                                            NOT PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                     No. 17-3296
                     __________

          UNITED STATES OF AMERICA

                          v.

                   ADAM SCOTT,
                           Appellant

      ____________________________________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
    (D.C. Criminal Action No. 2-10-cr-00677-001)
     District Judge: Honorable Petrese B. Tucker
     ____________________________________


    Submitted Pursuant to Third Circuit LAR 34.1(a)
                   August 26, 2019

Before: MCKEE, COWEN and RENDELL, Circuit Judges


          (Opinion filed: September 18, 2019)




                    ___________
                                      O P I N I O N*
                                      ___________

PER CURIAM

       Adam Scott appeals from the denial of his motion for a new trial under Fed. R.

Crim. P. 33, which was addressed to certain wiretap evidence. We will affirm.

                                             I.

       In 2012, Scott was convicted of federal drug and firearm offenses. The evidence

against him at trial included the testimony of his co-conspirator and co-defendant Vincent

Marchant, the testimony of another of Scott’s co-conspirators Darryl Naylor, and

substantial physical evidence. The evidence also included wiretap communications

intercepted pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of

1968, which were subject to the sealing requirement of 18 U.S.C. § 2518(8)(a).

       After Scott’s conviction, but before his sentencing, he moved for a new trial under

Rule 33 on the ground that the Government had failed to produce orders sealing the

wiretaps. After the Government produced those orders, Scott argued to the District Court

that the orders required a new trial because they revealed the basis for a motion to

suppress. The District Court invited Scott to make a motion to suppress if he wished, but

Scott did not do so and the District Court found that the delayed production of the sealing




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
orders did not prejudice him. The District Court then denied Scott’s Rule 33 motion and

sentenced him to 300 months in prison.

       Scott appealed and argued, inter alia, that the sealing orders revealed that the

wiretaps were not timely sealed, 1 that the alleged defect required suppression of the

wiretap evidence and a new trial, and that the District Court should have held a hearing

on that issue. We affirmed. See United States v, Scott, 607 F. App’x 191 (3d Cir. 2015).

In doing so, we held that Scott waived his wiretap-related arguments by failing to file a

motion to suppress as the District Court invited him to do. See id. at 199-201.

       About three months later, Scott filed a second Rule 33 motion for a new trial,

which is the motion at issue here. The timing of Scott’s motion required it to be based on

“newly discovered evidence.” Fed. R. Crim. P. 33(b). Scott, however, again relied on

the same wiretap sealing orders and again argued that the wiretap evidence should be

suppressed because the wiretaps were not timely sealed. In particular, Scott challenged

the sealing of three sources of wiretap evidence. The first was a wiretap on the phone of

Scott’s co-conspirator and co-defendant Marchant. The second were wiretaps on two of

Scott’s own phones registered under the names “Leonardo DiCaprio” and “Jason James.”

The third was a wiretap on the phone of Philip Dimatteo, who was neither a defendant




1
  Communications intercepted pursuant to a Title III wiretap order must be made
available to a judge and sealed “[i]mmediately upon the expiration of the period of the
order, or extensions thereof[.]” 18 U.S.C. § 2518(8)(a). We have interpreted
“immediately” to mean “as soon as administratively practical.” United States v. Carson,
969 F.2d 1480, 1487 (3d Cir. 1992).

                                              3
nor a witness at trial. Scott also argued that the Government’s failure to produce the

sealing orders earlier violated Brady v. Maryland, 373 U.S. 83 (1963).

       In response to Scott’s motion, the Government requested an evidentiary hearing.

Thus, the District Court held a hearing at which the Government presented testimony on

the circumstances surrounding the sealing of these wiretaps and at which Scott

questioned the witnesses and made argument pro se.

       The District Court later denied Scott’s motion. The District Court, applying the

framework set forth in United States v. Ojeda Rios, 495 U.S. 257, 266-67 (1990), and

Carson, 969 F.2d at 1487, concluded that the Marchant wiretap evidence was timely

sealed. The court further concluded that, even if it were not, a new trial was not

warranted because suppression of that evidence would not likely have resulted in

acquittal given the other evidence against Scott, including Marchant’s testimony.

