Fifth Amendment:
A. Prosecutor Conduct
B. Brady
C. Confessions and Testimonial Rights
D. Double Jeopardy
E. Miscellaneous Fifth Amendment
Brady
Sixth Circuit Decisions
• Due Process - BradyU.S. v. Sullivan, 03-6329 (12/20/05)
> Defendant was convicted at trial of multiple bank robberies and on appeal claimed that the government had violated Brady by failing to disclose hair samples and fiber from the robber’s bandana, and suspect description forms completed by eyewitnesses.
* Holding: To establish a due process violation under Brady, a defendant must establish that (1) the evidence at issue is favorable to her, either because it is exculpatory or impeaching, (2) the evidence was suppressed by the government, wilfully or inadvertently, and (3) prejudice ensued such that there is a reasonable probability that the trial result would have been different with the evidence. Regarding the hair samples, there were no root bulbs attached, so DNA sampling was impossible. Regarding the witness forms, defendant failed to show anything exculpatory in the missing forms. Thus, because defendant could show no prejudice to his case and the evidence was otherwise overwhelming, the court found any error to be harmless and affirmed the conviction.
• Due Process - Brady
U.S. v. Blood, 04-5101 (1/24/06)
> Defendant was charged with possession of counterfeit securities with intent to deceive another and during the trial defendant learned that the government’s informant had assisted and testified for the FBI in several other fraud cases. Defendant argued on appeal that the failure to disclose this information pretrial constituted a violation of Brady and Giglio.
* Holding: Pursuant to Brady and Giglio, the government is required to disclose evidence favorable to a defendant, including impeachment evidence. The court held that delay in disclosing Brady/Giglio material only is cause for reversal when the delay itself causes prejudice. Because defendant could not establish any prejudice as a result of the delay in producing the information, the court found no Brady/Giglio violation.
• Due Process - Brady
U.S. v. Blackwell, 05-4588 (8/29/06)
> Defendant was charged with conspiracy to commit insider trading and the government did not produce several documents to defendant until trial. The documents included the details of an immunity agreement with defendant’s ex-wife, and notes of interviews of two witnesses. Defendant was convicted and argued on appeal that the belated disclosure of the documents violated his rights under Brady because he would have fashioned his defense in a different manner had he been aware of the documents and their content.
* Holding: The court first held that Brady generally does not require information to be disclosed prior to trial. Second, the court found that the district court had offered defendant sufficient opportunity to cross examine and/or call witnesses based upon the documents. Finally, the court held that defendant likely should have known the contents of the documents anyway. Thus, the conviction was affirmed.
• Due Process - Brady
Joseph v. Coyle, 05-3111 (11/9/06)
> Defendant was charged with murder and during the course of the jury trial the state disclosed evidence that would serve to impeach a key witness that the state had already presented. The trial court gave the defense several days to review the belatedly disclosed documents, to depose the witness, and to recall the witness to the stand. Defendant chose to not recall the witness, and he was convicted. After losing his state court appeals, defendant filed a federal habeas petition claiming that the state had violated Brady. The district court denied the petition on this issue and defendant appealed.
* Holding: In analyzing an alleged Brady violation, the court considers whether (1) the evidence was favorable to the accused, (2) the evidence was suppressed by the prosecutor, and (3) the defendant can prove prejudice as a result. The court found that the impeachment evidence in question was favorable to defendant and that it was suppressed by the state. The court held, however, that defendant was not prejudiced by the belated disclosure because the trial court afforded defendant an adequate opportunity to investigate and present the evidence. Thus, the conviction was affirmed.
• Due Process - Brady
U.S. v. Mooneyham, 04-5189 (1/9/07)
> Defendant went to trial on a drug conspiracy case and a codefendant testified against him. The government refused to turn over the codefendant’s sealed plea agreement to defendant for impeachment purposes. Defendant learned, however, of the codefendant’s plea deal from a Rule 35 motion filed by the government. Thus, defendant was able to cross examine the codefendant on the witness stand about the benefit he received for testifying. Upon being convicted, defendant appealed.
