SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Criminal Division — Felony Branch UNITED STATES OF AMERICA 4 Crimi v. i Hon - Trial? MOTION TO DISMISS FOR GOVERNMENT'S FAILURE TO TIM ELY COMPLY WITH BRADY OBLIGATIONS MrA@ipchrough undersigned counsel, respectfully moves this Honorable Court, to dismiss this ease due to the government's failure te provide exculpatory and impeachment material to defense counsel in a fimely manner pursuant to the Fifth “Amendment to the United States Constitution, Brady v, Marvland, 373 U.S. 83 (1963), and Vaughn v. United States, 93 A.3d 1237 (D.C. 2014). In support of this motion, counsel states: 1 Mr bs Controlled Substance (cocaine). Trial is set for March 21, 2017. is charged by indictment with one count of Unlawful Distribution of 2, ‘These charges stetn from an alleged incident on January 27, 2016 where Mr SRB ss rested inside@MMParkovood PINW. Mr lipo es not live at this address, 3. _Accarding to the government, $20 of pre-recorded Metropolitan Police Department funds, cocaine, and heroin were found inside of QD Parkwood PI NW. No drugs or marked money were found on ue. 4, Through investigation, the defense recently learned that Charles Qa lived st 1QED Parkwood Pl NW at the time of Mr.€@p's arrest and was home when officers conducted their search. Additionally, Charles Qi has a pending distribution of cocaine case, 2016 CF2 6084, where the government alleges that he was selling drugs at@ Parkwood P! NW during a time when Mr. > ‘was incarcerated. There are also two co-defendants, David Weller 2016 CF2 006089 and Dwayne in 2016 CF2 006083, also charged with distribution of cocaine outside of @ Parkwood PLNW. These allegations are from April of 2016. Several of the same members of the Narcotics Special Investigation Division were Accordingly, the Metropolitan Police Department was aware of thie connection involved in or investigated the arrest of Mr. @¥igpand Charl between the mea at(@jPParkwood PINW as well as the connection between ERBBP arhi00d PINW and cocaine since at least April of 2016. IC also appears that there was a preliminary hearing at which an officer testified to the facts of CharlesQQQQRBW pending case in May of 2016. Me's case was pending that the time of the testimony. ‘As soon as the Defense learned of this information on March 14, 2017, it called the assigned Assistant United States Attomey (AUSA) to request that the government tun over its complete discovery file in all three felony cases. Undersigned counsel memorialized the conversation and followed up with a written request in writing. See Appendix A, Specifically, counsel requested “{s) the names of the undercover officers and all members of the arrest team who were w10. part of the buy bust operation: (b) baoking photos of all three individuals from the day of their arrest; (c) all police reports relating to the incident; (d) all radio runs ‘relating to the incident, specifically those including a lookout or description of any of the three individuals; (e) the preliminary hearing transeript in the three cases; (f) all grand jury transcripts relat ing to the three cases; (g) the complete drug analysis in the cases; and (h) any other information that is part of the government's file it would use to prove that Charles qa. Davide. and Dwayne QP were distributing cocaine to a fact finder.” Pursuant to Brady v, Maryland, 373 U.S. 83 (1963), the government is required to provide Mr SQM with exculpatory and impeachment information in advance of trial so that it can be made use of at trial, Pursuant to Vaughn v. United States, 95 A 3d 1237 (D.C. 2014) and Miller v. United States, 14 A.3d 1094 (D.C. 201 the prosecution must tum over Brady materials promptly. ‘The information contained in the files of Charles QD. David and Dwayne QUEER is Brady: because it potentially links another individual who had access tof) Parkwood PINW on the day of Mr Qs arrest tothe evidence recovered fram inside of it. The government has known about the arrests of Charles >. dvi and Dwayne di since April of 2016. Although the assigned AUSAS are different in Mc Q's and Me. QB's matter, they both involve incidents arising out of the Fourth District and the eases are assigned fo the same supervisor. Additionally, at least two of the same officers were involved in thearrests of Mrq@i@ and Chari Qa 11. The Defense is unfairly prejudiced by nat receiving information that Charles QR v3 rested aQW Parkwood