U.S. v. Hill

• Decision Date: 10 September 1992
• Docket Number: No. 91-5841,91-5841
• Citation: 976 F.2d 132
• Parties: 36 Fed. R. Evid. Serv. 732 UNITED STATES of America, Appellee, v. Robert Fitzgerald HILL, Robert F. Hill, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 132

976 F.2d 132

36 Fed. R. Evid. Serv. 732

UNITED STATES of America, Appellee, v. Robert Fitzgerald HILL, Robert F. Hill, Appellant.

No. 91-5841.

United States Court of Appeals, Third Circuit.

Argued May 20, 1992.

Decided Sept. 10, 1992.

Robert M. Simels (argued), New York City, for appellant.

William A. Behe (argued), Asst. U.S. Atty., Harrisburg, Pa., for appellee.

Before: HUTCHINSON, COWEN, and SEITZ, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

Defendant appeals from a judgment after conviction by a jury of conspiracy to distribute heroin and cocaine, 21 U.S.C. § 841(a)(1), and of conspiracy to launder money, 18 U.S.C. § 1956(a)(1)(A)(i) and 18 U.S.C. § 1956(a)(1)(B)(i). ¹ This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

At the close of the evidence in this case, the government disclosed for the first time that Agent Malloy of the Drug Enforcement Agency and Agent Monaghan of the Internal Revenue Service, both of whom testified in the trial, had also testified before the grand jury that indicted defendant. In addition, it was disclosed at the same time that Agent Craven of the United States Customs Service had also testified before the grand jury, although he had not been a witness at the trial. Before the grand jury, Agents Malloy and Craven recounted their conversations with Castagnola, an alleged co-conspirator. Castagnola described to them in detail his activities as part of a conspiracy with two other co- Castagnola, who did not testify before the grand jury, was the key prosecution witness at the trial. When the government disclosure took place, the defendant sought to have the testimony of the agent-witnesses stricken and the indictment dismissed or a new trial granted on the ground that he was entitled to have all such grand jury testimony for use at trial, particularly to cross-examine Castagnola. The district court denied the motion for a mistrial at that time apparently because such testimony had not been transcribed. ² At the government's suggestion, the court permitted the case to go to the jury subject to certain later procedures. ³

                conspirators, Santana and defendant, to import heroin and cocaine.   The agents memorialized many of Castagnola's statements in written reports
                

Sometime after the guilty verdict and the production by the government of the grand jury testimony, the district court entertained briefs on what it described as an outstanding motion for a mistrial. It apparently assumed that its denial of the motion at the close of the evidence was tentative. Thereafter, it filed an opinion denying that motion.

Defendant seeks reversal of the judgment of conviction and a direction that the indictment be dismissed or a new trial granted.

We turn to the claims of trial error.

I. DISCUSSION

A. DISCOVERY OBLIGATIONS

Defendant renews in this court his assertion that the non-production by the government of certain grand jury testimony during the trial violated, inter alia, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and entitled him to a new trial. ⁴

A claim of Brady error presents an issue of law as well as a question of fact. Thus, we will review the district court's legal conclusions de novo and any findings of fact under a clearly erroneous standard. United States v. Perdomo, 929 F.2d 967, 969 (3d Cir.1991). If a Brady error was committed, this court must independently assess whether, on the record as a whole, the unavailability of the evidence for use at trial materially impaired the fairness of defendant's trial. United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342 (1975).

(1) BRADY ERROR

Defendant contends that the government violated the rule announced in Brady in failing to supply defendant with the grand jury testimony of Agents Malloy and Craven before trial. The Brady doctrine requires the government to volunteer "evidence favorable to an accused on request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. See also Agurs, 427 U.S. at 110, 96 S.Ct. at 2400; Smith v. Phillips, 455 U.S. 209, 219-20, 102 S.Ct. 940, 947-48, 71 L.Ed.2d 78 (1982). Materials that must be disclosed are those that go the heart of Defendant argues that the grand jury testimony of Agents Malloy and Craven was Brady material because it contained exculpatory information, such as statements allegedly made to them by Castagnola that could have been used to further impeach Castagnola at trial. See generally, United States v. Starusko, 729 F.2d 256 (3d Cir.1984). He maintains, inter alia, that the two agents' grand jury testimony as to what they were told by Castagnola differed significantly from Castagnola's testimony at trial. His counsel conceded at oral argument, however, that these inconsistencies relate only to three incidents involving the delivery of narcotics, namely, the telephone incident, the garage incident and the hotel incident. ⁵ Those incidents will be addressed subsequently.

the defendant's guilt or innocence and materials that might affect the jury's judgment of the credibility of a crucial prosecution witness. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Higgs, 713 F.2d 39 (3d Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 725, 79 L.Ed.2d 185 (1984).

