United States v. Pasha, s. 13–3024
| Decision Date | 14 August 2015 |
| Docket Number | 13–3028.,Nos. 13–3024,13–3025,s. 13–3024 |
| Citation | 797 F.3d 1122 |
| Parties | UNITED STATES of America, Appellee v. Daaiyah PASHA, also known as Ms. Dee, Iman Pasha, also known as KK, Charles F. Daum, Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Megan L. Rodgers argued the cause for appellant Charles F. Daum. With her on the briefs were Seth A. Tucker, appointed by the court, and Christopher P. Nofal.
Brian P. Morrissey, Jr. argued the cause for appellant Iman Pasha. With him on the briefs were Jeffrey T. Green, appointed by the court, and Benjamin B. Glerum.
K. Winn Allen argued the cause for appellant Daaiyah Pasha. With him on the briefs was Susan M. Davies, appointed by the court.
Kirby A. Heller, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee.
Before: ROGERS, GRIFFITH and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
In multiple respects, these appeals concern the duties owed to the court by lawyers and their legal teams.
Appellants are a criminal defense attorney and two legal investigators who were convicted in 2012 of breaching those duties by fabricating evidence and suborning perjury during a 2008 trial in which they represented another individual as defendant. Such conduct tears at the fabric of our system of laws.
But these appeals challenge prosecutorial misconduct that is likewise inimical to justice. Specifically, two Appellants argue for reversal of their convictions based on the Government's undisputed breach of its obligation to timely turn over exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We agree with Appellant Daaiyah Pasha that but for the Brady deficiency, there is a reasonable probability of a different outcome in her case. We therefore direct a new trial for Daaiyah Pasha, with appropriate remedies to cure the damage caused by the Government's delayed disclosure.
We do not, however, agree with Appellants Charles Daum and Iman Pasha on the challenges they raise, and so we affirm their convictions.
In April 2008, Appellant Charles Daum was retained as defense counsel by Delante White, who had been indicted on cocaine distribution charges. In September 2008, Daum represented White at a trial in the United States District Court for the District of Columbia that resulted in a hung jury. Daum was assisted in this representation by Appellants Iman Pasha and Daaiyah Pasha as non-attorney investigators.1 Daaiyah, a woman now in her early sixties, is Iman's mother.
In January 2009, the district court hearing the case against White granted Daum's motion to withdraw as counsel based on threats made by White against Daum. A superseding indictment added new defendants and new charges, and White and others subsequently pled guilty to the cocaine-related charges and to witness tampering and obstruction of an official proceeding in connection with the original trial.
Following a two-year investigation, the Government charged Daum, Iman, and Daaiyah with conspiracy to obstruct justice; Daum alone was also charged with witness tampering, fabricating evidence, and suborning perjury in the 2008 trial. The factual crux of the allegation was that Appellants had staged a photo shoot a few weeks before the trial to support a defense that key evidence attributed to Delante White actually belonged to his brother Jerome White. The Government alleged that Daum had masterminded the scheme and that Iman and Daaiyah had carried out the photo shoot on September 12, 2008, in the home of Cheryl White, who is the mother of Delante White and his siblings Jerome and Christopher. In its findings of fact, the District Court explained the photo shoot scheme as follows:
In preparation for Delante's trial, Daum developed a plan to prove to a jury Delante's claim that the drugs found at his grandmother's—Evelyn Clowney's—house belonged to his younger brother Jerome. In order to carry out this plan, Daum entered into a conspiracy in which he directed, in various ways, Daaiyah and Iman Pasha and Jerome and [Delante White's girlfriend] Candice to set up a photo shoot to take pictures that showed Jerome cutting up what appeared to be crack cocaine with what appeared to be the items recovered from Evelyn Clowney's apartment in plain view. The purpose of these staged photographs was to introduce them as evidence at Delante's trial in an effort to make the jury think that all of the items found at Evelyn Clowney's apartment, including the cocaine, actually belonged to Jerome. Daum assured Jerome, Christopher, and Candice, that they would not get in trouble for this plan, and were protected under a legal theory called “double jeopardy.”
