                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 14-3881
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                                   PRINCE ISAAC,
                                    a/k/a Connect
                                    a/k/a Connetti
                                      a/k/a Boo

                                    Prince Isaac,
                                                Appellant
                                  _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. No. 2-05-cr-00576-001)
                      District Judge: Honorable Juan R. Sanchez
                                   _______________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 21, 2015

      Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges.

                             (Filed: September 30, 2015)
                                  _______________

                                     OPINION*
                                  _______________



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


       Prince Isaac appeals the District Court’s order denying his motion for a new trial

based on newly discovered evidence.1 For the reasons that follow, we will affirm.


                                            I.


       On November 17, 2008, Isaac was sentenced to life imprisonment for numerous

federal offenses stemming from his involvement in a Pennsylvania drug-trafficking ring.

Isaac’s convictions included four counts of distribution of crack cocaine,2 one count of

conspiracy to distribute cocaine,3 and one count of engaging in continuing criminal

enterprise.4


       Lindsay Colon, Isaac’s former girlfriend, was one of the Government’s main

witnesses at trial, where she testified regarding her interactions with Isaac and his co-

conspirator, Shamek Hynson. Colon explained that she saw the two with weapons

multiple times and witnessed Isaac sell crack cocaine, heroin, and marijuana. Ultimately,

Colon’s testimony accounted for 85 of the 135.2 grams of crack cocaine and heroin




1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291. We “review a district court’s ruling on a motion for a new trial on the
basis of newly discovered evidence for abuse of discretion. However, where, as here, the
motion for a new trial is based on a Brady claim, which presents questions of law as well
as questions of fact, we will conduct a de novo review of the district court’s conclusions
of law as well as a ‘clearly erroneous’ review of any findings of fact.” United States v.
Pelullo, 399 F.3d 197, 202 (3d Cir. 2005) (internal citation and quotation marks omitted).
2 21 U.S.C. § 841(a)(1).
3 21 U.S.C. § 846.
4 21 U.S.C. § 848.


                                            2
underlying Isaac’s conspiracy charge, and supported Isaac’s criminal enterprise

conviction as well.


       Of particular relevance, Colon also testified about a trip Isaac and Hynson made to

South Carolina on October 14-18, 2004. According to Colon, Isaac left her with his

cellphone and 28 grams of crack cocaine to sell on his behalf while he was away. Colon

explained that she used Isaac’s cellphone to sell 20 of the 28 grams, and this testimony

ultimately served as the primary basis for one of Isaac’s distribution of crack convictions

(Count 5). Colon testified that Isaac’s cellphone number was 717-203-3409, but never

confirmed that Isaac had only one cellphone or that the cellphone he gave her used this

number. At trial, the Government produced phone records (“Set 1”) that showed the

frequency, date, duration, and subscriber for each number dialed from 717-203-3409

from October 14-18, 2004. These records, however, provided no information about

incoming calls.


       Shanika Wilson, Hynson’s former girlfriend, corroborated Colon’s story about

selling drugs for Isaac. Wilson testified that she and Colon sold ten, twenty, and fifty

dollar packages of crack cocaine together while Isaac and Hynson were in South

Carolina. Further, Wilson recalled that she and Colon had five or six customers per day

during this time. Wilson, however, could not recall specific dates, quantities of drugs

sold, or whether Isaac’s cellphone was used to facilitate the sales.


       In April 2009, Isaac filed a post-conviction motion for a new trial pursuant to

Federal Rule of Criminal Procedure 33. Isaac argued that the Government failed to

                                              3
disclose four pieces of material evidence in violation of his due process rights under

Brady v. Maryland.5 Most relevant is a set of undisclosed phone records (“Set 2”), which

indicate that none of the 165 incoming calls made to 717-203-3409 from October 14-18,

2004, were answered.       The District Court found that the Government improperly

suppressed the Set 2 phone records but ultimately denied Isaac’s motion for a new trial

because such evidence was immaterial to Isaac’s convictions. We agree.


                                             II.


       Under Brady v. Maryland, the Government must provide the defense with all

exculpatory evidence and impeachment material that it possesses or could obtain through

due diligence. 6 To establish a due process violation meriting a new trial under Brady, a

defendant must prove that: “(1) evidence was suppressed; (2) the suppressed evidence

was favorable to the defense; and (3) the suppressed evidence was material either to guilt

or to punishment.”7 Evidence is material when “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have

been different.”8   A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.”9 Materiality, however, is not determined by a sufficiency of

the evidence test, such that a defendant is not required to show “that disclosure . . . would
5
  373 U.S. 83 (1963).
6 Brady protects undisclosed impeachment evidence if “the reliability of a given witness
[is] determinative of guilt or innocence.” Giglio v. United States, 405 U.S. 150, 154
(1972) (internal quotation marks omitted); Brady, 373 U.S. at 87.
7 Pelullo, 399 F.3d at 209 (quoting United States v. Dixon, 132 F.3d 192, 199 (5th Cir.

