Case 2:02-cr-20449-SHM

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TN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISRTICT OF TENNESSEE WESTERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. CLINTON LEWIS AND MARTIN LEWIS, Defendants. ADDITIONAL SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR MISTRIAL PURSUANT TO BRADY VIOLATION No. 02-20449-Ma

COMES NOW the Defendant, Clinton Lewis, by and through counsel of record, C. Anne Tipton and Howard B. Manis, and respectfully supplements his previous memorandum of law in support of Motion for Mistrial pursuant to Brady violation. Tn support, Defendant would state as follow: 1. Jencks Act does not excuse tardy disclosure of Brady material. The government has represented to the Court reliance on the Jencks Act as a basis for its tardy disclosure of the pre-trial exculpatory statements by witness TeMarcus Cartwright. According to Mr. Cartwright he was interviewed by the government on three separate occasions, in 2008, December 2011 and February 2, 2012. During Court proceedings on March 12, 2012 the government represented to the Court that no audio recordings existed regarding any of the three interviews with this witness. The only memorial of these interviews with the witness was

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contained in a DEA 6 report prepared by TFO Richardson after the 2008 interview. (See Exhibit 1

Motion for Mistrial) This report was not reviewed nor adopted by the witness for accuracy. On March 13, 2012 the government provided the Defendant with an audio recording of

an interview allegedly conducted on February 2, 2012 between TFO Richardson, DEA Agent Collins, A.U.S.A David Pritchard and Greg Gilluly. (See Exhibit 2

Motion for Mistrial)

During this interview Mr. Cartwright discussed with those present that the exchange of weapons was strictly between him and Marcus Brandon. He further reiterated that he received the weapon directly from Marcus Brandon. He specifically, even with excessive prodding by the agents, stated the Defendant did not possess nor c in the trade of the weapon. The governments reliance on the Jencks Act to shield it from a timely disclosure of this exculpatory evidence is not well taken. First, in order for the government to have relied on its decision to withhold the recording until after the direct testimony of Mr. Cartwright, it would have to have been aware of the existence of the recording. As represented to the Court on March 12, 2012, the government had no knowledge a recording existed of this any interview, including the February 2, 2012 interview. Therefore, the government could not have incorporated the protections of the Jencks Act into its decision to withhold the Brady material. Even, if the Court were to find the audio recording from the February 2, 2012 interview to be protected by the Jencks Act, the second interview, in December 2011 has no statement, recording or any other memorial as required by the definition of statement set forth in 18 U.S.C. section 3500. Therefore, the government was mandated by the dictates of Brady v. Maryland to disclose this interview in a timely fashion. In this instance the government suppressed both the second and third interviews conducted with Mr. Cartwright. Clearly, the

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government sole reliance on U.S. Brazil, 395 Fed. Appx. 205 this context.

th 6 (

Cir. 2010), is not appropriate in

2. Governments untimely disclosure is a Brady violation. In order to establish a Brady violation the Defendant must demonstrate the evidence is exculpatory, the government suppressed the evidence and prejudiced ensued. In this instance there is no dispute the first two prongs of this test have been satisfied. The court must determine the materiality and thus prejudice of the governments untimely disclosure of the evidence. In the habeas corpus proceeding of Kyles v. Whitley, 514 U.S. 419, 434 (1995) the Supreme Court stated the standard of materiality for their purposes (did) not require a demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendants acquittal. .The touchstone of materiality is a reasonable
.

probability of a different result, and the adjective is important. The Court continued stating the true inquiry is in the absence of the untimely disclosed material has the Defendant received a fair trial as defined by a trial resulting in a verdict worthy of confidence. jj. The materiality standard to be applied to circumstances arising during trial is slightly different. When the disclosure is during trial the focus of the inquiry is whether earlier disclosure would have created a reasonable doubt of guilt. U.S. v. Young, 45 F.3d 1405, 1408
th 0 (j

Cir. 1995)(citing United States v. Rogers, 960F.2d 1501, 1511

Eh 10 (

Cir. 1992). In this

instance the untimely disclosure of this exculpatory material has prejudiced the Defendant by limiting his pretrial preparations, trial strategy. and overall design of cross-examination. In Virgin Islands v. Fahie, 304 F.Supp.2d 669 (D.C. V.1. Aug. 16, 2005) the prosecutions second witness testified during cross examination and disclosed for the first time to the defense that he had conducted a trace through the AFT bureau and received a report with the

