United States v. Barlow

• Decision Date: 05 August 2010
• Docket Number: No. 09-CR-580 (JFB),09-CR-580 (JFB)
• Citation: 732 F.Supp.2d 1
• Parties: UNITED STATES, v. Terrance BARLOW, Defendant.
• Court: U.S. District Court — Eastern District of New York

732 F.Supp.2d 1

UNITED STATES,

v.Terrance BARLOW, Defendant.

No. 09-CR-580 (JFB).

United States District Court,

E.D. New York.

Aug. 5, 2010.

Loretta E. Lynch, U.S. Attorney, Eastern District of New York, Brooklyn, NY, Amir H. Toosi, Assistant U.S. Attorney, for the United States.

Zachary Margulis-Ohnuma, New York, NY, for Defendant Barlow.

memorandum and order

JOSEPH F. BIANCO, District Judge:

On October 20, 2009, a jury convicted defendant Terrance Barlow ("Barlow" or "defendant") of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Barlow now moves for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.

Barlow asserts that he should be granted a new trial on three grounds. First, he argues that the jury's verdict was against the weight of the evidence. Specifically, he argues that the testimony of two police officers involved in his arrest was incredible and that the jury failed to properly credit the testimony of two defense witnesses who testified that the gun containing the ammunition actually came from someone else arrested during the police response to an attempted burglary. Second, Barlow contends that the prosecution violated its obligation to disclose exculpatory and impeachment evidence in its possession. The focus of Barlow's argument on this ground is that the prosecution allegedly failed to disclose the existence of potential defense witnesses and hampered defense access to those witnesses. Third, Barlow asserts a violation of his Sixth Amendment right to a jury drawn from a fair cross section of the community. Specifically, Barlow points out that his 60-person venire did not contain a single African-American man, although it did contain 11 African-American women, two of whom were ultimately seated on the jury.

As set forth below, the Court finds that each of these claims is without merit and that no evidentiary hearing is needed to resolve any of them. First, the Court concludes that the guilty verdict on the felon-in-possession of ammunition charge was not against the weight of the evidence. The government presented, inter alia, the following evidence to the jury: (1) the eyewitness testimony of Police Officer John Serdaros and Sergeant Vassilios Aidiniou that the loaded gun fell from Barlow's waistband during a brief struggle between Barlow and Officer Serdaros as they attempted to stop Barlow in response to a burglary in progress on July 16, 2009; (2) the testimony that the defendant orally confessed to Officer Serdaros that he possessed the firearm and then confessed, in writing, to Detective Roland Garcia that he possessed the gun in connection with the attempted burglary/robbery; and (3) a defense stipulation that the ammunition recovered from the firearm had been transported in interstate commerce and that the defendant had been convicted of a felony prior to July 16, 2009. Although Barlow argues that the jury should have accepted the testimony of the defense witnesses over the police officers, Barlow has failed to demonstrate the "exceptional circumstances" that are required before the Court will disturb the jury's credibility assessments, nor has he demonstrated that it would be a manifest injustice to let the jury's verdict stand. Based upon the government's cross-examination of the two defense witnesses, as well as the other proof at trial, the jury could have rationally concluded that the defense witnesses' testimony should be rejected, inter alia, because they were not in a position to observe the defendant's arrest or because the testimonywas based upon an honest, but erroneous, perception that the firearm was recovered from a second individual arrested on the street (an erroneous perception that may have been caused by Officer Serdaros assisting in the arrest of the second individual while he was still holding the gun that had fallen from defendant's waistband in his hand). Thus, the Court denies the Rule 33 motion based upon the weight of the evidence.

