United States v. Sorrell

          ORDER DENYING MOTION FOR NEW TRIAL FILED PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 33 ON SEPTEMBER 1, 2017

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         On March 17, 2015, Defendant was convicted of RICO Conspiracy, 18 U.S.C. §1962(d); Assault With a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(3); Conspiracy to Assault with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. §1959(a)(6); Use and Carry of a Firearm During and in Relation to a Crime of Violence, 18 U.S.C. §924(c); Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. §1959(a)(5).

         On September 1, 2015, Defendant was sentenced to incarceration for 252 months for the five convictions.

         On November 17, 2017, the United States Court of Appeals for the Sixth Circuit affirmed all of Defendant's convictions, United States v. Marvin Nicholson et al, #15-1963.

         Defendant contends that on December 20, 2016, an Assistant U.S. Attorney received an email containing information from a Source of Information (SOI) that Roger Valdes a/k/a “June, ” a cooperating witness, was telling other inmates that he had mislead police by “telling them that someone else was responsible for the homicide that he is being charged with, ” and that Valdes “said he actually did fire shots the night of the incident and that the victim was shot over a motorcycle club jacket.” Defendant's Motion, Dkt. #743, Page ID 11294.

         Defendant's counsel asserts that the Report of Investigation (ROI) was dated March 3, 2014, was not received by Case Agent Jarred Marsh until December 7, 2016, and that the Valdes interview/proffer occurred in the presence of law enforcement officers and Valdes' criminal defense counsel. Id. Defendant's motion further alleges that this ROI information was not disclosed to defense counsel for 2½ years; 1½ years after the trial. Defendant contends that this new evidence would probably have led to an acquittal of Defendant Sorrell on all or some of the charges.

         Defendant also contends that the government did not disclose hospital medical receipts of the victim of the shooting Leon McGee, that would establish that McGee was not shot in the fact, but “was merely hit by fragments” which would have assisted Defendant's counsel in impeaching Mr. McGee. Page ID 11297.

         Defense counsel contends that failure to disclose this evidence resulted in “a Brady and Giglio violation, ” and that Defendant should receive a new trial because of the material newly discovered evidence. Page ID 11304.

         The Government's response filed September 27, 2017 acknowledges that the ROI information was disclosed to the Defendant in December 2016, after the trial, but contends that the Defendant has not shown that a new trial is warranted. The information was disclosed to defense counsel on December 20, 2016, well after the trial concluded on March 17, 2015, but prior to the appellate argument before the Sixth Circuit.

         The Government contends that the ROI “provides substantially the same information as what Valdes [JUNE] testified to in trial.” Dkt. #742, Page ID 11324:

Valdes testified that he did fire a gun at the location where the defendant shot the victim Leon McGee. See R456:4769. Thus, the ROI is completely consistent with Valdes' trial testimony: ‘According to JUNE, he actually did fire shots the night of the incident.' There is negligible exculpatory or impeachment value to an ROI that states substantially the same thing as what the witness testified to at trial, and certainly not in this case did the government's failure to disclose the ROI prejudice the defendant.

Id. Page ID 11325.

         The Government response then discussed the defendant's burden to show prejudice, per the Supreme Court decision in Strickler v. Greene, 527 U.S. 263, 296 (1999):

Moreover the defendant can come nowhere close to meeting its burden to show prejudice. Strickler 527 U.S. at 296. (There is no Brady violation unless the information was material to the outcome of the case) There was overwhelming evidence that Sorrell was the person who shot Leon McGee. For example, Sorrell admitted this fact numerous times in a recorded conversation with cooperating witness Carl Miller, and Valdes saw the defendant firing toward McGee. See R.444:3337-40, 2243-45; R. 740:11151-52, 11154-55, 11160, Gov't Ex. 9A; R.740: 11246-48, Gov't ...