NO. 96-1566
No. 96-1815
To be argued by:
HENRY H. ROSSBACHER, ESQ.
_________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________________________________________
UNITED STATES OF AMERICA,
Appellee,
- against -
LOVE BROOKS,
Defendant-Appellant.
_______________________________________________
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
_______________________________________________
BRIEF FOR THE DEFENDANT-APPELLANT LOVE
BROOKS
_______________________________________________
Harry C. Batchelder, Jr., Esq. (HB 9653)
100 Maiden Lane, Suite 1608
New York, New York 10038
212/504-5629
- and -
Of Counsel
Henry H. Rossbacher, Esq. (HR 1997)
ROSSBACHER & ASSOCIATES
445 South Figueroa Street
24th Floor
Los Angeles, California 90071
213/895-6500
Counsel for Defendant-Appellant
LOVE BROOKS
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
PRELIMINARY STATEMENT 2
ISSUES PRESENTED 3
JURISDICTIONAL STATEMENT 4
I. THE TRIAL 4
A. THE EVIDENCE UNRELATED TO MR. BROOKS PRECEDING OCTOBER 1993 4
B. THE BROOKS INCIDENTS 7
C. THE DEFENSE CASE 8
D. THE EVIDENCE UNRELATED TO MR. BROOKS AFTER 1993 9
II. MOTION PRACTICE 9
A. MR. BROOKS' SEVERANCE MOTION 9
B. FURTHER PROCEEDINGS 11
C. RULE 29 MOTIONS 11
ARGUMENT 11
I. DENIAL OF SEVERANCE TO MR. BROOKS, WHOSE ALLEGED COMPLICITY IN THIS CRIMINAL ACTIVITY EXTENDED FOR NOT MUCH MORE THAN TWELVE DAYS IN ONE MONTH OUT OF THE SUPPOSED TEN YEARS OF CRIMINAL CONDUCT, FATALLY PREJUDICED HIS RIGHT TO A FAIR TRIAL 11
II. THE NUMEROUS AND EGREGIOUS VIOLATIONS OF BRADY AND THE PRESENTATION OF PERJURED TESTIMONY PRODUCED A TRIAL BY AMBUSH PREVENTING A FAIR TRIAL FOR ALL DEFENDANTS 21
III. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR. BROOKS AS TO ANY OF THE CHARGED COUNTS 22
A. THE CRIMES IN AID OF RACKETEERING 22
B. THE MURDER OF WAYNE SMITH 23
C. THE SUPPOSED BROOKS NARCOTICS CONSPIRACY 24
IV. MR. BROOKS' COUNSEL'S FAILINGS SHOULD NOT PREJUDICE HIS RIGHTS 25
V. MR. BROOKS ADOPTS AS FURTHER ARGUMENTS ALL POINTS RAISED BY CO-APPELLANTS PURSUANT TO RULE 28(i) OF THE FEDERAL RULES OF APPELLATE PROCEDURE 25
