United States v. Barlow (732 F. Supp. 2d 1, 2010)

United States District Court for the Eastern District of New York 2010-08-05

Crimes and Criminal Procedure Judiciary and Judicial Procedure

Citations

Full opinion text

memorandum and order

JOSEPH F. BIANCO, District Judge:

On October 20, 2009, a jury convicted defendant Terrance Barlow (“Barlow” or “defendant”) of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Barlow now moves for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.

Barlow asserts that he should be granted a new trial on three grounds. First, he argues that the jury’s verdict was against the weight of the evidence. Specifically, he argues that the testimony of two police officers involved in his arrest was incredible and that the jury failed to properly credit the testimony of two defense witnesses who testified that the gun containing the ammunition actually came from someone else arrested during the police response to an attempted burglary. Second, Barlow contends that the prosecution violated its obligation to disclose exculpatory and impeachment evidence in its possession. The focus of Barlow’s argument on this ground is that the prosecution allegedly failed to disclose the existence of potential defense witnesses and hampered defense access to those witnesses. Third, Barlow asserts a violation of his Sixth Amendment right to a jury drawn from a fair cross section of the community. Specifically, Barlow points out that his 60-person venire did not contain a single African-American man, although it did contain 11 African-American women, two of whom were ultimately seated on the jury.

As set forth below, the Court finds that each of these claims is without merit and that no evidentiary hearing is needed to resolve any of them. First, the Court concludes that the guilty verdict on the felon-in-possession of ammunition charge was not against the weight of the evidence. The government presented, inter alia, the following evidence to the jury: (1) the eyewitness testimony of Police Officer John Serdaros and Sergeant Vassilios Aidiniou that the loaded gun fell from Barlow’s waistband during a brief struggle between Barlow and Officer Serdaros as they attempted to stop Barlow in response to a burglary in progress on July 16, 2009; (2) the testimony that the defendant orally confessed to Officer Serdaros that he possessed the firearm and then confessed, in writing, to Detective Roland Garcia that he possessed the gun in connection with the attempted burglary/robbery; and (3) a defense stipulation that the ammunition recovered from the firearm had been transported in interstate commerce and that the defendant had been convicted of a felony prior to July 16, 2009. Although Barlow argues that the jury should have accepted the testimony of the defense witnesses over the police officers, Barlow has failed to demonstrate the “exceptional circumstances” that are required before the Court will disturb the jury’s credibility assessments, nor has he demonstrated that it would be a manifest injustice to let the jury’s verdict stand. Based upon the government’s cross-examination of the two defense witnesses, as well as the other proof at trial, the jury could have rationally concluded that the defense witnesses’ testimony should be rejected, inter alia, because they were not in a position to observe the defendant’s arrest or because the testimony was based upon an honest, but erroneous, perception that the firearm was recovered from a second individual arrested on the street (an erroneous perception that may have been caused by Officer Serdaros assisting in the arrest of the second individual while he was still holding the gun that had fallen from defendant’s waistband in his hand). Thus, the Court denies the Rule 33 motion based upon the weight of the evidence.

Second, the Court also rejects defendant’s claim that purported Brady violations by the government warrant a new trial. As a threshold matter, defendant has failed to produce any evidence that the government possessed evidence favorable to the defense prior to trial or violated its discovery obligations in any way. In any event, Barlow was not prejudiced at all by any purported late disclosure of exculpatory information during trial because (1) the government served subpoenas on the witnesses who are the focus of Barlow’s Brady argument, (2) the witnesses in question in fact testified for Barlow at trial and the jury heard and fully considered the exculpatory information, and (3) any purported late disclosure did not result in any material shift in Barlow’s trial strategy. By calling these defense witnesses, Barlow’s counsel was fully able to present the allegedly exculpatory information to the jury in the best possible light for the defendant. Furthermore, upon learning during the trial of the anticipated exculpatory testimony of these two witnesses, Barlow’s counsel did not request an adjournment of the trial (or a mistrial) because of any purported prejudice prompted by the timing of the discovery of the information. Therefore, no “suppression” of exculpatory information occurred within the meaning of Brady because of any purported late disclosure. In any event, even if Barlow could show that the government suppressed exculpatory evidence, he cannot possibly show the requisite resulting prejudice under the circumstances of this case because the defendant had full and effective use of the exculpatory evidence at trial, and no hearing on this issue is required. Similarly, the Court finds meritless Barlow’s assertion that the prosecution failed to disclose potential impeachment evidence relating to a prosecution witness. Therefore, Barlow is not entitled to a new trial because of the prosecution’s alleged belated disclosure or nondisclosure of exculpatory or impeachment evidence.

Finally, the Court rejects Barlow’s fair cross-section challenge to the jury venire in this case. Applying the test set out by the Supreme Court in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court concludes that no fair cross-section violation occurred. In particular, assuming arguendo that African-American males constitute a “distinctive group” for purposes of the Duren test (in addition to African Americans generally, who are clearly a “distinctive group” under Duren), Barlow has not met his burden of showing that African-American males were unfairly underrepresented in jury venires or that any underrepresentation resulted from the systematic exclusion of African-American males from jury service. As discussed in detail infra, although Barlow’s venire contained no African-American males, it is undisputed that African-American males comprised 6.79% of all venires in the District during the relevant period. In fact, African-American males were actually qualified for jury service in this District during the time period in question at a higher rate than other groups in the community. No hearing on this issue is warranted because, inter alia, based upon the undisputed statistical evidence, it is clear that the “unfair underrepresentation” element cannot be met in this case as a matter of law.

In sum, having carefully reviewed all of Barlow’s claims, the Court concludes that no hearing is required on any of the issues and that the claims in defendant’s Rule 33 motion are without merit. The Court sees no “manifest injustice” in allowing this verdict to stand and has no “real concern that an innocent person may have been convicted” in this case. United States v. Canova, 412 F.3d 331, 349 (2d Cir.2005) (internal quotations omitted).

I.BACKGROUND

As will be discussed more fully below, the New York City Police (“NYPD”) arrested Barlow on July 16, 2009. He was subsequently transferred to federal custody and indicted on August 18, 2009 on one count of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Trial began on October 13, 2009, and the jury found Barlow guilty on October 20, 2009. On November 20, 2009, Barlow filed the instant motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure.

