                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

                                                                                        FILED
UNITED STATES OF AMERICA,                                                                   APR 1 2 2013
                                                                                  Clerk, u.s. UISUIG'l6t oanKruptcy
                                                                                 courts for the District of Golumbla
              Plaintiff,

                     v.                                          Criminal Case No. 07-65 (GK)

CHRISTIAN FERNANDO BORDA,
et al.,

              Defendants.


                                         MEMORANDUM OPINION

       On December            9,    2010,           Defendants          Christian Fernando Borda

("Borda")      and Alvaro            Alvaran-Velez                  ("Alvaran")         were        convicted

under the Controlled Substances Import and Export Act, 21 U.S.C.

§§   951    et seq.,      of conspiring to distribute five kilograms or

more of cocaine with the intent or knowledge that the cocaine

would be unlawfully imported into the United States. See Verdict

Form as      to   Borda        [Dkt.       No.        2 0 7] ;     Verdict      Form as         to Al varan

[Dkt. No. 209]; 21 U.S.C.                      §§    959,    960,    963.

       Defendants       moved            for        judgment       of   acquittal           under Federal

Rule   of    Criminal          Procedure              29,    which       the    Court        denied         1n     a

Memorandum Opinion on March 9,                              2011    [Dkt.      No.    238].      Defendants

next   moved      for     a        new     trial        under       Federal          Rule     of     Criminal

Procedure 33, which the Court denied in a Memorandum Opinion on

April 27,     2011      [Dkt. No.              249]         Defendants then moved to vacate
the jury verdict and to dismiss the indictment under the Fifth

Amendment's       Due     Process    Clause      and     Federal    Rule   of     Criminal

Procedure 6(e),         which the Court denied in a Memorandum Opinion

on November 27, 2012 [Dkt. No. 376]

      This matter is now before the Court on Defendants'                             Joint

Motion to Dismiss for Brady Violations 1 or,                       in the Alternative,

for   a   New     Trial     [Dkt.    No.    354].       Upon    consideration      of     the

Motion, the Opposition [Dkt. No. 360], the Reply [Dkt. No. 365],

the Sur-Reply [Dkt. No.             366],    the Sur-Sur-Reply [Dkt. No.                367],

the entire record herein,             and for the reasons set forth below,

Defendants' Joint Motion to Dismiss is denied.

I .   Background

      Defendants were each convicted of conspiring,                        beginning in

January    2005    and     continuing       to   at     least   October    of    2005,     to

distribute five or more kilograms of cocaine with the intent or

knowledge that the cocaine would be unlawfully imported into the

United States.       See 21 U.S.C.          §§   959,    963. At trial,         Defendants

did not dispute that           they had distributed cocaine during that

period,   but argued that they neither knew nor intended that the

cocaine would be unlawfully imported into the United States.


1
  The remedy for a Brady violation is retrial, not dismissal.
U.S. v. Pettiford, 627 F.3d 1223, 1228 (D.C. Cir. 2010) ("If we
find a Brady violation, a new trial follows as the prescribed
remedy, not as a matter of discretion.")     (internal quotation
marks omitted) .

                                            - 2 -
        The    Government      offered          evidence          of     three       separate       drug

deals     in    2005.   The    first       deal,           "Palm       Oil   One,"        took     place

between January and May 2005.                   In Palm Oil One, Defendants Borda

and     Alvaran      arranged       to     ship           1,553        kilograms          of     cocaine

concealed       in   drums    of     palm       oil       from     Cartagena,           Colombia      to

Puerto Progreso,        Mexico.      Upon the shipment's arrival                               in Puerto

Progreso,       an   associate       named           Raul     Valladeres,            or        "Junior,"

contacted Defendants to say that he could transport the cocaine

to Monterrey,        Mexico and would pay Borda                          $9, 100 per kilogram

within    ten days      after receipt                of    the     drugs.       Trial      Transcript

("Tr.")       at 18:24-20:18,       25:10-28:15 A.M.                   Session, Nov. 4,            2010.