CONCLUSION 26
TABLE OF AUTHORITIES
FEDERAL CASES
Brady v. Maryland
373 U.S. 83, 83 S.Ct. 1194
10 L.Ed.2d 215 (1963) 3, 4, 21
Kyles v. Whitley
514 U.S. 419, 115 S.Ct. 1555
131 L.Ed.2d 490, on remand
54 F.3d 243 (1995) 21
Latine v. Mann
25 F.3d 1162 (2d Cir. 1994)
cert. denied 514 U.S. 1006
115 S.Ct. 1319, 131 L.Ed.2d 200
on remand 1995 WL 258196
(S.D.N.Y., May 2, 1995) 20
Schaffer v. United States
362 U.S. 511, 80 S.Ct. 945
4 L.Ed.2d 921, reh'g denied
363 U.S. 858, 80 S.Ct. 1605
4 L.Ed.2d (1960) 15
United States v. Bari
750 F.2d 1169 (2d Cir. 1984)
cert. denied 472 U.S. 1019
105 S.Ct. 3482, 87 L.Ed.2d 617 (1985) 12
United States v. Beverly
5 F.3d 633 (2d Cir. 1993) 15
United States v. Branker
395 F.2d 881 (2d Cir. 1968)
cert. denied Lacey v. United States
339 U.S. 1029, 89 S.Ct. 639
21 L.Ed.2d 573, appeal after remand
418 F.2d 378 (2d Cir. 1969) 17, 19
United States v. Cambindo-Valencia
609 F.2d 603 (2d Cir. 1979)
cert. denied Prado v. United States
446 U.S. 940, 100 S.Ct. 2163
64 L.Ed.2d 795 (1980) 16, 18
United States v. Cardascia
951 F.2d 474 (2d Cir. 1991) 14
United States v. Castano
999 F.2d 615 (2d Cir. 1993) 20
United States v. Cervone
907 F.2d 332 (2d Cir. 1990)
cert. denied Bernesser v. United States
498 U.S. 1028, 11 S.Ct. 680
112 L.Ed.2d 672 (1991) 14
United States v. DeVillio
983 F.2d 1185 (2d Cir. 1993) 14
United States v. DiNome
954 F.2d 839 (2d Cir.)
cert. denied 506 U.S. 830
113 S.Ct. 94, 121 L.Ed.2d 56 (1992) 15
United States v. Friedman
854 F.2d 535 (2d Cir. 1988)
cert. denied 490 U.S. 1004
109 S.Ct. 1637, 104 L.Ed.2d 153 (1989) 13
United States v. Gallo
668 F.Supp. 736 (E.D.N.Y. 1987) 18, 19
United States v. Gilbert
504 F.Supp. 565 (S.D.N.Y. 1980) 19
United States v. Gordon
987 F.2d 902 (2d Cir. 1993) 20
United States v. Hansel
70 F.3d 6 (2d Cir. 1995) 25
United States v. Haynes
16 F.3d 29 (2d Cir. 1994) 15
United States v. Kelly
349 F.3d 720 (2d Cir. 1965)
cert. denied, 384 U.S. 947
86 S.Ct. 1467, 16 L.Ed.2d 544 (1966) 10, 18, 19
United States v. Lanese
890 F.2d 1284 (2d Cir. 1989)
cert. denied 495 U.S. 947
110 S.Ct. 2207, 109 L.Ed.2d 553
on remand United States v. Romano
749 F.Supp. 53 (D.Conn. 1990)
aff'd United States v. Lanese
937 F.2d 54 (2d Cir. 1991) 25
United States v. Miller
116 F.3d 641, 1997 WL 338590 (2d Cir. 1997) 11, 14, 16, 25
United States v. Rosa
11 F.3d 315 (2d Cir. 1993)
cert. denied 511 U.S. 1042
114 S.Ct. 1565, 128 L.Ed.2d 211 (1994) 12, 13
United States v. Turbide
558 F.2d 1053 (2d Cir.)
cert. denied 443 U.S. 934
98 S.Ct. 421, 54 L.Ed. 293 (1977) 18
United States v. Villegas
899 F.2d 1324 (2d Cir.)
cert. denied 498 U.S. 991
111 S.Ct. 535, 112 L.Ed.2d 545 (1990) 12
Zafiro v. United States
506 U.S. 534, 113 S.Ct. 933
122 L.Ed.2d 317 (1993) 12, 13
STATUTES
Federal Rules of Appellate Procedure
Rule 4 4
Rule 28 25
United States Code
Title 18, section 844 1
Title 18, section 924 1
Title 18, section 1959 1
Title 18, section 3231 4
Title 18, section 3742 4
Title 21, section 841 1
Title 21, section 846 1
Title 28, section 1291 4
UNREPORTED CASES
United States v. Persico
CR-92-0351 (CPS) 22
TEXTS
3A C. Wright, Federal Practice and Procedure
Section 854 (2d ed. 1982) 20
C. Wright, Federal Practice and Procedure
Section 227 (1969) 18
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-----------------------------------X
UNITED STATES OF AMERICA, :
Appellee, : 96-1815
-against- :
LOVE BROOKS, et al., :
Defendants-Appellants. :
-----------------------------------X
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK ______________________________________________
BRIEF FOR THE DEFENDANT-APPELLANT LOVE BROOKS _______________________________________________
Defendant-Appellant Love Brooks (Mr. Brooks) appeals from a judgment of conviction filed on August 28, 1996, following a jury trial conducted in the United States District Court for the Eastern District of New York by the Honorable Charles P. Sifton, Chief Judge. Mr. Brooks was convicted by a jury of Counts 30, 31, 32, 33, 34, 35 and 44 of the superseding indictment. These counts included violations of Title 18, sections 924(c), 844(i), and 1959(a)(5) and 21 United States Code sections 841(b)(1)(A)(1), 841(b)(1)(A)(3) and 846. These charges included conspiracy to murder in aid of racketeering and a narcotics distribution conspiracy, using and carrying firearms and destructive devices for violent crime, arson and murder in aid of racketeering. Mr. Brooks was sentenced to a total sentence of incarceration, when all counts are added together, of life imprisonment plus 50 years.
PRELIMINARY STATEMENT
In this appeal, Mr. Brooks challenges the fundamental fairness of this trial. Mr. Brooks was brought into an indictment which alleged 53 counts against a host of charged and uncharged defendants in relation to a supposed criminal enterprise and multiple conspiracies which extended between, according to the Government, 1985 and June of 1994. The incomprehensible indictment includes twelve separate Conspiracies (Counts 2, 4, 12, 18, 24, 32, 33, 37, 40, 41, 44 and 47), two Continuing Criminal Narcotics Enterprises (Counts 45 and 46), and one eighteen-page RICO (Count 1).
