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United States v. Walsh

United States District Court, E.D. New York

August 29, 2017

EDWARD M. WALSH, JR., Defendant.

          United States Attorney's Office, Eastern District of New York By: Raymond A. Tierney, Assistant U.S. Attorney Catherine Mary Mirabile, Assistant U.S. Attorney

          Leonard Lato, Esq. Co-Counsel for the Defendant

          William D. Wexler, Esq. Co-Counsel for the Defendant



         On March 31, 2016, after a jury trial, the Defendant Edward M. Walsh, Jr. (the “Defendant”) was convicted of two felony counts, the same counts for which he had been indicted by a grand jury on March 6, 2015. On June 20, 2017, the Defendant was principally sentenced to twenty-four months incarceration on each count, to run concurrently; three years supervised release; and restitution and forfeiture in the amounts of $245, 811.27.

         Presently before the Court is a motion by the Defendant for a new trial pursuant to Federal Rule of Criminal Procedure (“Fed. R. Crim. P.” or “Rule”) 33 based on the Government's alleged Brady and Giglio violations. For the following reasons, the Defendant's motion is denied in its entirety.

         I. BACKGROUND

         For purposes of these motions, familiarity with the underlying trial record, which spans more than two thousand (2, 000) transcribed pages, is presumed. The Court's discussion of the evidence adduced at the trial will be limited to the specific challenges presently raised by the Defendant. In this regard, references to the trial transcript are denoted as “Tr.”


         A. The Relevant Legal Standards

         Rule 33 states that “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). This rule, “by its terms gives the trial court ‘broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.'” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir. 2001) (quoting United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir. 1992)); see also United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998) (“A district court should grant a new trial if it is convinced that the jury has reached a seriously erroneous result or that the verdict is a miscarriage of justice.” (internal quotation marks and citation omitted)).

         Brady requires the Government to disclose material evidence which is favorable to a criminal defendant. United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004). Evidence is favorable if it is either exculpatory or impeaching, Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999), and it is material if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different[, ]” Youngblood v. West Virginia, 547 U.S. 867, 870, 126 S.Ct. 2188, 2190, 165 L.Ed.2d 269 (2006) (internal citations and quotation marks omitted).

         There are three components to a Brady violation that a defendant must establish: “ (1) that the evidence at issue is ‘favorable to the accused, either because it is exculpatory, or because it is impeaching'; (2) the ‘evidence must have been suppressed by the State, either willfully or inadvertently'; and (3) ‘prejudice must have ensued.'” United States v. Paulino, 445 F.3d 211, 224 (2d Cir. 2006) (quoting Strickler, 527 U.S. 263, 281-82, ); see also United States v. Jackson, 345 F.3d 59, 71 (2d Cir. 2003); see generally United States v. Coppa, 267 F.3d 132, 139 (2d Cir. 2001)).

         The third component is also known as the materiality component. The “touchstone of materiality is a ‘reasonable probability' of a different result.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). “This is not a test for sufficiency of evidence; the defendant must show that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Jackson, 345 F.3d at 73-74. A court must consider “the cumulative effect of suppression” in light of the evidence as a whole, Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555, and conduct its “own independent examination of the record in determining whether the suppressed evidence is material.” United States v. Orena, 145 F.3d 551, 558 (2d Cir.1998).

         A defendant “seeking a new trial on the basis of an alleged Brady violation bears the burden of demonstrating both that the Government suppressed exculpatory information and that this information was material.” United States v. Brunshtein, 344 F.3d 91, 101 (2d Cir. 2003) (citing United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995)).

         B. The Defendant's Bases For a New Trial

         The Defendant contends that he is entitled to a new trial because the Government concealed certain evidence-namely, that he worked more hours than the Government alleged, and by suppressing material from three witnesses that the defense ...

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