Defendants agreed to Junior's proposal,                             and Junior transported

the cocaine north to Monterrey. rd.; Gov't Ex. 40b at 3-4.

        The     Government      introduced                evidence        that       Monterrey        is

located less than two hours away from the United States border.

The    Government's     evidence          showed          that     Monterrey         is    an     inland

city     in    Mexico   with       insufficient             demand        for    a    delivery        of

cocaine as large as the Palm Oil One load. See Gov't Ex. 40b at

6 (Defendant Alvaran stated that Monterrey is "not a market for

personal use").

        The    Government     also       introduced the                following        evidence      to

prove that Defendants were aware that Junior was trying to sell

the cocaine across the Mexican border into the United States.



                                            -    3    -
         First,    on June     15,    2005,      Defendant      Alvaran met           with    the

Government's        confidential          informant,       Camilo     Suarez        ("Suarez") ,

after     Junior     had     failed       to   pay     Defendants      for     Palm    Oil    One

within ten days of his receipt of the drugs. Suarez testified at

trial that,        in the course of that meeting, Alvaran expressed his

understanding that            the    cocaine had been moved north of Mexico

City to Monterrey.            Tr.    at    22:2-9      P.M.   Session,       Nov.     15,   2010;

Gov't Ex. 34b.

         Second, on July 20, 2005, Borda met with Alvaran and Suarez

to    discuss      Junior's    progress         in making payments             for    Palm Oil

One.     Suarez defended Junior's delay to Borda by explaining that

the "market went bad because the border got,                          []    harder for him."

Gov' t    Ex.     40b at 3-7.       Defendants then discussed the conditions

at the border in further detail.                       Id. At one point,         Borda noted

that     he     understood    Junior's         difficulties      because        he    had    once

been a drug dealer in the United States.                        Id.        at 10. Borda also

went on to explain that his source for cocaine in Colombia had

told him how such transactions usually proceed:

           [Mexicans]  get the merchandise,  they say
          they' ll take it, they pay us nine thousand
          in Monterrey and they go and sell it on the
          other side 2 for, for fourteen thousand or
          fifteen thousand pesos, and we're the ones
          that are losing because we lose time, money
          and everything else.
Id. at 22-23.

2
     "On the other side" refers to the United States.


                                               - 4 -
      Third,       Suarez          testified          at       trial     that        "[a]ll     1,553

[kilograms]       went        to    the    United        States."       Tr.     at    44:5-9       A.M.

Session,    Nov.    18,       2010.       Suarez also testified that he did not

recall     any discussion            that       Borda's        724    kilogram       share    of    the

Palm Oil One cocaine was going to Europe.                               Tr.    at 46:13-17 P.M.

Session,    Nov.        18,    2010.       And     Suarez       and    Borda's       secretary       in

Mexico City,       Juan Montoya,                testified at trial that payment was

received from Junior for Palm Oil One in United States currency.

Tr. at 45:17-24 A.M. Session, Nov. 17, 2010; Tr. at 71:9-18 A.M.

Session, Nov. 24, 2010.

      In the       second deal,            "Palm Oil           Two,"    Defendants discussed

shipping     additional             cocaine        from        Colombia        to     Mexico,       but

ultimately        never       did     so        because       of     their     difficulties          in

receiving payment for Palm Oil One.

      Finally,      the third Palm Oil deal,                         named the "Chino Load,"

was   scheduled      for       September 2005.                In this    third deal,          Borda,

Alvaran, and an associate named "El Chino" agreed to transport a

second     load    of     3,000       kilograms          of    cocaine        from    Colombia       to

Mexico City,       Mexico in two "go-fast boats," one of which was a

Venezuelan-registered fishing vessel. However,                                the United States

Coast Guard intercepted the fishing vessel,                               which was carrying

half of the Chino Load,                and the vessel's crew threw the cocaine

into the Caribbean Sea.                   Tr.    at   41:24-42:17 A.M.               Session,      Nov.




                                                 - 5 -
16,    2010.    Consequently,          the United States Coast Guard found no

cocaine on the ship.