At the same time he submitted his reply brief on the motion, defense counsel requested that the Court hold oral argument regarding Barlow’s fair cross-section claim. The Court granted that request and held oral argument on March 26, 2010. Following oral argument, both sides made several additional submissions dealing with the fair cross-section issue. The matter is now fully submitted.

II.Standard of Review

Defendant moves for a new trial pursuant to Federal Rule of Criminal Procedure 33. Rule 33 states, in relevant part, that “upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Crim.P. 33(a). A district court may grant a Rule 33 motion only in “extraordinary circumstances,” United States v. McCourty, 562 F.3d 458, 475 (2d Cir.2009) (internal citation and quotation omitted), and only if there exists “ ‘a real concern that an innocent person may have been convicted.’ ” United States v. Parkes, 497 F.3d 220, 232 (2d Cir.2007) (quoting United States v. Ferguson, 246 F.3d 129, 134 (2d Cir.2001)); accord United States v. Bell, 584 F.3d 478, 483 (2d Cir.2009); see also United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir.2000) (“Granting Rule 33 motions is not favored and is done with great caution.”). “The ultimate test on a Rule 33 motion is whether letting a guilty verdict stand would be a manifest injustice.” Ferguson, 246 F.3d at 134.

III.Discussion

Barlow argues that he is entitled to a new trial on three grounds: (1) the verdict was not supported by the weight of the evidence; (2) the prosecution violated its obligation to disclose exculpatory and impeachment information; and (3) the jury was not drawn from a fair cross section of the community. As set forth below, the Court concludes that these claims are without merit and Barlow has failed to demonstrate that he is entitled to relief under Rule 33.

A. Weight of Evidence Claim

1. Background: The Evidence

The crime of which Barlow was convicted — being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g) — has three elements: (1) the knowing possession of ammunition; (2) a prior felony conviction; and (3) the possession “being in or affecting” interstate commerce. United States v. Amante, 418 F.3d 220, 221 n. 1 (2d Cir.2005); see also 18 U.S.C. § 922(g). At Barlow’s trial, the parties stipulated to both the prior felony conviction and interstate commerce elements. The only issue, therefore, was whether Barlow knowingly possessed ammunition.

a. Testimony of the Police Officers Regarding the Stop and Arrest

Trial began on October 13, 2009. The government’s first witness was John Serdaros, a New York City Police officer assigned to the 67th Precinct. Serdaros testified that, on the afternoon of July 16, 2009, he was on patrol with his partner, Sergeant Vassilios Aidiniou, in an unmarked police car. The officers received a call from the police dispatcher advising them of a burglary in progress at 678 Rogers Avenue, involving six males and one female. (Tr. 39.) Serdaros testified that, upon arriving at that address with the flashing lights activated on his unmarked car, he observed Barlow on the street in front of the alleyway that ran alongside 678 Rogers Avenue. (Tr. 41-42, 46.) Serdaros stated that, as he approached, Barlow appeared to be speaking to someone in an alleyway over his right shoulder. Barlow “immediately locked eyes” with Serdaros, “all the time” keeping his right hand against his right waistband “as if he was trying to hold something against it.” (Tr. 42^3.) After Serdaros and Barlow locked eyes, Barlow began walking southbound on the sidewalk. (Tr. 46-47.) Serdaros got out of his car, told Barlow to stop, and, after approaching Barlow, grabbed Barlow’s left arm. (Tr. 47.) Barlow attempted to “tug away” from Serdaros. (Tr. 48.) Serdaros lost his grip on Barlow but, according to Serdaros, Barlow’s shirt came off, and a gun fell to the ground. (Tr. 48.) Serdaros testified that he picked the gun up while Barlow ran south on Rogers Avenue. (Tr. 48.) Additional uniformed NYPD officers who had arrived on the scene apprehended Barlow in the street as he ran from Serdaros. (Tr. 48-49.)

Serdaros testified that he then observed Sergeant Aidiniou, his partner, attempting to arrest another individual, later identified as Davon Mattocks, on the same sidewalk on Rogers Avenue. (Tr. 54.) Serdaros stated that he assisted Aidiniou in handcuffing Mattocks, while still holding in his hand the gun that he had just seized after it had fallen to the sidewalk from Barlow’s waistband. (Tr. 80, 103.) Serdaros testified that the defendant’s gun remained in his hand until he had an opportunity to safeguard it in his unmarked vehicle. (Tr. 80.) Serdaros later examined the gun and determined that it contained seven rounds of ammunition. (Tr. 52.)

Serdaros also testified that Barlow was taken to the 67th Precinct, where Serdaros gave him his Miranda warnings and had a conversation with him. (Tr. 70-71.) During that conversation, according to Serdaros, Barlow stated that an individual named “Buck” had given him the gun to use in the planned burglary of 678 Rogers Avenue. (Tr. 72.)

The government also called Sergeant Aidiniou, Serdaros’s partner. Aidiniou testified that, when he and Serdaros arrived on the scene, he observed Barlow “pressing something up against the right side of his body with his right hand, trying to hold something there.” (Tr. 296.) Aidiniou stated there was a “slight struggle” between Serdaros and Barlow and that Barlow “kind of spun out of Officer Serdaros[’s] grasp ... like spinning out of his shirt.... I saw a gun fall to the ground.” (Tr. 299.) Aidiniou asserted that he saw Serdaros pick the gun up. (Tr. 304.) Aidiniou then proceeded to arrest Mattocks. He was assisted by “a couple of ... uniformed officers,” but could not say whether Serdaros was one of the officers who assisted him. (Tr. 356-57.)

b.Testimony Regarding Barlow’s Confession

Detective Roland Garcia of the NYPD also testified for the government. Garcia stated that he was called to the 67th Precinct on the night of July 16, 2009. (Tr. 453-54.) Garcia met with Barlow and gave him the Miranda warnings. (Tr. 456-57.) According to Garcia, Barlow began to write a statement but started to shake and cry and was unable to continue writing. (Tr. 478.) Garcia testified that Barlow said he was upset because he was afraid of “Buck.” (Tr. 478-79.) Garcia then hand-wrote a statement that, he testified, was based on Barlow’s account of the events. Barlow signed the statement, and it was introduced into evidence at trial. (Tr. 462-66.) According to the statement, “Buck” gave Barlow the gun to use in a robbery and drove Barlow to 678 Rogers Avenue. After the police arrived, Barlow attempted to walk away but was apprehended, and the gun fell to the ground. (See id.)

