Maharaj v. Florida Department of Corrections

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case Number: 17-21965-CIV-MARTINEZ-OTAZO-REYES

KRISHNA MAHARAJ,

Petitioner,

vs.

JULIE JONES, et al.,

Respondents.

_____________________________________/

ORDER ON REPORT AND RECOMMENDATION

THIS CAUSE is before the Court upon the Report and Recommendation (“R&R”) of

Magistrate Judge Otazo-Reyes, recommending that Petitioner’s § 2254 habeas corpus petition be

denied. [ECF No. 127]. Section 636(b)(1) of the Federal Magistrate Act requires a de novo review

of those parts of the R&R to which an objection is made. 28 U.S.C. § 636(b)(1); United States v.

Raddatz, 447 U.S. 667, 673 (1980).

Having conducted a de novo review of the entire record, including the issues presented in

Petitioner’s Objections, [ECF No. 128], Magistrate Judge Otazo-Reyes’s R&R is affirmed and

adopted. The state court’s disposition of Petitioner’s claims was neither contrary to nor an

unreasonable application of clearly established federal law; nor was its decision based on an

unreasonable determination of the facts in light of the evidence. The new evidence provided by

Petitioner is insufficient to overcome this finding.

I. Background

This case has garnered over thirty years of litigation. The facts of this case have been laid

out at length during the course of those thirty years—at both the state and federal level. At issue

in the instant Petition is whether Petitioner’s newly discovered evidence—cumulated with the facts

raised in his previous habeas claims—is sufficient to warrant relief under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”).

On October 21, 1987, Petitioner Krishna Maharaj was convicted of two counts of first-

degree murder, two counts of kidnaping, and the unlawful possession of a firearm. The convictions

arose from the shooting deaths of Derrick and Duane Moo Young, who were found at the Dupont

Plaza Hotel in Miami, Florida on October 16, 1986. According to the testimony presented at trial,

Maharaj owned and operated the Caribbean Times, a newspaper that catered to the West Indian

Community. The Caribbean Echo, another local newspaper, was owned by Eslee Carberry.

Maharaj approached Carberry to pitch a story about how his neighbor Derrick Moo Young had

stolen money from him. After providing Carberry documents that purported to corroborate his

accusations, Maharaj paid the Caribbean Echo a $400 “sponsorship fee” to publish the article.

After the article was published, Derrick Moo Young presented the Caribbean Echo with

his version of the story, pointing to an ongoing civil lawsuit Moo Young had filed against Maharaj.

Subsequently, the Caribbean Echo published a series of articles describing Maharaj’s alleged

involvement in an illegal scam to take millions of dollars out of Trinidad. Maharaj, however,

claimed that Moo Young was committing fraud and extortion against him and his family, including

the alleged extortion of $160,000 from Maharaj’s relatives in Trinidad.

Neville Butler, the State’s primary trial witness, was previously employed by the Echo

before writing several articles for the Caribbean Times under various pennames. Butler testified

at trial that Maharaj informed him that Carberry and Moo Young were attempting to extort money

from Maharaj’s relatives in Trinidad in exchange for suppressing additional unflattering stories.

Butler further testified that Maharaj asked him to lure Derrick Moo Young to a meeting in order

to (1) extract a confession from Moo Young that he was actually behind the extortion and bribery;

(2) require Moo Young to write two checks to repay him for the fraud; and (3) cause Butler to go

to a bank with the checks and certify them, after which Maharaj would allow Moo Young to leave.

The meeting was set for October 16, 1986, under the pretext that Moo Young, who was

involved in the import/export business, would be meeting with Eddie Dames and Prince Ellis of

the Bahamas to discuss the purchase of goods for their catering business. Butler arranged for the

meeting to be held in Dames’s room at the Dupont Plaza Hotel. Moo Young was never informed

that Maharaj would be in attendance.

When Derrick Moo Young arrived at the Dupont, he had unexpectedly brought his twenty-

three-year-old son, Duane Moo Young. When the Moo Youngs entered the room, Maharaj

emerged from behind the door with a gun in his right hand and a pillow in his left. An argument

ensued, and Maharaj shot Derrick Moo Young in the leg. Butler testified that Maharaj then

instructed him to tie the Moo Youngs up, but before he could do so, Derrick Moo Young lunged

at Maharaj, who again shot the elder Moo Young three or four more times. Maharaj then turned

his attention toward Duane Moo Young, who was loosely tied to a chair with a cord from an

immersion heater. While Maharaj questioned Duane about the money, Derrick Moo Young

managed to open the door to the hallway and attempted to crawl outside. Maharaj shot Derrick

Moo Young again and dragged him back inside the room by his ankles.

