The opinion of the court was delivered by: Carlos Murguia United States District Judge
Defendant moves for a new trial because the government failed to disclose the 2009 theft conviction of an eyewitness and disciplinary letters for two officers involved in defendant's arrest and prosecution (Doc. 95). For the following reasons, the court denies defendant's motion.
The police arrested defendant on March 30, 2010, in the afternoon. At the time of his arrest, he did not have a firearm on his person. But police retrieved a silver revolver from underneath a car near where they arrested defendant. The government subsequently charged defendant with being a felon in possession of a firearm.
At his trial, two eyewitnesses testified that they knew defendant and that they saw him on the afternoon of March 30, 2010, with a silver revolver. The government also offered the testimony of several police officers involved in defendant's arrest and prosecution, forensic evidence establishing that the DNA profile of blood found on the gun matched defendant's DNA, and several admissions made by defendant. Defense counsel argued that none of the police officers saw defendant with a gun, that the retrieved gun was not his, and that the police planted his blood on the gun. The jury found defendant guilty on October 6, 2010.
Defendant filed the instant motion on January 16, 2013, arguing that a new trial is warranted under Federal Rule of Criminal Procedure 33 because the government suppressed three types of impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). A defendant seeking a new trial under Rule 33 based on a Brady violation must establish that (1) the prosecution suppressed evidence, either willfully or inadvertently, (2) the evidence is favorable to the defendant either because it is exculpatory or because it is impeaching, and (3) the evidence is material. Strickler v. Greene, 527 U.S. 263, 281--82 (1999).
First, defendant argues that the government suppressed a 2009 misdemeanor theft conviction for eyewitness Tyda Hall. Defendant contends that he would have used this evidence to impeach Ms. Hall's credibility on cross-examination. The government responds that it did not suppress this evidence because the conviction was unknown to it.
The government's lack of actual knowledge does not automatically protect against a Brady violation. Instead, the prosecution is required to search for and produce exculpatory or impeachment evidence actually or constructively in its knowledge or possession. See Kyles v. Whitley, 514 U.S. 419, 437--38 (1995) (explaining that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case"). This duty is designed to keep the government from intentionally keeping itself ignorant of evidence that is helpful to the defense.
In this case, Ms. Hall has a 2009 misdemeanor theft conviction in Kansas City, Kansas municipal court for shoplifting. This municipal court does not have a publically-available website. This municipal court is not a court of record, which means that there is not an official record of court hearings apart from some cursory notes. And this municipal court did not send Ms. Hall's conviction to the local alert system. Therefore, the government's search of the local alert system did not indicate that she possessed any local convictions. In addition, the government asked Ms. Hall before trial whether she had any truth or veracity convictions, and she reported none. Based on these facts, the government did not intentionally keep itself unaware of this impeachment evidence. See, e.g., Hollman v. Wilson, 158 F.3d 177, 181 (3d Cir. 1998) (finding no Brady violation where prosecutor did not find record of conviction because a clerical error gave the witness two different criminal identification numbers). The court determines that the government did not suppress this evidence.
Second, defendant contends that the government suppressed a disciplinary letter for Officer Mark Palmerin.*fn1 Defendant did not submit a copy of this letter, did not file an affidavit describing the content of the letter, and did not request discovery to obtain the letter. The only evidence before the court concerning the substance of this letter is defendant's vague statement that defense counsel learned during an interview in a different case that Officer Palmerin "received a letter of discipline concerning a matter of credibility which the [g]overnment failed to disclose prior to trial." (Doc. 95 at 2.) Based on the limited evidence before the court, defendant has not shown that this letter satisfies Brady. See Douglas v. Workman, 560 F.3d 1156, 1173 (2009) (explaining that the defendant has the burden of proving a Brady violation). Indeed, the court cannot even conclude that this letter exists.
Third, defendant alleges that the government suppressed two disciplinary letters pertaining to the honesty of Office William Saunders. Defendant explains that it would have used this evidence on cross-examination. Federal Rule of Evidence 608(b) allows a witness to be cross-examined on specific unrelated instances of conduct that reflect on the witness's character for truthfulness, subject to Rule 403 balancing. But neither the letters nor the facts underlying the letters relate to Officer Saunders's truthfulness.
The 1996 disciplinary letter explains that Officer Saunders violated Section 3.22, which states that:
Officers shall always maintain competence in the performance of their duties. The lack of any of the following is evidence of incompetence: courage, honesty, emotional stability, sound judgment, industry, alertness, decisiveness, power to observe, ...