Actions charged against Mr. Brooks all are comprised in a very short period of time, approximately twelve days in October of 1993. The charges total nine counts and do not include the RICO, the RICO Conspiracy or the Continuing Criminal Narcotics Enterprises. Despite bringing a well-founded severance motion pointing out the overwhelmingly prejudicial effect of months of testimony being adduced against co-defendants and others who were not charged with Mr. Brooks in any criminal activity, Mr. Brooks was held in this nightmare of a joint trial. Co-defendants were charged with separate criminal activity including nine Conspiracies, one RICO and two Continuing Criminal Narcotics Enterprises and thirty-two "substantive" counts in which Mr. Brooks was not charged. Mr. Brooks was lumped in together with the other defendants and his trial was fatally prejudiced by the overwhelming and endless evidence adduced against these other defendants in the trial which lasted a full three calendar months. The jury did not discriminate. Beginning deliberations at 11:00 a.m. on a Friday, it had convicted all defendants on all counts by 12:30 p.m. on Monday. The jury took the weekend off.
Mr. Brooks also argues that the effect of the Government's repeated failure to honor its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to provide necessary discovery and exculpatory material, as well as other ethical failings, including presenting perjured testimony, produced a trial by ambush in which the other defendants and Mr. Brooks were deprived of a fair trial. Further, Mr. Brooks questions the sufficiency of the evidence adduced as to the counts on which he was convicted. Mr. Brooks also asks that the Court consider the arguments made by other defendants in the trial and that he obtain the benefit of those arguments. He also asks that if the Court should find that any points raised here have been vitiated in some way by his counsel's conduct, that conduct be disregarded as having been in violation of his right to receive effective assistance of counsel.
ISSUES PRESENTED
1. Whether denial of severance to Mr. Brooks, whose alleged complicity in this criminal activity extended for not more than twelve days in one month out of the supposed ten years of criminal conduct, fatally prejudiced his right to a fair trial?
2. Whether the numerous and egregious violations of Brady, the discovery rules and the Government's ethical duties produced a trial by ambush and prevented Mr. Brooks and the other defendants from receiving a fair trial?
3. Whether there was sufficient evidence to support Mr. Brooks' conviction?
4. Whether or not Mr. Brooks' trial counsel's conduct was ineffective in protecting his rights?
JURISDICTIONAL STATEMENT
This appeal arises from felony criminal charges brought in a fifty-three count indictment alleging ten years of violations of the laws of the United States of America. Jurisdiction in the United States District Court for the Eastern District of New York was based on 18 United States Code section 3231. This Court is authorized to hear this appeal by 28 United States Code section 1291 and is as of right pursuant to Rule 4(b), Federal Rules of Appellate Procedure and 18 United States Code section 3742. A timely notice of appeal was filed on December 19, 1996.
I. THE TRIAL
A. THE EVIDENCE UNRELATED TO MR. BROOKS PRECEDING OCTOBER 1993
The trial of Mr. Brooks lasted three months, September 11th to December 11th, 1995. Commencing with a litany of drug dealings and murders, the evidence detailed a ten-year period of criminal mayhem. This evidence is detailed in co-defendants' briefs and is most conveniently collected in Mr. Buell's opening summation for the Government. (TR 6900-7164) It is inevitable that the Government will delineate all of its evidence again in its Opposition. Consequently, Mr. Brooks will not burden this Court with too detailed a recitation of the evidence that does not relate to Mr. Brooks.
In 1985, the evidence commences to portray a criminal organization led by the Mora family, "the Mora gang" or "Mora organization." However, the Government concedes that Love Brooks is not charged with this racketeering. (TR 6915) There is an attempted murder in 1985 by three members of the gang: Willie Mora, Richburg and Rivera. (TR 6917) There are then gun sales in 1986, police bribery, the murder of Michael Golding, all by Willie Mora and Richburg as part of the Mora gang's activities. (TR 6918) Mr. Brooks has nothing to do with any of this activity.
In 1987, the jury heard evidence that two members of the gang, David Mora and Richburg, attempted the murder of Steven Rivera, including in the attempt Rivera's kidnapping by Mora and Richburg. (TR 6918-6919) The alleged murder of Golding is then verified for the jury by Richburg's 1987 conviction and six-year incarceration. During this time, there is also continuing evidence of the gang's drug dealings. 1988 is highlighted by expansions of the drug dealings to include the "Spot" at Ashford and Fulton and the expansion of the gang. (TR 6919) 1989 continues the violence and drug dealing. No evidence links Mr. Brooks to any of this activity.
1990 provides evidence of violent activities by the gang. The police seize a machine gun from Willie Mora. (TR 6919-6920) The gang members Willie and David Mora beat three persons over poor quality crack. (TR 6920-6921) Drug dealing accelerates in volume. (TR 6920-6921) Mr. Brooks is not involved. 1991 brings a full-fledged drug war. Willie and David Mora shoot "Juice." (TR 6922) No evidence connects Mr. Brooks to this activity. However, by this chronological point the Government has alleged and claimed to have proven a RICO enterprise existing for seven years involving drugs, murder, arson and bribery committed with enormous violence and intolerable lawlessness. The Government also claims to have proved two Continuing Criminal Narcotics Enterprises and nine Conspiracies not including Mr. Brooks as well as numerous substantive charges. No charge is made, or evidence presented, linking Mr. Brooks with this activity.
