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United States v. McIntosh

February 7, 2006

UNITED STATES OF AMERICA
v.
ANTONIO MCINTOSH, A/K/A "DON" AND DOMONIQUE HAYNES, A/K/A "BLACK," DEFENDANTS.



The opinion of the court was delivered by: James F. McClure, Jr. United States District Court

MEMORANDUM

BACKGROUND

Defendants Domonique Haynes and Antonio McIntosh, among others, were charged with various drug offenses*fn1 by way of superceding indictment dated March 25, 2004. Haynes and McIntosh stood trial for the charges. A jury was selected on May 2, 2005, and the trial concluded on May 12, 2005. On May 12, 2005, both defendants were found guilty on all charges by the jury. Haynes and McIntosh have now moved for a new trial.

Haynes timely filed his first motion for a new trial on May 18, 2005 (Rec. Doc. No. 426) and a supplemental motion for a new trial on May 26, 2005 (Rec. Doc. No. 432). On August 3, 2005, McIntosh submitted a motion to join Haynes's supplemental motion for a new trial. (Rec. Doc. No. 457.) We granted the unopposed motion of McIntosh, construing the challenge as based on "newly discovered evidence" in the form of Brady violations. (Rec. Doc. No. 458.) We granted the government's motion to file one consolidated brief in response to the defendants' joint motions. (Rec. Doc. No. 461.) McIntosh filed an amended brief in support of his motion for a new trial on October 7, 2005. (Rec. Doc. No. 472.) After a series of extensions, the government filed its response and brief in opposition to the defendants' motions for a new trial. (Rec. Doc. No. 478.) McIntosh filed a renewed motion for a new trial on January 10, 2006. (Rec. Doc. No. 488.) We will consider the defendants' motions together and examine each argument as applicable to both Haynes and McIntosh.

The defendants raise a number of arguments in support of their motions for a new trial. First, they argue that the government violated the teachings of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny by failing to provide the complete criminal history of government witness Edward Edmonds. The defendants also argue that the government violated Brady by wholly failing to provide the criminal history of government witness Gene Williams (the defendants were given the criminal history of a different man named Gene Williams).

Second, Haynes and McIntosh allege violations of their rights under the Confrontation Clause of the Sixth Amendment. Defendants argue that the government's suppression of accurate criminal records for Edmonds and Williams significantly impacted their ability to confront the witnesses against them. They also argue that the court erred by preventing the questioning of government witness Tamirra Smith about unrelated charges pending in state court, and witness Chuck Stine regarding the circumstances of a prior arrest. Finally, Haynes argues that the court erred by denying his request for an additional jury interrogatory concerning the charged conspiracy.

We have refrained from ruling on defendants' motions in the absence of a true and correct copy of the criminal history for Gene Williams. As the government disclosed this information on February 6, 2006, we now have before us all information essential to our ruling. In the following analysis, we explain our decision that the defendants' rights under Brady and the Confrontation Clause were not violated, and that the jury instructions, interrogatories, and verdict slip were proper.

ANALYSIS:

I. BRADY CHALLENGES

In the landmark case of Brady v. Maryland, the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request 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." 373 U.S. 83, 87 (1963). Since Brady, the Court has held that a prosecutor is required to disclose exculpatory evidence even when the defense has not requested the information. United States v. Agurs, 427 U.S. 97, 107 (1976); United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). The prosecutor's duty to disclose has been clarified to include impeachment evidence as well as exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985) ("Impeachment evidence . . . as well as exculpatory evidence[] falls within the Brady rule.") (citing Giglio v. United States, 405 U.S. 150, 154 (1972) ("When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within [the Brady] rule.")); United States v. Boone, 279 F.3d 163, 189 (3d Cir. 2002) ("The affirmative duty to disclose includes impeachment evidence as well as exculpatory evidence.").

The duty of disclosure under Brady "is not limited to evidence the prosecutor is aware of. Rather, it includes 'evidence known only to police investigators and not to the prosecutor.'" Smith v. Holtz, 210 F.3d 186, 195 (3d Cir. 2000) (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)). "In the interests of inherent fairness, the prosecution is obligated to produce certain evidence actually or constructively in its possession or accessible to it. To do otherwise would be inviting and placing a premium on conduct unworthy of representatives of the United States Government." United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (quotations and citations omitted).

