Second Circuit in Bayless agreed that the newly offered evidence in issue was cumulative. Id. at 131-32. That is not the case here. The alleged testimony of these other individuals would not have been cumulative. These individuals allegedly had the opportunity to communicate with the defendant in a setting different than that presented by the search. In other words, the circumstances presented a view of the question — the defendant's language skills — that was independent of, and perhaps corroborative of, the testimony of the officers. It did not involve the officers, who had an obvious interest in the affirmance of the legality of the search. Rather, it bolstered the officers' testimony that the defendant clearly understood that he was consenting to a search. Had this information been available and presented at the suppression hearing, more caution may have been exercised before coming to the conclusion that the defendant and his brother testified credibly, and that the officers did not.
2. Newly Discovered Evidence
For the purposes of this motion, it is accepted that the government could not have been aware of Crandall's information prior to the suppression hearing. However, reconsideration is still improper. According to the government, Crandall sent a letter*fn2 to then United States Attorney Joseph Pavone, detailing his conversations with the defendant, and alleging that the defendant told him, in proper and understandable English, about how he testified falsely; and that he truly did understand that he was consenting to a search. The letter was received by the government on September 9, 2002, a few weeks after the conclusion of the suppression hearing, but nearly a full two months prior to the issuance of the MDO2 in question. The government was free to bring this alleged new evidence to light after the hearing while the motion to suppress was pending. At the very least, a request to delay the issuance of the decision for a reasonable time to enable the government to investigate and perhaps move to reopen the hearing would have been warranted. It would seem especially appropriate to do so in light of the amount of weight the government now attaches to the letter (and resulting affidavit), it being the lone concrete piece of evidence attached to its motion for reconsideration. The government chose not to do so.
Perhaps in anticipation of this very argument, the government responds that it undertook an investigation to establish whether Crandall was telling the truth before formally presenting the evidence; and that the investigation was not completed until after it talked to inmate Crandall on November 15, 2002. This response is rejected on its face. It makes little sense for the government to doubt the truth of what Crandall alleged if, as the government argues, there were many other individuals in the prison who could testify as to the defendant's English-speaking skills. Thus, the consideration of the letter is rejected insofar as the government wants it considered in determining the defendant's language skills in general. Any argument that what is important in the letter is not the general fact that the defendant clearly understood and spoke English, but rather the specific admissions by the defendant that establish he consented on that particular occasion, is also rejected. This argument has its basis in the general argument, and essentially amounts to the same conclusion.*fn3
In addition, even assuming a proper and careful investigation was needed to establish that Crandall was indeed telling the truth about the defendant's admission and the proposition — that the defendant clearly understood and spoke English — that the government already wholeheartedly accepted, said investigation should have been concluded long before the MDO2 of November 6, 2002, was issued. The government claims that after it received Crandall's letter, it began the investigation by obtaining his criminal history, and contacting the relevant attorneys involved in his case. The government alleges that his defense attorney originally said he would speak to him and then to the prosecutor, but did not do so. Instead, according to the government, Crandall's defense attorney informed the government that it could speak to him directly. The government then obtained the identification of Crandall's parole officer before finally interviewing him on November 15, 2002.
While the truth of these allegations of investigation is not here challenged, the fact that it took over two months to complete these somewhat simple, rudimentary tasks, which essentially was comprised of a few phone calls and a visit to Crandall, somewhat undermines the notion that the government believed that what Crandall had to say was important, and does not inspire a conclusion of due diligence. At the very least, due diligence required a speeding up of the process so that the information could come to light prior to the MDO2 being filed. That was not done in this case.*fn4
The government will not now be permitted to relitigate an issue already decided. An issue on which the government had months to prepare and gather witnesses and testimony. An issue on which the supposed cumulative and newly discovered evidence was, or should have been, in the government's hands and brought to the attention of the Court at the hearing, or, at the very least, prior to the issuance of MDO2.
The government's motion for reconsideration, and to reopen the suppression hearing for the allowance of additional evidence must be denied. Insofar as it relates to reconsideration of the MDO that no probable cause existed to arrest the defendant prior to the search and seizure, the government's motion is untimely. Neither the alleged cumulative evidence nor new evidence warrants a reconsideration of MDO2 or to reopen. The cumulative evidence was not, in fact, cumulative at all of the testimony of the two law enforcement officers and the motel clerk. Any new evidence was not obtained with due diligence. Further, the existence of the alleged new evidence should have been brought to the Court's attention when it was discovered, some considerable time before the MDO2 granting the defendant's motion to suppress was issued.
Accordingly, it is
ORDERED that the United States of America's motion for reconsideration and to reopen the suppression hearing is DENIED.
IT IS SO ORDERED.