October 31, 2013
UNITED STATES, Plaintiff,
TYSHAUN ST. VALLIER, Defendant.
SUSAN D. WIGENTON, District Judge.
Before the Court are the following pending motions filed by defendant, Tyshaun St. Vallier ("Defendant") motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Motion for a New Trial") (Dkt. No. 153); a motion to file an amended motion ("Motion to File Amended Motion") (Dkt. No. 154); and motion for release of Brady materials ("Motion for Brady Materials") (Dkt. No. 163).
For the reasons set forth in this Court's Opinion dated October 31, 2013, Defendant's Motion to File an Amended Motion is GRANTED (as filed) and Defendant's Motion for a New Trial and Motion for Brady Materials are DENIED.
Before the Court are the following pending motions filed by defendant, Tyshaun St. Vallier ("Defendant" or "St. Vallier"): a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 ("Motion for a New Trial") (Dkt. No. 153); a motion to file an amended motion ("Motion to File Amended Motion") (Dkt. No. 154); and a motion for release of Brady materials ("Motion for Brady Materials") (Dkt. No. 163).
For the reasons set forth below, this Court will GRANT Defendant's Motion to File an Amended Motion (as filed), but DENY Defendant's Motion for a New Trial and Motion for Brady Materials.
BACKGROUND AND PROCEDURAL HISTORY
On April 27, 2009, a jury convicted Defendant of Counts One and Two of the Superseding Indictment returned against him, finding that Defendant had conspired to import, and did import, over 500 grams of cocaine from Trinidad. ( See Dkt. Nos. 96, 104.) Ezra McCombs ("McCombs") was a purported coconspirator in the matter.
On or about May 18, 2009, Defendant filed a Motion for a New Trial under Federal Rule of Criminal Procedure 33(b)(2) (Dkt. No. 109), which was denied on July 8, 2009. On August 3, 2009, Defendant was sentenced to a total of 204 months incarceration. On April 26, 2011, Defendant was re-sentenced pursuant to a Third Circuit ruling. Upon resentencing, the length of his sentence remained at 204 months.
On May 1, 2012, Defendant filed the instant Motion for a New Trial. (Dkt. No. 153.) On May 14, 2012, Defendant filed the Motion to File Amended Motion. (Dkt. No. 154.) On May 16, 2012, the Government filed opposition to this motion. (Dkt. No. 155.)
On June 4, 2012, Defendant's former attorney, Michael Paul, Esq. ("Paul"), was reappointed. (Dkt. No. 157.) Paul was later provided funds to hire a private investigator. ( See Dkt. No. 179.) On June 25, 2012, Defendant filed the Motion for Brady Materials. (Dkt. No. 163.) While the Motion for Brady Materials remained pending, Defendant then requested that Paul be relieved of his appointment so that Defendant could proceed pro se. (Dkt. No. 171.) On October 16, 2012, the Court granted Defendant's request to release counsel. (Dkt. No. 172.) On July 17, 2012, the Government filed additional correspondence regarding Defendant's motions. (Dkt. No. 166.)
Defendant claims he is entitled to a new trial on five separate bases relating to what he claims is newly discovered evidence that the U.S. Attorney's Office suppressed. Additionally, Defendant claims that a witness, McCombs, who testified on behalf of the prosecution perjured himself at trial.
On January 15, 2013, Defendant also filed an Application/Petition for investigative services. (Dkt. No. 178.) On February 2, 2013, an order denying Defendant's Application/Petition for Investigative Services was issued: CJA 18:U.S.C.S. 3006A. (Dkt. No. 179.) On October 3, 2013, Defendant filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. ( See No. 13-cv-6118.)
Defendant's instant Rule 33 motion is based on information sent on July 6, 2011 by the U.S. Attorney's Office to Defendant's attorney of record at that time, Paul, and also to the Court regarding Shawn Hudson ("Hudson") ("July 6, 2011 Letter").
Defendant claims he is entitled to relief as a result of the disclosure and asserts that the following bases resulted in a tainted conviction: (1) newly discovered evidence; (2) perjured testimony resulting in a tainted conviction; (3) failure to disclose material evidence timely, a violation of his procedural due process; (4) failure to disclose pre-trial disclosure, a Brady violation; (5) the Government's knowing use of perjured testimony, violating Defendant's due process and right to a fair trial; and (6) additional testimony known to be false relating to Defendant's May 1, 2012 motion. (Def.'s Mot. for New Trial at 3.)
Motions for a new trial should be granted sparingly and only where a failure to do so would result in a miscarriage of justice. United States v. Copple, 24 F.3d 535, 547 (3d Cir. 1994). The Third Circuit has held that a district court may grant a new trial if: (1) evidence is in fact newly discovered, i.e. discovered since the trial; (2) facts are alleged from which the court may infer diligence on the part of the movant; (3) the evidence relied on is more than merely cumulative or impeaching; (4) the evidence is material to the issues involved; and (5) the evidence must be of such nature, that on a new trial, the newly discovered evidence would probably produce an acquittal. United States v. Cimera, 459 F.3d 452, 458 (3d Cir. 2006). The "heavy burden" of proving each of these requirements rests solely on the Defendant. United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000).
