DOJ-OGR-00001802.jpg

Case 1:20-cr-00330-AJN Document 65 Filed 10/20/20 Page 2 of 4

Page 2

defense’s position is essentially that once the Government has accused a defendant of participating
in a crime with a particular co-conspirator, any time that co-conspirator commits a similar crime
without the defendant is somehow exculpatory. The defense cites no authority for such a broad
interpretation of Brady, nor is the Government aware of any. To the contrary, the well-established
law of this Circuit generally precludes a defendant from offering evidence that a defendant did not
participate in criminal conduct on a particular occasion—or of her law-abiding conduct during
uncharged periods or uncharged events—to rebut the Government’s evidence with respect to the
charged crimes or events. See, e.g., United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) (“A
defendant may not seek to establish h[er] innocence . . . through proof of the absence of criminal
acts on specific occasions.”); United States v. Chambers, 800 F. App’x 43, 46 (2d Cir. 2020) (“A
single occurrence of lawful conduct is ‘simply irrelevant’ to other occurrences of lawful conduct.”
(quoting United States v. Walker, 191 F.3d 326, 336 (2d Cir. 1999)); United States v. Williams,
205 F.3d 23, 34 (2d Cir. 2000) (“We reject Williams’s assertion that the evidence of innocent
travel was necessary to rebut the government’s allegation that Williams had been involved in other
cocaine importations from Jamaica. Although the government did argue that Williams had been
involved in other importations, it did not allege that Williams had engaged in drug activity during
these particular trips.”); United States v. Fiumano, No. 14 Cr. 518 (JFK), 2016 WL 1629356, at
*7 (S.D.N.Y. Apr. 25, 2016) (“The principle is rather elementary. A defendant charged with
robbing a bank in Manhattan on April 22 cannot offer as evidence to disprove the charged crime
that he did not rob the bank’s branches in Brooklyn or the Bronx on April 22 or that he did not rob
the Manhattan branch on April 20, 21, 23, and 24, because this evidence is irrelevant to the charge
that he robbed the Manhattan bank on April 22.”); United States v. Gambino, 838 F. Supp. 744,
748 (S.D.N.Y. 1993) (“Defendants also claim that the Southern District was in possession of
exculpatory materials which it did not disclose, namely that Gravano had discussed drug deals
with a number of ‘captains’ in the Gambino crime family, but had no such conversations with John
Gambino. Even if the Southern District had knowledge that Gravano had conversations with other
captains about specific instances of drug crimes, the fact that Gravano did not have such
conversations with Gambino does not make such evidence exculpatory. . . . Since a defendant
cannot introduce evidence of innocent behavior on other occasions to prove his innocence, such
testimony would not be exculpatory within the requirements of Brady”).¹

___________________
¹ The implications of the defense’s proposed expansion of Brady would be sweeping. There
are any number of cases in which a defendant is charged with participating in a criminal conspiracy
for a discrete period of time outside of which co-conspirators may have committed similar crimes
without that defendant. Such a set of facts is common in, for example, racketeering conspiracies
and narcotics conspiracies, in which defendants may conspire with each other for a certain period
of time before and after which they commit similar crimes on their own or with others. The fact
that a co-conspirator may continue to commit similar crimes after a defendant ceases participation
in a charged conspiracy does not somehow exculpate the defendant who did not continue
participating in those crimes. See, e.g., United States v. Flaharty, 295 F.3d 182, 192-93 (2d Cir.
2002) (co-conspirators in narcotics case continued to commit crimes without defendant during
defendant’s incarceration); United States v. Diaz, 176 F.3d 52, 99 (2d Cir. 1999) (co-conspirators
in racketeering case continued to commit crimes without defendant after defendant’s
incarceration).

DOJ-OGR-00001802