IN THE UNITED STATES DISTRICT COURT

 FOR THE MIDDLE DISTRICT OF ALABAMA

UNITED STATES OF AMERICA )

)

vs. ) CASE NUMBER: 2:06-CR-00202-WKW

)

EUGENE L. CLECKLER )

 DEFENDANT’S RESPONSE FOR NEW TRIAL

Eugene L. Clecker, hereby moves this honorable Court to vacate said

judgment of conviction and pursuant to Fed. R. Crim. P. 33(b)(2), in the interests

of justice, order a new trial. In support of this motion, the following is shown to

the Court in supplement: 

The government, in its response to the defendant’s motion for new trial, is

asking the Court to disregard the government’s strict obligations under the Court’s

standing discovery order. The government failed to disclose immunity

understandings with both key witnesses/coconspirators, Cleveland Brown and

Tanya Morris. 

Early in the discovery process, the defendant recognized that Brown and

Morris would have relied on assurances from the government in order to avoid selfincrimination. When no written agreements were received, the defense asked the

prosecutor specifically about the understandings, including unwritten agreements

or proffer letters. The prosecutor denied all witness agreement discussions. The

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government represented that it had fully complied with the discovery obligations. 

A defense request for information may result in constructive knowledge of it

on the part of the prosecution. United States v. Veksler, 62 F3d 544, 550 (3 Cir. rd

1995). When a prosecutor receives a specific and relevant request, the failure to

make any response is seldom, if ever, excusable. United States v. Agurs, 427 U.S.

97, 106 (1976).

Tanya Morris testified at trial that she asked the agents about her exposure at

the very onset of her discussions and was told by the agents that she would not be

prosecuted. Brown testified after Morris at trial and curiously relied on a fading

memory but stated he was told he would be only a “witness” in the case. 

There is no other evidence about the agreements before the Court. In proffer

representations to the Court however, the prosecutor denied promises of immunity.

The taint is no less if the agents rather than the prosecutor were guilty of the nondisclosure. Barbee v. Warden, 331 F2d 842, 846 (4 Cir. 1984). The prosecutor th

had a duty to inquire. Kyles v. Whitley, 514 U.S. 419, 437 (1995).

Brown and Morris testified that they were interviewed repeatedly by the

government in preparation for their trial testimony. The defendants had no access

whatsoever to Brown and Morris prior to cross-examination at trial. And after

trial, the government is inferring that the immunity discussions must have been a

misunderstanding, that the conspicuous subject never came up, and Brown and

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Morris could have very well been prosecuted. 

The government is asking the Court to disregard the standing discovery

order and its obligations under Giglio in favor of the conviction at trial, that no

prejudice to the defendant occurred. Notwithstanding the fact that the witness

motivation to testify was a critical factor in examining the credibility of both

Brown and Morris, the prosecutor had a standing duty to ask the agents and the

government had a duty to disclose all understandings, especially involving such

key witnesses. 

Wherefore, premises considered, Defendant Eugene Cleckler respectfully

moves this Court to order a new trial of this cause. 

Respectfully submitted, this the 14 day of February, 2007. th

s/ Ronald R. Brunson 

RONALD R. BRUNSON 1696

2126 Morris Avenue

Birmingham, Alabama 35203

(205) 252-2100

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CERTIFICATE OF SERVICE

I hereby certify that on February 14th, 2007, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which will send

notification of such filing to the following:

Andrew O. Schiff, Esq., Assistant U.S. Attorney

201 One Court Square

Post Office Box 197

Montgomery, AL 36101-0197

Andrew.schiff@usdoj.gov, Debbie.shaw@usdoj.gov

s/ Ronald R. Brunson 

 RONALD R. BRUNSON

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