The evidence continued. The drug business increased in 1992. Indeed, there is a merger with another criminal enterprise. (TR 6923) January 1993 brings arson and murder by the gang. (TR 6923) The gang, Willie Mora, Contrera, Guerrero and "Milk" participate. Also the drug war with the Dominicans begins. Cars are burnt. Attempted murders take place, buildings are torched, all again by the gang, during March, April and May of 1993. Again, Mr. Brooks is not involved. (TR 6924-25)
Almost inconceivably, violence escalates in June. One of the gang is killed and a full-scale gang war continues. (TR 6925) Additional arsons are committed by the gang. (TR 6925-6926) The opposition succeeds in shooting Willie Mora in a gunfight. (TR 6926) Even innocent carpenters are gunned down. (TR 6926-6927) Mr. Brooks is not involved.
Attempted murders and shootings continue into August and September of 1993. (TR 6926-6927) Noa is shot by Willie Mora. (TR 6927-6928) Then gang members are shot by the rival gang. (TR 6928) Mr. Brooks is not involved. The Government has now put in the record nine years of arson, bribery, murder and drug dealing. None of this evidence relates to Mr. Brooks. No witness has testified, and the Government does not charge, that Mr. Brooks was involved in this nine years of crime.
B. THE BROOKS INCIDENTS
Mr. Brooks is charged with a series of offenses relating to October 28, 1993. One witness testified that Mr. Brooks threw a live hand grenade into a store believed to be a rival drug spot by the gang. The same witness testified that Mr. Brooks was present with the witness and Jose Vega when Willie Mora shot and killed Wayne Smith. (TR 4799-4800, 4809-4828)
The sole witness connecting Mr. Brooks to these crimes is Walter Richburg, the convicted murderer of Golding in 1986 and confessed member of a gang that has committed nine years of arson, drug dealing, murder and bribery. The evidence against Mr. Brooks depends solely on Richburg's testimony. This is a one-witness case.
Mr. Richburg was a very questionable witness. Special Agent Mulligan confirmed that Mr. Brooks was not identified by Richburg during the first debriefing sessions of Richburg. (TR 6305) It is solely after being shown a picture of Love Brooks taken pursuant to an unrelated arrest that Richburg "identifies" Brooks. (TR 6307) No other of the numerous supposed gang members testifies about Brooks or identifies him.
C. THE DEFENSE CASE
There is an eyewitness to the hand grenade attack, Christina Brown. She is interviewed by both Special Agent Mulligan and Officer Shub. She was present in the shop that was fire-bombed. She gives a detailed description of the person who threw the grenade: 25 years of age, 180 pounds, brown eyes, light skinned, wearing green clothes. Her second description is 25 to 30 years and light skinned. That person is not Love Brooks. These descriptions are recorded by the police. (TR 6753-6755)
Mr. Brooks is 5'11", 210 pounds, dark skinned with a mustache and goatee. He is only 19 years old. In April, the witness is shown a photo-spread with Mr. Brooks' photograph. The police reports and photo-spread are Defense Exhibits A, B and C. She does not identify him. (TR 6756-6759) There is not only no corroboration for Richburg's testimony, it is contradicted by this only non-felon eyewitness. The Court should note that Ms. Brown, the witness, who could not be located at trial despite a diligent search, had an excellent opportunity to observe the grenade thrower as he walked to the counter, calmly bought two beers and only then pulled the grenade. (TR 6755)
D. THE EVIDENCE UNRELATED TO MR. BROOKS AFTER 1993
The wars continued without Mr. Brooks.
Willie Mora and Vega attempted to kill a rival gang member. (TR 6929) The violence continued into late 1993 and 1994. The gang (Willie Mora, David Mora, Richburg and Cyrus) conducted a series of search and destroy missions aimed at killing the rival gangs. (TR 6929-6930) These events are followed by the shootings of Elias and the fight for the Bushwick drug "spot." (TR 6930-6931) None of these activities involved Mr. Brooks. The jury has been presented with ten years of crimes - 1985 through late spring of 1994. One night is alleged to involve Mr. Brooks. There are more than 6,000 pages of transcript. Less than 100 involve Mr. Brooks. The jury did not discriminate. It convicted all defendants on all charges on December 11th after less than two days of deliberation: 11:00 a.m. Friday to 12:30 p.m. Monday. (Docket Entries 360 and 362)
II. MOTION PRACTICE
A. MR. BROOKS' SEVERANCE MOTION
Mr. Brooks moved for a severance in April of 1995. (Docket Entry 142) The written motion cited all applicable statutes and cases. As Mr. Brooks pointed out: "To join [Mr. Brooks] in a trial charging a racketeering narcotics conspiracy that allegedly lasted for nearly ten years when he is only being charged for activities occurring in a twelve-day period is inherently unfair. There will be no way to counter the prejudicial spillover effect."