PI NW and the complete discovery file from the incident in advance of trial, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 1 THE GOVERNMENT FAILED TO MEET ITS OBLIGATIONS UNDER 8RADY BY FAILING TO TURN OVER THE COMPLETE DISCOVERY FILE IN 2016 CF2 6084. ‘The Supreme Court has held that “the suppression by the prosecution of evidencefavorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87; see also Vaughn v. United States, 93 A.3d 1237, 1253 (D.C. 2014) (explaining that “prosecutors are thus obligated to play a dual role at trial: they must advocate for the government ‘with earnestness and vigor but they also have an obligation under Brady ‘to assist the defense in making its case’). In assessing what constitutes “favorable” information subject to disclosure, the D.C. Court of Appeals has emphasized that “the defense perspective controls.” Vaughn, 93 Abd at 1254. Here. evidence that someone else, who lived at Parkwood Pl NW and was present at the time officers recovered contraband from the home on January 27, 2016, is accused of being a drug dealer at the same address in a separate criminal prosecution is certainly “favorable to the accused,” particularly where there is a question of identification. Discoverable Brady evidence is not limited to evidence of actual innocence, but also includes evidence that weighs on the strength of the government's case. ‘The rules of Brady require that evidence be disclosed in a timely fashion. Sce, eg, Miller v. United States, 14 A.3d 1094, 1108 (D.C. 2011) (“This court has emphasized that [a] prosecutor's timely disclosure obligation with respect to Brady material can never be overemphasized, and the practice of delayed production must be disapproved and discouraged.”). See id. at 1108 (explaining that "a strategy of delay and conquer... is not acceptable" (internal citation and quotation marksAL 1111 (rejecting the rationale that "better late than never" is good enough and endorsing the ABA standards requiring Brady disclosure “at the earliest feasible opportunity . . . as soon as practicable following the filing of charges" (internal quotation marks omitted)). ‘The D.C, Court of Appeals has stressed that Brady disclosures are required "well before the scheduled trial date," Zanders v. United States, 999 A.2d 149, 164 (D.C. 2010). See also Boyd v. United States, 908 A.2d 39, 57 (D.C. 2006) ("[F]imely disclosure... . ean never be overemphasized”) A key purpose of the Brady rules is to ensure that exculpatory and material evidence ¢an be used by the defense in its investigation and preparation of the case, which requires disclosure well in advance of trial so that the defense may actually make use of the evidence. “[OJnce trial comes, the prosecution may not assume that the defense is still in its investigatory mode.” Miller, 14 A.3d at 1113 (D.C. 2011) (quoting Leka v_ Portuondo, 257 F.3d $9 (2d Cit. 20013). In Miller, when the prosecutor turned over exculpatory evidence the night before trial, the D.C. Court of Appeals overturned the trial court's ruling that such disclosure was sufficient to prevent prejudice. There, the court held that given the defense’s repeated specific requests for the evidence throughout the pendency’ of the case, the government violated the defendant's rights by withholding the evidence until the eve of trial. Id, at 1103 (“. . . as we have repeatedly recognized, exculpatory evidence must be disclosed in time for the defense to be able to use it effectively, not only in the presentation of its case, but also in its trial preparation”), An ‘important purpose of the rules of discovery is to “allow{ J defense counsel an opportunity fo investigate the facts of the case and, with the help of the defendant, craft an appropriatedefense.” Perez v, United States 968 A.2d 39, 66 (D.C.2009) (citing Edelen v. United _ States, 627 A.2d 968, 970 (D.C.1993)). Here, the Defense has worked diligently since it was appointed to this matter last July to prepare its case; however, it was at a disadvantage due to the missing information about another individual who lives at the very address officers found contraband they connect to Mr. Green, The Defense acknowledges that its request requires the government to disclose a great deal of information; however, it does not believe that this request in unreasonable. In order to evaluate whether someone else atf@MiyParlowood Pl NW was the drug dealer who sold to the undercover officer.on January 27, 2016 and owned the contraband recovered from inside the house, the Defense should be entitled to every bit of information that the government would use in a criminal prosecution to show that Charles (QM was the drug dealer 7 Parkwood Pl NW in April of 2016. In order to deal with the prosecution's unreasonable failure to disclosure of this evidence, the defense has been forced to reopen its investigation and prepare for trial anew the week before trial. Such a requirement is prejudicial to the defense and violates Mr.