United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR NEW TRIAL FILED PURSUANT TO
FEDERAL RULE OF CRIMINAL PROCEDURE 33 ON SEPTEMBER 1,
D. BORMAN, UNITED STATES DISTRICT JUDGE
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).
September 1, 2015, Defendant was sentenced to incarceration
for 252 months for the five convictions.
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.
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.
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.
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.
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.
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
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
Id. Page ID 11325.
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 ...