* Holding: The court found that the information derived by defendant from the Rule 35 motion provided him with sufficient information to effectively cross examine the codefendant. Defendant was unable to show with specificity that he was deprived of impeachment material based upon the actual contents of the plea agreement. Thus, the court found that, even if the failure to disclose the plea agreement was error, the error was harmless.
• Due Process - Brady
U.S. v. Graham, 05-2332 (4/20/07)
> Defendant was charged with conspiracy and various fraud-related offenses. At defendant’s trial, his attorney/coconspirator testified against him in return for a plea deal with the government. Three weeks into the trial, the witness turned over fifteen boxes of documents to the defense that related to the alleged fraudulent offenses. The government did not have possession of the documents before they were turned over to the defense by the witness. Defendant moved for a mistrial based upon Brady. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: In order to establish a Brady violation, a defendant must show that (1) the government suppressed evidence, (2) the evidence was favorable to the defense, and (3) the suppressed evidence was material. Further Brady is not violated if the defendant knew or should have known the information, or it was readily available from another source. The court held that defendant could not establish the first prong, that the government suppressed evidence. Although the government was aware of the existence of the boxes, it never possessed them. Further, the court found that the cooperating witness did not act as an “agent” of the government because (1) the government had to obtain his attorney’s permission before speaking to him, (2) it had to serve a subpoena on him to compel document production, (3) and the witness refused to provide attorney-client protected materials. Finally, the court held that the witness’ acts of continuing to work as defendant’s attorney even after entering the cooperation agreement with the government did not transform the witness into a government agent. Accordingly, the conviction was affirmed.
• Brady
U.S. v. White, 05-3403 (6/11/07)
> Defendant was convicted of medicare fraud and after trial learned that an expert fraud examiner was touting his successful investigation and assistance to the government in the prosecution of defendant. The government had not disclosed its use of the expert prior to trial. Defendant subsequently requested disclosure of any documents the expert reviewed in helping the government to prepare for trial. Defendant’s request was denied by the government and defendant moved for a new trial. The government responded initially that it had not used the expert in preparing for trial. In a subsequent filing, the government admitted that it had used the expert in preparing for trial, but averred that there was nothing exculpatory in the information utilized. Defendant’s requests for new trial were denied by the district court and defendant appealed.
* Holding: A defendant’s due process rights are violated where the government suppresses favorable evidence to a defendant, regardless of the good or bad faith of the government. In order to obtain a reversal of conviction based upon such a Brady violation, a defendant must show that the suppressed evidence is material, that is, the result of the proceeding would likely have been different had the evidence been disclosed. In the case, the court held that defendant’s efforts to determine if the information reviewed by the expert contained exculpatory evidence had been frustrated by the government. Not only did the government refuse to disclose the information, but it initially misrepresented to the district court that it had not used the expert pretrial. The court emphasized that the prosecutor’s representations that the suppressed evidence contained no exculpatory information carried “considerably” less weight where he made conflicting representations in the district court about the information. Under the circumstances, the court ruled that a remand was necessary for the district court to hold a hearing regarding the withheld documents, reviewing them in camera if necessary, in order to determine if exculpatory information was withheld.
• Due Process - Brady
U.S. v. Heriot, 06-3824 (7/26/07)
> Defendant was convicted of several counts of selling crack to an undercover informant. After the trial, the government disclosed that the informant had engaged in some illegal conduct related to drugs after he had worked as an informant against defendant. Defendant moved for a new trial and the district court denied the motion, reasoning that the Brady violation did not affect the trial result because defendant had already conducted very effective impeachment of the informant at trial. Defendant appealed.
