                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-2871
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                MICHAEL F. DURANTE,
                                              Appellant
                                    ____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                             (D.N.J. No. 2-11-cr-00277-001)
                      District Judge: Honorable Stanley R. Chesler
                                       ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    April 6, 2017

             Before: CHAGARES, SCIRICA and FISHER, Circuit Judges.

                                   (Filed: May 9, 2017)
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       A jury convicted Michael Durante of one count of conspiracy to distribute

oxycodone and fifteen counts of distribution of oxycodone. In this appeal, Durante

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
challenges the District Court’s denial of his motion for a new trial under Federal Rule of

Criminal Procedure 33 based on an alleged violation of Brady v. Maryland.1 For the

reasons stated below, we will affirm.

                                              I.

       Durante was a physician with a practice in New Jersey. A federal sting operation

revealed that he had been illegally selling prescriptions for oxycodone to two drug-

distribution networks: one run by codefendant Andre Domando, and one by codefendant

Dennis Abato. After Durante’s arrest, Abato cooperated with the Government. During his

proffer sessions, Abato told the prosecutor that a third party altered (“washed”) Durante’s

prescriptions when necessary, and he produced a prescription from Durante dated four

days after Durante’s arrest. After determining that the prescription was not actually

written by Durante, the prosecutor emailed Durante’s counsel a copy of the prescription,

noted that it appeared to be altered, and invited counsel to review the original.

       At trial, the prescription from Abato’s proffer session was admitted into evidence.

Neither the Government nor Durante called Abato as a witness. The Government did,

however, call Abato’s son Jeffrey. On direct examination, Jeffrey recognized Durante’s

handwriting on multiple prescriptions. On cross-examination, defense counsel questioned

Jeffrey about the prescription from Abato’s proffer session. Jeffrey testified that the

handwriting on the prescription “appear[ed] to have some of [his] father’s


       1
           373 U.S. 83 (1963).
                                              2
characteristics.”2 Ultimately, the jury found Durante guilty. Durante unsuccessfully

appealed his conviction.3

       Abato pleaded guilty to one count of conspiracy to distribute oxycodone. Prior to

his sentencing, the Government submitted a U.S.S.G. § 5K1.1 letter to reflect Abato’s

cooperation in Durante’s prosecution. At Abato’s sentencing hearing, the prosecutor

discussed the submission and stated:

       [O]ne of the things that we detail is the fact that [Abato] told us that he had
       these prescriptions and he received them on the roadside from Durante after
       his arrest. And that [disclosure] was about a year after the arrest. And what
       it appears he was doing was covering up the fact that, presumably because
       of his addiction or other reasons, he had washed prescriptions and changed
       ordinary prescriptions and submitted them to pharmacies about a year
       earlier.

              So, in the next session he presented us with one of these
       prescriptions that he had done a poor job of washing and apparently that’s
       why it was never presented to a pharmacy as kind of evidence of, you
       know, what he was doing.4

The court then asked the prosecutor to clarify that Abato “wasn’t telling [the

prosecutor] this was a washed prescription. He was telling [the prosecutor] this

was a prescription which, in fact, Dr. Durante issued to [Abato] for the narcotic,”

to which the prosecutor responded, “Yes. . . . You only needed to look at it for a




       2
         Suppl. App. 148:70.
       3
         United States v. Durante, 612 F. App’x 129 (3d Cir. 2015).
       4
         Suppl. App. 174-75.
                                            3
minute and then you could clearly see it, as the defense counsel effectively

displayed [to] the jury that it had been washed.”5

         Arguing that the prosecutor’s statements at Abato’s sentencing hearing

showed that the Government violated Brady by withholding “evidence that Abato

had admitted forging prescriptions and filling those forgeries,” Durante moved for

a new trial under Rule 33.6 The District Court held a Rule 33 hearing and

ultimately denied the motion. The court determined that no Brady evidence had

been suppressed and that the alleged nondisclosure was immaterial to Durante’s

guilt.

                                              II.

         The District Court had jurisdiction under 28 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291. When a Rule 33 motion for a new trial is

based on a Brady claim, we review questions of law de novo and questions of fact

for clear error.7

                                              III.

         Rule 33 states that “the court may vacate any judgment and grant a new trial if the

interest of justice so requires.”8 In order to show that the interest of justice requires a new

trial under Brady, Durante must show that “(1) evidence was suppressed; (2) the

         5
           Suppl. App. 175-76.
         6
           App. 33.
         7
           United States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005).
         8
           Fed. R. Crim. P. 33(a).
                                               4
suppressed evidence was favorable to the defense; and (3) the suppressed evidence was

material either to guilt or to punishment.”9

       Durante’s claim fails on the first prong. He has not shown that evidence was

suppressed under Brady. The prosecutor prefaced his statements at Abato’s sentencing

hearing by saying, “what it appears [Abato] was doing was covering up the fact that” he

altered prescriptions.10 And at the Rule 33 hearing, the prosecutor testified that at the time

of trial, the Government had “no information as to whether Dennis Abato truly was

involved in washing prescriptions. He always denied it. His son implicated him but he

denied it.”11 The prosecutor’s testimony is plausible because had Abato admitted to

altering or filling altered prescriptions, he would not have needed to cover up that fact.

       Moreover, the record is devoid of support for Durante’s claim that the prosecutor’s

statements at Abato’s sentencing hearing were based on evidence that was not disclosed

to Durante’s counsel. At the Rule 33 hearing, Durante conceded that the Government

made multiple pretrial disclosures related to the substance of Abato’s proffer sessions

and, specifically, of washed prescriptions pertaining to Abato. It is plausible that the

prosecutor questioned the veracity of Abato’s claimed innocence based on Abato’s

inconsistent disclosures regarding his role in the conspiracy and his counsel’s concession

that Abato was still using narcotics when he began cooperating with the government.


       9
         Pelullo, 399 F.3d at 209.
       10
          Suppl. App. 148:70 (emphasis added).
       11
          App. 69:10.
                                           5
Finally, not only did the prosecutor disclose his suspicion that the prescription that Abato

produced in the proffer session was altered, but, Abato’s son also testified that the

handwriting on that prescription bore similar characteristics to his father’s handwriting.

The District Court’s determination that no evidence was suppressed under Brady was

based on testimony that is “coherent and plausible, not internally inconsistent and not

contradicted by external evidence.”12

       As we find that no evidence was suppressed under Brady, we need not reach

Durante’s challenge to the District Court’s determination that the alleged nondisclosure

was immaterial to Durante’s guilt.13 Because Durante fails to establish a claim under

Brady, he fails to show that the District Court erred in denying his Rule 33 motion for a

new trial.

                                             IV.

       For the reasons set forth above, we will affirm.




       12
            United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997).
       13
            See Pelullo, 399 F.3d at 210.
                                              6
