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United States v. George

United States District Court, E.D. Louisiana

October 8, 2019


         SECTION I

          ORDER & REASONS


         Before the Court is a motion[1] by defendants Lilbear George (“George”), Chukwudi Ofomata (“Ofomata”), and Curtis Johnson, Jr. (“Johnson”) (collectively, the “defendants”) to review the order[2] by the United States Magistrate Judge with respect to the defendants' motions[3] to compel the production of exculpatory information and materials and the joint motion[4] to compel discovery.

         The Magistrate Judge held oral hearings on the motions on May 29, 2019 and July 3, 2019.[5] After reviewing the record, the parties' arguments at the hearings, and the relevant case law, the Magistrate Judge issued an order denying in part and granting in part the defendants' motions to compel the production of exculpatory information and materials, denying “at this time” the joint motion to compel discovery, and recommending that George's motion to strike the non-statutory aggravator in the notice of intent be denied.[6] The defendants have not raised any objections to the Magistrate Judge's recommendation to deny George's third motion[7]to strike the non-statutory aggravator “Other Criminal Conduct - Armed Robbery” from the government's notice of intent to seek the death penalty against George.

         For the following reasons, the motion is denied.


         A. Review of a Magistrate Judge's Order

         A United States Magistrate Judge may hear and determine “any matter that does not dispose of a charge or defense.” Fed. R. Crim. P. 59(a); see 28 U.S.C. § 636(b)(1)(a). If a party timely objects to a ruling by a Magistrate Judge on a non-dispositive matter, the United States District Court must modify or set aside any part of the ruling that is “contrary to law or clearly erroneous.” Fed. R. Crim. P. 59(a). Under this deferential standard, the Court must affirm the decision by the Magistrate Judge “unless ‘on the entire evidence [the Court] is left with a definite and firm conviction that a mistake has been committed.'” Yelton v. PHI, Inc., 284 F.R.D. 374, 376 (E.D. La. 2012) (Barbier, J.) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).

         B. Brady Disclosure Obligations

         “Under Brady and its progeny, due process requires that the prosecution disclose evidence that is both favorable to the defendant and material to guilt or punishment.” Floyd v. Vannoy, 894 F.3d 143, 161-62 (5th Cir.), cert. denied, 139 S.Ct. 573 (2018) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). The government's Brady obligation, which applies regardless of the good faith or bad faith of the prosecution, “extends to impeachment evidence as well as exculpatory evidence.” United States v. Swenson, 894 F.3d 677, 683 (5th. Cir. 2018) (citing Youngblood v. West Virginia, 547 U.S. 867, 869 (2006)). The duty to disclose “exists irrespective of a request from the defense” and applies to “all evidence known not just to the prosecutors, but ‘to others acting on the government's behalf in the case, including the police.'” Floyd, 894 F.3d at 161-62 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). “In order to comply with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf.'” Strickler v. Greene, 527 U.S. 263, 281 (1999) (quoting Kyles, 514 U.S. at 437). However, “Brady does not obligate the State to furnish a defendant with exculpatory evidence that is fully available to the defendant through the exercise of reasonable diligence.” Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (citing Rector v. Johnson, 120 F.3d 551, 558 (5th Cir. 1997)).

         i. The Defendants' Evidentiary Requests Under Brady

         George, Johnson, and Ofomata each filed motions to compel the production of “exculpatory information and materials” that they had requested from the government.[8] In their motions to compel, the defendants argued that the government had failed to satisfy their requests for favorable evidence subject to disclosure under Brady.[9] The government's response to these motions asserted that the requested information had already been provided to the defendants, did not exist, or was neutral and thereby not subject to Brady obligations.[10]

         The Magistrate Judge's review of the defendants' motions to compel discovery delineated the defendants' requests into seventeen categories:

(1) statements of witnesses to the robbery and shooting who do not identify Ofomata by name
(2) statements of witnesses who describe defendants differently
(3) information regarding individuals who were suspected in the crimes
(4) recorded phone calls of co-defendant Jeremy Esteves during which Ofomata is not mentioned
(5) information implicating anyone other than Ofomata
(6) statements from Jasmine, Jamesha, and/or Marquita Theophile that do not mention Ofomata by name
(7) all recordings of calls to Crimestoppers that do not implicate Ofomata
(8) information pertaining to George's loading cards with money from the robbery
(9) information pertaining to Rashad Montague's interviews in which Ofomata is not mentioned
(10) same as to Ard Singleton's interviews
(11) information regarding George's participation in drug trafficking with a firearm
(12) information regarding George's participation in robbery
(13) information regarding George's statements that he lacks remorse
(14) all calls to Crimestoppers that implicate someone other than Ofomata
(15) information implicating anyone else in the planning or commission of the crimes
(16) any mitigating evidence favorable to Ofomata at the sentencing hearing
(17) any aggravating evidence with regard to other co-defendants at the sentencing hearing[11]

