Opinion
No. 05-CR-71-LRR.
September 12, 2006
ORDER
I. INTRODUCTION
The matter before the court is Defendant Omoro Crusoe's Second Supplement to Motion for New Trial ("Motion") (docket no. 73).
II. PROCEDURAL BACKGROUND
On June 23, 2006, the court filed an order on Defendant's initial and supplemental motions for new trial and judgment of acquittal. ( See docket no. 71). That order sets forth the procedural history of this case up through June 19, 2006. On June 19, 2006, Defendant filed the instant Motion. On June 21, 2006, the government filed a resistance.
The instant Motion was originally docketed at docket number 69 as a "Supplement/Addendum" to the original Motion for New Trial and Judgment of Acquittal. The Clerk of Court renamed it a "motion" at docket number 73.
In the Motion, Defendant argues that he is entitled to a new trial under Federal Rule of Criminal Procedure 33 based upon newly discovered evidence or, alternatively, under the less stringent Brady rule. Defendant claims that his attorney was "recently afforded the opportunity to review a discovery file in United States v. Levi Morgan," and, as a result of reviewing that discovery file, has discovered exculpatory evidence that is so substantial that it could have led to an acquittal in Defendant's case. Defendant argues that the withheld evidence shows that the government's trial evidence was not true. Namely, it establishes that: (1) C.J. Morgan was not merely "a former heroin user"; (2) C.J. Morgan's motivation to be a confidential informant was that his younger brother was a heroin user who was obtaining his heroin from Defendant; and (3) Levi Morgan was being investigated as a heroin dealer who had caused the death of Thomas Long.
The court notes that Defendant moved for new trial on two grounds: (1) under the newly discovered evidence rule and (2) under Brady and the Due Process Clause. ( See docket no. 73, at 8). Because the court finds Defendant is entitled to a new trial due to a violation of the rule set forth in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, it is unnecessary to discuss the newly discovered evidence rule. See United States v. Duke, 255 F.3d 656, 659 (8th Cir. 2001) (setting forth the five factors that must be met in order for a court to grant a new trial based on newly discovered evidence); see also United States v. Duke, 50 F.3d 571, 576-77 (8th Cir. 1995) (discussing both standards for new trial and explaining that the Brady standard is "more favorable to the defendant" because a Brady violation involves the prosecutor's duty to "serve the cause of justice" and because the Brady rule is "based on the requirement of due process" (citations omitted)).
More specifically, Defendant argues that the testimony of the government's confidential informant, C.J. Morgan, and one of the government's agents, Drug Enforcement Administration ("DEA") Task Force Officer ("TFO") Gregory Brugman ("TFO Brugman"), would have been significantly impeached had Defendant had access to the Levi Morgan discovery file prior to Defendant's trial.
The government responds that none of the newly discovered evidence is contrary to four factual assertions established at trial. Those assertions are: (1) that C.J. Morgan was merely a "former heroin addict"; (2) that C.J. Morgan went to the DEA "out of the blue" because he wanted to protect his "heroin addict" younger brother; (3) that the younger brother was not under investigation by the authorities; and (4) that C.J. Morgan wanted to protect his younger brother from Defendant because Defendant had sold Levi Morgan heroin.
On August 16, 2006, the court ordered the government to produce the contents of Levi Morgan's discovery file for in camera inspection. On August 21, 2006, the court received those documents from the government. On August 25, 2006, the court held a hearing on the Motion ("Hearing"). Defendant was personally present and represented by Attorney Mark Meyer. Assistant United States Attorney C.J. Williams represented the government. The documents received by the court on August 21, 2006, were marked and admitted as Court Exhibit 1. The matter is fully submitted and ready for decision.
III. FACTUAL BACKGROUND
The relevant factual background is set forth in the June 23, 2006 order (docket no. 71), which the court hereby incorporates by reference.IV. MOTION FOR NEW TRIAL A. Duty to Disclose Exculpatory and Impeachment Evidence
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, Defendant is entitled to a new trial if the government failed to disclose exculpatory evidence prior to trial. See Brady, 373 U.S. at 87 ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."); United States v. Agurs, 427 U.S. 97, 106-07 (1976) (holding that the prosecution has a duty to disclose exculpatory evidence even where defense counsel has not requested it). The parties' Stipulated Discovery Order provides that "[t]he [open discovery] file will include . . . Brady . . . materials of which the United States Attorney's Office is aware and possesses." (docket no. 13).
