United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
J. MICHAEL SEABRIGHT, District Judge.
On December 10, 2014, a jury trial commenced against Defendant James Tagupa ("Defendant") on two counts of the First Superceding Indictment ("FSI") including: (1) conspiring to possess with intent to distribute and to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A) (Count 1); and (2) possession with intent to distribute 50 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count 2). On December 18, 2014, the jury returned verdicts of guilty on both counts, Doc. No. 201, and Defendant is currently awaiting sentencing.
Defendant now moves for a new trial, claiming that the government failed to disclose material evidence to the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). Based on the following, the court finds that the evidence was not "suppressed" and therefore DENIES Defendant's Motion for a New Trial ("Motion").
A. The Trial
Trial commenced on December 10, 2014, and after four days of testimony, the jury returned a verdict against Defendant on both Counts of the FSI. The evidence presented is summarized as follows:
1. The Crux of the Case
During trial, the government presented testimony and evidence to support its contention that Defendant was involved in a conspiracy to distribute methamphetamine that spanned the islands of Molokai and Maui, with particular emphasis on the events of August 21, 2012. In support of its case, the government presented multiple tape recordings from a court-authorized wiretap on the cell phone of co-defendant Jon Hans Kaapuni, Jr. ("Kaapuni"). The government's case was premised on the theory that James Fuller ("Fuller") headed a Molokai-based conspiracy involving Kaapuni and others.
And during trial, there was no question that Defendant possessed methamphetamine on August 21, 2012, and that he drove to a dock on Maui to meet Molokai friends, Celestino Lopez ("Celistino") and Keoni Duffy ("Duffy"), to transport the methamphetamine to Molokai by boat. As the Assistant United States Attorney (AUSA) stated during his closing argument, "the million-dollar question in this case is what was Mr. Tagupa's knowledge or what knowledge did he have of the... goals of the conspiracy." Tr. 5-96. That is, Defendant does not dispute that he possessed methamphetamine and delivered it to a Maui dock for transport to Molokai - instead, he maintained throughout the trial that he did not knowingly possess the methamphetamine. In essence, he claimed that he acted as a blind and unknowing courier on behalf of his Molokai childhood friends. It is within this context that the court outlines relevant trial evidence.
2. The Government's Evidence
The Government's case centered largely on its surveillance of Defendant on August 21, 2012 and various court-authorized wiretap phone calls, primarily involving Defendant, Kaapuni, and Fuller. Prior to August 21, law enforcement agents learned from a cooperating source, Lopez, that Lopez and Duffy were scheduled to travel from Molokai to Maui by boat on August 21 to transport family members back to Molokai. Lopez told law enforcement that he "suspected" that Kaapuni was also arranging for Defendant to deliver drugs for Lopez to transport to Molokai as well. As a result of this information, Defendant was placed under surveillance on August 21.
Defendant was first observed driving to the Maui Home Depot store, where he purchased paint and a chain saw. He then drove towards Lahaina, although surveillance lost sight of Defendant near the Old Lahaina Sugar Mill (also known as the "Pioneer Mill") for approximately six minutes. Later, Defendant was again observed outside a Panda Express restaurant, where he was seen "fumbling with stuff" in the bed of his truck. Finally, he was observed driving to Kahana Bay, where he was met by Celestino, Duffy, Sybil Lopez (Celestino's sister), and Saturnino Lopez (Celestino's father) in a blue Toyota truck driven by Sybil. The chain saw and paint were then transferred from Defendant's truck bed to the blue truck. Some time after Defendant left the area, Maui Police Department officers made a traffic stop on Sybil Lopez' blue truck. Approximately 443 grams of methamphetamine was seized from inside an iced tea container, that was wrapped inside two plastic bags and placed inside the chain saw box.
3. Defendant's Evidence
Defendant testified that prior to August 21, Kaapuni asked Defendant to purchase paint, and then provide the paint to Celestino Lopez and Duffy to transport from Maui to Molokai. He further testified that on August 21, Kaapuni requested that he also purchase a chain saw. During this same telephone call (a landline call, not recorded on the wiretap), Kaapuni "asked me if I could meet his friend Des in Lahaina at the... old sugar mill in Lahania. And if I could pick that item up for him and that it was for his house, and then send it back with [Celesitino] and Duffy." Tr. 5:32. Defendant explained that Kaapuni did not tell him what the "item" was, only stating that it was for Kaapuni's house. Id.
Defendant then explained that on August 21, he first purchased paint and the chain saw at Home Depot. Next, he drove to the Old Lahaina Sugar Mill where Des gave him a brown Safeway paper bag containing an iced tea carton that had been taped shut. Tr. 5:36-38. Defendant testified that per Kaapuni's instructions, he wrapped the iced tea carton in a plastic bag, placed the plastic bag in the chain saw box, and then taped the chain saw box. Tr. 5:38-39. Defendant further testified that at no time did he know that the iced tea carton contained drugs. Tr. 5:39. Defendant then drove to Kahana Bay, loaded the chain saw box into Sybil Lopez' truck, and left the area. Tr. 5:41.
At 2:58 pm, Duffy called Kaapuni and told him that the truck and chain saw box had been seized by the police. At 3:11 pm, Kaapuni called Defendant and stated, "Brah, you not goin even fucken believe. Call da house. Call da house." Doc. No. 247, Gov't's Opposition to Defendant's Motion, Ex. F (Wiretap Session 1884) at 2. Defendant then called Kaapuni on a landline (not recorded on the wiretap) and Kaapuni informed Defendant for the first time that the iced tea carton contained drugs. Tr. 5-45.
B. The Post-Trial Giglio Disclosures
On May 18, 2015, Defendant filed a Motion for New Trial, claiming that the government had failed to disclose to Defendant that Fuller had provided an exculpatory statement regarding Defendant's involvement in the conspiracy and events of August 21. Doc. No. 244. In part, Defendant attached an email exchange between Defendant's counsel and Fuller in which Fuller stated that he told the AUSA and FBI Special Agent Joel Rudow ("Rudow") that Defendant "did not know what was in the package and that he was just helping us getting something to [Kaapuni]." Id. at 244-3. The Government filed an Opposition, Doc. No. 247, and the court held an evidentiary hearing on July 29, 2015. Doc. No. 253. Both Fuller and Rudow testified at the evidentiary hearing. Id. 
After hearing and considering the testimony of Fuller and Rudow, the court concludes that during a March 4, 2014 debrief, Fuller informed Rudow that Fuller had spoken to Defendant on the telephone and told Defendant to go to the Old Lahaina Sugar Mill after lunch on August 21 and meet Fuller's acquaintance to obtain a package. When Rudow asked Fuller if Defendant was told the contents of the package (that is, that the package contained drugs), Fuller responded that it was Kaapuni's "deal." Rudow testified that he understood Fuller to mean that Fuller never informed Tagupa that the package would contain drugs. Thus, the Government knew, before Defendant's trial, that Fuller claimed that he had instructed Defendant to meet someone at the Old Lahaina Sugar Mill to obtain a package, but that Fuller did not tell ...