14‐1992‐cr
United States v. Ramirez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 7th day of October, two thousand fifteen.
PRESENT: DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges,
EDWARD R. KORMAN,
Senior District Judge.*
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UNITED STATES OF AMERICA,
Appellee,
v. 14‐1992‐cr
CHRISTOPHER RAMIREZ, aka Sire,
Defendant‐Appellant.
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* The Honorable Edward R. Korman, of the United States District Court for
the Eastern District of New York, sitting by designation.
FOR DEFENDANT‐APPELLANT: HARRY SANDICK, Sophie B. Kaiser, Patterson
Belknap Webb & Tyler LLP, New York, New
York.
FOR APPELLEE: KAN MIN NAWADAY, Robert L. Boone, Karl
Metzner, Assistant United States Attorneys, for
Preet Bharara, United States Attorney for the
Southern District of New York, New York,
New York.
Appeal from the United States District Court for the Southern District of
New York (Sullivan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
Defendant‐appellant Christopher Ramirez appeals from a judgment
entered June 6, 2014, convicting him after trial by jury of one count of conspiracy to
distribute and possess with intent to distribute crack cocaine and marijuana, 21 U.S.C.
§ 846, and one count of discharging a firearm in relation to a drug trafficking crime, 18
U.S.C. § 924(c)(1)(A)(iii). Following Ramirezʹs conviction, the government disclosed the
presentence investigation report (ʺPSRʺ) for their key cooperating witness (the
ʺWitnessʺ) in Ramirezʹs trial. The government confirmed that it was in possession of the
PSR prior to Ramirezʹs trial and that the PSR contained information that would have
assisted the defense in its impeachment of the Witness. Ramirez subsequently renewed
his motion for a new trial under Federal Rules of Criminal Procedure 29 and 33, arguing
that the government violated his Fifth Amendment rights by failing to comply with its
obligations under Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S.
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150 (1972), and the Jencks Act, 18 U.S.C. § 3500. In an Opinion and Order filed June 9,
2014, the district court denied Ramirezʹs motion on the grounds that Ramirez was not
prejudiced as a result of the nondisclosure. We assume the partiesʹ familiarity with the
underlying facts, the procedural history, and the issues presented for appeal.
We review de novo the question of whether suppressed information is
material under Brady and Giglio, while giving ʺgreat weightʺ to the district courtʹs
factual conclusions as to the effect of the nondisclosure. United States v. Madori, 419 F.3d
159, 169 (2d Cir. 2005). We review the denial of a Rule 33 motion for a new trial for
abuse of discretion. United States v. Robinson, 430 F.3d 537, 542 (2d Cir. 2005).
To establish a Brady/Giglio violation, ʺa defendant must show that: (1) the
[g]overnment, either willfully or inadvertently, suppressed evidence; (2) the evidence at
issue is favorable to the defendant; and (3) the failure to disclose this evidence resulted
in prejudice.ʺ United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001). While the first two
elements are easily resolved in Ramirezʹs favor, he must also show that prejudice
ensued from the suppression of this evidence. Strickler v. Greene, 527 U.S. 263, 281‐82
(1999). Ramirez must establish that the suppressed evidence was material, i.e., that
there was a ʺʹreasonable probabilityʹ of a different result,ʺ United States v. Jackson, 345
F.3d 59, 73 (2d Cir. 2003) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)), had the
suppressed evidence been made available. Upon review of the record, and giving
appropriate deference to the district courtʹs findings as to the effect of nondisclosure on
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the outcome of the case, we conclude that the district court did not abuse its discretion
in denying Ramirezʹs motion for a new trial.
As the district court explained, the PSR would have provided valuable
impeachment material for the defense but would not have affected the outcome of the
trial. Because the government presented other evidence establishing Ramirezʹs guilt,
the case did not hinge on the Witnessʹs credibility and the verdict would not have
changed as a result of the additional impeachment material. See United States v. Payne,
63 F.3d 1200, 1210 (2d Cir. 1995) (ʺIn general, impeachment evidence has been found to
be material where the witness at issue ʹsupplied the only evidence linking the
defendant(s) to the crime,ʹ or where the likely impact on the witnessʹs credibility would
have undermined a critical element of the prosecutionʹs case.ʺ (quoting United States v.
Petrillo, 821 F.2d 85, 90 (2d Cir. 1987))). In addition to the Witness, another witness
testified regarding Ramirezʹs involvement in the drug conspiracy and the April 2009
shooting. See Jackson, 345 F.3d at 74 (ʺ[A] new trial is generally not required when the
testimony of the witness is ʹcorroborated by other testimony . . . .ʹʺ (quoting Payne, 63
F.3d at 1210)). The government also presented DNA evidence linking Ramirez to the
gun found in connection with the shooting.
In other respects, the impeachment information contained in the PSR
would have been merely cumulative. ʺIt is well settled that where ample ammunition
exists to attack a witnessʹs credibility, evidence that would provide an additional basis
for doing so is ordinarily deemed cumulative and hence immaterial.ʺ United States v.
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Orena, 145 F.3d 551, 559 (2d Cir. 1998). The withheld PSR would have only provided
additional impeachment material for issues that were already covered at trial. For
example, the erroneous sentencing calculation in the PSR may have been used to
question the Witness about his understanding of the benefit he was receiving for
testifying, but his incentives as a cooperating witness had already been explored during
cross‐examination. With respect to the new impeachment information contained in the
PSR ‐‐ disciplinary infractions, positive tests for marijuana, and financial information ‐‐
no prejudice ensued because the Witnessʹs credibility had been similarly called into
question in the same respects by evidence other than the PSR. See Shabazz v. Artuz, 336
F.3d 154, 166 (2d Cir. 2003) (ʺ[W]here the undisclosed evidence merely furnishes an
additional basis on which to challenge a witness whose credibility has already been
shown to be questionable or who is subject to extensive attack by reason of other
evidence, the undisclosed evidence may be cumulative, and hence not material.ʺ
(quoting United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998)).
Ramirez argues that, taken collectively, the various matters presented by
the PSR raised a reasonable probability of a different result because the verdict hinged
on the Witnessʹs credibility. On this point we defer to the district courtʹs well‐
supported conclusion that the verdict would not have been affected as the result of
additional impeachment of the Witness.
Ramirez also argues that the defense was not afforded sufficient
opportunity to make use of the Jencks Act materials produced the Friday before trial
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because of a restrictive protective order placed on Ramirezʹs access to the material.
Prior to trial, the district court granted the governmentʹs motion for a protective order
requiring either defense counsel, an Assistant United States Attorney, or a designated
federal agent to be present with Ramirez while he reviewed the material. Ramirez
argues that the Jencks Act materials were effectively suppressed for purposes of Brady
because defense counsel was not given sufficient time to make effective use of them
while simultaneously supervising Ramirez. Ramirez has not, however, pointed to ways
in which the prior witness statements were material, such that they would fall within
the ambit of Giglio and the government would have been obligated to turn them over
earlier. See Coppa, 267 F.3d at 145‐46 (distinguishing the governmentʹs disclosure
obligations with respect to Brady and Giglio from the Jencks Act). Even assuming the
materiality of the information, Ramirez has not identified any way in which the timing
of the disclosure deprived him of the ability to make effective use of the material at trial.
We have considered all of Ramirezʹs remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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