Although the government did not turn over the grand jury testimony during the trial, it did give defendant hundreds of pages of reports by Agents Malloy, Craven and Monaghan shortly before the commencement of the trial. For convenience they will be referred to as the DEA reports or the reports. Those reports summarized Castagnola's statements to them about the garage and hotel incidents, but not the telephone incident, all later addressed. Defendant concedes that the testimony of the agents before the grand jury tracked these reports nearly verbatim. Thus, such testimony did not contradict their reports. Nevertheless, defendant maintains that without access to the grand jury testimony of the agents he was seriously handicapped in his ability to destroy Castagnola's credibility at trial.

We commence our analysis by assuming the dubious proposition that the grand jury testimony of the agents was " 'evidence favorable to [the defendant].' " Agurs, 427 U.S. at 110 n. 17, 96 S.Ct. at 2400 n. 17 (1975) (quoting Brady, 373 U.S. at 87, 83 S.Ct. at 1196). only requires that material evidence be disclosed by the prosecution." Higgs, 713 F.2d at 42.

The standard of materiality that applies to the government's non-production of alleged Brady information following a general request by defendant is whether "the omitted evidence creates a reasonable doubt that did not otherwise exist." Agurs, 427 U.S. at 112, 96 S.Ct. at 2402; United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (plurality opinion). Defendant seems to tacitly concede in his brief that we are only concerned here with a general request for Brady material, and we proceed on that basis. Thus, we must decide if the government's failure to produce the testimony was of sufficient significance that it deprived defendant of a fair trial. Agurs, 427 U.S. at 108, 96 S.Ct. at 2399. We turn to the materiality issue and consider the district court's delayed decision in light of these governing legal principles.

The district court found that the non-disclosure of the grand jury testimony of Agents Malloy and Craven did not constitute Brady violations. It determined that their testimony would not have made defendant's cross-examination of Castagnola more effective or more damaging to the government's case. The court reasoned that the grand jury testimony of Malloy and Craven essentially tracked the events as recorded in their reports, and thus "the [undisclosed] grand jury material was repetitious and cumulative of what was contained in the hundreds of pages of DEA reports." App. 1195.

As the district court said in its opinion Nothing in those grand jury minutes would have reflected on the reliability of the agents to the extent that it would have dictated a different outcome on the defendant's guilt or innocence.... Indeed, the cross-examination of Castagnola, with the benefit of the DEA reports, could not have been more effective and damaging to the government if the defense counsel had rehearsed the opportunity.

Based on its finding as to the very limited value of the undisclosed grand jury testimony for additional cross-examination purposes, the court held in effect that the grand jury testimony was not "material" to the outcome under that Brady requirement.

We have reviewed the DEA reports and grand jury testimony of the agents in light of the record submitted to us by defendant. This record demonstrates that, by having the agents' reports, defendant's counsel had access to the equivalent of Agent Malloy's and Craven's grand jury testimony when cross-examining Agent Malloy and Castagnola at trial. Their testimony was basically cumulative on the issue of Castagnola's credibility. Therefore, its non-disclosure did not create such prejudice as to warrant a new trial. United States ex. rel. Marzeno v. Gengler, 574 F.2d 730, 738 (3d Cir.1978); United States v. Dansker, 565 F.2d 1262 (3d Cir.1977). As Justice Fortas observed, although the prosecution must make a complete accounting of its investigatory work that reveals exculpatory evidence:

[t]his is not to say that convictions ought to be reversed on the ground that information merely repetitious or cumulative, or embellishing of facts otherwise known to the defense or presented to the court, or without importance to the defense for purposes of the preparation of the case or for trial was not disclosed to defense counsel.

Giles v. Maryland, 386 U.S. 66, 98, 87 S.Ct. 793, 809, 17 L.Ed.2d 737 (Fortas, J., concurring);...