         13-3520-cr
         United States v. Wade



                                 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 TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       13th day of November, two thousand fourteen.
 4
 5       PRESENT:
 6                   PIERRE N. LEVAL,
 7                   GERARD E. LYNCH,
 8                   CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10       _____________________________________
11
12       UNITED STATES OF AMERICA,
13
14                                Appellee,
15
16                         v.                                                No. 13-3520-cr
17
18       JULIAN V. WADE,
19
20                         Defendant-Appellant.
21       _____________________________________
22
23
24       FOR APPELLANT:                               Patrick J. Brown, LoTempio & Brown, Buffalo,
25                                                    NY.
26
27       FOR APPELLEE:                                Stephan J. Baczynski, Assistant United States
28                                                    Attorney, for William J. Hochul, Jr., United
29                                                    States Attorney for the Western District of New
30                                                    York, Buffalo, NY.
 1          Appeal from a judgment of the United States District Court for the Western

 2   District of New York (William M. Skretny, Chief Judge).

 3          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment is AFFIRMED.

 5          On December 21, 2010, defendant-appellant Julian Wade was found guilty of:

 6   possessing with intent to distribute five grams or more of cocaine base, see 21 U.S.C.

 7   § 841(a)(1), (b)(1)(B) (“Count 1”); possessing more than five grams of cocaine base, see

 8   id. § 844(a) (“Count 2”); possessing a firearm during and in relation to the foregoing drug

 9   crimes, see 18 U.S.C. § 924(c) (“Count 3”); and possessing a firearm and ammunition as

10   a convicted felon, see id. § 922(g)(1) (“Count 4”). On March 7, 2012, Wade was

11   sentenced principally to 120 months’ imprisonment on Count 1; 60 months’

12   imprisonment on Count 2, to run concurrently with Count 1; 60 months’ imprisonment on

13   Count 3, to run consecutively to Count 1; and 60 months’ imprisonment on Count 4, to

14   run concurrently with Count 1.

15          Wade appealed his conviction and sentence, asserting a number of trial errors and

16   contending that his sentence did not accord with the Fair Sentencing Act of 2010, Pub. L.

17   No. 111-220, 124 Stat. 2372 (Aug. 3, 2010) (“FSA”). We agreed that his sentence did not

18   accord with the FSA but rejected his remaining arguments, and therefore “vacate[d]

19   Wade’s sentences on Counts 1 and 2 and remand[ed] for the limited purpose of

20   resentencing on those counts pursuant to the FSA.” United States v. Wade, 512 Fed.

21   App’x 11, 16 (2d Cir. 2013).

                                                  2
 1          On remand, Wade moved pursuant to Fed. R. Cr. P. 33 for a new trial based on

 2   newly discovered evidence, because the Erie County forensics laboratory that analyzed

 3   DNA evidence in his case had subsequently changed its reporting thresholds such that the

 4   number of persons who could not be excluded as the source of the DNA was reduced

 5   from 1 in 56,400 to 1 in 170. The district court denied Wade’s motion on the grounds

 6   that the revised threshold did not constitute new evidence and would not be likely to

 7   result in an acquittal. At the resentencing, Wade argued that – despite the limited remand

 8   – he should be resentenced on Count 4 as well as Counts 1 and 2, because “the reversal

 9   [on Counts 1 and 2] effectively undoes the entire knot of calculation.” United States v.

10   Quintieri, 306 F.3d 1217, 1228 (2d Cir. 2002). The court sentenced Wade to 60 months’

11   imprisonment on Count 1 and 24 months imprisonment on Count 2, to run concurrently

12   with Count 1, leaving in place the 60-month consecutive sentence on Count 3. Based on

13   these sentences, the court determined it did not need to reconsider the 60-month

14   concurrent sentence for Count 4.

15          In this appeal, Wade argues that the district court erred in: (1) denying his Rule 33

16   motion for a new trial; and (2) failing to resentence him on Count 4. We assume the

17   parties’ familiarity with the facts and procedural history, which we reference only as

18   necessary to explain our decision.

