United States v. Barker
United States v. Barker
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Defendant Timothy Barker appeals from a judgment of the United States District Court for the Southern District of New York (Barbara S. Jones, Judge) convicting him, after a jury trial, of one count of conspiracy to distribute and possess with intent to distribute 50 grams and more of cocaine base and 5 kilograms and more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A); one count of possession with intent to distribute and distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B); and one count of possession with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1). The District Court sentenced Barker principally to 360 months’ imprisonment.
Barker raises only one contention on appeal: that the Government violated the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose, in advance of a pre-trial suppression hearing, evidence that might have impeached the credibility of a confidential government informant (the “Cl”). Although the Cl did not testify at the suppression hearing, Barker argues that the DEA agents who arrested him did so largely on the basis of the Cl’s information. Barker argues that impeaching the Cl’s credibility would have led the District Court to conclude that the Government lacked probable cause to arrest Barker, requiring the suppression of the cocaine and cocaine base that the DEA agents seized from Barker when they arrested him.
Barker alleges that the Government failed to disclose that during the course of the Cl’s cooperation with the Government, he was arrested and charged with assault with intent to cause physical injury after throwing a pen at his common-law wife, which charge was later dismissed when the victim withdrew her complaint. Additionally, Barker claims that the Cl’s disclosures to the Government were originally incomplete, as he had informed the Government that he owned two cars when he actually owned three (though he later voluntarily disclosed his ownership of the third car). Lastly, Barker contends that the Cl had not always complied with the DEA’s instructions during his cooperation when it was necessary to protect his physical safety. The Government disclosed all of the above information to Barker before the trial began, and the Government elicited testimony from the Cl regarding this information in its case in chief.
We have never held that Brady applies to pre-trial suppression hearings, and we do not reach the issue now because, even if Brady applies, it is clear that the Government did not violate it. In order to succeed on a Brady claim, Barker would have to show that “there is a reasonable probability that, had the evidence [regarding the Cl’s behavior] been disclosed to the defense [before the suppression hearing], the result of the [suppression hearing] would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (internal quotation marks omitted). Barker cannot make this showing.
Accordingly, the judgment of the District Court is hereby affirmed.
Reference
- Full Case Name
- United States v. Timothy BARKER
- Cited By
- 1 case
- Status
- Published