        On the basis of this evidence,                      the Jury returned a verdict

of     guilty       against     Borda        and     Alvaran,        concluding        that        each

conspired       to     distribute           more     than     five     kilograms        with        the

knowledge        or     intent       that     the         cocaine    would        be   unlawfully

imported into the United States.

II.     Standard of Review

        In Brady v. Maryland,               373 U.S. 83        (1963),      the Supreme Court

held that       "the Due Process Clause imposes upon the prosecution

an obligation to disclose                   'evidence favorable to an accused

      where     the     evidence       is     material         either       to    guilt       or     to

punishment,         irrespective of the good faith or bad faith of the

prosecution."'          U.S.    v.     Johnson,       519     F.3d 478,          488   (D.C.       Cir.

2008)       (quoting Brady, 373 U.S. at 87).

        A    "true     Brady violation"             has     three    components:          "[1]      The

evidence       at     issue     must    be     favorable        to    the     accused,        either

because it is exculpatory, or because it is impeaching;                                   [2]      that

evidence        must     have        been     suppressed        by      the      State,       either

willfully or inadvertently; and [3] prejudice must have ensued."

Strickler v.          Greene,    527 U.S.          263,    281-82    (1999); United States

v. Pettiford, 627 F.3d 1223, 1227 (D.C. Cir. 2010).

        To satisfy the prejudice component,                          the withheld evidence

must     be     "material;"          that     is,     there     must     be       "a   reasonable

                                               - 6 -
probability           that,           had       the     evidence           been        disclosed        to       the

defense,           the        result           of      the     proceeding              would        have        been

different."         Strickler at 280                     (quoting U.S.            v.    Bagley,       473 U.S.

667, 676       (1985)); see United States v. Cellis, 608 F.3d 818, 837

(D.C.      Cir.      2010)                In    other        words,      the      defendant          bears       the

burden        of    showing           a        reasonable          probability           of     a     different

result. Strickler, 527 U.S. at 291; U.S. v. Gale, 314 F.3d 1, 4

(D.C. Cir. 2003).

        In determining whether the defendant has met that burden,

courts      have         a     "responsibility                to    evaluate       the     impact          of    the

undisclosed evidence not in isolation,                                   but in light of the rest

of   the      trial          record,"          U.S.    v.     Pettiford,         627     F.3d 1223,             1229

(D.C.      Cir.          2010)    1       and         "must        consider        the        non-disclosure

dynamically,                 taking       into        account        the       range      of        predictable

impacts on trial strategy." Johnson,                                 519 F.3d 478, 488                (internal

quotation marks omitted) .

III. Analysis

        The    Defendants              were         indicted        in   this      case       on     March       16,

2007.      On December 9, 2010, they were convicted of conspiring to

distribute five kilograms or more of cocaine with the intent or

knowledge that the cocaine would be unlawfully imported into the

United States.                  Between the             date       of    their     indictment          and the

date upon which their trial began on November 1, 2010, there was

extensive pretrial activity.

                                                        - 7 -
        Defendants       filed numerous pretrial motions,                        many of which

alleged discovery difficulties and Brady violations.                                 Defendants

prevailed on some of the motions and failed on others.

        In addition to the rulings on those motions,                             the Court held

numerous Status Conferences with counsel,                            most of which focused

on   the      difficulties         that      Defendants              were       having   getting

appropriate        discovery       from      the         Government.              Although      the

Government     did,      in   fact,    properly              turn    over   a    great   deal    of

discovery,        the     bottom      line        is     that        whether      purposefully,

negligently,        or    innocently,        it        was    less     than     forthcoming      in

fully satisfying its discovery obligations,                             thereby,     making the

efforts of defense counsel to prepare for a long and difficult

trial far more onerous than necessary.

        In sum,    while the Government did turn over many thousands

of pages of discovery and many tape recorded conversations,                                      it

did so reluctantly and oftentimes belatedly,                                thereby affecting

the ability of defense counsel to make full use of the documents

before they began their last-minute push for trial.

