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Archive | Brady

Monday, April 25th, 2022

Circuit affirms denial of Rule 33 motion on Brady grounds, finding lack of prejudice, but expresses “skepticism” that DOJ’s Narcotic and Dangerous Drug Section was not “part of the prosecution team” in “unusual case”

When multiple law enforcement agencies or subdivisions are involved in a case, who is “part of the prosecution team” for Brady purposes? In United States v. Hunter, Nos. 18-3074, 18-3489, & 19-790 (2d Cir. Apr. 20, 2022) (C.J.J. Cabranes, Raggi, and Korman (sitting by designation)), the Circuit affirmed the district court’s denial of Rule 33 motions following belated disclosure of exculpatory information, relying on a different Brady prong. Nevertheless, in dicta, it explored this challenging question.

The case came before the Court with a torturous and troubling procedural history. The co-defendants were convicted in SDNY in April 2018, following a joint jury trial, of various murder-for-hire, conspiracy, § 924(j), and money laundering counts, based on allegations that they were part of a transnational criminal organization. The boss of this organization was cooperating witness Paul LeRoux, who had been nabbed by the DEA in Liberia in 2012. “The scale and …

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Thursday, April 15th, 2021

A Reminder to Request Complaints Against Police Officers

As Judge McMahon recently reminded in Fraser v. City of New York, 2021 WL 1338795 (S.D.N.Y. Apr. 9, 2021), defendants in criminal cases should always ask the government to comply with its multiple obligations under Brady v. Maryland, 373 U.S. 83 (1963), by turning over all complaints against police officers involved in the case.

Jawaun Fraser wrongfully served two years in New York state prison after being convicted of robbery on the testimony of police officers sued numerous times for testifying falsely.  Both the prosecutor and officers had withheld information about several of those suits, and upon learning this Fraser succeeded in getting his conviction thrown out.  The state did not appeal that ruling or re-prosecute Fraser for robbery (he instead pleaded guilty to disorderly conduct, which is not even a misdemeanor).  Fraser then sued for damages in federal court, where the officers moved to dismiss the complaint …

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Thursday, February 25th, 2021

Court issues opinion detailing SDNY prosecutorial misconduct

On February 22, 2021, the district court issued its full opinion regarding prosecutorial misconduct issues in United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN), and made public affidavits filed by United States Attorneys involved in the case. The full opinion is here.

In this opinion, the district court restates that it did not find proof of intentional misconduct, but nonetheless finds “pervasive” “errors and ethical lapses.”

With respect to these lapses, the publicly filed exhibits include, inter alia, these exchanges between the U.S. Attorney supervisors involved in the case:

Crowley, Shawn (USANYS) 5:26 PM:
i think i’m going to stop with the closing and devote the rest of the night to cleaning out my
office
Emil J. . Bove 5:26 PM:
seriously
i was just going to write to you – like the window was on my screen and yours popped in – are

…
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Friday, February 19th, 2021

District Court urges the DOJ to investigate misconduct by SDNY prosecutors

On February 17, 2021, the district court issued a new order in the continuing saga of United States v. Ali Sadr Hashemi Nejad, 18 Cr. 224 (AJN). A previous opinion detailing the relevant facts was issued on September 16, 2020.

This is a prosecution that began to unravel back in early 2020. In 2018, Mr. Sadr was indicted on charges of conspiracy to defraud the United States, conspiracy to violate the International Emergency Economic Powers Act, bank fraud, and money laundering offenses. The prosecution was handled by AUSAs Andrew J. DeFilippis, Matthew Laroche, David W. Denton, Jr., Emil J. Bove, III, Jane Kim, Michael Krouse, Rebekah Donaleski, Shawn Crowley, and Stephanie Lake.

In March 2020, after a two-week jury trial, Mr. Sadr was found guilty of five counts.

