Argued: Feb. 22, 2012.
Steven L. Tiscione, (Emily Berger, on the brief), Assistant United States Attorneys (of counsel), for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, N.Y., for Appellee.
Lee Ginsberg, Freeman, Nooter & Ginsberg, New York, N.Y., for Appellant.
Before: LEVAL, SACK, HALL, Circuit Judges.
LEVAL, Circuit Judge:
Defendant Patrick Murray appeals from a judgment of conviction of the United States District Court for the Eastern District of New York (Gleeson, J. ). Murray contends primarily that the district court
denied him the right to present a meaningful defense by rejecting his proffer of surrebuttal evidence to counter evidence introduced by the government on rebuttal. We agree and therefore vacate the judgment and remand for a new trial.
Following trial, the jury found Murray guilty on four counts relating to the cultivation of marijuana plants at 88-23 237th Street in the Bellerose neighborhood of Queens, New York. The court sentenced him primarily to sixty months of incarceration, followed by eight years of supervised release.
A. The Evidence at Murray's Trial
The evidence at Murray's trial was as follows. At approximately 12:00 p.m. on February 24, 2009, several police officers, acting on an anonymous tip, drove to the 237th Street house. After arriving, the officers saw the defendant driving a van in the house's driveway and stopped him. They entered the house and, in a small room inside the boiler room in the basement, found numerous marijuana plants and a sophisticated setup for growing marijuana. The officers recovered keys from Murray, including a key for the door of the boiler room and the door of the room in which the marijuana plants were found.
The 237th Street house was owned by Matthew Cody. Cody and Murray were both firefighters assigned to the same firehouse in Queens. Cody and Murray each testified at Murray's trial, offering conflicting stories as to whether Murray was involved in the marijuana-growing operation.
Cody, who was also charged with the marijuana offenses and pleaded guilty to the conspiracy charge, testified against Murray pursuant to a cooperation agreement. In return for his cooperation, the government undertook to write to the sentencing judge in support of alleviating Cody's sentence. According to Cody, it was Murray who had the idea of growing marijuana at Cody's house. Murray had visited Cody's house a few times in late October or early November of 2008 to help Cody convert the basement into a rentable apartment. When Cody realized he would not be able to rent out the basement, Murray suggested they grow marijuana plants there. Cody testified he had never grown marijuana and did not know how to do it. Nevertheless, he agreed to Murray's plan. Murray decided which room to use and gave Cody directions how to set up the grow room and tend to the plants, which Murray provided. Murray purchased light bulbs for the grow room and liquid plant food.
In February 2009, Murray decided to move the marijuana plants out of the basement because the smell was detectable. Murray and Cody planned to meet in the early morning of February 24 (the day of Murray's arrest) and use Cody's truck to move the plants. When Cody arrived at the house at approximately 7:00 or 8:00 that morning, Murray was not there. Cody called Murray several times without success and after waiting an hour or two, Cody left to go on an out-of-state trip.
Murray testified in his defense and denied any involvement in or knowledge of the marijuana found in Cody's house. He
testified that, in the fall of 2008, at Cody's request, he went to Cody's house approximately five to seven times to help Cody with construction work to convert the basement into a rentable apartment. Cody gave Murray keys to the house to permit Murray to borrow Cody's tools. Murray denied ever learning that it would not be feasible to rent out the basement apartment. He denied any awareness of the growing of marijuana plants there.
According to Murray, on February 23, 2009, Cody asked Murray to come to the house the next day to help move some heavy items and pick up garbage. On the morning of February 24, Murray woke up, finding he had missed several calls from Cody. He answered a call from Cody at around 9:00 a.m. Cody asked him to rent a van because Cody's truck was full of debris. Murray rented a van at about 10:30 a.m., got something to eat, and then drove the van to the house. When he arrived at Cody's house, ...