U.S. v. Hall

• Decision Date: 19 February 2009
• Docket Number: No. 07-1858.,07-1858.
• Citation: 557 F.3d 15
• Parties: UNITED STATES of America, Appellee, v. Kevin HALL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

557 F.3d 15

UNITED STATES of America, Appellee, v. Kevin HALL, Defendant, Appellant.

No. 07-1858.

United States Court of Appeals, First Circuit.

Heard April 9, 2008.

Decided February 19, 2009.

Edward S. MacColl, with whom Thompson, Bull, Furey, Bass & MacColl, LLC, P.A. was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney was on brief, for appellee.

Before LYNCH, Chief Judge,

MERRITT^* and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Kevin Hall was convicted of conspiring to distribute marijuana, money laundering, and tax evasion. 21 U.S.C. §§ 841(a)(1) & 846; 18 U.S.C. § 1956(a)(1)(B)(i); 26 U.S.C. § 7201.¹ For the second time, Hall appeals his conviction and sentence. In Hall's first appeal, we rejected his Brady challenge and affirmed his conviction. United States v. Hall, 434 F.3d 42 (1st Cir.2006). Ultimately, however, we remanded for resentencing because of the Supreme Court's intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In this appeal, Hall argues that on remand the district court erroneously denied his new trial motion, which was based on a renewed Brady challenge, and also erroneously denied his various requests for hearings. He also claims that the sentence imposed by the district court is unreasonable. After review, we affirm Hall's conviction and sentence.

I.

In United States v. Hall, we presented the background facts of this case in detail. 434 F.3d at 48-54 ("Hall I"). In discussing this appeal, we presume acquaintance with that opinion.

In his first appeal, Hall argued that the government committed a Brady violation by failing to disclose the full extent of the criminal history of one of its witnesses. This witness, John Redihan, testified against Hall pursuant to a plea agreement.

Before Hall's trial began, the government disclosed to the defense that Redihan had been convicted in Maine in 1998 of terrorizing, theft by extortion, and unlawful trafficking in marijuana. It also informed the defense that Redihan had been convicted in Rhode Island in 1998 of possessing a firearm and trafficking in steroids and Percodan. Redihan admitted these convictions at Hall's trial.

Following Hall's conviction, but prior to his sentencing, the probation office discovered additional details about Redihan's 1998 Rhode Island convictions. As it turned out, Redihan also had been convicted of conspiring to distribute marijuana and pled no contest to a charge that he possessed marijuana with intent to distribute.

In Hall I, we concluded that the government's failure to disclose additional details regarding Redihan's 1998 Rhode Island convictions did not amount to a remediable Brady violation. We explained in part:

[E]ven assuming the government had to disclose the details of Redihan's Rhode Island conviction, Hall has not shown sufficient prejudice to warrant relief. Brady prejudice exists where "there is a reasonable probability that the suppressed evidence would have produced a different verdict." Hall elicited from Redihan, on cross-examination, that he was a convicted drug dealer and that he had distributed drugs in Rhode Island. Additional detail about the Rhode Island conviction would have been mostly cumulative.

Hall I, 434 F.3d at 55 (internal citation omitted).

Nevertheless, we remanded the case. The Supreme Court had issued Booker after Hall's initial sentencing. Because the district court had expressed some reservation when sentencing Hall, based on its uncertainty about the drug quantities involved in Hall's crimes and about Hall's personal circumstances, we remanded for resentencing in light of Booker.

While the case was on remand, Hall moved for a new trial based on the government's alleged Brady violation. Hall argued that his further research of both Redihan's 1998 Rhode Island convictions, and the investigation underlying them, produced additional evidence he characterized as material. This evidence consisted of an affidavit from a government informant which provided support for a warrant to search Redihan's house and police reports and witness statements describing the execution of that search. In the affidavit, the informant stated that Redihan was a large-scale marijuana trafficker who supplied others with marijuana from Redihan's house. The police reports and witness statements described how government agents seized a small amount of cocaine, Percodan, steroids, a twelve-gauge shotgun, and three large plastic storage bags containing 1004 grams of marijuana from Redihan's home. Primarily on the basis of this evidence, Hall requested an evidentiary hearing on his new trial motion.