Garcia also testified that he attempted to locate “Buck” via a search of computer records but that the only individual who met Buck’s description was in custody on the date of Barlow’s arrest. (Tr. 466-67.)

c.Jermaine Jackson

Due to a scheduling issue, the Court allowed the defense to call a witness before the end of the government’s case. That witness, Jermaine Jackson, lived in the apartment at 678 Rogers Avenue that it was claimed was the target of the attempted burglary or robbery. Jackson testified that, on July 16, 2009, he was sitting in his apartment with two friends, Gregory Parker and Delon Joseph. (Tr. 383.) They observed people walking around outside who, they believed, had been responsible for a previous break-in at Jackson’s apartment. (Tr. 383-84.) Joseph subsequently left Jackson’s apartment to investigate and eventually called the police. (Tr. 386-89.) After the police arrived, Joseph called Jackson and told him to come outside to talk to the officers. (Tr. 389-90.) Jackson testified that he walked outside with Parker and that Joseph introduced him to Serdaros. While speaking with Serdaros, he “caught a glimpse” of a police officer— not Serdaros — retrieving a gun from a heavyset individual, not Barlow. (Tr. 394.) The defense would later contend that this heavyset individual was Mattocks. (See, e.g., Tr. 663.) On cross-examination, Jackson admitted that, at the time of the incident, he regularly smoked marijuana (Tr. 426), but said on re-direct testimony that he had not used marijuana on July 16, 2009 (Tr. 427).

d.Gregory Parker

The government then resumed its case. Its next witness was Gregory Parker, who was called “mainly as a rebuttal witness to Jackson’s testimony.” (Govt.’s Mem. of Law at 8 n. 7.) Parker testified that, although he walked outside with Jackson, he, unlike Jackson, did not observe the police taking a gun off the heavyset individual (i.e., Mattocks) or anyone else. (Tr. 442-43.)

e.Delon Joseph

The defense also called the third person who had been in the apartment at 678 Rogers Avenue — Delon Joseph. Joseph testified that, while in Jackson’s apartment, he observed a number of suspicious people walking in the neighborhood, although Barlow was not one of the people he observed. (Tr. 597.) Joseph later returned to his own apartment, which was located in an adjacent building and from which he could see inside of Jackson’s apartment. (Tr. 604-05.) From this vantage point, Joseph could see people on the fire escape and roof of Jackson’s apartment. (Tr. 607-08.) Joseph then called the police. (Tr. 608.)

When Joseph heard the sirens of responding police cars, he exited his apartment via an interior stairwell. (Tr. 615.) As Joseph came onto Rogers Avenue, he saw the police arresting people, including a “big dude.” (Tr. 616.) Joseph testified that he could see the officers searching the “big dude” and “the officer came up with a gun.” (Tr. 618.) Joseph testified that defendant Barlow was not the “big dude” he saw. (Tr. 618-19.)

2. Barlow’s Arguments

On the instant motion, Barlow concedes that the evidence was sufficient to convict him. (Def.’s Reply Mem. of Law at 9.) He argues, however, that the jury was unreasonable in making its credibility assessments, and, thus, the verdict was against the weight of the evidence. In particular, Barlow asserts that the jury was unreasonable in crediting the testimony of Officer Serdaros and Sergeant Aidiniou in light of the testimony of the defense witnesses, Jackson and Joseph. As noted above, both Jackson and Joseph testified that the gun was recovered from a heavyset individual — who the defense argues is Mattocks — and not Barlow.

3. Analysis

The Second Circuit recently reiterated that a criminal defendant who seeks a new trial by attacking the jury’s witness credibility assessments faces a high bar. In United States v. Bell, 584 F.3d 478 (2d Cir.2009), the Court explained that “[i]t is well established that trial courts must defer to the jury’s resolution of the weight of the evidence and the credibility of the witnesses. It is only where exceptional circumstances can be demonstrated that the trial judge may intrude upon the jury function of credibility assessment.” 584 F.3d at 483. Exceptional circumstances may be found where testimony “is patently incredible or defies physical realities.” Id. Even if, however, the trial court rejects “all or part of the testimony of a witness or witnesses,” the defendant is entitled to a new trial only if “it would be a manifest injustice to let the guilty verdict stand.” Id.

Here, Barlow has not demonstrated the “exceptional circumstances” required for the Court to override the jury’s credibility assessments With respect to the prosecution case, Barlow argues that the testimony of Officer Serdaros and Sergeant Aidiniou should not be credited because the officers gave “evasive answers to questions” and “collu[ded] during trial as they drove home together in the midst of Officer Serdaros’ testimony.” (Def.’s Mem. of Law at 7.) However, both witnesses were subject to a thorough cross-examination about the events of July 16, 2009. Defense counsel also asked both witnesses about their drive home together (Tr. 265-66 (Serdaros); Tr. 322-23 (Aidiniou)) and reminded the jury of this fact during summation. (Tr. 690). Therefore, the jury was able to consider any purported collusion in making its credibility assessment.

Moreover, the testimony of defense witnesses Jermaine Jackson and Delon Joseph did not — as defendant claims — “unambiguously” establish that Mattocks— and not Barlow — had been carrying the gun. As an initial matter, the defense witnesses’ testimony differed in important ways. First, although both testified that the officers took the gun off “the big stocky guy” or the “big dude” — who the defense argues is Mattocks — they diverged as to the identity of the officer who took the gun. Joseph testified that the gun was taken by the “bald head cop with hair on his face,” (Tr. 619) who the defense argued was Serdaros. (Tr. 670-71 (summation).) Jackson, on the other hand, testified that it was another officer — not Serdaros — who pulled the gun from the “big stocky guy.” (Tr. 394-95.)

Second, the testimony diverged as to when the gun was recovered. Jackson testified that he was walking along the street with Officer Serdaros when he saw another officer pull the gun off the arrestee. (Tr. 394-97.) Conversely, Joseph testified that, when he saw the officer take the gun, Jackson was still on the stoop of 678 Rogers Avenue. (Tr. 630.) Moreover, Gregory Parker, who was with Jackson, testified that he never saw the police take a gun from the “heavyset person.” (Tr. 442-43.)