@@@Ws right to have the relevant evidence available to him throughout the defense preparation. The prosecution cannot rely on the fact that Charles presence at QB Parkwood PI NW in both cases may have only been realized by the arresting officers. If material evidence favorable is held by another government agency, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.” Kyles v. Whitley, 514 U.S. 419, 437 (1995).I. _ DISMISSAL IS AN APPROPRIATE REMEDY FOR THE DISCOVERY VIOLATIONS IN THIS CASE. ‘The Court of Appeals has long held that “the trial judge enjoys a broad range of possible sanctions, with the sole limitation being that the sanction be just under the circumstances.” Odom v. United States, 930 A.2d 157, 159 (D.C. 2007) (quoting Allen v. United States, 649 A.2d 548, 552 (D.C.1994)), Faced with the government's disregard of its obligations under Brady in case after case, the Court of Appeals has repeatedly declared that “the practice of delayed production [of Brady material] must be disapproved and discouraged.” Boyd v. United States, 908 A.2d 39. $7 (D.C. 2006) (quoting Cu United States 658 A.2d 193, 197 (D.C. 1993)); see also Vauehn, 93 A.3d at 1267 0.33 (providing that the trial courts may dismiss cases where the government “engages in deliberate Brady misconduct” ‘That a trial court may dismiss a case to sanction and deter the government is clear from the Court of Appeals’ holding in Vaughn. In Vaughn, the Court found constitutional violations where the government in part provided the defense with misleadingly truncated versions of Brady material and reversed the government's “ill. gotten conviction,” 93 A.3d at 1266 (quoting United States v. Olsen, 737 F.3d 625,633 (9th Cir, 2013)) (Kozinski, C.1., dissenting from denial of petition for rehearing en banc). Back before the trial court, Vaughn declared the defense would not be foreclosed from arguing that “a new trial should not be held.” Id. at 1267 n.35 (citing and quoting Virgin. Islands v, Fabie, 419 F.3d 249, 254-55 (3d Cir. 2005) for the proposition that “dismissal fora Brady violation may be appropriate in cases of deliberate misconduct”). Here, the Court should dismiss charges where, because of the gavernment’s 8ntimely disclosure of moterial and potentially exculpatory evidence, the defense. has been unable to prepare for trial, In this case, the defense did not receive evidence that links another individual who had access to QB Parkwood PLNW on the day of Mr. SMBs 21251 10 the evidence recovered from inside of it, Defense ‘counsel has thus been unable to investigate and adequately explore a potential Winfield defense. Winfield v_ nited States, 676 A.2d 1 (D.C. 1996) (en bane); Johnson v, United posh 136 A.3d 74, 80 (D.C. 2016) (explaining that evidence “need only tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense"). There ‘has been no indication as to the reason for the delay in disclosing this information; the government routinely keeps electronic copies of its discovery files und could étail the information as an attachment to the defense. Given the unreasonable and unexplained delay in the government's disclosure of Brady information, and the deterrent effect dismissal would produce, dismissal is an appropriate sanction for a failure to comply with its timely disclosure obligations under Brady. WHEREFORE, for these reasons and any others that may appear to the Court, Mr QBEEBBD vespectfully requests that the Court order that the charges against him be dismissed due to the government's failure to comply with the its timely disclosure obligations under Brady. Respectfully Subs ‘dp ice Clinic 111 F Street, NW Washington, D.C. 20001 9phone) \(fax) E This is to certify that a copy of the foregoing Motion to Dismiss was delivered by hand and email to the Office of the United States Attorney, aus i See Er Fourth Street, NW, Washington, D.C. 20530, on this 17° day of March 2017. kk 10