United States v. Inniss

UNITED STATES OF AMERICA, v. DONVILLE INNISS, Defendant.

18-CR-134 (KAM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

November 18, 2019

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

A three-count superseding indictment, dated August 1, 2019, charges defendants Donville Inniss ("Mr. Inniss"), and two others, Ingrid Innes ("Ms. Innes"), and Alex Tasker ("Mr. Tasker") (collectively, "defendants") with conspiracy to commit money laundering (Count I), in violation of 18 U.S.C. § 1956(h) and money laundering (Counts II and III), in violation of 18 U.S.C. § 1956(a)(2)(A). (Second Superseding Indictment (S-2) ("Indictment"), ECF No. 50, dated August 1, 2019.)

These charges allege that from in or about and between August 2015 and April 2016, Mr. Inniss leveraged his position, as the Minister of Industry and as a member of the Parliament of Barbados, to engage in a scheme to accept approximately $36,000 in bribes from Ms. Innes, then-CEO of the Insurance Corporation of Barbados Ltd. ("ICBL"), and Mr. Tasker, then-Senior VP of ICBL, in violation of Barbadian law, and to launder that money to and through the United States. (Id. ¶ 10.) Furthermore, the charges allege that Mr. Inniss, using his official position as Minister of Industry, caused the Barbados Investment and Development Corporation ("BIDC"), an agency of the government of Barbados and over which Mr. Inniss exercised authority, to renew two insurance contracts with ICBL ("2015 Contract" and "2016 Contract"). (Id. ¶¶ 11 - 17.)

Pursuant to the April 3, 2019 Pretrial Scheduling Order ("Pretrial Scheduling Order"), the parties were required to file their pretrial motions by June 7, 2019, opposition papers by June 28, 2019, and reply papers by July 5, 2019. (ECF No. 37, Pretrial Scheduling Order.) Though the parties filed pretrial motions by June 7, 2019, they continued to submit filings, including additional motions, well outside of the court-ordered schedule. On August 23, 2019, the government filed a supplemental motion in limine and a motion to produce and find a document not protected by the attorney-client privilege. (ECF No. 53, Supplemental Motion in Limine; ECF No. 54, First Motion to Produce and find document not protected by a-c privilege.) On September 3, 2019, the government filed a supplement to its first motion in limine. (ECF No. 56, Letter re September 6, 2019 conference and supplemental motion in limine as to Donville Inniss.) On September 4, 2019, the government filed a motion to take a Rule 15 deposition, which the court granted on September 12, 2019. (ECF No. 62, Motion toTake Deposition; ECF No. 70, Memorandum and Order granting Motion to Take Deposition.) Over two months after submitting his initial pretrial motions on June 7, 2019, Mr. Inniss filed a motion to strike a section of foreign law and to object to that portion of the proposed testimony of the government's expert witness, Thomas Durbin LLM ("Mr. Durbin"). (ECF No. 74, Letter Motion to Strike Section of Foreign Law and Objection to Proposed Expert Testimony ("Def. Mot. to Strike"), dated 9/16/2019.) The parties mutually agreed, with permission from the court, to adjourn the trial date from October 28, 2019 to January 13, 2020, in part to permit the court to consider the late-filed motions. (Dkt. Entry dated 10/14/2019.)

This Memorandum and Order addresses Mr. Inniss's pretrial motions before the court ("Inniss Motions"), pursuant to the Pretrial Scheduling Order. The Inniss Motions request that the court: (1) direct the government to disclose Brady/Kyles/Giglio information to Mr. Inniss; (2) direct the government to disclose any and all acts that the government will seek to introduce against Mr. Inniss pursuant to Federal Rule of Evidence 404(b); (3) strike Section 7 of the Barbadian Prevention of Corruption Act of 1929 ("Section 7") from consideration by the jury in this case; and (4) preclude any testimony on that section by the government's expert. (ECF No. 40, Motion for Discovery of Brady-Kyles Evidence and for theTimely Disclosure of 404(b) Evidence ("Def. Mot. to Compel"); ECF No. 74, Def. Mot. to Strike.) The government opposed Mr. Inniss's motions seeking to compel disclosure of Brady/Kyles/Giglio information and 404(b) evidence as effectively moot because the government, states that it is aware of, and intends to comply with its legal obligations, and because Mr. Inniss has not provided any grounds for why expedited disclosure is necessary in this case. (ECF No. 42, Response in Opposition re Motion for Discovery of Brady-Kyles Evidence and for the Timely Disclosure of 404(b) Evidence ("Gov. Opp.").) Mr. Inniss filed no reply in support of his motions to compel. The government does not oppose Mr. Inniss's motion to strike because the government is not seeking a jury instruction regarding Section 7 and is not seeking to have Mr. Durbin testify about Section 7. (ECF No. 76, Response to Motion re Letter Motion to Strike Section of Foreign Law and Objection to Proposed Expert Testimony ("Gov. Resp. to Def. Mot. to Strike").)