       In light of its ruling on the Marchant wiretap evidence, the District Court found it

unnecessary to address sealing of the Scott wiretap evidence because it concluded that all

communications intercepted by that wiretap also were intercepted and available through

the Marchant wiretap. The District Court further found it unnecessary to address the

Dimatteo wiretap because Dimatteo was not a witness or defendant, the Government did

not introduce any evidence relating to the Dimatteo wiretap, and Scott provided no reason

to believe that the Dimatteo wiretap had any bearing on the case against him. Finally, the

District Court concluded that the wiretap sealing orders were not material evidence under




                                             4
Brady because, for the reasons it previously explained, they were not reasonably likely to

result in suppression. Scott appeals. 2

                                              II.

       The Government argues for the first time on appeal that Scott waived the wiretap

sealing issue and that his evidence was not “newly discovered” for purposes of Rule 33

because Scott relied on the same sealing orders in his previous Rule 33 motion and we

affirmed the denial of that motion on the ground that Scott had waived his wiretap-related

challenges. The Government is right and, if it had taken that position in the District

Court, that should have been the end of the matter.

       As explained above, however, the Government instead affirmatively requested an

evidentiary hearing. (ECF No. 201 at 13). The Government does not acknowledge that

request in its brief, though it concedes that it did not raise these arguments below. The

Government nevertheless argues that we should affirm on these alternative grounds

because they are supported by the record. We could do so if the Government merely

forfeited these issues as opposed to affirmatively waiving them. See TD Bank N.A. v.

Hill, 928 F.3d 259, 276 n.9 (3d Cir. 2019). There may be some question in that regard

because it appears that the Government’s request for a hearing may have been based on

its misunderstanding of our prior decision.




2
  We have jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion the
District Court’s denial of a Rule 33 motion for a new trial, though in doing so we review
legal issues de novo. See United States v. Quiles, 618 F.3d 383, 390 (3d Cir. 2010).

                                              5
           We need not resolve that issue, however, because we can resolve this appeal on

other grounds, including in large part a different waiver or forfeiture of Scott’s own. 3 As

explained above, the District Court held that the Marchant wiretap evidence was timely

sealed and, in light of that ruling, it did not address the sealing of the Scott wiretap

evidence. It also did not address the sealing of the Dimatteo wiretap evidence because

Scott raised nothing suggesting that such evidence had any bearing on the case against

him. Thus, the District Court addressed the sealing of the Marchant evidence only.

           Scott, however, does not challenge the District Court’s ruling on the Marchant

evidence at all. Instead, he writes in his opening brief that he “will focus on the two Scott

wiretaps and the Dimatteo wires” and proceeds to raise arguments addressed to the

sealing of that evidence only. (Appellant’s Br. at 1.) And even after the Government

pointed out as much, Scott did the same in reply. Thus, Scott has provided us with no

basis to review whether the sealing of the Marchant evidence was timely. We decline to

do so. 4


3
  We have liberally construed Scott’s pro se filings in reaching this conclusion. We note,
however, that Scott is a sophisticated litigant who had the benefit of a thorough counseled
brief raising these wiretap issues in his prior appeal. We also note that Scott was on
notice from our decision in his prior appeal of the need to properly raise issues in order to
preserve them.
4
  We note, however, that the plain language of the relevant statute suggests that the
Marchant evidence was timely sealed. Wiretap evidence must be sealed “[i]mmediately
upon the expiration of the period of the order, or extensions thereof[.]” 18 U.S.C. §
2518(8)(a) (emphasis added). In this case, surveillance of Marchant ended with his arrest
on June 2, 2010, and the wiretap evidence was sealed on June 10, 2010. The Marchant
wiretap order, however, did not expire until June 25, 2010. Thus, the evidence was
sealed even before the time required by the plain language of the statute. Despite that
plain language, and as the District Court noted, we have suggested that the relevant
statutory scheme might require the sealing of wiretap evidence as soon as practical after
                                                6
       Scott’s arguments regarding the Scott and Dimatteo wiretaps do not meaningfully

challenge the District Court’s rulings or otherwise provide any basis to disturb its

decision. First, while Scott argues that the Scott wiretap evidence was not timely sealed,

he does not challenge or even acknowledge the District Court’s ruling that all the

communications intercepted as a result of the Scott wiretaps also were intercepted and

available under the Marchant wiretap. The Government, to its credit, concedes that there

