U.S. v. Morell

• Decision Date: 29 August 1975
• Docket Number: 1218,D,Nos. 1217,s. 1217
• Citation: 524 F.2d 550
• Parties: UNITED STATES of America, Appellee, v. Pedro MORELL and Ramon Bruzon, Appellants. ockets 74-1827, 75-1200.
• Court: U.S. Court of Appeals — Second Circuit

Page 550

524 F.2d 550

UNITED STATES of America, Appellee, v. Pedro MORELL and Ramon Bruzon, Appellants.

Nos. 1217, 1218, Dockets 74-1827, 75-1200.

United States Court of Appeals Second Circuit.

Argued July 15, 1975.

Decided Aug. 29, 1975.

Barry I. Slotnick, New York City (Slotnick & Narral, New York City, of counsel), for appellant Morell.

George L. Santangelo, New York City (Santangelo & Santangelo, New York City, of counsel), for appellant Bruzon.

Paul B. Bergman, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., Alvin A. Schall, Carol B. Amon, Asst. U. S. Attys., of counsel), for appellee.

Before MOORE, FRIENDLY and Van GRAAFEILAND, Circuit Judges.

MOORE, Circuit Judge:

Pedro Morell and Ramon Bruzon were convicted by a jury of conspiracy to distribute cocaine and of possession of cocaine with intent to distribute. ¹ 21 U.S.C. §§ 841(a)(1), 846. The principal government witness at their joint trial was Alfredo Valdez, a government informant who had been arrested in Miami in December 1969 for possession of cocaine. Valdez pleaded guilty in 1970, although he was not sentenced until two years later, when the United States District Court for the Southern District of Florida imposed three years of probation. Following his plea, Valdez began working as an informant for the Bureau of Narcotics and Dangerous Drugs. Between 1970 and 1972, when the events in this case transpired, Valdez worked with the government in several drug cases that resulted in arrests and convictions, and after May 1972 he continued to cooperate with the government until he returned to Central America, where he was residing at the time of this trial.

Valdez testified that in April 1972 a man named "Louie" introduced him to Morell and Bruzon as "two guys" in the cocaine business. "Louie", it turns out, was actually an undercover government informant. Bruzon and Morell told Valdez that they were expecting a shipment of cocaine to arrive shortly from Columbia. They gave Valdez the address of a store in Queens where they kept supplies used in their painting business. Over the course of the next few weeks Valdez visited the store four or five times, and Bruzon and Morell were present on each occasion.

On May 23, 1972, Bruzon called Valdez and told him that the cocaine had arrived. They met on the evening of May 24, and tentatively agreed on a sale of four kilos at a price of $12,000 per kilo. At about 1:00 A.M. on May 25, Valdez met Morell, who approved the price. They also agreed to meet at the store between 4:00 P.M. and 6:00 P.M. that day to consummate the deal.

At 2:00 P.M. Valdez met Agent McElroy of the BNDD, with whom Valdez had maintained regular contact, and told McElroy the details of the proposed deal. Shortly thereafter, agents supplied Valdez with $48,000 in government funds, which were placed in the trunk of Valdez' car. It was agreed that when Valdez came out of the store and removed the money, it would signify to observing agents that he had seen the cocaine.

Valdez arrived at the store at 4:20 P.M. He was greeted by Morell who took him to the basement where Bruzon was cutting the cocaine and mixing it with dextrose. Valdez and Morell left the store, and Valdez went to his parked car and removed the money from the trunk the signal that he had seen the cocaine. Morell and Valdez were followed back into the store by agents, who arrested Morell and pretended to arrest Valdez. Valdez said "God damn", a prearranged signal that the cocaine was in the basement. Agent Jeffrey Scharlatt went down to the basement. He observed Bruzon exiting through a back door where agents stationed at the back of the store effected the arrest. On his way back upstairs, Scharlatt saw plastic bags containing white powder on the floor. The bags were seized and on analysis were found to contain cocaine.

In addition to presenting character witnesses, both Bruzon and Morell took the stand in their own defense. They testified that they rented part of the store from Urbano Ramos, assertedly a friend of Valdez who operated a fruit stand on the premises. Their story was that Valdez had come to the store on May 25 looking for Ramos, who was not there. The inference they sought to have the jury draw from their story was that Valdez and/or Ramos were dealing in cocaine and had placed it in the store without knowledge of Bruzon or Morell. According to them, they were innocent of any cocaine dealing, and Valdez had set up their arrest by BNDD agents in order to improve his record as an informant.

