929 F.

2d 967

UNITED STATES of America

v.
PERDOMO, Juan John Doe a/k/a "Juan,"
Juan Perdomo, Appellant.
No. 90-3176.

United States Court of Appeals,

Third Circuit.
Argued Dec. 5, 1990.
Decided April 11, 1991.

Richard K. Harris (Argued), Office of U.S. Atty., Charlotte Amalie, St.

Thomas, Virgin Islands, for appellee.
James R. Holloway (Argued), Office of Federal Public Defender,
Christiansted, Saint Croix, Virgin Islands, for appellant.
Before GREENBERG, COWEN and HIGGINBOTHAM, * Circuit Judges.
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Appellant, Juan Perdomo, was convicted on cocaine possession charges in the

District Court of the Virgin Islands. He appeals the denial of his motion for a
judgment of acquittal or, in the alternative, a new trial. He asserts that his Fifth
Amendment right to due process as set forth in Brady v. Maryland, 373 U.S. 83,
83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) was denied when the prosecutor, an
Assistant United States Attorney, failed to provide his defense counsel with
favorable and material information regarding the prior criminal record of the
prosecution's main witness. We agree that the prosecution's failure to disclose
constituted a Brady violation and will vacate the district court's order which
denied appellant's motion for a judgment of acquittal, or in the alternative, a
new trial.1

I. Background

On October 17, 1989, Juan Perdomo was arrested in St. Thomas by Narcotics
Strike Force officers and charged in connection with cocaine that he was
alleged to have sold, approximately one month earlier, to a paid government
informant, Hector Soto. At trial Soto, recounted the facts of the drug transaction
and established that Perdomo had sold him "an eighth" (2 1/2 to 3 1/2 grams) of
cocaine for $225. (App. at 121, 146). It was also established by other testimony
that the transaction occurred in the area between "Smitty's" Bar and Perdomo's
apartment building which is approximately 397 feet from the Evelyn Marcelli
Elementary School. (App. at 126-29). On November 29, 1989, the jury found
Perdomo guilty of three offenses as charged: possession of cocaine with intent
to distribute in violation of 21 U.S.C. Sec. 841(a)(1); distribution of cocaine in
violation of 21 U.S.C. Sec. 841(a)(1); and distribution of cocaine within 1000
feet of a school in violation of 21 U.S.C. Sec. 845a(a).

Prior to trial, defense counsel submitted two written requests for any
information relating to the criminal background of any prosecution witnesses.
The prosecution responded that its key witness, the government informant
Hector Soto, did not have a criminal record. (App. at 23). On the day following
the return of the jury verdict, it came to light that Soto had a prior arrest and
conviction record.2 (App. at 14-15). Following the discovery that a criminal
record existed, appellant filed a motion for a judgment of acquittal or, in the
alternative, for a new trial on December 20, 1989. He argued that the
prosecutor's failure to disclose this information denied him his Fifth
Amendment right to due process of law as guaranteed by Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) because the information
was not available to defense counsel at trial. These allegations were considered
by the district court at Perdomo's sentencing hearing on February 7, 1990.3
During the hearing, the government argued that a National Crime Information
Center ("NCIC") computer check conducted prior to trial had not turned up a
criminal record and therefore, the prosecutor could not be responsible for
withholding the information. Throughout the discussion, the district court made
several findings and subsequently ruled from the bench. The court found, inter
alia, that the jury had an opportunity to evaluate the informant's credibility from
other damaging testimony that had been elicited during trial concerning Soto's
receipt of government payments and his prior drug usage. (App. at 27). The
court also found that the Government had not suppressed Soto's prior record
and that the prosecution's failure to learn of the record could not "in any way
[be] determined [a] material suppression of exculpatory evidence." (App. at
30). In addition, the court charged the Office of the Public Defender with
knowledge of Soto's criminal record because that office had represented Soto in
a prior criminal proceeding. Consequently, the court found that no Brady
violation had occurred and denied the motion. (App. at 29, 31). Appellant was

sentenced to 14 months imprisonment and six years supervised release. (App. at

54).4
II. Discussion
4

We turn now to review appellant's argument that the trial court abused its
discretion when it denied the motion for a new trial. Ordinarily we review a
district court's ruling on a motion for new trial on the basis of newly discovered
evidence for abuse of discretion. See e.g., Government of Virgin Islands v.
Lima, 774 F.2d 1245 (3d Cir.1985). Because a Brady claim presents questions
of law as well as questions of fact, we will conduct a de novo review of the
district court's conclusions of law as well as a "clearly erroneous" review of any
findings of fact where appropriate. See e.g., Carter v. Rafferty, 826 F.2d 1299,
1306 (3d Cir.1987).