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registered owners name. The district court held the information was exculpatory Brady material. As such, the non-disclosure prejudiced the defendant and amounted to a violation. The Fahie court found the gun trace report qualified as Brady material and tended to exculpate the defendant. The Fahie court noted the Kyles standard but acknowledged when such a disclosure is first made on the eve of trial, or when trial is under way, the opportunity to use it may be impaired. The defense may be unable to divert resources form other initiatives and obligations that are or may seem more pressing. And the defense may be unable to assimilate the information into its case. United States v. Cobb, 271 F.Supp. 159, 163 (S.D.N.Y. 1967). In Leka v. Portuondo 257 F.3d 89, 102 (2 Cir. 2001), the government made an untimely Brady disclosure during trial. The Second Circuit concluded that such a disclosure afforded insufficient opportunity (to the defense) to use the information. The Court cited to its decision in Grant v. Alldrege, 498 F.2d 376,382 (2 Cir. 1974) that it was not reasonable to conclude defense counsel would have by-passed the opportunity had the prosecutor apprised him of the [evidence] at a time when the defense was in a reasonable pre-trial position to evaluate carefully all the implications of that information. Given time for preparation which counsel was denied by the belated disclosure, it seems to us counsel might have pursued a course of inquiry which would have resulted in ferreting our.. relevant.. information.
. .

In United States v. Burke, 571 F.3d 1048, 1054

1h 10 (

Cir. 2009), the court stated

it would eviscerate the purpose of the Brady rule and encourage gamesmanship were we to allow the government to postpone disclosures to the last minute. during trial. As the Second Circuit noted in Leka, the belated disclosure of Brady material tends to throw existing strategies and [trial] preparation into disarray. It becomes difficult to

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assimilate new information, however favorable, when a trial already has been prepared on the basis of the best opportunities and choices then available. If a defendant could never make out a Brady violation based upon delayed disclosure of exculpatory information this would create a dangerous incentive for prosecutors to withhold impeachment or exculpatory information until after the defense has committed itself to a particular strategy during opening statements or until it is too late for the defense to effectively use the disclosed information. It is not hard to imagine the many circumstances in which the belated revelation of Brady material might meaningfully alter a defendants choices before and during trial: how to apportion time and resource to various theories when investigating the case, whether the defendant should testify, whether to focus the jury attention on this or that defense, and so on. To force the defendant to bear these costs without recourse would offend the notice of fair trial that underlies the Brady principle. In this case, the governments untimely disclosure of Mr. Cartwrights second and third interviews places upon the Defendant the exact costs cited by the court in Burke. The fundamental tenet of our judicial system is a fair trial. The guarantees set forth in the Due Process Clause of the federal Constitution attest to the importance of this principle. The only appropriate remedy in these circumstances is a new trial. Re-examining witnesses, excluding trial testimony, or excluding trial exhibits will not alter the overall prejudice created by the governments untimely disclosure of this pivotal information. As cited in U.S. v. Chapman, 524 F.3d 1973, 1086
th 9 (

Cir. 2008), Brady violations are just like other constitutional

violations.. .the appropriate remedy will usually be a new trial. Furthermore, allowing this trial to precede under these circumstances further supports the long standing legal precedent that materiality must be evaluated based upon the fundamental

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confidence in the ultimate outcome by the jury. As such, the only appropriate remedy would be the granting of a mistrial. WHEREFORE, PREMISIES CONSIDERED, the Defendant moves this Honorable Court to grant a mistrial and for any other such relief the Court deems necessary. Respectfully submitted, /s/ C. Anne Tipton C. ANNE TIPTON 8 S. Third Street 4t Floor Memphis, Tennessee 38103 (901_529-8500 /5/ Howard B. Manis HOWARD B. MANIS 1000 Ridgeway Loop Ste. 320 Memphis, Tennessee 38120 (901) 682-0069 Attorneys for Defendant CERTIFICATE OF SERVICE I DO HEREBY CETIFY THAT A TRUE AND EXACT COPY OF THE FOREGOiNG HAS BEEN SERVED BY EITHER ELECTRONIC MEANS OR REGULAR U.S. MAIL ON T11 THIS THE 13 DAY OF MARCH, 2012 TO THE FOLLOWING: E. Greg Gilluly, Jr., AUSA 800 Federal Office Building Memphis, Tn. 38103 David Pritchard 800 Federal Office Building Memphis, Tn. 38103

Is! C. Anne Tipton C. ANNE TIPTON