The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for disposition is the MOTION FOR NEW TRIAL PURSUANT TO RULE 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE FOR BRADY VIOLATION filed by Defendants Martha Bell and Atrium I Nursing and Rehabilitation Center (Document Nos. 114 and 115, respectively) and the Government's response in opposition (Document No. 116). The Court finds and rules that Defendants have not raised "genuine issues of material fact," and, thus, it is not necessary to conduct an evidentiary hearing. United States v. Perdomo, 929 F.2d 967, 973-74 (3d Cir. 1991).
After careful consideration of the motions and the relevant case law, the Court will deny the Motions for New Trial.
An eleven-count indictment was filed on August 24, 2004 against defendants Martha Bell and Atrium I Nursing and Rehabilitation Center. Both defendants were charged with one count of Health Care Fraud (Count I), in violation of Title 18, United States Code, Sections 1347 and 2, and ten counts of False Statements Relating to Health Care Matters (Counts 2 through 11), in violation of Title 18, United States Code, Section 1035(a)(2).
A jury trial commenced on July 19, 2005. At the close of the government's case in chief, each Defendant presented a motion pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure for judgment of acquittal. After hearing extensive arguments of counsel, the Court denied the respective motions.
On August 24, 2005, the jury rendered a unanimous verdict as to each defendant. Defendant Bell was found guilty on Counts 1, 2, 3, 4, 5, 6, 8, 10 and 11 and Defendant Atrium I was found guilty on all eleven counts of the indictment.
On August 26, 2004, Defendants filed Motions for Judgment of Acquittal, which were denied by the Court on November 18, 2005.
Defendants have filed the instant motions based on "newly discovered evidence" in the form of Brady violations. See Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Defendants argue that the government failed to disclose impeachment material as required by Brady, and, therefore, they are entitled to a new trial under Federal Rule of Criminal Procedure 33.*fn1 In support of their position, Defendants attach as exhibits handwritten statements of government witnesses Cheryl Bushmire and Kelly Davies, as well as correspondence which apparently Martha Bell sent to and received from Senator Rick Santorum, all of which, according to Defendants, constitutes "newly discovered evidence" which the government failed to disclose. The government responds that the "exhibits (a) do not constitute 'newly discovered evidence,' (b) are not Brady material; (c) do not contain information unknown to defendants at the time of trial; and (d) were not in the possession of the government." Govt's Response at 2.
In the landmark case of Brady v. Maryland, the United States 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. Since Brady, the Supreme 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); see also United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). The government'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 material 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).
"There is no question that the government's duty to disclose under Brady reaches beyond evidence in the prosecutor's actual possession. Since Giglio, 405 U.S. at 154, the Supreme Court has made clear that prosecutors have 'a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.' " United States v. Risha, No. 04-4677, slip op. at 11, -- F.3d ---, 2006 WL 1061961 (3d Cir. Oct. 20, 2005) (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). The Court of Appeals for the Third Circuit has defined "constructive possession" as follows:
We construe the term 'constructive possession' to mean that although a prosecutor has no actual knowledge, he should nevertheless have known that the material at issue was in existence. Accordingly, we consider whether the prosecutor knew or should have ...