example, Hunt's testimony regarding his observations of Bravo's driving and double-parking the black Buick on East 203rd Street was fully corroborated by Agent Clifford, who testified that he was surveilling the scene from a different car, and that he likewise saw Bravo drive up in the Black Buick, double-park the car in front of 227 East 203rd Street, get out of the car and go inside the building at that address. Trial Tr., at 30-31. Agent Clifford also testified that, after seeing Bravo arrive, he received instructions over the radio that the search of the apartment was ready to take place. Trial Tr., at 31-32. This testimony further corroborates Agent Hunt's testimony that, while accompanied by an informant, he saw Bravo and then instructed his fellow agents over the radio, in substance, that the search could proceed since the person they were waiting for had arrived. Trial Tr., at 374-77, 381.
Agent Clifford also corroborated the fact that Agent Hunt, in connection with his instructions to Agent Clifford to seize the black Buick, handed him a set of keys. Trial Tr., at 35-36. Although there is no other witness to Bravo's specific post-arrest statement to Agent Hunt that the keys to the black Buick were on his bedroom dresser, the Government claims that an evaluation of all the relevant circumstances strongly underscores the reliability of Hunt's testimony about Bravo's statement.
For example, Agent Hunt had no reason to know that there would be contraband inside the car; the search warrant covered the apartment only. Agent Hunt's reason for asking for the car keys was to expedite the inevitable: the seizure of the car as a drug-related asset. This step followed the discovery of extensive drug records, drug paraphernalia and a sum of currency
in Bravo's apartment.
Moreover, the question about the keys that was put to Bravo was entirely logical, as Agents Hunt and Clifford had seen Bravo drive and get out of the car just minutes earlier. Since the agents were already searching the apartment, they were going to find the Buick keys sooner or later anyhow. Bravo's answer merely provided the keys sooner.
The circumstances of Bravo's appearance also lend credence to Hunt's testimony on Bravo's statement about the car keys. When agents first entered the apartment, approximately 15 to 30 minutes after having seen Bravo in the Buick, Bravo was coming out of the bathroom all wet with only a towel wrapped around him. Trial Tr., at 32. It appeared that Bravo had just stepped from the shower when the agents began their search. Accordingly, the bedroom dresser is just the site where one would expect to find a set of keys that have been placed there by its owner on his way to the shower. This especially would be the case where that person had just double-parked his car and entered his apartment, hurriedly attempting to shower and change clothes, and ostensibly preparing to leave.
While the Government argues that all the circumstances strongly support the reliability of Hunt's testimony concerning the statement, the Government also maintains that even if the statement and evidence of the recovery of $ 4,780 were excluded from the totality of the evidence received at trial there still would be ample independent proof to support the jury verdict. That the evidence received at trial was offered through numerous witnesses underscores the fact that Bravo's conviction does not depend principally on Agent Hunt or any other witness. In addition, the existence of the corroboration and independent evidence in this case weighs heavily against the awarding of a new trial for the nondisclosure of impeachment material. See e.g., United States v. Petrillo, 821 F.2d at 89 (no new trial where key aspects of witness' testimony corroborated by other testimony); United States v. Gilbert, 668 F.2d 94, 96 (2d Cir. 1981), cert. denied, 456 U.S. 946, 72 L. Ed. 2d 469, 102 S. Ct. 2014 (1982) ("ample independent evidence" that either implicated the defendant directly or corroborated the witness' testimony); United States v. Provenzano, 615 F.2d 37, 47-49 (2d Cir. 1980) (corroboration of witness' testimony identifying defendant's voice and other substantial evidence of defendant's guilt); United States v. Rosner, 516 F.2d 269, 274-78 (2d Cir. 1975) ("far more evidence" than witness' testimony supported conviction); United States v. Morales, 660 F. Supp. 1543, 1545-46 (S.D.N.Y. 1987) (direct and circumstantial evidence supported testimony of only eyewitness).
The Court disagrees with the Government's interpretation of the testimony and evidence presented at Bravo's re-trial. Contrary to the cases cited above, this is not a case "in which the material at issue is merely 'additional evidence tending further to impeach the credibility of a witness whose character had already been shown to be questionable.'" United States v. Morales, 660 F. Supp. at 1544-45 (quoting United States v. Rosner, 516 F.2d at 273-74). Nor can it be said that this is a case involving a marginal witness whose testimony was credibly corroborated by other witnesses. Although only one of twelve witnesses, Agent Hunt was a key witness at the re-trial whose often uncorroborated testimony was critical to Bravo's conviction. Thus, the Court finds that there is a reasonable probability that the outcome of Bravo's trial would have been different had the information concerning Hunt's credibility and character been disclosed or had the evidence offered solely through Agent Hunt been excluded.
