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United States v. Bagcho

United States District Court, District of Columbia

January 3, 2017

UNITED STATES OF AMERICA
v.
HAJI BAGCHO, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge.

         Defendant Haji Bagcho has moved for reconsideration of this Court's order denying his motion for a new trial. See United States v. Bagcho, 151 F.Supp.3d 60 (D.D.C. 2015). At his trial, the prosecution presented evidence that Bagcho ran a large heroin trafficking operation in Afghanistan, and the jury found him guilty of narcotics distribution and narcoterrorism. Id. at 63-65. The Court subsequently vacated his conviction on the narcoterrorism count as a result of a Brady violation, but it did not disturb the two drug convictions. Id. at 76. Bagcho now argues that the Court erred in denying his motion for a new trial as to these other counts, and he also makes a new claim that the government offered false testimony at trial. (Def.'s Mot. Reconsideration, ECF No. 149.) The Court will deny Bagcho's motion for reconsideration because the Brady violation was not material to the other counts of conviction, and the new claim is untimely.

         BACKGROUND

         A grand jury indicted Bagcho on four counts: conspiracy to distribute one kilogram or more of heroin, intending or knowing that the heroin would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959, 963, and 960(b)(1)(A) (Count One); twice distributing one kilogram or more of heroin, intending or knowing that the heroin would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959(a)(1), 959(a)(2), and 960(b)(1)(A) (Counts Two and Three); and narcotics trafficking while funding terrorism, in violation of 21 U.S.C. §§ 960a, 841(a), and 841(b)(1)(A)(i) (Count Four). (Superseding Indictment, ECF No. 11.) At Bagcho's first trial, the jury could not reach a verdict. After his second trial, on March 13, 2012, a jury convicted him on Counts One, Two, and Four. (Verdict Form, ECF No. 78.) This Court's prior opinion describes the evidence presented at the second trial. See Bagcho, 151 F.Supp.3d at 63-65.

         More than three years after the verdict of guilty in his second trial, Bagcho filed a motion asking for a new trial. (Def.'s Mot. New Trial, ECF No. 105.) The government had notified defense counsel about its discovery of another government agency's records concerning Qari, who was an undercover informant and a government witness at trial. Bagcho, 151 F.Supp.3d at 65. That agency had concluded, prior to Bagcho's trial, that Qari was not credible. Id. Bagcho's motion for a new trial argued that the government's failure to disclose this information before trial constituted a Brady violation. (Def.'s Mot. New Trial.) On December 17, 2015, this Court granted the motion in part, vacating Bagcho's conviction on Count Four. Bagcho, 151 F.Supp.3d at 76. The Court found that the agency's credibility assessment may have been admissible at trial to impeach Qari for bias or to “undermine the reliability of the government's investigation and its sources.” Id. at 68-73. But, after analyzing the potential impact of this impeachment evidence on each count, the Court held that the Brady violation undermined confidence in the verdict only as to Count Four. Id. at 75-76.

         The Court did not disturb Bagcho's convictions on Counts One and Two, which were supported by “a wealth of evidence that had nothing to do with the DEA's careless vetting of Qari.” Id. at 74-76. The Court explained that Count One, the conspiracy conviction, was amply corroborated by the testimony of other witnesses and by physical evidence, including drug samples obtained by the DEA in controlled buys; heroin-production material seized from Bagcho's compound; taped conversations in which Bagcho discussed drug distribution to the United States and discussed working with other co-conspirators[1]; Bagcho's accounting ledgers[2]; and ledgers from Zahir Shah's sarafi shop. Id. at 74. Next, the Court explained that Count Two, the narcotics distribution conviction, was supported by recorded calls between Bagcho and an undercover informant saying the heroin will go to the United States; the ledger memorializing the transaction that was seized from Zahir Shah's stall; and the physical delivery to the DEA of 2 kilos of heroin that the undercover informant had purchased during a controlled buy. Id. at 75.

         On April 13, 2016, almost four months after the Court had denied the motion for a new trial as to Counts One and Two, Bagcho filed this motion for reconsideration. (Def.'s Mot. Reconsideration.) First, he argues that “when Brady evidence implicates the entire investigation, as it did here, it is material to all counts of conviction.” (Id. at 2.) Second, he makes a brand new argument that the Court should grant a new trial because two government witnesses testified falsely that the person pictured in Government Exhibit 38 was Maulawi Kabir, a governor under the Taliban. (Id. at 2-6.) In response, the government argues that Bagcho may not ask the Court to reconsider its interpretation of the materiality standard that it applied to the information about Qari, that the Court properly applied precedent when it assessed the materiality of that information, and that Bagcho's argument regarding Exhibit 38 is in fact a Rule 33 motion, which was not timely filed. (Gov.'s Opp., ECF No. 151.)

