United States v. Lorenzo Osorio (1991)

Second, “Brady suppression occurs when the government fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.’” Youngblood v. West Virginia, 547 U.S. 867 , 869–70 (2006) (per curiam) (quoting Kyles, 514 U.S. at 438 ); Kyles, 514 U.S. at 437 (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”); see also D’Ambrosio v.…

Cf. Kyles v. Whitley, 514 U.S. 419, 437 , 115 S.Ct. 1555 , 131 L.Ed.2d 490 (1995) (holding that "prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case " (emphasis added)); Osorio, 929 F.2d at 761 (applying Brady to evidence of a witness's drug dealing that was not known to prosecutor, but known to others in his office, and holding that the “prosecutor charged with discovery obligations cannot avoid finding …

Cf. Kyles v. Whitley, 514 U.S. 419, 437 (1995) (holding that "prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case" (emphasis added)); Osorio, 929 F.2d at 761 (applying Brady to evidence of a witness's drug dealing that was not known to prosecutor, but known to others in his office, and holding that the "prosecutor charged with discovery obligations cannot avoid finding out what 'the government' knows, sim…

As Josleyn eschewed ______ _____ various alternative remedies more consonant with the government's culpability and any prejudice to the defense, see, e.g., Osorio, ___ ____ ______ 929 F.2d at 762-63 (noting, as alternative remedies, recalling witness for additional cross-examination, affording defense greater leeway with witnesses, and instructing jury that govern- ment failed to meet discovery obligations), we find no abuse of discretion in refusing to dismiss the indictmen…

He urges that because "[i]nformation useful to impeach prosecution witnesses is material," the district court should have assessed "whether the defendant was denied the opportunity to use - 23 - the disclosed evidence effectively." See United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991).

See United States v. Jennings, 960 F.2d 1488, 1491 (9th Cir. 1992) ("Absent a violation of a recognized right under the Constitution, a statute, or a procedural rule, a district court is not entitled to exclude evidence as a sanction against government practices disapproved of by the court."); United States v. Osorio, 929 F.2d 753, 763 (1st Cir. 1991) ("Without a nexus between improper prosecutorial practice and prejudice to the defendant, misconduct must be characterized as…

See Price, 566 F.3d at 908–09; Carriger, 132 F.3d at 479–80; United States v. Perdomo, 929 F.2d 967, 971 (3d Cir. 1991); United States v. Osorio, 929 F.2d 753, 762 (1st Cir. 1991).

For example, one way of evaluating potential prejudice from delayed disclosure is to “evaluate how well defense counsel was able to use the information despite the delay.” United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991).

Disclosure abuses are a recurring problem in criminal cases, see United States v. Osorio, 929 F.2d 753, 755 (1st Cir.1991), and the BPD’s failure to disclose the sisters’ statements is wholly unexplained.

“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.” United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991) (citing United States v. Ingraldi, 793 F.2d 408, 413 (1st Cir.1986)).

In such a circumstance, we conclude that the timing of the disclosure did not prejudice [the defendant].”); United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991) (“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.”).

Appellants failed to demonstrate that any of them were less culpable than the others, United States v. Brandon, 17 F.3d 409, 460 (1st Cir.1994) (affirming denial of minor participant adjustment where defendant was less culpable than the major participants, but not less culpable than most of the other defendants), or that their participation was less than the average participation in the venture, United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991).

Appellants failed to demonstrate that any of them were less culpable than the others, United States v. Brandon, 17 F.3d 409, 460 (1st Cir.1994) (affirming denial of minor participant adjustment where defendant was less culpable than the major participants, but not less culpable than most of the other defendants), or that their participation was less than the average participation in the venture, United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991).

See generally United States v. Bender, 304 F.3d 161, 164 (1st Cir.2002), cert. denied, 537 U.S. 1167 , 123 S.Ct. 980 , 154 L.Ed.2d 906 (2003); United States v. Osorio, 929 F.2d 753, 760-62 (1st Cir.1991).

