     16-1522
     Simpson v. United States

                         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        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   6th day of July, two thousand seventeen.
 5
 6   PRESENT: DENNIS JACOBS,
 7            PIERRE N. LEVAL,
 8            RAYMOND J. LOHIER, JR.,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   DAVID Z. SIMPSON,
13            Petitioner-Appellant,
14
15                -v.-                                           16-1522
16
17   UNITED STATES OF AMERICA,
18            Respondent-Appellee.
19   - - - - - - - - - - - - - - - - - - - -X
20
21   FOR APPELLANT:                          NORMAN TRABULUS; New York, NY.
22
23   FOR APPELLEE:                           J.E. SHREVE ARIAIL (Peter A.
24                                           Norling, on the brief) for Bridget
25                                           M. Rohde, Acting United States
26                                           Attorney for the Eastern District
27                                           of New York; Brooklyn, NY.


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 1
 2        Appeal from a judgment of the United States District Court
 3   for the Eastern District of New York (Johnson, J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 6   DECREED that the judgment of the district court be AFFIRMED.
 7
 8        David Z. Simpson appeals from a final order entered in the
 9   United States District Court for the Eastern District of New
10   York (Johnson, J.) denying his motion for relief pursuant to
11   28 U.S.C. § 2255. We assume the parties’ familiarity with the
12   underlying facts, the procedural history, and the issues
13   presented for review.

14        Simpson was convicted after jury trial of (1) conspiring
15   to import and (2) importing into the United States 500 grams
16   or more of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1),
17   960(b)(2)(B)(ii), and 963; and (3) conspiring to possess with
18   intent to distribute and (4) attempted possession of 500 grams
19   or more of cocaine in violation 21 U.S.C. §§ 841(a)(1),
20   841(b)(1)(B)(ii)(II), and 846. He was sentenced to four
21   concurrent terms of 135 months of incarceration and five years
22   of supervised release. His conviction was affirmed in United
23   States v. Simpson, 443 Fed. App’x 625 (2d Cir. 2011).

24        Simpson collaterally attacks that conviction in this § 2255
25   action, arguing that the government violated the rule of Brady
26   v. Maryland, 373 U.S. 83 (1963), by failing to disclose prior
27   inconsistent statements allegedly made by government witness
28   Michelle Yearwood; or, if the government did disclose those
29   statements, that Simpson’s trial counsel was unconstitutionally
30   ineffective because he failed to use those statements to impeach
31   Yearwood. Simpson infers that Yearwood made prior inconsistent
32   statements on the basis of two documents from the separate
33   prosecution of co-conspirator Sheldon Holder: a criminal
34   complaint filed against Holder and his presentence investigation
35   report.

36        The government is obligated under Brady to disclose
37   favorable evidence to the defense that is material to guilt or
38   punishment. To establish a Brady violation, a defendant must
39   show that: (1) the evidence at issue was favorable to the accused,

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 1   (2) the government suppressed that evidence, and (3) prejudice
 2   ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
 3   “For Brady purposes, information is material if there is a
 4   reasonable probability that, had the evidence been disclosed
 5   to the defense, the result of the proceeding would have been
 6   different. A ‘reasonable probability’ is a probability
 7   sufficient to undermine confidence in the outcome.” United
 8   States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005) (citation
 9   and quotation marks removed). Whether an alleged Brady
10   violation is material presents a mixed question of law and fact
11   that is reviewed de novo, with “great weight” given to the
12   district court’s factual conclusions regarding the effect of
13   nondisclosure. Id.

14        Assuming arguendo that Simpson’s inference is correct--and
15   the apparent inconsistency between Yearwood’s testimony and the
16   documents from the Holder case reflects a prior inconsistent
17   statement that the government failed to disclose--Simpson has
18   not established prejudice. Materiality is assessed in light of
19   the evidence adduced at trial, because “the strength of the
20   independent evidence . . . increases the degree of significance
21   that would need to be ascribed to the withheld impeachment
22   evidence in order for it reasonably to undermine confidence in
23   the verdict.” United States v. Orena, 145 F.3d 551, 559 (2d Cir.
24   1998). The evidence that the government adduced included
25   Simpson’s arrest at the airport while picking up a courier, the
26   phone and parking records connecting him to Yearwood at the times
27   of her flights, and the notes in his pockets connecting him to
28   other co-conspirators. We agree with the district court that
29   this corroborating evidence supports the conclusion that the
30   lost opportunity for marginally more impeachment of Yearwood
31   does not undermine confidence in the verdict.

32        Accordingly, and finding no merit in appellant’s other
33   arguments, we hereby AFFIRM the judgment of the district court.

34                                FOR THE COURT:
35                                CATHERINE O’HAGAN WOLFE, CLERK




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