ROBIN S. ROSENBAUM, District Judge.
This matter is before the Court on Defendant Terrance Brown's Motion for New Trial [ECF No. 1057]. The Court has carefully reviewed Defendant's Motion and all supporting and opposing filings and is otherwise duly advised in the premises. For the reasons set forth below, the Court now denies Defendant Brown's Motion.
On October 1, 2010, a Brink's armored truck messenger was shot dead outside of a Bank of America branch located in Miramar when individuals attempted to rob him of approximately $395,000.00 that he was delivering. In connection with this event, Nathanial Moss was charged with conspiracy to commit Hobbs Act robbery, Hobbs Act robbery, and using and carrying a firearm during the commission of a Hobbs Act robbery and causing the murder of a person in the course of that violation. See United States v. Nathaniel Moss, Case No. 10-60264-CR-COHN (S.D. Fla. Jan. 13, 2012), ECF No. 9 (Indictment). Based on these charges, Moss was eligible for the death penalty. See id. at 3-4.
In exchange for the Government's agreement not to seek the death penalty, however, Moss pled guilty to the Indictment. See Case No. 10-60264, ECF No. 145 at ¶¶ 1, 11. Ultimately, Moss was sentenced to life imprisonment. See id. at ECF No. 150. As a part of his plea agreement and in effort to obtain a reduced sentence, Moss agreed to cooperate with the Government in its investigation of the October 1, 2010, robbery. See id. at ECF No. 145, ¶¶ 8-10. Through Moss, the Government learned of other allegedly successful and unsuccessful armored car robbery attempts in which Moss, Defendant Brown, and other Defendants allegedly participated over a number of years. To varying degrees, the Government obtained evidence tending to corroborate some of these prior robbery attempts and charged Defendants with the attempts that occurred between May 2010 and October 1, 2010.
In part as a result of Moss's cooperation, the grand jury returned charges against Defendants Terrance Brown, Toriano Johnson, Daryl Davis, Hasam Williams, Joseph K. Simmons, and Bobby Ricky Madison, relating to the October 1, 2010, armored-car robbery and some of the other alleged attempted armored-car robberies about which Moss told the Government during his debriefing sessions. Defendant Madison's trial proceeded separately from the other Defendants.
During Madison's trial, the Government called Moss to testify. During his testimony, Moss implicated Defendants Brown, Johnson, Davis, Williams, and Madison by name, and Defendant Simmons by description. He provided exacting testimony explaining each Defendant's alleged role in the robbery and attempted robberies, as well as information regarding the details of the crimes. The Government then presented corroborating evidence, such as video recordings of vehicles during the alleged crimes, which matched Moss's descriptions; cellular telephone records indicating the locations of Defendants' cellular telephones in the areas where Moss described during the periods that Moss alleged; and other similar evidence. In response, Madison attempted to impeach Moss's testimony, alleging that he had fabricated it. On redirect, Moss testified as follows:
ECF No. 392 at 228:12-230:1. Based on this testimony, during closing, the Government argued that Moss was credible because the Government was unaware of pretty much everything other than the October 1, 2010, robbery until Moss told the Government about the prior attempts and successes.
Because of this testimony and argument in the trial of Madison, Defendant Brown sought the issuance of a Rule 17, Fed. R. Crim. P., subpoena to counsel for Moss, seeking the following:
ECF No. 529 at 4.
In its Response to Defendant's Motion for Issuance of Rule 17 Subpoena to Counsel for Nathanial Moss [ECF No. 568], the Government noted that counsel for Defendant Brown had advised the Government that he was seeking from the Government those documents identified in the third request set forth above. ECF No. 568 at 2. The Government further stated that it was "not aware of the existence of any documents fitting [Brown's] request as set forth more particularly in category #3 of his motion. All documents, if any, that defendant Brown may believe fit his request would have been filed as a Response to the Standing Discovery Order in U.S. v. Moss. ..." Id.
Counsel for Moss vehemently opposed Brown's Motion, invoking the attorney-client privilege and work-product protection. See ECF No. 572. Moss's counsel further argued that Brown had failed to make any showing that he was entitled to the documents that he sought. The Court agreed and denied Brown's Motion for Issuance of Rule 17 Subpoena to Counsel for Nathanial Moss. See ECF No. 591.
The trial of Brown, Williams, Johnson, Davis, and Simmons proceeded on May 24, 2013. See ECF No. 742. During his opening statement, counsel for Brown said,
ECF No. 861 at 29:1-31:21.
