United States District Court, District of Columbia
Darrin Lee McCullough, U.S. Department of Justice, Criminal Division, Narcotic and Dangerous Drug, Washington, DC, for Plaintiff.
David Schertler, Danny C. Onorato, Schertler & Onorato, L.L.P., Bernard S. Grimm, S. Rebecca Brodey, Cozen O'Connor, John O. Iweanoge, II, The Iweanoges' Firm, P.C., Washington, DC, Gladys M. Weatherspoon, Greenbelt, MD, for Defendants.
GLADYS KESSLER, District Judge.
On June 22, 2012, following a 24-day bench trial, this Court convicted the three Defendants. All three Defendants were convicted of Conspiracy to Obstruct Justice. Defendant Daum was also convicted of three counts of Obstruction of Justice and two counts of Subornation of Perjury. Defendants have filed a Renewed Motion to Dismiss, or, Alternatively, for a New Trial [Dkt. No. 273]. In addition, there is a Supplemental Rule 29 Motion of Daaiyah Pasha pending [Dkt. No. 225]. Upon consideration of the Motions, the Government's Opposition [Dkt. No. 277], the applicable case law, and the lengthy record in this case, the Court concludes that the Motions must be denied.
In their Renewed Motion to Dismiss, Defendants argue for dismissal of the Indictment or, alternatively, for a new trial, because the Government failed to provide them, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), with two items of Brady information prior to trial. Defendants claim, first, that the Government failed to reveal that trial witness Jerome White, the brother of Delante White, testified as a cooperating witness in another, unrelated, criminal trial, namely, United States v. Mark Pray, 10-cr-0051, and was threatened by Pray on the day he was supposed to testify. The Pray case was tried by the Honorable
Rosemary M. Collyer of this District Court, prior to the beginning of the Daum trial. Defendants claim, second, that the Government failed to disclose the total number and length of meetings that Delante White and his attorney had with various prosecutors and agents during the investigation of this case and preparation of it for trial.
In Brady v. Maryland, the Supreme Court ruled that the due process clause of the Constitution requires the prosecution to disclose evidence favorable to an accused if that evidence is material to either guilt or punishment without regard to the good faith or bad faith of prosecutors. United States v. Johnson, 519 F.3d 478, 488 (D.C.Cir.2008). In order to constitute Brady material, " the withheld evidence must be ‘ material’ that is, there must be a ‘ reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ " Id. at 488 (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Finally, our Court of Appeals has specifically ruled that information which is merely cumulative or possibly useful for additional impeachment is not typically construed to be Brady material. See United States v. Emor, 573 F.3d 778, 782 (D.C.Cir.2009). With this basic Constitutional framework in mind, the Court will now address the issues raised by Defendants.
1. As to the claim regarding the Government's failure to inform them that Jerome White testified as a cooperator in the Pray trial and was threatened by Pray, Defendants have simply received and relied upon incorrect information. As the Affidavits of Matthew P. Cohen, lead Government counsel in the Mark Pray case, and Mark Carroll, counsel for Delante White in the underlying drug case against Delante White, demonstrate, Jerome White never testified in the Mark Pray trial. At the sentencing of Delante White, on October 2, 2012, before the Hon. Paul Friedman of this District Court, Delante White's attorney, Mark Carroll, stated that Jerome White testified in the Mark Pray trial. In his Affidavit, Mr. Carroll admits that he had no personal knowledge of this fact and that his statement was based upon a conversation he had with Jerome White's defense attorney. Apparently, according to Mr. Carroll, he misunderstood what was said in that conversation. He acknowledged in his Affidavit that he has since learned that Jerome White did not testify in the Mark Pray trial, and that the alleged threat made by Mark Pray to Jerome White actually occurred on the day that Jerome White was to testify in this trial, not the Mark Pray case. Mr. Carroll admits that his statement was in error, but was " based upon an honest misunderstanding." The Court has no reason to question the accuracy of Mr. Carroll's Affidavit.
Given these facts, it is clear that there is no merit to the allegation of a Brady violation regarding testimony by Jerome White, and therefore the Motion must be denied.
2. As to the Defendants' assertion that the Government failed to advise them of the full scope of Delante White's cooperation in connection with this case, the Court does not find a Brady violation. Defendants concede that they were provided
with notes of 12 meetings between Delante White and prosecutors, agents, and police officers, but were given no information regarding the length of those meetings or the fact that there were 26 such ...