17-810-cr
United States v. Davis

                              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 March, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            CHRISTOPHER F. DRONEY,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                Appellee,

                         v.                                                 17-810-cr

MATTHEW DAVIS, AKA SEALED DEFENDANT 1,
AKA MATT,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:        Walter Mack, Doar Rieck Kaley & Mack, New York, N.Y.

Appearing for Appellee:         Jessica Lonergan, Assistant United States Attorney (Abigail
                                Kurland, Margaret Garnett, Assistant U.S. Attorneys, on the brief)
                                for Geoffrey S. Berman, U.S. Attorney for the Southern District of
                                New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (Forrest, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Matthew Davis appeals from the March 21, 2017 memorandum decision and order of the
United States District Court for the Southern District of New York (Forrest, J.) denying his
motion for a new trial pursuant to Federal Rule of Criminal Procedure 33. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        In April 2015, Davis was convicted, after a jury trial, of one count of conspiracy to
distribute five kilograms or more of cocaine and 280 grams or more of crack cocaine, in
violation of 21 U.S.C. § 846. He appealed his conviction, and this court affirmed in a summary
order. United States v. Davis, 687 F. App’x 75 (2d Cir. 2017) (summary order). Davis moved for
a new trial pursuant to Rule 33, arguing newly discovered evidence tainted his conviction.

        Davis’s Rule 33 motion was based on the testimony of Robert Parris as a government
cooperator in United States v. Jamal Smalls, No. 14-cr-167. Parris was originally a government
witness in Davis’s trial, and the government provided Davis with 18 U.S.C. § 3500 material
roughly three weeks before the trial started. The government ultimately decided against calling
Parris to testify in Davis’s trial. Davis argues that Parris’s testimony in Smalls’s trial
demonstrates that Davis was merely a friend of the Smalls family, and not a member of the
narcotics conspiracy.

        This court reviews the denial of a Rule 33 motion for a new trial for abuse of discretion.
See United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009). Federal Rule of Criminal
Procedure 33(a) provides that “[u]pon the defendant’s motion, the court may vacate any
judgment and grant a new trial if the interest of justice so requires.” In deciding a Rule 33
motion, “[t]he test is whether it would be a manifest injustice to let the guilty verdict stand.”
United States v. Lin Guang, 511 F.3d 110, 119 (2d Cir. 2007) (internal quotation marks omitted).
“For a trial judge to grant a Rule 33 motion, he must harbor a real concern that an innocent
person may have been convicted.” Id. (internal quotation marks omitted). To merit relief based
on a claim of newly discovered evidence, the burden is on the defendant to satisfy five elements:
(1) that the evidence is “newly discovered after trial;” (2) that “facts are alleged from which the
court can infer due diligence on the part of the movant to obtain the evidence;” (3) that “the
evidence is material;” (4) that the evidence “is not merely cumulative or impeaching;” and (5)
that “the evidence would likely result in an acquittal.” United States v. Owen, 500 F.3d 83, 88
(2d Cir. 2007) (internal citations omitted).

        The district court correctly determined that Davis’s Rule 33 motion satisfies none of the
standards for a successful Rule 33 motion. First, the government turned over Parris’s Section
3500 materials before trial, which included Parris’s diagram of the members of the conspiracy
and did not include Davis’s name. As the Section 3500 materials provided insight into Parris’s
testimony, and Davis’s counsel did not interview Parris or call him as a witness, Davis cannot be
said to have acted diligently.




                                                 2
       Nor can the evidence be considered material, or even exculpatory. Parris’s testimony was
consistent with other witnesses: at best Parris’s testimony at Davis’s trial would provide material
for impeachment. Finally, the evidence is unlikely to have led to an acquittal. The testimony at
Davis’s trial provided a sufficient basis for his conviction, and nothing in Parris’s Section 3500
materials directly contradicts that evidence.

       We have considered the remainder of Davis’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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