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 Circuit and refile their motion with this Court. That motion is presently before this Court.
Whether to grant a motion for a new trial pursuant to FED. R. CR. P. 33 rests in the broad discretion of the trial judge. United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir. 1984). The burden of proving the need for a new trial lies with the defendant. United States v. Soblen, 203 F. Supp. 542, 564 (S.D.N.Y. 1961), aff'd, 301 F.2d 236 (2d Cir.), cert. denied, 370 U.S. 944, 8 L. Ed. 2d 810, 82 S. Ct. 1585 (1962). Unlike a Rule 29 motion, the judge in deciding a Rule 33 motion may weigh the evidence and determine the credibility of witnesses. United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992). The court is not required to view the evidence in the light most favorable to the government. United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir. 1980). Despite this, the court's discretion is limited; it should only grant a new trial when it "concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred." Id. Such motions are not favored and should be granted only with great caution in exceptional circumstances. United States v. Costello, 255 F.2d 876, 879 (2d Cir.), cert. denied, 359 U.S. 937, reh'g denied, 358 U.S. 858, 3 L. Ed. 2d 93, 79 S. Ct. 16 (1958); Soblen, 203 F. Supp. at 564.
In the present case, defendants claim that a new trial is mandated because the government failed to disclose material impeachment evidence concerning its cooperating witness Shatima Turner, in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Both exculpatory evidence about the defendant and inculpatory evidence regarding government witnesses fall under the Brady requirements. However, the failure to turn over such information to the defendant only requires a reversal of the conviction if the "omission is of sufficient significance to result in the denial of the defendant's right to a fair trial." United States v. Bagley, 473 U.S. 667, 675, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).
Defendants assert that the government "was in possession of more information regarding Shatima Turner than was supplied [in the government's] November 15, 1996 letter to the Court." Defendants Memorandum of Law, at 7. To support their position, defendants cite to what they term new evidence: the May 1997 indictment against Turner, which lists "Lexus" as one of Turner's aliases and charges her with, among other things, the June 19, 1996 sale of cocaine. Based on the indictment, defendants vaguely contend that the government "must have known" more information regarding Shatima Turner's drug activities and that the government may have purposefully halted an investigation of Turner to maintain her credibility.
The government responds by affidavit that it disclosed all information then known to the government in its November 15, 1996 letter to the Court. The government also refutes defendants' unsupported allegations that Shatima Turner was the target of any federal investigation either before or during the second trial. As explained by the government, Shatima Turner did not become the subject of a federal investigation until commencement of Operation Golden Road. Thus, according to the government, information regarding Turner's drug activities, as charged in the May 1997 indictment, did not surface until the narcotics investigation commenced after the second trial. Furthermore, the government explains that the June 19, 1996 sale of cocaine charged in the indictment is based on circumstantial evidence and a Pinkerton theory of liability, and there is no other corroborating evidence that the "Lexus" involved in the sale of cocaine on that date is Shatima Turner.
It is plain that defendants' argument is based on little more than rank speculation. See, e.g., United States v. Upton, 856 F. Supp. 727, 746 (E.D.N.Y. 1994) (stating that mere speculation is insufficient to establish Brady violation). The government unequivocally states that it disclosed all available information regarding Shatima Turner in its November 15, 1996 letter to the Court and defendants. Defendants' unsubstantiated and baseless accusations that the government possessed additional information not disclosed in the November 15, 1996 letter do not, without more, provide reason for a new trial.
Moreover, the May 1997 indictment of Shatima Turner is hardly the smoking gun that defendants maintain. As explained by the government, it did not learn of any further information regarding Shatima Turner until commencement of Operation Golden Road after defendants' second trial. In short, all we have in this case is unsupported speculation by defendants that the government failed to disclose Brady material regarding a cooperating witness. In light of the governments' uncontradicted explanation for its actions, the Court finds that defendants' argument does not rise to the level of a Brady violation, and thus, a new trial is not warranted.
The Court has considered defendants' remaining arguments and finds them to be similarly without merit.
For the reasons stated above, defendants' motion for a new trial is DENIED.
IT IS SO ORDERED.
Dated March 11, 1998
at Binghamton, New York
Thomas J. McAvoy
Chief U.S. District Judge
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