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Ambush With Undisclosed Evidence OK if Inculpatory, Not Exculpatory?

By William Peacock, Esq. | Last updated on

The facts of Rodrigo Macias-Farias’ case read like a comedy of errors. Agents from the Drug Enforcement Agency stopped a semi-trailer full of 1,600 pounds of marijuana and surveilled it as it was dropped off. Despite continuing surveillance, the drugs were somehow smuggled off of the truck anyway.

Later, the DEA pressured one of Macias-Farias’ alleged accomplices, Sean Lacefield, who then flipped and helped set up a drug buy at a Louisville Rite Aid. Unfortunately, the DEA agents got lost and missed that transaction as well. Lacefield provided information on one of the cars involved however, which was later apprehended with 100 pounds of marijuana in the trunk.

Lacefield later tipped the DEA about another shipment. This time, because the truck got stuck in a ditch, the DEA agents were able to catch up to the parties, arrest Macias-Farias, and search the truck, finding 3,766 pounds of marijuana.

At trial, the defense counsel was cross-examining one of the DEA agents, when he got quite the surprise:

Q. So again, the only information you have regarding that February 18th
deal to relate Mr. Macias to it is Sean's words?
A. No, sir.
Q. Okay. And the minivan, you say?
A. No.
Q. More?
A. Yes.
Q. What is more?
A. Amber Babor for one.
Q. Well, Amber Babor is not here, right?
A. You asked who else could provide information about that, and she did.
Q. Oh, she did provide you information on that?
A. Yes.
Q. Okay. Did you write a report about it?
A. Yes, I did.
Q. You did?
A. Yes, I did.

Who is Amber Babor? She was the owner and driver of the car that was apprehended after the Rite Aid transaction. Her statement is pertinent to the case and was not disclosed, but is that a Brady violation?

In order for Brady to apply, the evidence must be favorable to the accused as exculpatory or impeaching evidence, it must have been suppressed by the government, and it must be material to the defendant's guilt or punishment, meaning there is a reasonable chance that it would have affected the outcome of the trial.

According to the court, the problem with a Brady argument is, the evidence was inculpatory rather than exculpatory. It hurt the defendant's case. It was also handed over during cross-examination after Babor was mentioned, so impeachment was a possibility if necessary.

Still, is this the sort of fair trial that Brady pushes for? Should the witnesses be able to spring new evidence on the defense mid-trial? And could the defense counsel really prepare a proper impeachment strategy mid-cross examination?

Inculpatory or exculpatory, it may not have made a difference anyway. The third prong of the Brady test, "reasonable probability" of a different outcome, sounds a lot like harmless error analysis, doesn't it? Indeed, the trial court dismissed any possible error as "harmless" when denying a mistrial and the Sixth Circuit also highlighted the weight of the other evidence when addressing the Brady question.

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