Furthermore, it was questionable whether the defense witnesses could have accurately perceived the events at issue. Neither Jackson nor Joseph witnessed Barlow’s struggle with Serdaros or his arrest. Jackson testified that Barlow was already in custody and on the ground by the time he came outside. (Tr. 393.) Joseph also testified that Barlow had already been arrested when he came onto Rogers Avenue. (Tr. 627.) Additionally, in summation, the prosecutor noted that, if Jackson were standing on the stoop of 678 Rogers Avenue, he would have been 20-30 feet from the arrest of Mattocks and his view would have been obstructed by bushes. (Tr. 656.) Joseph observed the search of Mattocks from the far side of the street, and parked cars obstructed his view. (See Tr. 654.)

Finally, as the government pointed out in its summation, it is also possible that the defense witness Delon Joseph honestly, but erroneously, believed that the firearm was recovered from Mattocks because, according to the testimony of Officer Serdaros, once Serdaros picked up the gun that had dropped from Barlow’s waistband, Serdaros immediately went over to assist Aidiniou in the arrest of Mattocks while still holding in his hand the gun that had fallen from defendant’s waistband. Thus, if Joseph missed the struggle with Barlow and first saw Serdaros with the seized gun in his hand while assisting Aidiniou in arresting Mattocks, he may have honestly (but erroneously, if the police testimony was credited) concluded that the gun had been taken from Mattocks, rather than from Barlow. Thus, the jury could have simply, and rationally, rejected the defense witnesses’ testimony as based on an inaccurate and/or incomplete perception of the quick-moving events on the sidewalk that day during the arrests.

In short, the testimony of Jackson and Joseph, when considered in light of the entire trial record, does not support the conclusion that the verdict was against the weight of the evidence and that a new trial is required. There was more than sufficient basis, in light of the entire trial record (including the eyewitness testimony of the two responding officers and Barlow’s confession to a third officer), for the jury to rationally reject the testimony of these defense witnesses and, instead, credit the police testimony that the gun and ammunition belonged to Barlow. Thus, the jury’s failure to credit this defense testimony does not amount to the exceptional circumstances required for the Court to disturb the jury’s credibility assessment. Given the evidence, the Court sees no manifest injustice in allowing the verdict to stand. Accordingly, Barlow’s Rule 33 motion based upon the weight of the evidence is denied.

B. Brady Claim

Barlow also argues that the Court should grant his Rule 33 motion because the government failed to disclose, and delayed disclosure of, exculpatory information that was in its possession and thereby violated Barlow’s due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny. As set forth below, the Court disagrees.

1. Background

Before turning to the merits of Barlow’s Brady claim, the Court will summarize the relevant factual background. As the summary reflects, because the defendant was indicted on August 18, 2009 and he refused to waive speedy trial time at the September 3, 2009 conference, there was a flurry of correspondence in a short period of time between the government and the defense regarding discovery leading up to the October 13, 2009 trial date as both sides prepared for trial.

As a threshold matter, Barlow notes that the government, in opposing Barlow’s Rule 33 motion, made several factual assertions regarding the Brady claim in its memorandum of law, not in an accompanying affidavit. Barlow asserts, in a footnote in the reply brief, that if the Court intends to rely on any of these new factual assertions, it should hold an evidentiary hearing. (Def.’s Reply Mem. of Law at 11 n. 6.) Having carefully considered this issue, the Court does not believe an evidentiary hearing is warranted for several reasons. First, as the defendant acknowledges in his reply brief, most (if not all) of the relevant facts on the Brady claim (as outlined in defense counsel’s affirmation, the government’s opposition papers, and the discovery letters/emails) are essentially uncontroverted; instead, the issues are whether the uneontroverted facts demonstrate that the information was exculpatory, whether such evidence was suppressed, and whether the defendant was prejudiced by any suppression. (See Def.’s Reply Mem. of Law at 11 (“The government’s account of the pre-trial discovery proceedings in this case effectively confirms our contention that it suppressed exculpatory evidence. While each detail is cast in light that serves the government’s end, the whole effect of the government’s admissions is that its agents must have known that Joseph and Jackson would give exculpatory evidence with respect to Barlow and did everything in their power to suppress it.”).) Under such circumstances, no evidentiary hearing is required. See, e.g., United States v. Byrne, 451 F.Supp. 109, 113 (E.D.Pa.1978) (“[I]nasmuch as the documents and affidavit filed by defendants disclose the inadequacies of the defendants’ Rule 33 motion and since there was no genuine issue of material fact which had to be resolved, a hearing was not required in connection with this motion” (collecting eases)). Second, although Barlow suggests that a hearing is necessary to cross-examine government personnel (including the Assistant United States Attorney, if necessary) about pre-trial discussions with the two defense witnesses at issue, it is unclear to the Court why such a hearing would be necessary when, despite the defense having interviewed the defense witnesses and put them on the witness stand, there is no claim by any defense witness that they provided exculpatory information to the government prior to the trial. Finally, and most importantly, the Court concludes that an evidentiary hearing is not required because, even assuming arguendo that the government knew prior to trial that the witnesses had exculpatory information and did not disclose it (which Barlow has failed to demonstrate), this claim still fails because Barlow became aware of the exculpatory information during the trial, called the witnesses at trial, presented the exculpatory information to the jury in a complete and comprehensive manner, and suffered no prejudice at all from any alleged lack of timely disclosure by the government. Therefore, the Court need not, and has not, relied upon any additional facts recounted in the government’s brief. In short, although the Court will recount all facts presented to the Court below for purposes of completeness, the additional facts provided by the government in its opposition brief have no bearing on the Court’s ultimate determination of this motion. Thus, an evidentiary hearing on the Brady issue is unwarranted, and defendant’s request for such a hearing, made in a footnote, is denied. See, e.g., United States v. Stewart, 433 F.3d 273, 302 (2d Cir.2006) (“Where, as here, the additional evidence of perjury is not sufficiently material to undermine confidence in the verdict, there is no need to probe the extent of the Government’s awareness of the perjury.”); United States v. White, 972 F.2d 16, 22 (2d Cir.1992) (“Since it is not necessary to resolve the issues that might be the focus of an evidentiary hearing, the district court did not abuse its discretion in refusing to conduct an evidentiary hearing.”); United States v. Basciano, No. 03-CR-929, 2008 WL 794945, at *6 (E.D.N.Y. Mar. 24, 2008) (holding that, because the allegations purportedly suppressed by the government were not material, “an evidentiary hearing further exploring the ... allegations themselves and the Government’s knowledge of the allegations is unnecessary”); United States v. Spinelli, No. 07 CR 209(RJD), 2007 WL 3231967, at *6 (E.D.N.Y. Oct. 30, 2007) (“Because a new trial is not warranted ... an evidentiary hearing to determine whether the government knew or should have known of [a witness’s] perjury is unnecessary.”). See generally United States v. Gonzalez 110 F.3d 936, 944 (2d Cir.1997) (“We need not decide whether or not the evidence was suppressed, however, because we believe, in any event, that the evidence was not material.”); United States v. Gambino, 59 F.3d 353, 366 (2d Cir.1995) (“Finding a lack of materiality, we need not decide whether the [evidence at issue] was ‘suppressed.’ ”).

