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 variety of [LeRoux’s] outrageous criminal conduct defies an easy summary, and includes arms and technology dealings with Iran and North Korea, attempts at minor warlordism in Africa, and the plotting of a coup d’état in the Seychelles.”

Hunter and his co-defendants timely appealed. However, in October 2019, with the appeals still pending (in fact, the same month as oral argument), the Circuit became aware of some interesting news: DOJ’s Narcotic and Dangerous Drug Section (NDDS) had filed a notice with the Court, informing it that the district court had entered a sealed protective order upon NDDS’s ex parte motion, which barred the defense and SDNY prosecutors from reviewing certain documents. This protective order was issued pursuant to the Classified Information Procedures Act (CIPA).

Much back and forth ensued as the Circuit issued several orders to show cause to NDDS and SDNY. Ultimately, it ended up ordering the government to disclose all discoverable material to the defendants, who then supplemented their still-pending appeals with Brady arguments. But the Circuit refrained from deciding their claims, and remanded the case for the district court to consider the Brady claims in the first instance. (See United States v. Stilwell, 986 F.3d 196 (2d Cir. 2021) for a more detailed recap.)

As directed, the defendants moved in district court under Rule 33 for a new trial on Brady grounds. Their motions were denied in December 2021, with Judge Abrams ruling, in a nutshell, that (1) while the evidence was favorable, (2) it was not suppressed and (3) the defendants were not prejudiced/the evidence was not material. (The three familiar Brady prongs.)

If you’re still following along, you’re probably wondering what the Brady material actually was, and who, exactly, gathered, possessed, and withheld it? Those questions are the key to the Circuit’s opinion in Hunter, once the case was back after remand.

As to the first question, the withheld evidence constituted impeachment material as to LeRoux. But, as the Circuit discussed at length, there was evidence other than LeRoux’s testimony of the defendants’ guilt. Moreover, in the Court’s view, this impeachment evidence was cumulative. At trial, LeRoux was extensively cross-examined about “a host of deceitful and manipulative acts” (including witness-murdering, framing others, bribing judges, supporting a coup in the Seychelles) and a “litany of generally violent and nefarious acts” (personally committing murder, dealing in weapons in Iran and North Korea). In the Circuit’s opinion, the withheld impeachment material could not have been the “straw that broke the camel’s back with the jury” with respect to his credibility. The Circuit therefore affirmed the district court’s ruling that the failure to disclose the material did not prejudice the defendants.

Given that holding, the Circuit did not need to reach the second question – who withheld this evidence, and were they “part of the prosecution?” Nonetheless, it chose to write on the issue.

The case against the Hunter defendants was built by the DEA’s Bilateral Investigations Unit (DEA-BIU). The agents who possessed the withheld material also were from the DEA, but from the DEA’s Special Projects Section (DEA-SPS). An affidavit was submitted by the “Assistant Special Agent in Charge of the DEA-SPS explaining that while the DEA-SPS and DEA-BIU are both part of the DEA’s Special Operations Division [DEA-SOD], they are ‘separate and distinct’ and [p]ersonnel assigned to the [DEA-BIU] were not read on nor given access to information available to and collected by personnel assigned to the [DEA-SPS]’ in this case.” The lack of “joint investigation” or “working relationship” between the two divisions, plus the SDNY prosecutors’ lack of actual knowledge of the material until it was ordered disclosed by the Circuit, was sufficient for the district court to find that it was not suppressed by the prosecution team.

The Circuit acknowledged the SDNY prosecutors’ position and indeed “frustration” – after all, the NDDS protective order barred disclosure to them, as well. But it questioned “whether the NDDS—and the DEA agents in the DEA-SPS who possessed the undisclosed information—should themselves be considered part of the prosecution team, SDNY’s position to the contrary notwithstanding.”

The Court rejected the defendants’ suggestion that, simply because both the DEA-BIU and DEA-SIU were part of the same DEA subdivision, knowledge should be imputed to the prosecution. Drawing on earlier cases, it reaffirmed that the inquiry is “what the person did, not who the person is.” (See United States v. Stewart, 433 F.3d 273 (2d Cir. 2006); United States v. Locascio, 6 F.3d 924 (2d Cir. 1993)). In its view, this use-oriented approach is prudent because it prevents the prosecutorial team from needing to search the “whole-of-government” for possibly material information.

But in this “unusual” case, the Circuit noted, it was what the NDDS did that “informs our skepticism that the withheld material was not ‘suppressed.’” Here, “it was the NDDS that approached the court. Unexpected and unbidden, they—in effect—proclaimed [the documents’] relevance. And despite that, they then asked the courts to approve their nondisclosure.”

The Circuit continued: “In this published opinion, we express our doubt that the NDDS—or any similarly-situated organ of the executive branch, for that matter—having stepped out of the shadows at least to the extent of asking the judiciary to bless its act of nondisclosure, even from local prosecutors and agents in the case, could then successfully draw a curtain of secrecy over ‘evidence … material either to guilt or to punishment’ by invoking our Brady jurisprudence.”

And it concluded by issuing a warning: “we strongly question whether—had the withheld information been material—our jurisprudence circumscribing the ‘prosecution team’ would have been adequate to protect Defendants’ rights in the circumstances presented here.” It footnoted a laundry-list of high-profile circuit and district court cases in which this concern was raised, and noted, “[o]ne has only to imagine the information in NDDS’s possession being actually exculpatory rather than cumulatively impeaching to bring this concern into sharp relief.”

It bears mentioning that, in addition to the published Hunter opinion, the Circuit issued a lengthy and interesting summary order the same day disposing of the defendants’ initial appeals as they stood prior to the Stillwell remand. The Court vacated the conspiracy to commit murder-for-hire, murder-for-hire, and § 924(j) counts on unopposed United States v. Davis, 139 S. Ct. 2319 (2019) grounds, and remanded for resentencing. It also addressed the defendants’ various arguments as to the remaining convictions, including (1) an extraterritorial Fourth Amendment challenge to the installation of a video camera in a Thai residence; (2) denial of a severance motion based on mutually antagonistic defenses; (3) denial of a Rule 807 motion to admit hearsay evidence; (4) a Bruton challenge; (5) a sufficiency challenge to the evidence of one defendant joining the conspiracy; (6) a challenge to the jury instructions concerning the jurisdictional element of the conspiracy count; and (7) a number of evidentiary rulings. Accordingly, it affirmed the remaining counts: conspiracy to murder and kidnap in a foreign country as to all defendants, and conspiracy to launder money as to two (Stilwell and Samia).

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