* Holding: First, the court noted conflict within the circuit as to the proper standard of review for a new trial based on a Brady violation. Some cases have found that the abuse of discretion standard applies, while others have ruled that the de novo standard applies. The court chose not to resolve the conflict, because defendant could not prevail under either standard.
In order to obtain a new trial based upon a Brady violation, a defendant must show that (1) the evidence was exculpatory or impeaching, (2) it was suppressed by the government wilfully or inadvertently, and (3) prejudice ensued. In the case, the court found that defendant had suffered no prejudice because he effectively demonstrated to the jury at trial that the informant was “an admitted crack cocaine dealer, admitted drug dealer, admitted drug defendant, [and] admitted person who is here to gain something from his testimony.” Further, the district court instructed the jury to assess the informant’s testimony with “more caution.” Under these circumstances, the court found that the trial result would not likely have changed with the new evidence, and the conviction was affirmed.
• Due Process - Brady
United States v. Cody, 06-6003 (8/16/07)
> Defendant was charged with two armed robberies. During the investigation the government determined that dye stained bank money was passed at a convenience store. The police obtained two videotapes from the store surveillance camera in order to determine if the robber’s image was caught on tape. The police subsequently learned that the dye-stained money from the convenience store did not match the money taken in defendant’s bank robbery. As a result, the officers never watched the tapes and they were lost before trial. Defendant moved for dismissal of the indictment and claimed that Brady had been violated by the officers’ destruction of potentially exculpatory evidence. The district court denied the motion and defendant appealed.
* Holding: Where evidence is destroyed and its exculpatory value is unknown, the Supreme Court in Arizona v. Youngblood held that the defendant must show bad faith on the part of the government in failing to preserve the evidence. In the case, the court found that the government had acted on a good-faith belief that the videotapes would not produce evidence relevant to the investigation, and thus their destruction of the tapes did not violate defendant’s due process rights. Accordingly, the district court’s ruling was affirmed.
• Due Process - Brady
O’Hara v. Brigano, 06-3455 (8/21/07)
> Defendant was charged with rape in state court and during the trial defendant learned that the victim made a prior written statement that contradicted her trial testimony about when the offense occurred. Defendant was provided with a copy of the written statement and the trial judge permitted defendant the opportunity to recall the witness, which he declined to do. Defendant was convicted, lost his state appeal, and filed a federal habeas petition. Finding no Brady violation, the district court denied the petition and defendant appealed.
* Holding: In order to establish a Brady violation, a defendant must show that (1) the evidence was either exculpatory or impeaching, (2) the evidence was suppressed by the state either wilfully or inadvertently, and (3) prejudice ensued. First, the court held that the evidence in question was impeaching. Second, the court found that the state had at least inadvertently suppressed the evidence until mid-trial. In this regard the court held that ordinarily the government has the “obligation to learn of any favorable evidence known to others acting on the government’s behalf in the case, including police officers.” Thus, the prosecution could not effectively claim that it did not know about the statement when it was in the possession of the police officers. Third, the court found no prejudice. Defendant was provided adequate opportunity to utilize the impeachment evidence once disclosed, and did not request a continuance to afford more time to prepare. Further, the court held that the impeachment evidence itself was unlikely to have an effect on the trial outcome. Thus, defendant’s conviction was affirmed.
• Brady
U.S. v. Garner, 06-3288 (11/7/07)
> Defendant was charged with car jacking and using a firearm during a crime of violence. On the day of trial, the government disclosed cell phone records from the victim’s phone, which had been used by the robbers during the car jacking. Defendant moved for a continuance to investigate the records, and the district court denied the request. Defendant was convicted and he appealed.
