follow Santiago's buy reports, he redacted this handwriting when he produced to each defendant a copy of his own mug shot. He did not ask the ADA or anyone else about the handwriting.
Prior to trial, a co-defendant, Andres Martinez ("Martinez"), filed a motion requesting disclosure of all identification procedures used in the case. AUSA Glaser, understanding this request as a request for information about the January 7 arrest, asked Santiago whether the January 7 arrest had been the product of a photo identification. Santiago explained that the January 7 arrest had immediately followed his on-site identification of those involved in the drug operation, including Martinez and Ortega. AUSA Glaser informed Martinez that no identification procedures had been employed. Shortly thereafter, the defendant joined in Martinez's motion and requested disclosure of identification procedures used in the case. AUSA Glaser described Santiago's identification of the defendant immediately prior to his arrest and stated that he was aware of no other identification procedures that had been used. AUSA Glaser met with Detective Santiago as part of pretrial preparation in January 2001. At a meeting on Saturday, January 20, 2001, two days before the trial began, Santiago informed AUSA Glaser for the first time that Nolasco had shown him photographs in order to identify individuals involved in the drug operation, and that he had identified the defendant, Oscar Ortega and Chaparro from those photographs. AUSA Glaser asked Santiago if he or anyone else had written anything relating to the photographs or the identification. Santiago said he had not, and that he was not aware of such a writing by any other person.
Santiago was unable to state where the photographs were located and thought it unlikely that they had been preserved. AUSA Glaser consulted with the senior AUSA acting as the second seat at trial and decided that the identification of the photographs was not Brady, Rule 16, or Section 3500 material and that he could wait to disclose it until Detective Santiago's direct examination. AUSA Glaser did not realize that there was a connection between the mug shots contained in the case file he had received from the Bronx DA's Office and Santiago's December photo identification, and he did not attempt to contact Detective Nolasco that weekend or during the trial.
The trial, which was AUSA Glaser's first trial since he joined the U.S. Attorney's office in August 1999, began on January 22, 2001. In a conference with the Court on the morning of January 24, the defendant raised concerns about the suggestiveness of Detective Santiago's identification of the defendant at the time of his arrest on January 7, 2000. The Government did not mention the December 16 photo identification during that conference.
During the Government's direct examination of Detective Santiago that same day, the Government elicited testimony about the December photo identification. Santiago testified that in December, Detective Nolasco had shown him mug shots of individuals in order to see if Santiago "could ascertain any of [his] subjects in those pictures." He stated that he was able to identify the defendant, Oscar Ortega and Chaparro. On cross examination and redirect, Santiago identified the individual he saw at one of the heroin buys and had nicknamed "J.D. Bubble" as the defendant. Santiago also admitted on cross examination that he did not know whether Nolasco took notes of what he was doing or filled out a report. Defense counsel, who had not known of the December identification before Detective Santiago's direct examination, moved during the luncheon recess, after Santiago had been excused as a witness, to strike his testimony and for a mistrial. The Court denied the request but ordered the Government to provide supplemental discovery with respect to the photospread identification. The jury convicted Ortega on both counts of the indictment on January 25, 2001.
On January 31, 2001, while preparing the supplemental discovery ordered by the Court, AUSA Glaser met with Detective Nolasco to discuss the December photo identification. Nolasco informed AUSA Glaser that he had shown Santiago ninety mug shots and then handed Glazer the eighty-seven photographs he had in his possession. While reviewing these mug shots, AUSA Glaser realized for the first time that the three mug shots in the case file he had received from the Bronx DA's Office may have been part of the array shown to Santiago on December 16, 1999. Nolaso stated that he had given the other three to the ADA. AUSA Glaser showed Detective Nolasco the three mug shots in the file.
AUSA Glaser had met with Nolasco early in the case but did not meet with him again until January 31, because he had decided not to call him as a witness.
Nolasco confirmed that these three had been part of the array, and that he had written "J.D. Bubble" and "J.D. Green" on the photographs of the defendant and Oscar Ortega after Santiago's identification. On February 6, 2001, the Government produced all ninety photographs to the defendant, including the defendant's photograph with the handwritten notation "J.D. Bubble."