The motion was denied. (Docket Entry 191) The court admitted the "tangential role" played by Mr. Brooks in the charged conduct. However, the court claimed the evidence could be "easily compartmentalized." The court found the evidence as "to the other defendants will likely be greater than that relating to . . . Brooks." The court then stated it would rely upon limiting instructions "to cure any prejudice." However, only the most general and non-specific of "limiting" instructions were given. (TR 8061) The court further held that the very absence of evidence as to other than the two "discrete acts of violence committed over a specific span of time" (twelve days at most) charged against Mr. Brooks would "by its very nature enhance the distinctiveness of [Mr. Brooks] . . . and will aid the jury in viewing the charges against [him] as [an] individual."
Defense counsel had relied strongly in the motion on the Kelly doctrine (United States v. Kelly, 349 F.3d 720 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966)), establishing that where there are disparities in evidence, "the slow but inexorable accumulation of evidence" against co-defendants creates the very prejudice that invalidates convictions and justifies severances. The court reversed the Second Circuit standard which holds that gross disparities in evidence justify a severance.
B. FURTHER PROCEEDINGS
Partway through the trial, the court recognized the gross disparities between the evidence against the other defendants and Mr. Brooks. (TR 3832-3836) As the court itself told the defendant: "[Y]our involvement in this whole thing is so much less than the involvement of any other defendant." The court explained Mr. Brooks' trial counsel's total inactivity in examining witnesses and objecting to evidence by pointing out to the defendant that the evidence being admitted "mentioned [Mr. Brooks] so few times I think it would surprise you." In short, the admitted evidence related to others.
C. RULE 29 MOTIONS
Defendant Brooks made motions challenging the sufficiency of the evidence as to his convictions. Each was denied by the trial court. (TR 2, December 5, 1996)
ARGUMENT
I. DENIAL OF SEVERANCE TO MR. BROOKS, WHOSE ALLEGED COMPLICITY IN THIS CRIMINAL ACTIVITY EXTENDED FOR NOT MUCH MORE THAN TWELVE DAYS IN ONE MONTH OUT OF THE SUPPOSED TEN YEARS OF CRIMINAL CONDUCT, FATALLY PREJUDICED HIS RIGHT TO A FAIR TRIAL
The law in relation to severances is well established in this Circuit. As recently as June 20th in United States v. Miller, 116 F.3d 641, 1997 WL 338590 (2d Cir. 1997), this Court has restated the law:
There is a preference, in the federal system, that defendants who have been indicted together be tried jointly. See Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 936, 122 L.Ed.2d 317 (1993). The district court should grant a motion for severance "only if there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Rosa, 11 F.3d 315, 341 (2d Cir. 1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994). "Evidence at the joint trial of alleged coconspirators that, because of the alleged conspiratorial nature of the illegal activity, would have been admissible at a separate trial for the moving defendant is neither spillover nor prejudicial . . . ." Id.; see United States v. Villegas, 899 F.2d 1324, 1347-48 (2d Cir.), cert. denied, 498 U.S. 991, 111 S.Ct. 535, 112 L.Ed.2d 545 (1990); United States v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985). A defendant challenging the denial of his severance motion thus bears a heavy burden. "In order to secure a reversal, he must show prejudice so severe that his conviction constituted a miscarriage of justice . . . and that the denial of his motion constituted an abuse of discretion . . . ." United States v. Rosa, 11 F.3d at 341. Indeed, we have described the denial of a severance motion as "virtually unreviewable." United States v. Friedman, 854 F.2d 535, 563 (2d Cir. 1988) (internal quotation marks omitted), cert. denied, 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989).
1997 WL 338590 at *38. Here, this Court is presented with the reviewable case.
The trial court used the wrong legal standard in deciding the severance matter. The court stood the law on its head, finding the very absence of material evidence against Mr. Brooks as protecting him from prejudice. Instead, the courts of this Circuit and the Supreme Court have found the disproportion of evidence found comforting by the trial court to be grounds for severance.
Zafiro itself held: "When many defendants are tried together in a complex case and they have markedly different degrees of culpability, the risk of prejudice [from a joint trial] is heightened." 506 U.S. at 539. This Court has found severance is required "when the unrelated evidence reflects activities of a violent nature, because the risk of substantial prejudice is greater." United States v. Cardascia, 951 F.2d 474, 483 (2d Cir. 1991).
Here almost all of the evidence was unrelated to Mr.Brooks. Even if a small amount might have been admissible to flesh out the narcotics conspiracy charged, the nine years of murder and mayhem dating to 1985 was clearly inadmissible. The endless, detailed evidence admitted to prove the RICO was clearly irrelevant as to Mr. Brooks. Mr. Brooks falls squarely within the exception to Miller. "The evidence of the workings of the [Mora gang] and its violent acts would [not] have been admissible against" Mr. Brooks. 1997 WL 338590 at *39. The trial should have been severed on the ground of "spillover prejudice" since a "miscarriage of justice" would occur absent separate trials. United States v. DeVillio, 983 F.2d 1185, 1192 (2d Cir. 1993).
