could have made the difference between conviction and acquittal for Patrick.
The undisclosed documents that defendant refers to have significant impeachment value. For example, Exhibit 7 is a letter from Nugent to Liebman advising that the tires to Mood's vehicle were suspiciously being flattened. Exhibit 9 was a letter from Nugent to Liebman wherein Nugent states that he was "looking forward to cross-examining Dr. Patrick." With this statement, defendant could have argued, through this cross-examination of the Mood, that Nugent was referring to his prior threats to reveal alleged illegal conduct to the racing commission. Defense counsel could have used these documents at trial on cross-examination to demonstrate the deep felt hostility between Mood and Patrick in the course of the civil suit. This cross-examination would have put into question Mood's testimony that she did not testify with the hope that Patrick would be convicted and removed as a competitor from the race track.
The Court also finds that exhibits 20, 22 and 27 contain significant impeachment value. At trial, Mood testified that she did not give any part of her testimony "in the hope that Dr. Patrick would be convicted and removed as one of her competitors for clients at the race track." (T. 2/24/97 at 63).
Mood also testified that when her employment with Patrick was terminated that she walked around the race track merely to say good-bye to the trainers she had worked with and that she did not make these rounds with the intent of being employed by any of Patrick's clients. (T. 2/24/97 at 51). The inference being that there was no attempt by her to solicit Patrick's clients, and that it would not affect her financially if Patrick remained an active veterinarian at the race track.
Exhibits 20, 22 and 27 could have been used to directly impeach Mood's testimony with respect to these areas. To begin, exhibit 27 documents the financial hardship that the restrictive covenant had placed on Mood and demonstrates Mood's refusal to stop working for and soliciting Patrick's clients. Exhibit 20 indicates that Mood would be able to continue to passively solicit Patrick's clients. Exhibit 22 expressly demonstrates that Mood was concerned about her ability to actively solicit Patrick's clients in that active solicitation is how a veterinarian makes a living. Exhibit 22 also advises Mood, in an attempt to address Mood's concerns with respect to active solicitation, that Mood could still work for any of Patrick's clients as long as she did not attempt to steal them. It is clear that Patrick could have used these exhibits to impeach Mood by demonstrating that Mood's firing by Patrick placed her under a financial hardship. In addition, these documents could have been used to impeach Mood's testimony that she did not give any of her testimony in the hope that Patrick was removed as a competitor from the track or that she did not attempt to steal Patrick's clients. In sum, these documents provided Patrick with valuable impeachment material.
Finally, the Court finds that Patrick could have effectively used exhibit 18 to impeach Mood at trial. Exhibit 18 is a letter of June 22, 1990 from Nugent to Mood in which Nugent inquires about the identity of a veterinarian's involvement with steroid distribution in light of a news article on the subject. Although the government argues that this letter is consistent with Mood's trial testimony, the Court finds to the contrary. At trial, Mood testified that she learned of Patrick's alleged involvement with the sale of steroids from Patrick's assistant. However, Patrick was able to effectively refute Mood's testimony by calling Patrick's assistant who testified that he never told Mood that Patrick was involved in the sale of steroids. Based on this testimony, the government argues that exhibit 18 does not provide any additional impeachment material in light of the assistant's testimony. Despite the assistant's testimony, the Court finds that exhibit 18 does provide information that could have been used to impeach Mood.
If Patrick had use of the letter of June 22, 1990, he could have used it to demonstrate that Mood may not have first learned of Patrick's involvement with steroids from Patrick's assistant. Not only would the jury then have had before it the assistant's testimony, it would have also had evidence that Mood's attorney might have planted the first seed of Patrick's steroid involvement in Mood's head. This evidence would have supported defendant's contention that Mood had ulterior motives in testifying against Patrick and that Mood's animosity against Patrick had manifested itself in different ways, including an attempt by Mood to implicate Patrick in a criminal scheme to distribute steroids. Thus, the Court finds that exhibit 18 could have also been used to impeach the testimony of Mood.
In sum, the Court finds that Patrick has established a Brady error that requires a new trial because there exists a reasonable probability that the outcome of Patrick's trial would have been different if he had the use of the documents that the government failed to disclose. As stated above, Patrick's conviction was supported by anything but overwhelming evidence. When it is considered that the government failed to disclose documents that provided valuable impeachment material to defendant of a critical prosecution witness, confidence in the outcome of Patrick's trial is severely undermined. Thus, in the interests of justice and in order to protect Patrick's right to a fair trial, the Court must order a new trial based on a violation of Brady and its progeny.
Accordingly, for the foregoing reasons, the Court will deny defendant's motion for judgment of acquittal, and in the alternative, motion for arrest of judgment. The Court, however, will grant defendant's motion for a new trial.
An appropriate Order so follows.
Clarence C. Newcomer, J.
AND NOW, this day of October, 1997, upon consideration of defendant's Motion for Judgment of Acquittal, and in the Alternative, Motion for Arrest of Judgment or for a New Trial Pursuant to Rules 29(c), 33 and 34 of the Federal Rules of Criminal Procedure, and the government's response thereto, and defendant's reply and supplemental brief in support of post-verdict relief thereto, and the government's response thereto, and defendant's reply thereto, it is hereby ORDERED that defendant's Motions for Judgment of Acquittal and for Arrest of Judgment are DENIED and that defendant's Motion for a New Trial is GRANTED.
AND IT IS SO ORDERED.
Clarence C. Newcomer, J.