Maharaj took Duane Moo Young upstairs for further questioning, attempting to verify

what the Moo Youngs had done with the money allegedly extorted from Maharaj’s relatives in

Trinidad. Soon thereafter, a hotel security guard shouted from outside the room that he noticed

blood in the hallway and inquired whether everyone was alright. Maharaj apparently moved

toward the door and verified that things were fine. After several minutes, Maharaj poked his head

into the hallway and appeared to tell someone that everyone was fine. After Maharaj returned

upstairs to question Duane once more, Butler testified that he heard a single gunshot. Maharaj then

came downstairs alone and they both left room 1215.

Butler testified that he and Maharaj waited in the car in front of the hotel for three hours

for Dames’s return. Maharaj promised Butler that, in exchange for his silence, he would provide

Butler a job at the Caribbean Times, a down payment for Butler’s home, and a car. Once Dames

arrived, Butler exited the vehicle and left the scene. Later that day, Maharaj contacted Butler and

asked to meet at a Denny’s restaurant near the Miami Airport to coordinate their stories. Butler

testified that before meeting with Maharaj, he met with Dames and Ellis and told them what

happened. Dames and Ellis had already given statements to police investigators and encouraged

Butler to contact the police. Butler then called the lead investigator, Miami Police Detective John

Buhrmaster, and explained what had transpired. Butler and Buhrmaster arrived at the Denny’s

together, where Maharaj was arrested for the murders.

The State presented other witnesses who testified at trial to Maharaj’s motive and prior acts

that were consistent with the murders at the Dupont Plaza Hotel. For example, Tino Geddes, a

journalist at the Caribbean Echo, and Carberry, testified about Maharaj’s payment to Carberry to

publish unfavorable articles about Derrick Moo Young. Geddes also testified that Maharaj had

previously met Geddes at the Dupont Plaza Hotel with a handgun and asked Geddes to lure

Carberry and Derrick Moo Young to the hotel. According to Geddes, Maharaj purchased exotic

weapons and had attempted to harm Carberry on several occasions.

Additionally, the State presented corroborating physical evidence and testimony from hotel

staff as to the blood outside of room 1215, the “Do Not Disturb” sign that was later found with

Maharaj’s fingerprints on it, and the eleven additional fingerprints found inside the room that

matched Maharaj’s. The State also presented evidence linking Maharaj to a Smith & Wesson

model 39, nine-millimeter pistol—the type of gun a firearms expert testified was used in the Moo

Young murders.

The jury found Maharaj guilty on all counts. His convictions were affirmed, and he was

denied state post-conviction relief on the guilt phase of his case.1 Maharaj then petitioned for

federal habeas relief and was again denied in both the district court and the Eleventh Circuit Court

of Appeals. See Maharaj, v. Sec’y for Dep’t of Corrs., 432 F.3d 1292 (11th Cir. 2005).

As relevant to Maharaj’s instant successive petition, Judge Huck found in a lengthy and

comprehensive order that Maharaj’s Brady claims were insufficient to warrant habeas relief. See

Maharaj v. Moore, No. 02-22240-HUCK/TURNOFF, ECF No. 54 (S.D. Fla. Aug. 31, 2004). The

alleged Brady evidence at issue before Judge Huck included: (1) a transcript of Neville Butler’s

statements during a polygraph examination conducted by the State; (2) the contents of the Moo

Youngs’ briefcase, including their passports; and (3) information concerning the Moo Youngs’

life insurance policies. Id. at 17. Though Judge Huck noted that the evidence produced may have

afforded Maharaj “perhaps a better developed theory of defense,” he nonetheless found that

Maharaj did not “provide[] sufficient evidence… to undermine the verdict of the jury.” Id. at 6.

Judge Huck further found that Maharaj could not establish a constitutional violation under Brady

to form the basis for relief under the AEDPA. Id. at 6, 17–25.

This finding was upheld by the Eleventh Circuit. As to the transcript of Butler’s polygraph

examination, the Eleventh Circuit agreed that the Florida Supreme Court’s analysis, under both

Brady and Giglio, was neither contrary to nor an unreasonable application of clearly established

federal law. Noting that Butler was thoroughly and vigorously cross-examined about the

1 Maharaj’s death sentence was overturned and he was subsequently sentenced to life in prison.

inconsistencies in his accounts of the murders, and that Maharaj’s counsel indeed elicited

testimony from Butler that he had lied under oath, the panel found that “even if Maharaj had

established that Butler’s testimony was false (which he did not), the falsehood was not material.”

Maharaj, 432 F.3d at 1314. As such, the Butler polygraph was insufficient to support a Brady

claim.

Regarding Maharaj’s second piece of evidence—the contents of the Moo Youngs’

briefcase—the Eleventh Circuit deemed such evidence insufficient to support a Brady violation

for two reasons: (1) “the briefcase and its documents were not suppressed by the State because

Petitioner knew of their existence and had the power to compel their return from the Moo Young

family by subpoena,” and (2) “the information was not material.” Id. at 1315. Accordingly, the

Court found that the Florida Supreme Court’s conclusions regarding the briefcase was neither

contrary to nor an unreasonable application of clearly established federal law. Id.