"Impeachment evidence as well as exculpatory evidence falls within the Brady rule." United States v. Conroy, 424 F.3d 833, 837 (8th Cir. 2005) (citing United States v. Bagley, 473 U.S. 667, 676 (1985)). " Brady applies equally to evidence impeaching the credibility of Government witnesses as well as to exculpatory evidence." United States v. Kime, 99 F.3d 870, 882 (8th Cir. 1996); see also Giglio v. United States, 405 U.S. 150, 153-54 (1972) ("When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [the Brady rule]." (quotation omitted)).
"Impeachment evidence is 'evidence favorable to an accused, so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.'" Conroy, 424 F.3d at 837 (quoting Bagley, 473 U.S. at 676). Evidence is material for Brady purposes
"only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome."Id. (quoting Bagley, 473 U.S. at 682). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995); see also United States v. Almendares, 397 F.3d 653, 664 (8th Cir. 2005) ("The critical question, however, is whether the defendant received a trial resulting in a verdict worthy of confidence." (Citing Kyles, 514 U.S. at 434).).
B. Withheld Evidence
The evidence that Defendant asserts was not available to him prior to trial and would have affected the outcome of his case includes the following, which is a summary of Court Exhibit 1:
(1) On January 31, 2004, officers from the Cedar Rapids Police Department learned that Thomas Long died of toxicity due to a combination of cocaine and an opiate.
(2) On February 2, 2004, Thomas Long's mother, Susan Long, informed a Cedar Rapids Police officer that her son was using heroin with Levi Morgan and "Joey" Pospishil on the night he died.
(3) On March 10, 2004, Minister Daniel Kolander ("Minister Kolander") told DEA Special Agent Kevin Cavanaugh ("Special Agent Cavanaugh") and a Cedar Rapids Police officer that Levi Morgan and Joe Pospishil had supplied Minister Kolander's middle-school-aged son, Aaron Kolander, with marijuana, and that Aaron Kolander knew that Thomas Long was with Levi Morgan on the night that Thomas Long overdosed. Aaron Kolander also knew that Levi Morgan was running the family drug business at the time of Thomas Long's death because C.J. Morgan was in the Linn County Jail.
(4) On March 10, 2004, Thomas Long's sister, Laura Long, spoke with Special Agent Cavanaugh and told him that C.J. Morgan and Levi Morgan both supplied drugs to kids who attended Washington High School.
(5) On March 11, 2004, Special Agent Cavanaugh and TFO Brugman interviewed Thomas Long's father, Thomas Long, Sr. ("Mr. Long"). Mr. Long told the officers that he believed that Levi Morgan was supplying drugs to students at Washington High School since his brother, C.J. Morgan, was in jail.
(6) Also on March 11, 2004, TFO Brugman and TFO Anthony Robinson ("TFO Robinson") interviewed a source of information ("SOI") at the Linn County jail. Among other things, the SOI discussed the fact that Thomas Long died of a heroin overdose in January. He said that Thomas Long bought his heroin from "Ree" and that a juvenile, Levi Morgan, also obtained his heroin from Ree or Ray Robertson.
(7) On March 18, 2004, TFO Robinson and Assistant United States Attorney Richard Murphy interviewed Aaron Kolander. Aaron Kolander identified C.J. Morgan as a Cedar Rapids heroin supplier who "used to" attend Washington High School and who obtains his heroin from Chicago. Aaron Kolander said that he observed C.J. Morgan once with a baseball-sized quantity of heroin. Aaron Kolander said that C.J. Morgan was a serious heroine user who "often sold heroin to support his habit." Aaron Kolander said that he used heroin for a four month period in 2000 and 2001 and that he purchased a tenth of a gram of heroin from C.J. Morgan in 2000 and 2001 between fifty and one hundred times. He paid C.J. Morgan $40 for each tenth of a gram of heroin. Aaron Kolander identified three other people who purchased heroin from C.J. Morgan during that same time period. Aaron Kolander had heard that Thomas Long was with Levi Morgan and Joe Pospishil the night Thomas Long died and that Levi Morgan had either provided the heroin or found a source for the heroin that Thomas Long used.
(8) On May 25, 2004, Special Agent Cavanaugh and TFO Mark Strait ("TFO Strait") interviewed federal inmate Caesar Cardenas at the Linn County Jail. Cardenas met C.J. Morgan while they were in a holding cell together in the federal courthouse. C.J. Morgan told Cardenas that, shortly after Thomas Long died of the heroin overdose, C.J. Morgan's fifteen-year-old brother came to visit him at the Linn County Jail. In addition, while visiting the jail, Levi Morgan told C.J. Morgan that Levi Morgan had sold Thomas Long the heroin that killed him. C.J. Morgan also gave Cardenas additional details about the Morgan brothers' heroin business, including the fact that C.J. Morgan bragged to Cardenas about selling three grams of heroin per day to his clients.
