United States v. Full Play Goup, S.A.
| Decision Date | 13 February 2023 |
| Docket Number | 15-CR-252 (S-3) (PKC) |
| Parties | UNITED STATES OF AMERICA, v. FULL PLAY GOUP, S.A., HERNÁN LOPEZ, and CARLOS MARTINEZ, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Defendants Hernán Lopez (“Lopez”) and Carlos Martinez (“Martinez”) (collectively “Defendants”) move for relief based on alleged omissions and inconsistencies in the testimony of the prosecution's main witness, Alejandro Burzaco (“Burzaco”). Specifically, the parties assert that Burzaco's testimony has materially changed between his pre-trial proffers with the Government[1] and his direct and cross-examination during trial. Accordingly, Defendants argue that the Government has breached its Brady/Giglio, Napue,[2] and 3500 obligations[3] by failing to disclose or correct the alleged changes in Burzaco's testimony prior to trial. As relief, Defendants seek curative jury instructions—and if the curative instructions are denied—a mistrial. For the reasons set forth below, the Court denies Defendants' motions in their entirety.
On January 24, 2023, Martinez filed a motion alleging omissions and inconsistencies between Burzaco's direct testimony and his pre-trial 302s. (Dkt. 1904.) In particular, Martinez raised concerns about discrepancies in Burzaco's accounts for three events: (1) a meeting at Dean and Deluca with Martinez and Lopez (“the D&D Meeting”), (2) a January 9, 2012 email exchange with Martinez, and (3) a meeting at a sushi restaurant in Buenos Aires with Martinez (“the Buenos Aires Meeting”). (Id. at 6-8.) Martinez argued that changes in Burzaco's testimony between his direct examination and his pre-trial 302s must constitute either (1) a Brady violation, because the Government knew about the inconsistencies ahead of time and failed to disclose them, or (2) a Napue violation because the Government knew or should have known Burzaco's direct testimony was false when compared with his 302s. (Id. at 6 (); see also Id. at 9-11.) As relief, Martinez sought “an evidentiary hearing to determine whether the government willfully or inadvertently withheld powerfully impeaching evidence.” (Id. at 10.) Martinez's counsel further supplemented their written motion with an oral application the same day, adding that they were “entitled to a mistrial” under Napue. (Tr. 1435:4-10.)
Also on January 24, 2023, Lopez made an oral application alleging Brady/Giglio violations because of the differences between Burzaco's direct testimony and the Government's 3500 material. (Tr. 1412:12-1455:22.) Lopez sought a curative instruction advising the jury that the Government failed to disclose material information and wanted the opportunity to cross-examine Burzaco on the substance of that curative instruction. (Tr. 1422:13-1423:22 ( ) Furthermore, Lopez raised the possibility of moving for mistrial if such relief was denied. (Tr. 1424:10-12 (“[If] we don't get [the relief we have requested], we may move for mistrial just to preserve it . . . But th[e] [curative jury instruction is] our initial ask.”).) That evening, as directed by the Court, Lopez supplemented his oral application with a chart submission, detailing the alleged omissions and discrepancies between Burzaco's direct testimony and his 302 statements. (See Dkt. 1905.)
Later in the evening on January 24, 2023, the Government responded to Defendants' motions for relief under Brady/Giglio, Napue, and 3500, and denied violating any of its obligations under those doctrines. (Dkt. 1906.) The Government's submission included a modified version of Lopez's chart (Dkt. 1905), comparing Burzaco's trial testimony to the 302s and Government trial exhibits that were provided to Defendants before trial. (Dkt. 1906) The Government further supplemented their opposition to Defendant's motions on January 29, 2023. (Dkt. 1909.)