The Court similarly rejected Maharaj’s reliance on the Moo Youngs’ life insurance policies

as the basis for his Brady claims, agreeing with the Florida Supreme Court that the policies were

not exculpatory nor would the disclosure of the policies “have put the case in so different a light

as to undermine confidence in the verdict.” Id. at 1316–17. The Court emphasized that Maharaj’s

arguments that the life insurance policies indicated shady dealings on behalf of the Moo Youngs

were “even more speculative than his argument concerning the other contents of the briefcase.”

Id. Viewing the evidence cumulatively, the Eleventh Circuit determined that “there [was] no

reasonable probability, had all of the items been disclosed to the defense, the result of the

proceedings would have been any different.” Id. at 1317.

In 2012, Maharaj filed a second motion for post-conviction relief pursuant to Rule 3.850,

which was denied at the trial level and affirmed on appeal. See ECF No. 38, Ex. 1–9; Maharaj v.

State, No. 3D15-321 (Fla. 3d DCA July 31, 2016). Maharaj’s Brady claims were specifically

dismissed by the state court judge as unavailing. See Order Def.’s Mot. Post-Conviction Relief,

No. F86-030610 (Fla. Cir. Ct. Jan. 5, 2015), ECF No. 38-3 (“2012 Rule 3.850 Order”).

Maharaj advanced three Brady claims. Id. First, he alleged that the State failed to disclose

the indictment of Jaime Vallejo Mejia, the man staying in the room across the hall from the murder

scene who had alleged ties to the cartel. Id. Mejia was indicted for money laundering in the

Western District of Oklahoma approximately five weeks prior to Maharaj’s trial. Id. Second,

Maharaj alleged that “DEA special agent Kimberly Abernathy made a statement in a memorandum

document with the Department of Business Regulation that Mr. Mejia was arrested on the federal

indictment for laundering money on behalf of Colombian drug smugglers.” Id. Finally, Maharaj

alleged that the testimony of Baruch Vega, a former CIA informant, was in the constructive

possession of the State and was therefore withheld in violation of Brady. Id. In all, Maharaj—as

he does today—purports that this allegedly withheld evidence supports his innocence based on the

theory that Mejia conducted the murders on behalf of Pablo Escobar and the Colombian cartel.

The state court disagreed, holding not only that Maharaj “failed to meet his burden to

demonstrate that the State willfully or inadvertently suppressed favorable material evidence,” but

that even if such evidence had been disclosed, “the jury verdict would have been the same.” Id.

Before denying relief, the trial court also conducted an evidentiary hearing on Maharaj’s

claims of newly discovered evidence based upon witness testimony that Escobar and the

Colombian cartel were responsible for the murders.

The evidence presented at the hearing included: (1) testimony and documentation from

Brenton Ver Ploeg, an attorney representing the life insurance company in a lawsuit filed by the

Moo Young family; (2) testimony from Jorge Maya that the Moo Young murders were actually

ordered by Pablo Escobar and carried out by Manuel Guillermo Zuluaga Salazar; (3) a two-minute

television interview of Jhon Jairo Velasquez Vasquez conducted by BBC; (4) testimony from

Baruch Vega, a former CIA informant, who testified about his relationship with Jaime Vallejo

Mejia; (5) testimony from John Brown, a former pilot for the cartel; (6) testimony from Michael

Flynn, whose claim that the Miami Police Department framed Maharaj was found to be “one of

the most obvious self-serving endeavors [the state court had] seen in ten years on the Circuit Court

bench”; (7) testimony from Prince Ellis; (8) testimony from Henry Cuervo, who testified as an

expert in investigating Colombian drug cartels in South Florida in the 1980s; and (9) additional

miscellaneous evidence related to other witnesses and the Moo Youngs. Id.

The state court, having “fully considered all the newly discovered evidence which would

be admissible,” ultimately found that the new evidence presented at the hearing was insufficient

“to give rise to a reasonable doubt as to Mr. Maharaj’s guilt.” Id. The court specifically took issue

with the “inherent credibility concerns and admissibility issues surrounding the newly discovered

evidence….” Id. Accordingly, despite finding certain testimony presented at the hearing probative,

the state court denied relief. This decision was upheld on appeal.

Pursuant to the AEDPA, Maharaj sought leave from the Eleventh Circuit to file the instant

successive federal habeas petition. In re Maharaj, No. 17-10452-F (11th Cir. Mar. 18, 2017), ECF

No. 63-1 at 5 (“11th COA Order Permitting Successive Petition”). The Eleventh Circuit panel

granted Maharaj’s application with respect to certain Brady claims. Id.

II. Eleventh Circuit Scope of Successive Petition

In his application to the Eleventh Circuit, Maharaj sought permission to raise seven distinct

claims in a second or successive petition:

(1) he is actually innocent; (2) the government suppressed favorable evidence, in

violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) the government knowingly

presented perjured testimony at trial, in violation of Giglio v. United States, 405

U.S. 150 (1972); (4) his trial counsel was ineffective; (5) he was intentionally

framed by law enforcement officers; (6) his post-conviction counsel was

ineffective; and (7) cumulative error in his prosecution violated his fundamental

rights.

