U.S. v. Underwood, 933

• Decision Date: 09 May 1991
• Docket Number: D,No. 933,933
• Citation: 932 F.2d 1049
• Parties: UNITED STATES of America, Appellee, v. William R. UNDERWOOD, Defendant-Appellant. ocket 90-1394.
• Court: U.S. Court of Appeals — Second Circuit

Page 1049

932 F.2d 1049

UNITED STATES of America, Appellee, v. William R. UNDERWOOD, Defendant-Appellant.

No. 933, Docket 90-1394.

United States Court of Appeals, Second Circuit.

Argued March 22, 1991.

Decided May 9, 1991.

Donald V. Morano, Chicago, Ill. for defendant-appellant.

Linda C. Severin, New York City, Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Annmarie Levins, and Howard E. Heiss, Asst. U.S. Attys., of counsel), for appellee.

Before FEINBERG, MESKILL and ALTIMARI, Circuit Judges.

FEINBERG, Circuit Judge:

William R. Underwood appeals from a judgment of conviction entered in June 1990 in the United States District Court for the Southern District of New York, Miriam Goldman Cedarbaum, J., after a jury trial. He contends that the district court erred in denying his motion for a new trial based on the government's inadvertent failure to disclose allegedly exculpatory evidence and his subsequent motion for a new trial based on newly discovered evidence. Underwood also claims that the district court erred in sentencing him to life imprisonment in accordance with the Sentencing Guidelines in the absence of a jury determination that his criminal conduct extended past the effective date of the Guidelines. For the reasons set forth below, we find Underwood's contentions to be without merit and affirm.

Background

The government's evidence at trial showed that from the 1970's until his arrest in late 1988, Underwood supervised and controlled an extensive and extremely violent narcotics trafficking operation involving a number of murders and conspiracies to murder, a highly organized network for the street-level distribution of heroin and the importation of large quantities of heroin from Europe to the United States. The government presented the testimony of more than 50 witnesses, including a number of former members of Underwood's street-level distribution organization, and introduced more than 250 exhibits. Underwood's claims on appeal principally relate to the testimony of Carolyn Cobbs.

Cobbs, a former flight attendant, testified that she worked for Underwood as a courier of heroin and money from 1983 until 1988. She would smuggle large amounts of cash, typically $50,000 per trip, from the United States to Amsterdam or Brussels, where she would give the cash to Stuart Van Sichem, Underwood's heroin supplier. In the earlier years the heroin was mailed to the United States, but beginning in 1986 Cobbs herself carried the heroin on her return trip. Between January 1986 and September 1988 Cobbs made at least 30 such trips. Cobbs described in some detail how the heroin was packed by Van Sichem, in the hollow sides of jars of a discontinued hair cream product, to be smuggled into the United States and how she regularly returned the empty jars to Van Sichem to be reused. Cobbs' testimony was corroborated in a number of respects by other evidence, including the seizure from Van Sichem's apartment of two jars of the hair cream product showing signs of the type of use Cobbs described.

The jury found Underwood guilty of participating in a racketeering enterprise, 18 U.S.C. Sec. 1962(c) (RICO); conspiring to participate in a racketeering enterprise, 18 U.S.C. Sec. 1962(d) (RICO conspiracy); participating in a narcotics conspiracy, 21 U.S.C. Sec. 846; and operating a continuing criminal enterprise, 21 U.S.C. Sec. 848 (CCE). Underwood was sentenced under the Guidelines to life imprisonment on the CCE count and concurrent terms of 20 years each on the RICO and RICO conspiracy counts; his sentence on the narcotics conspiracy count was combined with the CCE sentence.

Discussion

1. The Brady Issue

When Cobbs was shown an array of photocopies of photographs before Underwood's trial, including a photocopy of a telefaxed photograph of Van Sichem, she identified another man as Van Sichem. Shortly thereafter, when the government obtained an actual photograph of Van Sichem to replace the telefaxed copy and showed Cobbs another array of photographs, Cobbs correctly identified Van Sichem. About a month after the jury verdict, in February 1990, the government discovered that it had inadvertently failed to disclose this information to the defense pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and so informed defense counsel. Underwood thereupon moved for a new trial. After an evidentiary hearing, the district court ruled that it was "inconceivable" that use of the undisclosed information to impeach Cobbs would have resulted in a different verdict, and denied the motion.

