U.S. v. Beckford

Decision Date04 April 1997
Docket NumberCriminal No. 3:96CR66-01.,Criminal Nos. 3:96CR66-05 to 3:96CR66-07.
Citation962 F.Supp. 780
PartiesUNITED STATES of America, v. Dean Anthony BECKFORD, Claude Gerald Dennis, Leonel Romeo Cazaco, and Richard Anthony Thomas, Defendants.
CourtU.S. District Court — Eastern District of Virginia

David Novak, Stephen Miller, Andrew McBridge, Assistant United States Attorneys, Richmond, VA, for U.S.

Gerald T. Zerkin, Robert J. Wagner, Richmond, VA, for Dean Anthony Beckford.

John C. Jones, Quinton, VA, Scott Brettschneider, Kew Gardens, NY, for Claude Gerald Dennis.

Reginald M. Barley, Cary B. Bowen, Bowen & Bowen, Richmond, VA, for Leonel Romeo Cazaco.

David P. Baugh, Elizabeth D. Scher, Morchower, Luxton & Whaley, Richmond, VA, for Richard Anthony Thomas.

MEMORANDUM OPINION

PAYNE, District Judge.

Defendants Dean Anthony Beckford, Claude Gerald Dennis, Leonel Romeo Cazaco and Richard Anthony Thomas have been charged in the Superseding Indictment with intentional murder in furtherance of a Continuing Criminal Enterprise and a drug trafficking conspiracy punishable under 21 U.S.C. § 841(b)(1)(A), in violation of 21 U.S.C. § 848(e). Pursuant to 21 U.S.C. § 848(h), the Government has notified each defendant that it intends to seek a penalty of death in the event of conviction and has posited with specificity the statutory and non-statutory aggravating factors which it will seek to prove as the basis for imposition of the death penalty. This is, then, a capital case under Section 848(e).

The defendants seek pre-trial discovery pursuant to the rules of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), which require the Government to disclose any evidence favorable to the accused in its possession that is material to guilt or punishment. To that end, they seek the entry of various orders:

(1) Defendants Beckford, Dennis, Cazaco, and Thomas move the Court to order production of the presentence reports for all Government witnesses who have been sentenced for federal offenses;

(2) Defendants Beckford, Dennis, and Cazaco seek production of the presentence reports for specified Government witnesses who have been sentenced for state offenses;

(3) Defendants Beckford and Thomas seek production of all proffers made by any Government witness pursuant to Fed. R.Crim.P. 35 or U.S.S.G. § 5K1.1 as well as any "substantial assistance" motions made by the Government on behalf of its witnesses; and

(4) Defendant Cazaco moves the Court to order production of all plea agreements between the Government and specified uncharged co-conspirators.

The defendants assert that the evidence sought contains exculpatory and impeachment evidence, and thus that it constitutes "evidence favorable to an accused" which must be produced by the Government pursuant to Brady v. Maryland.

The Government resists production of this alleged Brady material on two bases. First, the Government asserts that most of the information sought by the defendants does not fall within the reach of Brady because of the nature of the information. Second, the Government asserts that much of the material which the defendants describe as Brady material is actually Giglio or Jencks material, which has already been the subject of a Court order (i.e., Memorandum Order issued November 8, 1996, establishing that Giglio and Jencks material must be produced three days before jury selection).

I. BACKGROUND LEGAL PRINCIPLES

Before assessing the respective positions of the parties, it is necessary to summarize the legal principles which control disclosure by the Government of evidence in its possession. This is particularly essential here because both the Government and the defense seem to have lost sight of those controlling principles.

It should be noted that, in this case, the question whether the Government has a Brady obligation to disclose the requested information arises in a somewhat unusual posture. "In the ordinary Brady case, it is only after a judgment of conviction that a court reviews the failure of the prosecution to disclose material the defendant argues should have been admitted into evidence." United States v. Cuthbertson, 651 F.2d 189, 199 (3rd Cir.1981) (Seitz, C.J., concurring). In this case, however, Brady issues have arisen before trial. Nonetheless, the same standards logically apply to both an initial decision to disclose and a postconviction determination whether nondisclosure deprived a defendant of his or her due process rights at trial. See United States v. Agurs, 427 U.S. 97, 106-07, 96 S.Ct. 2392, 2398-99, 49 L.Ed.2d 342 (1976). It is to these controlling standards to which the Court now turns.