The Third Circuit has indicated that "the availability of information is not measured in terms of whether the information is easy or difficult to obtain but by whether the information is in the possession of some arm of the state." Id. at 971. (citations omitted). Accordingly, in Perdomo, the Court of Appeals held that criminal background information contained in local police records constituted information "readily available" to the prosecution. Id. In that case, the government's failure to search local police records and disclose the criminal history of its principal witness amounted to a suppression of exculpatory evidence, and the Third Circuit noted that the prosecution's "ineffectual attempt to verify a key prosecution witness' criminal history amounted to conduct unworthy of the United States Attorney's Office." Id. at 970-71.

The broad duty imposed upon the prosecution is based on the special status of the United States Attorney within the federal system. Strickler v. Greene, 527 U.S. 263, 281 (1999). "[T]he United States Attorney is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Id. (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). However, not every violation of the prosecutor's duty to disclose necessarily establishes that the outcome of a proceeding was unjust. Id. Nor would a "clerical error" or "administrative mistake," without more, lead to the conclusion that "the government withheld information that was readily available to it or constructively in its possession." Hollman v. Wilson, 158 F.3d 177, 181 (3d Cir. 1998).

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler, 527 U.S. at 281.

Defendants argue that the government violated Brady and its progeny by failing to provide a complete criminal history for government witness Edward "Eddie" Edmonds. Defendants further argue that the government's total failure to provide an accurate criminal history for government witness Gene Williams violated Brady, when the government provided the criminal history of a different man named Gene Williams. For the following reasons, we find that the defendants' rights under Brady were not violated.

1. Eddie Edmonds

Edward "Eddie" Edmonds was an important witness for the government.

Edmonds testified that he lived in an apartment with McIntosh during the summer of 2003, when Edmonds was seventeen years old and McIntosh was dating Edmonds's sister. (See generally Trial Tr. May 4, 2005, morning session, Rec. Doc. No. 395, at 48-111.) Edmonds stated that he knew Haynes because Haynes was friends with McIntosh, and that the two of them were in a gang together. Edmonds described how Haynes and McIntosh attempted to bail each other out of jail on separate occasions. Edmonds testified that he saw a safe in the room that his sister shared with McIntosh, and that the safe contained drugs, cash, and a gun. Edmonds also identified photos of McIntosh and others seized from the bedroom McIntosh shared with Edmonds's sister.

The criminal history provided to defense counsel by the prosecution for Eddie Edmonds contained references to two arrests. (See Rec. Doc. No. 432, attachments.) On August 25, 2003, Edmonds was arrested in Williamsport, Pennsylvania for statutory rape, involuntary deviate sexual intercourse, and indecent assault. He was seventeen years old at the time of the arrest.*fn2 The criminal history record states "DISPOSITION UNREPORTED" next to these offenses. On September 27, 2004, at the age of eighteen, Edmonds was arrested in Muncy, Pennsylvania, this time for theft by unlawful taking, "theft of property lost, etc.," and "criminal attempt/theft by deception." Again, the criminal history record states "DISPOSITION UNREPORTED" next to these offenses.

At trial, counsel for McIntosh attempted to impeach Edmonds with the arrest for statutory rape and involuntary deviate sexual intercourse. (Trial Tr. May 4, 2005, afternoon session, Rec. Doc. No. 393, at 15.) The government objected, and counsel withdrew the objection at sidebar after a determination that the charges had not resulted in conviction. (Id.)

After the trial concluded, a private investigator retained by Haynes discovered that Edmonds had pled guilty to three offenses in the Court of Common Pleas of Lycoming County, Pennsylvania on February 17, 2005. In two separate pleas, Edmonds pled guilty to simple assault, recklessly endangering another, and the possession of a prohibited offensive weapon.*fn3 (See Rec. Doc. No. 432, attachments.) Convictions for all three offenses would be admissible to attack the credibility of Edmonds, because each offense was punishable by imprisonment in excess of one year.*fn4 See Fed. R. Evid. 609(a)(1).

