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 to importing heroin. The government’s case was built on the testimony of a cooperating witness, who testified that Mr. Djibo arranged his trips to smuggle heroin through JFK airport. The government corroborated this testimony with texts, phone calls, and other communications recovered from the witness’s cell phone.
On repeated occasions prior to trial, Mr. Djibo’s counsel requested disclosure of the witness’s cell phone data. The government disclosed only 50 partially redacted pages in the months before trial. After receiving the government’s proposed exhibits, the defense filed a motion to compel disclosure of cell phone records. The Friday before trial, the district court granted the motion, and the government disclosed more than 16,000 pages of records, including approximately 4,000 pages of communications in Swahili. Trial began that Tuesday after the court denied a continuance request. (According to the defendant’s brief, this denial was due to the prosecutor’s demonstrably false assertion that the Swahili conversations had been disclosed six months earlier.) The jury found Mr. Djibo guilty on all counts, and his attorney filed a Rule 33 motion arguing that the government effectively suppressed Brady and Giglio material by disclosing it only when compelled to do so on the eve of trial. To develop this motion, Mr. Djibo’s counsel requested resources to hire a Swahili translator to review the disclosures for exculpatory material and impeachment evidence. The district judge ignored the requests, denied the Rule 33 motion, and sentenced Mr. Djibo to 293 months’ imprisonment.
The Second Circuit reversed the district court’s denial of the Rule 33 motion. Brady and Giglio, the panel observed, require the government to disclose material evidence that is favorable to the accused “‘in time for its effective use at trial.'” Slip op. at 5 (quoting United States v. Douglas, 525 F.3d 225, 245 (2d Cir. 2008) (internal quotation marks omitted)). Here, the translated portions of the cooperating witness’s conversations indicate that the government’s last-minute disclosures may contain Brady and Giglio material. Because Mr. Djibo’s attorney lacked translation resources, however, the panel could not fully assess the disclosed materials. Accordingly, it could not confirm whether the suspicious conversations were, in fact, Brady or Giglio material. Nor could it evaluate whether the defendant was prejudiced by the late disclosure of this material. Accordingly, the panel remanded “for the district court provide Djibo resources for a Swahili translator, reasonable time to accomplish a thorough review of the records with the assistance of the translator, and the opportunity, if he then chooses, to renew his Rule 33 motion.” Id. at 5-6.
The panel further concluded that the district court abused its discretion under 18 U.S.C. § 3006A(a) by ignoring the defense’s requests for the use of a Swahili translator. Mr. Djibo articulated a reasonable basis for the requested burden, and demonstrated that the services were reasonably necessary. Slip op. at 6 (discussing the standard articulated in United States v. Sanchez, 912 F.2d 18, 22 (2d Cir. 1990)). The panel also left it to the district court to determine whether a private investigator would be necessary on remand to adequately pursue any leads contained in the cell phone records.
The Circuit also vacated Mr. Djibo’s sentence. The mechanics of this sentencing were convoluted, and a revised Statement of Reasons that deviated from the first statement. In summary, the Probation Office’s recommended, based on evidence not presented to the jury at trial, a four-level enhancement under U.S.S.G. § 3B1.1(a) to reflect Mr. Djibo’s role as the leader of a conspiracy involving 100 kilograms of heroin. The government itself conceded that it would be appropriate for the district court to apply a more conservative Guidelines range reflecting the defendant’s responsibility for only the 6.5 kilograms of heroin seized from the cooperating witness. Without explanation, the district judge not only accepted the PSR’s § 3B1.1 enhancement, but also departed from its Guidelines recommendation. “Because the district court did not explain its reasons for the sentence imposed and because the factual findings in the PSR are not, by themselves, clearly adequate to support the sentence,” the panel concluded that the sentence was procedurally unreasonable. Id. at 11.
Finally, without the parties so requesting in their briefs, the Circuit reassigned the case to a different judge on remand. The panel expressed concern about the district judge’s:
[R]epeated denials of and failures to respond to requests for CJA resources, its granting a mere one-day adjournment of trial for defense counsel to review and translate voluminous and possibly key exculpatory evidence, and the multiple irregularities in the sentencing process described more fully above, including the issuance of a second statement of reasons after the notice of appeal was filed that contradicted the first statement.
Id. at 14. The Circuit expressly “did not conclude the district judge acted with any bias or prejudice.” Id. at 15. However, it found that “the circumstances presented here raise enough of a question that reassignment is necessary to preserve the appearance of justice.” Id. (citing United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008)). ” [A]ny waste or duplication that might result from reassignment,” the panel explained, “is not out of proportion to the gain in preserving the appearance of fairness.” Id.
As a bonus, the panel also chastised the government for submitting a “procedurally improper,” post-argument filing to further argue that the defendant wasn’t prejudiced by the late disclosures. Id. at 6 n.2.
Djibo is a breathtaking summary order. The Appellant’s brief is still more shocking in its description of the prosecutor’s conduct in this case. (The government, of course, contests this account.) Practitioners for whom these facts resonate should take heart. Djibo signals that the Circuit seems willing not only to monitor the government’s Brady obligations, but also to ensure that defendants have the resources necessary to do so.