United States v. Villa

UNITED STATES OF AMERICA, v. AMAURY VILLA.

Criminal No. 3:12cr40 (JBA)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

January 24, 2014

RULING ON DEFENDANT'S MOTIONS TO COMPEL

Defendant Amaury Villa has filed four motions [Doc. # 95, 101, 115, 124] seeking to compel the production of Brady material and other evidence from the Government in this case.¹

The facts of this case are set forth in detail in the Court's recent Ruling Denying Defendant's Second Motion to Dismiss the Indictment [Doc. # 129]. Briefly, Defendant is charged with conspiracy, in violation of 18 U.S.C. § 371; four substantive counts of theft from a cargo shipment, in violation of 18 U.S.C. § 659; and one count of interstate transportation of stolen property, in violation of 18 U.S.C. § 2314, arising out of the burglary of an Eli Lilly distribution facility in Enfield, Connecticut. Defendant was separately charged and pled guilty in the Southern District of Florida to entering into aseparate conspiracy to sell the stolen Enfield pharmaceuticals over fifteen months after the initial burglary.²

I. Discussion

A. Brady and Discovery Obligations

The Government's disclosure requirements are governed by both statutory and constitutional dimensions. Pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, the Government's obligations "are seemingly well-established." United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001). The "prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment." Id. Giglio v. United States, 405 U.S. 150, 154 (1972) established that "[t]his duty covers not only exculpatory material, but also information that could be used to impeach a key government witness." Coppa, 267 F.3d at 135. "Brady does not, however, require the prosecution to disclose all exculpatory and impeachment material." Id. Generally, the Government has a constitutional duty to disclose only evidence that is "material" either to guilt or to punishment. Id. at 139.

In Brady, the Supreme Court "appear[ed] to be using the word 'material' in its evidentiary sense, i.e., evidence that has some probative tendency to preclude a finding ofguilt or lessen punishment." Id. at 141. In subsequent decisions, the Supreme Court has rejected this interpretation and held that "evidence is material in the Brady context only if 'its suppression undermines confidence in the outcome of the trial.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).

The difficulty in making this determination pre-trial is that Brady material is "ultimately defined retrospectively, by reference to the likely effect that the suppression of particular evidence had on the outcome of the trial." Id. at 140. Before trial, the defendant and the trial court will often not know the extent of the prosecution's evidence or theory of the case, and thus will not always be in a position to evaluate whether a particular piece of evidence constitutes Brady material. Hence, the prosecutor has a special obligation and responsibility to determine what evidence is covered by Brady. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) ("[T]he prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of 'reasonable probability' is reached.").

Some courts have noted that this retrospective definition of Brady material "is only appropriate . . . in the context of appellate review." United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198 (C.D. Cal. 1999); see also Ellen Yaroshefsky, Prosecutorial Disclosure Obligations, 62 Hastings L.J. 1321, 1335 n.70 (2011) (collecting cases). Aside from the inherent difficulty of measuring materiality to a trial that has not yet occurred, the analysis post-trial focuses on a different question—"whether the improper suppression of evidence violated the defendant's due process rights" rather than whether the material ought to have been disclosed in the first place. Sudikoff, 36 F. Supp. 2d at 1198 ("[T]hatthe suppression may not have been sufficient to violate due process does not mean that it was proper."). While it is not clear if this theory has been accepted in this Circuit, see United States v. Stein, 424 F. Supp. 2d 720, 726 (S.D.N.Y. 2006), in discussing the materiality standard in Coppa, the Second Circuit noted that that it had "no occasion to consider the scope of a trial judge's discretion to order pretrial disclosures as a matter of sound case management," Coppa, 267 F.3d at 146.

As relevant to this motion, Federal Rule of Criminal Procedure 16(a)(1)(E) provides:

Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

"Materiality means more than that the evidence in question bears some abstract logical relationship to the issues in the case. There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor." United States v. Maniktala, 934 F.2d 25, 28 (2d Cir. 1991) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir. 1975)).

The Jencks Act, 18 U.S.C. § 3500, and not Rule 16, governs prior statements made by testifying government witnesses. By its terms, Rule 16 does not "authorize the discovery or inspection of statements made by prospective government witnesses exceptas provided in 18 U.S.C. § 3500." Fed. R. Crim. P. 16(a)(2). Section 3500 "is the exclusive vehicle for disclosure of statements made by government witnesses." United States v. Percevault, 490 F.2d 126, 128-29 (2d Cir. 1974) (citation omitted). Unlike Rule 16, which provides for pre-trial disclosure of the materials covered, § 3500 requires disclosure only "after the witness has testified at trial." Id. at 129.

B. The Government's Disclosure Obligations in This Case

In response to Defendant's motion, the Government responded that it "is unaware, at the present time, of any material in its possession that is exculpatory or otherwise favorable to the defense that has not already been turned over," but states that it "continues to review evidence and will make all such material available to the defense if and when any such evidence comes to light." (Gov.'t's Opp'n [Doc. # 127] at 1.)

There are two problems with this response. First, although there is no specific time when Brady evidence must be disclosed, it must "must be disclosed in time for its effective use at trial, or at a plea proceeding."³ Coppa, 267 F.3d at 135 (internal citation omitted). As the Court has made clear, with jury selection set to commence on February 4, 2014, the time for disclosure is now. (See Endorsement Order [Doc. # 130] (ordering the disclosure of Brady material by January 24, 2014) ¶ 4.)

Second, it is not clear what the Government means when it refers to being "unaware" of Brady material or evidence that is in its "possession," but depending on the intended meaning, Brady requires more. Whether or not an individual prosecutor is aware of Brady evidence is not pertinent, as the Government is charged with knowledge of all material gathered in connection its investigation. See United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) ("The individual prosecutor is presumed to have knowledge of all information gathered in connection with the government's investigation."). Further, the Government's Brady obligations impose a duty to disclose not just that material known to an individual prosecutor, but "mean[] that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995).

Given that Defendant seeks materials that may be in the possession of other government agencies outside of this District, it is also necessary to define what constitutes "the government" for Rule 16 and Brady purposes. Although there is no consensus, "it most definitely does not encompass the entirety of the federal government," but "it surely includes at least the prosecutors working on the case." United States v. Ghailani, 687 F. Supp. 2d 365, 370 (S.D.N.Y. 2010). Courts in this Circuit have generally held that where the U.S. Attorney's Office is engaged in a joint investigation with another federal or state, agency, materials in the possession of that other agency must be disclosed pursuant to Rule 16 and Brady. See United States v. Gupta, 848 F. Supp. 2d 491, 493 (S.D.N.Y. 2012) (citing cases) ("Where the USAO conducts a 'joint investigation' with another state or federal agency, courts in this Circuit have held that the prosecutor's duty extends toreviewing the materials in the possession of that other agency for Brady evidence."); United States v. Finnerty, 411 F. Supp. 2d 428, 432 (S.D.N.Y. 2006) (collecting cases) ("Courts have typically required the prosecution to disclose under Rule 16 documents material to the defense that (1) it has actually reviewed, or (2) are in the possession, custody, or control of a government agency so closely aligned with the prosecution so as to be considered part of the prosecution team.").

To the extent that Defendant seeks documents in the possession or control of Eli Lilly rather than the Government, it appears that Brady and Rule 16 do not require the Government to disclose such documents, although Defendant has the option of seeking such material directly from Eli Lilly pursuant to a Rule 17 subpoena. See ...