UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
April 28, 2010
UNITED STATES OF AMERICA,
RAJ RAJARATNAM AND DANIELLE CHIESI, DEFENDANTS.
The opinion of the court was delivered by: Richard J. Holwell, U.S. District Judge
MEMORANDUM OPINION AND ORDER
On February 5, 2010, the government submitted an ex parte application to the Court for an order permitting it to produce certain documents to the defendants in redacted form. According to the government, the documents reflected statements that Roomy Khan, a cooperating witness, had previously made to the government. The government asked permission to redact certain portions of these documents (the "Khan documents") that related to ongoing covert investigations involving two individuals occasionally mentioned in the Khan documents. On February 8, 2010, the Court granted that request. In mid-March, after the government's production of the Khan documents in redacted form, defendant Rajaratnam moved for an order compelling the government to produce unredacted versions of the material. The government filed an opposition to that motion. Recently, the Court directed the government to deliver the Khan documents in unredacted form for its in camera review. Having now undertaken that review, the Court concludes that the defendants' motion should be denied.
Rajaratnam argues that production of the documents in unredacted form is required by Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).*fn1
Brady obligates the government "to disclose favorable evidence to the accused where such evidence is 'material' either to guilt or to punishment." United States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003) (citing Brady, 373 U.S. at 87). Favorable evidence plainly includes exculpatory evidence, but Giglio held that it also includes evidence that can be used to impeach the credibility of a government witness. See Jackson, 345 F.3d at 70 (citing Giglio, 405 U.S. at 153--55). The government is obligated to turn over Brady material "no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made." United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001).
Assuming that Brady and Giglio apply to pretrial suppression hearings,*fn2 the Court's review of the unredacted Roomy Khan documents provides no basis for ordering production of the redacted material at this stage for the specific purpose for which the defendant seeks it. Rajaratnam seeks the material to aid him in impeaching the credibility of Khan, a cooperating witness whose statements the government used to support its wiretap applications in March 2008 and thereafter. (Def.'s Mem. 7.)*fn3 The unredacted material demonstrates that Khan provided inconsistent information to the government. On November 28, 2007, for example, she "denied any wrongdoing by herself or Mr. Rajaratnam," but later she changed her story and admitted to insider trading with Rajaratnam and other individuals. (Def.'s Mem. 4.) Rajaratnam argues that the redacted material may provide further evidence of Khan's unreliability and therefore further undermine the basis for probable cause when the government's wiretap applications were first made.
But the government's Brady and Giglio obligations extend only to material impeachment evidence, not to evidence that is "possibly useful to the defense" but is "not likely to have changed the verdict." United States v. Avellino, 136 F.3d 249, 255, 257 (2d Cir. 1998). "[W]here the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material." Shabazz v. Artuz, 336 F.3d 154, 166 (2d Cir. 2003) (quoting Avellino, 136 F.3d at 257); see United States v. Berrios, 2008 WL 2185390, at *2 (2d Cir. May 27, 2008) (where the government had already disclosed that a key witness suffered from psychological problems, its failure to disclose further evidence of that fact did not violate Brady and Giglio because that undisclosed evidence was cumulative and not material); Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir. 1998) ("When a witness's credibility has already been substantially called into question in the same respects by other evidence, additional impeachment evidence will generally be immaterial and will not provide the basis for a Brady claim."); cf. United States v. Castillo, No. 05-2220, 2006 WL 1070904, at *1 (2d Cir. 2006) (finding that Giglio did not mandate disclosure of a piece of evidence which "contradicted the prosecution witness's testimony to a minimal extent" and which, if disclosed, would not have presented a "reasonable probability" that "the result of the proceeding would have been different") (quoting United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995)). Although it is no secret that the redacted material contains additional evidence that Khan engaged in insider trading with individuals,*fn4 the unredacted material provides more of the same. The redactions are therefore cumulative evidence, not material impeachment evidence under Giglio, that Khan made inconsistent statements to the government at different times. While different considerations might warrant reconsideration in connection with the ultimate trial of this matter, the Court is satisfied that the limited redactions made for legitimate investigative purposes are immaterial in the context of defendant's proposed motion to suppress.
Accordingly, Rajaratnam's motion  is denied, with leave to renews on August 15. Upon a renewed motion to compel the production of this material, the government will be required to satisfy the Court that the redacted information is not Brady or Giglio material in connection with the impending trial.