No. S1 99 Cr. 338 (RWS).
January 11, 2001.
HONORABLE MARY JO WHITE United States Attorney for the Southern District of New York Attorney for United States of America, New York, NY. By: KIM A. BERGER, ESQ., MEIR FEDER, ESQ. Assistant US Attorneys Of Counsel
STEWART ORDEN, ESQ. Attorney for Defendant Franklin Sanchez, New York, NY.
ROBERT BLOSSNER, ESQ. Attorney for Defendant Brent Birkett, New York, NY.
Defendants Brent Birkett ("Brent") and Franklin Sanchez ("Sanchez") have moved pursuant to Rule 33, Fed.R.Crim.P., to set aside the jury verdict and to grant a new trial in light of newly discovered evidence. For the reasons set forth below, the motion is denied.
A superseding indictment was filed on September 24, 1999, charging Birkett, Sanchez, and ten other defendants with participating in a conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base, in a form known as "crack," in violation of 21 U.S.C. § 812, 841(a)(1), 841(b)(1)(A), and 846.
Trial against Birkett and Sanchez ("the defendants") began on May 15, 2000. The government presented evidence that the defendants had run a crack cocaine business nicknamed "the Purple Crew" out of the courtyard of an apartment building on West 144th St. in Manhattan from 1994 through 1999. (Tr. 53-54, 57, 229-232, 338-40, 248.) Briefly, the government's evidence showed that the defendants were the leaders of a crack cocaine business and employed a number of workers, including "couriers," who transported cocaine from their suppliers to the stash houses for "cooking" and "bagging" and delivery; "pitchers," who sold bags of crack in amounts of up to $2,000 per day; and managers or lieutenants, who ensured a ready supply of cocaine and to account for cash proceeds each day. The evidence showed that the conspiracy sold approximately $10,000 of crack cocaine each day during the height of operations in 1997 and 1998. (Tr. 68.)
The government introduced testimony from an accomplice, James Clyburn, a street seller turned manager, who testified about his work for the defendants and their rate of sales. (Tr. 44-186.) In addition, the government also presented: (1) testimony of two other accomplices, Randoph Helvy and William Martin (Tr. 224-317, 328-427); (2) the guilty plea allocutions of six other of the defendants' accomplices; (3) the defendants' post-arrest statements, which evidenced knowledge of the impending arrest and of the investigation (Tr. 424-25, 446-47); (4) videotapes of the defendants' employees engaged in hand-to-hand transactions with customers in the courtyard, as well as entering and exiting the buildings in which their "stash houses" were located; (5) the testimony of an undercover police officer who purchased crack cocaine on a number of occasions from the defendants' sellers; (6) the testimony of New York Police Department ("NYPD") officers who conducted surveillance of the defendants during the course of the conspiracy; (7) cocaine and drug paraphernalia seized from a stash house used by the defendants; and (8) telephone records demonstrating that Sanchez and Birkett were in constant communication with one another and with their workers during the course of the conspiracy.
Neither Birkett nor Sanchez presented a defense. Attorneys for both defendants focused their summations on the testimony of the three accomplice witnesses, Clyburn, Helvy and Martin. The defense contended that Clyburn was the ringleader of a plan to fabricate testimony that Birkett and Sanchez had been the leaders of the organization, in the hopes of receiving reduced sentences. They argued that this plan had been hatched while all three men had been housed at FCI-Otisville prior to trial, and perhaps as early as 1998, when Clyburn had first been arrested and foresaw an impending arrest at 144th Street. (Tr. 585-65, 596, 612, 623-24, 626.) In rebuttal, the government emphasized that substantial evidence corroborated the testimony of Clyburn, Helvy and Martin. (Tr. 643-653.)
The jury returned a verdict of guilty with respect to both defendants on May 19, 2000. By motion of September 29, 2000, Birkett and Sanchez moved to set aside the verdict and grant a new trial on the basis of two handwritten letters purportedly written by Clyburn before the trial, that they contend are inconsistent with material portions of Clyburn's testimony and show that Clyburn knew that the government had targeted them and had urged his codefendants to testify against Birkett and Sanchez, both to "get" them, and to mitigate the co-defendants' own punishment. (Affirmation of counsel in Support of Motion to Set Aside Verdict ("Aff.") at ¶¶ 4, 7.) The government filed a brief in opposition to the motion on December 6, 2000. Oral argument was heard the same day, whereupon the motion was deemed fully submitted.
