USA v. Daryl L. Wilson, Stevie Thomas, Donnell L. Cohn, Sammy Armstead, and Tyree Collins.  04-1594.  This multi-defendant criminal appeal concerns a drug conspiracy at a public housing complex in Chicago. The five defendants were members of the Gangster Disciples ("GD") street gang, which organized all drug sales at a building at 340 South Western Avenue. Each was indicted for, among other things, conspiracy to possess with intent to deliver crack cocaine within 1000 feet of a public housing complex. Donnell Cohn and Tyree Collins pled guilty while Sammy Armstead, Darryl Wilson, and Stevie Thomas went to trial and were found guilty. Their sentences range from 180 months to life imprisonment.

The principal argument on appeal is that the government failed to disclose material evidence that could have allowed the defendants who went to trial to impeach one of the prosecution’s key witnesses. In light of the overwhelming evidence against the defendants, the 7th Circuit finds that the suppressed evidence was not material.

During discovery, the government produced hundreds of pages of notes and correspondence from Richard Epps, the former GD leader who cooperated with prosecutors. But two weeks after trial it emerged that the government inadvertently left out two letters that Epps had sent from prison to a fellow prisoner and GD member. 

The three pages of handwritten materials contain rationalizations for Epps’s decision to cooperate, advice to his correspondent, and bias against certain co-defendants.

The government responds that any impeachment value would have been cumulative of other impeachment at trial, where Epps was thoroughly dressed down before the jury as a liar, a braggart, and a thug. But the government concedes that no impeachment at trial tended to show that Epps was biased against some of his co-defendants or that he was willing to lie or provide selective testimony to punish his enemies.

If the government deliberately or inadvertently withholds evidence that is material and favorable to the defense, it violates the defendant’s right to a fair trial, which is guaranteed by due process. See Brady v. Maryland, 373 U.S. 83 (1963); Boss v. Pierce, 263 F.3d 734, 739-40 (7th Cir. 2001). This rule applies equally to impeachment and exculpatory evidence. Giglio v. United States, 405 U.S. 150 (1972).

The government does not dispute that it withheld Epps’s letters, and its efforts to show that the letters are not favorable to the defendants are unpersuasive.  Evidence that a witness is willing to use his role in a prosecution to target his enemies is certainly favorable to defendants who are his enemies.

The claim therefore turns on materiality, which in the Brady context is the same thing as prejudice. Evidence is material if there is a reasonable probability that its proper disclosure would have led to a different result at trial. See Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). In other words, the inquiry is whether, in light of the suppression, the trial produced a verdict worthy of confidence. Id.; United States v. Knight, 342 F.3d 697, 705 (7th Cir. 2003).

Suppressed evidence that could have been used to impeach a government witness can affect the outcome if it is not cumulative of other impeachment offered at trial. See Simental v. Matrisciano, 363 F.3d 607, 614 (7th Cir. 2004); United States v. Fallon, 348 F.3d 248, 252 (7th Cir. 2003).  Thus, evidence that provides a new basis for impeachment is not cumulative and could well be material. See Banks v. Dretke, 540 U.S. 668, 700-02 (2004); see also Napue v. Illinois, 360 U.S. 264, 270 (1959).

Here, the government argues that any impeachment value from the Epps letters was cumulative of other impeachment at trial. But showing (as the defense did) that Epps had a long criminal record, lied all the time, and was testifying as part of a deal with prosecutors is not the same as showing that he was willing to use his position in the prosecution to get even with gang members who had crossed him. This was a new and potentially powerful line of inquiry that the defense could have used to undermine the value of Epps’s testimony.

Nevertheless, showing that the Epps letters would afford a unique basis for impeachment does not end the materiality inquiry. The question is whether there was a reasonable probability of a different verdict had the letters been disclosed, Kyles, 514 U.S. at 433, and here there was not. Undisclosed impeachment evidence would not produce a different result if the testimony of the witness against whom it is offered was strongly corroborated by other evidence.  Conley v. United States, 415 F.3d 183 (1st Cir. 2005).

Here, Epps’s testimony was by no means the only-or even the best-evidence that Armstead, Wilson, and Thomas participated in the GD drug conspiracy. That evidence is extensive.

In light of the substantial amount of evidence that corroborated Epps’s testimony, the government’s failure to disclose further impeachment material against Epps does not undermine our confidence in the verdict. The district court did not abuse its discretion in denying the motion for a new trial.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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