The government's inadvertent nondisclosure of impeachment evidence requires reversal of a conviction only if the evidence is "material," i.e., "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.); see also id. at 685, 105 S.Ct. at 3385 (opinion of White, J.); United States v. Petrillo, 821 F.2d 85, 88-89 (2d Cir.1987). In light of Cobbs' identification of the actual photograph of Van Sichem and the substantial evidence corroborating Cobbs' testimony about her dealings with Van Sichem, we agree with the district court that there is no reasonable probability that use at trial of Cobbs' initial failure to identify a poorly reproduced photograph would have resulted in a different verdict, and that the government's inadvertent nondisclosure of the evidence does not entitle Underwood to a new trial.

2. Newly Discovered Evidence

In October 1990 Underwood made a second motion for a new trial, this time on the ground of newly discovered evidence. The motion was based on a written statement made by Van Sichem to Dutch authorities in March 1990, which Underwood claimed would have led to his acquittal because it was materially inconsistent with Cobbs' testimony and showed Cobbs' bias. In that statement, Van Sichem admitted a limited number of relatively minor heroin transactions with Underwood and Cobbs from about 1983 to 1986, but denied any dealing in narcotics after 1986. He also described an occasion on which heroin was packed in the sides of jars as described by Cobbs, but stated that it was Underwood who did the packing and claimed that the two jars seized from his apartment had been left behind by Underwood. Van Sichem also suggested that Cobbs' assertions regarding large and frequent heroin transactions with him were motivated by revenge, apparently for terminating an intimate relationship. After Underwood's motion had been filed, Van Sichem entered into a plea agreement with the United States and subsequently testified at the trial of others allegedly involved in Underwood's heroin-importation scheme. Van Sichem's trial testimony substantially corroborated Cobbs' testimony at Underwood's trial and contradicted the inconsistent statements in his March 1990 statement.

A motion for a new trial on the ground of newly discovered evidence is committed to the discretion of the district judge, whose factual findings are accepted unless clearly erroneous, and whose denial of the motion will be upheld unless there has been an abuse of discretion. See, e.g., United States v. Diaz, 922 F.2d 998, 1006-07 (2d Cir.1990). The relief of a new trial is merited only if, among other things, the evidence would probably lead to an acquittal. Id. In this case, the district court found that even assuming the March 1990 statement was admissible and without considering Van Sichem's subsequent trial testimony, the March 1990 statement "would be more likely to strengthen the government's case than to weaken it." We agree. Moreover, we also agree with the district court that the potential value to Underwood of Van Sichem's March 1990 statement is substantially diminished, if not wholly eliminated, by Van Sichem's subsequent trial testimony corroborating Cobbs' testimony and contradicting those aspects of Van Sichem's March 1990 statement on which Underwood principally relies.

3. Applicability of the Sentencing Guidelines

According to Underwood, the Sentencing Guidelines mandated a sentence of life without parole on his CCE conviction, but pre-Guidelines law would have allowed the district court discretion to impose a prison term of from 10 years to life. Because of the possibility of a lesser sentence, Underwood maintains that in the absence of a specific jury determination that his offense continued past November 1, 1987, the effective date of the Sentencing Guidelines, he must be resentenced under pre-Guidelines law.

We believe that the Supreme Court's decision in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), is dispositive of Underwood's claim. In McMillan, the Court considered constitutional challenges to a state statute mandating a minimum sentence for specified crimes if the sentencing judge found by a preponderance of the evidence that the offender visibly possessed a firearm during commission of the offense. The Court found that visible possession of a firearm was not an element of the specified crimes, id. at 85-86, 106 S.Ct. at 2415-16, and did not alter the maximum penalty for committing them, id. at 87-88, 106 S.Ct. at 2416-17, "but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt," id. at 86, 106 S.Ct. at 2416. The Court went on to hold that determination of such sentencing factors by the court by a preponderance of the evidence, rather than by the jury beyond a reasonable doubt, violated neither the due process clause nor the sixth amendment right to a trial by jury. Id. at 91-93, 106 S.Ct. at 2418-20.

Underwood concedes that the question of whether his offense continued past ...