11-3942-cr
United States v. Polanco

                             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 COURT’S 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 “SUMMARY ORDER”). 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
31st day of January, two thousand thirteen,

Present:    RALPH K. WINTER,
            ROSEMARY S. POOLER,
            DENNY CHIN,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                 Appellee,*

                           -v-                                              11-3942-cr

GERMAN DARIO POLANCO, ALSO KNOWN AS EL NEGRO,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellee:          Robert L. Capers, (David C. James, Licha M. Nyiendo, on the
                                 brief), Assistant United States Attorneys, for Loretta Lynch,
                                 United States Attorney for the Eastern District of New York, NY.

Appearing for Appellant:         Kenneth M. Tuccillo, Hastings on Hudson, NY.

     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Block, J.).




        *
           The clerk should remove “plaintiff” from the caption.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Defendant-appellant German Polanco (“Polanco”) appeals from the judgment of the
district court entered September 26, 2011 convicting him of violating 21 U.S.C. § 848(e)(i)(A)
and 18 U.S.C. § 924(j)(i) and sentencing him to life imprisonment. Polanco maintains that his
conviction should be vacated based on the government’s violation of appellant’s rights under
Brady v. Maryland, 373 U.S. 83 (1963), and his right to due process. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        Under Brady, “‘the suppression by the prosecution of evidence . . . violates due process’”
if the evidence is favorable to the accused, the evidence was willfully or inadvertently
suppressed by the prosecution, and the suppression results in prejudice.” United States v.
Douglas, 525 F.3d 225, 244–45 (2d Cir. 2008) (quoting Brady, 373 U.S. at 87). In addition the
evidence must be material (for example, it may lead to admissible evidence), and disclosed in
“sufficient time” to “afford the defense an opportunity for use.” Douglas, 525 F.3d at 245
(internal citations and quotations omitted). However, “[u]nless there is a reasonable probability
that earlier disclosure of the evidence would have produced a different result at trial,” Brady is
not violated. In re United States (Coopa), 267 F.3d 132, 144 (2d Cir. 2001).

        Here, Polanco’s Brady claims fail. Defendant’s Brady challenge is based on a number of
statements made by five government informants from the “Pier Pressure” investigation.
Analyzing these exact same statements, the district court rejected the Brady claim of Polanco’s
co-conspirators, Miguel Santos and Luis Rodriguez, and this Court affirmed. See United States
v. Santos, No. CR–01–537, 2010 WL 2985913, at *5–9 (E.D.N.Y. July 27, 2010), aff'd United
States v. Santos, No. 10–3218–cr, 486 F. App’x 133, 134-36 (2d Cir. June 19, 2012) (summary
order); United States v. Rodriguez, Nos. 10-2840, 10-3104, 2012 WL 5870747 (2d Cir. Nov. 21,
2012) (summary order). In our view, the government correctly argues in this case, as to the
exact same evidence, even if the informants’ statements were suppressed, that suppression would
not have violated Brady because the statements would have been inadmissible at trial, or “could
[not] possibly lead to admissible evidence. They [were] all hearsay or speculation.” Santos,
2010 WL 2985913, at *6.

        In addition, Polanco claims the district court erred in denying his motion for a new trial
pursuant to Fed. R. Crim. P. 33 based upon alleged prosecutorial misconduct. Defendant claims
misconduct because the exculpatory witness was first deported and then intimidated by the
government in an interview subsequent to which the witness changed his testimony. “It is
elementary that criminal defendants have a right to establish a defense by presenting witnesses.”
See United States v. Williams, 205 F.3d 23, 29 (2d Cir. 2000) (citing Webb v. Texas, 409 U.S. 95,
98 (1972)). “Relying on this principle, courts have held that judicial or prosecutorial
intimidation that dissuades a potential defense witness from testifying for the defense can, under
certain circumstances, violate the defendant’s right to present a defense” if amounting to bad
faith. Williams, 205 F.3d at 30. However, in this case, the government’s engagement with the
witness did not amount to bad faith. Courts find no bad faith where government interaction with
the witness is to promote countervailing public interests. Buie v. Sullivan, 923 F.2d 10, 11 (2d
Cir. 1990). For example, a prosecutor does not engage in misconduct merely by interviewing a
potential defense witness, see United States v. Simmons, 670 F.2d 365, 371 (D.C. Cir. 1982), nor
by warning a defense witness of the consequences of committing perjury, see United States v.

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Thompson, 130 F.3d 676, 687 (5th Cir. 1997). Therefore, we find no abuse of discretion in the
court’s denial of the motion where (1) the witness was deported after being convicted of a
separate narcotics offense; (2) the government had a legitimate and compelling reason to
interview the witness who voluntarily agreed to be interviewed; and (3) there is no indication
that the government threatened the witness having only warned him of the consequences of
perjury. The government was also actively engaged in bringing the witness back to the United
States to testify on Polanco’s behalf. Moreover, the witness had an opportunity to consult with
his own appointed counsel and was then interviewed by defense counsel when he was brought to
court. Therefore absent a showing of bad faith defendant’s due process claim fails.

      We find the Appellant’s remaining arguments to be without merit. Accordingly, the
judgment of the district court hereby is AFFIRMED.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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