Appellants failed to demonstrate that any of them were less culpable than the others, United States v. Brandon, 17 F.3d 409, 460 (1st Cir.1994) (affirming denial of minor participant adjustment where defendant was less culpable than the major participants, but not less culpable than most of the other defendants), or that their participation was less than the average participation in the venture, United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991).

In such a circumstance, we conclude that the timing of the disclosure did not prejudice [the defendant].”), cert. denied, 469 U.S. 1021 (1984); United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991) (“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.”).

In such a circumstance, we conclude that the timing of the disclosure did not prejudice [the defendant].”), cert. denied, 469 U.S. 1021 , 105 S.Ct. 440 , 83 L.Ed.2d 366 (1984); United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991) (“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.”).

See United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993) (no confrontation violation where limitations on cross-examination “were made af *807 ter the questioning became redundant and argumentative and most times only peripherally relevant”); United States v. Carter, 973 F.2d 1509, 1516-17 (10th Cir.1992) (no abuse of discretion where cross-examination question “bordered upon being both argumentative and a comment on the evidence”); United States v. Osorio, 929 F.2d 75…

However, when viewed "against the background of the case as a whole," id. at 1196 — a seven-month trial of ten defendants on charges stemming from a large and lengthy drug-trafficking conspiracy, during which the trial judge diligently addressed and effectively corrected for errors as they were brought to her attention — the fairness of the trial was not compromised. 81 Finally, we note that although "[w]hen confronted with extreme misconduct and prejudice" we may "invoke [o…

Finally, we note that although “[w]hen confronted with extreme misconduct and prejudice” we may “invoke [our] supervisory powers to remedy the violation of a recognized right, preserve judicial integri ty, and deter illegal conduct” by ordering a new trial, we cannot do so “[without a nexus between improper prosecutorial practice and prejudice to the defendant.” United States v. Osorio, 929 F.2d 753, 768 (1st Cir.1991); see also Bank of Nova Scotia v. United States, 487 U.S.…

Finally, we note that although "[w]hen confronted with extreme misconduct and prejudice" we may "invoke [our] supervisory powers to remedy the violation of a recognized right, preserve judicial integrity, and deter illegal conduct" by ordering a new trial, we cannot do so "[w]ithout a nexus between improper prosecutorial practice and prejudice to the defendant." United States v. Osorio , 929 F.2d 753, 763 (1st Cir. 1991); see also Bank of Nova Scotia v. United States , 487 U…

See United States v. Brandon, 17 F.3d 409, 460 (1st Cir.1994) (affirming denial of § 3B1.2 adjustment where defendant was less culpable than major participants, but “not less culpable than most of the other defendants let alone substantially less culpable than an average defendant”); United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991) (denying mitigating role adjustment where defendant’s participation not less than average participation in crime).

See United States v. Brandon , 17 F.3d 409, 460 (1st Cir. 1994) (affirming denial of § 3B1.2 adjustment where defendant was less culpable than major participants, but "not less culpable than most of the other defendants let alone substantially less culpable than an average defendant"); United States v. Osorio , 929 F.2d 753, 764 (1st Cir. 1991) (denying mitigating role adjustment where defendant's participation not less than average participation in crime).

See United States v. Brandon, 17 F.3d 409, 460 (1st Cir.1994) (affirming denial of § 3B1.2 adjustment where defendant was less culpable than major participants, but not less culpable than most of defendants and not substantially less culpable than average defendant); United States v. Osorio, 929 F.2d 753, 764 (1st Cir.1991) (denying mitigating role adjustment where defendant’s participation was not less than average participation in crime).

And in United States v. Osorio, 929 F.2d 753, 762 (1st Cir.1991), the First Circuit held that a prosecutor is duty bound to demand compliance with disclosure responsibilities by all relevant dimensions of the government.

“Generally, [the court has] viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.” United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991).

"Generally . . . the failure to ask for a continuance [is] an indication that defense counsel was him- self satisfied he had sufficient opportunity to use the evidence advan- tageously." United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991).