(9) On October 27, 2005, DEA Special Agent Jarad Harper ("Special Agent Harper") and TFO Robinson interviewed Joe Pospishil. Pospishil told the officers about his contact with Thomas Long on January 30, 2004. Pospishil believed Thomas Long and Levi Morgan had used heroin at his home on that day, because Thomas Long was "messed up." Pospishil told the officers that on January 31, 2004, after Levi Morgan learned of Thomas Long's death, Levi Morgan told him that Levi Morgan had obtained the heroin from a black female dealer named Treecie and that the heroin was "some good shit." Pospishil told the officers that: (1) he had used and purchased heroin with Levi Morgan several times in the past at Levi Morgan's house; (2) about two months before the interview, Pospishil's friend was "ripped off" by Levi Morgan while purchasing heroin from Levi Morgan at Levi Morgan's house; and (3) Pospishil had purchased heroin from C.J. Morgan about twenty times in the past.
(10) On November 17, 2005, Special Agent Harper met with a confidential informant ("CI") who made several calls to Levi Morgan and ultimately arranged to meet him to buy one-half gram of heroin. Levi Morgan sold the CI heroin and, after the transaction, was bragging about the quality of the heroin and stating how people who use too much of it "fall out all the way" and "OD" on it. TFO Brugman, TFO Lupkes, TFO Strait and DEA Resident Agent in Charge Richard J. LaMere ("RAC LaMere") all conducted surveillance during the controlled transaction.
The DEA Form 6 Report ( see Court Exhibit 1) shows that Special Agent Cavanaugh wrote the report regarding the March 11, 2004 interview with Mr. Long and that TFO Brugman was the "other" officer who attended the interview.
The DEA Form 6 Report ( see Court Exhibit 1) shows that TFO Brugman wrote the report regarding the March 11, 2004 interview with the SOI and that TFO Robinson was the "other" officer who attended the interview.
C. Analysis
The court finds that the evidence that was not disclosed prior to or during trial in this case — namely, the law enforcement reports from the investigation into Thomas Long's death (i.e., Court Exhibit 1) — is material impeachment evidence. Conroy, 424 F.3d at 837. Defendant did not receive a fair trial and the court does not have confidence in the outcome. Almendares, 397 F.3d at 664.Pursuant to the October 14, 2005 Stipulated Discovery Order and Brady and its progeny, the government had an obligation to place exculpatory evidence and impeachment evidence in its open discovery file. (docket no. 13); Brady, 373 U.S. at 87; Conroy, 424 F.3d at 837. If the evidence in Defendant's case and other cases, like the case involving Levi Morgan, for example, overlapped, then the government had an obligation to combine the discovery files or otherwise ensure that Defendant had access to all law enforcement reports, grand jury testimony and other evidence which pertained to Defendant's case. The government's obligation extends to material impeachment evidence pertaining to the confidential informant. Conroy, 424 F.3d at 837.
1. Quality of government's trial evidence
Defendant's trial centered on the credibility of C.J. Morgan. The evidence from the controlled transactions was not overwhelming. No law enforcement officers saw the transactions in the restroom, and only cursory surveillance was conducted. There were no video tapes or still photographs depicting anything surrounding either transaction. The audio recordings of the transactions were inaudible. There was no fingerprint evidence. There was no evidence that Defendant was later found in possession of the preserialized currency that was used during the transactions. C.J. Morgan testified that he used his cellular telephone to call Defendant on March 21, 2004, and March 29, 2004, (the nights before the controlled transactions) to set-up the deals. However, law enforcement officers were not present during the calls and the government did not introduce telephone records from C.J. Morgan's cellular telephone.
Essentially, the convictions were based on C.J. Morgan's testimony that he purchased heroin from Defendant in the restroom at Westdale Mall. Beyond C.J. Morgan's testimony, there was only circumstantial evidence that Defendant was the seller involved in the controlled transactions. First, there was evidence presented that Defendant has two prior convictions for delivery of cocaine in Chicago — in 1996 and 1999. Second, during the March 22, 2004 transaction, TFO Brugman identified Defendant as one of the two black men who parked a Mitsubishi Diamante and went into Westdale Mall at the time of the alleged transaction. Third, the evidence showed that the vehicles the officers observed at Westdale Mall during both transactions were registered to the Kuennen sisters. The Diamante's license plate was registered to Kassandra Kuennen of 1801 Park Avenue Southeast, Cedar Rapids. The Ford Windstar minivan, which pulled up to Westdale Mall during the March 30, 2004 transaction, was registered to Christine and Kyle Kuennen. A white female was driving the minivan and a black man got out of the minivan and went into Westdale Mall with C.J. Morgan. When officers followed the minivan after the transaction, the van drove to and parked between 1801 and 1809 Park Avenue Southeast. The former of those residences was where the Diamante was registered and where Kassandra Kuennen resided. The evidence also established that Christine Kuennen was Kassandra Kuennen's sister. Finally, several officers testified that they saw two black men get out of the Diamante on March 22, 2004, and one black man got out of the minivan on March 30, 2004. Therefore, the government established circumstantial evidence regarding the transactions, but none of the officers personally observed either transaction.