a. July 2009 Interviews with Jackson and Joseph

Barlow was arrested on July 16, 2009. In the days immediately following Barlow’s arrest, the NYPD and Brooklyn District Attorney’s Office interviewed Jackson and Joseph at least twice. (Govt’s Mem. of Law at 21-22; Margulis-Ohnuma Aff. Ex C.) There is no evidence that any witnesses, including Jackson and Joseph, provided any exculpatory information to the police or District Attorney’s Office during these interviews. It appears law enforcement officials had no further interaction with Jackson or Joseph until a September 23, 2009 encounter with Joseph. See infra.

b. Defense Counsel’s Request for Information

On September 8, 2009, in a letter to the government, Barlow’s counsel requested that the government provide “any and all exculpatory evidence or evidence that tends to impeach the testimony of any anticipated trial witness,” including “[t]he identities and full contact information for any witnesses who may have materially exculpatory information” and “any witness statements” indicating either that Barlow was not involved in the robbery or that individuals other than Barlow were involved. (See Letter from Zachary Margulis-Ohnuma to Amir H. Toosi (Sept. 8, 2009) at 2, ECF No. 11.)

c. The September 23, 2009 Encounter Between the AUSA, Officer Serdaros, and Joseph

Approximately two weeks later, on September 23, 2009, the Assistant United States Attorney prosecuting the case (“the AUSA”) and Officer Serdaros had an in-person encounter with Joseph on Rogers Avenue, the street where Barlow was arrested. Although the AUSA apparently alluded to this meeting on the record at trial (Tr. 281), the factual detail regarding this meeting comes from the government’s opposition brief to the instant motion.

According to the government, on September 23, 2009, the AUSA, Officer Serdaros, and two agents of the Bureau of Alcohol, Tobacco, and Firearms traveled to 678 Rogers Avenue. (Govt’s Mem. of Law at 22-23.) While the group was on the street, they were approached by Delon Joseph and, as summarized by the government, Joseph gave the following brief account of the attempted robbery on July 16, 2009:

Joseph stated that he had been in the apartment located at 678 Rogers Avenue that day and had called 911 after leaving Jackson’s apartment. At the time of the conversation, it was unclear at what point Joseph left the apartment. Joseph stated that Officer Serdaros had “gotten the guy with the gun.” The undersigned asked Joseph if he saw the gun fall to the ground from “the guy’s” waistband, to which Joseph replied that he had not. He also suggested that cars on the street had blocked his view. Joseph added that he saw the gun later in Officer Serdaros’ hand. Officer Serdaros interjected that Joseph had run towards the location where the defendant had been arrested, pointed at the defendant, and said “That’s him, that’s him!” Joseph nodded when Officer Serdaros said this.

(Id. at 23.) The government asserts that it terminated the conversation with Joseph — which was occurring in view of pedestrians on the street — after several minutes out of a concern for Joseph’s safety. (Id.) The AUSA took Joseph’s contact information and advised him that agents would contact him to arrange a time to meet at the United States Attorney’s Office. (Id.) According to the government, “[t]he entire conversation with Joseph lasted approximately five minutes, and at no time during the conversation was Joseph shown a picture of the defendant.” (Id. at 23-24.) As noted above, the prosecution apparently alluded to this encounter with Joseph at trial. (Tr. 281.)

The defense argues, based upon the government’s summary (which the defense accepts and does not claim is disputed by Joseph), that Joseph made two statements during the interview that ran contrary to the government’s theory of the case. First, he stated that Officer Serdaros “had ‘gotten the guy with the gun.’ ” (Id.) Defendant claims this was exculpatory because, under the government’s theory, the “guy with the gun” was Barlow, and Serdaros had not “gotten” him because Barlow had slipped out of Serdaros’s grasp and been arrested by other officers. Second, as noted above, in response to a question from the AUSA, Joseph denied that he had seen the gun fall from “ ‘the guy’s waistband.” (Id.) Again, according to the defense, this statement is exculpatory because it contradicts Serdaros’s and Aidiniou’s testimony that the gun fell from Barlow’s waistband while Barlow was struggling with Serdaros. However, the government contends that “at the conclusion of this brief exchange, the government believed that when Joseph referred to ‘the guy/ he meant the defendant.” (Id. at 24.) Thus, the government asserts there was nothing exculpatory about Joseph’s brief statement and the government believed, at that time, Joseph could be a government witness who would confirm that Barlow possessed the gun.

d.The Prosecution Discloses Joseph’s 911 Call

Later on September 23, 2009, as reflected in a letter to the defense, the government turned over to the defense a recording of the 911 call on July 16, 2009, which had been made by Joseph. (See Letter from Amir H. Toosi to Zachary Margulis-Ohnuma (Sept. 23, 2009) at 2, ECF No. 15.) On the call, Joseph provided his contact information. Additionally, the government stated in the letter that it was not in possession of any Brady material. (See id.) The government’s letter was filed on the ECF system at 10:53 p.m. Thus, it appears that the letter was filed after the encounter with Joseph on the street.

e.The Government’s Attempts to Contact Joseph and the Government’s 404(b) Motion

The government asserts it subsequently made repeated attempts to arrange an additional, more private meeting with Joseph but that Joseph refused to cooperate. Specifically, the government claims that Joseph failed to respond to a voicemail message left by an ATF agent and hung up when contacted by the AUSA. (Govt.’s Mem. of Law at 24.) Additionally, when an ATF agent was sent to Joseph’s apartment, Joseph told the agent that he had to run an errand and would be back in 20 minutes. (Id.) Although the agent waited at the apartment for over an hour, Joseph failed to return. (Id.) The government claims that, after this incident, it temporarily discontinued its efforts to contact Joseph. (Id.)

