The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania
Pending before the Court is Defendants Barron and Barry Walkers' joint motion for a new trial on the grounds that the prosecution's failure to disclose certain impeachment evidence regarding one witness prejudiced their defense at trial. Following due consideration, the motion will be denied because although the government should have made the impeaching material available to counsel prior to trial, the failure to do so was not sufficiently material to undermine confidence in the jury's verdict.*fn1 Accordingly, the motion will be denied.
On June 27, 2007, a grand jury issued a four-count indictment charging Barry Walker and Barron Walker with the following crimes: (1) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a); criminal conspiracy, in violation of 21 U.S.C. § 846; possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g); and possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c). On July 10, 2007, Barry Walker escaped from custody and a warrant was issued for his arrest. He was arrested two days later in York, Pennsylvania, where he was found in possession of an additional quantity of cocaine base. On July 17, 2007, a grand jury issued a superseding indictment adding two counts against Barry Walker charging him with escape from custody, in violation of 18 U.S.C. § 751(a), and an additional count of possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a).
On November 7, 2007, a grand jury issued a second superseding indictment charging both Barry Walker and Barron Walker with interference with interstate commerce through robbery, in violation of 18 U.S.C. § 1951(a) (the "Hobbs Act"), and with using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).*fn2
The Court presided over a jury trial on the above charges from August 11, 2008, through August 14, 2008. At the conclusion of the trial, the jury returned a verdict finding the defendants guilty of the Hobbs Act robbery and possession of a firearm in furtherance of the Hobbs Act robbery. The jury also found both defendants guilty of possession with intent to deliver cocaine base and possession of a firearm in furtherance of cocaine base distribution, relating to the time period prior to May 31, 2007. The jury further found Barry Walker guilty of escape and of possession with intent to deliver cocaine base relating to this arrest on July 12, 2007.*fn3
II. POST-TRIAL DISCLOSURE OF IMPEACHMENT EVIDENCE
Following trial, then-Special Assistant United States Attorney Michael A. Consiglio informed defense counsel that the government had failed to produce certain impeaching evidence relating to Skylar Rhoades, one of the government's principal witnesses at trial.*fn4 In his letter, dated September 3, 2008, AUSA Consiglio advised counsel as follows:
As you recall, Skylar Rhoades previously worked as a confidential informant with ATF and other law enforcement agencies. In the winter of 2006-2007, Agent Chad Sines from ATF and Trooper Craig Ammons from the Pennsylvania State Police were arranging with Rhoades to purchase an ounce or more of crack cocaine from a target.
Before the purchase, the officers asked Rhoades to change the coat he was wearing because it would interfere with audio recording they planned to conduct. Trooper Ammons recovered a coat from the trunk of Rhoades car and searched the pockets. In a pocket, they found flakes of what appeared to be marijuana and a small piece of what appeared to be cocaine base. These materials were not packaged in any way and the materials appeared old. Rhoades explained that it was an old coat and that he did not realize these remnants were present. The cocaine did field test positive for being cocaine. Rhoades was not charged with any crimes for this incident. (Doc. No. 223, Ex. 3.) Following review of this letter, Defendants jointly moved for a new trial on the grounds that their post-trial receipt of information about Skylar Rhoades being in possession of narcotics while working as a government informant prejudiced their defense. Specifically, Defendants contend that the withheld evidence could have been used to impeach Rhoades by suggesting the following inferences: "(1) that Skylar Rhoades was preparing to frame someone through an undercover buy by producing this crack cocaine to the authorities after the buy and claiming he purchased it; (2) that Skylar Rhoades was dealing and/or using drugs contemporaneously while acting as a government informant and got caught; and (3) that as part of the consideration provided in exchange for his cooperation, there was a decision not to prosecute him for this crack cocaine violation." (Doc. No. 234, at 8.) In addition, Defendants argue that because Rhoades testified that he had not sold or used drugs during the period he was working as a government informant following his 2006 arrest, the failure of the government to disclose the fact of his drug possession materially undermined their ability to impeach Rhoades at trial. Specifically, Defendants' motion concerns the first three counts of the indictment charging Defendants with crack cocaine distribution and possession of a firearm to facilitate drug trafficking. Defendants argue that Rhoades was "the only witness producing any direct evidence against Barron and Barry Walker on the first three counts of the trial indictment," and therefore his credibility was essential to the government's success at trial in proving these crimes. (Doc. No. 234, at 3.) The government opposes the motion, maintaining that the impeachment evidence was not material but instead was merely cumulative of the substantial impeachment evidence directed towards Rhoades at trial.
In United States v. Brady, the Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). The Brady rule applies to the disclosure of impeachment evidence. Giglio v. United States, 405 U.S. 150, 154 (1972). A Brady violation has three separate elements: (1) the evidence must be favorable to the defendant; (2) it must have been suppressed by the prosecution; (3) and it must have been material to either guilt or punishment.
United States v. Pelullo, 399 F.3d 197, 209 (3d Cir. 2005); United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991). Evidence is considered to be material for Brady purposes "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); United States v. Reyeros, 537 ...