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UNITED STATES v. BARRETT

March 11, 1998

UNITED STATES OF AMERICA, against MICHAEL A BARRETT, CRAIG SWEET et al., Defendants.


The opinion of the court was delivered by: MCAVOY

 McAVOY, CHIEF DISTRICT JUDGE:

 Defendants Michael Barrett and Craig Sweat have moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Defendants contend that newly discovered evidence has arisen indicating that the government failed to inform them of Brady impeachment material regarding the drug activities of a principal government trial witness. For the reasons that follow, defendants' motion is denied.

 BACKGROUND

 Before trial, thirty-one (31) of the indictees pleaded guilty and agreed to testify against the remaining defendants. One such indictee was Shatima Turner, whom the Court released on pre-trial supervision. On April 2, 1996, the trial commenced. On June 4, 1996, the trial jury returned a verdict against four of the defendants but were deadlocked 11-1 in favor of conviction with respect to defendants Barrett and Sweat.

 Between the end of the first trial and commencement of Barrett and Sweat's second trial, the government received information regarding cooperating witness Shatima Turner. According to the government, an Endicott police investigator, Richard Mikulski, informed the government that on May 17, 1994, a female New York State Police Community Narcotics Enforcement Team ("CNET") police officer purchased cocaine from an African-American female identifying herself as "Lexus" in Sam's Bar in Endicott, New York. Mikulski further informed the government that during the ensuing summer, a confidential Endicott police informant ("CI") told the Endicott Police that the CI was acquainted with Shatima Turner and that she was using the name "Lexus." Mikulski also stated that Endicott police had stopped a car that summer with at least two African-Americans inside, who had identified themselves as Shatima Turner and Lexus.

 Following that telephone conversation, the government states that it contacted the Broome County District Attorney to request assistance in identifying "Lexus" from the undercover CNET police officer. On or about November 4, 1996, the CNET officer participated in a photographic identification. The CNET officer, however, was unable to identify "Lexus" from the group of photographs presented, which included a photograph of Shatima Turner.

 On November 15, 1996, the government received information from a New York State Police Troop C Narcotics informant, Julie Gofkowski, who had testified at the first trial concerning the defendants' activities at Choices. Gofkowski told the government that that summer, while she was driving her car and stopped at a stop sign, an African-American female approached her on foot and inquired, "What do you need?" Gofkowski said she believed this individual to have been Shatima Turner.

 On November 15, 1996, the government memorialized the above events in a letter to the Court with copies sent to defendants' attorneys. On November 20, 1996, the government filed a Supplemental Trial Memorandum addressing the permissible scope of cross-examination of Shatima Turner in light of the above events.

 The second trial against Sweat and Barrett commenced on November 25, 1996. At the outset of trial, the government raised the issue whether defendants could cross-examine Shatima Turner regarding her alleged distribution of cocaine between the first and second trial. After hearing oral argument, the Court offered defendants the opportunity to submit legal authority in response to the government's Supplemental Trial Memorandum. On December 5, 1996, the Court ruled that defendants were foreclosed from cross-examining Shatima Turner regarding alleged cocaine distributions between the time of the first and second trial. Thereafter, Shatima Turner, along with 21 other witnesses, testified at trial. On December 11, 1996, the jury convicted defendants Sweat and Barrett on the CCE and drug conspiracy charges.

 A month later, the government asserts that a DEA agent contacted the Binghamton Office of the United States Attorney to coordinate a joint federal-state-local drug investigation. With the participation of the United States Attorney's Office, a narcotics investigation commenced in the Broome County area called "Operation Golden Road." The investigation culminated in May 1997 with the indictment of 88 defendants, including Shatima Turner, a/k/a "Lexus." The indictment charged Turner with conspiracy to distribute cocaine on both June 19, 1996 and on various occasions from January 1997 through April 1997.

 On March 20, 1997, this Court sentenced defendants Sweat and Barrett. Subsequently, defendants filed a timely notice of appeal. Defendants also filed a Rule 33 motion for a new trial with the Second Circuit in August 1997. During oral argument before the Second Circuit panel, however, defendants agreed to withdraw their motion before the Second ...


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