The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
On March 10, 2008, a jury found the defendant guilty of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c), and of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). The matter is now before the Court on the defendant's motion for a new trial on the ground that the Government failed to disclose the grand jury testimony of Special Agent Christopher Robinson ("Robinson") of the Bureau of Alcohol, Tobacco, Firearms and Explosives. For the reasons stated below, the defendant's application is denied.
On April 19, 2007, a federal grand jury returned a two-count indictment against the defendant. Count One accused him of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(c), and Count Two accused him of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). The presentation to the grand jury took place on April 19, 2007, the same date that the indictment was returned. Robinson was the sole witness called by the Government to testify before the grand jury. Relevant to the defendant's motion for a new trial is Robinson's grand jury testimony regarding the shotgun and drugs that the defendant was accused, and ultimately convicted, of possessing. More specifically, Robinson testified in the grand jury that the serial number on the shotgun was "X24684M" when in fact, as determined at the time of trial, the actual serial number was "X240681M." As to the drugs, Robinson testified that he believed the seven bags of cocaine base ("crack cocaine") that were recovered were "dime bags."
On September 26, 2007, the Court heard oral argument with respect to the defendant's pre-trial omnibus motion. In that regard, the defendant requested Jencks material in advance of the time required by statute. Upon consent of the Government, the Court ordered that Jencks material be turned over two weeks before trial. Subsequently, by order of the Court filed on January 28, 2008, the trial of this matter was scheduled to commence on March 3, 2008.
As required by the Court's January 28, 2008 order, the Government filed a witness list on February 25, 2008. Two days later, on February 27, 2008, the Government filed an amended witness list. On both filings, the Government indicated that it anticipated calling:
SPECIAL AGENT CHRISTOPHER ROBINSON
Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), will testify concerning his involvement in this investigation, and if necessary, he will testify concerning the statements made by the defendant during the proffer interview with the defendant.
At trial, on its direct case, the government called Investigator John Brennan ("Brennan") of the Rochester Police Department as an expert in the area of narcotics trafficking. Brennan testified as to how crack cocaine is generally produced and how it is generally sold in the city of Rochester. Brennan further offered his opinion that the seven baggies containing crack cocaine, seized from the defendant's residence, were consistent with possession with intent to distribute, rather than for personal use. In this regard, he testified that each of the bags was a "twenty bag." Brennan explained that a "twenty bag" generally weighs about .40 grams, while what is referred to as a "dime bag" generally weighs about .20 grams. However, introduced into evidence at trial was a stipulation, reached between the defendant and the Government, as to what Linda Teague ("Teague"), a Forensic Chemist employed by the Monroe County Public Safety Laboratory, would testify if called to the stand. The stipulation indicated, inter alia, that Teague would testify that each of the seven bags in question contained crack cocaine and weighed respectively as follows: 0.118 grams; 0.118 grams; 0.126 grams; 0.133 grams; 0.133 grams; 0.141 grams; and 0.179 grams. The Government also attempted to use Brennan's testimony to discredit the testimony of Sharon Baulkman, a witness for the defense, who testified that the seven bags were "nickel bags." The Government did not call Robinson on its direct case, but did call him as a rebuttal witness. His rebuttal testimony was limited to statements the defendant, in the presence of his attorney, made to Robinson on October 5, 2008 during a proffer interview.
On April 11, 2008, approximately one month after the jury returned its verdict, the Government filed what it captioned a "Motion for an In Camera Ruling Pursuant to Title 18 United States Code Section 3500(c)." (Document # 46.) In its application, the Government explained that it had inadvertently failed to disclose the grand jury testimony of Robinson and requested the Court to review such testimony in camera and determine that it was not Jencks material. However, at a court appearance on April 23, 2008, the Court rejected the Government's application pursuant to § 3500(c), since it determined that such section of law applied to a request made before a witness testified, not after. Accordingly, the Court ordered that Robinson's grand jury testimony be turned over to the defendant.
On May 7, 2008, the defendant filed a motion for a new trial "based upon the government's suppression of favorable evidence in violating his due process rights under Brady, his Sixth Amendment confrontation and compulsory process rights and in violation of the Jenks Act." (Affirmation in Support of Defendant's Notice of Motion, ¶ 30, Document # 52.) On May 29, 2008, the defendant filed papers supplementing his request for a new trial (Document # 56).