Id. at 2.2 The Eleventh Circuit, however, only granted leave as to “Claims 2(c)–(f),”—i.e.,

Maharaj’s Brady claims. Id. at 2–3 (“Because we conclude that Mr. Maharaj has made a prima

facie showing that his subclaims 2(c) through (f) satisfy § 2244(b)(2)(B), we grant his request for

authorization to file a second or successive habeas petition in the district court.”).

In Claims 2(c)–(f), Maharaj “alleges that the State suppressed materials or information

from five individuals who could testify that a cartel hit man actually committed the murders.” Id.

at 3. Specifically, the alleged Brady evidence includes (1) testimony from John Brown; (2) a

statement from Jorge Maya, an “enforcer” for the cartel, that Escobar in fact ordered the murders;

(3) an affidavit from Jhon Jairo Velasquez Vasquez to the same effect; and (4) testimony from an

additional witness insisting on anonymity who portends to provide additional evidence that the

cartel carried out the hit and not Maharaj. Id. at 4–5.

Accordingly, this Court’s review is limited to the foregoing claims—which, as it pertains

to Maharaj’s Petition, is listed as “Ground One: Violations of Brady v. Maryland.” See ECF No.

29; see also In re Hill, 715 F.3d 284, 296 (11th Cir. 2013). Therefore, as recommended in the

R&R, Grounds Two through Four of the Petition will not be addressed for lack of jurisdiction. See

ECF No. 127 at 5.

2 The Court noted that although Maharaj indicated in his application that he wished to raise a single claim,

his proposed habeas petition actually set forth seven claims. See 11th COA Order Permitting Successive

Petition, ECF No. 63-1 at 2 n.1.

With this in mind, the Court must also dispel Petitioner’s notion—or insistence, rather—

that the Eleventh Circuit’s permission to file a second or successive petition constitutes a finding

that no reasonable jurist could find Petitioner guilty—i.e., that its permission amounts to a

declaration of Petitioner’s innocence. This is not so.

For example, the Eleventh Circuit stated:

Mr. Maharaj has sufficiently alleged a Brady violation: he learned in 2014 that

Mejia—an individual who resided in close proximity to the murder scene and who

apparently was involved with the cartel—was under criminal investigation of the

Moo Young murders, a fact that the prosecution or the police knew but did not

disclose.

11th COA Order Permitting Successive Petition, ECF No. 63-1 at 5. This statement, however,

merely means that Maharaj has made a threshold showing; it is not a finding that a Brady violation

indeed occurred. The Eleventh Circuit highlighted this point, stating “’[a]s usual nothing about our

ruling here binds the district court, which must decide every aspect of the case fresh, or in the legal

vernacular, de novo.’” Id. at 6 (quoting In re Chance, 831 F.3d 335, 1338 (11th Cir. 2016)). This

includes—as the Eleventh Circuit clarified—“the merits” of Maharaj’s Brady claims. Id. at 7.

Now that the boundaries of this Court’s review are set, the Court will do so.

III. AEDPA Standard

The AEDPA circumscribed a federal court’s role in reviewing state prisoner applications

“in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given

effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).

In reviewing the decisions of the Florida Supreme Court, the Court is governed by the

terms of AEDPA, which provide that the Court may grant a § 2254 writ of habeas corpus only if

(1) the state decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” or (2) the state

decision was “based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

The phrase “clearly established Federal law,” as used in § 2254(d)(1), “encompasses only

the holdings of the Supreme Court of the United States.” Maharaj, 432 F.3d at 1308. A state court

decision is contrary to clearly established federal law if either “(1) the state court applied a rule

that contradicts the governing law set forth by Supreme Court case law, or (2) when faced with

materially indistinguishable facts, the state court arrived at a result different from that reached in

a Supreme Court case.” Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001) (emphasis added).

An “unreasonable application” of clearly established federal law may occur if the state court

“identifies the correct legal rule from Supreme Court case law but unreasonably applies this rule

to the facts of the petitioner’s case.” Id. (emphasis added).

Differing slightly from its (d)(1) counterpart, § 2254(d)(2) provides an additional basis for

relief where the state court’s decision “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). “A state

court’s determination of the facts, however, is entitled to substantial deference.” Maharaj, 432

F.3d at 1309; see 28 U.S.C. § 2254(e)(1) (noting that “a determination of a factual issue made by

a State court shall be presumed to be correct” and the habeas “applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing evidence.”).

