
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1258                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   DAVID SEPULVEDA,                                Defendant, Appellant.                                 ____________________        No. 93-1259                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   EDGAR SEPULVEDA,                                Defendant, Appellant.                                 ____________________        No. 93-1260                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 WILLIAM D. WALLACE,                                Defendant, Appellant.                                 ____________________        No. 93-1261                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                EDWARD W. WELCH, JR.,                                Defendant, Appellant.                                 ___________________        No. 93-1262                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   KEVIN CULLINANE,                                Defendant, Appellant.                                 ____________________        No. 93-1263                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 CHRISTOPHER DRIESSE,                                Defendant, Appellant.                                 ____________________        No. 93-1280                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   RICHARD LABRIE,                                Defendant, Appellant.                                 ___________________        No. 93-1281                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                     SHANE WELCH,                                Defendant, Appellant.                                 ____________________                                         -2-        No. 93-1282                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 ERNEST F. LANGLOIS,                                Defendant, Appellant.                                 ___________________        No. 93-1283                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                      TONY ROOD,                                Defendant, Appellant.                                  __________________        No. 93-1284                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CHERYL T. JOHNSON,                                Defendant, Appellant.                                  __________________        No. 93-1285                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   ARLINE S. WELCH,                                Defendant, Appellant.                                 ___________________                                          -3-                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            David H. Bownes for appellant David Sepulveda.            _______________            Julia M. Nye for appellant Edgar Sepulveda.            ____________            Stephen A. Cherry for appellant Edward W. Welch, Jr.            _________________            Kevin M. Fitzgerald for appellant Arline S. Welch.            ___________________            Paul J. Haley for appellant Shane Welch.            _____________            Michael J. Ryan for appellant Kevin Cullinane.            _______________            John P. Rab for appellant Christopher Driesse.            ___________            Robert P. Woodward for appellant Cheryl T. Johnson.            __________________            Mark H. Campbell for appellant Richard Labrie.            ________________            Paul J. Garrity for appellant Tony Rood.            _______________            Matthew J. Lahey for appellant William D. Wallace.            ________________            Julie L. Lesher for appellant Ernest F. Langlois.            _______________            Terry  L. Ollila,  Special Assistant United  States Attorney, with            ________________        whom Peter  E. Papps,  United States  Attorney, was  on brief for  the             _______________        United States.                                 ____________________                                  December 30, 1993                                 ____________________                                         -4-                 BOUDIN,  Circuit  Judge.    On  June  3,  1991,  a  jury                          ______________            convicted the  12 defendants  in this  case of  conspiracy to            possess  cocaine  with  intent  to  distribute;  one  of  the            defendants,  David   Sepulveda,  was  also   convicted  on  a            continuing criminal enterprise count.  21 U.S.C.    846, 848.            On  December  10,  1992, the  defendants  filed  a post-trial            motion  seeking  dismissal  or  a new  trial  based  on newly            discovered evidence.  The district court denied the motion in            a decision filed February 25, 1993.   The defendants appealed            separately  from the  judgments of  conviction  and from  the            denial  of  the   post-trial  motion,  and  the   cases  were            consolidated for oral argument.                 In United States v. Sepulveda,  No. 92-1362, et al. (1st                    _____________    _________                _____            Cir., Dec. 20, 1993), this court has affirmed the convictions            of  10 of the 12 defendants, but vacated two of the sentences            and  remanded those cases  for resentencing.1   That decision            sets forth in  detail the factual background of  the case but            addresses  only issues presented on the original appeals from            the  convictions.  In  this opinion, we  consider the appeals            challenging the  denial of the defendants' post-trial motion.            