Defendant provided his amended arguments for a new trial with the entry of Dkt. No. 154. To the extent that this Court did review Defendant's original submission for a new trial filed May 1, 2012 (Dkt. No. 153) and additional submission filed May 14, 2012 (Dkt. No. 154) the Motion to File an Amended Motion will be granted.
I. MOTION FOR NEW TRIAL
The Government argues that Defendant cannot meet the requirements for a new trial based on the discovery of new evidence. The following was set forth by the Government in the July 6, 2011 Letter, as a result of a May 14, 2010 arrest of Hudson for drug trafficking at JFK International Airport:
On July 27, 2010, Hudson attended a proffer session in the Eastern District of New York where he made statements about McCombs [claiming that Hudson and McCombs, in an instance unrelated to the defendant's smuggling charges, had previously smuggled drugs from abroad. A report of that proffer session, which is attached hereto as Exhibit A, was written on September 1, 2010. The existence of Exhibit A became known to the lead case agent in the St. Vallier prosecution, Special Agent Thomas Sharpe, Immigration and Customs Enforcement, on June 29, 2011[ ].
Hudson was an individual known to [this Office] in connection with the United States v. McCombs et al., prosecution in so far as: (1) following McCombs's and St. Vallier's flight from prosecution in July 2008 and while the two were fugitives, the Government learned that McCombs called a phone number associated with Hudson, and the U.S. Marshals contacted Hudson, who provided assistance that helped lead to the apprehension of McCombs; and (2) according to McCombs, and confirmed by an internal Customs and Border Protection database, Hudson and McCombs traveled together to Jamaica and the United Kingdom.
At St. Vallier's trial, McCombs was asked on both direct and cross examination about the nature of his previous international travel, including the trips taken with Hudson and [he] denied any criminal conduct.
[This Office] does not believe the information of which it became aware last week has any impact on the trial, conviction, sentence or appeal of St. Vallier.
(July 6, 2011 Letter; Gov't Opp'n 7 (referring to Hudson Statement.)
First, the Hudson Statement does not appear to be "newly discovered, " as this letter was sent to Defendant's attorney of record at the time, back in 2011. Second, as discussed below, even if Defendant is able to show that the evidence is "newly discovered" and the court infers diligence on the part of Defendant, the request for a new trial still does not satisfy the three remaining requirements.
The Hudson Statement is Not Exculpatory or Material
The Government asserts that the Hudson Statement, at best, merely impeaches McCombs statements regarding trips with Hudson, but does not point to a wrongful conviction. During trial, McCombs's prior trips abroad were inquired to on direct examination and redirect examination. (Def.'s Mot. for New Trial at 4-6.)
"[L]ong experience has shown that newly discovered evidence that is merely impeaching is unlikely to reveal that there has been a miscarriage of justice." United States v. Quiles, 618 F.3d 383 (3d Cir. 2010). "There must be something more, i.e. a factual link between the heart of the witness's testimony at trial and the new evidence. This link must suggest directly that the defendant was convicted wrongly." Id. The Hudson Statement does not reflect or relate to bias on the part of McCombs. See United States v. McNeill, 887 F.2d 448, 453-54 (3d Cir. 1989). At best, the Hudson Statement would contradict McCombs regarding prior conduct that did not involve Defendant; it would not have undermined the overwhelming majority of evidence that the Government presented as to Defendant's own participation and cocaine trafficking from Trinidad in May of 2007. The Hudson Statement is not material to Defendant's guilt, and therefore Defendant fails to meet the materiality requirement of newly discovered evidence for a new trial.
Probability of Acquittal
Additionally, this Court notes that at trial, the Government produced direct evidence presented through witness testimony of law enforcement agents and cooperating coconspirators; corroborating business records, and pointed to statements and behavior by Defendant. As such, and based on the totality of the record, even if this Court were to recognize the Hudson Statement as "new evidence" it would not meet the fifth requirement for a new trial because this evidence would not be likely to produce an acquittal.
Further, the collateral nature of the "newly discovered evidence" is underscored by the fact that even if Defendant had known about Hudson's statements at trial, and Hudson was prepared to testify to alleged prior incidents of McCombs's conduct, such testimony would not have been admissible under the Federal Rules of Evidence. Specifically, Rule 608(b) prohibits the introduction of extrinsic evidence to prove specific instances of conduct of a witness when the purpose of introducing these acts is to impeach a witness's character for veracity. United States v. Simmons, 591 F.2d 206 (3d Cir. 1979); see also Deary v. City of Gloucester, 9 F.3d 191, 197 (1st Cir. 1993).
Whether the Government Suborned Perjury
Defendant claims that the Government failed to investigate its primary witness during cooperation and argued from false evidence, and that is tantamount to suborning perjury. (Mot. for New Trial at 13.) Based on a review of the record, this Court does not see any indication that the Government suborned perjury.