On September 30, 2009, in connection with a motion to admit evidence under Federal Rule of Evidence 404(b), the government stated that it “may call a witness at trial that was inside the apartment during the attempted robbery and witnessed the defendant’s arrest.” (Letter from Amir H. Toosi to Hon. Joseph F. Bianco (Sept. 30, 2009) at 3 n. 3, ECF. No. 18.) According to the government (and the defense does not dispute), it subsequently told defense counsel that this witness was the “911 caller,” i.e., Joseph. (Govt.’s Mem. of Law at 25.)

f. The Defense’s Investigatory Efforts

The defense also made attempts to contact civilian witnesses. Defense counsel states that he was told by the government that Barlow possessed the gun for use in a burglary or robbery of a second-floor apartment at 678 Rogers Avenue; the apartment was a drug location; and civilian witnesses had refused to cooperate with the government, in part because they were scared of Barlow. (Margulis-Ohnuma Aff. ¶ 6.) Nonetheless, the defense team “canvassed the crime scene and surrounding area” and rang the bell for Jackson’s apartment at 678 Rogers Avenue. (Id. ¶ 8.) A person answered but refused to cooperate. (Id.) According to defense counsel, based on the person’s refusal and on the government’s assertions that the apartment was a drug location, he “did not pursue the matter further.” (Id.)

g. The Defense Renews Its Requests for Brady Material

On October 9, 2009, in a letter to the government, Barlow’s counsel made a renewed request for Brady material and specifically requested any material relating to the motive for the alleged attempted break-in at 678 Rogers Avenue. (See Letter from Zachary Margulis-Ohnuma to Amir H. Toosi (Oct. 9, 2009) at 1-2, ECF No. 26.) On that same day, the government, responded in writing and stated that “the government is not in possession of any evidence that the defendant did not participate in a conspiracy to commit robbery at 678 Rogers Avenue on July 16, 2009.” (Letter from Amir H. Toosi to Zachary Margulis-Ohnuma (Oct. 9, 2009) at 1, ECF No. 31.) Also on October 9, defense counsel asked the government to provide contact information for the “911 caller,” i.e., Joseph. (Margulis-Ohnuma Aff. ¶ 11.) As noted above, the government had previously provided defense counsel with the 911 tape on which the caller gave his contact information. However, Joseph had apparently had this number disconnected by the time defense counsel tried to call. (Id.) The AUSA responded to defense counsel’s request via email and stated that the government would subpoena the 911 caller, “but so far he’s been difficult to get in touch with.” (Margulis-Ohnuma Aff. Ex. D.) The government also implied that it would provide defense counsel with contact information for the 911 caller but needed to talk first with defense counsel about “ground rules for dissemination to your client.” (Id.)

On October 12, 2009, the day before trial was to begin, defense counsel made an additional request in a letter to the government for Brady material and any prior statements of witnesses concerning the other individuals who were arrested near 678 Rogers Avenue on July 16, 2009. (See Letter from Zachary Margulis-Ohnuma to Amir H. Toosi (Oct. 12, 2009) at 1-2, ECF No. 32.) Also in this letter, defense counsel confirmed “that the government is attempting to subpoena the 911 caller we discussed, and that if the government succeeds and does not call that individual as witness, the government will arrange for the defense to do so.” (Id. at 2.) The government also apparently agreed to subpoena the additional civilian witnesses— Jermaine Jackson and Gregory Parker. (See Govt.’s Mem. of Law at 27-28.)

h. Jackson and Parker Appear at Trial

On the second day of trial, October 14, 2009, Jackson and Parker appeared in court in response to the government’s subpoenas. Joseph did not appear. During a break from trial, members of both the prosecution team and the defense team spoke to Jackson and Parker. Neither side could determine, based on these brief conversations, whether Jackson or Parker would be able to offer helpful testimony. (See Margulis-Ohnuma Aff. ¶ 17; Govt’s Mem. of Law at 28.) That night, the defense team had a more lengthy conversation with Jackson. During this conversation, Jackson told the defense team that he had seen the police take the gun from someone other than Barlow. (Margulis-Ohnuma Aff. ¶ 18.)

i. The October 15 Sidebar

The following day at trial, the AUSA represented during a sidebar that he believed that Joseph had identified Barlow as the person who had the gun. Defense counsel cites this statement as yet another step by the prosecution to dissuade the defense from contacting Joseph. (See Def.’s Reply Mem. of Law at 12-13.)

By way of background, defense counsel had attempted to ask Officer Serdaros whether, on July 16, 2009, Jermaine Jackson pointed to Barlow and said that Barlow was not involved. The AUSA objected before defense counsel could finish the question, and the Court held a sidebar. During the sidebar, the AUSA represented that he had spoken to Delon Joseph and that he was under the impression that Joseph had identified Barlow as a perpetrator on July 16, 2009. Ultimately, the Court sustained the government’s objection because any testimony by Serdaros about what Jackson said would be hearsay and because, even if not offered for the truth of matter, could not be used to impeach Serdaros because there was no indication that Serdaros had ever stated that Jackson identified Barlow. (See Tr. 277-83.)

j. The Government Establishes Contact with Joseph; Joseph Testifies as a Defense Witness

Although Jackson and Parker had appeared at trial in response to the government’s subpoena, Delon Joseph had not. According to the government, it then decided “to make one last effort” to interview Joseph, believing that he would testify favorably to the government and could rebut Jackson’s testimony. (Govt.’s Mem. of Law at 29.) An ATF agent located Joseph, and the AUSA spoke with Joseph on Friday, October 16, 2009. During the interview, the AUSA determined that Joseph believed that the firearm had been recovered from someone other than Barlow. (Id. at 29-30.) The government states that this was the first it had learned that Joseph believed the gun had been recovered from someone else and that it contacted defense counsel within an hour of learning this information. (Id. at 30.) The AUSA also told defense counsel that he had been mistaken in asserting that Joseph was uncooperative due to his fear of Barlow. (Margulis-Ohnuma Aff. ¶ 24.) The following Monday, Joseph testified as a defense witness.

2. The Parties’ Arguments

As will be discussed in more detail below, there are three requirements for a Brady violation. These are (1) that evidence favorable to the accused was (2) suppressed — either willfully or inadvertently — by the prosecution and (3) that prejudice ensued. See United States v. Douglas, 525 F.3d 225, 244-45 (2d Cir. 2008); accord Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

a. Barlow

Here, the focus of Barlow’s Brady claim relates to defense witnesses Jackson and Joseph.