The court will address the government's pretrial motions in a separate Memorandum and Order.

DISCUSSION

A. Mr. Inniss's Request for an Order Requiring Disclosure of Brady and Giglio Material

First, Mr. Inniss moves for an order directing the government to produce (a) any exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), including evidence pursuant to Kyles v. Whitley, 514 U.S. 419 (1995); and (b) any witness impeachment evidence under Giglio v. United States, 405 U.S. 150 (1972). Specifically, Mr. Inniss requests that the government provide him with Brady-Kyles material in the form of "statements of any individual which are: [1] inconsistent or contradictory with prior statements made by those individuals; [2] inconsistent or contradictory with the statements of others interviewed; and [3] inconsistent or contradictory with the government's theory of prosecution in its case against him." (ECF No. 40, Def. Mot. to Compel, at 3.) With regard to Giglio information, Mr. Inniss requests a litany of witness impeachment information. (Id. at 6 - 8.)

1. Legal Standard

"Under Brady and its progeny, 'the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is 'material' either to guilt or to punishment.'" United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 91 (2d Cir. 2014) (quoting United States v. Coppa,267 F.3d 132, 139 (2d Cir. 2001)). "Favorable evidence" that must be disclosed for purposes of Brady "includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness," also known as "Giglio material." Id. "[A] prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the outcome of a trial in which the evidence had been disclosed would have been different." Coppa, 267 F.3d at 142. As the Second Circuit noted in Coppa, the government must disclose evidence that "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 135 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1997)).

Accordingly, the government must disclose all Brady and Giglio material "in time for its effective use at trial." See id.; see also United States v. Douglas, 525 F.3d 225, 245 (2d. Cir. 2008) (holding that there was no Brady violation where the government disclosed material three calendar days before start of trial); United States v. Rivera, No. 13-CR-149 (KAM)(E.D.N.Y. Feb. 5, 2015) (ECF No. 177, at 36-37) (denying motion to compel the production of Brady and Giglio material where the government indicated it would comply with notice requirements). The required timing of such a disclosure depends on the materiality of the evidence and the particularcircumstances of each case; thus, the Second Circuit has refrained from defining the temporal requirements of the phrase "in time for effective use." United States v. Taylor, 17 F. Supp. 3d 162, 177 (E.D.N.Y. 2014). Moreover, a defendant has "no pretrial discovery right to Giglio materials." United States v. RW Prof'l Leasing Servs. Corp., 317 F. Supp. 2d 167, 179 (E.D.N.Y. 2004) (citing United States v. Nixon, 418 U.S. 683, 701 (1974)). Nevertheless, a "district court has the discretion to order Brady/Giglio disclosure at any time as a matter of sound case management." Taylor, 17 F. Supp. 3d at 177 (internal citation omitted).

2. Application

In its opposition memorandum, the government represented to the court and Mr. Inniss that it "understands its obligations pursuant to Brady, Kyles, and Giglio and will disclose any such information at the appropriate time." (ECF No. 42, Gov. Opp. at 1.) Indeed, in its August 23, 2018 letter to defense counsel, the government noted that, though it was not aware of any exculpatory material regarding the defendant, it "understands and will comply with its continuing obligation to produce [Brady] material." (ECF No. 15, Letter re discovery produced in court today.) To date, the government has sent defense counsel eight letters, pursuant to Rule 16 of the Federal Rules of Criminal Procedure, providing variousdiscovery-related disclosures. Notably, in its June 24, 2019 letter to defense counsel, the government disclosed certain information "that may be helpful to the defense," although the government did not concede that the information was "material" under Brady. (ECF No. 41, Letter information that may be helpful to defense.)

Because the government has represented that it is unaware of any Brady material in its possession, and because it has committed to produce such material should any be discovered, the government argues that Mr. Inniss's motion to compel disclosure should be denied as moot. Mr. Inniss has filed no reply in support of his motion to compel, and he has not given the court reason to believe that the...