U.S. v. Steinberg

• Decision Date: 30 October 1996
• Docket Number: No. 94-50542,94-50542
• Citation: 99 F.3d 1486
• Parties: 45 Fed. R. Evid. Serv. 1138, 96 Cal. Daily Op. Serv. 7922, 96 Daily Journal D.A.R. 13,150 UNITED STATES of America, Plaintiff-Appellee, v. David Michael STEINBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1486

99 F.3d 1486

45 Fed. R. Evid. Serv. 1138, 96 Cal. Daily Op.

Serv. 7922,

96 Daily Journal D.A.R. 13,150

UNITED STATES of America, Plaintiff-Appellee, v. David Michael STEINBERG, Defendant-Appellant.

No. 94-50542.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1996.

Decided Oct. 30, 1996.

Jonathan D. Soglin, Oakland, CA, for defendant-appellant.

Ronald L. Cheng, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, David V. Kenyon, District Judge, Presiding. D.C. No. CR-92-00922-KN.

Before: PREGERSON and T.G. NELSON, Circuit Judges, and LYNCH, ^* District Judge.

T.G. NELSON, Circuit Judge:

OVERVIEW

Defendant David Michael Steinberg was convicted of (1) conspiracy to possess cocaine with intent to distribute (count one); (2) using or carrying a firearm during a drug trafficking crime (count two); (3) conspiracy to possess and transfer counterfeit currency (count three); (4) possession of counterfeit federal reserve notes (count four); and (5) transferring counterfeit federal reserve notes (count 5). After the jury convicted Steinberg, but prior to sentencing, Steinberg made a motion for a new trial based on the Government's failure timely to disclose exculpatory evidence. The district court denied defendant Steinberg's motion for a new trial and sentenced Steinberg to 248 months' incarceration. Steinberg timely appeals. We have jurisdiction under 28 U.S.C. § 1291, and we reverse his convictions under counts one and two of the indictment and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

In September 1992, Craig Rickard introduced defendant Steinberg to confidential informant Martin James Schulz. Schulz testified at trial that at a meeting with defendant Steinberg, he and Steinberg discussed a possible purchase of ten kilograms of cocaine with counterfeit currency. Schulz testified that he and the defendant anticipated that the cocaine would be divided in the following manner: six kilograms for Steinberg and four for Schulz. The uneven division of 60/40 (rather than the usual 50/50) was to compensate defendant Steinberg for a debt that was owed to him by informant Schulz. Defendant's role in the deal was to provide the counterfeit money.

During the month of September, defendant and Schulz continued to discuss the transaction over the telephone in a series of recorded conversations. Cocaine was never actually mentioned in these recorded conversations. On September 14, 1992, defendant and Schulz discussed the transaction, and upon Schulz's request, defendant agreed to provide Schulz with a sample of the counterfeit currency.

On September 16, 1992, Schulz and defendant spoke again in a recorded conversation. Defendant told Schulz: "I jack people." Informant Schulz testified at trial that he believed this meant that defendant either robs people for drugs or uses counterfeit money to buy drugs. On the tape, Schulz told defendant that the price was "$17.50." At trial, Schulz testified that this meant $17,500 per kilo of cocaine. Finally, on the tape, Schulz asked defendant if he could "get rid of those," which Schulz testified referred to Schulz's share of the cocaine.

On September 21, 1992, defendant gave Schulz two $100 bills as a sample of the counterfeit. On September 28, defendant and Schulz met to finalize plans for the transaction. At one point during the conversation, defendant stated, "You're not taking off with the packs." Schulz testified that he thought "packs" meant "kilos" and that defendant offered to purchase Schulz's share.

Ethan Siegel, a friend of defendant's, testified that on the evening of September 28, 1992, defendant called him and asked him to return some counterfeit currency that Siegel had in his house. When Siegel returned the money that evening, defendant told Siegel that he might need Siegel's help the next day and asked Siegel if he could borrow some guns.

On September 29, 1992, defendant contacted Siegel and asked Siegel to accompany him and to "make sure" to bring the guns. Siegel brought two guns with him when he went to meet defendant. When Siegel arrived at defendant's residence, he gave one of the guns to defendant. Defendant and Siegel then got into a van and drove to meet informant Schulz. Siegel drove the van, while defendant rode in the front passenger seat.

