15-2186,
United States v. Jackson

                    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 ASUMMARY 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
6th day of June, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         DEBRA ANN LIVINGSTON,
              Circuit Judges,
         LEWIS A. KAPLAN,
              District Judge.

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UNITED STATES OF AMERICA,
         Appellee,

             -v.-                                                  15-2186

CLIFTON JACKSON,
         Defendant-Appellant.

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
 Judge Lewis A. Kaplan, of the United States District Court for
the Southern District of New York, sitting by designation.
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FOR APPELLANT:                     DANIEL M. PEREZ, Law Offices
                                   of Daniel M. Perez, Newton,
                                   NJ.

FOR APPELLEE:                      JOSEPH J. KARASZEWSKI,
                                   Assistant United States
                                   Attorney, for James P.
                                   Kennedy, Jr., Acting United
                                   States Attorney for the
                                   Western District of New York,
                                   Buffalo, NY.

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

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.

     Defendant Clifton Jackson, who was convicted on numerous
charges related to the filing of fraudulent tax returns, appeals
from the denial of a motion for a new trial pursuant to Federal
Rule of Criminal Procedure 33. We assume the parties’
familiarity with the underlying facts, the procedural history,
and the issues presented for review.

     Jackson was indicted in April 2013 and charged with
sixty-six counts of conspiracy to unlawfully use Social
Security numbers, conspiracy to defraud the government,
submission of false claims, Social Security fraud, theft of
government property, and aggravated identify theft. These
charges arose out of a 2012 scheme in which Jackson, with the
help of three co-conspirators, filed fraudulent tax returns
online using the names and Social Security numbers of other
people, and then collected the tax refunds in the form of prepaid
debit cards. Jackson’s three co-conspirators provided
internet access, obtained Social Security numbers and other
identifying information, received tax refund debit cards in the
mail, and withdrew money stored on debit cards. At an eight-day
jury trial in January 2015, the government adduced testimony
from the three co-conspirators, as well as extensive other
evidence. Jackson was found guilty on fifty-eight of the
sixty-six counts in the indictment.

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     On appeal, Jackson relies on the government’s failure to
disclose impeachment evidence concerning Jackson’s
co-conspirator DeWayne Vass. Prior to calling Vass as a
witness, the government disclosed his criminal history pursuant
to its obligations under Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio v. United States, 405 U.S. 150 (1972). That history
consisted of three felony drug convictions: two in 2007 (for
which he received concurrent sentences of six years and
two-and-a-half years, and for which he was released from prison
in December 2011) and one in 2004 (for which he received a
sentence of one year). During Vass’s cross-examination,
Jackson’s counsel impeached Vass’s credibility in a number of
ways, including with his criminal history.1

     What was not disclosed to Jackson was the fact that, while
Vass was on pretrial release in June 2014, he had been recorded
discussing apparent drug trafficking on an intercepted wiretap
in an unrelated criminal investigation. Vass was not arrested
or charged as a result of that investigation, which focused on
a sprawling drug trafficking conspiracy in the Western District
of New York between June 2013 and July 2014.

     In June 2015, Jackson filed a Rule 33 motion for a new trial
based on the government’s failure to disclose Vass’s appearance
on the wiretap. The government conceded that it should have
disclosed the information, but argued that its failure to do
so did not warrant a new trial.2 The district court agreed and
denied Jackson’s motion, reasoning that the undisclosed
evidence would likely not have altered the outcome of the trial
because it was cumulative of other impeachment evidence and
because guilt was well established.

     Under Rule 33, a district court “may vacate any judgment
and grant a new trial if the interest of justice so requires.”
Fed. R. Crim. P. 33(a). “We review a district court’s denial

1
  Vass was also questioned about his prior false statements to
investigating agents, government pressure to cooperate, and
alleged tax-related misconduct by his cousins.
2
  Although it is legally irrelevant, the government explained
that the nondisclosure was inadvertent and that the unrelated
investigation was overseen by different prosecutors.
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of a Rule 33 motion deferentially and will reverse only for abuse
of discretion.” United States v. Snype, 441 F.3d 119, 140 (2d
Cir. 2006). “The trial court has broad discretion to decide
Rule 33 motions based upon its evaluation of the proof produced,
and its ruling is deferred to on appeal because, having presided
over the trial, it is in a better position to decide what effect
the newly discovered materials might have had on the jury.”
United States v. Gambino, 59 F.3d 353, 364 (2d Cir. 1995)
(internal quotation marks and citations omitted). We identify
no abuse of discretion in this case.

     “A new trial is warranted under Brady v. Maryland, 373 U.S.
83 (1963), . . . where (1) the government failed to disclose
favorable evidence, and (2) . . . the evidence it suppressed
was material.” United States v. Wong, 78 F.3d 73, 79 (2d Cir.
1996) (internal quotation marks omitted). This rule applies
to evidence that can be used to impeach a government witness.
Giglio, 405 U.S. at 154. However, “undisclosed impeachment
evidence is not material in the Brady sense when, although
‘possibly useful to the defense,’ it is ‘not likely to have
changed the verdict.’” United States v. Persico, 645 F.3d 85,
111 (2d Cir. 2011) (quoting Giglio, 405 U.S. at 154).

         [W]here the undisclosed evidence merely furnishes an
         additional basis on which to challenge a witness whose
         credibility has already been shown to be questionable
         or is subject to extensive attack by reason of other
         evidence, the undisclosed evidence may properly be
         viewed as cumulative, and hence not material, and not
         worthy of a new trial.

Id.

     The district court did not abuse its discretion by
concluding that the undisclosed evidence against Vass was
immaterial. Vass’s credibility was already undermined by,
inter alia, his three prior drug convictions (for which he
received substantial sentences), as well as his admitted
participation in the instant tax fraud scheme. Inconclusive
evidence of Vass’s continuing involvement in drug trafficking
may have further eroded his character for truthfulness, but only
marginally so. Because the impeachment value of the


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undisclosed evidence was incremental, it was properly viewed
as cumulative. See Wong, 78 F.3d at 80 (affirming denial of
Rule 33 motion where defense counsel had “sufficient
ammunition” concerning government witness’s credibility).
Even if the undisclosed evidence were not cumulative, it would
nonetheless be immaterial because Jackson’s guilt was firmly
established by evidence unrelated to Vass, including other
co-conspirator testimony describing in detail how Jackson
orchestrated and executed the tax fraud scheme. See United
States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993) (new trial
not warranted unless evidence would “probably lead to an
acquittal” (internal quotation marks omitted)).

     Jackson argues that the undisclosed evidence of Vass’s
apparent drug trafficking activity, combined with the
government’s decision not to prosecute him for drug trafficking
or to seek the revocation of his pretrial release, is material
because it suggests that Vass’s testimony was given in exchange
for preferential treatment. That argument fails for two
reasons. First, because Vass resisted answering the
government’s questions at trial, the government used Vass’s
grand jury testimony (with Jackson’s consent), testimony that
was given before Vass was caught on the wiretap discussing
possible drug trafficking. Second, as explained above, even
if the jury discounted everything Vass said, other record
evidence was more than sufficient to prove Jackson’s guilt.

     Accordingly, we hereby AFFIRM the judgment of the district
court.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




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