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 October 11, 1994 then claimed to have been held against their will, (3) six more so alleged in early November, (4) three women who had been interviewed in Seattle had said that they had not been held against their will, (5) the government acknowledged that alleged victims had changed their accounts,
and (6) nine women interviewed by co-counsel supposedly had exculpated one of Morales' co-defendants.
Against this background Morales' counsel not surprisingly asked the government to identify witnesses whom it did not intend to call on its case in chief. Taking the request as seeking the names of alleged victims to whom the government had access and whom it did not intend to call, the government promptly supplied a list of seven women including both Hasubklong and Yeampunnai. (Park Aff., Feb. 9, 1996, Ex. 2) Morales' counsel contacted the attorney for one of the seven,
who advised that his client would not speak to Morales' counsel because she was afraid of being deported or prosecuted. Assuming that he would meet the same response from all of the others, Morales' counsel made no effort to contact any of them. He called none at trial. He did not raise the question whether the government would immunize the women to testify for the defense as counsel for a co-defendant suggested. (See Tr., May 11, 1995, at 42) Instead, he made a good deal in his summation of the government's failure to call them.
As the government disclosed well before trial that Hasubklong and Yeampunnai were among the women who had been in the brothel, the only possible claim of suppression rests on the failure to tell Morales that Hasubklong and Yeampunnai, if called, would testify as they did at the Fatico hearing, assuming of course that the government then knew that. The Court is persuaded, however, that any failure to do so, in the circumstances of this case, did not amount to suppression.
Morales well knew that women who had been at the brothel had told different stories about what had taken place -- the government had disclosed that fact. He had the names of these women. He simply chose not to pursue the evidence. Perhaps he believed he would be unsuccessful in obtaining it. Perhaps he believed the evidence would be unfavorable. Perhaps he believed that the missing witness argument he made to the jury would be better than any evidence he was likely to find. But whatever the reason, he cannot now blame the government for the consequences.
United States v. Ruggiero, 472 F.2d 599 (2d Cir.), cert. denied, 412 U.S. 939, 37 L. Ed. 2d 398, 93 S. Ct. 2772 (1973), is instructive. The defendant there was denied pretrial disclosure of the grand jury testimony of two prospective witnesses, Lundy and Sheridan, after in camera inspection by the trial court. Neither was called at trial. On appeal, he contended that the failure to turn over the grand jury testimony violated Brady. But the Court of Appeals rejected the argument:
"The purpose of the Brady rule is not to provide a defendant with a complete disclosure of all evidence in the government's file which might conceivably assist him in the preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him. Here the appellant was on notice of the essential facts required to enable him to take advantage of such exculpatory testimony as Lundy and Sheridan might furnish. He was also well aware of the process by which they could be compelled to testify at trial. * * * If appellant wanted their testimony, the obvious and logical course was to subpoena them and put them on the witness stand." Id. at 604-05 (emphasis added).
The Court, moreover, rejected the defendant's argument that he should not be expected to have called the witnesses blind and "guess as to what they will say on the stand . . ." Id. at 605. It pointed out that the defense had been free to seek to interview Lundy and Sheridan before trial, and it rejected his contention that his effort to do so had been rebuffed because "neither the government nor the trial judge was so advised." Id. It concluded:
"Defense counsel had strong reason to believe that Lundy's testimony would be helpful to the defense and he so argued to the jury. Yet he did not subpoena Lundy to testify, as he had a right to do, and he did not advise the court of any inability to elicit Lundy's testimony. We hold that under the circumstances it was not an abuse of discretion for the trial judge to deny him disclosure of the Lundy-Sheridan grand jury testimony." Id.