Both of the substantial legal issues raised in these appeals arise from a pretrial motions hearing that took place on April 19, 2012, and was attended by all Defendants and their counsel. At the outset of that hearing, the District Judge announced that she would address two motions and discuss trial procedures for an expected trial start a week and a half later.
Before the Judge began to speak to those points, however, Daaiyah's lawyer informed the District Court that the three Defendants were waiving their rights to jury trial and requesting the Government's consent to try the case to the District Court. He explained that Defendants were only telling the District Court at such a late juncture because “this was a decision that was back and forth from last month.” Daum's counsel added a similar statement, saying that “the decision was made recently with very fulsome discussions between the defense lawyers and their clients.” He also represented that the Government had not previously been informed of the waiver offer and that “obviously we would expect that they might need some time before they can respond.” The Judge noted that the Government was likely as surprised by the offer as she was, telling the prosecutor: And the Judge allowed the Government some time to decide whether to accept the offer of jury trial waiver. The Judge then proceeded to describe jury selection plans in case the waiver offer was not accepted.
On April 24, 2012, the Government filed a written acceptance of Defendants' offer to waive jury trial. On April 25, Defendants filed three waivers of trial by jury, one executed by each Defendant.
The April 19 hearing also addressed a motion by Daaiyah's lawyer to compel production of Brady material. More than eight months earlier, on July 11, 2011, the Government had interviewed Everett Montgomery, the boyfriend of Cheryl White (at whose home the photo shoot was staged). Montgomery said that on the day of the photo shoot, he was present and saw a man and a woman in her mid-thirties enter the apartment carrying balloons, which were a key prop featured in the fabricated photos taken that evening. The Government did not disclose Montgomery's statements to the defense until April 5, 2012, over eight months after the interview and just a few weeks before the trial. The prosecutor trying the case, who had been present personally at the 2011 interview, acknowledged to the District Court that he had violated Department of Justice policy to provide Brady information as soon as he became aware of it. He also reported that the Government had recently re-interviewed Montgomery, who had changed his story and now said that instead of one man and one woman, he had observed two women come into his apartment on the relevant evening.
To clarify the critical timeline: The Government's original interview with Montgomery took place on July 11, 2011. On April 5, 2012, the Government disclosed Montgomery's exculpatory statement to defense counsel. Daaiyah's lawyer told the District Court that this caused him to “stop[ ] trial preparation and spen[d] the next five days trying to locate Mr. Montgomery,” at which time (that is, on April 10, 2012) Montgomery told the defense team that he had seen a man and a woman enter his apartment on September 12, 2008, the night of the photo shoot. On April 11, 2012, the day after defense counsel had first interviewed Montgomery, the prosecutors met with Montgomery at their office. They reported that at that meeting Montgomery said he saw “two women enter his apartment, both of whom were in their thirties or forties.” On April 16, 2012—three days before the key pretrial hearing described above—defense counsel again met with Montgomery, who “reaffirmed that he saw a man and a woman enter his apartment on September 12, 2008.”
After hearing argument at the pretrial hearing, the District Court announced that “there is not the slightest doubt that the Government committed a Brady violation.” It also concluded that there was “very real prejudice” because memories fade in eight months and the defense had lost the opportunity to get a fresher recollection on the record. And it invited Defendants to submit requests for sanctions.
On April 30, 2012, Defendants filed a written motion to dismiss the indictment or, in the alternative, to preclude the Government from introducing any testimony regarding events at the photo shoot. The District Court held an on-the-record phone conference the next morning, on May 1, 2012, and told the parties that “a final decision on these motions can occur certainly after trial, given what the defense is requesting in terms of its motion.” The Court accordingly reserved judgment on sanctions, ordering the Government to respond in writing within 15 days after rendering of a verdict.
A month-long bench trial began on May 7, 2012. The principal evidence presented regarding the participation of Iman and Daaiyah in the photo shoot included:
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