        At trial,       much of the evidence presented by the Government

consisted of recordings of telephone or in-person conversations,

taped    by   cooperating       witnesses.               The        evidence     presented      was

difficult for the jury to follow.                            Virtually all the telephone

calls were in Spanish, and the jury was required to follow them

by reading written translations provided by the parties.                                        The

                                             - 8 -
trial was relatively long and required close attention from the

jury         because           of     the        extensive           use        of      these           recorded

conversations.                 Finally,       most      of     the Government witnesses were

cooperators who had their own histories of                                       lengthy involvement

in    the     drug       trade       and    convictions          for    drug         offenses,          so    that

determining credibility had to have been a challenging task for

the jury.

        While           this        Court     has       already         acknowledged               that        the

Government's             evidence was            not    "overwhelming, "               that,      of     course,

was     not       the    Government's            burden        to     satisfy.              The    jury       well

understood             that    the    Government's            burden was             to prove          its    case

beyond a reasonable doubt.

        Above all,             this was quintessentially a                       "jury case"            in that

the     Government's                case    rested           overwhelmingly             on        the     jury's

evaluation of the credibility of the major witness-cooperators,

and     on       the    inferences          to     be    drawn       from       the     taped       telephone

conversations,            of which they heard many.                             The jury did its job

and     reached         its        conclusion- -which           was,       as    noted       earlier,          for

conviction.

        Defendants                 have     identified               numerous           documents             and

statements             which       they    argue       were    favorable          to    them,       were      not

given       to    them        by    the    Government          and    which       contained             material

information             whose       absence      or     late    production prejudiced                        their

case.    The       Court       must       now evaluate          the    impact          of    those       alleged

                                                      - 9 -
Brady violations         in light of           the       trial     record as          a     whole     and

determine whether they were favorable to the Defendants, whether

that    evidence       was     suppressed          by    the     Government,          and       whether

"prejudice must have ensued"                  such that there was a                       "reasonable

probability" of a different result.

       l.     After     the      trial       was        completed       and     a     verdict         was

reached,      Defendants        alleged       that        the    Government          had       withheld

evidence      that     they    did     not    know       or     intend    for        the       Palm Oil

cocaine to be sent to the United States.                                This allegation was

based on a written statement given to one of Borda's attorneys

by Raphael Mejia,            who had been incarcerated with co-conspirator

H.B.    and     Borda    at      Northern          Neck       Regional        Jail        in    Warsaw,

Virginia. 3      Mejia claimed that while incarcerated together, H.B.

told    him     that    Borda     "made      it     very        clear    to    him         (H. B.)    and

[Junior]      that he        (Borda)   did not want any cocaine sent to the

United States."          Mejia also claimed in that statement that H.B.

also told Government agents that Borda did not want cocaine sent

to the United States.

       Mejia,      whose       hearsay        testimony           would        not        have       been

admissible       at    trial,     gave       inconsistent           testimony             during      the




3
    Mejia had no other connection to this case

                                             - 10 -
post-trial evidentiary hearing 4 about whether H.B. had or had not

told him that Borda knew that the cocaine was sent to the United

States. Moreover,      his testimony was impeached by the Government

with his written statement.

      Importantly,     at     the   post-trial     hearing,         H.B.     himself

testified that he never told Mejia or Government agents that he

thought Borda did not know or intend to send the Palm Oil load

to the United States.

     At    the   post-trial     hearing,     the       Government     called     two

Special Agents,      Michael Chase and Michael Chavarria,                  and a DEA
                                                   5
Intelligence Analyst,        Patricia Skidmore,         all of whom testified

that H.B. never told them that Borda did not know or intend that

the Palm Oil load would go to the United States.                    In short,    the

testimony of Chase,      Chavarria and Skidmore was consistent with

H. B.'s   testimony,   and    directly   contradicted        the    testimony     of

Mejia.

