USA v. Hahn CR-92-68-B 07/08/93
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 92-68-15-B
Robert Hahn
O R D E R
Robert Hahn has moved for a new trial pursuant to Rule 33 of
the Federal Rules of Criminal Procedure claiming that the
government failed to disclose exculpatory evidence. The
evidence consists of a plea agreement disposing of criminal
charges brought in the United States District Court for the
District of Arizona against Roger Bradley, one of the
government's trial witnesses ("the Arizona Plea Agreement"), and
four investigative reports describing statements Bradley made to
government investigators. Hahn contends that the Arizona Plea
Agreement contains incentives that induced Bradley to testify
falsely at trial. Hahn contends that the investigative reports
contain statements by Bradley that are inconsistent with his
trial testimony on important matters such as the number of loads
of marijuana Bradley took to New Hampshire, New York and
Michigan, the location where Bradley picked up money generated during the conspiracy, and Hahn's role in the conspiracy. Thus,
he claims that a new trial is required because the failure of the
government to produce this evidence prior to trial deprived him
of vital impeachment evidence. For the reasons that follow, I
deny Hahn's motion for a new trial.
Discussion
United States v. Bagiev, 473 U.S. 667 (1985), provides the
standard against which Hahn's claim for a new trial must be
tested.1 In Bagiev, the Supreme Court held that the government's
1Hahn incorrectly argues that his motion for a new trial must be judged under the standard adopted by the First Circuit Court of Appeals in United States v. Wright, 625 F.2d 1017, 1018 (1st Cir. 1980), and restated in United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991). This standard applies to claims for a new trial based upon newly discovered evidence, not claims that a defendant has been deprived of his constitutional right to be provided with exculpatory evidence in the government's possession. Nevertheless, Hahn's claim for a new trial would fail even if it were governed by the Wright standard. With respect to the Arizona Plea Agreement, the agreement was known to Hahn and his failure to obtain it was due to a lack of diligence on his part. Moreover, all of the newly discovered evidence, at best, consists of cumulative impeachment evidence. Even if Hahn were granted a new trial after being provided with the newly discovered evidence, Hahn would probably not be acquitted. Thus, the new evidence fails to satisfy the Wright standard.
Hahn also argues that because the new evidence calls the truthfulness of Bradley's trial testimony into question, the court should order a new trial if the jury might have reached a different conclusion without Bradley's false testimony. See Natanel, 938 F.2d at 313. After reviewing the new evidence in
2 failure to produce exculpatory impeachment evidence will result
in a new trial only if the withheld evidence is material. The
court further determined that "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." 473 U.S. at
683; see Barrett v. United States, 965 F.2d 1184, 1189 (1st Cir.
1992); see also, Giglio v. United States, 405 U.S. 150, 154
(1972); Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
In the present case, even if the withheld evidence is
exculpatory,2 it does not meet the test of materiality set forth
light of the testimony received at trial, I find no basis to guestion the truthfulness of Bradley's testimony. Thus, I would not accord Hahn a new trial on this basis even if the jury might have acguitted Hahn if Bradley's testimony had been excluded. Finally, even if I applied the less stringent test advocated by Hahn, I would not conclude from the new evidence that the jury might have reached a different conclusion without Bradley's testimony. The evidence of the defendant's guilt was overwhelming. Bradley's testimony, although important, was by no means decisive, nor is there any reasonable possibility that the jury would have reached a different conclusion even if Bradley's testimony had been excluded in its entirety.
2I assume without deciding that the evidence was withheld and that it was exculpatory. However, while it is not determinative, I note that there is no reason to guestion the government's contention that neither the prosecutor in this case nor any of the government's principal investigators ever had
3 in Bagiev. First, Hahn was provided with a copy of the New
Hampshire plea agreement and made aware of the existence of the
Arizona Plea Agreement well in advance of trial. As the trial
transcript demonstrates, the plea agreements were skillfully
exploited by Hahn's counsel during his examination of Bradley.
