The Supreme Court issued a number of significant opinions yesterday, but it is worth highlighting an important district court decision that might otherwise escape notice. This month, Southern District Judge Gregory Woods issued an opinion and order granting a new trial based on the government’s inadvertent failure to provide Jencks Act material—specifically the notes of proffer sessions with a key cooperating witness. Judge Woods’s opinion in United States v. Russell, No. 16-cr-396 (May 4, 2018), DE 618, is available here.
Mr. Russell was the sole person who went to trial among twenty-one defendants who were indicted in a cocaine distribution conspiracy. The government’s principal witness at the trial, Kenneth Ashe, testified pursuant to a cooperation agreement. After a short trial, involving only five witnesses and two days of testimony, Mr. Russell was convicted of conspiracy to sell crack cocaine and a 924(c) charge. Mr. Ashe’s testimony was central to the government’s case, accounting for about 1/3 of the 332 pages of witness testimony in the trial transcripts.
When preparing for the sentencing of one of Mr. Russell’s co-defendants, the government discovered that it had failed to timely provide Mr. Russell with notes of its proffer sessions with Mr. Ashe. (According to its pleadings, the government had previously produced notes of twenty-five meetings with Mr. Ashe, but inadvertently failed to scan and copy one folder of notes that was designated for production). The government promptly advised Mr. Russell of its failure to disclose these materials, but took the position that its error did not warrant a new trial.
The defense filed, and Judge Woods granted, a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. This decision, and the underlying pleadings, provide a good illustration of how to assess whether (and argue that) a Jencks Act violation warrants a new trial. The relatively demanding harmless error standard for Jencks Acts violations provides that a failure to disclose witness statements “‘may be disregarded if there is no reasonable probability that had the evidence been disclosed, the result would have been different.'” Slip op. at 3 (quoting United States v. Jackson, 345 F.3d 59, 77 (2d Cir. 2003)). What’s more, “‘[b]ecause motions for a new trial are disfavored in this Circuit, . . . newly discovered evidence must be of a sort that could, if believed, change the verdict.'” Id. at 2 (quoting United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995)).
The undisclosed statements here were of this sort. As Judge Woods explained, the statements would have been “substantial grist for cross-examination of Mr. Ashe and impeachment of his credibility.” Id. at 4. For example, at trial, Mr. Ashe testified in vivid detail about specific statements that Mr. Russell had made. At his proffer session, however, Mr. Ashe “accidentally” misidentified a person who committed a robbery with him long after Mr. Russell allegedly made those statements. At the very least, a defense attorney could have used this misidentification to impeach the accuracy of Mr. Ashe’s recollections on the witness stand. (Judge Woods’s short opinion supplies other interesting examples of why the government’s Jencks violation was not harmless.)
Congratulations to CJA Attorneys John Burke and Kafahni Nkrumah for a persuasive Rule 33 motion, and to the AUSAs who promptly advised the defense of their error.