12-765-cr (L)
United States v. Toole

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of April, two thousand thirteen.

Present:
         PIERRE N. LEVAL,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                     Circuit Judges.
________________________________________________

UNITED STATES OF AMERICA,

           Appellee,

                  v.                                            Nos.   12-765-cr (Lead)
                                                                       12-933-cr (Con)

LAWRENCE A. WILLIAMS,

           Defendant,

EVERETTE TOOLE, AKA “E”,
ALGERNON TOOLE, AKA A1, AKA PRIEST,

         Defendants-Appellants.
________________________________________________
For Appellee:                            MONICA J. RICHARDS, Assistant United States
                                         Attorney, for William J. Hochul, Jr., United States
                                         Attorney for the Western District of New York.

For Defendant-Appellant
Everette Toole:                          JAMES S. WOLFORD, The Wolford Law Firm, LLP,
                                         Rochester, NY.

For Defendant-Appellant
Algernon Toole:                          SCOTT M. GREEN, Rochester, NY.


       Appeal from the United States District Court for the Western District of New York
(Larimer, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Defendants-Appellants Everette and Algernon Toole (collectively, “the defendants”) both

appeal from a February 13, 2012, judgment of the United States District Court for the Western

District of New York (Larimer, J.). The defendants were each convicted of two counts of

conspiracy to possess cocaine with intent to distribute. They both requested new trials based on

newly discovered evidence, and the district court denied their motions. During trial, the

defendants had attempted to impeach Brian Leonard, a key cooperating witness, with evidence

that Leonard was conspiring to deal drugs after his release from prison. Leonard denied the

accusations. Additional evidence about Leonard’s alleged conspiracy surfaced after trial, and the

defendants argue that access to this evidence would have allowed them to cross-examine

Leonard more effectively and would have proven to the jury that Leonard was a perjurer.1 We


       1
           As the defendants acknowledge, the impeaching evidence (FBI reports of interviews of
persons who stated that Leonard was involved in the alleged conspiracy) did not exist at the time
of their trail. They argue that because, at the time of their trial, the government already
suspected Leonard of being involved in an ongoing drug conspiracy, the government was under

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assume the parties’ familiarity with the remaining facts, the procedural history of the case, and

the issues on appeal.

       A district court’s discretion to determine if “newly discovered evidence warrants a new

trial is broad because its vantage point as to the determinative factor—whether newly discovered

evidence would have influenced the jury—has been informed by the trial over which it

presided.” United States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006). The district court did not

abuse its broad discretion here.

       There is no dispute that the newly discovered evidence here is impeachment evidence,

rather than substantive evidence about the defendants’ alleged criminal conduct. A new trial is

not required based on the discovery of “[n]ew impeachment evidence . . . when the . . . evidence

merely furnishes an additional basis on which to impeach a witness whose credibility has already

been shown to be questionable.” United States v. Parkes, 497 F.3d 220, 233 (2d Cir. 2007)

(quoting United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)). In such circumstances, the new

evidence is merely “cumulative.” United States v. Spinelli, 551 F.3d 159, 165 (2d Cir. 2008).

As Everette Toole acknowledges in his brief, the jury here already had substantial reason to

question Leonard’s credibility given that Leonard had a prior felony conviction, initially lied to

the government about his source of cocaine, gave inconsistent statements to the FBI, and often

could not remember the contents of his testimony from earlier in the trial. The government had

also already presented evidence indicating that Leonard had been conspiring to deal drugs after

his release from prison. The new impeachment evidence indicating that Leonard may have



an obligation to investigate further so as to be able to turn over additional impeaching evidence.
The defendants forfeited this argument by failing to raise it in their briefs, and, in any event,
there is no such rule.

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committed perjury on a collateral issue is cumulative of other evidence indicating that Leonard

was untrustworthy and insufficient to entitle the defendants to a new trial.

       Moreover, even if the new impeachment evidence were non-cumulative, “a new trial is

[only] warranted if the court is left with a firm belief that [with the benefit of the new evidence]

the defendant would most likely not have been convicted.” United States v. White, 972 F.2d 16,

21 (2d Cir. 1992) (internal quotation marks and brackets omitted). As the district court held,

there was a significant amount of other evidence corroborating Leonard’s testimony. With

respect to the charges surrounding the 2006 conspiracy, the government introduced tape

recordings of both defendants discussing illegal drug transactions. These recordings alone are

sufficient to support the convictions on the 2006 conspiracy counts. Additionally, with respect

to the 2003-2004 conspiracy charges, Algernon Toole’s girlfriend testified that she saw

Algernon meet with co-conspirators to plan drug transactions on six occasions and heard

Algernon mention that they needed to get in contact with “E,” i.e., Everette Toole, during those

conversations.

       The government also introduced testimony from other cooperating witnesses, an

incriminating post-arrest statement by Everette Toole, and tape recordings from 2006 during

which Everette Toole indicated that he had been involved in earlier conspiracies with Leonard

and Algernon Toole. Indeed, we previously held on direct appeal that “many aspects of

[Leonard’s] testimony were corroborated by other evidence presented at trial.” United States v.

Williams, 453 F. App’x 74, 78 (2d Cir. 2011) (summary order). Therefore, we cannot conclude




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that the jury would have likely come to a different result if it had heard the defendants’ newly

discovered evidence.2

       We have considered the defendants’ remaining arguments and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




       2
           The defendants also contend that the new evidence would have led the jury to question
the testimony of another cooperating witness, Frank Cavallucci, because the evidence showed
that Cavallucci was conspiring with Leonard to deal drugs after their release from prison.
However, during trial, the defendants did not re-call Cavallucci to question him once they
learned that he might have been involved in such a scheme. The defendants do not contend that
they would have re-called Cavallucci as a witness if the newly discovered evidence had been
available at trial. In any event, given the other available evidence, the jury would have been
likely to convict the defendants without Cavallucci’s testimony.

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