14‐1992‐cr United States v. Ramirez

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of October, two thousand fifteen.

PRESENT: DENNY CHIN, CHRISTOPHER F. DRONEY, Circuit Judges, EDWARD R. KORMAN, Senior District Judge.*

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UNITED STATES OF AMERICA, Appellee,

v. 14‐1992‐cr

CHRISTOPHER RAMIREZ, aka Sire, Defendant‐Appellant.

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* The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. FOR DEFENDANT‐APPELLANT: HARRY SANDICK, Sophie B. Kaiser, Patterson Belknap Webb & Tyler LLP, New York, New York.

FOR APPELLEE: KAN MIN NAWADAY, Robert L. Boone, Karl Metzner, Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.

Appeal from the United States District Court for the Southern District of

New York (Sullivan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant‐appellant Christopher Ramirez appeals from a judgment

entered June 6, 2014, convicting him after trial by jury of one count of conspiracy to

distribute and possess with intent to distribute crack cocaine and marijuana,

, and one count of discharging a firearm in relation to a drug trafficking crime,

(c)(1)(A)(iii). Following Ramirezʹs conviction, the government disclosed the

presentence investigation report (ʺPSRʺ) for their key cooperating witness (the

ʺWitnessʺ) in Ramirezʹs trial. The government confirmed that it was in possession of the

PSR prior to Ramirezʹs trial and that the PSR contained information that would have

assisted the defense in its impeachment of the Witness. Ramirez subsequently renewed

his motion for a new trial under Federal Rules of Criminal Procedure 29 and 33, arguing

that the government violated his Fifth Amendment rights by failing to comply with its

obligations under Brady v. Maryland,

(1963), Giglio v. United States, 405 U.S. ‐ 2 ‐

150 (1972), and the Jencks Act,

. In an Opinion and Order filed June 9,

2014, the district court denied Ramirezʹs motion on the grounds that Ramirez was not

prejudiced as a result of the nondisclosure. We assume the partiesʹ familiarity with the

underlying facts, the procedural history, and the issues presented for appeal.

We review de novo the question of whether suppressed information is

material under Brady and Giglio, while giving ʺgreat weightʺ to the district courtʹs

factual conclusions as to the effect of the nondisclosure. United States v. Madori,

(2d Cir. 2005). We review the denial of a Rule 33 motion for a new trial for

abuse of discretion. United States v. Robinson,

(2d Cir. 2005).

To establish a Brady/Giglio violation, ʺa defendant must show that: (1) the

[g]overnment, either willfully or inadvertently, suppressed evidence; (2) the evidence at

issue is favorable to the defendant; and (3) the failure to disclose this evidence resulted

in prejudice.ʺ United States v. Coppa,

(2d Cir. 2001). While the first two

elements are easily resolved in Ramirezʹs favor, he must also show that prejudice

ensued from the suppression of this evidence. Strickler v. Greene,

, 281‐82

(1999). Ramirez must establish that the suppressed evidence was material, i.e., that

there was a ʺʹreasonable probabilityʹ of a different result,ʺ United States v. Jackson,

(2d Cir. 2003) (quoting Kyles v. Whitley,

(1995)), had the

suppressed evidence been made available. Upon review of the record, and giving

appropriate deference to the district courtʹs findings as to the effect of nondisclosure on

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the outcome of the case, we conclude that the district court did not abuse its discretion

in denying Ramirezʹs motion for a new trial.

As the district court explained, the PSR would have provided valuable

impeachment material for the defense but would not have affected the outcome of the

trial. Because the government presented other evidence establishing Ramirezʹs guilt,

the case did not hinge on the Witnessʹs credibility and the verdict would not have

changed as a result of the additional impeachment material. See United States v. Payne,

(2d Cir. 1995) (ʺIn general, impeachment evidence has been found to

be material where the witness at issue ʹsupplied the only evidence linking the

defendant(s) to the crime,ʹ or where the likely impact on the witnessʹs credibility would

have undermined a critical element of the prosecutionʹs case.ʺ (quoting United States v.

Petrillo,

(2d Cir. 1987))). In addition to the Witness, another witness

testified regarding Ramirezʹs involvement in the drug conspiracy and the April 2009

shooting. See Jackson,

(ʺ[A] new trial is generally not required when the

testimony of the witness is ʹcorroborated by other testimony . . . .ʹʺ (quoting Payne,

)). The government also presented DNA evidence linking Ramirez to the

gun found in connection with the shooting.

In other respects, the impeachment information contained in the PSR

would have been merely cumulative. ʺIt is well settled that where ample ammunition

exists to attack a witnessʹs credibility, evidence that would provide an additional basis

for doing so is ordinarily deemed cumulative and hence immaterial.ʺ United States v. ‐ 4 ‐

Orena,

(2d Cir. 1998). The withheld PSR would have only provided

additional impeachment material for issues that were already covered at trial. For

example, the erroneous sentencing calculation in the PSR may have been used to

question the Witness about his understanding of the benefit he was receiving for

testifying, but his incentives as a cooperating witness had already been explored during

cross‐examination. With respect to the new impeachment information contained in the

PSR ‐‐ disciplinary infractions, positive tests for marijuana, and financial information ‐‐

no prejudice ensued because the Witnessʹs credibility had been similarly called into

question in the same respects by evidence other than the PSR. See Shabazz v. Artuz,

(2d Cir. 2003) (ʺ[W]here the undisclosed evidence merely furnishes an

additional basis on which to challenge a witness whose credibility has already been

shown to be questionable or who is subject to extensive attack by reason of other

evidence, the undisclosed evidence may be cumulative, and hence not material.ʺ

(quoting United States v. Avellino,

(2d Cir. 1998)).

Ramirez argues that, taken collectively, the various matters presented by

the PSR raised a reasonable probability of a different result because the verdict hinged

on the Witnessʹs credibility. On this point we defer to the district courtʹs well‐

supported conclusion that the verdict would not have been affected as the result of

additional impeachment of the Witness.

Ramirez also argues that the defense was not afforded sufficient

opportunity to make use of the Jencks Act materials produced the Friday before trial ‐ 5 ‐

because of a restrictive protective order placed on Ramirezʹs access to the material.

Prior to trial, the district court granted the governmentʹs motion for a protective order

requiring either defense counsel, an Assistant United States Attorney, or a designated

federal agent to be present with Ramirez while he reviewed the material. Ramirez

argues that the Jencks Act materials were effectively suppressed for purposes of Brady

because defense counsel was not given sufficient time to make effective use of them

while simultaneously supervising Ramirez. Ramirez has not, however, pointed to ways

in which the prior witness statements were material, such that they would fall within

the ambit of Giglio and the government would have been obligated to turn them over

earlier. See Coppa, 267 F.3d at 145‐46 (distinguishing the governmentʹs disclosure

obligations with respect to Brady and Giglio from the Jencks Act). Even assuming the

materiality of the information, Ramirez has not identified any way in which the timing

of the disclosure deprived him of the ability to make effective use of the material at trial.

We have considered all of Ramirezʹs remaining arguments and find them

to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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