We  conclude  that  the district  court  properly  denied the                                            ____________________                 1In United States v. Sepulveda, Nos. 92-1368 and 92-1370                     _____________    _________            (1st Cir. 1993), filed simultaneously with this opinion, this            court  has  affirmed  the convictions  of  the  remaining two            defendants   but  remanded   one  of   the   two  cases   for            resentencing.                                         -5-                                         -5-            motion and that neither  a new trial  nor a dismissal of  the            cases was warranted.                 Among the  more than 30 witnesses who  testified for the            government  at the  trial  was  Joseph  Baranski.    Baranski            testified  that he  had  dealt in  cocaine as  a  user and  a            retailer and that  David Sepulveda had been one of Baranski's            sources  of supply.   Baranski described journeys  with David            Sepulveda  to  secure  drugs in  Nashua,  New  Hampshire, and            estimated that he had  bought from him 50 to 60  times in the            period 1985-1986.    Baranski said  that  co-defendant  Edgar            Sepulveda sometimes participated in the trips.  Baranski also            made  brief   incriminating  references   to  several   other            defendants, such as Cullinane and Langlois.  The former, said            Baranski,  supplied one of Baranski's other sources of drugs,            and the latter was an enforcer for David Sepulveda.                 At trial defense  counsel managed  to impair  Baranski's            credibility  rather effectively.   Baranski denied making any            deal  with  the  government that  might  explain  why he  was            delivering testimony that incriminated him as well as several            of the defendants.  Instead, he said he was testifying out of            friendship with James Noe, who had previously been a business            partner with Baranski both in  operating a compact disc store            in  Manchester,  New Hampshire,  and in  cocaine trafficking.            Baranski said that Noe, who was also a witness, had asked him            to testify and that he had obliged.                                         -6-                                         -6-                 Asked  whether he had received any compensation from the            government,  Baranski said  that he  had been  bought a  diet            soda.   The  assistant United  States  attorney then  advised            defense  counsel   that  records  of   the  Drug  Enforcement            Administration showed  that Baranski  had been  paid $500  in            1986 and  again in 1988  for assisting it in  drug arrests or            prosecutions.    Baranski  was recalled  for  further  cross-            examination and  made to admit  the more recent  payment; the            earlier  one  he said  he  did  not  recall.   His  testimony            included other improbable failures of recollection.                 Following  the  trial  and  the  resulting  convictions,            defense counsel uncovered  a sworn complaint  dated September            15, 1992, that Baranski had  filed in his own lawsuit against            the  State of  New  Hampshire.   In  that document,  Baranski            described  a raid by New  Hampshire state police conducted on            February 10, 1988, on Baranski  and Noe's compact disc  store            in  Manchester.   There the  police seized cocaine  and about            $20,000 in  cash.  Baranski's  complaint said that he  had no            knowledge of the drug dealing and  that all but $1,700 of the            funds were proceeds of legitimate business interests.                 The complaint went  on to say  that the law  enforcement            officers had told Baranski that  the bulk of the seized money            would not be  returned to him unless he  was "willing to work            it   off."    Baranski,  according  to  the  complaint,  then            "reluctantly  agreed to  assist the  state  in its  anti-drug                                         -7-                                         -7-            operations.  Since  the date of the seizure  Mr. Baranski has            assisted the state  of New Hampshire."   Baranski's complaint            said that the state had  returned $6,000 of the money to  him            but declined to  return the rest.  The  complaint sought "the            balance"  of the  money  as  an  unconstitutional  taking  of            property.2                 In   their  motion  filed  on  December  10,  1992,  the            defendants  argued   that  the   information  set   forth  in            Baranski's complaint was  newly discovered evidence of  great            significance.    The  motion  claimed  that  the  information            constituted  Brady material of which the prosecution knew, or                         _____            should  have known, either  directly or through  its agents.3            Defense counsel  charged the  government with misconduct  and            argued that during  his testimony Baranski had  concealed his            relationship  with  law   enforcement  authorities  and   his            compensation arrangements concerning  the seized money.   The            remedy, defendants urged,  was either dismissal of  the cases            or a new trial.                                            ____________________                 2Based  on  this   information,  defense  counsel   then            searched the  state court  records pertaining  to the  search            warrant that had authorized the raid of February 10, 1988.  A            state  police  property  receipt  showed  that   the  amounts            specified in Baranski's complaint had indeed been seized.                 