Nathanial Moss testified soon after the parties completed their opening statements. During his testimony on direct examination, Moss stated that, before he had his first debriefing session with the Government, he was not aware of whether the Government had provided his attorneys with discovery in the case. Nor, Moss attested, did he know what information the Government had regarding the October 1, 2010, robbery or any prior robberies or robbery attempts in which he had engaged:
ECF No. 771 at 160:21-177:21.
On cross-examination, counsel for Defendant Brown obtained several impeaching admissions from Moss:
Id. at 184-:4-186:24. Over the Government's objection, the Court subsequently allowed Brown to admit into evidence the portion of the change-of-plea transcript that he read during cross-examination of Moss. See ECF No. 1003 at 12:16-17:21.
During a sidebar in Brown's counsel's cross-examination of Moss, counsel for Johnson remarked, "Judge, now that the government has had a chance to go into this in direct, I think they've completely opened the door. Mr. Moss has waived any attorney/client privilege. I think now we're entitled to the investigation that Mr. Day—." Id. at 183:11-:15. Because the jury was waiting and the objection came from an attorney who was not examining Moss at the time, the Court directed counsel for Johnson to raise the issue at a later time so as not to use the jury's time unnecessarily on a sidebar. Id. at 183:16-:21.
4. The Court's Consideration of the Defense's Request to Call Moss's Counsel
The parties brought up the issue again after the jury was dismissed for a break, and the Court indicated that it was going to take some time to think about it. The next day, the following discourse occurred:
ECF No. 863 at 3:7-4:19.
Counsel for Brown suggested appointing new counsel for Moss and directing the Government to require Moss to allow his attorney to testify if Moss wanted to receive a reduction in sentence under Rule 35, Fed. R. Crim. P. See ECF No. 863 at 5:11-:24. Alternatively, Brown's counsel requested that Moss's testimony be stricken. See id. at 5:25-6:6. Finally, Brown's counsel proposed as his "least preferable alternative" to strike the entirety of Moss's testimony "as it relates to what he knew about prior to his debriefing, give an instruction from [sic] the jury to disregard it, prohibit any further testimony on that issue and prohibit the government from arguing that in closing argument." Id. at 7:18-8:1.
The Court then called Moss's counsel to ask whether he would be willing to testify. See ECF No. 863 at 68:15-69:3. Moss's attorney refused to answer any questions because of ethical constraints. See id.
The Government then indicated its intention to call Officer Starkey as a witness later in the trial and noted that he was knowledgeable about what information the Government had provided to and withheld from Moss's legal team.
Returning to the discussion regarding Moss and his attorney, Defendants Brown, Johnson, and Williams moved for a mistrial, and the Court denied the motion.
Id. at 87:9-:17. The Court declined to give the second paragraph of the requested instruction but did read the first paragraph. See id. at 96:17-97:18. Upon instructing the jury, the Court inquired of the jury to make sure that it understood the instruction. See id. One juror asked that the instruction simply be repeated, and the Court did so. Id. None of the jurors indicated in response to the Court's question that they could not follow the instruction. Id.
On June 10, 2013, Brown subpoenaed Moss's counsel to testify in Brown's case. See ECF No. 788-1. Counsel for Moss filed a motion seeking to quash the subpoena. See ECF No. 788. In the motion, counsel for Moss represented that counsel for Brown had advised him that he "intend[ed] to delve into communications between the defense team and Moss concerning discovery and the investigation." Id. at 1. Counsel for Moss objected and invoked the attorney-client privilege and the work-product protection on Moss's behalf. See, generally, id. In discussing the motion, the parties noted that now-Magistrate Judge William Matthewman and Tim Day, Moss's attorneys, wrote in support of Moss's mitigation package, "[Nathanial Moss's] testimony will not [be] based on facts provided in discovery, but will clearly be seen to have come from his own personal knowledge of this crime." ECF No. 1008 at 412:16-:18. The Court granted the motion to quash. See ECF No. 813
During a portion of the charge conference, Brown requested that the Court give the jury a missing-witness instruction with regard to Moss's counsel. See ECF No. 1005 at 18:18-19.9. The Court denied the request. Id. at 25:9-26:7. Counsel for Brown then suggested that the Court provide the following instruction:
Id. at 26:11-:18. Although the Court declined to give the instruction as phrased, the Court instead decided to provide the following instruction:
Id. at 28:8-:16. Counsel for Johnson agreed, and no parties voiced any objections to the instruction, see id. at 18:17-29:21, so the Court gave the proposed instruction when it read the jury instructions.