* Holding: Pursuant to Brady, due process is violated where the government suppresses evidence favorable to an accused and the evidence is material to guilt or punishment, regardless of bad faith. A Brady violation is material if there is a reasonable probability that the trial result would have been different if the evidence was timely disclosed. In the case, the court held that the cell phone records were favorable to the defendant and were material to defendant’s guilt. The court found that the only evidence linking defendant to the crime came from witnesses with questionable motives – the codefendant and his girlfriend. The cell phone records, with a proper amount of time to investigate, would have shown a phone call from the victim’s phone to the codefendant’s girlfriend, evidence that would have impeached the girlfriend’s testimony at trial. Because the evidence against defendant was relatively weak and the testimony of the girlfriend was central to the government’s case, the conviction was reversed and a retrial ordered.
• Brady
Bell v. Bell, 04-5523 (1/4/08)
> Defendant was charged with murder in state court and at trial the prosecution utilized a witness who was a cell mate with defendant. The witness testified that defendant confessed to the murder. Defendant was convicted and he learned after trial of three items that were not disclosed by the prosecution prior to trial: (1) Notes of the prosecutor which showed that the witness sought consideration for his testimony against defendant; (2) sentencing records from the witness’ state court proceedings where he obtained favorable treatment from a different state prosecutor; and (3) evidence of an implied agreement between the prosecutor and the witness to seek favorable treatment for the witness from the parole board. Defendant lost his state court appeal and filed a federal habeas petition alleging a Brady violation. The district court denied defendant’s petition, but the original Sixth Circuit panel reversed, finding that Brady was violated. (See P.V., Issue # 9). The court granted the government’s request for rehearing en banc.
* Holding: In order to establish a Brady violation, a defendant must prove that the evidence was favorable, that it was suppressed by the government, and that prejudice ensued. First, the court held that the prosecutor’s suppression of his notes caused no prejudice to the defense. Although the notes would have been useful for impeachment of the witness, the defense was otherwise able to effectively argue that the witness was testifying to obtain a benefit for himself, and the notes would have added little to this argument. Second, the court found that the sentencing records of the witness should have been turned over as impeachment materials, but that the records were public and should have been discovered by the defense. Defendant was put on notice in the case that the witness had pending criminal charges, and in fact the witness mentioned them during his trial testimony. Therefore, no Brady violation occurred because the defense knew about the records, but failed to obtain them.
Third, the court held that the evidence in the case was insufficient to establish an implied agreement between the prosecutor and the witness. The court noted that either an express or an implied agreement to confer a benefit on a witness must be disclosed to the defense under Brady. Nonetheless, the court found that the facts that the witness sought favorable treatment, and that the prosecutor submitted a letter to the parole board on the witness’ behalf after defendant’s conviction, were insufficient to establish a tacit agreement. The prosecutor testified at the hearing before the district court and flatly denied that any agreement existed, and the court chose to credit that testimony. The court emphasized that, “if the government chooses to provide assistance to a witness following trial, a court [does not have to] necessarily infer a preexisting deal subject to disclosure under Brady. Accordingly, the original panel decision was vacated and the district court ruling affirmed.
• Brady
U.S. v. Coker, 06-6504 (1/24/08)
> Defendant was convicted for an illegal conflict of interest for her role in defrauding the federal government while employed by the VA outpatient pharmacy. After sentencing, defendant learned that the government stipulated with her codefendant to a lower loss figure based upon the codefendant’s payment of taxes as a reduction against his loss amount. On appeal, defendant argued that the government violated Brady by failing to disclose (1) the codefendant’s payment of taxes as restitution, (2) that the guidelines might permit defendant to reduce her own loss amount by paying taxes, and (3) the government’s stipulation with the codefendant to a lower loss amount.
* Holding: In order to establish a Brady violation at sentencing, the defendant must show that the evidence was favorable in terms of guilt or punishment, it was suppressed by the government, and prejudice ensued. First, the court found that defendant already knew that the codefendant was paying taxes as restitution because defendant had the codefendant’s plea agreement prior to sentencing. Second, the court held that the government was under no obligation to disclose that the guidelines might permit a reduction in the loss amount because this item was not a “fact,” but a legal argument. Third, the defendant could not prove that the stipulation with the government and the codefendant existed prior to defendant’s sentencing, thus it could not have possibly been disclosed. Accordingly, the sentence was affirmed.
