On Appeal from the United States District Court of the Virgin Islands; D.C. Criminal No. 89-00154.
Greenberg, Cowen and Higginbotham,*fn* Circuit Judges.
HIGGINBOTHAM, JR., Circuit Judge
Appellant, Juan Perdomo, was convicted on cocaine possession charges in the District Court of the Virgin Islands. He appeals the denial of his motion for a judgment of acquittal or, in the alternative, a new trial. He asserts that his Fifth Amendment right to due process as set forth in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) was denied when the prosecutor, an Assistant United States Attorney, failed to provide his defense counsel with favorable and material information regarding the prior criminal record of the prosecution's main witness. We agree that the prosecution's failure to disclose constituted a Brady violation and will vacate the district court's order which denied appellant's motion for a judgment of acquittal, or in the alternative, a new trial.*fn1
On October 17, 1989, Juan Perdomo was arrested in St. Thomas by Narcotics Strike Force officers and charged in connection with cocaine that he was alleged to have sold, approximately one month earlier, to a paid government informant, Hector Soto. At trial Soto, recounted the facts of the drug transaction and established that Perdomo had sold him "an eighth" (2 1/2 to 3 1/2 grams) of cocaine for $225. (App. at 121, 146). It was also established by other testimony that the transaction occurred in the area between "Smitty's" Bar and Perdomo's apartment building which is approximately 397 feet from the Evelyn Marcelli Elementary School. (App. at 126-29). On November 29, 1989, the jury found Perdomo guilty of three offenses as charged: possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1); distribution of cocaine in violation of 21 U.S.C. § 841(a)(1); and distribution of cocaine within 1000 feet of a school in violation of 21 U.S.C. § 845a(a).
Prior to trial, defense counsel submitted two written requests for any information relating to the criminal background of any prosecution witnesses. The prosecution responded that its key witness, the government informant Hector Soto, did not have a criminal record. (App. at 23). On the day following the return of the jury verdict, it came to light that Soto had a prior arrest and conviction record.*fn2 (App. at 14-15). Following the discovery that a criminal record existed, appellant filed a motion for a judgment of acquittal or, in the alternative, for a new trial on December 20, 1989. He argued that the prosecutor's failure to disclose this information denied him his Fifth Amendment right to due process of law as guaranteed by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) because the information was not available to defense counsel at trial. These allegations were considered by the district court at Perdomo's sentencing hearing on February 7, 1990.*fn3 During the hearing, the government argued that a National Crime Information Center ("NCIC") computer check conducted prior to trial had not turned up a criminal record and therefore, the prosecutor could not be responsible for withholding the information. Throughout the discussion, the district court made several findings and subsequently ruled from the bench. The court found, inter alia, that the jury had an opportunity to evaluate the informant's credibility from other damaging testimony that had been elicited during trial concerning Soto's receipt of government payments and his prior drug usage. (App. at 27). The court also found that the Government had not suppressed Soto's prior record and that the prosecution's failure to learn of the record could not "in any way [be] determined [a] material suppression of exculpatory evidence." (App. at 30). In addition, the court charged the Office of the Public Defender with knowledge of Soto's criminal record because that office had represented Soto in a prior criminal proceeding. Consequently, the court found that no Brady violation had occurred and denied the motion. (App. at 29, 31). Appellant was sentenced to 14 months imprisonment and six years supervised release. (App. at 54).*fn4
We turn now to review appellant's argument that the trial court abused its discretion when it denied the motion for a new trial. Ordinarily we review a district court's ruling on a motion for new trial on the basis of newly discovered evidence for abuse of discretion. See e.g., Government of Virgin Islands v. Lima, 774 F.2d 1245 (3d Cir. 1985). Because a Brady claim presents questions of law as well as questions of fact, we will conduct a de novo review of the district court's conclusions of law as well as a "clearly erroneous" review of any findings of fact where appropriate. See e.g., Carter v. Rafferty, 826 F.2d 1299, 1306 (3d Cir. 1987).
Appellant argues that the prosecution's failure to provide defendant with information regarding the government informant's prior criminal record constituted a violation of his right to due process under Brady v. Maryland. Brady provides that the suppression by the prosecution of evidence favorable to an accused, upon request by the defense, violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87. This rule was modified in United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) to require a prosecutor to disclose exculpatory evidence even when there has not been a request for the information by the defense.
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 government challenges the first element, insisting that it could not suppress or withhold evidence that was unknown or unavailable to it. According to the Assistant U.S. Attorney, he conducted an NCIC computer search for criminal background information on Hector Soto which turned up no criminal records. Appellant argues, on the other hand, that the prosecutor's decision not to request a Virgin Islands criminal history check means that the information was available to the prosecution team and was withheld or suppressed from the defense. In considering a potential Brady violation and considering whether the prosecution is responsible, the Fifth Circuit has refused "to draw a distinction between different agencies under the same government, focusing instead upon the 'prosecution team' which includes both investigative and prosecutorial personnel." See United States v. Antone, 603 F.2d 566 (5th Cir. 1979). Appellant's argument is that our inquiry into the prosecution's knowledge need not stop at the prosecutor himself but should also extend to whether any of the Narcotics Strike Force police officers knew of Soto's criminal background. We agree that a court's inquiry should not be limited to only the prosecutor's complicity and adopt the Fifth Circuit's approach.
A. Suppression of Evidence
We agree with the appellant that the prosecution's failure to conduct a search of local Virgin Islands records to verify Soto's criminal background meets the first element of a valid Brady complaint. It is well accepted that a prosecutor's lack of knowledge does not render information unknown for Brady purposes. The Fifth Circuit has spoken the most often on this issue and has declined to excuse non-disclosure in instances where the prosecution has not sought out information readily available to it. See United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980). In Auten, the appellant argued that his motion for a new trial should have been granted because the prosecution failed to disclose that one of its key witnesses had been convicted more than once. The prosecution argued that it did not withhold or suppress evidence because the information was unknown to it. The prosecutor had chosen not to run an NCIC check on the witness because of the shortness of time. The court held that the prosecutor's lack of knowledge was not an excuse for a Brady violation. "In the interests of inherent fairness," the prosecution is obligated to produce certain evidence actually or constructively in its possession or accessible to it. Auten, 632 F.2d at 481 (quoting Calley v. Callaway, 519 F.2d 184, 223 (5th Cir. 1975)). To do otherwise would be "inviting and placing a premium on conduct unworthy of representatives of the United States Government." Id.
We agree with and adopt the reasoning of the Fifth Circuit. In the instant case, the prosecutor's argument that he did not have any knowledge of Hector Soto's criminal history is without merit. The prosecutor was obliged to produce information regarding Soto's background because such information was available to him. In view of the fact that local Virgin Islands arrests and convictions are not recorded in the NCIC database, (see Perdomo Br. at 10) it is apparent to this court that the computer search was merely a token effort. Such an ...