                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2007

USA v. Barbosa
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1292




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"USA v. Barbosa" (2007). 2007 Decisions. Paper 730.
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BLD-285                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-1292


                           UNITED STATES OF AMERICA

                                           v.

                           LUIS HUMBERTO BARBOSA,
                                       Appellant



                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                            (D.C. Crim. No. 98-cr-00383-1)
                       District Judge: Honorable Stewart Dalzell


 Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 28, 2007

     Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                                 (Filed: July 18, 2007)



                                       OPINION


PER CURIAM

      Luis Humberto Barbosa appeals the District Court’s denial of a motion he filed

seeking to vacate his conviction pursuant to Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238 (1944). For the following reasons we will summarily affirm.
       Barbosa was convicted of knowingly and intentionally possessing with intent to

distribute 50 grams or more of a controlled substance, i.e., some 882 grams of a mixture

containing a detectable amount of cocaine base. The District Court imposed a 240

months sentence. We affirmed in November 2001. In December 2003 Barbosa filed a

motion to vacate his conviction pursuant to 28 U.S.C. § 2255, which the District Court

denied on the merits by order entered March 17, 2004. We denied Barbosa’s request for a

certificate of appealability (04-1842) and the Supreme Court denied his petition for a writ

of certiorari (04-9835).

       In 2006 Barbosa filed a Hazel-Atlas motion alleging that the prosecutor committed

fraud on the court by presenting to the Magistrate Judge a fabricated affidavit to obtain an

arrest warrant, failing to inform the grand jury that the affidavit contained false

information, and conspiring with the forensic chemist to show the court and the jury that

Barbosa possessed cocaine base. In the affidavit DEA Special Agent Devlin stated that

the powder recovered from Barbosa’s room was “white powder” which “field tested

positive for heroin.” However, a forensic chemist did not test the powder until two days

later, at which time it was identified as “Tannish/Brown” and cocaine base.

       The District Court denied Barbosa’s motion for various reasons, including his

failure to cite evidence indicating that the prosecutor ever saw the drugs or personally

knew whether they were field tested; thus, his motion does no more than repeat a claim




                                              2
from his § 2255 motion.1 Besides, a mere three days after the affidavit was filed the

prosecutor brought the error to the Magistrate Judge’s attention, while Special Agent

Devlin testified before the Grand Jury that the drugs taken from Barbosa contained

cocaine base. Although the prosecutor did not explain the error to the Grand Jury, she

had no duty to do so because the error was not clearly exculpatory evidence which would

likely have convinced the Grand Jury not to indict. This appeal followed.

                                              II

       We have not previously addressed in a precedential decision whether a Hazel-

Atlas motion is a legitimate means of attacking a criminal conviction which has already

been assailed on direct appeal and via § 2255. We need not resolve that question here

because even if it is, Barbosa does not come close to making the requisite showing of

fraud.2 To prevail under Hazel-Atlas, he must show through “clear, unequivocal and

convincing evidence” that there was “(1) an intentional fraud; (2) by an officer of the

court; (3) which [was] directed at the court itself; and (4) in fact deceive[d] the court.”

Herring v. United States, 424 F.3d 384, 386-87 (3d Cir.2005). As the District Court

explained in its order denying his motion, Barbosa does not come close to meeting that

standard. Because the appeal does not present a substantial question, we will summarily

   1
     As the District Court noted, in his § 2255 motion Barbosa argued that his arrest was
invalid as a result of the inaccurate affidavit, an argument rejected by the court because
the affidavit contained sufficient additional information to support a finding of probable
cause to arrest.
   2
     Similarly, we need not decide whether a certificate of appealability is required for
this appeal. To the extent that one is, we decline to issue it.
                                              3
affirm the judgment of the District Court.




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