BLD-005                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2884
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

          SHAMEK HYNSON, also known as SHY, also known as LEGEND,
                                         Appellant
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-05-cr-00576-002)
                       District Judge: Honorable Juan R. Sánchez
                      ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 2, 2015
              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges

                             (Opinion filed: October 6, 2015)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Shamek Hynson appeals the District Court’s order denying his

motion for a new trial. For the reasons set forth below, we will summarily affirm the

District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       In September 2007, Hynson was found guilty of conspiracy to distribute 50 grams

or more of crack and heroin in violation of 21 U.S.C. § 846; using and carrying a firearm

in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) and 18 U.S.C.

§ 2; possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1); and

tampering with a witness in violation of 18 U.S.C. § 1512(b)(1) & (2). The District Court

sentenced him to life imprisonment. Hynson appealed, and we affirmed. United States v.

Hynson, 451 F. App’x 91 (3d Cir. 2011) (non-precedential).

       In April 2009, Hynson’s codefendant, Prince Isaac, filed a motion for a new trial

under Fed. R. Crim. P. 33 and Brady v. Maryland, 373 U.S. 83 (1963). With the District

Court’s permission, Hynson joined that motion. The defendants argued that the

Government had improperly suppressed four pieces of evidence. The first three items

concerned the testimony of Lindsey Colon, Isaac’s former girlfriend and a Government

witness who testified in some detail about Hynson’s and (primarily) Isaac’s criminal

conduct. After trial, the defendants discovered the following evidence pertaining to

Colon: (1) phone records for Isaac’s cell phone, which revealed that during the roughly

weeklong period that Isaac and Hynson were in South Carolina, the phone was not

answered; this potentially impeached Colon’s claim that while Isaac was away, she used

his phone to make drug sales on his behalf; (2) investigative notes concerning an incident

in which the police arrested Colon after finding drugs in Isaac’s car while Colon was

                                             2
driving it; and (3) a signed copy of a statement that Colon provided to the police. The

defendants also obtained a memorandum written by the Government that discussed

prosecution witness Tracy Ramirez’s refusal to abide by the terms of the witness-

protection program. Hynson alleged that this evidence undermined his conspiracy

conviction.

       In separate orders, the District Court denied relief to each defendant. As to

Hynson, the Court determined that the newly discovered evidence was not material under

Brady. Hynson filed a timely notice of appeal to this Court.1

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District

Court’s legal conclusions de novo and its findings of fact for clear error. See United

States v. Georgiou, 777 F.3d 125, 138 (3d Cir. 2015); United States v. Brown, 595 F.3d

498, 511 (3d Cir. 2010). To establish that the Government violated Brady, the defendant

must show that the Government suppressed favorable evidence that “was material either

to guilt or to punishment.” Georgiou, 777 F.3d at 139 (quoting United States v. Pelullo,

399 F.3d 197, 209 (3d Cir. 2005)). Evidence is “material” if “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995)

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A defendant is entitled to a

new trial under Rule 33 based on newly discovered evidence only if, among other things,

the evidence is such that, “on a new trial, the newly discovered evidence would probably

1
  Isaac also appealed, and we affirmed the District Court’s order. See United States v.
Isaac, C.A. No. 14-3881 (3d Cir. Sept. 30, 2015) (non-precedential).

                                              3
produce an acquittal.” United States v. Quiles, 618 F.3d 383, 389 (3d Cir. 2010) (quoting

United States v. Saada, 212 F.3d 210, 216 (3d Cir. 2000)).

       We agree with the District Court’s analysis of this case. Even assuming that the

newly discovered evidence would have helped Hynson impeach Colon’s and Ramirez’s

testimony (a conclusion that, as detailed in the margin, is debatable2), it would not have

undermined Hynson’s conspiracy conviction. To establish that Hynson participated in

the drug conspiracy, the Government presented evidence that (a) Government officials

seized drugs and drug paraphernalia from Hynson’s residence; (b) two former girlfriends

purchased firearms in their names and then conveyed those weapons to Hynson; (c)

Hynson shot one man over a drug debt and helped facilitate another drug-related

shooting; (d) Hynson and Isaac picked up a man in New York and drove him to

Lancaster, where the man sold drugs provided by Isaac; and (e) one of Hynson’s ex-

girlfriends sold crack on his behalf while he was away. See generally Hynson, 451 F.

App’x at 95 (holding that items (a) and (b) bore on Hynson’s role in the drug conspiracy).

The Government introduced all of this evidence through witnesses other than Colon or

Ramirez.




2
  As the District Court observed, much of this evidence was cumulative of evidence that
the Government had properly disclosed to the defendants before trial. More specifically,
the Government produced to the defendants (a) a police report concerning the same arrest
of Colon that was the subject of the investigative notes; (b) an unsigned-but-otherwise-
identical version of Colon’s statement to police, which Colon did not attempt to disavow
at trial; and (c) a police report documenting Ramirez’s refusal to cooperate with the
Government’s efforts to help her enter a witness protection program.

                                             4
       Indeed, it does not appear that any of Ramirez’s testimony inculpated Hynson. On

the rare occasions when Colon’s testimony concerned Hynson directly, it was

corroborated by letters, photographs, or testimony from other witnesses. Moreover,

Colon’s testimony primarily inculpated Isaac; we recently held that the same newly

discovered evidence was not material to Isaac’s conviction, see Isaac, C.A. No. 14-3881,

slip op. at 6-7, and there is no basis to reach a different conclusion here. Accordingly, the

District Court did not err in concluding that this undisclosed evidence could not

“reasonably be taken to put the whole case in such a different light as to undermine

confidence in the verdict.” Kyles, 514 U.S. at 435; see also Strickler v. Greene, 527 U.S.

263, 293-94 (1999).3

       Further, as the District Court explained, because Hynson has not satisfied Brady’s

materiality requirement, he necessarily cannot satisfy the more onerous standard that

governs non-Brady claims under Rule 33. See United States v. González-González, 258

F.3d 16, 20 (1st Cir. 2001); see also United States v. Agurs, 427 U.S. 97, 111 (1976).

       Accordingly, we will summarily affirm the District Court’s judgment. Hynson’s

motion for appointment of counsel on appeal is denied.




3
  In the District Court, Hynson alleged only that this newly discovered evidence
undermined his conspiracy conviction. On appeal, he also argues, without much detail,
that the evidence was material to his sentence. However, Rule 33 permits a defendant to
seek a new trial, not challenge a sentence. See United States v. Camacho, 370 F.3d 303,
307 (2d Cir. 2004); United States v. Lewis, 921 F.2d 563, 564 (5th Cir. 1991).
                                             5
