402 F. App'x 54
6th Cir.2010Background
- In Nov 2004, CIA Task Force used informant Greenwell to buy heroin from Kim Probst; Probst was not home.
- Hogan approached Greenwell offering two bags of heroin and offered to sell a bundle for $300 in the future.
- Agents conducted three controlled buys; Greenwell was searched and equipped with recording devices and currency for each transaction.
- Final transaction occurred at Greenwell’s apartment; Hogan was arrested leaving with $300 and eight bags of heroin; large knife found in Hogan’s car.
- Post-arrest, agents recovered additional heroin from Greenwell’s apartment; later, government disclosed impeachment material from Agent Borchgrevink.
- Hogan was tried, convicted on all counts, and sentenced to 262 months with a $400 criminal penalty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady disclosure delay and prejudice | Hogan argues delayed disclosure was Brady violation. | Hogan contends delay prejudiced trial and disclosure was improper. | Brady delay not prejudicial; no new trial required. |
| Admission of composite tape recordings | Composite tapes were intelligible and authentic; proper foundation lacking. | Tapes largely unintelligible; foundation for voice ID lacking; excerpts biased. | Court acted within discretion; composite tapes admissible with safeguards. |
| Use of transcripts as jury aids | Transcripts could become evidence; inaccuracies risk prejudice. | Transcripts misrepresent and impair jury understanding. | Judiciary approved transcripts with safeguards; no reversible prejudice. |
| Voice identification foundation | Voice identification on tapes was unverified. | No proper authentication of voices. | Voice identification by agent permissible; witness cross-examination available. |
Key Cases Cited
- Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (Brady standard and prejudice inquiry)
- Strickler v. Greene, 527 U.S. 263 (U.S. 1999) (materiality and due process)
- Kuehne, 547 F.3d 667 (6th Cir. 2008) (delayed disclosure not Brady unless prejudice)
- Bencs, 28 F.3d 555 (6th Cir. 1994) (Brady prejudice cured by opportunity to cure)
- Segines, 17 F.3d 847 (6th Cir. 1994) (composite tapes and transcript use to aid jury)
- Davis, 306 F.3d 398 (6th Cir. 2002) (prejudice considerations with delayed disclosure)
- Blackwell, 459 F.3d 739 (6th Cir. 2006) (failure to exploit remedies negates Brady violation)
- Cooper, 868 F.2d 1505 (6th Cir. 1989) (voice identification admissible when witness familiarizes later)
- Hogan, No. 06-0010 (E.D. Tenn. 2008) (E.D. Tenn. 2008) (magistrate ruling on transcript use for recordings)