The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
The superseding indictment in this case charged a number of defendants with conspiring to smuggle Thai women into the United States illegally and, upon their arrival, to force them to work as prostitutes at a brothel located at 206-208 Bowery, New York, New York, until they had performed sexual acts with customers, for the economic benefit of the smugglers, to an extent sufficient to satisfy the sums they had agreed to pay the smugglers to bring them into the country. All the defendants pleaded guilty to various charges except Joseph Morales, a former New York City Corrections Officer who was employed as chief of security at the brothel. Morales was convicted after trial of participating in conspiracies to kidnap, to violate the civil rights of women held at the brothel, and to import and transport women interstate for the purpose of promoting prostitution as well as with six substantive civil rights and importation counts. The kidnaping conspiracy conviction was set aside when the government consented to defendant's Rule 29 motion addressed to that count. Morales now moves for a new trial on the grounds that the government (1) suppressed material Brady information, and (2) knowingly adduced perjured testimony at trial.
The Brady claim arises as a result of testimony by two alleged victims of the scheme at a Fatico hearing held in connection with the sentencing of two of his co-defendants after Morales was convicted. Neither witness testified at Morales' trial. Before proceeding to the details of the testimony and its significance in light of Brady it is useful to outline the case against Morales and his defense.
The theory of the government's case was that a number of smugglers arranged to bring women into the United States illegally from Thailand in exchange for promises of payment by the women. Some knew before they came that they would be required to pay off their debts by working as prostitutes. Others were misled by promises of legitimate jobs. Once they arrived, however, all were confined at the brothel until they had serviced sexually, for the economic benefit of their smugglers or "bosses," sufficient men to pay the fees for bringing them into the country. (TT
15-16) In substance, then, the government claimed that those who had agreed to work off their debts as prostitutes were prevented from changing their minds while the others were forced into prostitution against their will. Morales' role, as indicated, allegedly was that of chief of security -- the man in charge of making sure that none of the women left the premises.
Morales' defense was that most of the women were prostitutes in Thailand and that all of them knowingly agreed, in arrangements to which Morales was not a party, to work off their debts as prostitutes and to remain in the brothel until they had done so. Morales contended that he did not prevent any of the women from leaving the brothel. (TT 32-45)
The government's proof at trial consisted principally of the testimony of Siew Geok Adkins, a/k/a Lilly Chan, the madam of the brothel, Jawarit Sillaphanond, a/k/a Lek, one of the smugglers; Sonchay Khounsavanh, a/k/a Sam, a customer of the brothel who, after losing his job elsewhere, worked there briefly before the brothel was closed; and Sunan Chalremsen, one of the alleged victims. The evidence, considered in the light most favorable to the government, established that (1) Chalremsen and others were induced to enter into arrangements pursuant to which they would be smuggled into the country in exchange for a promise to pay the smugglers from their earnings after they arrived here, (2) some, but not all, were misled by promises of legitimate jobs here while others knew they would be engaged in prostitution, (3) upon arrival, all of the women were confined to the brothel until they had serviced sexually enough men to satisfy the smuggling debts, (4) Morales was the chief of security at the brothel and was responsible, both personally and through others he hired and paid, for ensuring that none of the women escaped, (5) Morales on one or more occasions physically prevented women from leaving the brothel, and (6) on one occasion Morales offered to assist Adkins in capturing a woman who had succeeded in escaping.
The two women who testified at the Fatico hearing were Valaiborn Yeampunnai, a/k/a Jang, and Kwanjai Hasubklong, a/k/a Dee. Yeampunnai testified that she was anxious to come to the United States and, in exchange for being smuggled into the country, agreed to have sex with four to five hundred men for the benefit of her smuggler. (FT
9-10) She was brought to 208 Bowery, where she remained for two weeks. She understood that she was not allowed to leave in the absence of her "boss" and that the door of the brothel was locked. (Id. 13) Although she wished to leave, she said she was afraid that she would be killed if she left.