Siegel testified that during the drive to meet Schulz, defendant told Siegel that Schulz had arranged a ten-kilogram cocaine deal to compensate Steinberg for the money that Schulz had lost. Siegel also testified that defendant told him that he would sell the cocaine in Hawaii because of the better prices available there.

Defendant and Siegel met informant Schulz in a nearby parking lot. A duffle bag containing counterfeit currency was placed in Schulz's car. Schulz then drove away from the parking lot to the "transaction site." Defendant and Siegel followed Schulz in the van.

Schulz drove to the "transaction site" and met his "supplier," another confidential informant. Informant Schulz gave the other informant the duffel bag containing the counterfeit currency, and the informant gave Schulz the keys to a rental car containing ten kilograms of cocaine. While informant Schulz and the "supplier" were making this exchange, defendant and Siegel drove ahead a short distance to wait for the transaction to be completed.

As informant Schulz walked toward the rental car containing the cocaine, law enforcement officers arrested defendant and Siegel. At the time of the arrest, defendant was in the front passenger seat of the van and Siegel was in the driver's seat. Two loaded handguns were found on the floor of the van. One of the handguns was on the floorboard on the driver's side and the other was underneath the passenger seat.

Defendant was convicted after a jury trial of: (1) conspiracy to possess more than five kilograms of cocaine, in violation of 21 U.S.C. § 846 (count one); (2) using or carrying a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count two); (3) conspiracy to possess and transfer counterfeit currency, in violation of 18 U.S.C. § 371 (count three); (4) possession of counterfeit currency, in violation of 18 U.S.C. § 472 (count four); and (5) transfer of counterfeit federal reserve notes, in violation of 18 U.S.C. § 473 (count five).

On March 19, 1994, nine months after the trial and eighteen months after defendant's arrest, the Government turned reports over to defendant's counsel concerning separate investigations involving counterfeit currency that had been traced back to informant Schulz, the Government's key witness. This evidence revealed that Schulz had been involved in two different illegal transactions involving counterfeit currency around the time that he was acting as a confidential informant for the Government in the present case. This evidence also revealed that Government agents were aware that Schulz owed some money to defendant. Based on this evidence, defendant moved for a new trial. The district court denied the motion.

On September 19, 1994, the district court sentenced defendant to, among other things, 248 months of incarceration. Defendant timely appeals.

ANALYSIS

A. Denial of New Trial Motion

1. Standard of Review

A district court's denial of a new trial motion based on an alleged Brady violation is reviewed de novo. United States v. Zuno-Arce, 44 F.3d 1420, 1425 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995).

2. Discussion

Defendant claims that the Government failed timely to disclose exculpatory evidence and that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a new trial is required. We agree.

In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment...." Id. at 87, 83 S.Ct. at 1196-97. To prove that the Government has violated Brady, the defendant Steinberg must show (1) that the material was exculpatory; (2) that the exculpatory material was not produced when it should have been; and (3) that the failure timely to produce the exculpatory material "mattered." Zuno-Arce, 44 F.3d at 1425.

The Government concedes that the evidence that informant Schulz had been involved in two different illegal transactions involving counterfeit currency around the time that he was acting as a confidential informant in the case against defendant was exculpatory and that it was not produced when it should have been. Thus, the only The standard for determining materiality of a Brady violation depends on the circumstances surrounding the violation. "[I]f the prosecution knowingly uses perjured testimony, or if the prosecution knowingly fails to disclose that testimony used to convict a defendant was false, the conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected the jury verdict." United States v. Endicott, 869 F.2d 452, 455 (9th Cir.1989). "On the other hand, in the absence of the prosecution's knowing use of perjury, new evidence is material under the Brady standard, warranting a new trial, 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." Id.

question for us to determine is whether the failure timely to produce the material "mattered," i.e., whether the evidence was "material."

It is uncontroverted that the prosecutor knew nothing about the exculpatory material until nine months after the trial. However, defendant argues that because the Government's investigating agents knew about the exculpatory material, this knowledge was imputed to the prosecutor. Thus, defendant claims that the prosecutor knowingly used...