Discussion I. Legal Standard for Setting Aside a Guilty Verdict and Granting a New Trial Pursuant to Rule 33
A trial court may grant a defendant's motion for a new trial on the basis of newly discovered evidence any time within three years of the verdict, "if the interests of justice so require." Fed.R.Crim.P. 33. Rule 33 motions are "disfavored" in the Second Circuit, United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995), cert. denied, 517 U.S. 1187 (1996), and, as a general rule, should be granted "only if the newly-discovered evidence could not have been discovered, exercising due diligence, before or during trial, and that evidence `is so material and non-cumulative that its admission would probably lead to an acquittal.'"United States v. Gallego, 191 F.3d 156, 161 (2d Cir. 1999) (quoting United States v. Siddigi, 959 F.2d 1167, 1173 (2d Cir. 1992) (additional citation and internal quotation omitted)); see. e.g., United States v. Zagari, 111 F.3d 307, 322 (2d Cir. 1997); United States v. Sasso, 59 F.3d 341, 350 (2d Cir. 1995); United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645, 128 L.Ed.2d 365 (1994); United States v. Spencer, 4 F.3d 115, 118-19 (2d Cir. 1993); United States v. White, 972 F.2d 16, 20-21 (2d Cir.), cert. denied, 506 U.S. 1026 (1992).
However, a more lenient standard may apply where, as here, the defendant alleges that the newly discovered evidence proves that a government witness committed perjury during the trial. Gallego, 191 F.3d at 161. In these circumstances, the trial court must first consider "the materiality of the perjury to the jury's verdict and the extent to which the prosecution was aware of the perjury." United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991). If the government knew or should have known about the perjury, reversal must be "virtually automatic" as long as "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Gallego, 191 F.3d at 161 (quoting Wallach, 935 F.2d at 456). If the government did not know of the perjury, the conviction may be set aside "only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." Id. (Citation, internal quotations and bracketing omitted).
II. The New Evidence Presented Does Not Warrant A New Trial A. The "Jazz" Letters
The defense brought the instant motion after receiving two handwritten letters written by a person going by the name of "Jazzy," or "Jazz," which apparently were sent to Birkett's wife by the wife or girlfriend of "Dash," an inmate to whom one of the letters was addressed, after he was transferred from FCI Otisville to his designated facility. For the purposes of this motion, the government assumes the letters were written by Clyburn, and that they are authentic. The Court will do the same.
The first letter, addressed to "Bucky," was dated March 10, 2000, when the co-defendants were housed at FCI-Otisville before the trial. The defendants highlight portions of the letter which, they contend, support their theory that Clyburn framed them and recruited other codefendants to help him do so, and then perjured himself by denying that theory during cross-examination. In relevant part, the March 10, 2000 letter states:
You know you see some shit go down that you don't wanna see but shit happens. Right now Im looking at mad time. And that shit is very real. Now how real is that. But on the all in all we got shit on smash up in here. Well I know that a nigga name is ringing mad bells out there but I cant stress that right now I aint there . . . Niggaz is doing shit in here and you really know whats going on yall only know half the story and one day you'll here the real story and youll be surprised. . . .
March 10, 2000 Letter.
It is unclear how this letter supports the defense's argument. As the government notes, this letter does not include even a suggestion that Clyburn intended to frame Birkett and Sanchez as the leaders of the organization, or urge "Bucky" to testify against them. Gov't Br. at 9.
The second letter is undated, but defendants argue that the Court should assume that it was written contemporaneously with the first, while the codefendants were at FCI-Otisville awaiting trial. This letter is to "Dash" from "Jazz" and is set forth in its entirety as follows:
What's the deal Nigga? Anyway I miss you to. But Im in a rush so listen. I'm sorry for that shit I did but a nigga gotta do what he gotta do. A yo on some real shit. What's the deal son. I heard they offering you made time in all. But it's up to you if you wanna do yo thing. Holla at me let me know something I can help. Anyway son I gotta go Im in a rush but think about it They don't want you they want Son + Black. Not us.
Well holla back son and I got made love for ya.
Yo lets get them! Come to the door at 8:00 pm.
Letter to Dash.
