Opinion
No. 07-3517-cr.
August 27, 2008.
AFTER ARGUMENT AND UPON DUE CONSIDERATION of appeal No. 07-3517-cr from judgment of the United States District Court for the Southern District of New York (Wood, CJ.), it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court is AFFIRMED.
FOR APPELLEE: JENNA M. DABBS, Assistant United States Attorney (Celeste L. Koeleveld, Assistant United States Attorney, of counsel), for Michael J. Garcia, United States Attorney for the Southern District of New York, New York, N.Y.
FOR APPELLANT: RICHARD WARE LEVITT, New York, N.Y.
PRESENT: HON. JON O. NEWMAN, HON. GUIDO CALABRESI, HON. BARRINGTON D. PARKER, Circuit Judges.
Defendant-Appellant J.C. Green, a corrections officer, appeals the judgment of the United States District Court for the Southern District of New York, sentencing him to 12 months of imprisonment after his conviction for engaging in a sexual act with an inmate, in violation of 18 U.S.C. § 2243(b). Green challenges the district court's denial of his motion under Fed.R.Crim.P. 17 for a subpoena of certain documents, its denial of his motion to dismiss the indictment, its denial of his request to cross-examine a witness on certain issues, and its issuance of a supplemental jury instruction. We assume the parties' familiarity with the facts of the case, its procedural history, and the scope of the issues on appeal.
I. Request for Rule 17(c) Subpoena
Defendant argues that the District Court erred in denying his motion for a subpoena pursuant to Fed.R.Crim.P. 17(c). We review denials of subpoenas for abuse of discretion. United States v. Nixon, 418 U.S. 683, 700 (1974); cf. In Re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68 (2d Cir. 2003). Rulings about evidence admissibility are similarly reviewed for abuse of discretion. United States v. Taubman, 297 F.3d 161, 164 (2d Cir. 2002) (per curiam).
To obtain a Rule 17(c) subpoena, a party must demonstrate, inter alia, that the sought-after materials are evidentiary. SeeNixon, 418 U.S. at 699-700. Green's request for the production of all documents in the inmate's Bureau of Prison's file "regarding complaints of sexual misconduct lodged by [her] against any BOP staff member and any administrative hearings and/or findings or dispositions with respect to any such complaint" was denied because the district court found that the file contained no such documents or any impeachment material warranting disclosure. This determination was not an abuse of discretion.
II. Motion to Dismiss
Defendant next argues that the District Court erred by denying his motion to dismiss, which he requested as a sanction for the Government's actions regarding a potential defense witness, Nina Sparrfelt. This claim raises questions regarding what the Supreme Court wrote "might loosely be called the area of constitutionally guaranteed access to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
To prevail on a motion to dismiss on the ground that the Government's deportation of Sparrfelt before trial deprived Green of his Sixth Amendment right to compulsory process for obtaining a favorable witness, the Defendant needed, at the least, to make a "plausible showing" that Ms. Sparrfelt's testimony "would have been material and favorable to his defense" and "not merely cumulative." United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982); see also United States v. Ginsberg, 758 F.2d 823, 831 (2d Cir. 1985). Materiality generally requires "a reasonable likelihood" that the testimony, evaluated in the context of the entire record, "could have affected the judgment of the trier of fact." Valenzuela-Bernal, 458 U.S. at 874 n. 10. In light of this standard, materiality cannot be shown "`[i]f there is no reasonable doubt about guilt.'" Id. at 868 (quoting United States v. Agurs, 427 U.S. 97, 112-13 (1976)). Much of Ms. Sparrfelt's testimony would not have been admissible and thus is not material. Testimony that would have been admissible was read into the record as part of a stipulation between the parties. We, therefore, find that Ms. Sparrfelt's testimony was not sufficiently material to justify dismissal of the indictment.
Additionally, although both parties analyze this claim under Valenzuela-Bernal, which relates to the deportation of potential defense witnesses, it is necessary to analyze separately Green's challenge to the timing of the Government's disclosure of information about Ms. Sparrfelt. There is no clear rule for the "timing of disclosure [that] Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence when disclosure is made." Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001).
The potential concern here is that had the defense known about Ms. Sparrfelt earlier, it might have planned the defense differently. This is a particular worry in the case before us because Ms. Sparrfelt had information about which the Defendant had no personal knowledge. Cf. Valenzuela-Bernal, 458 U.S. at 870-871 n. 8. In this case, however, the Government did disclose information about Ms. Sparrfelt prior to trial, that is, before the defense had committed itself to a particular strategy. And, the defense was offered, but declined, additional time to prepare for trial and to locate Ms. Sparrfelt with the Government's assistance. Additionally, the defense has not given any indication as to how it would have approached the case differently if the Government had disclosed Ms. Sparrfelt's testimony earlier in the process. We, therefore, find that, assuming arguendo that the Government should have disclosed information concerning Ms. Sparrfelt earlier, any failure to timely disclose was harmless and the motion to dismiss was correctly denied.
III. Cross-Examination of Afolabi
Defendant next argues that the District Court erred by limiting cross-examination of Ms. Afolabi. We review a trial court's restriction of cross-examination for an abuse of discretion, "recognizing that the court may impose reasonable limits on examination of witnesses based on concerns such as repetition and relevance." United States v. Vasquez, 82 F.3d 574, 576 (2d Cir. 1996) (citing United States v Rosa, 11 F.3d 315, 335 (2d Cir. 1993)); see also United States v. Crowley, 318 F.3d 401, 417 (2d Cir. 2003) (noting that only upon showing abuse of the district court's "broad discretion" is a defendant entitled to relief on appeal). The issues about which the court limited cross-examination were either irrelevant or more prejudicial than probative. The district court reached the same conclusion after considering Ms. Afolabi's testimony on these issues out of the presence of the jury. We therefore find that the court did not abuse its discretion by limiting the scope of cross-examination.
IV. Supplemental Jury Instruction
Finally, Defendant argues that the District Court's supplemental jury instruction deprived him of a fair trial. In jury trials, the "choice of procedures to be used in instructing a jury is committed in the first instance to the sound discretion of the trial judge." United States v. Ogando, 968 F.2d 146, 149 (2d Cir. 1992) (quoting United States v. Previte, 648 F.2d 73, 84 (1st Cir. 1981)) (internal quotation marks omitted); see also United States v. Parker, 903 F.2d 91, 101 (2d Cir. 1990). There is especially broad discretion regarding the manner in which charges are given. See United Stares v. Civelli, 883 F.2d 191, 195 (2d Cir. 1991). Trial courts, moreover, have " considerable discretion in determining how to respond to communications indicating that the jury is experiencing confusion." Parker, 903 F.3d at 101 (emphasis added). A supplemental jury charge is therefore reviewed for abuse of discretion. See Parker, 903 F.3d at 102. As all parties agree, the challenged instruction did not describe the law incorrectly. The only concern is whether the way in which the charge was given — isolated from the other elements and in response to questions that did not directly and openly bear on the consent issue — was an abuse of discretion. Absent strong evidence of potential prejudice to the defense, evidence not present here, we defer to the district court's determination that the supplemental instruction was appropriate and find that there was no abuse of discretion.
V. Conclusion
We have considered all of Defendant-Appellant's arguments and have found them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.