The opinion of the court was delivered by: Trager, J.
Defendant Manuel Santos was charged with murdering Wilber Garces and his fourteen-year-old stepson Edgardo Bryan on the evening of September 26, 2000, and with using a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). He was tried before a jury and convicted. Santos was sentenced to two concurrent terms of life imprisonment for the murders and a consecutive sentence of ten years' imprisonment for the § 924(c) firearm offense. Santos appealed, challenging the application of 21 U.S.C. § 848(e)(1)(A) to the set of facts the government proved at his trial and the sufficiency of the evidence forming the basis of his conviction. The Court of Appeals for the Second Circuit affirmed. United States v. Santos, 541 F.3d 63 (2d Cir. 2008), cert. denied, 129 S.Ct. 960 (2009). Santos then filed this motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, citing newly discovered evidence. Santos also argues that some of the information on which he bases his Rule 33 motion was available to the government before his trial and should have been disclosed under Brady v. Maryland, 373 U.S. 83 (1963). In a related claim, Santos asserts that, because some of this information was available to the government at trial, it suborned perjury by allowing one of its main witnesses to testify inconsistently with that information. Santos also has a pending motion for resentencing in which he argues that, in light of the Second Circuit's recent decision in United States v. Williams, 558 F.3d 166 (2d Cir. 2009), his ten-year sentence for Count Three, the § 924(c) count, should be vacated.
Because none of the information on which Santos bases his Rule 33 and Brady claims constituted admissible evidence, or would lead to admissible evidence, and because the government introduced more than sufficient evidence corroborating its principal witness and Santos's participation in the murders, Santos's motion for a new trial is denied. His remaining motions and requests for discovery and for evidentiary hearings are also denied.
Santos was recruited by Carlos Medina to carry out the shooting that culminated in the deaths of Garces and Bryan. Medina cooperated with the government and testified for the prosecution at Santos's trial.
According to Medina, he worked for a man named German Polanco, who had $316,000 in cocaine-sale proceeds stolen from him. Polanco blamed the theft on two men, known to Medina only as "Ronnie" and "El Renco," and assigned Medina the duty of hiring men to kill them. Another Polanco associate named Luis Rodriguez, who was present when Polanco gave Medina his assignment, volunteered to supervise the shooting on Polanco's behalf. Polanco agreed, and Rodriguez served as Polanco's go-between in organizing the shooting while Medina retained authority to hire the shooters.
Medina hired Santos and another man named Alex Core for the job. After explaining the reason for the shooting to Santos, Medina agreed with Santos on payment terms and, on the morning of September 26, 2000, drove him and Core to "Ronnie"'s residence in Queens so he could point it out to them. That afternoon, Medina, Santos and Core returned to that location and parked in a parking lot on 101st Street and Park Lane South across from "Ronnie"'s residence, where they waited for "Ronnie" and "El Renco."
Later that same evening, Garces and Bryan left the house Medina, Santos and Core had been monitoring, crossed the parking lot, entered a car and pulled out of the parking space. As their car reached the exit of the parking lot, Santos blocked the car with his SUV. Santos and Core then jumped out of the SUV and shot several rounds into the car. Garces and Bryan died from the gunshot wounds sustained in the encounter. Intending to kill "Ronnie" and "El Renco," Santos and Core had instead murdered Garces and Bryan, Garces's fourteen-year-old stepson.
Core's friend, Wilfredo Acosta, corroborated Medina's account of what happened that day. Acosta testified that, earlier in the day, he had joined Medina, Santos and Core in their stakeout of "Ronnie"'s residence and that the three of them intended to kill certain inhabitants of the residence. Acosta also saw that Santos and Core had guns. Apparently feeling apprehensive about the shooting, Acosta jumped out of Core's van while Core drove him back to his neighborhood. Finally, Acosta testified that weeks after the murders Santos told him that he had done most of the shooting because Core's gun jammed.
The government supported Medina's and Acosta's accounts of these events with ballistics evidence. In 1999, Santos had been involved in a physical altercation at a bar with another patron known only as "Sweets." Santos had pulled a gun on "Sweets," who grabbed the gun and shot it into the ceiling. Ballistics analysis presented at trial linked the casings from that shooting with casings recovered from the murder scene.
Lastly, the government introduced telephone records from a calling center in Brooklyn from the evening of September 26, 2000. The records showed that two calls were made within one minute of each other -- one to Santos's home and one to Polanco's pager -- which comported with Medina's account that he called Polanco after the murders and that Santos was in the calling center with him.
Well after trial, the government filed two letters under seal, dated June 1 and December 31, 2009, disclosing to Santos the statements of six informants: three confidential sources ("CS-1," "CS-2" and "CS-3") and Jose Guerrero ("Guerrero" or "Harry"); Eudaldo Jaramillo Aguilar ("Aguilar" or "Lalo"); and Tomas Rojas Bermudes ("Bermudes," "El Rinco" or "Rincon"). The true identities of the confidential sources were disclosed to Santos's counsel but remain sealed from Santos and the public. All six informants provided versions of the events surrounding the murders that were different from the facts shown at trial. All six accounts are summarized below.*fn1
The government's December 31, 2009, letter disclosed that CS-1 spoke with agents from Immigration and Customs Enforcement and Assistant United States Attorneys ("AUSAs") Colleen Kavanagh and Carrie Capwell in early 2004 (before Santos's trial in November 2004). In his initial proffer, CS-1 told the government that he had heard that "Tulita" had participated in break-ins at the Howland Hook Marine Terminal ("Howland Hook") on Staten Island and that he had heard that "Tulita" and his son-in-law were killed at a red light on Atlantic Avenue because "Tulita" had stolen drugs from one of the bags "Tulita" had taken from Howland Hook. CS-1 related that the shipment from which "Tulita" stole belonged to "Tabla"*fn2 and that there was only one shooter.
CS-1 claimed that he had heard that "Harry" was the shooter but later contacted AUSA Kavanagh, through his attorney, to tell her that he thought it was "Ronnie." Finally, in November 2005, CS-1 told the government that he had heard that "Tulita," while working for "Tabla," had been stealing drugs and selling them to "Ronnie," who killed "Tulita" so he would not have to pay him. CS-1 claimed that he heard these rumors "on the street" and never identified his source.
The same letter also disclosed that, in November 2005, CS-2 told the government that he had heard that "Tulita" was part of the break-in crews that removed shipments from Howland Hook. CS-2 further stated ...