The very fact of a joint trial created evidence, allowed the prosecution to make arguments, and invited the jury to draw inferences against Mr. Brooks which could not have existed had he been tried without the Mora gang and the evidence of the pre- and post-October 1993 crimes. A severance is required where a defendant may be prejudiced from an inference that can only be drawn in a joint trial. United States v. Cervone, 907 F.2d 332, 342 (2d Cir. 1990), cert. denied, Bernesser v. United States, 498 U.S. 1028, 11 S.Ct. 680, 112 L.Ed.2d 672 (1991) (spillover evidence that might influence jury to attribute criminal intent to ambiguous conduct is substantial prejudice supporting severance).
Where a defendant's ability to present a defense is not only compromised but virtually foreclosed by a joint trial, prejudice is clear and denial of severance is an abuse of discretion. United States v. Beverly, 5 F.3d 633, 638 (2d Cir. 1993); United States v. Haynes, 16 F.3d 29, 32 (2d Cir. 1994) (severance is justified where joinder compromises defendant's trial right). See also United States v. DiNome, 954 F.2d 839, 844 (2d Cir.), cert. denied, 506 U.S. 830, 113 S.Ct. 94, 121 L.Ed.2d 56 (1992) (error to deny severance where the very nature of the criminal enterprise was prejudicial to non-RICO defendants).
The court was well aware of the disparity. As the court told Mr. Brooks in excusing his counsel's total inaction during much of the trial, "your involvement in this whole thing is so much less than the involvement of any other defendant." (TR 3832) The court could and should have granted the severance when that fact became apparent.
"A trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear . . . . Where as here the charge which originally justified joinder turns out to lack the support of sufficient evidence, a trial judge should be particularly sensitive to the possibility of such prejudice." United States v. DiNome, 954 F.2d at 845 (quoting Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921, reh'g denied, 363 U.S. 858, 80 S.Ct. 1605, 4 L.Ed.2d (1960)). Once the facts revealed Mr. Brooks' situation of allegedly being involved with co-defendants for only about twelve days and having no connection to the other defendants' prior or subsequent violent acts, a severance was required.
The prejudice to Mr. Brooks was heightened by the nature of the charges. The danger of spillover evidence is heightened in a multi-conspiracy case. Here both RICO, Continuing Criminal Narcotics Enterprises and Conspiracies abounded in the massive, overblown indictment. In a wide-ranging, complex, multi-defendant conspiracy case such as this, the Court has a duty to minimize the threat of prejudicial spillover evidence, particularly where there is not only the possibility of the existence of multiple Conspiracies but several are charged. United States v. Cambindo-Valencia, 609 F.2d 603, 625 (2d Cir. 1979), cert. denied, Prado v. United States, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980).
In this case it is hard to imagine how the jury found time to vote, much less discriminate and compartmentalize the evidence. Charged on Thursday and Friday, they convicted on Monday all defendants on all counts. Not only did the jury have no limiting instructions, it could not have "painstakingly assessed the evidence against each defendant individually." 1997 WL 338590 at *39. This does not meet this Circuit's standard as reiterated so recently in Miller.
Beyond instructing the jurors regarding the law of multiple conspiracies, the Court has a continuing obligation under Rule 14 to protect defendants from prejudice resulting from the joinder of too many defendants and too many different charges in one trial. Cambindo-Valencia at 629. A conviction must be reversed where the trial court has failed to adequately protect the defendants from prejudice. United States v. Branker, 395 F.2d 881 (2d Cir. 1968), cert. denied, Lacey v. United States, 339 U.S. 1029, 89 S.Ct. 639, 21 L.Ed.2d 573, appeal after remand, 418 F.2d 378 (2d Cir. 1969).
Mr. Brooks was not even charged in the dominant crimes: RICO, the RICO Conspiracy and the Continuing Criminal Narcotics Enterprises. How the jury was supposed to compartmentalize the evidence is incomprehensible. As we have seen, the jury did not even try. Presented with ten years of horrendous crimes, an incomprehensible indictment and mysterious instructions, they did the only thing they could do: convict everyone and let the judges sort it out.
Mr. Brooks' involvement was minuscule by comparison to all of the other defendants: twelve days as opposed to ten years. The danger of this kind of confusion generated by these complex indictments has been noted by this Court:
It is obvious that as the number of counts is increased, the record becomes more complex and it is more difficult for a juror to keep the various charges against several defendants and the testimony as to each of them separate in his mind . . . . This kind of prejudice is particularly injurious to defendants who are charged in only a few of the many counts, who are involved in only a small proportion of the evidence and who are linked with only one or two of their co-defendants. C. Wright, Federal Practice and Procedure, § 227, at 470 (1969). See also United States v. Turbide, 558 F.2d 1053 (2d Cir.), cert. denied, 443 U.S. 934, 98 S.Ct. 421, 54 L.Ed. 293 (1977); Note, Harmless Error and Misjoinder Under the Federal Rules of Criminal Procedure: A Narrowing Division of Opinion, 6 Hofstra L.Rev. 533 (1978).
United States v. Cambindo-Valencia, 609 F.2d at 629.