3Brady v. Maryland, 373 U.S. 83  (1963), is the standard                  _____    ________            statement   of  the  prosecutor's  obligation  to  turn  over            exculpatory material.   In Giglio v. United States,  405 U.S.                                       ______    _____________            150  (1972), the  Supreme  Court  said  that  the  obligation            includes  evidence  that  would  impeach  the credibility  of            government witnesses.                                         -8-                                         -8-                 A flurry of  further filings followed.   The prosecutors            denied that they or the case agents assisting them had during            the  trial any knowledge  of an arrangement  between Baranski            and  the  state   police  for  him  to   cooperate  with  law            enforcement authorities.  The government also argued that the            additional impeaching  effect of  such information, if  true,            would not conceivably have altered the outcome  of the trial,            given the limited role of Baranski's testimony and the parade            of witnesses against the defendants.  Defense counsel filed a            broad-gauged  motion  to   produce  including  all  materials            related  to any  agreements with  Baranski or  Noe as  to the            return of the seized money.                 On  February 25,  1993, the  district  court denied  the            motion for  dismissal  or a  new trial.   It  ruled that  the            record provided an  adequate basis for resolving  the motion.            The court  pointed out  that Noe had  testified at  trial and            disclosed the search of his business premises in the February            1988 raid; since the records of the raid were not sealed, the            court said that  defense counsel, knowing of the  raid, could            have  secured  the  information   about  the  funds   seizure            themselves.   Accordingly, the court declined to describe the            evidence as  "newly discovered," implying that  due diligence            by  defense counsel would  have uncovered the  information in            time for trial.                                         -9-                                         -9-                 The  court also said that Baranski's own trial testimony            had shown him to  be a witness of "dubious" credibility.  The            additional  information provided by  the Baranski state court            complaint  was, at most, additional impeaching evidence.  The            court  said that the additional evidence  if presented to the            jury would not likely have  altered the outcome of the trial,            so  that  the  defendants  had  failed  to make  the  minimum            necessary showing  for a  new trial.    Indeed, the  district            court indicated that there was no reasonable possibility that            the evidence would have had altered the outcome.                 We agree with the district  court that even the complete            discrediting and  elimination of  Baranski's testimony  would            not have changed the  outcome in this case, and that alone is            basis enough to affirm the court's denial of the motion.  The            defense may have a plausible argument that even if a diligent            pre-trial  search had uncovered  the state police  records of            the search  and seizure of  the funds, these facts  would not            have disclosed the supposed "work it off" arrangement alleged            in  Baranski's complaint.  Nevertheless, as we explain below,            new trials based on newly discovered evidence, or on evidence            withheld by the prosecution, require specified showings as to            the likelihood  of a different  result.  The defense  has not            made those showings.                 We  start by  putting to  one  side any  claim that  the            government engaged in deliberate misconduct.  The prosecutors                                         -10-                                         -10-            represented that neither they nor any of the case agents were            aware  of any  deal between  Baranski and  the New  Hampshire            authorities  that  Baranski  would  regain  seized  funds  by            cooperating  with the  state or  anyone else.   The  district            court accepted this  representation, and nothing said  in the            defense  briefs gives  us any  reason  to question  it or  to            approve the fishing expedition proposed by the defense motion            to produce.                 What we have is evidence  that might have been useful to            defense counsel  in  seeking further  to discredit  Baranski.            Primarily, his state court complaint, if believed, suggests a            continuing link with  state law enforcement  authorities that                                  _____            endured  during the trial of this case  and a desire to curry            favor with state authorities in  order to recover more of his            funds.  It is not apparent that helpful testimony by Baranski            in  this federal  prosecution  would  have  been  treated  as            cooperation by  the state  or facilitated  the recovery,  but            defense counsel could  have cross-examined on this  point and            the jury might have believed that Baranski would benefit from            his testimony.                 Further,  information  derived  from   the  state  court            complaint might have been used to bolster the impression that            Baranski was  lying  at  trial  in his  vague  and  equivocal            statements about his prior links with law enforcement.  