United States District Court, E.D. New York
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
MEMORANDUM OF DECISION & ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE
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.
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.
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
The Relevant Legal Standards
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
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).
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)).
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).
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)).
The Defendant's Bases For a New Trial
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