First, he asserts that the government knew well before trial that Jackson and Joseph both believed that Barlow did not possess the gun. Specifically, defendant speculates that the NYPD and Brooklyn DA’s Office must have learned during the July 2009 interviews with Jackson and Joseph that neither witness believed that Barlow possessed a gun. The record, however, contains absolutely no evidence to support this assertion. Defendant also argues that members of the prosecution team knew, based on the September 23, 2009 encounter with Joseph (as described by the government), that Joseph believed that Barlow did not possess the gun. Specifically, defendant cites Joseph’s statement that Officer Serdaros had “got[ten] the guy with the gun’ ” as exculpatory because Serdaros did not arrest Barlow. Defendant also points out that, in response to a question from the AUSA, Joseph denied that he had seen the gun fall from “the guy’s waistband.” Again, according to the defense, this statement is exculpatory because it contradicts Serdaros’s and Aidiniou’s testimony that the gun fell from Barlow’s waistband while Barlow was struggling with Serdaros.

Furthermore, with respect to Jackson and Joseph, defendant claims that the prosecution engaged in a series of actions intended to hamper the defense’s access to these witnesses. As evidence of this, defendant claims that the government refused to provide contact information; falsely stated that the apartment was a drug location; attempted to intimidate Joseph during the September 23 encounter; and falsely stated on the record at trial that Joseph believed Barlow was one of the perpetrators of the alleged burglary or robbery. (See Def.’s Reply Mem. of Law at 12-13.)

Although both Jackson and Joseph testified at trial for the defense, Barlow alleges that he was nonetheless prejudiced. Specifically, he claims that knowing about Jackson and Joseph’s likely testimony before trial would have enabled his counsel to give a more effective opening statement and to conduct more searching cross-examinations of Officer Serdaros and Sergeant Aidiniou. (Defs Mem. of Law at 26-32; Def.’s Reply at 7.) Additionally, defendant claims that Jackson’s and Joseph’s version of events was “rich with leads, opening up new avenues of inquiry and investigation into Mattocks and his cohorts” (Defi’s Mem. of Law at 29) but that he was unable to pursue these avenues because he did not know about them until the middle of trial.

b. The Government

In response, the government contends that it did not suppress any exculpatory information. As a threshold matter, the government asserts that it was unaware of Jackson’s and Joseph’s potentially exculpatory testimony until trial. As to the July 2009 interviews with the Brooklyn DA, the government states, in its opposition, that it spoke to the individuals in the Brooklyn DA’s Office who interviewed Jackson and Joseph and that any substantive conversations “were almost exclusively limited to what had occurred before officers had arrived” and “did not include the subject of the firearm.... ” (Govt.’s Mem. of Law at 20-21.) As to the September 23, 2009 encounter with Joseph, the government asserts that it believed, albeit incorrectly, that Barlow was “the guy” referenced in Joseph’s statement that Serdaros “got the guy with the gun.” The government argues that this good-faith but mistaken belief was the basis for the statements in its Rule 404(b) motion implying that any testimony from Joseph would be favorable to the prosecution. (See Govt's Mem. of Law at 24-25.)

Additionally, the government takes issue with defendant’s argument that it hindered access to Jackson and Joseph. In support of its position, the government points out that a number of documents turned over to the defense listed Jackson and Joseph as witnesses and provided contact information for them. Specifically, it notes several uncontroverted facts: that Jackson’s home address was in the criminal complaint filed by the BrooHyn DA’s office; that it gave defense counsel Joseph’s telephone number a week before the number was disconnected; and that it disclosed material under 18 U.S.C. § 3500 listing Jackson as a resident of 678 Rogers Avenue and Joseph as a neighbor. Furthermore, the government argues that it subpoenaed the witnesses for defense counsel; and that, once it learned during the trial that Joseph possessed exculpatory information, it immediately contacted defense counsel. (Govt.’s Mem. of Law at 35.)

3. Analysis

As noted above, cases subsequent to Brady have elucidated three requirements for “ ‘a true Brady violation’ first, “ ‘[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching’ second the “ ‘evidence must have been suppressed by the [prosecution], either willfully or inadvertently’ ” and third, “ ‘prejudice must have ensued.’ ” United States v. Douglas, 525 F.3d 225, 244-45 (2d Cir.2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). The third requirement is also sometimes labeled the “materiality” requirement and asks whether, had the information been disclosed, there was a “reasonable probability of a different result.” See Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936; United States v. Jackson, 345 F.3d 59, 73 (2d Cir.2003).

There is no question that the information possessed by Jackson and Joseph (as reflected in their trial testimony for the defense) meets the first requirement— namely, that the information was favorable to Barlow. Thus, the issue is whether defendant has met the other two requirements to prevail on a Brady claim, by showing that the government suppressed the evidence and that the suppression resulted in prejudice to the defendant. As discussed below, the Court concludes that neither of these requirements are met under the circumstances of this case,

a. The “Suppression” Requirement

Although the testimony of Jackson and Joseph was favorable to the defendant, Barlow has failed to demonstrate that the government suppressed this exculpatory information from the defense. Barlow, despite having interviewed these witnesses and put them on the stand at trial, has not provided any testimony or claim by these witnesses that they provided exculpatory information to law enforcement prior to trial during any interaction or interview. Moreover, there is no document containing exculpatory information provided by these witnesses or any other witnesses. In addition, in the summary of the government’s interactions with these witnesses prior to trial (provided in opposition to the motion), there is no evidence that exculpatory evidence was provided. Instead, defendant speculates that, because the defense witnesses ultimately testified in an exculpatory manner at trial and there were interactions with these witnesses by the government prior to trial, the exculpatory information must have been provided prior to trial. However, there is no evidence to support that assertion. In fact, the government’s actions both prior to trial and during the trial do not reflect an effort to suppress these witnesses, but rather reflect a consistent effort to locate these witnesses and subpoena them because the government believed they were potential government witnesses. For example, their attendance at trial resulted from the actions of the government. Jackson appeared because of a government subpoena, and Joseph appeared as a result of a government attempt to contact him after he failed to respond to a subpoena. Cf. Hoover v. Leonardo, No. 91-CV-1211 (JG), (E.D.N.Y. June 11, 1996), 1996 WL 1088204, at *3 (finding no Brady violation where prosecution, at the request of defense, searched for witness with “reasonable diligence”). The lack of any suppression of exculpatory information by the government is further indicated by the fact that it is undisputed that the government, after interviewing Joseph during the trial, immediately conveyed the exculpatory information from the interview to the defense.

