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Defendant Donald Hill files this Motion to Dismiss Count 15 Charges Based on
follows:
For almost three years, the Government quietly sat on key exculpatory evidence showing
that Mr. Hill was not involved in a conspiracy to commit extortion with Kevin Dean and John
Lewis. During this same period, it returned a highly publicized indictment against Mr. Hill
accusing him of the conspiracy, received guilty pleas from Lewis and Dean purporting to name
Mr. Hill as a “co-conspirator” in an alleged scheme, and issued press releases announcing
But last week, Mr. Hill discovered remarkable (though unsurprising) exculpatory
evidence demonstrating that Mr. Hill was not involved in the conspiracy at all. Lewis had—
from the beginning—maintained that Hill was not involved with any extortion scheme, admitted
1
See Exhibit A.
1
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that he invoked Hill’s name in conversations with Bill Fisher without permission (in order to
profit from the money Fisher was offering while undercover for the Government), and made
clear that Hill never asked for or received any money. Mr. Hill this week discovered similar
statements by Dean, who admitted that they never intended to pay money to Hill, that Hill never
asked for it, and that Dean and Lewis used to laugh together about the fact that they could keep
Fisher’s money and get the deal done without paying anyone.2
Despite knowing about these statements, however, the Government devised carefully
worded plea agreements with Dean and Lewis that conveyed the impression that Hill was in fact
involved with the scheme, even though the details of the factual resume never said that he was.3
Apparently, Dean and Lewis felt pressure to enter these plea agreements in order to avoid further
prosecution by the Government, but they were unable to provide details of Mr. Hill’s
involvement with the “conspiracy” because there were none to provide. This did not deter the
Government from issuing press releases that linked Mr. Hill to Dean and Lewis, however.4
Mr. Hill did not discover this evidence until recently because the Government produced it
10 days before trial, only after being pressed by the Court and parties, and without even telling
the parties that it existed. The parties had to find it themselves after sifting through mountains of
other documents.
Accordingly, the Government’s charges against Hill relating to any conspiracy involving
2
See Exhibit B (filed under seal).
3
See Exhibit C (factual resumes). The factual resumes merely begin and end with conclusory statements that Hill
was a “co-conspirator,” without any substantiating facts.
4
See Exhibit A.
2
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II. ARGUMENT
The Supreme Court has long held that the Government is obligated to disclose material
favorable evidence to the accused. See Brady v. State of Maryland, 373 U.S. 83, 87 (1963)
(“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.”). And statements by an alleged “co-conspirator”
indicating that Mr. Hill had no part in any conspiracy are clearly material to the defense. The
A district court has broad discretion to fashion an appropriate sanction for a Brady
violation that is discovered either pre-trial or during trial. See United States v. Garrett, 238 F.3d
293, 297-298 (5th Cir. 2000). In exercising this discretion, district courts “should consider the
following factors: 1) the reasons why disclosure was not made; 2) the amount of prejudice to the
opposing party; 3) the feasibility of curing such prejudice with a continuance of the trial; and 4)
any other relevant circumstances.” Id. (citing United States v. Katz, 178 F.3d 368, 371 (5th Cir.
1999)). This is the same framework of analysis used to redress non-Brady discovery violations
based on late disclosure of evidence. See id. (fashioning remedy for Brady violation based on
the factors generally used for “discovery violations,” and citing Katz, a non-Brady case). Under
this framework, the Government’s late disclosure of evidence deserves a remedy even in cases
where no prejudice has been suffered by the Defendants.5 See United States v. Campagnuolo,
592 F.2d 852, 858 (5th Cir. 1979) (“We find no abuse of discretion where, as here, a district
judge for prophylactic purposes suppresses evidence that, under a valid discovery order, the
5
There is certainly prejudice to Mr. Hill’s reputation here, and he has also been prejudiced by having to prepare a
defense against these false charges.
3
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government should have disclosed earlier, even if the nondisclosure did not prejudice the
defendants.”).
The Government in our case has possessed this exculpatory evidence for three years. Cf.
id. (suppressing co-conspirator statement that had been in prosecutor’s possession for three years
but not disclosed until eve of trial, even though defendant had suffered no prejudice). It has
represented to the defendants and to the public that Lewis and Dean had implicated Mr. Hill as a
co-conspirator, despite having full knowledge that its assertions were dubious at best. Moreover,
were it not for Mr. Hill’s diligence in sifting through the mountains of evidence produced less
than two weeks before trial, this key exculpatory evidence may never have surfaced.
The Court should therefore fashion a prophylactic remedy that addresses the
Government’s violations and deters future misconduct. To this end, Mr. Hill requests that the
Court enter an order dismissing the Government’s charges against Hill relating to any conspiracy
III.
For the foregoing reasons, Mr. Hill requests that the Court cure the Government’s Brady
4
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CERTIFICATE OF SERVICE
I hereby certify that on the 26th day of June, 2009, I electronically submitted the
foregoing Notice with the clerk of the Court for the United States District Court, Northern
District of Texas, Dallas Division, as well as to all counsel of record, via the electronic case files
5
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EXHIBIT B
FILED UNDER SEAL