Judge Raymond Dearie of the Eastern District of New York ruled yesterday that ZMOLAW client Adamou Djibo is entitled to a new trial because the government wrongfully withheld thousands of pages of relevant information from a cooperating witness’s cell phone. The reversal follows a remand from the Second Circuit: the appeals court directed the trial court to permit Djibo time and public funds to obtain a full translation of the material, which turned out to contain messages in Swahili that undercut the government’s theory that Djibo was the mastermind behind a ring that smuggled 100 kilos of heroin from Africa.
The government’s main evidence was the testimony of cooperating witness Stanley Walden, who struck a deal to testify against Djibo shortly after being stopped flying in to JFK with more than six kilos of low-grade heroin in a secret compartment in his suitcase. Walden protested that the drugs were not his, but belonged to Djibo and that he was just a courier. Text messages on his phone in English appeared to corroborate his claim, and the feds arrested Djibo as he boarded a flight to London a few weeks later.
The government handed over the English-language texts with Djibo, but nothing else from Walden’s phone, despite repeated requests many months before trial. Not relevant, said AUSA Karen Koniuszy. Texts on Djibo’s phone were suppressed because the border agents illegally searched it when he was stopped — but that’s another story.
Prior to trial, we moved to compel the full content of the cell phone and Judge Sterling Johnson granted the motion. AUSA Koniuszy served up the texts — around 8,000 pages, mostly in Swahili — a couple of days before the trial. We asked for public funds for a translator and an adjournment. No problem, Judge Johson told us: take one day after we pick the jury. We managed to translate a few messages showing that Walden had ties to people like King Lord Kush and a “spiritual” person in Africa who was supposedly blessing his drug trips. But we were not permitted to lead Walden through the Swahili on cross examination and, perhaps most remarkably, Koniuszy objected on authenticity grounds to the printouts from the disk she had just turned over. This state of play was unfair, Judge Dearie ruled, because Brady v. Maryland requires that exculpatory and impeachment material be turned over far enough in advance of trial for it to be used effectively. While we did our best with what we had, “[h]astily and desperately attempting to make use of a brief excerpt taken from over 8,000 pages of new material and amidst a litany of authenticity objections does not fall within the realm of ‘effective use’.”
Djibo was convicted. The government argued at sentencing that he was responsible for importing 100 kilos of heroin over a ten-year period with Walden and others. He was sentenced to 293 months in prison.
On appeal, the Second Circuit vacated Judge Johnson’s denial of the Rule 33 motion, the sentence (as procedurally unreasonable), and the forfeiture order (under Honeycutt), and re-assigned the case to a new judge (to avoid any appearance of bias). Judge Dearie afforded us the time and public resources to obtain a full translation of the material. Turned out it went far beyond what we had found under time pressure at trial the first time around: the new messages showed that Walden was the “commander” of drug smugglers from South America to Europe, including two who were identified by their full names in the messages. Our investigation showed that one of those two had a criminal record in Brazil. The messages appeared to show that the drugs belonged to Walden, not to Djibo as the government had claimed. While the messages were arguably inculpatory, Judge Dearie ruled, they were exculpatory in that they supported defense theories that Walden lied to the government, was a leader in the organization, and was the owner of the drugs he was caught with, undermining the government’s contention that Djibo “possessed” the drugs in Walden’s suitcase. “Where suppressed evidence is inculpatory as well as exculpatory, and its exculpatory character harmonizes with the theory of the defense case, a Brady violation has occurred,” Judge Dearie wrote, synthesizing Second Circuit and SDNY cases.
At the end of the day, the government’s suppression of exculpatory evidence deprived Mr. Djibo of “the opportunity to mount a proper defense.” Because the government’s case stood squarely on the shoulders of their sole cooperating witness, the “potential for prejudice looms large.” We anticipate a new trial as early as this summer, if the government sees fit to offer evidence from a witness who appears so clearly to have lied to them time and time again throughout his cooperation.