It is            not clear that the state  court complaint, or for that matter                                         -11-                                         -11-            the  two  $500  payments  by  DEA  to  Baranski  for  earlier            cooperation, are literally inconsistent with Baranski's trial            testimony.4    Still, as  with  the $500  payments  from DEA,            Baranski's failure  to disclose the  alleged arrangement with            the  state police  would  probably  have  been  portrayed  as            discrediting,  and  the   jury  might  have  drawn   such  an            inference.                 Thus, we have no difficulty in regarding the evidence as            potentially useful to the defense, although less damning than            the defense brief  suggests.  The difficulty for  the instant            appeals starts with  the reasonably high barriers  erected by            case law when a  defendant seeks a  new trial based on  newly            discovered evidence.  If it  is new evidence unconnected with            the  government, then--other  requisites aside--the  evidence            must create  an actual  probability that  an acquittal  would            have  resulted if the  evidence had  been available.   United                                                                   ______            States  v. Slade,  980 F.2d  27, 29  (1st Cir.  1992); United            ______     _____                                       ______            States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980).            ______    ______                 Where  the government possessed the evidence but did not            disclose it,  a statement of  the rule is more  difficult, in            part  because the  leading Supreme  Court  case produced  two                                            ____________________                 4Baranski's  reference  to  a  diet  soda  was  made  in            response to rather  loosely worded questions.   The two  $500            payments  were  apparently   for  his  assistance   on  prior            occasions,  and the defense brief points to no clear evidence            that Baranski had any deal with any law enforcement agency as            to this  case, or  received any  compensation apart  from the               ____            diet soda for his testimony in this case.                                           ____                                         -12-                                         -12-            plurality  opinions.  United  States v. Bagley,  473 U.S. 667                                  ______________    ______            (1987).   The usual  locution, taken from  Justice Blackmun's            opinion in Bagley, is that the nondisclosure justifies a  new                       ______            trial  if it is "material," it is "material" only if there is            "a reasonable  probability"  that  the  evidence  would  have            changed  the result,  and a  "reasonable  probability" is  "a            probability  sufficient   to  undermine  confidence   in  the            outcome."  Id. at 682.                       ___                 This  somewhat  delphic "undermine  confidence"  formula            suggests  that reversal might be warranted in some cases even            if there is less than an even  chance that the evidence would            produce an  acquittal.  After  all, if the evidence  is close            and   the  penalty  significant,   one  might  think     that            undisclosed  evidence creating  (for  example)  a 33  percent            chance of a different result would undermine one's confidence            in  the result.   And  while  Bagley appears  to give  little                                          ______            weight to other  factors--such as the degree of  fault on the            prosecutor's part and the specificity of the defense request-            -it  is  not entirely  clear  that  these  variables must  be            ignored.  Cf.  Bagley, 473 U.S. at 680-82  (Blackmun, J.) and                      ___  ______            685 (White, J.).                 In   all  events,  we   need  not  wrestle   with  these            uncertainties in  this case.   We will  assume arguendo  (but                                                           ________            with   little  basis  in   this  record)  that   the  federal            prosecutors or their agents knew  or should have known of the                                         -13-                                         -13-            information in  question.   Nevertheless, we  agree with  the            district court that the likelihood of a different outcome, if            the additional  information  had been  available  to  defense            counsel,  is extremely slight and does not remotely undermine            our confidence in the verdicts.  Thus, whichever  standard is            applied--whether for newly discovered evidence or negligently            withheld evidence--the result in this case is the same.5                 The only important testimony offered by Baranski against            any  of  the   defendants  concerned   the  Sepulvedas'   own            trafficking  and Baranski's trips with them while both, or in            some  cases  David  Sepulveda  alone,  obtained  cocaine  for            Baranski  in Nashua, New Hampshire.  Quite similar testimony,            however, was provided by Noe himself.  