The district court did not hold an evidentiary hearing on Hall's new trial motion and ultimately denied the motion. The district court interpreted our Brady decision in Hall I as constituting the "law of the case," concluding that our ruling in Hall I that there was no Brady prejudice, meant that there could be no remediable Brady violation. The court concluded that our prejudice ruling was based largely on the premise that the impeachment value of any additional information about Redihan's Rhode Island convictions would be diminished. Although Hall argued to the court that he had unearthed "new evidence" not presented in his first appeal, specifically, further details regarding Redihan's Rhode Island convictions and the investigation underlying them, the court considered the prejudice issue foreclosed.

In anticipation of resentencing, Hall filed two motions. The first was for the preparation of a new presentence report. In this motion, Hall outlined what he claimed was the government's disparate treatment of non-cooperating and cooperating defendants when disclosing evidence to the sentencing court. Specifically, Hall described the government's practice in the District of Maine of "piling on" speculative evidence of drug quantity for non-cooperating defendants but only introducing irrefutable evidence of drug quantity for cooperating defendants. This, Hall alleged, led to broad-based sentencing disparities between cooperating and non-cooperating defendants. His motion requested an evidentiary hearing.

Hall's second motion sought to compel the government to file a substantial assistance motion under either U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). Hall requested an evidentiary hearing on this motion as well, alleging that the government failed to file a substantial assistance motion because he had exercised his right to trial.

The district court rejected Hall's motions and his requests for hearings. The court explained that Hall's allegation regarding the government's disparate treatment of non-cooperating and cooperating defendants had been "fully ventilated" at his first sentencing. It also, alternatively, noted that the issue was beyond the scope of the remand. As for Hall's request for a hearing on the government's failure to file a substantial assistance motion, the court explained that Hall had failed to make a substantial threshold showing of a constitutional violation by the government. It also considered this issue to be beyond the scope of the remand.

The district court ultimately sentenced Hall to 120 months imprisonment.² This appeal followed, in which Hall presents myriad challenges to both his conviction and sentence.

II.

Hall first challenges the district court's denial of both his new trial motion and his request for a hearing on that motion. We review both rulings for an abuse of discretion. United States v. Connolly, 504 F.3d 206, 211, 220 (1st Cir.2007).

To cut to the chase, no new trial was warranted. Regardless of whether the district court correctly concluded that our original decision in Hall I foreclosed Hall's renewed Brady claim, the claim fails in all events. To justify a new trial, Hall must show that the government's failure to disclose evidence caused him prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also United States v. Morales-Rodriguez, 467 F.3d 1, 14 (1st Cir.2006). Prejudice occurs where withheld evidence is "material." Morales-Rodriguez, 467 F.3d at 15. Evidence is "material" if there is "a reasonable probability that had [it] been disclosed to the defense, the result of the proceeding would have been different." Id.

The evidence Hall identifies — Redihan's 1998 Rhode Island convictions for conspiracy to traffic marijuana and possession of marijuana with intent to distribute and information about the government's underlying investigation of these convictions — is not material. It is merely cumulative of the impeachment evidence adduced at Hall's trial. United States v. Garcia-Torres, 341 F.3d 61, 70 (1st Cir. 2003) ("Impeachment evidence that is merely cumulative ... is insufficient to establish prejudice under Brady.") (citations omitted). For example, at Hall's trial Redihan admitted that in 1998 he had been convicted in Maine for marijuana trafficking and that, in the same year, he had been convicted in Rhode Island for trafficking in Percodan and steroids. Put simply, the jury was well aware that Redihan dealt drugs, including marijuana. See Connolly, 504 F.3d at 217 ("Given [the government witness's] extensive criminal history, it would not have been an abuse of discretion for the district court to find that the absence of additional cross-examination on essentially the same well-developed theme would not undermine confidence in the jury's verdict.").

Moreover, the government presented evidence sufficient to convict Hall on all counts. This evidence is discussed at length in our first decision, and we will not rehash it here. Hall I, 434 F.3d at 49-56. Although the evidence included testimony from Redihan, other witnesses corroborated his testimony in large part and none of the testimony from these witnesses was inconsistent with Redihan's in any material way. See Connolly, ...