Second, the Court also rejects defendant's claim that purported Brady violations by the government warrant a new trial. As a threshold matter, defendant has failed to produce any evidence that the government possessed evidence favorable to the defense prior to trial or violated its discovery obligations in any way. In any event, Barlow was not prejudiced at all by any purported late disclosure of exculpatory information during trial because (1) the government served subpoenas on the witnesses who are the focus of Barlow's Brady argument, (2) the witnesses in question in fact testified for Barlow at trial and the jury heard and fully considered the exculpatory information, and (3) any purported late disclosure did not result in any material shift in Barlow's trial strategy. By calling these defense witnesses, Barlow's counsel was fully able to present the allegedly exculpatory information to the jury in the best possible light for the defendant. Furthermore, upon learning during the trial of the anticipated exculpatory testimony of these two witnesses, Barlow's counsel did not request an adjournment of the trial (or a mistrial) because of any purported prejudice prompted by the timing of the discovery of the information. Therefore, no "suppression" of exculpatory information occurred within the meaning of Brady because of any purported late disclosure. In any event, even if Barlow could show that the government suppressed exculpatory evidence, he cannot possibly show the requisite resulting prejudice under the circumstances of this case because the defendant had full and effective use of the exculpatory evidence at trial, and no hearing on this issue is required. Similarly, the Court finds meritless Barlow's assertion that the prosecution failed to disclose potential impeachment evidence relating to a prosecution witness. Therefore, Barlow is not entitled to a new trial because of the prosecution's alleged belated disclosure or nondisclosure of exculpatory or impeachment evidence.

Finally, the Court rejects Barlow's fair cross-section challenge to the jury venire in this case. Applying the test set out by the Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court concludes that no fair cross-section violation occurred. In particular, assuming arguendo that African-American males constitute a "distinctive group" for purposes of the Duren test (in addition to African Americans generally, who are clearly a "distinctive group" under Duren ), Barlow has not met his burden of showing that African-American males were unfairly underrepresented in jury venires or that any underrepresentation resulted from the systematic exclusion of African-American males from jury service. As discussed in detail infra, although Barlow's venire contained no African-American males, it is undisputed that African-American males comprised 6.79% of all venires in the District during the relevant period. In fact, African-American males were actually qualified for jury service in this District during the time period in question at a higher rate than other groups in the community. No hearing on this issue is warranted because, inter alia, based upon the undisputed statistical evidence, it is clear that the "unfair underrepresentation" element cannot be met in this case as a matter of law.

In sum, having carefully reviewed all of Barlow's claims, the Court concludes that no hearing is required on any of the issues and that the claims in defendant's Rule 33 motion are without merit. The Court sees no "manifest injustice" in allowing this verdict to stand and has no "real concern that an innocent person may have been convicted" in this case. United States v. Canova, 412 F.3d 331, 349 (2d Cir.2005) (internal quotations omitted).

I. Background

As will be discussed more fully below, the New York City Police ("NYPD") arrested Barlow on July 16, 2009. He was subsequently transferred to federal custody and indicted on August 18, 2009 on one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Trial began on October 13, 2009, and the jury found Barlow guilty on October 20, 2009. On November 20, 2009, Barlow filed the instant motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.

At the same time he submitted his reply brief on the motion, defense counsel requested that the Court hold oral argument regarding Barlow's fair cross-section claim. The Court granted that request and held oral argument on March 26, 2010. Following oral argument, both sides made several additional submissions dealing with the fair cross-section issue. The matter is now fully submitted.

II. Standard of Review

Defendant moves for a new trial pursuant to Federal Rule of Criminal Procedure 33. Rule 33 states, in relevant part, that "upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a). A district court may grant a Rule 33 motion only in "extraordinary circumstances," United States v. McCourty, 562 F.3d 458, 475 (2d Cir.2009) (internal citation and quotation omitted), and only if there exists " 'a real concern that an innocent person may have been convicted.' " United States v. Parkes, 497 F.3d 220, 232 (2d Cir.2007) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001)); accord United States v. Bell, 584 F.3d 478, 483 (2d Cir.2009); see also United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir.2000) ("Granting Rule 33 motions is not favored and is done with great caution."). "The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice." Ferguson, 246 F.3d at 134.

III. Discussion

Barlow argues that he is entitled to a new trial on three grounds: (1) the verdict was not supported by the weight of the evidence; (2) the prosecution violated its obligation to disclose exculpatory and impeachment information;...