Indeed, “[w]hen reviewing state criminal convictions on collateral review, federal judges

are required to afford state courts due respect by overturning their decisions only when there could

be no reasonable dispute that they were wrong.” Woods v. Donald, 575 U.S. 312, 316 (2015). In

sum, “AEDPA erects a formidable barrier to federal habeas relief or prisoners whose claims have

been adjudicated in state court.” Burt v. Titlow, 571 U.S. 12, 1 (2013).

IV. Brady Standard

As discussed above, Petitioner’s claims are limited by the Eleventh Circuit’s Order

permitting a second or successive petition to the alleged Brady violations enunciated in his

subclaims 2(c)–(f)—here, “Ground One.” [ECF No. 29].

Brady violations are defined as “the suppression by the prosecution of evidence favorable

to an accused…when the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty

to disclose, however, is applicable even in the absence of a request by the defendant and includes

both exculpatory evidence and impeachment material. See Strickler v. Greene, 527 U.S. 263, 280

(1999).

There are four elements required to establish a Brady violation: (1) the State possessed

evidence favorable3 to the defense; (2) the defendant did not possess the evidence and could not

obtain it with any reasonable diligence; (3) the prosecution suppressed the evidence, either

willfully or inadvertently; and (4) a reasonable probability exists that the outcome of the

proceeding would have been different had the evidence been disclosed to the defense—i.e., the

evidence was “material”. See Moon v. Head, 285 F.3d 1301, 1308 (11th Cir. 2002).

In sum:

The question is not whether the defendant would more likely than not have received

a different verdict with the evidence, but whether in its absence he received a fair

trial, understood as a trial resulting in a verdict worthy of confidence.

Kyles v. Whitley, 514 U.S. 419, 433–34 (1995) (internal quotation marks and citations omitted).

3 Evidence is considered favorable to the accused if it is either exculpatory or because it is impeaching. See

Strickler, 527 U.S. at 281–82.

V. Analysis

With these principles in mind, the Court reviews the merits of Petitioner’s Brady claims.

Today, Maharaj presents new evidence that he alleges establishes both his innocence and the

factual predicate for a Brady violation when viewed together with the evidence previously rejected.

As discussed, the new evidence includes (1) testimony from John Brown; (2) a statement from

Jorge Maya, an “enforcer” for the cartel, that Escobar in fact ordered the murders; (3) an affidavit

from Jhon Jairo Velasquez Vasquez to the same effect; and (4) testimony from an additional

witness insisting on anonymity who portends to provide additional evidence that the cartel carried

out the hit and not Maharaj. See 11th COA Order Permitting Successive Petition at 4–5. Like its

predecessors, the Court notes at the outset that, upon review of the Petition and the evidence set

forth therein, were this case to be tried again today, Maharaj would undoubtedly have a stronger

theory of defense to present to the jury. This, however, is insufficient to warrant relief under the

AEDPA. Maharaj can neither show that this evidence constitutes Brady material nor can he

establish that, had the evidence been disclosed, the result of his trial would have been different.

A. Actual Innocence Issue

“The guilt or innocence determination in state criminal trials is ‘a decisive and portentous

event.’” Herrera v. Collins, 506 U.S. 390, 401 (1993) (quoting Wainwright v. Sykes, 433 U.S. 72,

90 (1977)). Accordingly, the Supreme Court has determined that “[c]laims of actual innocence

based on newly discovered evidence have never been held to state a ground for federal habeas

relief absent an independent constitutional violation occurring in the underlying state criminal

proceeding.” Id. at 400. “This rule is grounded in the principle that federal habeas courts sit to

ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors

of fact.” Id.

As such, despite his contentions to the contrary and despite the capacious amount of

allegedly exculpatory evidence presented in the Petition, Maharaj is only entitled to habeas relief

if he can establish that a Brady violation occurred. The Court finds that he cannot.

B. The Prosecution Team Did Not Possess or Suppress the Alleged Brady Material

The state court held that Maharaj “failed to satisfy his burden to demonstrate that the State

willfully or inadvertently suppressed” the alleged Brady material. See 2012 Rule 3.850 Order, ECF

No. 38-3 at 3. The state court specifically found that “there is no evidence in this record to even

suggest the State had any knowledge of the claimed Brady evidence,” and likewise “reject[ed] any

suggestion that the claimed Brady evidence was in the constructive possession of the State.” Id.

This finding is neither contrary to nor an unreasonable application of clearly established federal

law. Nor was it an unreasonable determination of the facts in light of the evidence.

There are two pieces of material that could be argued to have been in the possession of the

prosecution—the indictment of Jaime Vallejo Mejia that occurred approximately five weeks prior

to Maharaj’s trial, and testimony from Baruch Vega, who was an informant for the CIA at the time

of the murders. The testimony from John Brown, Jorge Maya, Jhon Jairo Velasquez Vasquez, and

anonymous Witness “A” could not be construed to be in the prosecution’s possession—

constructively or otherwise. Like much of the additional evidence presented in this case, this

evidence could bolster Maharaj’s materiality argument in that it tends to reinforce his assertion

that his trial would have turned out differently. Maharaj may have had significantly more evidence

to strengthen his theory of defense that a Colombian man carried out the murders on behalf of the

cartel. Nonetheless, without any possessed and suppressed evidence to bootstrap this testimony

to, the testimony is insufficient on its own to assert a Brady violation.