Appellant argues that the prosecution's failure to provide defendant with

information regarding the government informant's prior criminal record
constituted a violation of his right to due process under Brady v. Maryland.
Brady provides that the suppression by the prosecution of evidence favorable to
an accused, upon request by the defense, 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, 373 U.S. at 87, 83 S.Ct. at 1196.
This rule was modified in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392,
49 L.Ed.2d 342 (1976) to require a prosecutor to disclose exculpatory evidence
even when there has not been a request for the information by the defense.

A valid Brady complaint contains three elements: (1) the prosecution must
suppress or withhold evidence, (2) which is favorable, and (3) material to the
defense. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).
The government challenges the first element, insisting that it could not suppress
or withhold evidence that was unknown or unavailable to it. According to the
Assistant U.S. Attorney, he conducted an NCIC computer search for criminal
background information on Hector Soto which turned up no criminal records.
Appellant argues, on the other hand, that the prosecutor's decision not to
request a Virgin Islands criminal history check means that the information was
available to the prosecution team and was withheld or suppressed from the
defense. In considering a potential Brady violation and considering whether the
prosecution is responsible, the Fifth Circuit has refused "to draw a distinction
between different agencies under the same government, focusing instead upon
the 'prosecution team' which includes both investigative and prosecutorial
personnel." See United States v. Antone, 603 F.2d 566 (5th Cir.1979).
Appellant's argument is that our inquiry into the prosecution's knowledge need

not stop at the prosecutor himself but should also extend to whether any of the
Narcotics Strike Force police officers knew of Soto's criminal background. We
agree that a court's inquiry should not be limited to only the prosecutor's
complicity and adopt the Fifth Circuit's approach.
A. Suppression of Evidence
7

We agree with the appellant that the prosecution's failure to conduct a search of
local Virgin Islands records to verify Soto's criminal background meets the first
element of a valid Brady complaint. It is well accepted that a prosecutor's lack
of knowledge does not render information unknown for Brady purposes. The
Fifth Circuit has spoken the most often on this issue and has declined to excuse
non-disclosure in instances where the prosecution has not sought out
information readily available to it. See United States v. Auten, 632 F.2d 478,
481 (5th Cir.1980). In Auten, the appellant argued that his motion for a new
trial should have been granted because the prosecution failed to disclose that
one of its key witnesses had been convicted more than once. The prosecution
argued that it did not withhold or suppress evidence because the information
was unknown to it. The prosecutor had chosen not to run an NCIC check on the
witness because of the shortness of time. The court held that the prosecutor's
lack of knowledge was not an excuse for a Brady violation. "In the interests of
inherent fairness," the prosecution is obligated to produce certain evidence
actually or constructively in its possession or accessible to it. Auten, 632 F.2d
at 481 (quoting Calley v. Callaway, 519 F.2d 184, 223 (5th Cir.1975)). To do
otherwise would be "inviting and placing a premium on conduct unworthy of
representatives of the United States Government." Id.

We agree with and adopt the reasoning of the Fifth Circuit. In the instant case,
the prosecutor's argument that he did not have any knowledge of Hector Soto's
criminal history is without merit. The prosecutor was obliged to produce
information regarding Soto's background because such information was
available to him. In view of the fact that local Virgin Islands arrests and
convictions are not recorded in the NCIC database, (see Perdomo Br. at 10) it is
apparent to this court that the computer search was merely a token effort. Such
an ineffectual attempt to verify a key prosecution witness' criminal history
amounted to conduct unworthy of the United States Attorney's Office.

