(Ex. M-1) of which they remained unaware until the post-trial hearing.
4. Materiality of Exculpatory Information
This court must assess whether under all the circumstances there is a reasonable likelihood that this new exculpatory evidence would raise a reasonable doubt about defendants' guilt.
At the trial, the defendants' knowledge that they were in possession of heroin, and that they were knowingly conspiring to do so, was the key area of dispute. While the defendants, in post-arrest statements to law enforcement authorities, disclaimed such knowledge and portrayed themselves as innocent persons who were doing a favor, there was substantial evidence of their guilt introduced by the trial.
As summarized in Mr. Wigler's closing statement to the jury, police seized two beepers from Galvis plus $ 889 in cash, despite his being unemployed. From Vergara, they seized one beeper and $ 611 in cash plus an address book he tore up while in custody which was subsequently reconstructed. The extreme nervousness of both defendants when Officer Cottrell confronted them, the furtive gestures of bending down in their vehicle when Cottrell was behind them, Vergara's destruction of his address book, the efforts the defendants made to conceal the bag under the seat, and the suspicious explanation they gave for the purpose of their trip, elevated the proofs to a point establishing guilt beyond a reasonable doubt in the government's view, and in the eyes of the jury.
Although both defense counsel argued that the Cottrell version of the seizure was a fabrication, they had no real evidence that something else had occurred that would bring Cottrell's entire credibility into question. Mr. Booth, on behalf of defendant Vergara, speculated that the most likely scenario was that the heroin was not in plain view, that Cottrell lied about Vergara and Galvis ducking down multiple times, and that if that did happen Officer Cottrell would naturally become concerned with his safety, draw his weapon and order the two men out of the car to investigate what they were doing. Mr. Booth further speculated that Cottrell searched the vehicle until he found the contraband, but that he fabricated his testimony about his plain view of the drugs. If the bag was not in the middle of the floor in front of the passenger, as Officer Cottrell swore it was, then these defendants may well have been unaware that their errand had a guilty purpose, according to the arguments of both counsel.
The Collier information and the Iurato Report would have provided such ammunition to the defendants to undermine Officer Cottrell's credibility on key observations he claims to have made. If the jury had heard Special Agent Collier's testimony and credited it, for example, they would find that Officer Cottrell lied in court about seeing the drugs in plain view. Did he also embroider testimony about the defendants' demeanor, which he subjectively described as extreme nervousness? Did he stretch the truth about both defendants ducking down on multiple occasions to the vicinity of the bag? Did he lie to the jury, and perhaps even to Special Agent Collier, about the bag not being located fully under the seat?
The new exculpatory information would not have changed the existence of the beepers and a moderate amount of cash, totaling $ 1,500, nor would the new information change whatever inferences flow from Vergara's attempted destruction of his address book. But the undermining of Officer Cottrell's credibility could open the door to the jury's thoughtful consideration of innocent, non-drug related reasons for the cash, beepers and Vergara's address book, sufficient to raise a reasonable doubt.
These defendants face extremely significant charges, with grave penalties in the event of conviction. Where there is a likelihood that the exculpatory information could reasonably undermine the basis of finding that these defendants had knowledge of their possession of heroin beyond a reasonable doubt, their rights to a fair trial require setting aside their convictions and holding a new trial.
The Supreme Court does not require that the trial court be certain that a retrial after a Brady violation will result in acquittal. What is required, and what this court finds, is that under all the circumstances of this case, there is a reasonable probability that, had the evidence been disclosed, the result of the trial would have been different. Bagley, 473 U.S. at 682.
Therefore, the non-disclosure of exculpatory information in the knowledge of the prosecutor was material in undermining confidence in the guilty verdicts reached against both defendants on both counts, and a new trial must be ordered.
III. Judgment of Acquittal Denied
Finally, this court's finding of a Brady violation requiring a new trial does not determine or imply that the prosecutor knowingly presented perjured testimony from Officer Cottrell. Defendant Galvis has argued that a conviction obtained by the knowing use of false testimony is fundamentally unfair and charges must be set aside or the case dismissed, citing United States v. Agurs, supra; Donnelly v. DeChristoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1973); Giglio v. United States, supra; Miller v. Pate, 386 U.S. 1, 17 L. Ed. 2d 690, 87 S. Ct. 785 (1966); Napue v. Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959); and United States v. Perdomo, supra. In the present case it is not clear that Officer Cottrell offered perjured testimony (since a jury must still decide whether Special Agent Collier's recollection is accurate). Further, there is no indication that AUSA Wigler knew of the Collier information when he presented Officer Cottrell's testimony. Moreover, as explained above, there was ample evidence at trial to support the convictions that were entered, and acquittal with dismissal of charges would be inappropriate. Accordingly, the court denies defendants' motion for judgment of acquittal under Rule 29(c), Fed. R. Crim. P., while granting a new trial to cure Brady violations.