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UNITED STATES v. HANKINS

January 10, 1995

UNITED STATES OF AMERICA,
v.
WILLIAM "Wild Bill" HANKINS and JOHN "Jersey John" HEPBURN, Defendants.



The opinion of the court was delivered by: ALFRED M. WOLIN

 WOLIN, District Judge

 Before the Court is the motion of William Hankins for a new trial pursuant to Federal Rule of Criminal Procedure 33. Mr. Hankins' motion is based on the newly discovered affidavit of Barbara Lovett, a co-conspirator who testified on behalf of the government during the trial. This affidavit was submitted on May 9, 1993, in a civil forfeiture action for a 1989 Ford van. In this affidavit Barbara Lovett states she is the owner of the van and that "the van was never used to facilitate drug transactions in any way. Certainly, it was not done with my consent." (Lovett Affidavit, P 8). However, in her proffer to the government, which was memorialized in a DEA Report, Barbara Lovett testified that she did use the van to pick up drugs. (DEA Report, P 11). As set forth herein, the Court finds that the government violated its duty under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), by failing to search for and disclose this affidavit to the defense during the trial. However, the Court finds that this Brady violation does not undermine the Court's confidence in the jury's verdict so as to warrant a new trial. This affidavit is merely cumulative and impeaching evidence.

 BACKGROUND

 Defendant Hankins was convicted by jury on February 1, 1994, of conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 846. Defendant moved for a new trial on the ground that the prosecution violated his Brady obligation by failing to disclose the affidavit of Barbara Lovett.

 DISCUSSION

 I. Brady Violation

 Under Brady and its progeny, the government has a duty to turn over evidence that is favorable to the defendant, including information that the defendant could use to impeach a government witness. Giglio v. United States, 405 U.S. 150, 153-55, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). A valid Brady complaint contains three elements: (1) the prosecution must suppress or withhold evidence, (2) which is favorable, and (3) material to the defense. Moore v. Illinois, 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972). The prosecution challenges the first element insisting that it did not know of the Barbara Lovett affidavit, which was produced in a civil forfeiture proceeding. *fn1"

 "It is well accepted that a prosecutor's lack of knowledge does not render information unknown for Brady purposes." United States v. Perdomo, 929 F.2d 967 (3d Cir. 1991). The Third Circuit has held that the government has a duty to disclose all information "actually or constructively in its possession or accessible to it." Id. at 970. More recently, the Third Circuit in United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993), defined constructive possession to mean that "although the prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence."

 Courts nationwide have held that prosecutors have an affirmative duty to search files maintained by different branches of government "closely aligned with the prosecutor" in order to fulfil their Brady obligations. United States v. Fairman, 769 F.2d 386, 391 (7th Cir. 1985). In Fairman, the Seventh Circuit held that a prosecutor's Brady obligation extended to a search for a police officer's ballistic report. In United States v. Brooks, 296 U.S. App. D.C. 219, 966 F.2d 1500 (D.C. Cir. 1992), the District of Columbia Court of Appeals held that a prosecutor's Brady obligation extended to a search for files in the possession of the local police department. In United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980) the Fifth Circuit held that a prosecutor's Brady obligation extended to a search for FBI files and National Crime Information Center files. And, in United States v. Deutsch, 475 F.2d 55 (5th Cir. 1973) the Fifth Circuit held that a prosecutor's Brady obligation extended to a search for a personnel file of a Post Office employee.

 Certainly the civil division of the United States Attorney's Office is "closely aligned with the prosecutor." Therefore, it is entirely proper for this Court to require the prosecution to search related files in the civil division of its office in search of Brady material. Such a duty is not only reasonable and consistent with the intent of the Third Circuit in Joseph, but is necessary to fulfill the Supreme Court's mandate in Brady. By placing an affirmative duty on the prosecution to search for Brady material, courts nationwide have recognized that "an inaccurate conviction based on government failure to turn over an easily turned rock is essentially as offensive as one based on government non-disclosure." Brooks, 966 F.2d at 1503.

 Thus, when the government is pursuing both a civil and criminal prosecution against a defendant stemming from the same underlying activity, the government must search both the civil and criminal files in search of exculpatory material. "If disclosure were excused in instances where the prosecution has not sought information readily available to it, we would be inviting and placing a premium on conduct unworthy of representatives of the United States Government." Auten, 632 F.2d at 481.

 In this case, the affidavit of Barbara Lovett was readily available to the United States and could have been used by the defendant to impeach Barbara Lovett during the trial. Therefore, the Court holds that the failure of the government to disclose this affidavit to the defense during the trial constituted a Brady violation.

 The Court's decision today does not violate the rule set forth in Joseph wherein the Third Circuit held that the prosecution had no duty to "search unrelated files to exclude the possibility, however remote, that they contain exculpatory information." 996 F.2d at 41. In the case at bar, we hold only ...


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