As discussed below, the Government is bound by Brady and Giglio requirements. Defendant implies that it is the Government's duty "to investigate" a lay witness like McCombs. (Def.'s Mot. to Amend., Dkt. No. 154 at 16.) Other courts have denied these requests and found no duty. See e.g., United States v. Grossman, No. 02-CR-678, F.Supp.2d, 2003 WL 22432946, at *2 (N.D. Ill. 2003) (internal citation omitted) ("Brady and its progeny do not require the government to conduct an investigation for the defense."). Further, the Government asserts the following: (1) the Government was not able to procure any international Trinidadian phone records which the Defendant alleges would prove his alternative theory of "Trini;" and (2) the Government did not learn of Hudson's Statements until the summer of 2011. ( See Gov't Opp'n.) Defendant's disagreement with or unsupported belief that, in light of statements by another drug smuggler, certain testimony was false does not rise to the level of the Government suborning perjury. See Lambert v. Blackwell, 387 F.3d 210, 249 (3d Cir. 2004) (noting that discrepancy alone is not enough to prove perjury) (citing United States v. Payne, 940 F.2d 286, 291 (8th Cir. 1991) (mere challenge to witness's testimony by another witness does not establish perjury)).
II. MOTION FOR BRADY MATERIALS
Brady or Due Process Violations
The government must disclose evidence which is both favorable to the accused and material either to guilt or punishment. United States v. Bagley, 473 U.S. 667, 647 (1985) (citing Brady v. Maryland, 373 U.S. 83 (1963)). In Brady v. Maryland , the Supreme Court held that it is a violation of due process for a prosecutor to suppress evidence favorable to a defendant "where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. The government must also disclose any evidence that could be used to impeach a prosecution witness. Id. at 677. A defendant is entitled to a new trial when: (1) the prosecution suppresses evidence; (2) the evidence is favorable to the defendant because of its impeachment or exculpatory value; and (3) the nondisclosure prejudiced the defendant because the evidence was material. Stickler v. Greene, 527 U.S. 263, 281-82 (1999). "The question is not whether the defendant would have more likely received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 289-90.
Here, Defendant argues that his due process rights were violated by the Government failing to disclose material Brady evidence in the form of the Hudson Statement. ( See Dkt. No. 154, 163.) Defendant requests "discovery pursuant to Rule 16, Rule 26.2, Jencks Act, Brady v. Maryland and Giglio v. United States. " (Dkt. No. 163 at 1.) Specifically, Defendant made a "new request for Brady material related to his co-defendants, Charisse LaRoche and Ezra McCombs, as well as Brady material related to Shawn Hudson."
Defendant's assertion is based on the premise that the government knew about Hudson's 2010 arrest, much less his statements in another district before the summer of 2011, and that the government suppressed the evidence, meeting the threshold prong of the Brady analysis. However, the Government learned of Hudson's 2010 arrest on June 27, 2011, after notification that another law enforcement agent had queried a database on the Defendant's conspiracy case. (July 6, 2011 Letter; Gov't Opp'n 7.) Based on the record, when the Government learned of the Hudson Statement in July 2011, it disclosed the evidence.
The Government knew of Hudson only as an individual whom: (1) McCombs stated he was one of several individuals, including his girlfriend, with whom he had traveled for pleasure with in the past; and (2) the U.S. Marshals contacted based on phone data during their attempts to apprehend McCombs following Defendant's flight from prosecution. ( See Gov't Opp'n.) Hudson was not interviewed by Immigration and Customs Enforcement or the U.S. Attorney's Office before or after the trial, and therefore there was no information to provide to Defendant prior to trial. See United States v. Fisher, 126 Fed.Appx. 71, 74 (3rd Cir. 2005) (citing United States v. Bernard, 625 F.2d 854, 859-60 (9th Cir. 1980) (stating that the government is under no obligation to provide information that does not exist and is not required to record everything a potential witness says)). Thus, there was no suppression of exculpatory or favorable information relating to Hudson.
Further, in this matter, Defendant would not be entitled to relief because the information does not meet the materiality requirement even if the information was deemed favorable for its impeachment value, and the information was known before the trial. First, "a court will not reverse a conviction for a Brady violation unless the undisclosed evidence undermines the confidence in the verdict." United States v. Hector, No. CR 04-00860 DDP, 2008 U.S. Dist. LEXIS 38214, at *33 (C.D. Cal. 2008); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995). Second, the Government's claim that it learned of the Hudson Statement after Defendant's conviction and a Brady analysis is limited to evidence known at the time of the trial. See United States v. Dimas, 3F.3d 1015, 1019 (1993). Thus, this Court denies Defendant's Motion for Brady Materials.
For the reasons provided above, Defendant's Motion to File an Amended Motion is GRANTED as specified, but Defendant's Motion for a New Trial and Motion for Brady Materials are DENIED.