     14-3044
     United States v. Barcelo
                                 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.
 1
 2          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 3   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 14th day of October, two thousand fifteen.
 5
 6   PRESENT: GERARD E. LYNCH,
 7            RAYMOND J. LOHIER JR.,
 8            SUSAN L. CARNEY,
 9                Circuit Judges,
10   _____________________________________
11
12   UNITED STATES OF AMERICA,
13                           Appellee,
14
15                              v.                                   No.    14-3044
16
17   VICTOR BARCELO,
18                                       Defendant-Appellant.
19   _____________________________________
20
21   FOR APPELLANT:                      Charles F. Willson, Nevins Law Group LLC
22                                       East Hartford, CT.
23
24                                       Victor Barcelo, pro se, Fort Dix, NJ, submitted a
25                                       supplemental brief
26
27   FOR APPELLEE:                       Brendan F. Quigley, Daniel S. Noble, Justin Anderson,
28                                       Assistant United States Attorneys, for Preet Bharara,
29                                       United States Attorney for the Southern District of New
30                                       York, New York, NY.
31

32
 1          Appeal from the United States District Court for the Southern District of New

 2   York (Richard J. Sullivan, J.).

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

 4   AND DECREED that the judgment of the district court is AFFIRMED.

 5          Defendant Victor Barcelo appeals from his conviction, after a jury trial, for

 6   conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(b)(1)(c) and 846.

 7   Barcelo argues that the district court erred in denying his motions for a mistrial, a new

 8   trial, and a reopened suppression hearing, alleging multiple violations of his rights under

 9   Brady v. Maryland, 373 U.S. 83 (1963). Barcelo also argues in a pro se brief that his

10   conviction must be set aside because it was obtained using perjured testimony. We

11   assume the parties’ familiarity with the facts, to which we refer only as necessary to

12   explain our decision to affirm the conviction.

13          We review the denial of a motion for a mistrial or new trial “for an abuse of

14   discretion” and “accept the district court’s factual findings unless they are clearly

15   erroneous.” United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (internal

16   quotation marks omitted); see also United States v. Deandrade, 600 F.3d 115, 118 (2d

17   Cir. 2010). Motions for a new trial “should be granted only with great caution and in the

18   most extraordinary circumstances.” United States v. Stewart, 433 F.3d 273, 296 (2d Cir.

19   2006) (internal quotation marks omitted).

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 1          1.     Counseled Brief

 2          Barcelo primarily argues that he is entitled to a new trial and the reopening of the

 3   suppression hearing because the government failed to disclose the statements of Eric

 4   Arellano, a cooperating witness whose version of the stop of Barcelo’s tractor-trailer

 5   differed from that of two DEA agents who testified at the suppression hearing. To

 6   establish a Brady violation, a defendant must show that: (1) the undisclosed evidence was

 7   favorable to him; (2) the evidence was in the state’s possession and was suppressed, even

 8   if inadvertently; and (3) he was prejudiced as a result of the prosecution’s failure to

 9   disclose the evidence. Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001), citing Strickler

10   v. Greene, 527 U.S. 263, 281–82 (1999).

11          This Court has never addressed the question of whether the Brady disclosure

12   obligation applies to pre-trial suppression hearings. Even assuming that it does, however,

13   Barcelo’s argument that a Brady violation occurred at the suppression hearing fails. First,

14   because Arellano had not yet been questioned about the traffic stop at the time of the

15   suppression hearing, the prosecutor did not have actual possession of Arellano’s

16   testimony at that time. Nor did the prosecutor have constructive possession of Arellano’s

17   account at the time of the suppression hearing. The “prosecutor is presumed [] to have

18   knowledge of all information gathered in connection with his office’s investigation of the

19   case and indeed ‘has a duty to learn of any favorable evidence known to [] others acting

20   on the government's behalf in the case, including the police.’” United States v. Avellino,

21   136 F.3d 249, 255 (2d Cir. 1998), quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995);


                                                   3
 1   see also United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995). A prosecutor is

 2   deemed to have constructive knowledge of information known to persons who are a part

 3   of the “prosecution team.” Stewart, 433 F.3d at 298. “[T]he relevant inquiry [for

 4   determining whether a person is a member of the prosecution team] is what the person

 5   did, not who the person is.” Id. Individuals who perform investigative duties or make

 6   strategic decisions about the prosecution of the case are considered members of the

 7   prosecution team, as are police officers and federal agents who submit to the direction of

 8   the prosecutor and participate in the investigation. See United States v. Meregildo, 920 F.

 9   Supp. 2d 434, 441 (S.D.N.Y. 2013) (collecting cases).

10          Under that standard, Arellano was not a member of the “prosecution team” or an

11   “arm of the prosecutor.” Stewart, 433 F.3d at 298. We have “never held that the

12   ‘prosecution team’ includes cooperating witnesses.” United States v. Garcia, 509 F.

13   App’x 40, 43 (2d Cir. Jan. 29, 2013). Assuming without deciding that under some

14   circumstances a certain cooperating witness or informant could be found to be a member

15   of the prosecution team, this is not such a case. Barcelo concedes that Arellano did no

16   more than provide information to the government and testify at trial. He played no role in

17   the investigation or in determining investigation or trial strategy. Accordingly, he was no

18   more than a witness whose knowledge cannot be imputed to the prosecutor or agents who

19   had not debriefed him on the relevant subject prior to the suppression hearing. See

20   Stewart, 433 F.3d at 298-99 (holding that an expert witness who analyzed evidence,

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                                                  4
 1   assisted the prosecution in preparing cross-examination questions, participated in a mock

 2   examination, and testified at trial was not a member of the prosecution team).

