United States v. Michael Durante
689 F. App'x 692
| 3rd Cir. | 2017Background
- Michael Durante, a New Jersey physician, was convicted by a jury of one count of conspiracy to distribute oxycodone and fifteen counts of distribution of oxycodone after a federal sting.
- Codefendant Dennis Abato cooperated with the government; in proffer sessions he produced a prescription that appeared to have been altered ("washed"). The prosecutor emailed Durante’s counsel a copy and noted it appeared altered and invited review of the original.
- At trial the altered prescription was admitted into evidence; Abato did not testify. The government called Abato’s son, Jeffrey, who recognized Durante’s handwriting on multiple prescriptions and said the proffer prescription had some characteristics of his father’s handwriting.
- Abato later pled guilty and at his sentencing the prosecutor described Abato’s statements about washing prescriptions, remarking that one proffered prescription appeared to be a poor-quality washed forgery.
- Durante moved for a new trial under Federal Rule of Criminal Procedure 33, arguing a Brady violation (that the government withheld evidence that Abato admitted forging prescriptions). The District Court held a hearing and denied the motion; this appeal followed.
Issues
| Issue | Plaintiff's Argument (Durante) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the government suppressed Brady material about Abato admitting to forging/filing altered prescriptions | Government withheld evidence that Abato admitted forging/filing washed prescriptions, which would impeach evidence linking Durante | Prosecutor did not possess reliable information that Abato admitted washing prescriptions; disclosures about the proffered, possibly altered prescription were made | No suppression under Brady: court found prosecutor had no dependable info that Abato admitted washing and had disclosed the prosecutor’s suspicion about the proffered prescription |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (suppression by the prosecution of evidence favorable to the accused violates due process)
- United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005) (explains standard for Brady-based Rule 33 new-trial review)
- United States v. Igbonwa, 120 F.3d 437 (3d Cir. 1997) (testimony is credited if coherent, plausible, and not contradicted by external evidence)