It is not apparent why            Baranski's self-described cooperation  with state authorities            (even if true)  discredits Noe's testimony.6   In any  event,            other witnesses testified to various cocaine collection trips                                            ____________________                 5Neither  our decisions nor those of other circuits have            been  sympathetic to  new trial  claims based  solely on  the            discovery of  additional information useful for  impeaching a            government witness,  e.g., United States  v. Formanczyk,  949                                 ____  _____________     __________            F.2d  526, 531 (1st  Cir. 1991); United  States v. Burroughs,                                             ______________    _________            830 F.2d 1574,  1578-79 (11th Cir. 1987), although  we do not            read  the  cases to  say  that  such  evidence can  never  be            sufficient.                 6A  New  Hampshire  state  police  receipt,   apparently            located  by  the  federal prosecutors  after  this  trial and            provided  to defense counsel,  indicates that $10,000  of the            seized funds were  returned to Noe on February  12, 1990, two            days after the  raid.  There  is no basis for  inferring that            this return of funds was contingent on, or in any way related            to, Noe's testimony  in this case which occurred  more than a            year later.                                         -14-                                         -14-            by the Sepulvedas, and there is no serious basis for doubting            that they occurred.                   The  defendants assert that Baranski and Noe furnished a            critical link in the evidence by establishing the Sepulvedas'            activities  in 1985 and  1986--the principal period  of these            witnesses'   trips   with  the   Sepulvedas--so   that  these            activities could be connected to the drug  trafficking of the            Sepulvedas in 1987 and thereafter.  This, say the defendants,            helped  the  government   establish  the  single   conspiracy            covering the entire period as charged in the indictment.  But            in  fact  another  drug  dealer  witness,  Michael   Lacerte,            described his drug dealings with David Sepulveda in 1985  and            1986,  and   his  testimony  was  corroborated  in  different            respects  by various law  enforcement agents.   The "critical            link" argument is inventive but not persuasive.                 Defendants  argue  for a  more favorable--that  is, less            demanding--test of  likelihood  that the  outcome would  have            been different  if the  new information  had been  available,            citing our decision in United States v. Wright, 625 F.2d 1017                                   _____________    ______            (1st Cir.  1990).   There, the  court described  the ordinary            requisites   for  a  new  trial  based  on  newly  discovered            evidence, including  the requirement that the  defendant show            that the new evidence would probably have altered the result.            However, Wright went  on to say that where  a defense witness                     ______            is shown by post-trial evidence to have testified falsely, it                                         -15-                                         -15-            may  be enough to  justify a new  trial for the  defendant to            show that the result "might"  have been different without the            false testimony.  Id. at 1020.7                              ___                 The defendants, as already noted, overstate the force of            the  new information: it  does not demonstrate  that Baranski            gave false testimony at trial.  It is not even clear that the            new information seriously compromises Baranski's credibility,            although it opens a line of attack that defendants might have            exploited.  We will  assume for present purposes  that Wright                                                                   ______            establishes a  special rule  with a  more favorable  standard            where  post-trial evidence  shows  that an  important witness            lied at trial.  Still, such a rule has no application in this            case because  the state  court complaint  does not  show that            Baranski lied at trial.                 The appeals  from the  denial of  the post-trial  motion            have  been vigorously pursued  by able defense  counsel.  The            joint  defendants'  brief,  and our  own  reading  of  all of            Baranski's  trial  testimony,   confirm  the  trial   judge's            assessment  that  Baranski's credibility  was  dubious.   But            almost  all the  material  for  making  that  assessment  was            available to  the jury, and the new  information derived from            Baranski's state court  complaint added very little.   In the                                            ____________________                 7Wright derived this  "arguably applicable" standard for                  ______            perjured  testimony  from  a 1928  Seventh  Circuit decision,            Larrison v. United States, 24 F.2d  82 (7th Cir. 1928).   See            ________    _____________                                 ___            625 F.2d at 1020.                                         -16-                                         -16-            end, there is  less to the defense argument  than first meets            the eye, and certainly not enough to "undermine confidence in            the outcome."  Bagley, 473 U.S. at 682.                           ______                 Affirmed.   The stay  of mandate  previously entered  in                 ________________________________________________________            United States  v. Sepulveda, No.  92-1362, et al.  (1st Cir.,            _____________________________________________________________            Dec. 20, 1993), is dissolved.            ____________________________                                         -17-                                         -17-
