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2ND CIRCUIT FINDS THAT U.S. WITHHELD EVIDENCE NEW YORK — A federal appeals court on Tuesday granted a convicted drug smuggler a new trial, saying a prosecutor had failed to reveal evidence that could have aided the man’s defense. Though prosecutors argued that their failure to disclose was “tactical” and not a violation of Brady v. Maryland, 373 U.S. 83, the Second Circuit U.S. Court of Appeals said the government’s reasoning was “totally unacceptable.” Writing for the court in United States v. Rivas, 03-1649, Judge Jon Newman expressed “dismay” at a prosecutor’s failure to correct false testimony by the chief witness against the defendant, Edgar Rivas. Rivas’ attorney learned about the testimony during a post-trial conversation with a translator who worked with the government. Rivas had been a seaman on a ship sailing between Venezuela and Nova Scotia, and then to Newburgh, N.Y. Rivas’ cousin, Ruddy Garcia, and another man, Genebraldo Pulgar-Sanchez, also served as seamen. Pulgar had told the ship’s captain that Rivas and Garcia were hiding cocaine in the room they shared, and the tip was passed to customs agents. When agents initially searched the room after the ship arrived in Newburgh, N.Y., they found nothing. They then questioned Pulgar, who told them the drugs were hidden in the room’s ceiling and beneath the sink. The agents found the drugs the next day and arrested Garcia and Rivas. Rivas admitted he knew that something was in the cabin but denied knowing what it was. He said the drugs must have belonged to his former roommate, Pulgar. When agents questioned Pulgar about the drugs, he initially denied participating in drug trafficking. He later admitted, however, that he had helped Garcia smuggle drugs on previous voyages. He was convicted of making false statements and sentenced to six months in prison. — New York Law Journal

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