Whether the Fifth or Sixth Amendments, or Rules 43 and 44 of the Federal Rules of Criminal Procedure, are violated

QUESTION PRESENTED A. Whether the Fifth or Sixth Amendments, or Rules 43 and 44 of the Federal Rules of Criminal Procedure, are violated when neither a criminal defendant nor his counsel is present at the hearing at which prejudicial evidence is admitted. The District Court Judge adopted as the “law of the case” an evidentiary ruling from a separate trial, United States v. Bailey, and decided by a different judge, the result of which allowed the publication to the jury of a murder video whose potential for unfair prejudice was substantially outweighed by any probative value. Compounding the clear error of invoking the Law of the Case doctrine is that neither Petitioner nor his counsel was present at the Bailey trial at which the evidentiary ruling was made, meaning Petitioner was denied his Sixth Amendment right to the assistance of Counsel, his Fifth Amendment right to Due Process of Law, his right under Fed. R. Crim. P. 43 to be present at all critical stages of his trial, and his right under Fed. R. Crim. P. 44 to have his appointed counsel represent him at every stage of the proceedings. The Third Circuit denied Petitioner’s appeal, failing to recognize how the unique circumstances of the misapplication of the Law of the Case doctrine here offends the Constitution and the Federal Rules of Criminal Procedure promulgated by this Court. The Third Circuit iii stated that its case law “does not support the claim” of constitutional harm. While it is true that the Third Circuit’s jurisprudence holds that Rule 43 does not generally require a criminal defendant’s presence at motion hearings, the Third Circuit ignored the fact that its jurisprudence is bereft of instances in which not only was a defendant not present at the motion hearing but neither was defendant’s counsel. Additionally, the Third Circuit’s statement that Petitioner “had access to procedures available in his trial to contest the video’s admission” fails to recognize that the trial court’s misapplication of the Law of the Case doctrine denied Petitioner the benefit of those “procedures” because the District Court expressly stated that it did not have the power to revisit the prior court’s admissibility ruling. Reversal on Due Process grounds is required not only by the exceptional procedural fact of one court adopting an evidentiary ruling from a separate trial with a different judge and different defendants, but more importantly also is commanded by adherence to the text, purpose and interplay between the Fifth and Sixth Amendments, as well as between Rules 43 and 44 of the Federal Rules of Criminal Procedure. At the heart of that interplay is the basic idea that every defendant is innocent until proven guilty and is entitled to make a fullthroated defense either personally or with the assistance of counsel. iv With regard to a video that the Third Circuit deemed extremely prejudicial, Petitioner here was denied those rights. QUESTION PRESENTED B. Whether the Government’s suppression of information that included co-conspirators’ statements impeaching a cooperating witness and casting doubt on the Government’s theory that a murder was in furtherance of the conspiracy violated petitioners’ due process rights under Brady v. Maryland, 373 U.S. 83 (1963). This case involves the Government’s withholding of evidence in the trial of one of Atlantic City, New Jersey’s larger drug-trafficking organizations. Nearly all of the 125 counts against Petitioner focused on the trafficking of heroin, but Petitioner also was charged with possession, use and discharge of a firearm related to or in furtherance of the conspiracy, contra § 924(c). This charge stemmed from the murder of Tyquinn James, a killing caught on surveillance video from stores near the slaying. Yet no physical evidence directly tied Petitioner to the crime. The Government at trial relied on a cooperating co-defendant with serious credibility problems, who was the sole witness to testify to a conspiracy-related re