The following statement made by the district court judge during the sentencing
hearing indicates that the court may have been under the impression that local
records of crimes committed in the Virgin Islands are not readily available to
the United States Attorneys Office:

THE COURT: If an NCIC check does not demonstrate there was a prior criminal
10
conviction, then let the Third Circuit say that U.S. Attorneys and [the] U.S.
Attorney's office has to do more, they have to go through the sewage of San Juan
and sewage of St. Thomas to see if there are some other files there. I'm not going to
require that. (App. at 31).
11

We view the U.S. Attorney's obligation somewhat differently than did the
district court. Auten also stands for the proposition that non-disclosure is
inexcusable where the prosecution has not sought out information readily
available to it. Id. Auten and other cases indicate that the availability of
information is not measured in terms of whether the information is easy or
difficult to obtain but by whether the information is in the possession of some
arm of the state. For example, in United States v. Deutsch, 475 F.2d 55 (5th
Cir.1973) overruled on other grounds, United States v. Henry, 749 F.2d 203
(5th Cir.1984), the Fifth Circuit deemed the prosecution in possession of
information requested by the defendant where the information sought was in
the files of the United States Postal Service. Similarly, in Martinez v.
Wainwright, 621 F.2d 184, 186-87 (5th Cir.1980) a Brady violation was found
where the state prosecutor was unaware that the FBI rap sheet was in the
possession of the medical examiner. Accordingly, the criminal background
information contained in local Virgin Islands records was information that was
"readily available" to the prosecution. We conclude, therefore, that the district
court was in error, as a matter of law, for finding that the prosecution's failure
to learn and disclose Soto's record was not a suppression of exculpatory
evidence.

B. Favorable and Material Evidence

12

The second and third elements of a valid Brady complaint are that the
information must have been favorable and material to the defense. Moore v.
Illinois, 408 U.S. at 786, 92 S.Ct. at 2564. Appellant argues that the withheld
information regarding Soto's criminal background was favorable to the defense
and would have been material to the outcome at trial. We agree that the
favorability of the evidence is unquestionable. Soto's undisclosed criminal
record constitutes exculpatory evidence that the defense could have used to
impeach Soto on cross-examination.

13

We also conclude that the evidence was material to the defense. See Landano v.
Rafferty, 856 F.2d 569, 573 (3d Cir.1988). The Supreme Court has explained
that "implicit in the requirement of materiality is a concern that the suppressed
evidence might have affected the outcome of the trial." United States v. Agurs,
427 U.S. 97, 105, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976); accord United

States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481 (1985)
(plurality opinion). A defendant is entitled to a new trial where "there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A reasonable probability is
[defined as] a probability sufficient to undermine confidence in the outcome."
Bagley, 105 S.Ct. at 3383. This court has recognized that the Bagley inquiry
requires consideration of the totality of the circumstances, including possible
effects of non-disclosure on the defense's trial preparation. Gov't of Virgin
Islands v. Martinez, 780 F.2d 302, 306 (3d Cir.1985) (quoting Bagley, 105
S.Ct. at 3384).
14

Appellant has presented a compelling argument that the withheld information

was material. Had the evidence been disclosed, the result of the proceeding
might have been different. Soto appears to have had several contacts with the
criminal justice system. He has had, at least, two prior convictions and has been
subjected to a psychiatric exam. (App. at 221-227). Such information would
have been critical in presenting the witness' mental state, demeanor and
behavior to the jury, and in questioning the witness' credibility. In the instant
case, defense counsel had the rare opportunity of being able to proffer, on
appeal, a case that demonstrates exactly how the information might have been
utilized in Perdomo's defense. In a case arising out of an unrelated incident, but
with a factual setting quite similar to the case at hand, Jose Rosario was
acquitted of charges arising from another Narcotics Strike Force operation that
involved the same Hector Soto. At Mr. Rosario's trial, Soto testified as the key
prosecution witness. The significant difference in the Rosario case was that,
this time, the defense was provided with Soto's criminal history. Our review of
the excerpts from the Rosario trial transcript reaffirms our judgment that the
information concerning Soto's criminal background would have contributed
significantly to the outcome in Perdomo's trial. Seldom have appellate judges
seen such persuasive evidence that the availability of information on a prior
conviction could have made a difference. We emphasize, however, that we
simply find the information from the Rosario trial persuasive. We do not mean
to suggest that in order to establish that undisclosed information is material, an
appellant must offer proof of how the information was actually utilized in a
subsequent trial. The inquiry for the court is simply whether there is a
reasonable probability that the outcome of the trial would have been different.
We find that a strong probability exists here.