• Brady
Johnson v. Bell, 04-5377 (4/29/08)
> Defendant was convicted of murder and subsequently discovered statements made by several witnesses to police that defendant could have used for impeachment of the witnesses at trial. After exhausting state court remedies in regard to his claim that the state violated Brady, defendant filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: In order to establish a Brady violation, a defendant must show that (1) the evidence was favorable, (2) it was suppressed by the government, and (3) the defendant suffered prejudice. The issue of prejudice requires the defendant to show that the evidence was material. In the case, the court held that although the witness statements may have tended to assist the defense in impeaching some of the eyewitnesses to the murder, given the quantity of evidence against defendant, their usefulness would have been minimal and did not undermine the court’s confidence in the jury verdict. Accordingly, defendant’s conviction was affirmed.
• Brady
Jells v. Mitchell, 02-3505 (8/18/08)
> Defendant was charged with kidnaping and murder. At trial, several witnesses testified to seeing an incident where a man in a white van grabbed a woman and child, dragged them into a van, and drove away. The woman was later found dead. The state’s theory at trial was that defendant randomly kidnaped the victim from the street for an illicit purpose. After defendant was convicted at trial, he learned that the state withheld several documents which tended to show that the victim was willingly with defendant throughout the evening leading up to the supposed abduction. Defendant lost his state court appeal and post-conviction proceedings, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: In order to establish a Brady violation, a defendant must show (1) the withheld evidence was favorable, (2) the evidence was suppressed, and (3) prejudice ensued. The court held that the evidence suppressed by the state was favorable to defendant and that it would have served to significantly impeach witnesses and establish that the kidnaping portion of the case may not have occurred. Accordingly, the court ruled that defendant’s death sentence must be vacated because the trial court may not have determined the murder occurred during the course of a kidnaping had the Brady material not been suppressed.
• Brady
Harris v. Lafler, 05-2104 (1/30/09)
> Defendant was charged in state court with murder. At his preliminary hearing, a codefendant testified that he drove the vehicle involved, and that defendant was the shooter. The witness denied multiple times during cross examination that he was made any promises for his testimony. At defendant’s trial, the codefendant took the Fifth Amendment, so the state introduced his preliminary hearing testimony. The state had no other direct evidence of defendant’s involvement in the shooting. Defendant was convicted. Defendant subsequently learned of three pieces of evidence that were withheld by the state: (1) the codefendant was promised that his girlfriend would be released if he agreed to make a statement; (2) the codefendant gave two different descriptions of the shooting, and he was promised bond if he testified consistently with his second statement; and (3) the codefendant was told not to disclose the promises that were made to him. Defendant lost his state court appeal and postconviction proceeding, and filed a federal habeas petition. The district court granted the petition based on Brady violations, and the state appealed.
* Holding: In order to prove a Brady violation, the defendant must establish three things: (1) the government suppressed relevant evidence; (2) the evidence was favorable to the defendant; and (3) there is a reasonable probability that the trial outcome would have been different had the evidence been disclosed. First, the court held that the state suppressed the evidence, even though the promises were made by police without the prosecutor’s knowledge. Second, the court held that the information suppressed was impeachment evidence, and thus favorable to defendant. Third, the court held that evidence went to the credibility of the key state witness. Because the state had no other eyewitnesses and no scientific evidence to tie defendant to the crime, and because defendant presented a credible alibi defense, the court held that the failure to disclose the impeachment evidence may have affected the trial outcome. Accordingly, the district court ruling granting the petition was affirmed.