1997)).
8 Kyles v. Whitley, 514 U.S. 419, 433 (1995) (internal quotation marks omitted).
9 United States v. Bagley, 473 U.S. 667, 682 (1985).


                                             4
have resulted . . . in the defendant’s acquittal.”10 Ultimately, we consider the cumulative

effect of all undisclosed evidence rather than evaluating each piece individually.11


       On appeal, Isaac’s main argument is that the District Court erred in holding that

the Set 2 records failed to satisfy the third prong of Brady. The Government concedes

that the Set 2 records were improperly suppressed and favorable to Isaac because the

evidence could have been used to impeach Colon. Therefore, the first two prongs of

Brady are satisfied. With respect to the third prong, Isaac maintains that the records were

material to the outcome of his trial, particularly with respect to his Count 5 conviction for

distribution of crack.12 According to Isaac, his Count 5 conviction was solely supported

by Colon’s testimony that she used Isaac’s cellphone to sell 20 grams of crack while he

was in South Carolina. Because the Set 2 records suggest that Colon did not use Isaac’s

cellphone during his trip, Isaac contends that the undisclosed records contradict Colon’s

testimony and infect the entire trial.


       Isaac’s argument ignores the corroborative value of Shanika Wilson’s testimony.

Wilson testified that she and Colon sold ten, twenty, and fifty dollar packages of crack


10
   Kyles, 514 U.S. at 434.
11
   Id. at 436-37. Isaac also identified three additional pieces of undisclosed evidence: (1)
investigation notes indicating that Colon had charges pending against her; (2) a signed
version of Colon’s witness statement; and (3) a Government memorandum stating that
witness Tracy Ramirez was no longer cooperating with authorities.
12 Isaac briefly argues that the cumulative effect of the Set 2 records plus the three

additional pieces of undisclosed evidence constitute a Brady violation. He does not
describe the additional undisclosed evidence in detail, nor does he explain why it
undermines confidence in any of his convictions. In any event, we agree with the District
Court that the cumulative effect of all undisclosed evidence was immaterial to the
outcome of Isaac’s trial and fails to meet the third prong of Brady.
                                             5
while Isaac and Hynson were in South Carolina, and recalled having five or six

customers per day during this time. Isaac questions Wilson’s credibility because she did

not know certain details about the sales, including who supplied Colon with the drugs and

whether Isaac’s cellphone was used in the process. Nevertheless, Wilson’s testimony

never contradicted Colon’s story and corroborates Colon’s account of selling drugs for

Isaac between October 14 and October 18, 2004.13 Due to the corroborative value of

Wilson’s testimony, we find it unlikely that the Set 2 records would have affected the

outcome of Isaac’s Count 5 conviction.


      Isaac briefly argues the Set 2 records would have undermined the confidence in

his other convictions as well, namely his conviction for participating in a criminal

enterprise. Although many witnesses testified against Isaac, he argues that Colon’s

testimony was crucial because she had the most firsthand knowledge of his activities.

According to Isaac, the Set 2 records would have weakened Colon’s credibility as a

whole, and all of her testimony would have been given less weight. Because numerous

other witnesses testified against Isaac and corroborated Colon’s stories, Colon’s

testimony, while important, was simply one of many to support this count.14


13
   Isaac maintains that the Set 2 records directly contradict Colon’s testimony because she
testified that his phone number was 717-203-3409. However, Colon never testified that
Isaac had only one phone number, or that the phone she was given used this number. We
agree with the District Court that although Set 2 shows that a cellphone associated with
Isaac was not answered during his trip to South Carolina, the records “do[] not foreclose
the possibility Colon sold drugs on his behalf during that time,” and therefore would have
been unlikely to impact the entire trial. App. 13.
14 Other evidence supporting Isaac’s convictions include: Deborah and Michael Sherr’s

testimony that they let Isaac borrow their car in exchange for crack; Tracy Ramirez’s
                                            6
Accordingly, the Set 2 records would not have diluted the confidence in Isaac’s other

convictions, including that for engaging in a criminal enterprise.15


                                            III.


       Because the undisclosed phone records do not undermine confidence in any of

Isaac’s convictions, we find that there has been no Brady violation. Accordingly, we will

affirm the District Court’s order denying Isaac’s motion for a new trial.




testimony about selling crack for Isaac; James Cuffie’s testimony about being recruited
by Isaac to sell drugs in Lancaster; Edward Cameron’s testimony about being shot by
Hynson who was in a car driven by Isaac; and Officer Gareth Lowe’s testimony about
arresting Isaac and Cuffie, who were in possession of drugs and cash at the time.
15 Isaac argues that the District Court improperly applied a sufficiency of the evidence

test when it considered other witnesses’ testimony to decide whether the Set 2 records
were material. As the Government points out, Kyles prohibits a sufficiency of the
evidence test to decide materiality, but does not require the District Court to ignore the
entire trial record in reaching its conclusion. 514 U.S. 419.
                                             7
