On Appeal from the District Court of the Virgin Islands (Division of St. Thomas and St. John). (D.C. Crim. Nos. 89-139-1/3).
Before: Greenberg, Scirica, and Garth, Circuit Judges.
GREENBERG, Circuit Judge.
These appeals cause us to consider the circumstances in which Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), requires prosecutors to search their files for exculpatory information. Appellants Theodore Joseph and Leroy Davis maintain that they were denied due process of law because the prosecutor at their criminal trial did not disclose exculpatory information that was in the file of an unrelated case which he also was prosecuting. The appellants concede that they made only a general request for Brady materials and therefore did not ask specifically for the type of information which would have included the undisclosed materials. Nevertheless, they urge that the prosecutor should have supplied them with the materials. We reject appellants' contention because they were obliged to establish that the prosecutor had actual knowledge of the Brady materials or that the prosecutor should have known of the existence of such materials in the related case. Neither showing was made.
The appellants raise the Brady issue on an appeal from a July 28, 1992 order of the district court denying their motions for judgment of acquittal or a new trial.*fn1 While the district court's opinion on those motions and our opinion dismissing the appellants' earlier premature appeals describe the background of this case, see United States v. Joseph, 800 F. Supp. 1303 (D.V.I. 1992); United States v. Davis, 924 F.2d 501 (3d Cir. 1991), we nevertheless summarize the relevant facts.*fn2
Joseph, Davis, and Vernon Nesbitt were arrested on September 6, 1989, at or about 8:00 p.m., when the Narcotics Strike Force of the Virgin Islands Department of Justice, with help from the Virgin Islands Police Department, raided the Quality Grain Feed Shop on St. Thomas. During the raid, the agents seized two weapons and crack cocaine. Earlier that evening, Narcotics Strike Force Agent Lawrence Olive surveyed the feed shop from a "gut" across the street. Olive testified that he began his surveillance between 6:00 and 6:30 p.m. During his surveillance, Olive observed what he thought were two drug transactions involving Joseph, and one involving Davis. When Olive saw Joseph and Davis heading toward their vehicles, he radioed Narcotics Strike Force Agent Carl Charleswell for assistance. Charleswell then arrived at the scene with several officers from the Virgin Islands Police Department, and the raid ensued.
On September 11, 1989, the United States Attorney filed an information in the district court charging Joseph, Davis, and Nesbitt with the following offenses: (1) conspiracy to possess cocaine base with intent to distribute in violation of 21 U.S.C. § 846; (2) possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1); (3) use of a firearm, a submachine gun, during and in relation to a drug crime in violation of 18 U.S.C. § 924(c); and (4) use of a firearm, a semiautomatic pistol, during and in relation to a drug crime in violation of 18 U.S.C. § 924(c). At a four-day jury trial between December 11 and December 14, 1989, Joseph and Davis were found guilty on all four counts while Nesbitt was acquitted completely.
On December 19, 1989, Joseph moved for a judgment of acquittal or a new trial. Then in January 1990 Joseph's attorney discovered reports and affidavits of Agents Olive and Charleswell made in connection with an unrelated case against Carlton Lee which placed them on the other side of St. Thomas between 6:00 and 6:30 p.m on the night Joseph and Davis were arrested. Accordingly, at the scheduled sentencing hearing on March 7, 1990, the appellants moved for a continuance and for an evidentiary hearing because of a possible Brady violation. Despite the pending motions, the district court sentenced Joseph and Davis who then appealed to this court. We dismissed their appeals, explaining that we lacked jurisdiction because of the pending motions in the district court. See United States v. Davis, 924 F.2d at 506.
On November 19 and 20, 1991, the district court held an evidentiary hearing to consider the material discovered by Joseph's attorney. At the hearing, the Acting Director of the Narcotics Strike Force, Rupert Tuckett, testified that Olive and Charleswell did not begin their surveillance of the feed shop until 7:00 or 7:15 p.m., following the Conclusion of their investigation of Carlton Lee. This testimony was consistent with that of several defense witnesses who testified at trial that Joseph was at places other than the feed shop until after 7:00 p.m. But the critical evidence supplied at the hearing came from the prosecutor for he explained that although he prosecuted both appellants' and Lee's cases, he was unaware of the conflict between Olive's trial testimony and the reports and affidavits in the Lee case until after the jury returned the verdicts in the case against Joseph, Davis, and Nesbitt. The district court believed the prosecutor's testimony, finding that he did not have actual knowledge of the conflict in the times when the appellants were on trial. 800 F. Supp. at 1308. Accordingly, it denied the appellants' motions for a new trial. They then appealed from the judgments of conviction and sentence and the order denying their motions for a new trial. We have jurisdiction pursuant to 28 U.S.C. § 1291.*fn3