During closing arguments, counsel for Brown argued vehemently that the Government's case rose or fell with Moss's testimony. See ECF No. 1004 at 58:3-88:23. He further urged the jury to find that Moss had been untruthful — that he had used the eight months between his arrest and his first debriefing with the Government to ascertain what the Government wanted to hear by reviewing the materials available to him to do so:
ECF No. 1004 at 74:19-76:24. At this point of the closing, Brown's counsel read into the record the Government's questioning of Moss where Moss denied being aware that his defense team had received discovery, including videos cell-site information and maps, and other materials, and Moss denied having any knowledge that the Government considered Brown a person of interest in its investigation. Id. at 76:25-79:24.
Brown's counsel then remarked,
Id. at 79:25-80:4. Next, Brown's counsel painted a contrast between Moss's trial testimony and his sworn admission during his change of plea, where Moss acknowledged that his attorneys had spent a lot of time with him reviewing the discovery and that they had conducted their own investigation. Id. at 80:5-81:3. After reading into the record Moss's attorney's statements regarding what his attorneys had done to advise Moss in arriving at his change-of-plea decision and Moss's concession that they had, in fact, done the things that his attorney said, Brown's counsel urged,
Id. at 81:4-:17.
On July 15, 2013, the jury returned its verdict as to Brown. See ECF No. 887. The jury found Brown guilty as to Count 1 of the Superseding Indictment, the count charging conspiracy to commit Hobbs Act robbery. See id. As for all of the other charges, the jury could not reach a verdict, and the Government subsequently declared its intention to retry Brown on Counts 2 through 8. See id.; ECF No. 919.
Following these events, Brown filed the pending Motion for New Trial [ECF No. 1057]. In his Motion, Brown asserts that he should receive a new trial "because of the infringements upon his ability to effectively cross-examine the government's main witness, Nathanial Moss, and his ability to compel the production of witnesses and evidence which would have been used to undermine the testimony of Nathanial Moss." Id. at 1. In particular, Brown complains that his right to compulsory process was violated when the Court quashed the subpoena to Moss's counsel and that his Confrontation Clause rights were violated when the Court declined to allow Brown to elicit from Moss information protected by the attorney-client privilege and the work-product protection. See id.
Rule 33(a), Fed. R. Crim. P., allows a court to "vacate and judgment and grant a new trial if the interest of justice so requires."
Among other guarantees, the Sixth Amendment to the United States Constitution promises that `[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor. ..." U.S. Const. amend. VI. Here, Brown complains that the Court's quashing of the subpoena to Moss's attorney after Moss's attorney invoked Moss's attorney-client privilege and work-product protection violated Brown's Sixth Amendment right to compulsory process. This Court need not reach that determination because even if it did, Brown was not prejudiced.
In United States v. Buckley, 586 F.2d 498 (5th Cir. 1978),
On appeal, Buckley alleged that his Sixth Amendment right to compulsory process had been violated by the turn of events. Id. at 503. The former Fifth Circuit first recognized the "pragmatic considerations underlying the implementation of the policy behind the attorney-client privilege, which is to encourage the free-flowing communication and candid disclosure so vitally necessary to effective representation by counsel. This policy cannot be achieved unless a client is free to communicate with his attorney `without fear of consequences or the apprehension of disclosure.'" Id. at 502 (citations omitted). Then the court acknowledged that a defendant's Sixth Amendment rights may, in some circumstances, trump claims of privilege. Id. at 503. But the court concluded that it need not sort out how the right to compulsory process and the attorney-client privilege matched up in Buckley because even if Buckley's rights had been infringed, Buckley had suffered no prejudice. Id. In explaining why this was, the court noted that Buckley was able to place before the jury evidence of the same facts that he sought to elicit through the presentation of Castle's attorneys. Id. Thus, the court determined that it was "obvious that Buckley was in no way prejudiced by the invocation of the privilege." Id.
This case is no different. Here, Brown sought to present the testimony of Tim Day, Moss's counsel, to impeach Moss's contention that he had not been shown discovery by his attorneys. When Moss invoked the attorney-client privilege and the work-product protection through Day, Brown was able to prove precisely the same point by reading a portion of the transcript from Moss's change-of-plea hearing in which Moss admitted that his attorneys had thoroughly reviewed all discovery with him and that they had conducted an investigation into his case. Even if Day had testified, the evidence on this point could not have been more favorable for Brown.
The Sixth Amendment also guarantees all criminal defendants the right "to be confronted with the witnesses against him. ..." U.S. Const. amend. VI. Brown complains that his Confrontation Clause rights were violated when the Court did not allow counsel to inquire of Moss into areas protected by the attorney-client privilege and the work-product protection. This Court respectfully disagrees.