In short, there is a complete absence in the record of any evidence that the government, although it disclosed exculpatory information during the trial, possessed this information at some point prior to trial. However, any purported factual disputes regarding whether the government possessed this information prior to trial need not be resolved for purposes of this motion because the suppression requirement also is not met if the disclosure is eventually made, even during trial, and was effectively used by the defense during the trial. As the Second Circuit has explained, “[w]ith respect to when the prosecution must make a disclosure required by Brady, the law also appears to be settled. Brady material must be disclosed in time for its effective use at trial.” United States v. Coppa, 267 F.3d 132, 135 (2d Cir.2001) (emphasis in original). Therefore, “Brady material that is not ‘disclosed] in sufficient time to afford the defense an opportunity for use’ may be deemed suppressed within the meaning of the Brady doctrine.” United States v. Douglas, 525 F.3d 225, 245 (2d Cir.2008) (quoting Leka v. Portuondo, 257 F.3d 89, 103 (2d Cir.2001)). On other hand, if the defense receives the information from the government in time for its effective use at trial by the defense, then the information has not been “suppressed” within the meaning of Brady regardless of whether the disclosure was made immediately before trial or even during the trial. Id. at 245-46 (finding government’s disclosure of documents one business day before trial did not constitute “suppression” within the meaning of Brady because defense counsel had sufficient time to make effective use of documents).

With respect to the issue of “effective use,” the Second Circuit has emphasized that there are situations where the receipt of exculpatory information immediately prior to trial, or during the trial, will not provide the defense with sufficient time to fully and effectively develop and use the information. For example, in Leka v. Portuondo, the Second Circuit explained:

The limited Brady material disclosed to [the defendant] could have led to specific exculpatory information only if the defense undertook further investigation. When such a disclosure is first made on the eve of trial, or when trial is under way, the opportunity to use it may be impaired. The defense may be unable to divert resources from other initiatives and obligations that are or may seem more pressing. And the defense may be unable to assimilate the information into its case. See United States v. Cobb, 271 F.Supp. 159, 163 (S.D.N.Y.1967) (Mansfield, J.) (“[T]here may be instances where disclosure of exculpatory evidence for the first time during trial would be too late to enable the defendant to use it effectively in his own defense, particularly if it were to open the door to witnesses or documents requiring time to be marshalled and presented.”).

257 F.3d at 101; accord Watson v. Greene, No. 06 CV 2212(CBA), 2009 WL 5172874, at *31 (E.D.N.Y. Dec. 30, 2009) (“Although pretrial disclosure is not mandated in all circumstances ..., favorable evidence that has a material bearing on defense preparation must be disclosed prior to trial if further development by defense counsel would be necessary in order to put it to effective use.” (internal quotation and citations omitted)). Thus, the late disclosure of exculpatory evidence is fraught with great danger of prejudice to the defendant, and a court must carefully scrutinize any such situation to ensure that, despite the fact that information was disclosed on the eve of trial or during the trial, the defense was able to effectively use the information.

In the instant case, as discussed in detail infra in connection with the “prejudice” or “materiality” requirement, there is absolutely no question that the information was fully and effectively used by the defense at trial and, thus, the “suppression” requirement has not been met. In particular, the Court, having presided over the trial and having observed how the trial developed and how the exculpatory information was utilized, concludes the “effective use” requirement has been met under the circumstances present here for a number of reasons, including: (1) the exculpatory information required no development or investigation (unlike the situation in Leka) because its exculpatory nature was apparent and the witnesses were immediately available to testify pursuant to the government subpoena; (2) the two exculpatory witnesses testified at trial and all of the exculpatory information in their possession was placed before the jury; (3) the exculpatory information was completely consistent with the defense theory of the case to that point — namely, that the gun was seized from someone other than the defendant — and defense counsel was not required to shift or alter his theory of the case in any manner whatsoever (and no mistrial on that basis, or any other basis, was sought); (4) there is absolutely no evidence that these witnesses opened the door to other potential exculpatory leads, such as witnesses or documents, which needed to be investigated and presented; (5) the lack of any need for additional investigation is reflected in the fact that, upon receiving the exculpatory information, defense counsel never moved for an adjournment of the trial to conduct a further investigation, nor have defendant’s detailed, post-trial submissions indicated any other investigation that would have led to the uncovering of additional exculpatory evidence. Based upon these facts, which were immediately apparent from presiding over the trial, the Court concludes that the defense had full.and effective use of the exculpatory information at the trial, and, thus, no “suppression” occurred within the meaning of Brady because of any purported late disclosure of the information.

b. The “Prejudice” Requirement

As set forth below, the Court also concludes that the “prejudice” requirement — which is also referred to as the “materiality” requirement — has not been met.

The focus of the prejudice or materiality requirement is whether, with the full use of the exculpatory information at trial, there was “a reasonable probability of a different result.” United States v. Jackson, 345 F.3d 59, 73 (2d Cir.2003) (internal citations and quotations omitted). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Disimone v. Phillips, 461 F.3d 181, 196 (2d Cir.2006) (quoting United States v. Madori, 419 F.3d 159, 169 (2d Cir.2005)). “ ‘[T]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.’ ” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

Here, there is no probability of a different result if, before trial, the government had disclosed that Jackson and/or Joseph possessed exculpatory information. First and foremost, as noted above, both witnesses testified for the defense at trial and all of the exculpatory information from these two witnesses was presented in its entirety to the jury. Second, although defendant became aware during trial that Jackson and Joseph could offer helpful testimony, this revelation did not result in any appreciable shift in the defense’s strategy. Defense counsel’s strategy from the outset — which was the only sensible strategy under the circumstances — was to argue that the gun came from someone other than Barlow. For example, in his opening statement, defense counsel argued that

• “[njobody saw Mr. Barlow touching a gun. No fingerprints were found on a gun. No fingerprints were found on a bullet. No fingerprints were found on a cartridge. There is nothing connecting Mr. Barlow to the robbery you just heard about ....”;

• “You’re going to find reasonable doubt as to whether anyone actually saw Mr. Barlow pick up, sorry, drop or possess at any time that gun”;

• “[Barlow] was not in a position to possess a gun, let alone commit a robbery”;

• “[Officer Serda