The presence of the RICO count and RICO Conspiracy, not charged against Mr. Brooks, compound the problem and heighten the duty of the trial court to guard against prejudice and grant severances. United States v. Gallo, 668 F.Supp. 736, 750 (E.D.N.Y. 1987), is an excellent example of Second Circuit precedent being applied correctly in a RICO case involving gross disparities in both evidence and charges. Judge Weinstein implemented the "Kelly doctrine" relied upon by Mr. Brooks in his severance motion:
The difficulties of a complex, multifarious case such as this are compounded for those defendants against whom only a small portion of the evidence is relevant. The prejudice concomitant with the case's complexity is "particularly injurious" to defendants charged in a small proportion of the counts and who are implicated by only bits and pieces of the evidence. United States v. Branker, 395 F.2d at 882. . . . "Inevitable prejudice" to the peripheral defendants is caused by "the slow but inexorable accumulation of evidence"against the major players. United States v. Kelly, 349 F.2d at 759. The sheer volume of such evidence against coconspirators, especially when the prejudiced defendants sit in court for weeks or months on end without their names so much as being mentioned, id., can so unbalance the scales that "no amount of cautionary instructions could . . . undo [] the harm . . . ." Id. at 758.
See also United States v. Gallo, 668 F.Supp. at 736. A similar conclusion was reached in United States v. Gilbert, 504 F.Supp. 565 (S.D.N.Y. 1980). Here Mr. Brooks' plight is indistinguishable from the defendants in Gallo and Gilbert; this Court should order a new trial.
The prejudice suffered by Mr. Brooks by this massive aggregation of irrelevant evidence is further heightened by the tenuous nature of the case against him presented by the Government. The sole witness is a convicted murderer, testifying for his life pursuant to a plea bargain that requires convictions to be achieved if Richburg is ever to step foot outside of prison. There is no corroborating evidence. To the contrary, the sole citizen witness to the crime described a different person to the police officers at the time of arrest and failed to identify Mr. Brooks in a federal photo-spread.
Where the Government presents such a thin case, supported by a sole witness, particularly in a trial where dozens of other supposed co-conspirators and members of "the Mora gang" testify and offer no evidence against a supposed conspirator, the trial court should have protected Mr. Brooks by granting the severance. This is particularly so where only the most general and non-specific of "limiting" instructions were given. (TR 8061) As noted by this Court in Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994), cert. denied, 514 U.S. 1006, 115 S.Ct. 1319, 131 L.Ed.2d 200, on remand, 1995 WL 258196 (S.D.N.Y., May 2, 1995), "'The strength of the prosecution's case is probably the most critical factor in determining whether error was harmless.'" Quoting United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993) (per curiam). See also 3A Charles A. Wright, Federal Practice and Procedure, § 854 at 305 (2d ed. 1982). Even where, on review, the Government's case has been sufficient, this Court has refused to find a trial court's error harmless where, as here, the case rested largely on the testimony of a cooperating witness "whose credibility was a seriously contested matter at trial." United States v. Gordon, 987 F.2d 902, 909 (2d Cir. 1993).
II. THE NUMEROUS AND EGREGIOUS VIOLATIONS OF BRADY AND THE PRESENTATION OF PERJURED TESTIMONY PRODUCED A TRIAL BY AMBUSH PREVENTING A FAIR TRIAL FOR ALL DEFENDANTS
The Government insisted upon subjecting Mr. Brooks to a three-month trial based on twelve days' activities. Central to this trial was the contention that the Government's cooperating witnesses were so terrified of the draconian consequences of being caught in a lie that their testimony could and should be credited by the jury. This argument applied with particular force in Mr. Brooks' case as there was no corroboration of any kind, testimonial or evidentiary, for Richburg, Mr. Brooks' supposed co-conspirator.
Yet it appears that a number of these witnesses lied and that the Government, through violations of its obligations pursuant to Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490, on remand, 54 F.3d 243 (1995), and Brady v. Maryland, 373 U.S. at 83, attempted to cover up the fact that a number of its witnesses, despite their Damocletian predicaments, were in fact lying to the Government and the court. By springing disclosures on defense counsel late, or sometimes not at all, the Government heightened the pressure on defense counsel, defendants and the court, creating an impermissible trial by ambush.
Mr. Brooks will not reprint here the excellent arguments on these points in briefs of co-defendants Jose Vega (Point Three) and Leo Contrera (Points I and IV). We do wish, however to emphasize that this unforgivable conduct created an atmosphere and record that prejudiced all defendants. As noted in Mr. Vega's brief, reversal here appears to be particularly appropriate in light of United States v. Persico, CR-92-0351 (CPS).
III. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT MR. BROOKS AS TO ANY OF THE CHARGED COUNTS
These arguments as to the sufficiency of the evidence were made at trial as part of Rule 29 motions and rejected by the trial court. (TR 2, December 5, 1996)
A. THE CRIMES IN AID OF RACKETEERING
Richburg, the Government's sole witness, failed to establish several of the required elements of Counts 32, 33 and 34 of the indictment. These counts each require that the crime be committed "as consideration for the receipt of and as consideration for a promise or agreement to pay something of pecuniary value from the Mora Organization." The testimony failed to establish either an agreement or payment. There is no testimony that Mora or the gang agreed to pay Mr. Brooks or in fact did pay him. Richburg testifies to an alleged offer by Mr. Brooks to be employed to retaliate. (TR 4799-4800) There is no testimony a financial arrangement was made. The sole testimony as to payments were a sum of money paid to Vega on the night of the 28th. (TR 4829) There is no testimony that Vega shared the money with Brooks. The sole evidence of a $50 direct payment to Brooks came well after the events in question. (TR 5679-5680) The very vagueness of Richburg's testimony underlines the weakness of the Government's case and not just Mr. Brooks' "tangential role" but the tangential nature of the uncorroborated proof against him.
B. THE MURDER OF WAYNE SMITH
Likewise, Richburg's testimony as to Mr. Brooks' alleged role in the murder of Wayne Smith is hardly a model of clarity. The crucial testimony of Walter Richburg on this point can be found on page 4824, lines 10-16, of the November 1, 1995 transcript:
Q: What happened after you saw them?
A: Then after that we was driving down Fulton, he told me to pass through Linwood and Arlington, and I asked him why. He said that, you know, said that, you know, them guys was selling drugs over there.
Q: Who told you to pass through Linwood and Arlington?
A; Willie Mora.
This conversation occurred after the events at 2286 Pitkin Avenue. There is no testimony that the events at Linwood and Arlington were planned. In fact, as Richburg was driving on Fulton Street, Willie Mora spontaneously decided to go to Linwood and Arlington. Although Mr. Brooks and Vega were in the automobile at that time, according to Richburg, neither one of them did anything or said anything to aid, abet or otherwise participate in the murder of Wayne Smith. Even crediting fully Richburg, Mr. Brooks did nothing other than to sit in the automobile. Mr. Brooks' mere presence in the automobile is insufficient to sustain these charges.
C. THE SUPPOSED BROOKS NARCOTICS CONSPIRACY
Count 44 charges Mr. Brooks and others with conspiracy to distribute and possession with intent to distribute cocaine and heroin. No overt acts are alleged. This is one of the twelve Conspiracies charged in the indictment. In addition to the two incidents of October 28, 1993, the Government argued that Mr. Brooks' involvement in the narcotics conspiracy was based on one incident where Mr. Brooks and others went to the home of an individual who owed money to a man named Raul. Raul was Willie Mora's narcotics supplier according to Richburg. The purpose of this was to collect the debt for Raul and possibly reduce Mora's drug debt to Raul. The man was not at home and nothing occurred. There is no testimony in the record indicating that Mr. Brooks was aware of the purpose of this trip or that he even knew Raul's relationship with Willie Mora.
With regard to the two incidents of October 28, 1993, at most they show isolated crimes of violence against a specific location with no intent on the part of Mr. Brooks to participate in a narcotics conspiracy. Certainly there is no way to determine whether this evidence proves this conspiracy, one of the other eleven Conspiracies, or the two Continuing Criminal Narcotics Enterprises or the RICO also alleged. Therefore, this count should be dismissed.
IV. MR. BROOKS' COUNSEL'S FAILINGS SHOULD NOT PREJUDICE HIS RIGHTS
Counsel for Mr. Brooks did not renew the severance motion during the trial. Objection is not necessary to preserve the argument for appeal in this Circuit. United States v. Lanese, 890 F.2d 1284, 1289 (2d Cir. 1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2207, 109 L.Ed.2d 553, on remand, United States v. Romano, 749 F.Supp. 53 (D.Conn. 1990), aff'd, United States v. Lanese, 937 F.2d 54 (2d Cir. 1991). However, this Court has stated that the "'failure to pursue vigorously the severance issue below increases our reluctance to second-guess the trial court's decision.'" In addition, no specifically tailored "limiting" instructions à la Miller were given. See TR 8061. Apparently, none were proposed. Should this Court consider these points, failure to have re-raised the severance motion and proposed specific instructions should not prejudice Mr. Brooks and should be disregarded as ineffective assistance of counsel. United States v. Hansel, 70 F.3d 6 (2d Cir. 1995).
V. MR. BROOKS ADOPTS AS FURTHER ARGUMENTS ALL POINTS RAISED BY CO-APPELLANTS PURSUANT TO RULE 28(i) OF THE FEDERAL RULES OF APPELLATE PROCEDURE
Mr. Brooks adopts by reference all arguments raised by co-appellants in this Court pursuant to Rule 28(i) of the Federal Rules of Appellate Procedure.
CONCLUSION
The judgment of the district court should be reversed and alternatively the indictment should be dismissed with prejudice or the matter severed and remanded for a new trial.
Dated: July 25, 1997 Respectfully submitted,
HARRY C. BATCHELDER, JR.
HENRY H. ROSSBACHER
_____________________________
Henry H. Rossbacher