         The Magistrate Judge ordered that the government satisfy requests 11 and 12 and provide the grand jury testimony of Jasmine Theophile within seven days of the Magistrate Judge's ruling.[12] The Magistrate Judge concluded that requests 1-2, 4-7, 9-10, and 14-15 were neutral; that request 3 had already been provided to the defendants and would not “lead[] to Brady information at this time”; and that request 8 would not be exculpatory because “[i]nformation that George loaded cards with money from the robbery would only tend to incriminate him and perhaps others.”[13]The Magistrate Judge found requests 13, 16, and 17 to be premature because the defendants' guilt or innocence had not yet been adjudicated.[14] Noting that the defendants may re-urge requests 13 and 17 at a later stage, if appropriate, the Magistrate Judge also highlighted the government's duty to produce all mitigating evidence relevant to the sentencing phase if such evidence becomes known.[15]

         ii. The Brady Standard As Applied to the Defendants' Evidentiary Requests

         The defendants argue that the Magistrate Judge's order was contrary to law because it applied a “post-conviction ‘materiality' standard” rather than a favorability standard to the requested information.[16] As the Fifth Circuit has explained, a Brady violation occurs when: “(1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material.'” United States v. Cessa, 861 F.3d 121, 128 (5th Cir. 2017) (quoting United States v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016)). The United States Supreme Court has held that “the government violates the Constitution's Due Process Clause ‘if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment.'” Turner v. United States, 137 S.Ct. 1885, 1888 (2017) (quoting Smith v. Cain, 565 U.S. 73, 75 (2012)). “Evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Cessa, 861 F.3d at 128 (citing Dvorin, 817 F.3d at 451); Strickler, 527 U.S. at 280.[17]

         The defendants have not demonstrated that the Magistrate Judge applied an incorrect legal standard to her rulings. As the defendants themselves highlight in their motion, the Magistrate Judge based her denials of the defendants' requests to compel the production of certain categories of information on her conclusion that such evidence was “neutral-not exculpatory-evidence, and it therefore falls outside the purview of Brady.”[18] There is no suggestion in the Magistrate Judge's order that her rulings were based on her evaluation of materiality. As the Magistrate Judge made clear in her order, “Brady material is any evidence favorable to the accused, ” and the government “has a duty to learn of any favorable evidence known to the others acting on the government's behalf in th[e] case, including the police.”[19]

         Moreover, in response to the government's position at the July 3, 2019 oral hearing, the Magistrate Judge reminded the government in her order that the Brady standard was not synonymous with “exoneration” and that the standard applied to “a larger swath of material than material that would merely exonerate a defendant.”[20] The Magistrate Judge emphasized to the government that the government could not “simply wait and see whether any Brady material may arise during its investigation” because the government has an “affirmative duty to search for Brady material and should actively do so.”[21] The Court finds that the legal reasoning of the Magistrate Judge was not clearly erroneous or contrary to law.

         The defendants further object to the Magistrate Judge's rulings denying their requests for information they allege to be Brady material because, according to the defendants, the Magistrate Judge made a “categorical” determination that certain information was neutral, rather than conducting a “fact-specific inquiry” into the “favorable value” of the evidence requested.[22] After reviewing the case law and the record, the Magistrate Judge concluded that requests 1-2, 4-7, 9-10, and 14-15 pertained to neutral evidence, and she denied the requests on that basis.[23] To support their argument as to their claim that the Magistrate Judge erred by making a “categorical” determination with respect to their requests, the defendants point to the “cases cited in the magistrate's order, ” which, according to the defendants, “simply determine, under the facts of the specific case, that the information requested was neutral in that case.”[24] According to the defendants, these case citations demonstrate that the Magistrate Judge's order was “contrary to law.”[25] The Court finds this argument to be unconvincing.

         The Magistrate Judge's order reflects a consideration of the circumstances specific to this case-notably, the fact that the government had already provided the defendants with the Supplemental homicide report, which contained the requested information regarding initial alternative suspects, and the government's affirmation that no individual other than the defendants charged in this case is a suspect.[26] The cases that the Magistrate Judge cited in her order reflect her considered review of the applicable case law relative to the issues that were before her.

         iii. The Magistrate Judge's Specific Rulings on the Defendants' Brady Requests

         The Court finds that the Magistrate Judge's rulings on requests 1, 2, 3, 6, 7, 9, 10, and 14 were not clearly erroneous because it appears that the government has already provided the defendants with the information requested within these categories to the extent that such information is in the government's possession. With respect to requests 1 and 2 for statements of witnesses to the robbery, the government provided the defendants with the New Orleans Police Department (“NOPD”) supplemental homicide report, which “summarizes all witness statements.”[27] The government had also already satisfied requests 6 and 7. At the May 29, 2019 hearing before the Magistrate Judge, the government stated that it had provided the defendants with the grand jury testimony of Marquita Theophile and that it would provide them with the FBI 302s of Marquita Theophile and Jasmine Theophile.[28] At the July 3, 2019 hearing, George's counsel affirmed that the request for transcripts of grand jury testimony had been fulfilled.[29] The defendants have also received all Crimestoppers tips related to the offense, [30] as well as the 302s for Ard Singleton and Rashad Montague.[31]

         With respect to request 4, the government explained at the July 3, 2019 hearing that it was not continuously monitoring all phone calls made by the defendants in prison and that it would provide defense counsel with recordings of the calls that the government intends to use at trial.[32] Moreover, defense counsel acknowledged that “[t]here is no issue with us subpoenaing [the recordings].”[33] See Kutzner, 303 F.3d at 336 (“When evidence is equally available to both the defense and the prosecution, the defendant must bear the responsibility of failing to conduct a diligent investigation.”) (citing Herrera v. Collins, 954 F.2d 1029, 1032 (5th Cir.1992), aff'd, 506 U.S. 390 (1993)).

         The Court agrees with the Magistrate Judge's ruling on request 8, “information pertaining to George's loading cards with money from the robbery, ” that such information is not subject to disclosure under Brady.[34] The defendants have ...

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