Circuit Remands After Potential Brady Violation
Recently, the Second Circuit remanded a consolidated appeal of three cases to the district court to consider whether the government violated Brady such that new trials should be granted. In United States v. Stillwell, Nos. 18-3074, 18-3489, and 19-790, the Second Circuit (Cabranes, Raggi, Korman by designation) declined to reach defendants’ Brady claims based on evidence discovered while the cases were on appeal. Nevertheless, the Court all but urged the defendants to file post-trial motions for a new trial on Brady grounds, and directed the district court to “expeditiously” resolve the forthcoming motions.
In April 2018, three hit men working for a South African crime boss were convicted of murder-for-hire and related crimes including conspiracy and kidnapping. The defendant-Appellants, Carl Stillwell, Adam Samia, and Joseph Hunter, were each sentenced to life imprisonment in late 2018 and early 2019 in the Southern District of New York (“SDNY”). They each timely appealed their respective convictions and sentences.
While the three cases were on appeal, and indeed after the Second Circuit had held oral argument in two of the defendant-appellants’ cases, the Second Circuit was informed by the Narcotic and Dangerous Drug Section (“NDDS”) of the U.S. Department of Justice that the district court had entered a sealed protective order upon an ex parte motion by NDDS—with no notice to counsel of record—which barred both prosecutors and defense counsel from reviewing certain documents. The district court granted the order pursuant to the Classified Information Procedures Act (“CIPA”) and Rule 16(d) of the Federal Rules of Criminal Procedure. CIPA was enacted to prevent the unnecessary disclosure of classified information by criminal defendants who seek to use the information in their defense. Section 4 of the statute directs prosecutors to seek, and courts to grant, protective orders permitting the deletion of “specified items of classified information from documents to be made available to the defendant through discovery” or the substitution of “a summary of the information for such classified documents.” Here, however, NDDS—not the U.S. Attorney—sought an ex parte protective order to prevent the disclosure of material to either the prosecutor or defense counsel.
Upon learning of the ex parte protective order, the Second Circuit ordered NDDS to show cause why the papers supporting its motion should not be disclosed to the prosecutor and defense counsel. After NDDS responded in a sealed brief, the Second Circuit vacated the district court’s protective order, ordered the disclosure of the documents to the U.S. Attorney for the SDNY, and directed the SDNY prosecutor to show cause why the documents and the existence of the ex parte protective order should not be disclosed to defense counsel. After the U.S. Attorney for SDNY responded in a sealed brief, the Second Circuit ordered the disclosure of the documents to defense counsel in accordance with the government’s obligations under Brady and Giglio.
After a months-long delay due to the COVID-19 pandemic, the classified materials were disclosed in December 2020 to the defendants, who immediately raised additional challenges to their convictions under Brady.
The Second Circuit Decision
The Second Circuit began with a reminder of the government’s obligations under Brady v. Maryland, 373 U.S. 83 (1963): to “learn of any favorable evidence known to others acting on the government’s behalf in the case” and to disclose material exculpatory or impeaching evidence. That is, the government violates Brady when it willfully or inadvertently suppresses material evidence favorable to the defendant and the failure to disclose the evidence resulted in prejudice. Evidence is material when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”
The panel did not address whether the government failed to comply with Brady. Instead, after “due consideration,” the Second Circuit determined that it could not reach the defendants’ Brady claims, which had not yet been presented to the district court. Accordingly, it remanded the case to the district court, noting that the defendants’ deadline to file post-trial motions was only a couple months away. See Fed. R. Crim. P. 33 (setting a deadline of three years after a jury verdict for the filing of a new trial motion based on newly discovered evidence). These defendants—who are currently serving life sentences—will now have an opportunity to argue that their convictions should not stand.
The panel’s invocation of the Brady standard and its all-but-directive to the defendants to file new post-trial motions by April 17, 2021 sends a strong signal to the government that it cannot use CIPA to evade its obligations under Brady. While the government no doubt has an interest in protecting classified information, that interest does not override a criminal defendant’s due process right to discover exculpatory information in the government’s possession. While this failure to produce exculpatory information cannot be blamed on the line prosecutors in SDNY—who were as equally in the dark as were the defendants—it is fair to say that Brady compliance is a major issue needs to be addressed by prosecutors and courts. See, e.g. United States v. Nejad, 18 Cr. 224 (AJN) (convictions reversed after serious Brady issues were raised by defense counsel and the court). If defendants do not receive the exculpatory evidence to which they are entitled under the Constitution, they cannot receive fair trials.
by Emma Ellman-Golan and Harry Sandick