"Generally ... the failure to ask for a continuance [is] an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously." United States v. Osorio, 929 F.2d 753, 758 (1st Cir.1991).

Supervisory Power. _________________ In a last-ditch effort to right a sinking ship, the appellants embrace a dictum contained in United States v. Osorio, _____________ ______ 929 F.2d 753, 763 (1st Cir. 1991) ("When confronted with extreme misconduct and prejudice as a result of delayed disclosure, this court will consider invoking its supervisory powers to secure enforcement of better prosecutorial practice and reprimand of those who fail to observe it.") (citation and int…

See United States v. Osorio, 929 F.2d 753 , 758 ___ _____________ ______ (1st Cir. 1988) ("Generally we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.").

See United States v. Osorio, 929 F.2d 753, 758 (1st Cir. ___ _____________ ______ 1991) ("Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied [that] he had sufficient opportunity to use the evi- dence advantageously") (citing cases).

Cf. Kyles, 514 U.S. at 437 , 115 S.Ct. 1555 ; United States v. Morris, 80 F.3d 1151, 1169 (7th Cir.1996) (finding it “improper for a prosecutor’s office to remain ignorant about certain aspects of a case or to compartmentalize information so that only investigating officers, and not the prosecutors themselves, would be aware of it”); Josleyn, 206 F.3d at 153 n. 8 (noting in refusing to attribute material to the Government that was in the possession of a private entity that t…

If there has been a “consistent pattern and practice of negligent nondisclosure, resulting in actual prejudice to defendants, the court might conclude that government misconduct has reached a level warranting the extraordinary relief of dismissal.” Osorio, 929 F.2d at 763 (quotation omitted).

(U.S. v. Mathur (1st Cir. 2010) 624 F.3d 498, 506 ; U.S. v. O’Hara (7th Cir. 2002) 301 F.3d 563, 569 ; see U.S. v. Finley (9th Cir. 2002) 301 F.3d 1000, 1018 .) “A continuance affords time to study the newly emergent information, consider its possible ramifications, change trial strategy (if necessary), assess any potential prejudice, and determine how best to use the information.” (U.S. v. Sepulveda (1st Cir. 1993) 15 F.3d 1161 , 1178.) “As a general 25. rule, a defendant w…

See Gray, 518 U.S. at 169 (noting that defense counsel did not seek a continuance when faced with unexpected evidence); United States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991) (“Generally, we have viewed the failure to ask for a continuance as an indication that defense counsel was himself satisfied he had sufficient opportunity to use the evidence advantageously.”); see also United States v. Mathur, 624 F.3d 498, 506 (1st Cir. 2010) (“The customary remedy for a Brady vio…

Other Federal courts agree that a prosecutor cannot avoid learning what other members of the prosecution team know "simply by declining to make reasonable inquiry of those in a position to have relevant knowledge." United States v. Osorio, 929 F.2d 753, 761 (1st Cir. 1991).

United States v. Quinn, 537 F.Supp.2d 99 (D.D.C.2008); United States v. Brooks, 966 F.2d 1500, 1502-03 (D.C.Cir.1992); United States v. Osorio, 929 F.2d 753, 761 (1st Cir.1991).

This court thus “has broad discretion in handling non-compliance” with criminal discovery obligations, with the remedy to “vary in proportion to the seriousness of the violation and the amount of prejudice claimed by the defendant.” United States v. Osorio, 929 F.2d 753, 762 (1st Cir.1991). 2 Here, the violation was not at all serious: defense counsel timely received all of the discovery required by Rule 16(a)(1)(G) — including Madama’s opinions and the bases and reasons for…

See, e.g., Crivens v. Roth, 172 F.3d 991, 997-998 (7th Cir.1999) (holding that the prosecutor had a duty to locate the criminal record of a key witness and was not excused from doing so because the witness used an alias); United States v. Brooks, 966 F.2d 1500, 1502-03 (D.C.Cir.1992) (holding that the prosecutor had a duty to search police records for impeachment material about a key witness following a request by defense counsel); United States v. Osorio, 929 F.2d 753, 761 …

