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Addendum to Mistrial Request

Addendum to Mistrial Request

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Case
2:02-cr-20449-SHMDocument
1296RIed
03/13/12
Page
1
of
6
PagelD4097
TN
THE
UNITED
STATES
DISTRICTCOURT
FOR
THEWESTERNDISRTICT
OF
TENNESSEEWESTERNDIVISIONUNITED
STATES
OF
AMERICA,
Plaintiff,
v.
No.
02-20449-MaCLINTON
LEWIS
AND
MARTIN
LEWIS,Defendants.
ADDITIONALSUPPLEMENTALMEMORANDUM
OF
LAW
IN
SUPPORT
OF
MOTION
FOR
MISTRIALPURSUANT
TO
BRADYVIOLATION
COMES
NOW
the
Defendant,Clinton
Lewis,
byandthroughcounsel
of
record,
C.
AnneTipton
and
Howard
B.
Manis,and
respectfullysupplements
his
previousmemorandum
of
law
in
support
of
Motion
for
Mistrialpursuant
to
Brady
violation.
Tn
support,
Defendantwould
state
as
follow:
1.
Jencks
Act
does
not
excuse
tardydisclosure
of
Brady
material.The
government
has
represented
to
the
Courtreliance
onthe
JencksAct
as
a
basis
for
its
tardydisclosure
of
the
pre-trialexculpatorystatementsbywitnessTeMarcusCartwright.According
to
Mr.
Cartwright
he
was
interviewed
by
the
government
on
threeseparate
occasions,
in
2008,
December
2011
and
February
2,
2012.
DuringCourtproceedings
on
March
12,
2012
the
governmentrepresented
to
the
Courtthat
no
audio
recordingsexistedregardingany
of
the
three
interviewswith
this
witness.
The
onlymemorial
of
these
interviewswith
the
witness
was
 
Case
2:02-cr-20449-SHMDocument1296
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PagelD
4098
contained
in
a
DEA
6
report
preparedby
TFO
Richardson
after
the2008
interview.(SeeExhibit
1
Motion
for
Mistrial)Thisreport
was
not
reviewednoradopted
by
thewitness
for
accuracy.
On
March
13,
2012the
governmentprovided
the
Defendant
with
an
audio
recording
of
an
interview
allegedlyconducted
on
February
2,
2012
between
TFO
Richardson,
DEAAgentCollins,A.U.S.ADavid
Pritchard
andGregGilluly.(See
Exhibit
2
Motion
for
Mistrial)Duringthisinterview
Mr.
Cartwrightdiscussedwith
thosepresentthattheexchange
of
weaponswasstrictly
between
himandMarcusBrandon.Hefurther
reiterated
that
he
received
the
weapon
directlyfromMarcusBrandon.
He
specifically,evenwith
excessiveprodding
bytheagents,statedthe
Defendant
didnot
possessnor
c
in
the
trade
of
theweapon.Thegovernmentsreliance
onthe
JencksAct
to
shield
it
from
a
timelydisclosure
of
this
exculpatory
evidence
is
not
well
taken.
First,
in
order
forthe
government
to
haverelied
on
its
decision
to
withhold
the
recording
untilafterthedirect
testimony
of
Mr.
Cartwright,
it
wouldhave
to
havebeenaware
of
the
existence
of
therecording.
As
represented
to
the
Court
on
March
12,
2012,the
government
had
no
knowledge
a
recordingexisted
of
thisanyinterview,including
the
February
2,
2012
interview.
Therefore,
the
government
could
not
have
incorporated
theprotections
of
the
Jencks
Actinto
its
decision
to
withhold
the
Bradymaterial.
Even,
if
the
Courtwere
to
find
the
audio
recording
from
the
February
2,
2012interview
to
be
protectedbythe
Jencks
Act,
thesecondinterview,
in
December
2011
hasno
statement,recordingoranyother
memorial
as
required
bythe
definition
of
statement”
set
forth
in
18
U.S.C.
section
3500.
Therefore,
the
government
wasmandatedby
the
dictates
of
Brady
v.
Maryland
to
disclosethisin terview
ina
timely
fashion.
In
thisinstancethe
government
suppressedboth
the
secondandthirdinterviews
conducted
with
Mr.
Cartwright.Clearly,
the
 
Case
2:02-cr-20449-SHMDocument1296
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4099
government
sole
reliance
onU.S.
Brazil,
395
Fed.
Appx.
205
(
h
Cir.
2010),
is
not
appropriate
in
thiscontext.
2.
Government’suntimely
disclosure
is
a
Brady
violation.
In
order
to
establish
a
Brady
violation
the
Defendant
must
demonstrate
the
evidence
is
exculpatory,
the
government
suppressed
theevidenceand
prejudiced
ensued.
In
thisinstancethere
is
no
dispute
the
firsttwoprongs
of
thistesthavebeensatisfied.Thecourtmust
determine
the
materiality
andthus
prejudice
of
thegovernment’s
untimely
disclosure
of
theevidence.
In
the
habeascorpus
proceeding
of
Kyles
v.
Whitley,
514U.S.
419,434(1995)theSupremeCourtstated
the
standard
of
materiality
for
their
purposes(did)notrequire
a
demonstration
by
a
preponderance
thatdisclosure
of
the
suppressedevidencewouldhaveresulted
ultimately
in
the
defendant’s
acquittal.
.
.The
touchstone
of
materiality
is
a
reasonable
probability
of
a
different
result,and
the
adjective
is
important.
TheCourt
continued
stating
the
trueinquiry
isin
theabsence
of
the
untimely
disclosed
material
has
the
Defendant
received
a
fairtrial
as
defined
by
a
trial
resulting
in
a
verdict
worthy
of
confidence.
jj.
The
materiality
standard
tobe
applied
to
circumstances
arising
during
trial
is
slightly
different.Whenthe
disclosure
is
duringtrialthefocus
of
theinquiry
is
whetherearlier
disclosure
would
havecreated
a
reasonable
doubt
of
guilt.
U.S.
v.
Young,
45
F.3d
1405,
1408
(j
h
Cir.
1995)(citingUnitedStates
v.
Rogers,960F.2d
1501,
1511
(
0
h
Cir.
1992).
In
thisinstance
the
untimely
disclosure
of
this
exculpatory
material
has
prejudiced
the
Defendant
bylimiting
his
pretrialpreparations,
trial
strategy.
and
overalldesign
of
cross-examination.
In
VirginIslands
v.
Fahie,
304
F.Supp.2d
669
(D.C.
V.1.
Aug.
16,
2005)the prosecution’ssecondwitness
testified
duringcross
examination
and
disclosed
for
thefirsttime
to
thedefensethat
he
hadconducted
a
tracethrough
the
AFTbureauand
received
a
reportwith
the

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