The defense, asserting that "Son" is Sanchez and "Black" is Birkett, contend that this letter confirms that Clyburn knew that the government was targeting them as the leaders of the conspiracy ("They want Son + Black. Not us."), and provides proof that he attempted to enlist others to "get them" by testifying against Birkett and Sanchez in support of the government's theory. The government argues that there is no evidence as to the identity of "Dash," that the letter provides no evidence that Clyburn conspired to frame Birkett and Sanchez by offering false testimony, and that there is no reason to construe "let's get them" as a reference to Birkett and Sanchez.
The defendants' interpretation of the letters, if accepted, would directly contradict Clyburn's trial testimony that he did not know whom the investigation was focused on and had not attempted to enlist anyone to point the finger at Birkett and Sanchez. Therefore, the more lenient Rule 33 standard for newly discovered evidence of perjured testimony applies. However, there is no allegation that the government had any knowledge of this evidence, or that it should have known. Therefore, the Court must assess the materiality of the letters and whether, if they had been introduced at trial, the outcome would have been different. See Gallego, 191 F.3d at 161.
B. Introducing the Letters Would Not Have Changed The Outcome of the Trial
The materiality and outcome inquiries are interrelated. Evidence is material "if it could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996) (quoting Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995)). Impeachment evidence is material if the witness whose testimony it would undermine provided the only link between the defendants and the crime, or if its "likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." Id. (quoting United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995)). However, if the impeachment evidence would merely corroborate additional evidence bearing negatively on a witness's credibility, it is not material and a new trial need not be ordered. Id.
Clyburn testified pursuant to a plea agreement, which the defense used to attack his credibility at trial by imputing a motive to lie. The newly discovered letters, if the defense theory is accepted, would provide proof that Clyburn falsely targeted Birkett and Sanchez, and encouraged at least one other person to do so, in order to receive a favorable cooperation agreement.
Yet this evidence would merely corroborate evidence already available to the defense, and, when viewed against the weight of the government's evidence, is not sufficient to warrant a new trial. See Payne, 63 F.3d at 1210. Absent Clyburn's testimony (assuming it would have been "cancelled out" by the introduction of the letters), the government still had the testimony of two other codefendants, Helvy and Martin, who described the operation from within, and Birkett and Sanchez as the organization's leaders.
Even if the testimony of all three of these accomplices were set aside, the government presented more than sufficient proof that the defendants are guilty of the crimes charged beyond a reasonable doubt. The guilty plea allocutions of six other accomplices established the existence of a conspiracy, its scope, purpose, and location. Videotapes of drug sales in the courtyard and the testimony of an undercover NYPD officer who purchased crack cocaine from the organization, and testimony regarding surveillance of the defendants, provided additional proof of their membership in the conspiracy. The defendants' own post-arrest statements provided evidence that they had knowledge of the investigation and of their impending arrest — knowledge that inferred membership in the conspiracy — and cocaine and drug paraphernalia seized from a stash house proved to have been used by defendants tied them directly to the crime. Finally, the nexus between Birkett, Sanchez, and the conspiracy was solidified with telephone records that established that the defendants were in constant communication with one another and with their workers during the course of the conspiracy.
The rule in the Second Circuit is that "[t]he existence of — and a particular defendant's participation in — a conspiracy may be established entirely by circumstantial evidence." United States v. Desimone, 119 F.3d 217, 223 (2d Cir. 1997), cert. denied, 525 U.S. 874 (1998); see also United States v. Diaz, 176 F.3d 52, 96 (2d Cir. 1999) (because a narcotics conspiracy is "by its very nature a secretive operation, . . . the existence of, and a particular defendant's participation in, a conspiracy may be established through circumstantial evidence.") (citations and internal quotation omitted). Moreover, "that once a conspiracy is shown to exist, the evidence sufficient to link another defendant to it need not be overwhelming." Id. (citing United States v. Amato, 15 F.3d 230, 235 (2d Cir. 1994) (internal quotations and additional citations omitted).
In this case, the government introduced not only circumstantial proof, but hard evidence of the existence of the conspiracy, and sufficient evidence based upon surveillance, telephone records, and the defendants' own statements, from which a rational jury could infer the defendants' knowledge of and membership in it, beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979)
In sum, there is no reason to believe that the jury's verdict would have been different even if the letters had been introduced at trial. A new trial is not warranted.
For the foregoing reasons, the Rule 33 motion is denied.
It is so ordered.