4
   The post-trial evidentiary hearing on the alleged Brady
violations was held on December 12 and 13, 2011, January 23-24,
2012, and February 10, 2012.
5
  Defendants also argue that a draft report of an interview with
Junior prepared by Skidmore constitutes Brady material withheld
by the Government. That draft report notes that, "(u]nbeknownst
to Borda, the CS and (H.B.] took an additional 100 kilograms of
cocaine believing they could sell it in Houston for a larger
profit ($13,500/kilogram) ." In addition to the report being
inadmissible, Skidmore testified that Junior never told her that
Borda did not know the Palm Oil load was going to the United
States.   Skidmore 1 s testimony directly contradicts Defendants 1
interpretation of the draft report she wrote.


                                    - 11 -
         For    the     reasons      stated      above,        Defendants       have        failed       to

show     that       prior    to     trial    the     Government         suppressed,             or     even

possessed,          any     favorable       information         regarding        H.B.   1
                                                                                            S    alleged

statements          to Mejia.            Moreover,      even assuming          the      information

had been favorable,               and assuming further that the Government had

it and failed to disclose it to Defendants,                                 the Court concludes

that     there is no reasonable probability that Mejia 1 s                                  testimony

before        the   jury would have produced a                       different    result,             given

all     the     evidence      the     Government         did    submit       regarding           Borda 1 s

knowledge and intent about distribution of the Palm Oil load to

the United States. 6

         2.      Defendants argue that the Government failed to provide

any evidence clearly demonstrating that                               the    Palm Oil           load had

ever         actually     gone      to     the    United        States.          Basically,             the

Defendants          are     arguing       that    the     Government         should         have      been

required to prove a                negative.         However,         the allegation is not

even factually correct. As noted earlier,                              Suarez testified that

11
     [a]ll     1,553      [kilograms]        went       to     the    United      States.        11
                                                                                                         In

addition, there was one DEA report prepared by Agent Chase dated

6
  While the Court finds no Brady violation, it does find that the
Government 1 s charge that 11 Mejia 1 s attorney, Heather Shaner,
influenced his testimony 11    is out -and-out outrageous.       See
Gov t s Opp n to Defs.
    1 1       1         1
                          Mot. To Dismiss, 21, 24.     Ms. Shaner is
a long-time, respected CJA lawyer who has handled numerous
criminal cases.     To state that she 11 influenced 11 her client 1 s
testimony is to accuse her of having violated all ethical rules
that govern her professional conduct and her Oath of Admission
to this Court.
                                                 - 12 -
January 20,      2006, which was disclosed to Defendants at the time

of the post-conviction hearings.                       That report stated that Junior

told Agent       Chase      that     Borda believed the             cocaine went       to   the

United States.         Such a report would have been inadmissible since

it was pure hearsay.               Moreover, it certainly would not have been

favorable to the Defendants.                     Thus, it could not have been Brady

material.

      Defendants       also         seem    to    be     arguing    that    the    Government

violated Brady by not disclosing the many DEA reports which said

nothing     at   all     about       whether       the    Palm     Oil    load    reached   the

United     States,     or     about        Borda's       and    Alvaran's    knowledge      and

intent with respect to the destination of the Palm Oil load.

      The fact that Government statements or exhibits are silent

and do not implicate a defendant certainly cannot be construed

as   "favorable"       to      that    defendant.          In    short,     the   absence    of

incriminating information in a report cannot be turned into an

affirmative conclusion that it is "favorable" to the Defendants

and, therefore, cannot constitute Brady material.

      3.     Defendants allege that Brady was violated because the

following pieces of                "favorable"      information were not disclosed

prior to trial:             ( 1)    a summary of an interview with Junior in

which it is claimed that Junior told the Agents that Colombians

were actually engaged in trafficking to Europe, and (2) a report

establishing       that       H.B.     told       the     Government       that    Bruno    was

                                             - 13 -
secreting cocaine                inside ovens,          which he then sent               to Europe.

Defendants          also     complain       about       a       disclosure   before       trial      by

Geraldo       Cantu      which      referred       to       a    2000   kilogram        shipment     of

cocaine from Mexico to Spain.