• Brady
Akrawi v. Booker, 07-1984 (7/10/09)
> Defendant was charged with drug trafficking and an informant testified against him at trial. Although the informant acknowledged an expectation that he may receive favorable treatment in a pending case for his testimony, the prosecution’s witnesses testified uniformly that no deal was made with the informant for his testimony. Defendant was convicted. During his state post-conviction proceedings, defendant presented evidence from the informant’s attorney that a deal was made with the prosecution, and a letter was found from the attorney in the prosecutor’s file confirming the deal. The state court granted post-conviction relief based on a Brady violation, but the state appellate court reversed. Defendant filed a federal habeas petition, and the district court denied the petition. Defendant appealed.
* Holding: In order to establish a Brady violation, the defendant must show that (1) the evidence in question was material to either guilty or punishment, (2) the state suppressed the evidence, and (3) prejudice ensued. The court found that the state did suppress material evidence by failing to disclose the “mutual understanding” that the informant would receive favorable treatment in return for his testimony. However, the court held that defendant’s case was not prejudiced because the defense was able to effectively impeach the informant based on his professed expectation of leniency, and because there was other strong evidence of defendant’s guilty other than the informant’s testimony. Accordingly, the district court’s ruling was affirmed.
• Brady
Robinson v. Mills, 09-5243 (1/28/10)
> Defendant was charged in state court with murder and pursued a self-defense theory. The state’s only eyewitness was a woman who testified to differing versions of the shooting at the preliminary hearing and at trial. There was no physical evidence to refute defendant’s self defense theory, and the testimony established that the victim at least had a gun in the car at the time defendant shot him. After defendant was convicted, he learned about two pieces of evidence that were not disclosed by the state prior to trial: (1) a state witness gave a statement to police that contradicted the state’s sole eyewitness’ testimony; and (2) the eyewitness was a paid informant for the state on 9 cases, two of which involved suspects who testified against defendant at trial. Defendant filed a federal habeas petition claiming Brady violations and the district court granted the petition. The state appealed.
* Holding: In order to establish a Brady violation, a defendant must prove three elements: (1) the evidence in question was favorable; (2) the state suppressed the evidence, purposefully or inadvertently; and (3) the state’s actions resulted in prejudice. In the case, the state agreed that the first two elements were met. In regard to the third element, the court held that the defendant’s case was prejudiced such that a new trial was warranted. First, the court found that the witness’ statement was evidence that defendant could have used for impeachment of the state’s eyewitness, and that it was not merely cumulative of the impeachment evidence defendant introduced at trial. Further, the court noted that the state’s eyewitness was the sole witness who refuted defendant’s self-defense theory at trial.
Second, the court ruled that the failure to disclose the paid-informant-status of the eyewitness severely limited defendant’s ability to explore the witness’ bias. Even though the witness was not a paid informant in relation to defendant’s case, the court emphasized that a defendant has a constitutional right to impeach a witness with bias evidence, and found that the witness’ long term relationship with the state was likely a matter that would have influenced the jury’s assessment of the believability of her testimony. Because the other evidence against defendant was not strong, the court found that defendant’s case was prejudiced by the state’s Brady violations, and the district court’s ruling was affirmed.
• Due Process - Destruction of Evidence
U.S. v. Branch, 06-5393 (8/12/08)
> Defendant was stopped by officers for speeding, and the traffic stop eventually led to the discovery of cocaine. At the completion of the stop, the officer discovered that the video recorder on his car recorded video, but no audio of the stop. The officer therefore sent the tape back to the station for recirculation, believing that it had no evidentiary value. Defendant moved to dismiss the indictment based upon the destruction of evidence. The district court denied the motion and defendant appealed.
* Holding: A defendant’s due process rights are violated where the government destroys material exculpatory evidence, regardless of whether the government acted in bad faith. However, where the destroyed evidence is only shown to be “potentially useful” to the defense, the defendant must show that the government acted in bad faith and that comparable evidence was not available through other reasonable means. In the case, the court held that the officer’s failure to preserve the video tape, while potentially grossly negligent, did not amount to bad faith. Thus, the district court’s ruling was affirmed.