U.S. v. Lowder

• Decision Date: 28 July 1998
• Docket Number: No. 97-10078,97-10078
• Citation: 148 F.3d 548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Z. LOWDER, also known as P.Z., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 548

148 F.3d 548

UNITED STATES of America, Plaintiff-Appellee, v. Paul Z. LOWDER, also known as P.Z., Defendant-Appellant.

No. 97-10078.

United States Court of Appeals Fifth Circuit.

July 28, 1998.

Susan B. Cowger, Dallas, TX, for Plaintiff-Appellee.

Ward Phelps Casey, Bates & Casey, Jeffrey A. Kearney, Fort Worth, TX, for Defendant-Appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before GARWOOD, DAVIS and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Paul Z. Lowder appeals his conviction for conspiracy to distribute over one thousand kilograms of marijuana and possession with intent to distribute approximately six hundred pounds of marijuana. Lowder also challenges the district court's imposition of a 340-month sentence. We affirm.

I

On May 7, 1996, the government filed a five-count superseding indictment against the appellant, Paul Z. Lowder ("Lowder"), his sons Richard Lowder ("Richard") and James Lowder ("Jim"), and eight other defendants, including Michael Terry. Count One charged all the defendants, including Lowder, Richard, Jim, and Terry with conspiracy to distribute over one thousand kilograms of marijuana in violation of 21 U.S.C. § 846. Count Two charged that on or about April 4 1995, Lowder, Richard, and Terry possessed with intent to distribute approximately six hundred pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Count Four charged that certain of Lowder's assets were subject to forfeiture under 21 U.S.C. § 853. The remaining counts did not involve Lowder.

Richard pled guilty before trial, and the government proceeded against Lowder, Jim, and Terry. At trial, Paul M. Lowder ("Paul M."), son of the appellant, Paul Z. Lowder, testified that he, his father, and two of his brothers were deeply involved in the marijuana business. Other cooperating co-defendants testified to the same effect. Richard, on the other hand, testified for his father, alleging that although he and his brother Paul M. ran a thriving marijuana business, his father, Lowder, had nothing to do with drugs.

With regard to Count Two specifically, Jerry Lee Hathcock, a cooperating co-defendant, and Paul M. testified that on April 4, 1995, they waited with Terry and Richard at a hotel in Waxahachie, Texas for a load of marijuana to arrive. The testimony indicated that some time in the afternoon, a large bus arrived with hundreds of pounds of marijuana packed in U-Haul boxes. The government presented the jury with pictures of a bus that both Hathcock and Paul M. identified as the one that carried the marijuana to Waxahachie. The vehicle pictured was a large, customized Blue Bird bus, which other testimony indicated had a sticker price of approximately $250,000. The government introduced evidence that Lowder owned just such a bus, which he had purchased with cash. Hathcock could not identify the driver of the Blue Bird bus, but Paul M. stated that it was his father, Lowder. Richard, in testifying for his father, did not deny being present at the scene and helping to unload the marijuana, but he claimed that the driver was a heavy-set man with red hair named Sean Puopolo--not his father.

The jury acquitted Jim and Terry on all counts, but convicted Lowder of conspiracy as charged in Count One and possession with intent to distribute as charged in Count Two. At sentencing, the district court overruled Lowder's objections to the Pre-Sentence Report ("PSR") and assigned an offense level of 40, reflecting findings that Lowder had obstructed justice by suborning Richard's perjured testimony, was responsible for the total amount of drugs possessed and sold by his co-conspirators, and had been a leader/organizer of the enterprise. Lowder filed a timely appeal, but before we disposed of the case, Lowder moved in the district court for a new trial, alleging that newly discovered evidence could demonstrate his innocence of the crimes charged. Included with this motion was a request that the district court conduct an in camera inspection of any government file existing on the drug trafficking activities of the now deceased Sean Puopolo, in order to determine whether such file(s) contained material required to be disclosed to the defense under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). On Lowder's unopposed motion, we granted Lowder a stay of time for the filing of his appellate brief until the district court ruled on Lowder's motions. The district court subsequently denied these motions, and Lowder now proceeds with his appeal.