CONCLUSIONS OF LAW
The Jencks Act requires the Government to produce, after a Government witness's direct testimony, any "statements" of that witness that "relate to the subject matter as to which the witness has testified." 18 U.S.C. § 3500(b) (2002). "The Jencks Act was intended to provide defendants in federal prosecutions with an opportunity for thorough cross-examination of government witnesses, making the constitutional guaranteed right of confrontation more meaningful." United States v. Aaron, 457 F.2d 865, 869 (2d Cir. 1972) (citation omitted). Under the Jencks Act, a "statement" is defined as:
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement. . . .18 U.S.C. § 3500(e) (emphasis supplied).
A note or recording is a "substantially verbatim recital" of a witness's statement if it "could fairly be deemed to reflect fully and without distortion what had been said to the government agent and thus be used to impeach the witness's testimony at trial." United States v. Scotti, 47 F.3d 1237, 1249 (2d Cir. 1995) (citation omitted). In addition, the recording in question must also be created "contemporaneously" with the statement, although such recording need not be "simultaneously made." United States v. McKeever, 271 F.2d 669, 675 (2d Cir. 1959).
Whether a new trial must be granted when a Jencks Act statement has been suppressed "depends on whether the suppression was deliberate or inadvertent." United States v. Hilton, 521 F.2d 164, 166 (2d Cir. 1975). If the suppression was intentional or reckless, that is, if the Government "deliberately suppresse[d] evidence or ignore[d] evidence of such high value that it could not have escaped its attention, a new trial is warranted if the evidence is merely material or favorable to the defense." Id. The Government's actions are judged under an objective standard; where it has acted deliberately, such as by destroying potential Jencks Act material, "sanctions will normally follow, irrespective of the perpetrator's motivation, unless the Government can bear the heavy burden of demonstrating that no prejudice resulted to the defendant." United States v. Bufalino, 576 F.2d 446, 449 (2d Cir. 1978); see also, e.g., United States v. Henriquez, 731 F.2d 131, 138 (2d Cir. 1984).
If, however, the Government's failure to disclose was inadvertent or negligent, the defendant must establish that there is a
significant chance that the added item would instill a reasonable doubt in a reasonable juror. Put another way, the failure to disclose may be disregarded if there is no reasonable probability that had the evidence been disclosed, the result would have been different.
United States v. Gonzalez, 110 F.3d 936, 943 (2d Cir. 1997) (emphasis supplied); see also Hilton, 521 F.2d at 166. A new trial may not be granted in such as case unless there is "a significant chance that this added item, developed by skilled counsel, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." United States v. James, 609 F.2d 36, 49 (2d Cir. 1979) (citation omitted); see also United States v. Nicolapolous, 30 F.3d 381, 383 (2d Cir. 1994) (harmless error standard must be strictly applied in Jencks Act cases) (citing Goldberg v. United States, 425 U.S. 94, 111 n. 21 (1976)).
The writing "J.D. Bubble" is a "substantially verbatim recital" of Santiago's statement. Section 3500(e) requires "only a substantially verbatim, not a precisely verbatim, recital." McKeever, 271 F.2d at 675; see also United States v. Thomas, 282 F.2d 191, 194 (2d Cir. 1960) ("fairly comprehensive reproduction"). The writing omits only two words of Santiago's statement and "reflect[s] fully and without distortion what had been said." Palermo v. United States, 360 U.S. 343, 352 (1959).
Although "verbatim statements" are not covered by Section 3500 if they are selected from a more lengthy statement, United States v. Sasso, 59 F.3d 341, 351 (2d Cir. 1995), here, the oral statement was brief and the writing captured the entirety of its substance.
The writing "J.D. Bubble" is not a "statement" covered by Section 3500's disclosure requirements, however, since it was not made "contemporaneously" with Santiago's statement. There was a delay of forty-five minutes to one hour between utterances and Nolasco's recording of the statement. There is no reason to believe that either Nolasco or Santiago could have known of the legal effect a delay in writing might have on the Government's duty to disclose. Moreover, the testimony of both officers was particularly credible on this point. Although Nolasco admitted that the name of "a J.D." would have been important to write down, he specifically recalled that he was sitting at his desk doing paperwork when he remembered that he should write down the names before he forgot them. Santiago has consistently maintained — before, during and after trial — that he did not see Nolasco write anything down. Further, it is reasonable to believe that Nolasco did not feel a need to write down the names immediately, since Santiago had pulled only three mug shots out of the array, of which only two presented a danger of confusion.
"J.D." refers to "John Doe."