        Apart       from the fact          that much of this information was in

fact disclosed to Defendants,                     it was not material.                  Once again,

Defendants           are     arguing        that        the        absence       of     information

constitutes          "favorable"          material      under Brady.             That     is   simply

not the case.              Putting on affirmative evidence that Defendants

were shipping cocaine to Europe would not have helped prove that

they did not intend or know that the Palm Oil load was going to

the United States.

        Moreover,          the    Court    has     already concluded              that    "evidence

pertaining to Defendant Borda's involvement in selling drugs to

other        countries       outside       of    the        United      States     is    not    Brady

evidence."          Order (October 21, 2010)                    [Dkt. No. 140]

        4.      Defendants argue that the Government violated Brady by

failing        to    produce       the     factual          proffer     which      supported        the

guilty plea that H.B. entered in the U.S. District Court for the

Southern District of Texas ("SDTX").

        H.B. 's plea agreement along with its factual basis cannot

be deemed Brady material because the Government did not suppress

it.     In 2009,         the plea agreement was filed as a public record,

was   listed        on     the    public     ECF    docket         within    two      days     of   its

                                                 - 14 -
actual filing,           and has been publicly available ever since.                             The

Government is correct that there cannot be a Brady violation for

failure to disclose public documents which the Defendants could

have found on their own.                        While defense counsel did have a vast

amount of material to examine prior to trial,                              it certainly would

not have been impossible for these technologically savvy lawyers

and    paralegals             to     have   located        this     information,        which    was

accessible to them.

        Defendants argue that because H.B. 's plea agreement did not

explicitly mention that Borda knew or intended the Palm Oil load

to go        to    the   United States,             the    proffer,       in conjunction with

other testimony,               "would have been powerful evidence in support

of Defendants'           theory. "          Once again,       Defendants are asking that

the mere absence of incriminating evidence is "favorable" under

Brady.            That   is        just   not    correct,     as    the    Court   has    already

ruled, supra.

        5.        Defendants complain that                 the Government did not give

them     rough       handwritten            notes    which        Agent    Chase   took     of    an

interview with Cantu on October 15,                           2010.        Neither Cantu nor

Chase        testified         at     trial.        Included        in    the   notes    was     the

following sentence:

        The Colombian (Borda) thought he had done the best thing by
        reaching Mex. & didn't want to risk sending to U.S.   Borda
        was happy w/Mex. prices & didn't want to risk sending up to
        N.Y. but wants Cantu to convince Tony that everything would
        be o. K. if Drug were seized in U.S. Tony would lose most

                                                  - 15 -
        b/c he was owner.   Jr. said Tony already knows about you
        (Cantu) b/c Jr. and Camilo had spoke highly of you. [sic.]
        (emphasis added)

        Since        Chase's          notes       contained         Cantu's       statements   1    those

notes        would       clearly have           been      deemed          hearsay.     Additionally/

since Cantu did not testify at trial/ whatever statements he may

have made to Agent Chase back in 2010 could not have been used

by Defendants to impeach him if he had testified.

        Moreover/              those    notes         were     not        clearly     "favorable"         to

Borda;       indeed      1    they indicate that while Borda did not want                                 to

risk sending the drugs to New York/ he certainly knew there was

a possibility that New York would be their destination.

        Finally      1       the     information        itself was brought             out    in trial

during        the    testimony of             Camilo         Suarez   1     the   Government's          main

witness-cooperator.                    As this Court already noted "a reasonable

jury could have inferred from this evidence that Defendants did

not   want          to       be    personally          responsible          for     transporting         the

cocaine       into the United States/                        but nevertheless           concluded on

the   basis         of       other     information           that    Defendant        knew    that       the

cocaine        would          eventually          reach      that     market        through   Junior."

Memorandum Opinion (March 9                   1       2011) at 9-10 [Dkt. No. 238].

        For all              these    reasons     1    Agent   Chase's        rough notes          of    his

interview with Cantu did not constitute Brady material.