Bank of Nova Scotia v. United States, 487 U.S. 250, 254 , 108 S.Ct. 2369 , 101 L.Ed.2d 228 (1988) (requiring that “errors in grand jury proceedings ... prejudice the defendants.”) Finally, on the merits as to a Grand Jury determination of probable cause, the Magistrate Judge correctly emphasizes that the supervisory powers of the District Court relating to errors occurring at the Grand Jury is not to be taken lightly, even to enforce better prosecutorial practice, but said a…

United States v. Brooks, 966 F.2d 1500, 1502-03 (D.C.Cir.1992) (prosecutor had duty to search police records for impeachment material about key police officer witness after the officer’s shooting death under unusual circumstances prior to retrial of the case); United States v. Osorio, 929 F.2d 753, 761 (1st Cir.1991) (“prosecutor charged with discovery obligations cannot avoid finding out what ‘the government’ knows, simply by declining to make reasonable inquiry of those in…

For example, in 1991, in a case of “astounding negligence,” the First Circuit described “the recurring problem of belated government compliance with its duty to provide timely disclosure *169 of exculpatory evidence.” United States v. Osorio, 929 F.2d 753, 755 (1st Cir.1991).

Therefore, this ease is analogous to United States v. Osorio, which the First Circuit in 1991 characterized as involving “the recurring problem of belated government compliance with its duty to provide timely disclosure of exculpatory evidence,” caused in Osorio by “astounding negligence.” 929 F.2d 753, 755 (1991).

United States v. Osorio, 929 F.2d 753, 757 (1st Cir.1991) (citation omitted).

In United States v. Osorio, 929 F.2d 753, 757 (1st Cir.1991), the court held that in cases involving delayed disclosures, “the critical inquiry is ... whether the tardiness prevented defense counsel from employing the material to good effect.” Id.; see also, Ingraldi, 793 F.2d at 412 (the effect of a delayed disclosure “depends on the extent the defendant actually managed to use the information in the files despite the delay.”).

Osorio, 929 F.2d 753, 757 (1st Cir. 1991), the court held that in cases involving delayed disclosures, “the critical inquiry is . . . whether the tardiness prevented defense counsel from employing the material to good effect.” Id.; see also, Ingraldi, 793 F.2d at 412 (the effect of a delayed disclosure “depends on the extent the defendant actually managed to use the information in the files despite the delay.”).

The First Circuit has observed that, in delayed disclosure cases, “the critical inquiry is ... whether the tardiness prevented defense counsel from employing the material to good effect.” United States v. Osorio, 929 F.2d 753, 757 (1st Cir.1991) (citing United States v. Devin, 918 F.2d 280, 290 (1st Cir.1990)).

The court has the “supervisory power to secure enforcement of ‘better prosecutorial practice and [the power to] reprimand ... those who fail to observe it.’ ” United States v. Santana, 6 F.3d 1, 10 (1st Cir.1993) (quoting United States v. Osorio, 929 F.2d 753, 763 (1st Cir.1991)).

Cir. 1992) 966 F.2d 1500, 1503 [ 296 App.D.C. 219 ] (Brooks) (duty to investigate based on “close working relationship” between police and United States Attorney); U.S. v. Osorio (1st Cir. 1991) 929 F.2d 753, 761 (Osorio) (“The prosecutor charged with discovery obligations cannot avoid finding out what ‘the government’ knows, simply by declining to make reasonable inquiry of those in a position to have relevant knowledge.”); Carey v. Duckworth (7th Cir. 1984) 738 F.2d 875, 8…

No. 90-10269-Y, order from the bench (Transcript of October 21, 1991) at 78-105 — are driven by the decisions of the First Circuit in United States v. Devin, 918 F.2d 280, 289-92 (1st Cir.1990) and United States v. Osorio, 929 F.2d 753, 757-63 (1st Cir.1991), decisions which are binding on this Court but which have only persuasive force in the courts of the Commonwealth.