I.

On September 29, 1972, the appellants made a written motion that included a request for "information which is favorable to the defense . . . , including matters which might or could motivate testimony by persons whom the Government intends to call during the course of the trial, including acts of misconduct committed by said persons. . . ." (A.7-8) The government consented to this application, but no documentary material relating to Valdez was made available to the defense. Then during Morell's and Bruzon's first trial, which resulted in a mistrial, the government brought out on direct examination the fact of Valdez' 1970 guilty plea in Florida for possession of cocaine, his sentence to probation, and his work for the government as a paid informant. Defense counsel also cross-examined Valdez on these matters.

Prior to the second trial, the defense made a more specific request for information relating to "the arrest record of Valdez, . . . the deal in Florida, (and) his deal with McElroy, the agent. . . ." (A.288). The Assistant United States Attorney in charge of the case responded: "I made total disclosure of anything to do with his testimony. I turned over all 3500 materials. His arrest, his life was brought in front of the jury. We have no arrest record in our possession and the incident took place two years ago." As a consequence, no additional material was turned over by the government.

This appeal was scheduled to be argued during the week of December 16, 1974. In a letter to this court dated December 11, 1974, the United States Attorney's office disclosed that in preparing the appeal, it had for the first time discovered the existence of a confidential file (consisting of two folders) relating to Valdez that were in the possession of the Drug Enforcement Administration. This court then entered an order remanding the case "to the district court with instructions to make appropriate findings of fact and conclusions of law with respect to the disclosures made by the government in its letter dated December 11, 1974 . . .." Shortly thereafter, the government made available to defense counsel and the district court redacted versions of the confidential file. ² Also furnished were an order of the United States District Court for the Southern District of Florida, dated July 16, 1973, terminating Valdez' three year period of probation, which had begun in May 1972, after fourteen months, and a transcript of Valdez' sentencing hearing.

The additional material turned over revealed the following facts unknown to the defense at the time of trial and deemed by the appellants to be pertinent: (1) that Valdez was sentenced to three years probation on May 18, 1972, only a week before the arrests in this case, and not in 1970 or 1971 as Valdez had indicated at trial; ³ (2) that the district court in Florida apparently conditioned Valdez' probation on continued cooperation with the government; (3) that Valdez' modus operandi differed in this case from others on which he had worked in that in all previous cases Valdez had introduced undercover agents to drug dealers; (4) that in April 1973, the Drug Enforcement Administration had interceded with the Immigration and Naturalization Service to have Valdez' wife, an illegal alien, remain in this country until the cases on which Valdez worked were concluded; and (5) that the Drug Enforcement Administration had acted through the United States Attorney's office in Florida to obtain an early termination of Valdez' probation.

The district court did not hold an evidentiary hearing on the failure of the government to turn over these materials earlier. The court did receive letters from the parties on the effect of the material and whether a new trial should be ordered. It also heard oral argument on the matter.

The district court was fully aware of decisions of this court elaborating on the propriety of granting a new trial when the government failed to disclose, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the existence of favorable evidence material to guilt or punishment. The standards governing the grant of a new trial vary according to the extent of the government's culpability. If the prosecutor has intentionally suppressed evidence or ignored evidence whose high value to the defense could not have escaped his attention, a new trial is warranted if the evidence is merely material or favorable to the defense. E. g., United States v. Kahn, 472 F.2d 272, 287 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 2270, 36 L.Ed.2d 958 (1972); United States v. Keogh, 391 F.2d 138, 146-47 (2d Cir. 1968). If, on the other hand, the government's failure to disclose is merely inadvertent or negligent, a new trial is required only if there is a "significant chance that this added item, developed by skilled counsel as it would have been could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction." United States v. Rosner, 516 F.2d 269, 272 (2d Cir. 1975); United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975); Grant v. Alldredge, 498 F.2d 376, 380 (2d Cir. 1974); United States v. Miller, 411 F.2d 825, 832 (2d Cir. 1969). However, the district court did not make a determination regarding the government's conduct. It stated that a new trial should be denied regardless of the standard applied.

We cannot accept this...