It is true that "[c]ross-examination of a government `star' witness is important, and a presumption favors free cross-examination on possible bias, motive, ability to perceive and remember, and general character for truthfulness." United States v. Maxwell, 579 F.3d 1282, 1295-96 (11th Cir. 2009) (citation and internal quotation marks omitted). But a defendant's right to cross examine a witness — even a star witness — is not boundless. As the Eleventh Circuit has explained, "[T]he defendant `is entitled only to an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish.'" Id. at 1296 (citations omitted). Thus, a defendant's Confrontation Clause rights are not violated when two circumstances are satisfied: (1) through the cross-examination that is allowed, the jury learns of sufficient facts to allow it to "draw inferences relating to the reliability of that witness," and (2) the permitted cross-examination enables defense counsel "to make a record from which he could argue why the witness might have been biased." Id. (quoting United States v. Van Dorn, 925 F.2d 1331, 1335 (11th Cir. 1991)) (quotation marks omitted). Ultimately, "[t]he test for the Confrontation Clause is whether a reasonable jury would have received a significantly different impression of the witness' credibility had counsel pursued the proposed line of cross-examination." Id. (citation and internal quotation marks omitted).
Here, the Court did not permit counsel to inquire of Moss about matters protected by the attorney-client privilege and the work-product protection. In particular, Brown's counsel desired to cross-examine Moss regarding what his attorneys had showed him and told him, in an attempt to establish that Moss had fabricated his testimony when he implicated Brown in the robberies and had pieced together his statements about Brown based on information that he had learned through discovery and his attorneys' investigation.
But Moss was sufficiently cross-examined to obtain the evidence necessary to make exactly these points without breaching the attorney-client privilege and the work-product protection. In particular, Brown's counsel was able to impeach Moss's claim that he was not aware of materials produced in discovery by obtaining Moss's admission that he had made the opposite statement under oath to a different judge in Moss's change-of-plea hearing. More specifically, Moss conceded that he had previously agreed under oath with his attorneys' representations to Judge Cohn that Moss and his attorneys had spent "an inordinate amount of time" reviewing discovery. In addition, the parties presented evidence regarding what the Government had turned over to Moss's defense team in discovery, so Brown's counsel was able to argue — and did argue in closing — that Moss had access to specific records, such as cell-site location data for Brown's telephone, video recordings of the robberies and robbery attempts, witness statements, and other materials, before he ever implicated Brown in the charged crimes.
And Brown's counsel and the other defense attorneys impeached Moss's testimony and his credibility in numerous other ways as well. For example, Brown's counsel impeached Moss's claim that he was not aware that the Government viewed Brown as a person of interest before Moss identified Brown as one of his co-conspirators. In this regard, Brown's counsel was able to obtain Moss's admission that he had seen Brown's photograph on television shortly after the robberies and that television reports indicated that authorities were looking for Brown to speak with him. Similarly, Brown's counsel made Moss admit that he had seen his ex-girlfriend Arish Small numerous times between his arrest and his debriefing, and evidence presented later in the case revealed that Small had been interviewed by law-enforcement authorities immediately after the October 1, 2010, robbery, and that they had spoken to her about Brown. Other defense attorneys questioned Moss about his prior convictions and described him as a "cold-blooded killer." They further pointed out inconsistencies in his testimony.
In addition, Brown's counsel and other defense attorneys hammered Moss's plea agreement with the Government, with Brown's counsel asserting that Moss had to "[t]ell the Government what it wants to hear or die." And Moss admitted that he did not want to die, that he did not want to spend the rest of his life in jail, and that he hoped that his testimony against Brown and the others would result in a sentence reduction. The record reflects that counsel was able to sufficiently cross-examine Moss to allow the jury to "draw inferences relating to [Moss's] reliability." See Maxwell, 579 F.3d at 1296 (citation and quotation marks omitted). Nor would "a reasonable jury ... have received a significantly different impression of the witness' credibility had counsel pursued the proposed line of cross-examination." See id. (citation and internal quotation marks omitted). Under these circumstances, Brown's Confrontation Clause rights were not violated when the Court declined to allow cross-examination into privileged areas. See Mills v. Singletary, 161 F.3d 1273, 1288-89 (11th Cir. 1998) (defendant's Confrontation Clause rights were not violated and the district court did not abuse its discretion in limiting cross-examination of the co-defendant to matters that the attorney-client privilege did not protect where permitted cross-examination sufficiently allowed the jury to judge the co-defendant's credibility). Accordingly, this claim does not provide a basis for granting a new trial.
For the foregoing reasons, Defendant Terrance Brown's Motion for New Trial [ECF No. 1057] is