“Brady and its progeny apply only to evidence possessed by the prosecution team, which

includes both investigative and prosecutorial personnel,” as well as “anyone over whom [the

prosecutor] has authority.” Kelley v. Sec. for Dep’t of Corr., 377 F.3d 1317, 1354 (11th Cir. 2004);

Moon, 285 F.3d at 1309. “[T]he prosecution team generally is considered a unitary entity, and

favorable information possessed by the police but unknown to the prosecutor is nonetheless subject

to the Brady test.” Breedlove v. Moore, 279 F.3d 952, 961 (11th Cir. 2002). The Eleventh Circuit

has made clear, however, that “[k]knowledge of information that state investigators obtain is not

imputed for Brady purposes to federal investigators who conduct a separate investigation when the

separate investigative teams do not collaborate extensively.” United States v. Naranjo, 634 F.3d

1198, 1212 (11th Cir. 2011); see also Moon, 285 F.3d at 1310 (holding that knowledge obtained

by investigators in one state is not imputed to investigators that conduct a separate investigation in

another state).

1. Indictment of Jaime Vallejo Mejia

As previously mentioned, Jaime Vallejo Mejia was a Colombian man staying in the room

across from room 1215 in the Dupont Plaza hotel at the time of the murders. On September 3,

1987—some five weeks before Maharaj’s trial and almost a year after the murders—Mejia was

indicted in the United States District Court for the Western District of Oklahoma for money

laundering. See ECF No. 47-3 at 6. It is Maharaj’s contention that Mejia was engaged in currency

crimes on behalf of the Colombian cartel and was either the murderer himself or was otherwise

involved in the double homicide. Maharaj argues that the State knew of or should have been aware

of Mejia’s federal indictment in Oklahoma, and that the prosecutorial team either willingly failed

to disclose this information or failed to conduct a sufficient investigation of Mejia. This theory is

the gist of Maharaj’s claim.

In support of such claim, Maharaj offers the testimony of Agent Henry Cuervo, who was a

retired Drug Enforcement Administration (“DEA”) agent working in Miami from about 1986 to

2002. The R&R outlines Agent Cuervo’s testimony at length, but in sum, Agent Cuervo opined as

an expert that certain characteristics of Mejia, including the fact that he was from Antioquia,

Colombia, had recently traveled from Aruba, and claimed to be in insurance sales, all should have

raised red flags to the investigative team at the time of the murders. Agent Cuervo also testified

that based on the indictment, Mejia was likely being investigated by the DEA as early as 1985 and

potentially earlier. Agent Cuervo had also reached out to DEA Agent Kimberly Abernathy, who

informed him that the DEA had been investigating Mejia as part of the 1983–84 Operation

Greenback in South Florida. In all, Agent Cuervo testified as to the numerous leads that could

have—and in his opinion, should have—been pursued.

Maharaj also presented a memorandum from the Florida Department of Business

Regulations, indicating that an agent for the department was able to determine that Mejia—who

was then applying for a liquor license—was being looked into by the DEA. This document is also

offered to “illustrat[e] how Det[ective] Buhrmaster would have easily found this” information had

he performed an adequate investigation. See ECF No. 128 at 3.

2. Testimony from Baruch Vega

Baruch Vega worked as an informant for the CIA in South America and the United States,

where he was also introduced to the DEA and other government agencies. Vega’s testimony is

also outlined at length in the R&R but is summarized as follows.

In the mid-1980’s, Vega worked with a federal task force known as CENTAC-26,

consisting of personnel from Miami and Miami-Dade police, the DEA, and the FBI. Vega testified

that he reported to his supervisory agents consistently from 1978 to 2000, and that he was confident

he reported what he knew at the time of the murders. Vega acknowledged that he had a friendship

with Mejia and knew Mejia to be highly involved in money laundering for various cartels. Vega

testified that Mejia used an individual known as “El Chino Mau” to launder money and that Mejia

stated to him that the cartel “needed to kill this son of a bitch crook, Chinese crock [sic]” for

stealing from Pablo Escobar. Vega asserts that he reported this admission to his handlers who were

allegedly conducting a “very advanced” investigation. According to Vega, he knew “El Chino

Mau” to be Derrick Moo Young. He also testified, however, that he knew only of the name “El

Chino Mau” and that the FBI’s posting of pictures on the wall identified “El Chino Mau” to him

as Derrick Moo Young. Indeed, though asserting that he had met Moo Young in the past, Vega

was unable to identify him in a picture the night before his deposition.