(Id. 14-15) She acknowledged also that when first questioned by authorities, she falsely told them that she had been told that she would work in a restaurant when she came to the United States because she was afraid that she would be deported if she admitted having come to work as a prostitute. (Id. 17-19)
Hasubklong's testimony was similar. She admitted having agreed to work as a prostitute in exchange for her passage and entry into the United States. (Id. 42) She was locked in the Bowery brothel, which she could not leave without Adkins' permission. (Id. 44-45) Hasubklong, however, became concerned that the brothel might be raided and that she would be deported because she was a prostitute. In consequence, she asked a customer, whom she later married, to call the police on her behalf and, in the hope of thus avoiding deportation, to tell them she was being forced to work as a prostitute. (Id. 46-47, 55-56) When asked why she did not just walk out of the brothel, she responded, "Where can I go because I don't know anybody." (Id. 56)
Morales contends that the statements of these women, which he assumes the government had at the time of his trial, were Brady material that should have been disclosed. He argues that they support his contentions that he had nothing to do with the arrangements between the women and the smugglers, that the women were not compelled to work as prostitutes but freely chose to do so, that the women agreed to their confinement, and that he did not prevent them from leaving the brothel -- indeed, they did not seek to do so. He contends also that Hasubklong's testimony was inconsistent with the government's theory' that the women who spoke to the police did so to escape the allegedly inhuman conditions at the brothel, showing instead that they did so in an effort to avoid deportation.
In order to establish a Brady violation, the defendant must show, inter alia, that (1) the government suppressed favorable evidence, and (2) the evidence the government suppressed was material. United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995). A defendant, however, cannot satisfy the suppression requirement if the defendant, directly or through counsel, "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence." United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174 (1983). If the defendant has information, but fails to use due diligence to make use of it, the defendant cannot later claim that the government "suppressed" evidence. Id. Here there is no colorable basis for any claim of suppression, even assuming that the government knew at or before trial how Hasubklong and Yeampunnai would testify. Accordingly, there is no need to determine whether the statements of those witnesses were exculpatory or material.
In order to appreciate fully the weakness of the suppression charge, it is helpful to understand how this case evolved. The brothel evidently came to the attention of federal authorities on October 11, 1994 as a result of an inspection conducted by New York City authorities. Agents of the Immigration and Naturalization Service responded to the scene, where they found and interviewed thirty-one Thai women. It appears that three then claimed to have been held against their will while the other twenty-eight declined to be further questioned. (Ng Aff.
P 7) On November 6, 1994, six additional women claimed that they were being held against their will and were removed from the brothel. (Id. P 11) Adkins then was arrested and charged. (Id.) The case developed from that point, resulting in the superseding indictment on which Morales ultimately was tried.
Given the nature of the charges, it was perfectly obvious from the outset of this case that testimony of women who had been at the brothel could be vitally important to one side or the other. Indeed, when a newspaper reported on or about February 1, 1995 that a raid on a brothel in Seattle, Washington, had netted Thai women who may have been held against their will, the Assistant United States Attorney promptly investigated the matter and learned that three of the women had stated that they were from New York and claimed that they had not been held against their will. (Park Aff., Apr. 28, 1995, P 5) He promptly informed defense counsel (id. P 5c), one of whom unsuccessfully claimed that his client's Brady rights had been violated because he had not been informed earlier, a delay which allegedly had allowed the three women to disappear (Tr., May 11, 1995, at 47-57). At about the same time, the government advised defense counsel that certain of the alleged victims who initially had told the government that they had not expected to engage in prostitution when they came to the United States had changed their stories. (Park Aff., Feb. 9, 1996, Ex. 1) Moreover, counsel for one of Morales' co-defendants moved -- in the presence of Morales and his counsel -- for an order barring the government from interfering with defense efforts to speak with the thirty-one women (Tr., May 11, 1995, at 35), thus evidencing his view that these women were key objects of defense interest. Indeed, he stated that he had interviewed nine of the thirty-one, all of whom had given exculpatory evidence. (Id. 39-40) Accordingly, by mid-May 1995, the defense knew that (1) the charges depended in significant part on what the women were told before they arrived at the brothel and what happened to them when they got there, (2) only three of the thirty-one women at the brothel on ...