First, although it is true that Agent Clifford, not Agent Hunt, found the loaded gun and cocaine during an inventory search of the black Buick, Trial Tr., at 37-38, it was Agent Hunt's testimony that established Bravo's connection with the black Buick, and thus, with the cocaine and firearm. Agent Hunt testified that he observed Bravo drive up in a black Buick, double-park the car in front of 227 East 203rd Street, get out of the car and go inside the building at that address. Trial Tr., at 376-78, 381, 383-84. The Government maintains that this testimony was corroborated by Agent Clifford. A closer examination of the record, however, reveals that only Agent Hunt consistently and conclusively testified that it was Bravo who was seen driving and double-parking the black Buick on East 203rd Street. While Agent Clifford testified that he too saw Bravo drive up in the black Buick, double-park the car in front of 227 East 203rd Street, get out of the car and go inside the building, Trial Tr., at 30-34, it was also established that at a prior proceeding Clifford described the five foot two, 115 pound Bravo, as five foot seven or five foot eight and 160-70 pounds. Trial Tr., at 33, 52, 54-60. In addition, on cross-examination Agent Clifford stated that two other male Hispanics were present in the apartment when the agents executed their search warrant, and that it was possible that one of them weighed approximately 160-170 pounds and was five foot seven or five foot eight. Trial Tr., at 63.
Thus, had Agent Hunt's credibility been impeached or had his testimony regarding his observations of Bravo driving up to the apartment been excluded, there would have been very little credible evidence establishing a connection between Bravo and the black Buick where the cocaine and firearm were found.
Second, although Agent Szeleczky testified that she found three notebooks containing notations of drug deals, Trial Tr., at 152, and the jury was instructed to make its own independent judgment as to what the notebooks contained, Trial Tr., at 415, it was Agent Hunt who provided detailed expert testimony about the meaning of the records. For example, Hunt testified that the numbers in the notebooks "are very common weights when dealing with narcotics, either cocaine or heroin." Trial Tr., at 407. Hunt also testified that the names with corresponding dollar amounts next to them signified money that was owed. Trial Tr., at 408. Moreover, Hunt testified that based on his review of the notebooks, the person who owns the books is "more or less running the operation or fronting narcotics." Trial Tr., at 410. Further, Hunt testified that in his expert opinion, the notebooks contained records of narcotics trafficking. Trial Tr., at 421-22.
Third, Agent Hunt is the only witness who testified that he asked Bravo where the keys to the black Buick were, and Bravo responded that the keys were on the dresser in the bedroom. Trial Tr., at 389. This testimony was especially significant because, like Hunt's testimony that he saw Bravo driving the black Buick, it further connected Bravo to the black Buick in which the cocaine and gun were found. Without this testimony and without Hunt's testimony that he saw Bravo drive up in the black Buick, there is a reasonable probability that a jury would find that Bravo had no connection to the black Buick, the cocaine or the loaded gun.
Moreover, although the Government maintains that there were other indicia of reliability with respect to Hunt's testimony as to Bravo's statement, the Court finds that an evaluation of all the relevant circumstances underscores the unreliability of Hunt's testimony. For example, Hunt testified that Bravo told him that the keys to the black Buick were on the dresser in the bedroom. Yet, Hunt also testified that prior to his conversation with Bravo he had searched the bedroom, including the bedroom dresser, found only U.S. currency, Trial Tr., at 386, and did not take any keys out of the bedroom. Trial Tr., at 463. Additionally, although Agent Hunt testified that Bravo told him that the keys to the Buick were in the bedroom, he never indicated in any prepared report that the defendant made that statement. Trial Tr., at 465-66. Further, although Agent Clifford corroborated that Hunt handed him a set of keys, Trial Tr., at 36, he did not know whether that set of keys were the keys to the black Buick. Trial Tr., at 66. In fact, at a prior proceeding, Clifford testified that he found the Buick keys on the coffee table, near where the two other Hispanic males were standing. Trial Tr., at 66-67.
Finally, no other witness observed Hunt's recovery of the approximately $ 4,780 in currency from the apartment bedroom.
Thus, the Court finds that had the impeachment material been disclosed to the defense, or had the evidence offered solely through Agent Hunt been excluded, there was a reasonable probability that the jury would have found that there was no credible identification of Bravo driving up to the apartment building in the black Buick which contained the cocaine and loaded firearm. Without Hunt's testimony regarding Bravo's statement, it is also likely that the jury would have found that there was no other credible evidence establishing Bravo's connection to the Buick. Further, without the currency in evidence, and without Hunt's testimony as to the alleged drug records, the jury would have found the case against Bravo on the cocaine charge extremely slim, consisting solely of the scale found by Agent Clifford in the apartment. Accordingly, the Court finds that there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the [trial] would have been different," and therefore Bravo is entitled to a new trial.
C. Ancillary Relief
Bravo also seeks the ancillary relief of a reopened Franks hearing and reconsideration of his motion to depose the confidential informant in the Dominican Republic.
The Court finds that had it known of the allegations against Agent Hunt and other Group 33 agents at the time of Bravo's pre-trial motions, it would have ordered a full Franks hearing, with Agent Hunt as well as Agent Bach testifying. Moreover, had the Court been made aware of the allegations, it would have found that "exceptional circumstances" existed, see Rule 15 of the Federal Rules of Criminal Procedure, justifying the deposition of the confidential informant in the Dominican Republic. Thus, the Court finds that Bravo is also entitled to his requested ancillary relief. Accordingly, prior to the new trial in this matter, Bravo shall have the opportunity to depose the confidential informant in the Dominican Republic by means of letters rogatory, and there shall be another Franks hearing, with both Agents Hunt and Bach testifying.
For the reasons set forth above, Bravo's motion for a new trial, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, is granted. Further, Bravo's request for ancillary relief, namely, a reopened Franks hearing and reconsideration of his motion to depose the confidential informant in this case, is also granted. The parties shall contact the Court to schedule both the Franks hearing and the new trial.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York
December 2, 1992