The state court considered Vega’s testimony both “very interesting” and “probative.” See

2012 Rule 3.850 Order, ECF No. 38-3 at 6–7. Nonetheless, the court found that his testimony was

“profoundly weakened by his inability to identify a photograph of Mr. Mejia or Derrick Moo

Young,” was “fraught with inadmissible hearsay[,] and [was] woefully insufficient to establish a

reasonable probability of acquittal on retrial.” Id. at 7. Accordingly, the materiality of Vega’s

testimony was considered “questionable.” Id.

3. Insufficient Evidence to Impute to Prosecutorial Team

The state court’s determination that Maharaj did not meet his burden to impute this

evidence to the prosecutorial team is not unreasonable.

John Kastrenakes, former Circuit Court Judge in Palm Beach County, Florida, and one of

two Assistant State Attorneys assigned to the case, testified that the prosecution was aware of

Mejia’s presence across from room 1215 at the time of the murders. He knew Mejia had been

interviewed by the police and had given a statement. Mejia, however, was not a trial witness, so

the prosecution had not focused on him. Kastrenakes further testified that he was never aware of

Mejia having been federally indicted a short time prior to Petitioner’s trial, as neither the

prosecution team nor law enforcement conducted any follow-up investigation of Mejia.

Maharaj’s defense counsel testified at the 1997 evidentiary hearing that he was aware that

room across the hall from the murder scene was occupied by Mejia, and confirmed that the

prosecution had disclosed his name and the available information about him. See ECF No. 71-1 at

115. The defense received Mejia’s 1986 statement to Detective Buhrmaster and had its own

investigator look into Mejia. The State also gave the defense Mejia’s overseas address and phone

number.

There is no indication of collaboration between the State’s prosecution team in Florida and

federal investigators in Western Oklahoma. See Moon, 285 F.3d at 1310 (holding that knowledge

obtained by investigators in one state is not imputed to investigators that conduct a separate

investigation in another state). Maharaj cannot establish that the prosecution team in his case knew

of Mejia’s wrongdoings in another state; what he contends, however, is that the prosecution should

have known.

Maharaj specifically asserts that had Detective Buhrmaster actually checked Mejia with

“all agencies” as he contended at trial, the indictment, information from the Florida Department of

Business Regulations, and Vega’s intel to CENTAC-26 would have come up in his investigation.

In hindsight and all other things aside, this may have been true.4 Nonetheless, the prosecution “has

no duty to undertake a fishing expedition in other jurisdictions….” See Meros, 866 F.2d 1304,

1309. Mr. Kastrenakes explained why the prosecution did not focus its resources on Mejia—

namely, he was cooperative and was not being called as a trial witness, and the evidence against

Maharaj was overwhelming. Indeed, Maharaj’s own private investigation of Mejia was fruitless at

the time of trial.

Nor does the record reflect a connection between CENTAC-26 and the state prosecution.

Therefore, even if Vega’s testimony that he reported Mejia’s admission to his handlers is true,

there is no indication that the team prosecuting Maharaj had access to or knowledge of such.

In sum, much of the evidence proffered by Maharaj makes a strong case that the

investigation was not up to par. In fact, that is precisely what Agent Cuervo opined. But even if

this were true—a contention made doubtful by the overwhelming record evidence implicating

Maharaj in the murders—it is insufficient to establish the first and third Brady prongs. The

prosecution could not have suppressed information it was not aware of.5

C. Cumulative Impact of the Evidence

Before the Court moves on to the final Brady prong of materiality, it must address

Maharaj’s assertions that both the state court and Magistrate Judge Otazo-Reyes failed to analyze

4 Though, again, the Court highlights that Mejia was not indicted in Oklahoma until almost a year after the

murders took place. This statement should not be construed to agree with Maharaj’s contention that this

information would have come up in an investigation but merely states that it may have.

5 At the very least, the Court finds that the state court’s determination of this issue was not contrary to or

an unreasonable application of clearly established federal law. Nor was it an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)–(2).

his claims cumulatively. That is, that both decisions fail to include the evidence set forth in

Maharaj’s 1997 Brady claims.

The Supreme Court has made clear that a Brady materiality determination must consider

the aggregate effect of all the suppressed evidence. See Kyles, 514 U.S. at 436, 441. “That does

not mean, however, that an individual assessment of each piece of suppressed evidence is

somehow inappropriate.” Maharaj, 432 F.3d at 1310. A court can evaluate the cumulative effect

only by first examining each piece of material standing alone. See Kyles, 514 U.S. at 436 n.10

(noting that “[w]e evaluate the tendency and force of the undisclosed evidence item by item; there

is no other way. We evaluate its cumulative effect for purposes of materiality separately and at the

end of the discussion….”); see also Kelley, 377 F.3d at 1335, 1369.

Maharaj’s objections to this point are unavailing. Not only does the Court agree with the

R&R’s determination that the state court analyzed the alleged Brady materials in the aggregate,

Maharaj’s arguments regarding their cumulative effect are misplaced. For example, Maharaj

continues to argue that cumulatively, the documents contained within the briefcase paired with

this newly discovered evidence demonstrates a clear Brady violation. See ECF No. 128 at 11–12.

