United States v. Meregildo

920 F.Supp.2d 434

UNITED STATES of America,

v.Joshua MEREGILDO et al., Defendants.

No. 11 Cr. 576(WHP).

United States District Court, S.D. New York.

Jan. 31, 2013.

Nola B. Heller, Esq., Adam Fee, Esq., Santosh S. Aravind, Esq., United States Attorney SDNY, New York, NY, for the Government.

Mitchell Dinnerstein, Esq., New York, NY, for Melvin Colon.

Winston Lee, Esq., New York, NY, for Joshua Meregildo.

Florian Miedel, Esq., New York, NY, for Earl Pierce.

Gary G. Becker, Esq., New York, NY, for Nolbert Miranda.

MEMORANDUM & ORDER

WILLIAM H. PAULEY III, District Judge.

Defendants Melvin Colon, Devin Parsons, and many others were indicted for their involvement in the “Courtlandt Avenue Crew,” a racketeering enterprise in the Bronx. Parsons entered into a cooperation agreement with the Government. Before becoming a cooperating witness, Parsons was a self-professed gang member, drug dealer, and murderer. Prior to trial, Colon moved to compel the Government to produce Parsons's Facebook posts. Colon argued that Parsons was a member of the prosecution team and therefore subject to the Government's Brady obligations. On October 15, 2012, this Court denied Colon's motion. This Memorandum and Order explains the reasons for that decision.

BACKGROUND

On August 18, 2011, Parsons agreed to cooperate with the Government against the “Courtlandt Avenue Crew.” On September 21, 2011, members of the “Courtlandt Avenue Crew” were indicted on various narcotics and racketeering charges for selling marijuana and “crack” cocaine and murdering rival drug dealers.

While incarcerated, Parsons had a friend create a Facebook account for him under the alias “Devin Morris.” Parsons's friend created the account using an e-mail address that Parsons did not know. Against prison rules, Parsons used a cellular telephone to post Facebook status updates. Before the Government learned that Parsons had been posting on Facebook, Bureau of Prisons officials discovered the cellular telephone and seized it. In some posts, Parsons reflected on his life in jail:

“everybody wanna live but don't wanna die”; “Life is crazy thay only miss yu if yu dead or in jail”; and

“G.o.n.e”

In others, Parsons posted about his cooperation:

“I'm not tellin on nobody from HARLEM but I can give up some bx niggas that got bodys”; and

“be home sooner then yall hereing lol[.]”

By letter dated July 19, 2012, Toshnelle Foster, another defendant in this case, advised the Government that he had obtained Parsons's posts from a Facebook account under the name “Devin Morris.” (Letter of Justine A. Harris, Esq., July 19, 2012.) Foster requested information from the Government concerning Parsons's use of the Facebook account but not its contents. He wanted to know how Parsons had gained access to a cellular telephone or computer while in prison. Foster also wanted the Government to confirm that the posts were authored by Parsons and to disclose any other information the Government possessed concerning the account or any other Facebook account Parsons had used. Foster attached to his application select posts that he believed Parsons had authored.

At a proffer session on August 10, 2012, the Government confronted Parsons with the posts. Parsons confirmed that the Facebook account and posts were his and told the Government about how the account had been created and how he made the posts. The Government asked Parsons whether he had made additional posts on the account and he replied that he had made no other posts about the case or his cooperation.

Colon then asked this Court to compel the Government to obtain the entire contents of Parsons's Facebook account. On September 28, the Government contacted Parsons to obtain the log-in information for his account. Parsons provided the information but advised the Government that, after the August 10 proffer session, he had asked his friend to delete the account because he wanted to avoid any further inquiries. Parsons also advised the Government that all of the information he provided about the account during the August 10 proffer session was accurate. The Government attempted to access the deleted account using the log-in information Parsons provided but was unsuccessful because neither the Government nor Parsons had access to the account's registered e-mail address. To access the account, the Government contacted Facebook's legal counsel. Facebook, however, informed the Government that it could not access the account without the consent of Parsons's friend.

Colon moved to compel the Government to direct Parsons's friend to provide the log-in information for the Facebook account. After moving to compel, Colon disclosed that he possessed a complete log of Parsons's Facebook account, which Foster's private investigator had acquired.

DISCUSSION

The Due Process Clause of the Fifth Amendment requires the Government to disclose favorable material-evidence to a criminal defendant. Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Rivas, 377 F.3d 195, 199 (2d Cir.2004). Evidence is favorable if it is either exculpatory or impeaching. Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); United States v. Mahaffy, 693 F.3d 113, 127 (2d Cir.2012). The Government's obligations under Brady encompass not only information that is admissible in its present form but also material information that could potentially lead to admissible evidence favorable to the defense. United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir.2007). “This obligation is designed to serve the objectives of both fairness and accuracy in criminal prosecutions.” Rodriguez, 496 F.3d at 225.

The Brady rule reinforces the distinct legal and ethical obligations of the Government:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); see also Strickler, 527 U.S. at 281, 119 S.Ct. 1936 (discussing how Brady illustrates “special role played by the American prosecutor”); Rodriguez, 496 F.3d at 225–26 (same). These obligations prevent the Government from exploiting its position to obtain an unfair advantage at trial. Mahaffy, 693 F.3d at 134 (“Brady violations obscure a trial's truth-seeking function and, in so doing, place criminal defendants at an unfair disadvantage. When the Government impermissibly withholds Brady material, ‘its case is much stronger, and the defense case much weaker, than the full facts would suggest.’ ”) (quoting Kyles v. Whitley, 514 U.S. 419, 429, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)) (internal alterations omitted).

The focus of the Brady rule is fairness. See Kyles, 514 U.S. at 454, 115 S.Ct. 1555;Ritchie, 480 U.S. 39, 60, 107 S.Ct. 989 (1987); Strickler, 527 U.S. at 288, 119 S.Ct. 1936;see also Brady, 373 U.S. at 87, 83 S.Ct. 1194. The interests that it vindicates are more fundamental than those addressed by pretrial discovery rules. While discovery is a pretrial mechanism for defendants to secure information to marshal their defense, Brady and its progeny are concerned with determining whether withheld information was material to the outcome of a trial. The Brady rule is designed to protect defendants' due process rights without disturbing the criminal justice system's fundamentally adversarial nature. United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (“The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur.”) (internal quotations omitted); United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“We are not considering the scope of discovery.... We are dealing with the defendant's right to a fair trial mandated by the Due Process Clause of the Fifth Amendment to the Constitution.”). “An interpretation of Brady to create a broad, constitutionally required right of discovery would entirely alter the character and balance of our present systems of criminal justice.” Bagley, 473 U.S. at 675 n. 7, 105 S.Ct. 3375. “There is no general constitutional right to discovery in a criminal case, and Brady did not create one ... ‘the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded[.]’ ” Weatherford v. Bursey, 429 U.S. 545, 559–60, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (quoting Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)). In short, Brady is not a rule of discovery—it is a remedial rule. See United States v. Coppa, 267 F.3d 132, 140 (2d Cir.2001).

Defendants' due process rights are violated when the Government knows of favorable information and withholds it. Brady, 373 U.S. at 87, 83 S.Ct. 1194. To protect a defendant's right to due process, the Government must disclose favorable material-evidence when it is in the Government's knowledge or possession. United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998). “The Brady obligation extends only to material evidence [ ] that is known to the prosecutor.” Avellino, 136 F.3d at 255. But the “prosecutor is presumed to have knowledge of all information...