At the conclusion of that examination, it was obvious to everyone
in the courtroom that as a cooperating government witness facing
significant prison time, Bradley had a compelling incentive to
provide testimony that would incriminate Hahn. The only
information in the Arizona Plea Agreement that Hahn might not
have been aware of prior to trial was the portion of the
agreement in which the government agreed to recommend a 144-month
cap on Bradley's Arizona sentence. However, given Bradley's
frank admission at trial that he had every expectation of
receiving substantially lower sentences in Arizona and New
Hampshire as a result of his cooperation, the information
pertaining to the cap in the government's Arizona sentencing
recommendation is cumulative impeachment evidence at best.
Moreover, the evidence produced at trial supporting the jury's
verdict was overwhelming. Accordingly, Hahn cannot establish
possession of the new evidence prior to the time the motion for new trial was filed.
4 that there is a reasonable probability that a different result
would have ensued if the Arizona Plea Agreement had been produced
prior to trial.3
Second, with respect to the investigative reports, I
conclude that even if the reports could be considered
exculpatory, they were certainly not material.4 Rather than
calling into guestion Bradley's testimony regarding the number of
trips he had taken to New Hampshire as Hahn suggests, the
undisclosed reports largely support Bradley's testimony on this
point. Further, although one of the reports contained
information that might have been helpful in challenging Bradley's
trial testimony that he had picked up $1 million from the
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USA v. Hahn CR-92-68-B 07/08/93
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 92-68-15-B
Robert Hahn
O R D E R
Robert Hahn has moved for a new trial pursuant to Rule 33 of
the Federal Rules of Criminal Procedure claiming that the
government failed to disclose exculpatory evidence. The
evidence consists of a plea agreement disposing of criminal
charges brought in the United States District Court for the
District of Arizona against Roger Bradley, one of the
government's trial witnesses ("the Arizona Plea Agreement"), and
four investigative reports describing statements Bradley made to
government investigators. Hahn contends that the Arizona Plea
Agreement contains incentives that induced Bradley to testify
falsely at trial. Hahn contends that the investigative reports
contain statements by Bradley that are inconsistent with his
trial testimony on important matters such as the number of loads
of marijuana Bradley took to New Hampshire, New York and
Michigan, the location where Bradley picked up money generated during the conspiracy, and Hahn's role in the conspiracy. Thus,
he claims that a new trial is required because the failure of the
government to produce this evidence prior to trial deprived him
of vital impeachment evidence. For the reasons that follow, I
deny Hahn's motion for a new trial.
Discussion
United States v. Bagiev, 473 U.S. 667 (1985), provides the
standard against which Hahn's claim for a new trial must be
tested.1 In Bagiev, the Supreme Court held that the government's
1Hahn incorrectly argues that his motion for a new trial must be judged under the standard adopted by the First Circuit Court of Appeals in United States v. Wright, 625 F.2d 1017, 1018 (1st Cir. 1980), and restated in United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991). This standard applies to claims for a new trial based upon newly discovered evidence, not claims that a defendant has been deprived of his constitutional right to be provided with exculpatory evidence in the government's possession. Nevertheless, Hahn's claim for a new trial would fail even if it were governed by the Wright standard. With respect to the Arizona Plea Agreement, the agreement was known to Hahn and his failure to obtain it was due to a lack of diligence on his part. Moreover, all of the newly discovered evidence, at best, consists of cumulative impeachment evidence. Even if Hahn were granted a new trial after being provided with the newly discovered evidence, Hahn would probably not be acquitted. Thus, the new evidence fails to satisfy the Wright standard.
Hahn also argues that because the new evidence calls the truthfulness of Bradley's trial testimony into question, the court should order a new trial if the jury might have reached a different conclusion without Bradley's false testimony. See Natanel, 938 F.2d at 313. After reviewing the new evidence in
2 failure to produce exculpatory impeachment evidence will result
in a new trial only if the withheld evidence is material. The
court further determined that "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." 473 U.S. at
683; see Barrett v. United States, 965 F.2d 1184, 1189 (1st Cir.