II

Lowder first alleges that the district court erred in denying his request for an in camera inspection of the government's file on the narcotics activities of Sean Puopolo in order to determine whether that file contains the type of evidence that must be disclosed to the defense under Brady v. Maryland, supra. We review the district court's Brady determination de novo. See United States v. Dixon, 132 F.3d 192, 199 (5th Cir.1997).

In order to establish a due process violation under Brady, a defendant must show 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. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97; United States v. Aubin, 87 F.3d 141, 148 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 965, 136 L.Ed.2d 850 (1997). "[E]vidence is 'material' under Brady, and the failure to disclose it justifies setting aside a conviction, only where there exists a 'reasonable probability' that had the evidence been disclosed the result at trial would have been different." Wood v. Bartholomew, 516 U.S. 1, 5, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995). Nevertheless, a defendant seeking merely an in camera inspection to determine whether certain files contain Brady material need only make a "plausible showing" that the file will produce "material" evidence. See Pennsylvania v. Ritchie, 480 U.S. 39, 58 n. 15, 107 S.Ct. 989, 1002 n. 15, 94 L.Ed.2d 40 (1987).

In rejecting Lowder's request for an in camera inspection, the district court assumed "that the government possessed evidence of Puopolo's drug trafficking activity and withheld such evidence," but nevertheless determined that the absence of this evidence did not "taint" Lowder's trial. We agree. The mere fact that Puopolo participated in the marijuana trade says nothing about Lowder's guilt or innocence and thus does not implicate the core concerns of Brady. See, e.g., United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976) ("The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt."). Moreover, even if Lowder might have used some of the government's information to impeach Agent Styron, who testified that no one moves marijuana the way Richard claims Puopolo did, this information hardly "put[s] the whole case in ... a different light," and certainly does not raise a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433, 435, 115 S.Ct. 1555, 1565-66, 131 L.Ed.2d 490 (1995). The government's case against Lowder consisted of testimony from numerous witnesses who directly implicated Lowder in a conspiracy to possess and distribute literally tons of marijuana, corroborated by hotel records, credit card records, and numerous financial documents. Nothing that Lowder might find in Puopolo's file would undermine our confidence in the jury's finding that Lowder was guilty of conspiracy and guilty of using his Blue Bird bus to transport almost six hundred pounds of marijuana to his son Richard in Waxahachie, Texas. See, e.g., Spence v. Johnson, 80 F.3d 989, 998 (5th Cir.1996) (finding no violation of Brady when evidence "does not undermine confidence in the jury's verdict"). Accordingly, we find no error in the district court's denial of Lowder's request for an in camera inspection of any government file existing on Sean Puopolo.

III

Lowder also claims that the district court erred in denying his motion for a new trial based on evidence that Lowder alleges to be newly discovered. We review the district court's denial of a motion for new trial based on allegedly newly discovered evidence only for an abuse of discretion. See United States v. Jaramillo, 42 F.3d 920, 924 (5th Cir.1995).

In order to warrant a new trial on the basis of newly discovered evidence, a defendant must demonstrate that: (1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) failure to detect the evidence was not due to a lack of diligence by the defendant; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence introduced at a new trial would probably produce an acquittal. United States v. Pena, 949 F.2d 751, 758 (5th Cir.1991). Here, Lowder claims that the affidavit of Sonny Knight, an employee of Traylor's Motor Homes ("Traylor"), demonstrates that Lowder's Blue Bird bus was parked on Traylor's lot on the date Lowder allegedly drove to Waxahachie to meet Richard, Paul M., and Hathcock. The affidavit never explicitly states that the Blue Bird bus was on the lot on April 4, 1995, but Knight does swear that he was working on April 3-5, 1995, and "at no time did [Lowder] leave or return in the Blue Bird."

Even assuming arguendo that this alibi, if believed, would "probably produce an acquittal" for Lowder (at least on Count Two), Lowder has not met his burden of demonstrating that the failure to procure Knight's testimony at trial was not the result of his own lack of diligence. See United States v. Sullivan, 112 F.3d 180, 183 n. 3 (5th Cir.1997) (collecting cases on due diligence in the context of motions for new trial). Lowder states in an affidavit attached to his motion for new...