11-3942-cr

United States v. Polanco

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

31st day of January, two thousand thirteen,

Present: RALPH K. WINTER,

ROSEMARY S. POOLER,

DENNY CHIN,

Circuit Judges.

_____________________________________________________

UNITED STATES OF AMERICA,

Appellee,

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 -v- 11-3942-cr

GERMAN DARIO POLANCO, ALSO KNOWN AS EL NEGRO,

Defendant-Appellant.

_____________________________________________________

Appearing for Appellee: Robert L. Capers, (David C. James, Licha M. Nyiendo, on the

brief), Assistant United States Attorneys, for Loretta Lynch,

United States Attorney for the Eastern District of New York, NY. 

 

Appearing for Appellant: Kenneth M. Tuccillo, Hastings on Hudson, NY.

Appeal from a judgment of the United States District Court for the Eastern District of

New York (Block, J.).

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The clerk should remove “plaintiff” from the caption.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. 

Defendant-appellant German Polanco (“Polanco”) appeals from the judgment of the

district court entered September 26, 2011 convicting him of violating 21 U.S.C. § 848(e)(i)(A)

and 18 U.S.C. § 924(j)(i) and sentencing him to life imprisonment. Polanco maintains that his

conviction should be vacated based on the government’s violation of appellant’s rights under

Brady v. Maryland, 373 U.S. 83 (1963), and his right to due process. We assume the parties’

familiarity with the underlying facts, procedural history, and specification of issues for review.

Under Brady, “‘the suppression by the prosecution of evidence . . . violates due process’”

if the evidence is favorable to the accused, the evidence was willfully or inadvertently

suppressed by the prosecution, and the suppression results in prejudice.” United States v.

Douglas, 525 F.3d 225, 244–45 (2d Cir. 2008) (quoting Brady, 373 U.S. at 87). In addition the

evidence must be material (for example, it may lead to admissible evidence), and disclosed in

“sufficient time” to “afford the defense an opportunity for use.” Douglas, 525 F.3d at 245

(internal citations and quotations omitted). However, “[u]nless there is a reasonable probability

that earlier disclosure of the evidence would have produced a different result at trial,” Brady is

not violated. In re United States (Coopa), 267 F.3d 132, 144 (2d Cir. 2001). 

Here, Polanco’s Brady claims fail. Defendant’s Brady challenge is based on a number of

statements made by five government informants from the “Pier Pressure” investigation.

Analyzing these exact same statements, the district court rejected the Brady claim of Polanco’s

co-conspirators, Miguel Santos and Luis Rodriguez, and this Court affirmed. See United States

v. Santos, No. CR–01–537, 2010 WL 2985913, at *5–9 (E.D.N.Y. July 27, 2010), aff'd United

States v. Santos, No. 10–3218–cr, 486 F. App’x 133, 134-36 (2d Cir. June 19, 2012) (summary

order); United States v. Rodriguez, Nos. 10-2840, 10-3104, 2012 WL 5870747 (2d Cir. Nov. 21,

2012) (summary order). In our view, the government correctly argues in this case, as to the

exact same evidence, even if the informants’ statements were suppressed, that suppression would

not have violated Brady because the statements would have been inadmissible at trial, or “could

[not] possibly lead to admissible evidence. They [were] all hearsay or speculation.” Santos,

2010 WL 2985913, at *6.

In addition, Polanco claims the district court erred in denying his motion for a new trial

pursuant to Fed. R. Crim. P. 33 based upon alleged prosecutorial misconduct. Defendant claims

misconduct because the exculpatory witness was first deported and then intimidated by the

government in an interview subsequent to which the witness changed his testimony. “It is

elementary that criminal defendants have a right to establish a defense by presenting witnesses.” 

See United States v. Williams, 205 F.3d 23, 29 (2d Cir. 2000) (citing Webb v. Texas, 409 U.S. 95,

98 (1972)). “Relying on this principle, courts have held that judicial or prosecutorial

intimidation that dissuades a potential defense witness from testifying for the defense can, under

certain circumstances, violate the defendant’s right to present a defense” if amounting to bad

faith. Williams, 205 F.3d at 30. However, in this case, the government’s engagement with the

witness did not amount to bad faith. Courts find no bad faith where government interaction with

the witness is to promote countervailing public interests. Buie v. Sullivan, 923 F.2d 10, 11 (2d

Cir. 1990). For example, a prosecutor does not engage in misconduct merely by interviewing a

potential defense witness, see United States v. Simmons, 670 F.2d 365, 371 (D.C. Cir. 1982), nor

by warning a defense witness of the consequences of committing perjury, see United States v.

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Thompson, 130 F.3d 676, 687 (5th Cir. 1997). Therefore, we find no abuse of discretion in the

court’s denial of the motion where (1) the witness was deported after being convicted of a

separate narcotics offense; (2) the government had a legitimate and compelling reason to

interview the witness who voluntarily agreed to be interviewed; and (3) there is no indication

that the government threatened the witness having only warned him of the consequences of

perjury. The government was also actively engaged in bringing the witness back to the United

States to testify on Polanco’s behalf. Moreover, the witness had an opportunity to consult with

his own appointed counsel and was then interviewed by defense counsel when he was brought to

court. Therefore absent a showing of bad faith defendant’s due process claim fails. 

We find the Appellant’s remaining arguments to be without merit. Accordingly, the

judgment of the district court hereby is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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