        6.      Defendants argue that the Government violated Brady by

failing to disclose a recorded post-arrest interview of H.B.                                              in

                                                      - 16 -
which Defendants claim that H.B. stated that all of the cocaine

was sold in Monterrey and that 100 kilograms belonging to H.B.

and Junior were shipped to New York.                The post-arrest interview

contained no favorable information. While the interview did not

address Defendants' knowledge or intent, it fully implicated the

Defendants     in   the    Palm Oil     load    and was   consistent     with   the

Government's trial evidence. Thus the post-arrest interview does

not constitute Brady material.

      Defendants also argue that the Government violated Brady by

failing   to   turn       over    certain   trial   exhibits   related    to    the

testimony of Reynaldo Oyervides during a 2009 trial in the SDTX. 7

Defendants contend that these documents,              identified as "Aracely

I"   and "Aracely II,"           constitute favorable material withheld by

the Government. 8



7
  In 2009, Reynaldo Oyervides testified as a Government witness
in a narcotics trial in the SDTX. Oyervides had worked for
Junior as a bookkeeper, responsible for maintaining Junior's
drug records. Oyervides had saved some records in summarized
form, and several of those summaries were introduced at the
trial in Texas. Two of the summarized records were identified in
that trial as "Aracely I" and "Aracely II."
8
   More specifically, Defendants note that, at trial, Suarez
testified that the Palm Oil load consisted of one shipment of
approximately 1,500 kilograms of cocaine. Defendants further
note that at the post-trial Brady hearing, H.B. testified that
the Aracely documents are account sheets pertaining to the Palm
Oil load. According to Defendants the Aracely documents indicate
that the Palm Oil load consisted of two separate loads of
cocaine, one 1,000 kilogram load and one 1,089 kilogram load,
for a total of 2, 089 kilograms of cocaine. Defendants contend
                                       - 17 -
      H.B.     did    not     disclose         information           regarding             the     Aracely

documents      to    the prosecutors            in this        case until                  several       days

before the January 2012 post-trial Brady hearing.                                          Although the

documents were known to prosecutors in the SDTX in 2009,                                                there

is   nothing    on     the     face    of      the     documents          which        indicate           any

connection of them to the Palm Oil load.                                  Moreover,          Oyervides'

testimony during the 2009 trial did not link Aracely to the Palm

oil load.      There can be no Brady violation where,                                  as here,           the

Government      could        not     have      known,         and     did        not        know        until

approximately         one     year     after         trial,     that        documents              in     the

possession of prosecutors in Texas might be linked to the Palm

Oil load.

      Moreover,       even· assuming that               the Government possessed and

suppressed      the         Aracely     documents,            there         is        no     reasonable

probability         that,     had     Defendants        been         able        to    use       them      to

impeach Suarez's testimony about the composition of the Palm Oil

load, the result of the proceeding would have been different.

      8.     Defendants            additionally         argue         that        the        Government

violated Brady by failing to turn over:                             (1)   a DEA report noting

that Junior told the DEA that H.B. was involved in the murder of

another      trafficker        and      ( 2)    a     June      2011        letter           from        Luis

Manjarres which the Defendants claim shows that Juan Montoya,                                               a



that they could have used these documents to impeach Suarez's
trial testimony.
                                               - 18 -
government         witness,         asked        Manjarres         to     lie        about     Borda

threatening          Montoya.       The    DEA     report      is       not     Brady     material

because    it    is     inadmissible         hearsay,        and    the       June    2 011   letter

from Manj arres         is    not    Brady material           because         it     did not    even

exist at the time of trial.

IV.     CONCLUSION

        Considering          Defendants'         claims      cumulatively,             the     Court

concludes that Defendants have failed to meet the very demanding

Brady    standard.       Because          each    of   the    alleged          Brady     materials

identified by Defendants was either inadmissible, not favorable,

not suppressed by the Government,                      or did not exist at the time

of    trial,    there    is no reasonable probability that                            there would

have been a different result had the Government disclosed them.

        For the reasons set forth above,                      Defendants'            Joint Motion

to Dismiss for Brady Violations or,                       in the Alternative,                  for a

New    Trial    is    denied.       An Order will            accompany this            Memorandum

Opinion.




April,07.}, 2013



Copies to:      Attorneys of Record via ECF



                                             - 19 -