The court notes that the government's identification evidence was weak. In closing arguments, the government admitted that, aside from C.J. Morgan, TFO Brugman was the only person who was able to positively identify Defendant as one of the people who arrived at Westdale Mall on March 22, 2004, in the Diamante. Trial Transcript, December 15-16, 2004, at docket no. 54, at 421. And, it admitted that two other officers, RAC LaMere and TFO Robinson, identified Defendant in the first and second transactions, respectively, but neither could "tell [the jury] 100 percent" that Defendant was the person they saw. Id.
2. The withheld evidence conflicts with TFO Brugman's trial testimony
After the trial, Defendant learned that the DEA had been investigating Levi Morgan since Thomas Long's death in January of 2004. This was contrary to TFO Brugman's testimony:
Defense Counsel: And I think you mentioned something about a brother. Morgan had a brother who was involved in heroin; is that correct?
TFO Brugman: That's correct.
Defense Counsel: And were you investigating the brother, Mr. Morgan's brother?
TFO Brugman: No, I was not.
Trial Transcript, December 15-16, 2005, at docket no. 54 ("T.Tr."), at 82. On redirect examination, TFO Brugman's testimony again implied that Levi Morgan was merely a drug user who was not being investigated.
Government: Okay. And you were asked about the — his little brother and whether you were investigating the little brother. First of all, Mr. Morgan described you as — his little brother as being a drug user?
TFO Brugman: Yes.
Government: Is the task force, the DEA Task Force, the federal government, focused on trying to investigate and prosecute drug users or do you focus on something else?
TFO Brugman: We're looking at drug dealers, not the users.
T.Tr. at 115. Contrary to TFO Brugman's testimony, the withheld evidence shows that the DEA Task Force had been investigating C.J. Morgan's brother, Levi Morgan, since, at least March 10, 2004.
The controlled transactions occurred on March 22, 2004, and March 30, 2004. Indeed, the new evidence shows that on March 11, 2004, TFO Brugman was involved in two separate interviews pertaining to the death of Thomas Long. TFO Brugman participated in an interview of Mr. Long and also was the reporting officer in an interview of an SOI that day. The new evidence explicitly involves C.J. Morgan and reveals the fact that several people who were interviewed by the DEA officers believed that C.J. Morgan and Levi Morgan ran a "family drug business" and that Levi Morgan ran the business while C.J. Morgan was in jail. This is, at the least, impeachment evidence which, if used effectively, would have shown the jury that C.J. Morgan was more than a heroin user or addict. Giglio, 405 U.S. at 153-54; Conroy, 424 F.3d at 837. Moreover, if armed with the Brady evidence, defense counsel likely would have impeached C.J. Morgan (1) when he testified that he was motivated to call the DEA and to be a confidential informant because his fifteen-year-old brother was using heroin and (2) when he testified that his little brother did not sell heroin. See T.Tr. at 135 152. Therefore, regardless of whether TFO Brugman's testimony was mistaken or deliberate, it did not accurately portray the entirety of the evidence which the government possessed, and Defendant did not have an opportunity to fully cross examine TFO Brugman.
3. The withheld evidence conflicts with the government's trial theme that C.J. Morgan was a drug user
The theme of the government's case was that C.J. Morgan was merely a heroin user who was trying to help the DEA rid Cedar Rapids of heroin. Instead, the withheld evidence shows that the DEA Task Force had information that both C.J. Morgan and Levi Morgan were drug dealers, rather than just users. In its opening statement, the government's attorney stated: "In March of 2004, the DEA Task Force here in Cedar Rapids set out to try to shut down the heroin trade, and so they worked with a former heroin user." T.Tr. at 25. Additionally, the government, on two other occasions, classified C.J. Morgan as "the former heroin user." Id. at 26 27. Further, TFO Brugman testified that C.J. Morgan was a heroin user. Id. at 82.
