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July 28, 1999


The opinion of the court was delivered by: Nickerson, District Judge.


On June 8, 1999 a jury found defendant Charles Schwarz guilty of conspiring to violate, and violating, the civil rights of Abner Louima. Schwarz has moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, and for release on bail pending sentencing and appeal of his conviction pursuant to 18 U.S.C. § 3143(a) and (b).


Schwarz seeks a new trial based on various claims. The most prominent is that Assistant United States Attorney Alan Vinegrad violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose to the attorney for Schwarz the substance of an attempt by Marvyn Kornberg, Esq., the attorney for defendant Justin Volpe, to negotiate with Mr. Vinegrad a plea bargain.

As described in Mr. Vinegrad's affidavit, on May 20, 1999 Mr. Kornberg approached and said that Volpe was prepared to admit his own guilt but wished the opportunity to testify that a police officer other than Schwarz was present in the bathroom during Volpe's sexual assault on Abner Louima, and that no one other than Volpe assaulted Louima in the patrol car.

The government rejected Mr. Kornberg's offer the very same day.

On May 24, 1999, the day before Volpe pleaded guilty, Mr. Kornberg informed Schwarz's attorney that Volpe could "take your guy [Schwarz] out of the bathroom."

On May 25, 1999, after Volpe pleaded guilty, Schwarz's attorney, when asked by a reporter whether he intended to call Volpe in his client's defense, replied: "You mean the man who admitted pleading guilty to torturing another individual? Uh, no, I don't need Mr. Volpe's testimony."

The admitted facts show no violation of Brady.

The government is not required to disclose to the defense a witness' exculpatory statement when the defendant is on notice of the essential facts enabling him to interview the witness, call him to the stand, and take advantage of the exculpatory information. As the Second Circuit stated in United States v. Ruggerio, the purpose of Brady is to

  assure that [the defendant] will not be denied access
  to exculpatory evidence known to the government but
  unknown to him. Here the [defendant] was on notice of
  the essential facts required to enable him to take
  advantage of such exculpatory testimony as [the
  witnesses] might furnish. He was also well aware of
  the process by which they could be compelled to
  testify at trial. . . . If [the defendant] wanted
  their testimony, the obvious and logical course was
  to subpoena them and put them on the witness stand.

472 F.2d 599, 604 (2d Cir. 1973).

The memorandum in support of Schwarz's motion for a new trial says that "the fact that Volpe was prepared to waive his Fifth Amendment right and exonerate Schwarz was unknown to the defense and was not disclosed by the prosecution until June 17, 1999." He claims the government's nondisclosure somehow inhibited his attorney from seeking to interview Volpe or from calling Volpe to the stand. The attorney, who knew from Mr. Kornberg before Volpe pleaded what he would allegedly say, argues that Brady entitled the defense to disregard exculpatory information unless it comes from "credible sources."

Nothing in Brady or the cases that followed it justifies such an assumption. When the defendant either knows, or should have known, of the essential facts that would allow him to take advantage of information favorable to him, there is no Brady violation. There has then been no "suppression" of material. United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982). That Schwarz's attorney declined even to try to take such advantage is some measure of the assessment by an experienced lawyer of the value of Volpe's testimony. In any event the failure to call Volpe as a witness was not the result of any Brady violation by the government. It was a tactical decision of the defense.


Schwarz also seeks a new trial, claiming that the jury verdict was tainted. His attorney submits post-verdict type-written affidavits executed by three of the "anonymous" jurors, all three in almost identical language.

Each affidavit says that the juror "contacted" Schwarz's attorney and "discussed certain aspects of the jury's deliberations with him," and that during the jury deliberations, despite the jurors' "best efforts to avoid publicity," one juror mentioned that Volpe had pleaded guilty to assaulting Louima in the bathroom and making the assault with another person present.

Each of the three jurors then went on to recite that after their jury service they learned "through press accounts" that Mr. Kornberg had said to the prosecutors that the second officer in the bathroom was not Schwarz. The jurors concluded that had they known what Mr. Kornberg had said they would have had a reasonable doubt as to the guilt of Schwarz.

The three "anonymous" jurors thus made two separate statements, one, that an unidentified juror mentioned that Volpe had said in his plea allocution that he assaulted Louima "with" another officer, and two, that had they known of Mr. Kornberg's later extrajudicial statement to the press they would have had a reasonable doubt as to Schwarz's guilt.

As to the first statement that more than one officer was present in the bathroom, the affidavits suggest nothing to indicate that this was used by any juror in coming to a verdict or that it had the slightest impact on any juror.

The fact that there was a second police officer in the bathroom with Volpe could hardly have been news to the jury. If anything was clear in the testimony of the government witnesses it was the fact that such a second officer was present. From the very first statement by Louima to the police concerning the incident he so stated, and he reiterated that statement often thereafter. Moreover, there was ...

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