After trial, Mr. Sadr moved for acquittal as a matter of law or, alternatively, a new trial. While that motion was …

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Wednesday, April 18th, 2018

Second Circuit Reverses Conviction and Reassigns Case Concerning Brady Violations, CJA Resources, and More

Though upstaged by Dimaya, the Second Circuit issued a remarkable summary order yesterday–one that calls attention to potential Brady violations in the EDNY, and to the CJA resources necessary to detect such violations. See United States v. Djibo, No. 16-3956 (2d Cir. 2018) (Sack, Hall, Droney) (appeal from Johnson, J, EDNY). In Djibo, the Circuit vacated the denial of a Rule 33 motion based on late Brady/Giglio disclosures, and held that the district judge abused his discretion by refusing to grant the CJA resources necessary to review those disclosures. The panel also determined that the defendant’s sentence was procedurally unreasonable, and reassigned the case “to preserve the appearance of justice.” The order in Djibo, available here, is worth reading in its entirety. Here is a lengthy summary (with some facts drawn from the briefs):

Mr. Djibo was convicted following a jury trial of four counts related …

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Friday, July 15th, 2016

Second Circuit Updates – July 15, 2016

The Record of the Psychiatric Evaluation of a Rape Complainant was Material Under Brady and State Court’s Ruling to the Contrary was Unreasonable Application of the Kyles standard.

(Full disclosure: Colleen Cassidy, today’s blogger, briefed and argued this case)

In Fuentes v. Griffin, Docket NO. 14 – 3878, the Second Circuit (KEARSE, J.), held that the state prosecutor’s suppression of the rape complainant’s psychiatric evaluation (the “Record”) violated Brady v. Maryland, 373 U.S. 83 (1963), and that the state court unreasonably applied the materiality standard of Kyles v. Whitley, 514 U.S. 419 (1995), in rejecting that claim. The state trial was a closely contested rape case with a consent defense, in which a sexual encounter on the roof of the complainant’s building was undisputed and the only issue was whether it was rape or consensual. The only witnesses to the encounter were the complainant and the defendant-petitioner …

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Sunday, August 26th, 2012

Brady Violation Allows Defendants to “Squawk” Away

United Statesv v. Mahaffy, No. 09-5349-cr (2d Cir. August 2, 2012) (McLaughlin, Parker, Wesley, CJJ) 

This, the court’s most recent Brady decision, presents a truly shocking instance of prosecutorial misconduct.

Factual Background

The Brady violation was here was  straightforward: the defendants were employees of brokerage houses and a day trading firm called A.B. Watley, accused of securities fraud by running a “frontrunning” scheme. Here’s how it worked: the brokerage houses had “squawk boxes” which, during the day, would transmit internal communications about, amongst other things, client trading orders. The squawks would allow the firms’ traders to find a client to take the other side of the trade. In the scheme, the brokerage defendants would place phone receivers over their squawk boxes and transmit the squawks directly to Watley employees, who would then place trades in the squawked securities before the brokerage houses could execute the customer orders. Watley hoped …

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Sunday, September 28th, 2008

Mea Exculpa

United States v. Spadoni, No. 06-4970-cr (2d Cir. September 25, 2008) (Pooler, Hall, CJJ, Gleeson, DJ)

Here, the defendant successfully argued that the government’s suppression of exculpatory and impeachment material warranted a new trial.

Background

Spadoni was the general counsel for an investment firm, Triumph, that did business with the State of Connecticut. He was a friend of Paul Silvester, who was, for a time, Connecticut State Treasurer. One of Silvester’s duties was to make investment decisions for state pension funds.

In 1998, Silvester asked Spadoni for a campaign donation. By law it could not go to his own campaign, so instead Spadoni donated $100,000 to the state Republican Party. Silvester lost the election, but before he left office decided to invest $150 million in state pension funds with Triumph.

In connection with this investment, Silvester asked Spadoni to pay a one percent finders fee to two of his associates, …

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Thursday, May 1st, 2008

Government’s “Question[able],” “Troub[ling]” and “Disingenous” Conduct Results in an Affirmance. Huh?

United States v. Blech, No 05-3600-cr (2d Cir. April 23, 2008) (Sotomayor, Parker, Hall, CJJ).

Two defendants who were convicted of securities and related frauds appealed on the ground that their cases were misjoined, and one advanced a Brady claim. The court affirmed, but only out of apparent deference to the district court’s findings under the “abuse of discretion” standard.

The Severance Issue

This case went to trial on a thirteen-count indictment that alleged two separate fraud schemes. The first involved appellant Brandon, who, along with others, defrauded customers of Credit Bancorp of more than $200,000,000. The second scheme involved appellant Wexler, who also defrauded Credit Bancorp customers, but in a different way. The district court denied their severance motions, and both were convicted.

The defendants’ severance claim was unusually strong. Although the two schemes shared some participants, and both targeted Credit Bancorp customers, they were otherwise completely distinct. Nevertheless, …

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