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United States v. Mavashev

February 23, 2010

UNITED STATES OF AMERICA,
v.
ROMAN MAVASHEV, DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge

MEMORANDUM & ORDER

Familiarity with the background, charges, procedural history and current disposition of this case is presumed. See generally United States v. Mavashev, 2009 WL 4746301 (E.D.N.Y. Dec. 7, 2009); Memorandum and Order of January 14, 2010 (Docket Entry No. 43). By letter dated January 22, 2010, defendant requests further Brady disclosure by the government. The government opposes this request by letter dated February 3, 2010, and requests reciprocal discovery from defendant. For the reasons set forth below, defendant's request for further Brady disclosure is denied, and the government's discovery requests are granted in part and denied in part.*fn1

I. Background

By letter dated November 19, 2009, the government disclosed to defendant the names and contact information of three potential witnesses-Latasha Matthews, Christina Nikolodakis, and Anzhela Borukova-"whose information may constitute Brady material." (Docket Entry No. 26.) On January 15, 2010, in response to a request by defendant, the government supplemented this disclosure with the following summary of the potentially exculpatory information:

Ms. Matthews, who worked at New Generation Funding ("NGF"), advised the government that she was not aware of any destruction or alteration of files by anyone at NGF in preparation for the audit that was conducted by the New York State Banking Department. Ms. Nikolodakis, who worked as an associate of Mr. Mavashev's law firm, advised the government that she was not aware of fraud associated with the loans [defendant] was closing for NGF. Ms. Borukova, who worked as a loan processor at NGF, advised the government that she was not aware of any fraud associated with the loans processed at NGF. (Docket Entry No. 47 at 1.) Defendant renews his request for further Brady disclosure with respect to these witnesses. Specifically, he requests the following:

All statements . . . made by any witness . . . attribut[ing] to others acts or declarations attributed to [defendant]; all statements . . . made by Latasha Matthews wherein she named anyone other than [defendant] as the person who directed her to destroy documents; all statements . . . made by Christina Nikolodakis wherein she admits handling closings that the government's cooperating witnesses claimed were handled by [defendant]; [and] all statements . . . made by any person contradicting statements made by the government's cooperating witnesses. (Id. at 1--2.)

By letter dated February 3, 2010, the government contends that its previous disclosures satisfied its Brady obligations. (Docket Entry No. 49.) Furthermore, it asks that the court compel defendant to produce:

[A]ny books, papers, documents, photographs, tapes, [or] tangible objects . . . which the defendant intends to introduce as evidence or otherwise rely on at trial; any results of reports or physical or mental examinations . . . scientific tests or experiments made in connection with this case . . . which the defendant intends to introduce as evidence; [the] audio recordings [submitted to the court] for in camera review; a written summary of testimony the defendant intends to use under Rules 702, 702, and 705 of the Federal Rules of Evidence; and prior statements of witnesses who will be called by the defendant to testify [pursuant to] Fed. R. Crim. P. 26.2. (Id. at 2--3.)

II. Discussion

A. Brady and Giglio Evidence

"[T]he Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is 'material' either to guilt or to punishment. Favorable evidence includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness." United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001) (citing Giglio v. United States, 405 U.S. 150, 154 (1972); Brady v. Maryland, 373 U.S. 83, 87 (1963)). "[A] prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the outcome of a trial in which the evidence had been disclosed would have been different." Coppa, 267 F.3d at 142. "The rationale underlying Brady is not to supply a defendant with all the evidence in the Government's possession which might conceivably assist the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the Government." United States v. LeRoy, 687 F.2d 610, 619 (2d Cir. 1982). Thus, the scope of the government's disclosure requirements do not extend to "its investigative files merely because they contain information which could assist the defendant." United States v. Reddy, 190 F. Supp. 2d 558, 575 (S.D.N.Y. 2002). "Furthermore, exculpatory and material evidence is not required to be disclosed under Brady if the defendant knows or should have known of 'the essential facts permitting him to take advantage of any exculpatory evidence.'" Id. (quoting United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993)).

With respect to the timing of disclosure, "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." Coppa, 267 F.3d at 144.

"[T]he time required for the effective use of a particular item of evidence will depend on the materiality of that evidence . . . as well as the particular circumstances of the case." Id. at 132. Given the difficulty in determining materiality prior to trial, the Second Circuit has declined to specify a precise meaning for the phrase "in time for effective use." See United States v. Rodriguez, 496 F.3d 221, 227--28 (2d Cir. 2007). Thus, a district court has the discretion to order Brady/Giglio disclosure at any time as a matter of "sound case management." United States v. Nogbou, 2007 WL 4165683, at *3--4 (S.D.N.Y. Nov. 19, 2007); United States v. Giffen, 379 F. Supp. 2d 337, 347 (S.D.N.Y. 2004). Indeed, "in some cases, mid-trial disclosure may be adequate where defense counsel, before the start of cross-examination, is given the opportunity to cross-examine the witness outside the presence of the jury." Rodriguez, 496 F.3d at 228 n.6; see also United States v. Rivera, 60 F. App'x 854, 858 (2d Cir. 2003) (finding no Brady violation where exculpatory information was not revealed to defendant until government witness's direct testimony).

Here, the government has already disclosed to defendant-months before the start of trial-the names of three potentially exculpatory witnesses.*fn2 Such disclosure alone has been held to satisfy Brady in this Circuit. See, e.g., United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997); United States v. Fasciana, 2002 WL 31495995, at *2 (S.D.N.Y. Nov. 6, 2002); Reddy, 190 F. Supp. 2d at 575 ("Once the Defendant[] [is] aware of the existence of such witnesses, [he] may . . . subpoena them if the Government does not intend to call them as witnesses at trial.") (citations and internal quotation marks omitted).The government has also described the nature of the exculpatory information possessed by each of these witnesses (see Docket Entry No. 47), further assisting ...


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