United States v. Plaskett

355 F. App'x 639
CourtCourt of Appeals for the Third Circuit
DecidedDecember 9, 2009
DocketNos. 08-3531, 08-3532
StatusPublished
Cited by4 cases

This text of 355 F. App'x 639 (United States v. Plaskett) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Plaskett, 355 F. App'x 639 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellants, Dean C. Plaskett and Marc. A Biggs, appeal from the District Court’s ruling denying their post-trial motions as well as the underlying and preceding orders and rulings by the District Court addressing the issues raised in the post-trial motions. Biggs also challenges aspects of the jury charge and the sentence imposed by the District Court. For the reasons that follow, we will affirm the rulings of the District Court and appellants’ [641]*641convictions and sentences.1

I.

Because we write primarily for the parties, we only discuss the facts and proceedings to the extent necessary for the resolution of the case.

Plaskett and Biggs, were, respectively, the Commissioner of the Virgin Islands Department of Planning and Natural Resources and the Commissioner of Property and Procurement. They were charged with participating in an elaborate bribery and kickback scheme with other government officials and complicit business owners. The Indictment alleged that the members of the scheme used fictitious and real companies to obtain government contracts worth more than $1.4 million and progress payments of more than $1 million, despite little or no contract performance.

At trial, the key government witness was Hollis Griffin, the former Director of the Division of Environmental Protection. Griffin, a cooperating witness and alleged coeonspirator, provided the critical testimony regarding the alleged payment of bribes at the heart of the ease. Following trial, Plaskett and Biggs were each convicted of one count of federal program bribery; Plaskett was also convicted of two counts of obstruction of justice. They were acquitted of the remaining charges against them. The District Court sentenced Plaskett and Biggs to 108 months and 84 months in prison, respectively. In addition, the District Court imposed personal money judgments against them— $1,086,237 against Plaskett and $960,482 against Biggs.

On appeal, Plaskett and Biggs raise a number of challenges to their convictions and sentences. We review each challenge in turn.

II.

Plaskett challenges the District Court’s exclusion of tapes of recorded phone calls between himself and Griffin. The Court ruled that while portions of the tapes could be used to rebut Griffin’s direct testimony, overall, the tapes were hearsay and inadmissible on direct examination of Plaskett. The Court also concluded that the evidence was more prejudicial than probative. Plaskett argues that the District Court’s rulings were erroneous, but he has not provided either reproductions of the recorded conversations or written transcripts for the panel to review. Without the capability to examine the evidence at issue, the panel cannot rule on the merits of Plaskett’s arguments regarding the tapes and deems such arguments waived.

A week before trial, the government sent defense counsel a letter pursuant to Federal Rule of Criminal Procedure 16(a) that disclosed that Griffin had used illegal drugs and had sought drug rehabilitation treatment on two separate occasions; the government did not provide details of or medical records from either treatment. Plaskett and Biggs argue that the timing of this disclosure and the failure to provide more details violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). When a motion for a new trial is [642]*642based on a Brady claim, we “conduct a de novo review of the district court’s conclusions of law as well as a clearly erroneous review of any findings of fact.” United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.2005) (internal quotation marks & citations omitted).

In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment....” 373 U.S. at 87, 83 S.Ct. 1194. The Supreme Court has further elaborated that suppressed “evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

Assuming arguendo that the details of Griffin’s drug use and subsequent treatment were favorable to Plaskett and Biggs as impeachment evidence and that such evidence was suppressed, there was no Brady violation as the evidence was not material. Plaskett and Biggs concede that they had some knowledge of Griffin’s drug use and rehabilitation treatment, and they used this evidence to cross-examine Griffin and to discredit him as a witness during their opening and closing statements. The more detailed information sought by Plaskett and Biggs “would not have put the whole case in such a different light as to undermine confidence in the verdict, and would have been merely cumulative.” United States v. Johnson, 199 F.3d 123, 128 (3d Cir.1999); accord Conley v. United States, 415 F.3d 183, 189 (1st Cir.2005) (“Suppressed impeachment evidence is immaterial under Brady ... if the evidence is cumulative or impeaches on a collateral issue. Suppressed impeachment evidence, if cumulative of similar impeachment evidence used at trial ... is superfluous and therefore has little, if any, probative value.” (internal citations omitted)). The fact that the evidence of Griffin’s drug abuse was cumulative of evidence already possessed by Plaskett and Biggs distinguishes the instant case from United States v. Robinson, 583 F.3d 1265 (10th Cir.2009), on which Plaskett and Biggs rely. In Robinson, the court explicitly held that the suppressed evidence “was not cumulative.... None of the[] avenues of impeachment [based on the suppressed evidence] is duplicative of those Robinson was able and allowed to pursue at trial.” Id. at 1273-74 (citation omitted). In contrast, Plaskett and Biggs could and did attempt to impeach Griffin based on his drug use, rendering the allegedly suppressed evidence duplicative. The District Court correctly concluded that the government did not violate Brady or Giglio.

After trial, Biggs moved for acquittal on the ground that the evidence was insufficient to support his conviction for federal program bribery, specifically that the evidence did not establish that he acted with corrupt intent or that he received a cash payment in connection with a contract in or about mid-January 2003. The District Court denied the motion.

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United States v. Mark Miller
645 F. App'x 211 (Third Circuit, 2016)
United States v. Jafari
85 F. Supp. 3d 679 (W.D. New York, 2015)
United States v. Erica Hampton
732 F.3d 687 (Sixth Circuit, 2013)
In re Disbarment of Plaskett
56 V.I. 441 (Supreme Court of The Virgin Islands, 2012)

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Bluebook (online)
355 F. App'x 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-plaskett-ca3-2009.