1992); see also, Giglio v. United States, 405 U.S. 150, 154
(1972); Brady v. Maryland, 373 U.S. 83, 87-88 (1963).
In the present case, even if the withheld evidence is
exculpatory,2 it does not meet the test of materiality set forth
light of the testimony received at trial, I find no basis to guestion the truthfulness of Bradley's testimony. Thus, I would not accord Hahn a new trial on this basis even if the jury might have acguitted Hahn if Bradley's testimony had been excluded. Finally, even if I applied the less stringent test advocated by Hahn, I would not conclude from the new evidence that the jury might have reached a different conclusion without Bradley's testimony. The evidence of the defendant's guilt was overwhelming. Bradley's testimony, although important, was by no means decisive, nor is there any reasonable possibility that the jury would have reached a different conclusion even if Bradley's testimony had been excluded in its entirety.
2I assume without deciding that the evidence was withheld and that it was exculpatory. However, while it is not determinative, I note that there is no reason to guestion the government's contention that neither the prosecutor in this case nor any of the government's principal investigators ever had
3 in Bagiev. First, Hahn was provided with a copy of the New
Hampshire plea agreement and made aware of the existence of the
Arizona Plea Agreement well in advance of trial. As the trial
transcript demonstrates, the plea agreements were skillfully
exploited by Hahn's counsel during his examination of Bradley.
At the conclusion of that examination, it was obvious to everyone
in the courtroom that as a cooperating government witness facing
significant prison time, Bradley had a compelling incentive to
provide testimony that would incriminate Hahn. The only
information in the Arizona Plea Agreement that Hahn might not
have been aware of prior to trial was the portion of the
agreement in which the government agreed to recommend a 144-month
cap on Bradley's Arizona sentence. However, given Bradley's
frank admission at trial that he had every expectation of
receiving substantially lower sentences in Arizona and New
Hampshire as a result of his cooperation, the information
pertaining to the cap in the government's Arizona sentencing
recommendation is cumulative impeachment evidence at best.
Moreover, the evidence produced at trial supporting the jury's
verdict was overwhelming. Accordingly, Hahn cannot establish
possession of the new evidence prior to the time the motion for new trial was filed.
4 that there is a reasonable probability that a different result
would have ensued if the Arizona Plea Agreement had been produced
prior to trial.3
Second, with respect to the investigative reports, I
conclude that even if the reports could be considered
exculpatory, they were certainly not material.4 Rather than
calling into guestion Bradley's testimony regarding the number of
trips he had taken to New Hampshire as Hahn suggests, the
undisclosed reports largely support Bradley's testimony on this
point. Further, although one of the reports contained
information that might have been helpful in challenging Bradley's
trial testimony that he had picked up $1 million from the
defendant in New York, the information was cumulative because
another report providing the same information was produced to the
3I note, moreover, that the existence of the Arizona Plea Agreement was known to Hahn prior to trial. In view of the fact that Hahn sent his investigator to Tucson at government expense, he could easily have instructed the investigator to obtain the plea agreement from the Tucson courthouse. Further, the defendant at any time could have obtained the agreement simply by making a reguest of this court. Under these circumstances, Hahn has no basis for claiming that the government's failure to produce the Arizona Plea Agreement warrants a new trial. See e.g.. United States v. Hicks, 848 F.2d 1, 4 (1st Cir. 1989) .
4I also reject defendant's argument that the investigative reports gualify as Jenks material because there is no evidence that Bradley ever adopted any of the statements attributed to him in the reports.
5 defense and used effectively in cross-examination. Finally, I
can find nothing in the undisclosed reports that would have been
helpful to Hahn in challenging Bradley's testimony regarding
Hahn's role in the conspiracy. Thus, even if these reports would
have been helpful to the defendant, they are not material as
defined in Bagiev because they would have been cumulative to
other impeachment evidence that was produced to the defendant
prior to trial.
Conclusion
Defendant's motion for a new trial (document no. 564) is
denied.
SO ORDERED.
Paul Barbadoro United States District Judge July 8, 1993
cc: Paul Haley, Esg. United States Attorney United States Marshal United States Probation