United States v. Paladin

• Citation: 748 F.3d 438
• Decision Date: 12 May 2014
• Docket Number: No. 12–2098.,12–2098.
• Parties: UNITED STATES of America, Appellee, v. Patricio PALADIN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

748 F.3d 438

UNITED STATES of America, Appellee,

v.Patricio PALADIN, Defendant, Appellant.

No. 12–2098.

United States Court of Appeals, First Circuit.

May 12, 2014.

Judith H. Mizner, Assistant Federal Public Defender, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, THOMPSON, Circuit Judge, and SMITH, ^* District Judge.

SMITH, Chief District Judge.

Appellant Patricio Paladin is serving a life sentence following his conviction on a series of drug charges. Subsequent to Paladin's conviction, but before his sentencing, Paladin learned of the existence of certain evidence that the government had failed to disclose to him, and that he suggests may have been used to impeach the credibility of the key government witness against him at trial. Relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Paladin moved to set aside the verdict and for a new trial. The district court denied the motion in a thorough bench decision, and this timely appeal followed.

Because we agree with the district court's determination that the evidence in question was immaterial, we AFFIRM the district court's denial of Paladin's motion. And, as Paladin concedes that we are precedent-bound to do, we reject a series of separate constitutional challenges to Paladin's life sentence, the imposition of which was made mandatory by the quantities of cocaine at issue and by virtue of this being Paladin's third felony drug conviction.

I. Facts

A second superseding indictment charged Paladin with one count of conspiracy to distribute cocaine, three counts of distribution of cocaine and one count of possession of cocaine with intent to distribute. Following a jury trial in December 2010, Paladin was convicted on all counts.

The testimony of FBI Agent Mark Alford and a confidential informant by the name of Kevin Vega was of central importance to the government's case. We briefly overview that testimony here, but will return to it in greater detail later. Alford was the first government witness and testified regarding his oversight of the investigation into Paladin's narcotics activities and about his supervision of Vega in the initiation and completion of a series of meetings and controlled purchases with Paladin.

Vega testified later in the trial and told jurors that he had met Paladin in 2004 and thereafter routinely purchased cocaine from him until late 2008, in a total aggregate amount that Vega estimated was in excess of 100 kilograms. Of central importance to this appeal, Vega testified that during the summer of 2009, he made the decision to cease his participation in the drug trade and to inform law enforcement of his prior activities. Vega told jurors that, in July 2009, he walked into FBI headquarters in New Hampshire, confessed, and agreed to serve as a confidential informant.¹ This somewhat unusual decision, Vega testified, resulted from Vega's guilty conscience, fear of arrest and incarceration, and the fact that he had a newborn son. Vega stated unequivocally that, aside from controlled buys that he performed at the direction of the government, the last time that he dealt drugs was during the summer of 2009.

Because this was Paladin's third felony drug conviction and because the quantities of cocaine at issue were sufficient to trigger a mandatory life sentence, see21 U.S.C. § 841(b)(1)(A)(ii), a significant delay preceded sentencing as Paladin sought to overturn at least one of his prior convictions. ² It was during this period of time, in March 2012, that the attorney who had represented Paladin at trial received a letter from one Jordan Manning, an inmate at a state correctional facility in New Hampshire. Manning's letter suggested that Vega had “got[ten] busted for a drug charge” and had “received something in exchange for testimony.”

Defense counsel contacted the Assistant United States Attorney who had led the prosecution and asked that the matter be investigated. In the course of the ensuing investigation, it was discovered that, on November 12, 2010, prior to the start of Paladin's trial, representatives of various law enforcement agencies and the New Hampshire United States Attorney's Office had interviewed an individual named Angel Andino in relation to a separate narcotics investigation.

Notes from this proffer session, disclosed in redacted form to defense counsel in April 2012, contain the following passage:

“Andino said that he supplied Vega with 200 [O]xycontin tablets every 2 weeks for an unspecified amount of time. Andino said that he stopped supplying Vega with cocaine and [O]xycontin tablets approximately 1–2 months before his (Andino's) arrest.”