15

The district court did not apply the correct standard for measuring materiality at
the sentencing hearing. The court reasoned that the undisclosed information
was not material because the jury had ample opportunity to evaluate Soto's
credibility due to other damaging testimony that had been elicited concerning

the government payments to Soto and his prior drug usage. (App. at 27).
Whether or not the jury has had an opportunity to consider other impeachment
evidence is not the correct standard for determining materiality of undisclosed
information. It is well-established that "impeachment evidence as well as
exculpatory evidence falls within the Brady rule." Bagley, 105 S.Ct. at 3380
(citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 766, 31 L.Ed.2d
104 (1972)). "Such evidence is 'evidence favorable [and material] to the
accused' [citations omitted] so that, if disclosed and used effectively, it may
make the difference between conviction and acquittal." Id. (emphasis added) In
addition, a defendant is not required to show that evidence, if disclosed,
probably would have resulted in acquittal. The Supreme Court has offered the
following explanation:
16 the standard applied to the usual motion for a new trial based on newly
[i]f
discovered evidence were the same when the evidence was in the State's possession
as when it was found in a neutral source, there would be no special significance to
the prosecutor's obligation to serve the cause of justice. Bagley, 105 S.Ct. at 3383.
17

The question is, therefore, whether the testimony that the defense would have
been able to elicit would have been different had counsel known of Soto's
criminal record beforehand. In Bagley, the Supreme Court found that there was
a significant likelihood that the prosecutor's negative response to the motion for
discovery misleadingly induced defense counsel to believe that the two key
witnesses could not be impeached on the basis of bias or interest arising from
inducements offered by the Government. Bagley, 105 S.Ct. at 3384. Here, there
is also a significant likelihood that the prosecutor's response to the defense's
request for criminal background information induced defense counsel to
believe that Soto could not be impeached because counsel assumed that he had
no prior criminal record. In Bagley, the case was remanded for a determination
of whether there was a reasonable probability that had the government's
inducement to the witnesses been disclosed to the defense, the result of the trial
would have been different. In view of the extant circumstances here, a remand
is also required for a similar determination.

C. Alleged Defense Knowledge of Undisclosed Information

18
19

The district court decided, not only that the prosecutor had not committed a
Brady violation, but, also that defense counsel, a member of the Office of the
Public Defender, was charged with the knowledge of Soto's criminal record
because a different person in the Public Defender's office had represented Soto
on an arrest that had resulted in a conviction. (App. at 29, 31). The court cited
no authority in support of this holding. It is true that Brady does not oblige the

government to provide defendants with evidence that they could obtain from
other sources by exercising reasonable diligence. United States v. McKenzie,
768 F.2d 602 (5th Cir.1985) (no Brady violation for prosecution's failure to
turn over videotape, where defendants were aware of its existence before trial,
did not move for discovery, and could have subpoenaed a witness' attorney for
it). Evidence is not considered to be suppressed if the defendant either knew or
should have known of the essential facts permitting him to take advantage of
any exculpatory evidence. United States v. Torres, 719 F.2d 549 (2d Cir.1983);
see also United States v. Brown, 582 F.2d 197 (2d Cir.1978) (no Brady
violation where defense counsel was made aware of witness' contradictory
statements shortly after the opening of trial and was able to use him as a witness
on defense's behalf). Notwithstanding this particular branch of the Brady
doctrine, the facts of the instant case do not even remotely suggest that defense
counsel had any knowledge or, more importantly, any responsibility to be
aware of the witness' criminal record. It is untenable to suggest that, in order to
obtain impeachment evidence on behalf of a client, a public defender is, in any
way, obligated to check the total list of persons who have been served by the
agency to ascertain whether a prospective witness was a former client.5 Just as
a judge is not imputed with the knowledge of another judge in a different case,
there is no basis to demand a greater level of omniscience of co-workers in a
public defender's office. Moreover, the prosecution, not the defense, is
equipped with the resources to accurately and comprehensively verify a
witness' criminal background. Therefore, we find the district court's allocation
of the burden to the Office of the Public Defender incorrect as a matter of law
and as a matter of fairness.
D. Evidentiary Hearing
20