On February 1, 2023, Lopez filed a letter brief “in further support” of his argument that the Court should “provide an instruction to the jury regarding the absence of . . . two critical meetings in [the] 3500 material for Alejandro Burzaco.” (Dkt. 1916, at 1.) This time, Lopez grounded his argument in “fairness concerns” and focused on two particular meetings: (1) a meeting in Fort Lauderdale in February 2010, and (2) a meeting at NewsCorp's New York City office in May 2010. (Id. at 5.) Lopez asserted that both meetings were detailed by Burzaco during his direct examination but were absent from his 302s. (Id.) Accordingly, Lopez asked the Court to give the following curative instruction as relief, arguing that the instruction is “akin to asking the jury to take notice of an adjudicative fact”:
The following facts do not appear in any interview reports prepared by government agents relating to meetings with Burzaco, or in his prior testimony: (i) reference to or any of the accompanying details regarding the February 2010 Fort Lauderdale meeting, during which Burzaco testified he first discussed bribery with Mr. Lopez; (ii) reference to or any of the accompanying details regarding the May 2010 NewsCorp meeting, at which Burzaco testified that he first discussed the details of the bribery scheme with Mr. Lopez.
(Id. at 2.)
Lastly, on February 6, 2023, Martinez filed a letter brief asking to join Lopez's request for a curative instruction. (Dkt. 1920, at 1 (citing Dkt. 1916).) In addition to the claims Martinez made in his first brief (Dkt. 1904), Martinez added that the 3500 materials also did not mention three offshore trust entities that held assets for Burzaco's children: Avalanche, Sargasso, and Tornasol. (Id. at 3.) Specifically, Martinez asserted that there is a discrepancy between the Burzaco 302s, which did not mention the three offshore trust entities, and Burzaco's cross-examination testimony that “he discussed the money in the trusts” with the Government in “late July 2015.” (Dkt. 1920, at 3 (citing Tr. 2911).) Martinez argued that “it strains credulity that an [FBI] agent would not take notes” regarding the off-shore trust entities “given the staggering amounts of money at issue.” (Dkt. 1920, at 4.) Thus, Martinez asserted, the Government must have committed either a Brady violation by not disclosing 302s regarding the trust entities, or a Napue violation by not correcting Burzaco's “lie” during cross-examination. (Id.) Martinez requested the following curative jury instruction as relief:
The following facts do not appear in any interview reports prepared by government agents relating to meetings with Burzaco, or in his prior testimony: (i) reference to or any of the accompanying details regarding the February 2010 Fort Lauderdale meeting, during which Burzaco testified he first discussed bribery with Mr. Lopez; (ii) reference to or any of the accompanying details regarding the May 2010 NewsCorp meeting, at which Burzaco testified that he first discussed the details of the bribery scheme with Mr. Lopez; (iii) any specific reference to a meeting on January 10, 2012 wherein Mr. Burzaco explained to Mr. Martinez the three mechanisms used to run his bribery scheme; (iv) any mention of Sargasso, Avalanche, or Tornosol, the off-shore trust entities that hold approximately $114 million dollars in his children's name[s].
(Id. at 4.)[4]
There are four factual events at issue in Defendants' motions: (1) the February 2010 Fort Lauderdale Meeting between Burzaco and Lopez; (2) the May 2010 NewsCorp Meeting between Burzaco and Lopez; (3) the fall 2011 D&D Meeting between Burzaco, Lopez and Martinez; and (4) the January 9, 2012 email exchange and subsequent Buenos Aires Meeting between Burzaco and Martinez. Below, the Court details the facts that Burzaco provided to the Government regarding each event during his pre-trial meetings with them, as reflected in the 3500 material, and compares them to his direct testimony.
Burzaco's recollection of the first time he and Lopez discussed bribery varies throughout the Government's 3500 material. In a January 2019 proffer session, he “estimated that by 2009, [Lopez] was aware” of the bribery scheme and “had already had multiple conversations with Lopez involving the bribe payments.” (3500-AB-39(a) ¶ 7.) Then in an October 2019 proffer session, Burzaco recalled that it was after a “Los Angeles Awards ceremony in July or August 2010” that he first discussed bribes explicitly with Lopez. (3500-AB-43(a) ¶ 9.) Furthermore, before trial, Lopez's counsel told the Government that their understanding from the 3500 material was that Burzaco's alleged first discussion with Lopez regarding bribery was during a summer 2010 meeting in Los Angeles. (Tr. 1447:18-23.) The Government appeared to agree. (Id.)
On direct examination, Burzaco testified that the first time he and Lopez...
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