In a June 1, 2006 Trial Memorandum in a separate case, the government stated that it "may also offer the testimony of an experienced drug dealer and user (C.J. Morgan) who similarly may testify, based on his own personal knowledge, about the trafficking of heroin and related activities." United States v. Dorian Ragland, No. 06-CR-1-LRR (N.D. Iowa), docket no. 29, at 4 (emphasis added).
The direct and cross examinations of C.J. Morgan also strongly implied to the jury that both of the Morgan brothers were drug users rather than dealers. Defendant was unable to appropriately cross-examine C.J. Morgan when he testified that he and his brother were merely drug users. The government presented evidence that the twenty-three-year-old C.J. Morgan had been in trouble with the law in the past due to his drug addiction.
Government: Now, Mr. Morgan, you were charged and convicted of a burglary offense, but have you had a background where you've used controlled substances?
C.J. Morgan: Yeah.
Government: And what kind of controlled substances have you used in the past?
C.J. Morgan: Well, up until I got placed on probation, I was a heroin addict for two years.
Government: And anybody else in your family — at that time, did you have concerns about whether they were also hooked on heroin?
C.J. Morgan: Just my little brother.
Government: Is that something that weighed heavily with you?
C.J. Morgan: Yes, sir.
Government: At some point, did you contact the DEA Task Force and offer to work with them?
C.J. Morgan: Yes, sir.
Government: What motivated you to do that, sir?
C.J. Morgan: Well, the fact that my little brother was getting high and he was only fifteen years old.
T.Tr. at 134-35. On cross examination, defense counsel asked C.J. Morgan about his brother and their drug habits.
Defense Counsel: Your brother . . . obviously is someone that you care about; is he not?
C.J. Morgan: Yes, sir.
Defense Counsel: And you say that he also is a heroin user?
C.J. Morgan: Yes, sir.
Defense Counsel: And he was a heroin user in March of 2004?
C.J. Morgan: Yes, sir.
Defense Counsel: And does he also sell heroin?
C.J. Morgan: No, sir.
Defense Counsel: Where does he get his heroin?
C.J. Morgan: I don't know now.
Defense Counsel: Where was he getting it at the time?
C.J. Morgan: I know he got it from Mo a couple of times.
Defense Counsel: Did he ever get heroin from you?
C.J. Morgan: No, sir. I got high with him.
T.Tr. at 152. This trial testimony by C.J. Morgan was left unchallenged by Defendant because, as far as Defendant knew at the time of trial, C.J. Morgan and his little brother were just heroin users. To the contrary, the government was aware of several individuals who had implicated both Morgan brothers as heroin dealers. And, at the time of trial, less than a month had passed since several of the testifying officers, namely, RAC LaMere, TFO Brugman, TFO Strait and TFO Lupkes had participated in surveillance of a controlled transaction which involved Levi Morgan as the seller.
Finally, the government highlighted the importance of C.J. Morgan's testimony and emphasized his credibility in its closing argument. The government argued as follows:
First of all, we know the evidence in this case showed that [Defendant] was identified. That identification came through several witnesses. First of all, C.J. Morgan of course, the guy who actually bought the dope from [Defendant]. He didn't hesitate. You watched him. He testified in front of you. You had the opportunity to view his credibility. He looked across the room, looked at [Defendant] and said, "That's him, right there. That's the guy who sold me dope on two occasions." No hesitation from him.
T.Tr. at 420-21. Defendant could not appropriately challenge C.J. Morgan's credibility because he did not have access to the information in Levi Morgan's discovery file until well-after his trial concluded.
In the Court's June 23, 2006 Order Denying Motion for New Trial and Motion for Judgment of Acquittal (docket no. 71), the court found that a new trial was not warranted. The court now examines the totality of the circumstances, including the clerical error involved with the Iowa Workforce Development records ( see id. at 19-22) and the "newly discovered evidence" ( see id. at 22-25), and it concludes that Defendant is entitled to a new trial.
V. CONCLUSION
The court finds that the government had an obligation to disclose the contents of Levi Morgan's discovery file which pertained to the veracity of C.J. Morgan, the government's star witness in Defendant's trial. Brady, 373 U.S. at 87; Bagley, 473 U.S. at 676. The court also finds that, had Defendant had access to this material impeachment evidence prior to or during his trial, it may have made the difference between conviction and acquittal. Conroy, 424 F.3d at 837. The withheld evidence was material and there is a reasonable probability that the result of the trial would have been different had Defendant had access to the information. Id.For the reasons stated herein, it is hereby ORDERED:
(1) Defendant's Second Supplement to Motion for New Trial (docket no. 73) is GRANTED;
(2) The retrial of Defendant's case shall take place on November 13, 2006; and
(3) A Trial Scheduling and Management Order will be filed separately.
IT IS SO ORDERED.