Even were the writing a "statement" pursuant to Section 3500(e), however, the Government's failure to make disclosure does not require a new trial. To begin with, the failure to disclose was not deliberate. At the time of the trial, the Government did not realize that the mug shots it had received from the DA's Office had been part of a photospread or that the handwritten names had been placed on the mug shots in connection with the photospread.
The defendant argues that the Government's conduct was intentional and grossly negligent. In particular, the defendant maintains that the Government should have: (1) inquired with the Bronx DA's Office about the handwriting on the mug shots in the case file, and (2) contacted Nolasco upon hearing from Santiago that he had been shown a photo array and had identified the defendant. Had the Government contacted the DA's Office or Detective Nolasco, it would have discovered the connection between the handwriting and the photo identification and then could have produced this statement to defendant's counsel before Santiago's cross examination. The Government's actions, however, must be assessed in light of the facts that were known at the time. Cf. Loliscio v. Goord, 263 F.3d 178, 192 (2d Cir. 2001); Kamen v. Am. Tel. Tel. Co., 791 F.2d 1006, 1011-12 (2d Cir. 1986); Sierra Club v. U.S. Army Corps of Engineers, 701 F.2d 1011, 1047 (2d Cir. 1983).
The defendant also maintains that the Government should have asked Santiago about all photospread identifications, not only whether any had occurred in connection with the arrest. The fact of the photo identification, however, was disclosed in Santiago's direct testimony; defendant's argument that a new trial is warranted because the Government failed to disclose this fact prior to trial has already been considered and rejected by this Court. Ortega, 2001 WL 1588930, at *9.
When AUSA Glaser received the folder from the DA's Office, there was no reason to suspect that the writing on the mug shots bore any relation to any statement of a witness. When he learned that there had been a photospread identification, he conscientiously asked Santiago whether he knew of any writing concerning that identification. Santiago stated that he had not recorded his statement, and that he was not aware of such a writing by any other person. AUSA Glaser's failure to follow up with Detective Nolasco, and thus his failure to realize that there had been a handwritten statement, is easily understood. He learned of the photospread the Saturday before a Monday trial.
The trial lasted approximately three days, and required his full attention to prepare and present. Any omission was at worst inadvertent. See United States v. Mayersohn, 452 F.2d 521, 525 (2d Cir. 1971) (attorney's failure to remember report containing an alleged Section 3500 statement that was part of voluminous record was inadvertent).
There is another reason that a new trial is not warranted.
There is no reasonable probability that the result of the trial would have been different had the Government disclosed the unredacted mug shot bearing the handwritten note "J.D. Bubble."
First, the written recital of Santiago's identification on the photograph has no impeachment value because it corroborates Santiago's direct testimony that he identified one of the mug shots as belonging to an individual he had observed as involved in his drug purchases and that he had identified the defendant as "J.D. Bubble."
Second, the mug shot bearing the handwritten notation is cumulative of other evidence. Santiago's alleged Jencks Act statement merely restates the substance of his testimony, i.e., that he identified one of the individuals in the array as the individual named "J.D. Bubble" in his buy reports. Thus, the defendant was already able to use the photograph to advance his theory that Santiago's in-court and January 7 on-site identifications were based on his December photo array identification and not on observations made during the heroin purchases.
Finally, and most significantly, the reason that the defendant has had difficulty identifying prejudice from the non-disclosure is that the existence of the photospread identification, and the confirmation of that December identification that the handwritten notation "J.D. Bubble" provides, in fact undercut one of the principal defenses at trial. The notation "J.D. Bubble" on the mug shot confirms that Detective Santiago picked the defendant out of ninety photographs as an individual involved in selling him heroin before the January 7 arrest. The notation only strengthens the appearance of reliability of Santiago's December identification. Because it has no impeachment value, was cumulative of other evidence, and in fact reinforces the Government's evidence, the disclosure at trial of the written "statement" could not have changed the outcome of the trial in the defendant's favor. Defendant's motion for a new trial based on the Government's failure to disclose the handwritten entry "J.D. Bubble" on Ortega's mug shot is denied.
Since the non-disclosure was neither material nor favorable to the defendant, the defendant's motion would be denied even if the non-disclosure could be characterized as deliberate.
The defendant's attempt to reargue other portions of his new trial motion are untimely and in any event do not show how the Court overlooked any relevant fact or law.
CONCLUSION
For the reasons stated above, the defendant's motion for a new trial is denied.SO ORDERED.