The United States Attorney's Office also informed defense counsel that Andino had been arrested in February 2010. If the contents of the Andino proffer were true, then it would suggest that Vega had lied to the jury when he testified that he had ended his involvement in the drug trade on his own accord during the summer of 2009, because a transaction with Andino one to two months prior to Andino's arrest would have necessarily taken place during the winter of 2009 to 2010.

With this information in hand, Paladin filed a motion to set aside the verdict and for a new trial, contending that the government had failed to disclose exculpatory evidence that would have allowed Paladin to undermine Vega's credibility. The government did not dispute that the Andino proffer should have been disclosed, but maintained that Paladin was not entitled to a new trial because the contents of the Andino proffer were immaterial. After a lengthy hearing in August 2012, the district court denied Paladin's motion in an oral decision.

At a separate hearing shortly after the denial of Paladin's motion, the district court imposed a life sentence on the conspiracy count, noting that such a sentence was “excessive,” but “legally required” under the circumstances.³ This appeal followed.

II. Evidentiary Suppression

A. Standard of Review

The district court's denial of a motion for a new trial is properly reviewed for abuse of discretion. United States v. Hall, 557 F.3d 15, 19 (1st Cir.2009). We conduct our review mindful that “[t]he trial judge, having seen and heard the witnesses at first hand, has a special sense ‘of the ebb and flow of the recently concluded trial.’ Thus, his views about the likely impact of newly disclosed evidence deserve considerable deference.” United States v. Mathur, 624 F.3d 498, 504 (1st Cir.2010) (quoting United States v. Natanel, 938 F.2d 302, 313 (1st Cir.1991)).

B. An Introduction

“[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidenceis material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. A “Brady ” claim, then, has three elements: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the government either willfully or inadvertently; and (3) prejudice must have resulted. Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also United States v. Avilés–Colón, 536 F.3d 1, 19 (1st Cir.2008). The government concedes that the Andino proffer was potentially impeaching and that it was suppressed inadvertently. Thus, the determinative issue is whether the suppression resulted in prejudice.

“Impeachment evidence must be material before its suppression justifies a new trial.” Conley v. United States, 415 F.3d 183, 188 (1st Cir.2005). Evidence is material when a “reasonable probability [exists] that the result of the trial would have been different” if the suppressed evidence had been disclosed. Strickler, 527 U.S. at 289, 119 S.Ct. 1936 (internal quotation marks omitted). Reasonable probability does not require that “the defendant ‘would more likely than not have received a different verdict with the evidence,’ only that the likelihood of a different result is great enough to ‘undermine[ ] confidence in the outcome of the trial.’ ” Smith v. Cain, ––– U.S. ––––, 132 S.Ct. 627, 630, 181 L.Ed.2d 571 (2012) (alteration in original) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). “This somewhat delphic ‘undermine confidence’ formula suggests that reversal might be warranted in some cases even if there is less than an even chance that the evidence would produce an acquittal.” Conley, 415 F.3d at 188 (quoting United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993)).

The strength of impeachment evidence and the effect of suppression are evaluated in the context of the entire record to determine materiality. Id. at 189. Evidence is immaterial where it is cumulative or merely impeaches a witness on a collateral issue. United States v. Dumas, 207 F.3d 11, 16 (1st Cir.2000). Likewise, “suppressed impeachment evidence has little probative value if additional evidence strongly corroborates the witness's testimony the suppressed evidence might have impeached.” Conley, 415 F.3d at 189.

C. The Materiality of the Andino Proffer

The materiality of undisclosed evidence ultimately turns on the factors outlined above. As such, we assess the Andino proffer in terms of: (1) its evidentiary strength; (2) whether it was cumulative of other evidence offered at trial; (3) whether the matters on which it would have allowed impeachment were collateral; and (4) whether the matters on which impeachment would have been made possible were otherwise corroborated.

i. Evidentiary Strength

While the impact of withholding evidence is severe when that evidence is highly impeaching, the failure to disclose evidence whose impeachment value is merely marginal is manifestly insufficient to place the trial record in “such a...