 3          Second, evidence is not “suppressed” for Brady purposes if the defendant “either

 4   knew, or should have known, of the essential facts permitting him to take advantage of

 5   any exculpatory evidence.” DiSimone v. Phillips, 461 F.3d 181, 197 (2d Cir. 2006)

 6   (internal quotation marks omitted); see also United States v. LeRoy, 687 F.2d 610, 619

 7   (2d Cir. 1982) (government was not required to disclose allegedly exculpatory grand jury

 8   testimony where the defendant “was on notice of the facts necessary for him to take

 9   advantage of such exculpatory testimony as [the identified witnesses] might conceivably

10   furnish”). Barcelo knew that Arellano was present during the traffic stop and might have

11   useful evidence. Because Barcelo knew of the “essential facts” that would have permitted

12   him to take advantage of any impeachment evidence, that evidence was not “suppressed.”

13   DiSimone, 461 F.3d at 197.

14          Finally, Barcelo has failed to establish that the non-disclosure of Arellano’s

15   version of events prior to the suppression hearing resulted in prejudice. To establish

16   prejudice, a plaintiff must show the suppressed evidence was material. Lewis v.

17   Connecticut Comm’r of Corr., 790 F.3d 109, 124 (2d Cir. 2015), citing Leka, 257 F.3d at

18   104. “[The] touchstone of materiality is a reasonable probability of a different

19   result . . . .” Leka, 257 F.3d at 104, quoting Kyles, 514 U.S. at 434. “A reasonable

20   probability of a different result is accordingly shown when the government’s evidentiary

21   suppression undermines confidence in the outcome of the trial.” Id., quoting Kyles, 514



                                                  5
 1   U.S. at 434. Factual findings related to a motion to suppress are reviewed for clear error.

 2   United States v. Singh, 415 F.3d 288, 293 (2d Cir. 2005). The district court, acting as the

 3   fact-finder at the suppression hearing, explicitly concluded that Arellano’s testimony

 4   would not have affected the result of the suppression hearing because, while Arellano’s

 5   account was in “tension” with the testimony of the DEA agents, it also did not

 6   corroborate Barcelo’s testimony. A-42. The district court did not commit clear error in

 7   reaching this conclusion.

 8          The government did learn of Arellano’s version of events at a pre-trial preparation

 9   session. Barcelo argues that a Brady violation occurred at his trial because the

10   government failed to disclose Arellano’s description of the traffic stop before the trial

11   began. While the government should have promptly disclosed Arellano’s testimony,

12   which differed materially from the agents’ account, Barcelo has failed to demonstrate that

13   he was prejudiced by the delayed disclosure. Although Barcelo was not able to use

14   Arellano’s version of events in his opening statement or during his initial cross-

15   examination of the DEA agents who effected the traffic stop, the jury heard Arellano’s

16   testimony and Barcelo was permitted to re-open the cross-examination of the agents and

17   take full advantage of Arellano’s account of events to impeach their testimony.

18   Accordingly, Barcelo has failed to establish a reasonable probability of a different result.

19   We therefore conclude that no Brady violation occurred at trial.

20

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 1          2.     Pro Se Submission

 2          Barcelo also argues in a pro se brief that his conviction must be set aside because it

 3   was obtained using the perjured testimony of the DEA agents. “[A] conviction obtained

 4   by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if

 5   there is any reasonable likelihood that the false testimony could have affected the

 6   judgment of the jury.” United States v. Cromitie, 727 F.3d 194, 221 (2d Cir. 2013),

 7   quoting United States v. Agurs, 427 U.S. 97, 103 (1976). To succeed in a challenge to his

 8   conviction on this basis, the defendant must prove on appeal that “(i) the witness actually

 9   committed perjury; (ii) the alleged perjury was material; (iii) the government knew or

10   should have known of the alleged perjury at time of trial; and (iv) the perjured testimony

11   remained undisclosed during trial.” United States v. Zichettello, 208 F.3d 72, 102 (2d

12   Cir. 2000) (citations and internal quotation marks omitted). “Differences in recollection

13   do not constitute perjury, and when testimonial inconsistencies are revealed on

14   cross-examination, the jury is entitled to weigh the evidence and decide the credibility

15   issues for itself.” United States v. Josephberg, 562 F.3d 478, 494 (2d Cir. 2009) (citation

16   and internal quotation marks omitted). Barcelo’s perjury claim rests on the

17   inconsistencies between Arellano’s testimony and that of the DEA agents. These

18   discrepancies were brought out during cross-examination, and were appropriately left for

19   the jury to weigh and consider. The district court did not abuse its discretion in declining

20   to grant a new trial or a mistrial on this ground.

21

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 1         We have considered Barcelo’s remaining arguments and find them to be without

 2   merit. Accordingly, we AFFIRM the judgment of the district court.
 3
 4
 5                                   FOR THE COURT:
 6                                   CATHERINE O’HAGAN WOLFE, Clerk of Court
 7
 8
 9
10




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