A. Brady v. Maryland

Due Process requires that the Government disclose to the accused any favorable evidence in its possession that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). "Favorable" evidence includes not only that evidence tending to exculpate the accused, but also any evidence adversely affecting the credibility of the Government's witnesses. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Evidence is "material" if there is a reasonable probability that it will affect the result of the proceeding. See Bagley, 473 U.S. at 682, 105 S.Ct. at 3383-84. In the discharge of its obligations under Brady, the Government must actively search out the requested material in its files and in the files of related agencies reasonably expected to have possession of such information. Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490(1995); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (holding that a defendant' failure to request favorable evidence did not leave the Government free of all obligation to disclose Brady material). However, "the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley, 473 U.S. at 675, 105 S.Ct. at 3380.

Where the Government possesses Brady material that it deems privileged, the accused must specifically request that it be produced, or else its production is left to "the prosecutor's decision." Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 1002, 94 L.Ed.2d 40 (1987). If, however, the accused is able to identify the requested confidential material with some degree of specificity, he may then attempt to convince the district court that it is subject to in camera review and/or disclosure. Id. at 58 n. 15, 107 S.Ct. at 1002 n. 15.

It is important to note that "[t]he Supreme Court has never pinpointed the time at which the disclosure [under Brady] must be made." United States v. Anderson, 481 F.2d 685 (4th Cir.1973), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). However, it is settled that "[n]o due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial." United States v. Smith Grading and Paving, Inc., 760 F.2d 527, 531 (4th Cir.), cert. denied sub nom., Dellinger. Inc. v. United States, 474 U.S. 1005, 106 S.Ct. 524, 88 L.Ed.2d 457 (1985); see also United States v. Pollack, 534 F.2d 964, 973 (D.C.Cir.) ("Disclosure by the government must allow the defense to use that favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure.") (citing United States v. Elmore, 423 F.2d 775, 779 (4th Cir.1970)), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976). Of course, "[d]isclosure to be effective must be made at a time when the disclosure would be of value to the accused." United States v. Shifflett, 798 F.Supp. 354, 355 (W.D.Va.1992) (citing United States v. Elmore, 423 F.2d 775, 779 (4th Cir.) cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54 (1970)).

B. Giglio v. United States

In Giglio v. U.S., 405 U.S. 150, 155, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972), the Supreme Court brought within the due process requirements enunciated in Brady the right of defendants to secure from the prosecution disclosure of materials affecting the credibility of Government witnesses, such as, but not limited to, plea agreements, promises of leniency by the Government, inducements to testify, and financial assistance offered by the Government. In United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), the Supreme Court reaffirmed the holding in Giglio and, in so doing, expressly disavowed any difference between exculpatory and impeachment evidence for Brady purposes. 473 U.S. at 676, 105 S.Ct. at 3380 ("This Court has rejected any [] distinction between impeachment evidence and exculpatory evidence.").

Disclosure of Giglio/Bagley impeachment material (hereinafter "Giglio material") is governed by the same legal principles which animate the disclosure of Brady material. This is necessarily the case because Giglio material is merely a sub-set of the universe which comprises Brady material. The Supreme Court repeatedly has made clear that "evidence favorable to an accused" under Brady consists of both exculpatory evidence and impeachment evidence.

Impeachment evidence, [] as well as exculpatory evidence, falls within the Brady rule. See Giglio v. United States, 405 U.S. [at 154] . Such evidence is "evidence favorable to an accused," Brady, 373 U.S. [at 87] , so that, if disclosed and used effectively, it may make the difference between conviction and acquittal.

United States v. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380 (citing Napue v. Illinois, 360 U.S. 264, 269, 79...

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