were two exceptions. After surveillance under the Marchant wiretap ended, detectives

intercepted through the Scott “Jason James” wiretap one conversation with and one

voicemail left by one “Lopez,” whom Scott’s co-defendant Naylor identified at trial as

one of Scott’s suppliers. In the brief conversation, Scott asked, “is it here?” and Lopez

answered “no . . . maybe on Friday.” Similarly, in a voicemail that Lopez left for Scott

several days later, Lopez said “call me, it’s ready.” 5 Neither the conversation nor the

voicemail revealed the identity of the “it.” The Government argues that suppression of

this information could not possibly have made a difference at trial given Naylor’s

extensive testimony about his and Scott’s dealings with Lopez and all of the other

evidence against Scott. Scott has not argued otherwise and, in any event, we agree.




surveillance ends. See United States v. Vastola, 915 F.2d 865, 875 n.16 (3d Cir. 1990).
In light of Scott’s waiver or forfeiture of this issue, we decline to resolve it in this case.
5
 The conversation and voicemail were admitted at trial as the Government’s Exhibits 94a
and 100a and are included in the appendix filed in Scott’s previous appeal, C.A. No. 13-
3572, at App’x 1149-50 and 1156.

                                               7
       Second, Scott also has provided no basis to disturb the District Court’s conclusion

that it was not necessary to address the sealing of the Dimatteo wiretap evidence. Scott

asserts without elaboration in his opening brief that “[e]vidence derived from those wires

was used at trial.” (Appellant’s Br. at 5.) For the first time in reply, he then asserts that

the warrant used for a GPS search that resulted in his apprehension “contained evidence

derived directly from the two Dimatteo wiretaps.” (Appellant’s Reply Br. at 8.) Even in

reply, however, Scott has provided no details in that regard. Among other things, he has

not specified what evidence derived from the Dimatteo wiretaps was included in that

warrant or provided any reason to believe that its exclusion would have resulted in a lack

of probable cause (which the Government argues at length it would not have done). 6

       Finally, Scott argues that the District Court erred in denying his Brady claim based

on the Government’s belated production of the sealing orders. The District Court denied

that claim on the ground that, as it discussed in connection with the Marchant wiretap,

earlier production of the sealing orders would not have resulted in suppression.

       Once again, Scott has not addressed that issue. Instead, he devotes most of his

briefing on this point to arguing that the Government waived any objection to his Brady

claim by failing to contest it below. Even if the Government had waived any objection, it

is rarely appropriate to disturb a conviction on the basis of a default. Cf. Bleitner v.

Welborn, 15 F.3d 652, 653 (7th Cir. 1994) (addressing habeas challenge). In any event,


6
 It appears to remain an open question in this Circuit whether a delay in sealing wiretap
evidence prevents its use to show probable cause for other searches. See Carson, 969
F.2d at 1500; Vastola, 915 F.2d at 876 n.19. We need not address that issue today.

                                               8
the Government argued below that the sealing orders did not reveal a basis to suppress

the wiretap evidence, and that is the ground on which the District Court denied Scott’s

Brady claim. Scott has not meaningfully challenged that point as discussed above.

                                            III.

       For these reasons, we will affirm the judgment of the District Court. Scott’s
emergency motion to stay this appeal is denied. 7 To the extent that Scott’s filings can be
construed to request any other form of relief, including oral argument, they are denied as
well.




7
  Scott asks that we stay this appeal so that the Government can “respond” to new
evidence that he claims to have discovered and so that he can raise his new evidence with
the District Court. Scott’s motion is not an emergency, and there is no reason for a stay.
The Marchant wiretap evidence at issue here was from 2010, and there is no dispute that
(the sealing issue aside) the Government fully disclosed that evidence. Scott now claims
that he recently discovered the existence of a previous Marchant wiretap in 2009 that the
Government never disclosed. That issue is different and does not warrant consideration
by the District Court before resolution of this appeal. Thus, Scott’s request to stay this
appeal is denied. Scott further requests that, if we decline to stay this appeal, we provide
instructions on how he should proceed with his new claim in the District Court. We
decline to provide that legal advice. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
243-44 (3d Cir. 2013). Thus, we express no opinion on whether or how Scott can raise
this claim with the District Court, which can address that issue if necessary in the first
instance.
                                             9