         DISCUSSION

         I. THE GOVERNMENT AGENCY'S CREDIBILITY ASSESSMENT OF QARI

         Bagcho has labeled his current motion a “motion for reconsideration” and claims that this Court erred in determining that the Brady information regarding Qari was not material to all counts of conviction. (Def.'s Mot. Reconsideration at 1-2.) The Court will assume that it can consider this motion for reconsideration, but it will deny the motion on its merits.

         Unlike the Federal Rules of Civil Procedure, neither the Federal Rules of Criminal Procedure nor the Local Criminal Rules for this district provide for motions for reconsideration. United States v. Hong Vo, 978 F.Supp.2d 41, 47 (D.D.C. 2013); United States v. Cabrera, 699 F.Supp.2d 35, 40 (D.D.C. 2010). Nevertheless, judges in this district have assumed, without deciding, that they may consider motions for reconsideration in criminal cases. Hong Vo, 978 F.Supp.2d at 47; Cabrera, 699 F.Supp.2d at 40; United States v. Cooper, 947 F.Supp.2d 108, 109 (D.D.C. 2013). This Court will do the same.

         Judges in this district have used various standards of review when considering motions for reconsideration in criminal cases. In some cases, judges have adopted the “as justice requires” standard of Rule 54(b) of the Federal Rules of Civil Procedure, which permits reconsideration when a court has “patently misunderstood the parties, made a decision beyond the adversarial issues presented, [or] made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred.” Hong Vo, 978 F.Supp.2d at 47-48 (quotation marks and citations omitted). In other cases, judges have adopted the standard from Rule 59(e) of the Federal Rules of Civil Procedure, under which a motion for reconsideration need not be granted unless there is an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Cabrera, 699 F.Supp.2d at 40-41 (quotation marks and citations omitted). Rule 59(e) motions must be filed within 28 days after the entry of judgment. Fed.R.Civ.P. 59(e). Finally, some judges have denied motions for reconsideration after considering the issues de novo, without deciding on a standard of review. E.g., Cooper, 947 F.Supp.2d 108; United States v. Thompson, No. 07-153-08, 2007 WL 1954179 (D.D.C. July 5, 2007). Because this Court can deny Bagcho's motion for reconsideration based on a de novo review, it is unnecessary to decide on the proper standard of review or the deadline for filing a motion for reconsideration.

         Bagcho's motion for reconsideration claims that “when Brady evidence implicates the entire investigation, as it did here, it is material to all counts of conviction, ” but he cites no case to support that proposition. (See Def.'s Mot. Reconsideration at 2.) As the Court explained in its prior opinion, controlling precedent directs that “the Brady factors must be assessed count by count.” United States v. Johnson, 592 F.3d 164, 171 (D.C. Cir. 2010); see also United States v. Oruche, 484 F.3d 590, 597 (D.C. Cir. 2007); United States v. Lloyd, 71 F.3d 408, 412-13 (D.C. Cir. 1995). Even when Brady information undermines “the reliability of the [government's] investigation, ” its materiality depends on the strength of the “evidence remaining unscathed.” Kyles v. Whitley, 514 U.S. 419, 446, 451 (1995).

         For example, the Ninth Circuit considered a case where “the fact that not one, but two separate police reports contained an identical error as to a critical piece of evidence certainly raise[d] the opportunity to attack the thoroughness, and even good faith, of the investigation.” United States v. Howell, 231 F.3d 615, 625 (9th Cir. 2000). Still, the court concluded that there was no reasonable probability of a different verdict because “the prosecution introduced significant evidence independent of the evidence withheld by the government, including the confession of the defendant.” Id. at 627. To guide courts in evaluating the independence of evidence, the Supreme Court has explained that “[w]hen, for example, the probative force of evidence depends on the circumstances in which it was obtained and those circumstances raise a possibility of fraud, indications of conscientious police work will enhance probative force and slovenly work will diminish it.” Kyles, 514 U.S. at 446 n.15. Because the Brady ...


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