Although appellant has made a very persuasive showing that a Brady violation
did occur, we will nevertheless remand for an evidentiary hearing. We think
that there are several factual questions that should be determined before the
issue can finally be resolved. This court has previously recognized that "where
a factual question is raised as to whether a Brady violation occurred, the
defendant is 'entitled to have it determined by the district court in a hearing
appropriate to the factual inquiry.' " Gov't of Virgin Islands v. Martinez, 780
F.2d 302 (3d Cir.1985) (quoting United States v. Alexander, 748 F.2d 185, 193
(4th Cir.1984)). In Martinez, after considering an appeal of a conviction for
first degree murder, we remanded for an evidentiary hearing where evidence
that defendant sought to have disclosed presented a reasonable probability that
a jury could have found that he acted in self-defense. We reasoned:

21
[w]here
the submission of written affidavits raises genuine issues of material fact
and where, as here, the Brady claims are neither frivolous nor palpably incredible,

an evidentiary hearing should be conducted. Id. (quoting United States v. Dansker,

565 F.2d 1262 (3d Cir.1977)).
22

In the case at hand, the district court's consideration of the motion for a new
trial during the sentencing hearing did not rise to the level of an evidentiary
hearing that is required when a credible Brady claim has been raised. Certain
pieces of key information were not before the district court or were not
adequately considered at the time of hearing. For example, Soto's complete
criminal record was not considered because the criminal history had not been
compiled at the time that the hearing was conducted; appellant has raised
questions as to the complicity of the Narcotics Strike Force agents in a possible
cover-up of Soto's criminal background; the effect of the undisclosed
information on the outcome at trial was never actually considered; and
appellant asserts that there is no evidence, beyond the prosecution's statements
at the sentencing hearing, as to whether an NCIC search was, in fact, actually
conducted. We agree with appellant that an evidentiary hearing is necessary to
resolve these unanswered questions. Once these questions are resolved, the
court will be able to consider the proper measures to be taken to remedy the
violation of Perdomo's right to due process of law including the award of a new
trial or other appropriate relief.

III. Conclusion
23

On the arguments before us, we conclude that the appellant has presented an
undisputable argument that a Brady violation occurred. Accordingly, the
judgment of the trial court denying a motion for a new trial and denying the
motion for a judgment of acquittal will be vacated and the case remanded for
further proceedings in accordance with this opinion.

Honorable A. Leon Higginbotham, Jr., was Chief Judge at the time of oral
argument in the above case but assumed Senior Judge status on February 1,
1991

We, of course, recognize that there is a more rigid standard for the granting of a
judgment of acquittal, see United States v. Coleman, 811 F.2d 804, 807 (3d
Cir.1987), than the granting of a motion for a new trial and, at this stage, we
are not inclined to grant the motion for the judgment of acquittal. But, in view
of the fact that defendant has already served his minimum sentence, see infra n.
4, we will leave it to the trial judge and the United States Attorney to decide
how to correct the injustice that Mr. Perdomo has sustained

The exact way in which this information was discovered is unclear. At the
sentencing hearing, the government alleged that the information first came to
light as a result of a records search by two members of the Public Defender's
Office in preparation for another case. While searching their files, the public
defenders found that their office had represented the informant in an earlier
case that resulted in a conviction for burglary. (Govt.Br. at 12 citing A-24, A29)
MR. HARRIS: * * * * The way that it came to light and what defense counsel
is not telling to the court is that it came to light because Mr. McKelvin at the
Public Defender's Office knew about it and asked Attorney Peter Mabe of my
office, isn't this the guy that was convicted over in St. Croix, and upon that
information being given with that specific point of reference, an inquiry was
made and it was determined [it was] in fact the same Hector Soto.
(App. at 24). Appellant, on the other hand, argued that Mr. McKelvin was
informed by an Assistant United States Attorney, Mr. Mabe, about the
informant's record.

At the time of the hearing all of the facts regarding Mr. Soto's criminal
background had not been discovered. Subsequent to the sentencing, further
investigation revealed that Soto had been arrested five times and had been
convicted of burglary and cruelty to animals. As a result of that conviction, he
was ordered to have psychiatric evaluation and treatment. (Perdomo Br. at 15)

The instant case is a tragic example of justice delayed. Perdomo was in custody
from April 11, 1990 to November 5, 1990. By the time that his appeal was
argued before this court, on December 5, 1990, he had already served his
sentence and been released from custody. The appeal is, of course, not moot
because Perdomo has a conviction of record and is still subject to up to six
years of supervised release

The Office of the Public Defender represented Hector Soto in 1979. (Perdomo
Br. at 11)