The first component of a true Brady violation has thus been satisfied. The fact that Eddie Edmonds had pled guilty to three crimes mere months before serving as a witness in this trial may have affected the jury's opinion of his testimony, particularly considering the image projected by Edmonds and endorsed by the government.*fn5 The impeachment material was favorable to the defendants.

The government admits that the criminal history it provided was incomplete, but argues that "[m]aterial easily obtained by the defense cannot be the basis for a Brady violation." (Rec. Doc. No. 478, at 13.) We reject the government's contention that it satisfies its burden under Brady and its progeny by failing to provide an accurate criminal history, so long as police records are publicly available for the witness at issue.

Furthermore, the case cited by the government to support its position, Coleman v. Mitchell, 268 F.3d 417, 438 (6th Cir. 2001), is easily distinguishable on its facts. In Coleman, a petitioner for a writ of habeas corpus argued that the government violated Brady by failing to disclose potentially exculpatory background files and reports concerning petitioner himself. Id. Petitioner there argued that the files and reports in the government's possession contained information regarding petitioner's own personal background, and that the information may have proved exculpatory at either the guilt or penalty phase of his murder trial.

The Sixth Circuit held that "[t]he Brady rule does not assist a defendant who is aware of essential facts that would allow him to take advantage of the exculpatory evidence at issue." Id. (citing cases). Coleman is distinguishable because petitioner in that case was aware of the essential facts contained in the government's files because those facts dealt with petitioner's own personal background. Here we are confronted with a situation where the government provided an admittedly incomplete criminal history for a prosecution witness. The reasoning of the Sixth Circuit in Coleman does not apply to the facts of this case. The government's failure to provide a complete criminal history for Eddie Edmonds is unacceptable. See, e.g., Perdomo, 929 F.2d at 970-71.

There is no doubt that the evidence was suppressed; whether the suppression was willful or inadvertent is immaterial. See, e.g., Giglio, 405 U.S. at 154 ("whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor"). The Third Circuit has squarely held that a prosecutor's failure to learn and disclose a witness's criminal history as contained in local police records was a suppression of evidence. Perdomo, 929 F.2d at 971.

In Perdomo, the district court stated at defendant's sentencing hearing, "If an NCIC check does not demonstrate there was a prior criminal conviction, then let the Third Circuit say that U.S. Attorneys and [the] U.S. Attorney's office has to do more . . . . I'm not going to require that." Id. In response, the Third Circuit stated, "We view the U.S. Attorney's obligation somewhat differently than did the district court." Id. Because the prosecution is obligated to produce certain evidence "actually or constructively in its possession or accessible to it," and because "the availability of information is not measured in terms of whether the information is easy or difficult to obtain but by whether the information is in the possession of some arm of the state," the Third Circuit held that "the criminal background information contained in local Virgin Islands records was information that was 'readily available' to the prosecution." Id. at 970-71.

The situation in the instant case is similar. A National Crime Information Center (NCIC) record check for Edmonds did not reveal his most recent Lycoming County arrests. Nevertheless, because that information would have been helpful to the defense in attacking Edmonds's credibility as a witness, and because the information was in the possession of some arm of the state, the prosecutor is charged with the duty of "learn[ing] and disclos[ing]" that information to the defense. Id. at 971.

The government admits in its opposition to defendants' motions for a new trial that the local criminal record of Edmonds was "found easily and quickly by the defense's private investigator thanks to Pennyslvania's modern system of record keeping." (Rec. Doc. No. 478, at 15.) But the law places the burden to learn and disclose government witnesses' criminal records on the prosecution. That such records are easily available to a defense private investigator does not relieve the government of its burden. The ease with which the government describes the defense's retrieval of the records does not alleviate our consternation over the government's failure to make an accurate disclosure in the first instance. The second component of a true Brady violation is satisfied.

Having established that the first two components of a true Brady violation have been satisfied, we are left to determine whether the government's failure in this ...


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