U.S. v. Cook

• Citation: 526 F.Supp.2d 10
• Decision Date: 10 December 2007
• Docket Number: Criminal No. 07-192 (ESH).
• Parties: UNITED STATES of America, v. Stephen COOK, Defendant.
• Court: United States District Courts. United States District Court (Columbia)

526 F.Supp.2d 10

UNITED STATES of America, v. Stephen COOK, Defendant.

Criminal No. 07-192 (ESH).

United States District Court, District of Columbia.

December 10, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William B. Moffitt, Pleasant Brodnax, Moffitt & Brodnax, Washington; DC, for Defendant.

John M. Cummings, U.S. Attorney's Office, Charles Douglas Kern, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OPINION AND ORDER

ELLEN SEGAL HUVELLE, District Judge.

On October 30, 2007, a jury convicted Stephen Cook, a Deputy United States Marshal, of (1) Deprivation of Civil Rights Under Color of Law Causing Bodily Injury in violation of 18 U.S.C. § 242; (2) Concealment or Falsification of a Material Fact in violation of 18 U.S.C. § 1001(a); and (3) two counts of Witness Tampering in violation of 18 U.S.C. § 1512(b)(1). The convictions were based on defendant's use of force against Omar Hunter, a detainee who had been transported to the "sally port" area of the District of Columbia Superior Court on August 30, 2005, and defendant's subsequent attempts to cover up the incident. Pending before the Court are defendant's post trial motion seeking acquittal or a new trial pursuant to Federal Rules of Criminal Procedure 29 and 33 and his motion for release from detention pending sentencing. Defendant argues that the government failed to disclose exculpatory information prior to trial, and that the Court improperly precluded defense counsel from arguing in closing about the insufficiency of the government's evidence. For the reasons discussed herein, defendant's motions will be denied.

I. Rule 33 Motion

Under Rule 33, a court may grant a new trial "if the interest of justice so requires." Fed.R.Crim.P. 33(a). The granting or denial of a motion for a new trial is committed to the sound discretion of the trial court judge and is reviewed only for abuse of discretion. United States v. Kelly, 790 P.2d 130, 133 (D.C.Cir. 1986). In general, a court should grant a Rule 33 motion only if "a serious miscarriage of justice may have occurred." United States v. Johnson, Crim. Action No. 03-488, 2007 WL 666566, at *6 (D.D.C. Feb. 28, 2007) (quoting United States v. Rogers, 918 F.2d 207, 213 (D.C.Cir.1990)).

A. Alleged Brady Violations

Defendant argues that the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose pretrial evidence relating to three topics: (1) information concerning the victim Omar. Hunter's "attitude and behavior," which the defense argues demonstrates that Hunter believed himself to be "above the law" (Def.'s Post Trial Mot. at 5; Def.'s Reply at 1); (2) eyewitness Bernard Thornton's commitment to a mental health facility for competency evaluations two months after the incident in the sally port (Def.'s Post Trial Mot. at 6-8); and (3) an alleged incident at the Metropolitan Police Department central cell block ("CCB") immediately before the sally port incident, in which Omar Hunter refused to "answer up" to his name and may have resisted coming out of his cell to be loaded onto a van for transport to Superior Court. (Id. at 8-9).

Under Brady, the government has an affirmative duty to disclose material evidence favorable to a criminal defendant. Brady, 373 U.S. at 87, 83 S.Ct. 1194. The three components of a Brady violation are that "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching;. that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). A defendant asserting a Brady violation as grounds for a new trial under Rule 33 "must establish the materiality of the evidence to show that its suppression was prejudicial." Johnson, 2007 WL 666566, at *7. "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Where potential Brady material comes to light during the course of a trial, the defendant must establish a reasonable probability that the jury would have acquitted had the evidence been disclosed earlier. United States v. Tarantino, 846 F.2d 1384, 1417 (D.C.Cir. 1988). Thus, defendant must demonstrate that the failure to disclose allegedly exculpatory or impeachment evidence resulted in "a verdict [not] worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