19          1.     Rule 33 Motion

20          A defendant seeking a new trial on the basis of newly discovered evidence must

21   show: (1) “the evidence [is] newly discovered after trial”; (2) “due diligence . . . to obtain

                                                   3
 1   the evidence” prior to trial; (3) the “evidence is material”; (4) the evidence “is not merely

 2   cumulative or impeaching”; and (5) “the evidence would likely result in an acquittal.”

 3   United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007). “[A] district court must exercise

 4   great caution in determining whether to grant a retrial on the ground of newly discovered

 5   evidence, and may grant the motion only in the most extraordinary circumstances.”

 6   United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993) (internal quotation marks

 7   omitted). “We review a district court’s denial of a Rule 33 motion deferentially and will

 8   reverse only for abuse of discretion.” United States v. Snype, 441 F.3d 119, 140 (2d Cir.

 9   2006).

10            Here, the district court correctly concluded that the Erie County laboratory’s

11   subsequently revised threshold did not warrant a new trial. On cross-examination at trial,

12   Wade’s attorney had elicited from the laboratory’s forensics expert that the 1 in 56,400

13   figure was based on a threshold that was “subjective to the laboratory.” See United States

14   v. Wade, 1:09-cr-00260, Doc. 121 at 177. The expert acknowledged that “a laboratory in

15   [another city] may have a higher threshold” and that the “[s]ame is true with every other

16   laboratory in the country.” Id. at 176-77. Thus, it was clear at the time of Wade’s trial

17   that the number of people that could be excluded as a DNA match depended on a

18   threshold that was “subjective” rather than scientifically precise, and that varied among

19   laboratories. That remains so whether the alternative threshold was one used by a

20   different laboratory at the time of Wade’s trial, or one subsequently used by the Erie

21   County laboratory.

                                                    4
 1          Given the other evidence – which included evidence that the gun and drugs had

 2   been found under the mattress shared by Wade and his girlfriend, and that the DNA was

 3   definitely not from the girlfriend – and the jury’s awareness that the threshold was

 4   subjective, we find no abuse of discretion in the district court’s conclusion that evidence

 5   of the revised threshold was not likely to result in an acquittal. “[H]aving presided over

 6   the trial, the [district court] is in a better position to decide what effect the newly

 7   discovered materials might have had on the jury.” United States v. Gambino, 59 F.3d

 8   353, 364 (2d Cir.1995).

 9          2.      Resentencing on Count 4

10          While “resentencing should be limited when the Court of Appeals upholds the

11   underlying convictions but determines that a sentence has been erroneously imposed and

12   remands to correct that error[,] . . . there may be circumstances when we reverse a

13   sentence in which the ‘spirit of the mandate’ requires de novo sentencing, for example

14   when the reversal effectively undoes the entire ‘knot of calculation.’” Quintieri, 306 F.3d

15   at 1228 (emphasis omitted). This may occur when “a sentencing determination had no

16   practical effect on a defendant’s sentence at the original sentencing but becomes relevant

17   only after appellate review,” in which case “a defendant is free to challenge that

18   sentencing determination” even on a limited remand. Id. at 1229-30.

19          Wade argues that by not resentencing him on Count 4, the court erroneously

20   allowed “the sentence on [C]ount 4 [to] control[] the sentencing range on [C]ount 1 by

21   effectively creating a 60 month minimum sentence.” Appellant’s Br. at 19. This

                                                     5
 1   misconstrues the order in which the district court approached Wade’s resentencing. The

 2   court first determined that 60 months was the appropriate sentence on Count 1, while

 3   clearly understanding it had the authority to impose a lesser sentence. It then concluded

 4   that, as the 60-month sentence on Count 4 would run concurrently with the 60-month

 5   sentence on Count 1, there was no need to revisit the sentence on Count 4. Because the

 6   sentence on Count 4 did not affect the overall sentence length on either the original or the

 7   revised package of sentences, the reduction of the sentences on Counts 1 and 2 did not

 8   “effectively undo[] the entire ‘knot of calculation.’” Quintieri, 306 F.3d at 1228. We

 9   therefore conclude that the district court did not err in declining to resentence Wade on

10   Count 4.

11          We have considered all of Wade’s remaining arguments and find them to be

12   without merit. Accordingly, the judgment of the district court is AFFIRMED.

13                                             FOR THE COURT:
14                                             Catherine O’Hagan Wolfe, Clerk
15
16




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