This is not so. As found by the Eleventh Circuit, the documents within the briefcase were not

Brady material at all, in that they were available to Maharaj at the time of trial. Maharaj, 432 F.3d

at 1314–15. The Eleventh Circuit similarly found that evidence regarding the Moo Youngs’

insurance policies was not Brady material because it was not exculpatory. Id. at 1317–18. Finally,

the Eleventh Circuit found that the Florida Supreme Court’s finding that Neville Butler’s

polygraph test was not suppressed was neither contrary to nor an unreasonable application of

clearly established law. Id. Therefore, even cumulatively, this evidence cannot serve as the basis

of a Brady violation.

So, while the Court must address the cumulative effect of all of the suppressed evidence

to properly analyze the materiality prong of Maharaj’s Brady claims, those items found to not

constitute Brady material—whether it be because the evidence was not suppressed or because it is

not exculpatory—are not relevant to the materiality analysis under Kyles. See 514 U.S. at 436, 441.

In short, if an item was not suppressed, it does not matter if it is material in this context. Brady

requires all four prongs to be met. The Court agrees that, in the aggregate, Maharaj’s materiality

argument is strengthened by the evidence he has set forth. However, the Court also agrees with the

state court’s conclusion that the evidence discussed above was not suppressed by the prosecution

team. Therefore, even analyzed in the aggregate, Maharaj’s evidence is insufficient to assert a

Brady claim.

D. Materiality

The discussion could end here. The Court, however, would be remiss to forego a discussion

of the final prong of Brady—materiality. Evidence is material where a reasonable probability

exists that the outcome of the proceeding would have been different had the evidence been

disclosed to the defense. See Moon, 285 F.3d at 1308.

As previously stated, had Maharaj had at his disposal at trial the evidence he now contends

asserts a Brady claim, he undoubtedly would have had a stronger theory of defense. This does not

signify, however, that the outcome of his trial would have been different. Maharaj’s Colombian

cartel theory was proffered at trial. Mejia’s federal indictment in Oklahoma—though seeming to

be more than a coincidence—is too attenuated to overcome the evidence at trial and the jury’s

determination that Maharaj committed the murders. As discussed, there was ample evidence of

Maharaj’s involvement, including twelve matching fingerprints, a known relationship between

Maharaj and the victims, a motive, a link to Maharaj and the murder weapon, and an eyewitness.

Mejia’s federal indictment may have arguably tied him to the cartel, but it does not necessarily tie

him to the murders. And, given the high deference due under the AEDPA, the state court’s

determination that the evidence presented does not undermine the jury’s verdict should be upheld.

VI. Certificate of Appealability

A Certificate of Appealability may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right,” and it must indicate the issue on which the

petitioner made such a showing. 28 U.S.C. § 2253(c)(2), (3); see also ECF No. 114 at 3. Where

the district court has denied a motion to vacate in whole or in part on procedural grounds, a movant

must show that reasonable jurists could debate: (1) whether the motion states a valid claim for the

denial of a constitutional right, and (2) whether the district court was correct in its procedural

ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). A Certificate of Appealability “must

specify what constitutional issue jurists of reason would find debatable. Even when a prisoner

seeks to appeal a procedural error, the certificate must specify the underlying constitutional issue.”

Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).

The Court finds that reasonable jurists could debate whether Maharaj has set forth a Brady

claim to warrant habeas relief. Specifically, the Court certifies the following questions:

(1) Whether the Mejia indictment and/or the information from Baruch Vega could be

imputed to the prosecution for purposes of establishing possession and suppression by

the prosecution under Brady v. Maryland, 373 U.S. 83, 87 (1963).

(2) If so, whether this information would have changed the outcome of the verdict in light

of the deference to be afforded under the AEDPA.

VII. Conclusion

To be clear, of the litany of habeas petitions before this Court, the facts of this case give

the undersigned pause. Unfortunately, pause is insufficient to overcome the highly deferential

standard set forth by the AEDPA. See Woods, 575 U.S. at 316. Because Maharaj has failed to

overcome this “formidable barrier,” his Petition must be denied. Burt, 571 U.S. at 1.

Accordingly, after careful consideration, it is hereby:

ORDERED AND ADJUDGED that

1. United States Magistrate Judge Otazo-Reyes’s Report and Recommendation, [ECF

No. 127], is AFFIRMED and ADOPTED.

2. Petitioner’s Petition for Habeas Corpus, [ECF No. 29], is DENIED. As set forth

above, a Certificate of Appealability is GRANTED and SHALL ISSUE.

3. This case is CLOSED, and all pending motions are DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, this 30th day of November 2020.

¢ £

JOSE ARTINEZ

UNITHD STATES DISTRICT JUD

Copies provided to:

All Counsel of Record

Magistrate Judge Otazo-Reyes

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