First, defendant argues that the government withheld information "concerning the attitude and behavior of' Omar Hunter. (Def.'s Post Trial Mot. at 5.) Specifically, defendant argues that the government knew and should have disclosed that Hunter believed himself to be "above the law," as illustrated by his use of a copyright symbol as part of his signature and his use of a self-made "Freeman's Writ to Travel" in lieu of a state-issued driver's license. (Def.'s Reply at 1.) Defense counsel, however, knew about Huter's beliefs prior to trial and he questioned Hunter extensively at trial about his use of the copyright symbol and the Freeman's Writ to Travel. To the extent that these practices impugned Hunter's credibility because they reflect a disrespect for law enforcement, defense counsel thoroughly cross-examined Hunter about his personal beliefs, and the jury had the opportunity to consider those beliefs in evaluating his testimony. Moreover, such evidence would not have been exculpatory. While it might arguably have been relevant to a defense that Hunter was a difficult or noncompliant detainee and that the defendant's use of force was therefore warranted, that was not the theory of the defense here. Defendant consistently maintained that he did not use any force against Hunter, not that his use of force was reasonable under the circumstances.

Second, defendant argues that the government violated Brady by failing to disclose that one of its eyewitnesses, Bernard Thornton, an inmate who had been on the police van with Hunter at the time of the incident, had been committed to a mental health facility for competency evaluations two months after the incident. (Def.'s Post Trial Mot. at 6.) At trial, the, Court reviewed Thornton's mental competency records and decided that they did not need to be produced to defendant because the competency evaluations took place months after the incident in the sally port occurred, and Thornton was ultimately found to be competent. Therefore, the Court concluded that the records did not constitute Brady information. In addition, the Court gave defendant the opportunity to call Thornton back to the witness stand to question him about whether his perception might have been impaired on the day of the incident due to drug usage or any other impediment, but defense counsel elected not to do so.¹ Furthermore, Thornton's testimony about the sally port incident was corroborated by the numerous other eyewitnesses who testified about what they observed in the sally port that day.

Lastly, Metropolitan Police Officer James McNeill testified at trial that Hunter may have refused to "answer up" to his name at the CCB when he was being moved from his cell onto the van for transport to Superior Court. Defendant, without any evidentiary support, attempts to characterize whatever occurred at the CCB as a "use of force incident," and based on this mischaracterization, he claims had he learned about this alleged incident earlier, he would have been able to present more evidence to convince the jury that Hunter's injuries were not sustained in the sally port of the Superior Court at the hands of the defendant, but rather that Hunter was injured at the CCB prior to his arrival at the sally port. (Def.'s Post Trial Mot. at 10.) There is not, however, a shred of evidence in the record to support such a theory. At trial, five witnesses corroborated Hunter's assertion that he was assaulted in' the sally port area of the Superior Court as he was being removed from the police transport van.² No one even suggested that force was used at the CCB. Officer McNeill testified about civilian technician employees at the CCB who had responsibility to "pull" Hunter and other detainees out of their cells to load them onto the transport van, but he explained that the term "pulling" detainees did not imply any use of physical force. The defense called Hunter to the stand a second time to cross-examine him about what had occurred at the CCB, and Hunter confirmed that he had been assaulted in the sally port of Superior Court, not at the CCB. Moreover, several witnesses confirmed that Hunter had no visible injuries when he arrived at the Superior Court sally port. Given this convincing and uncontroverted evidence, no reasonable juror could have believed that the assault against Hunter occurred at the CCB.³

Defendant also argues that "[e]vidence that Mr. Hunter was non[ ]compliant with MPD officers in the same matter that he was noncompliant with the defendant, and that Mr. Hunter had to be forcibly removed from his cell and placed on the van while still in the custody of the MPD mere moments before he was taken into [Marshals Service] custody is clearly exculpatory." (Def.'s Post Trial Mot. at 10.) But such evidence of previous non-compliance with law enforcement, even assuming it existed, would not be material or exculpatory for the same reasons that any evidence about Hunter's "attitude" is immaterial. Defendant consistently denied using any force against Hunter, and therefore, evidence suggesting that Hunter may have been a noncompliant detainee could not have helped his case.

For these reasons,...