The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Defendant Thamud Eldridge was charged by indictment with three counts:
(1) unlawful possession of a firearm and ammunition by a person previously convicted of a felony; (2) possession of cocaine base with the intent to distribute it; and (3) possession of marijuana. A jury found the defendant guilty of all three counts. After trial, one of the government's key witnesses, a police officer named Earl Perrin, made statements suggesting that he and another officer had intentionally assaulted the defendant after arrest. Those post-trial statements were contrary to statements that Perrin had made during a police investigation into the matter. The government disclosed the statements pursuant to its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and requested further guidance from the Court. The Court directed that the information be disclosed to the defendant. Upon disclosure, the defendant moved to vacate his convictionunder Fed. R. Crim. P. 33 asserting that the undisclosed impeachment information warrants a new trial. The government opposes the motion arguing that a new trial is unwarranted because, at most, the statements show only that Perrin may have committed perjury in another proceeding but do not relate to the substance of his testimony at trial.
For the reasons stated, the Court finds that an evidentiary hearing is necessary to resolve the defendant's motion for a new trial.
The charges in this case arose as a result of a police encounter between defendant Eldridge and Buffalo Police Officers Mark White and Earl Perrin on December 7, 2005. Both officers testified at trial and were key witnesses in the case against the defendant. Their testimony is summarized as follows.
While on patrol in the City of Buffalo on that date, Officers White and Perrin came upon a parked van with an individual--later identified as defendant Eldridge--standing outside the passenger side of the van leaning in. It was a cold, snowy night and the officers found it odd that the person would just be standing outside in that weather. As they approached the van, they observed an object wrapped in a plastic grocery bag being passed to the defendant. One of the officers, Earl Perrin, testified that he saw the passenger say "oh shit, it's the police." (See Trial Tr., Dkt. 127, at 63).
At trial, both officers testified that, even though they could not see what was in the bag, they were certain it was a gun based upon their assessment of the weight of the object and the manner in which the defendant was carrying it. After Eldridge saw the officers, he turned and ran. Officer White testified that the defendant first pointed the object (still wrapped in the bag) at him in a manner that suggested he was pointing a gun. The defendant then quickly turned and ran, and tucked the object in his pants as he did so. Officer Perrin remained with the individuals seated in the parked van.
Officer White chased Eldridge in a large circle: west down East Ferry, south on Bissell Avenue, east across yards to Goodyear Avenue, across Goodyear, then north behind a garage on Goodyear and back to East Ferry. While Officer White was chasing the defendant, Officer Perrin initially stayed with the occupants of the van on East Ferry. Officer Perrin radioed for assistance. He then made several unsuccessful attempts to reach Officer White over the radio but when White failed to respond, Perrin became worried and joined the chase. Unbeknownst to Officer White, his radio was turned off. The occupants in the van immediately drove away when Officer Perrin joined the chase.
At about that point, Lieutenant Michael McCarthy arrived as back up and joined the chase. McCarthy and White lost sight of Eldridge. They then spotted his footprints in the fresh snow and followed them. The footprints stoppedabruptly in front of a deli located on East Ferry Street in Buffalo. Lieutenant McCarthy noticed the defendant lying on the roof of a deli and pointed him out to Officer White. Lieutenant McCarthy had his gun drawn and ordered the defendant to show his hands as Officer White began climbing onto the deli roof. The defendant, who was positioned partially behind a wall on the deli roof looking down at Lieutenant McCarthy, just stared, "smirked" and refused to show his hands. As Officer White climbed up onto the deli's roof, the defendant moved on the roof toward the front of the deli. When Eldridge moved on the roof towards the front of the deli, other officers on East Ferry, including Officer Perrin, saw him. As Officer White made it onto the roof, the defendant ran down the roof and jumped onto the upper-level porch of the home next door, 1135 East Ferry Street. He then dove head first through the closed window of that house. The defendant did not live at 1135 East Ferry Street or have permission to enter.
Officer White continued the chase and jumped from the deli roof onto the porch of 1135 East Ferry in pursuit of the defendant. Lieutenant McCarthy shouted to White to remain outside on the porch until other officers arrived. By that time, as many as 20 officers had converged on the scene. Perrin and many other officers entered the house from the ground floor and tried to gain access to the upper apartment from the hallway while White waited on the porch. From where he stood, White could see the defendant through the window. White testified that the defendant was in a room behind the front room and he was leaning against an entry way door struggling to keep the door closed. Officer Perrin and others were on the other side of that door trying to gain access to the apartment. White also saw the defendant trying to hide something under a curio cabinet. As he watched, White used a flashlight to break the glass so that he could enter the apartment without getting cut. At some point, Lieutenant McCarthy joined White on the porch. White and McCarthy entered the apartment through the broken window just as the other officers successfully broke through the door.
When the officers broke in, part of the door landed on the defendant. A struggle ensued. The defendant resisted arrest and the officers had to punch him and hit him in order to get him to place his hands behind his back to arrest him. White admitted punching the defendant during the struggle to gain control of him. As many as eight officers were struggling on the floor trying to get the ...