United States v. Mathur

United States Court of Appeals
For the First Circuit

No. 09-1704

UNITED STATES OF AMERICA,

Appellee,

v.

AMIT MATHUR,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

Boudin, Ripple* and Selya, Circuit Judges.

Vivian Shevitz, with whom Jane Simkin Smith was on brief, for
appellant.
John A. Capin, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

November 3, 2010

*
Of the Seventh Circuit, sitting by designation.
 SELYA, Circuit Judge. Defendant-appellant Amit Mathur

wants a new trial or, at least, resentencing based on the

government's tardy disclosure of Brady material. See Brady v.

Maryland, 373 U.S. 83, 87 (1963). Concluding, as we do, that the

district court acted appropriately in addressing the delayed

disclosure, we affirm.

I. BACKGROUND

We bifurcate our discussion of the background events,

first rehearsing the underlying facts and then charting the course

of the proceedings below.

A. The Scheme.

Refined to its essentials, this case involves a

kaleidoscopic stream of misrepresentations and the misappropriation

of millions of dollars in client funds. The best way to capture

the essence of what transpired is to follow the trail blazed by the

indictment, returned on September 28, 2006, which charged the

defendant with eighteen counts of mail fraud and two counts of wire

fraud. See 18 U.S.C. §§ 1341, 1343.

From 1997 until 2005, the defendant ran Entrust Capital

Management (Entrust), which he held out as the manager of a hedge

fund. Entrust and the defendant maintained offices in Worcester,

Massachusetts, but the defendant's business partner, Rajeev Johar,

worked out of a satellite office in Louisiana.

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 The indictment identified fifteen defrauded clients, five

of whom testified at trial. Their testimony confirmed the

defendant's successful efforts to inveigle them into investing in

the hedge fund. These efforts involved the dissemination of

hyperbolic marketing literature, daily e-mails, and in-person

presentations, all of which were designed to create a false

impression that Entrust managed approximately $105,000,000 in

assets for more than 300 investors. These claims were wildly

exaggerated, and the defendant's persistent boast that Entrust's

hedge fund offered high rewards at low risk was unfounded.

Many potential investors took the bait. To illustrate:

The five testifying investors, in the aggregate, entrusted the

defendant with roughly $13,500,000 to be invested and managed as

part of the hedge fund. One of the five, David Massad, earmarked

some additional money — nearly $9,000,000 — for specified stock

purchases. The defendant's use of these funds failed to comport

either with his own representations or with investors'

instructions.

This is how the scheme played out. When the defendant

received money earmarked for the hedge fund, he would deposit it

into an Entrust account at Commerce Bank — an account over which he

had exclusive control. Some money from that account was

transferred to a brokerage account at Kimball & Cross Investment

Management Corp. (K&C). The defendant retained sole transactional

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authority over this account and funneled money from it into the

hedge fund. The money left in the Commerce Bank account remained

at the defendant's disposal, and he used much of it for personal

purposes.

Entrust investors were hoodwinked. They received

periodic statements (sometimes monthly, sometimes quarterly)

purporting to describe the status of their investments and the

hedge fund's performance. The statements reported, without

exception, that the clients' money had been invested in the hedge

fund and that the investments had appreciated.

The statements, taken in the ensemble, show the magnitude

of the fraud. Viewed collectively, they represented that

$13,500,000 had been invested in the hedge fund and that the value

of the investment had grown to approximately $18,200,000 by the end

of 2004. This figure overstated the actual value of the investment

by more than $17,000,000; that is, the investment had depreciated

by over ninety percent. The discrepancy between Entrust's

apocryphal and authentic balance sheets was accounted for by an

array of factors: the hedge fund had incurred (and the defendant

had hidden) investment losses in excess of $6,000,000; the

defendant had invented $4,700,000 in nonexistent appreciation; and

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he had diverted more than $5,000,000 in client funds for his own

pursuits.1

The defendant's dealings with David Massad were more

complicated. Beginning in 2000, Massad (the principal owner of

Commerce Bank) gave the defendant checks totaling more than

$5,000,000 for investment in the hedge fund. In the summer of

2003, he gave the defendant the further sum of $8,787,000 with

instructions to purchase 200,000 shares of GMAC preferred stock and

150,000 shares of Ford Motor Credit preferred stock.

The monies that Massad committed to the hedge fund

suffered much the same fate as the monies committed by other

investors. As to the stock purchases, the defendant assured Massad

that he had followed his (Massad's) instructions. In fact, he

purchased fewer than half of the specified number of shares and

pocketed the difference. For well over a year, he nonetheless sent

Massad's accountant regular checks purporting to represent

quarterly dividends on the shares that Massad thought he had

acquired.2 Those checks were meant to disguise the defendant's

1
The defendant's handling of the funds of Alok Mathur (his
blood relative) furnishes a particularly egregious example of his
mendacity. Alok Mathur gave the defendant, for investment, the sum
of $530,000. None of this money was ever actually invested.
Instead, the defendant spent it on jewelry, automobiles, and
recreational gambling.
2
The defendant makes much of Massad's use of David Mandara,
who was his son-in-law as well as his accountant, as an
internuncio. He does not indicate what, if anything, was wrong
with this arrangement.

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failure to purchase the specified number of shares for Massad's

account.

From time to time, Massad sought to withdraw sums from

his Entrust account. The defendant obliged. But in early 2005,

Massad asked to withdraw $7,000,000. The defendant never honored

this request.

At about that time, the defendant learned that the

Securities and Exchange Commission (SEC) was investigating him. In

response, he contacted his investors and set up a meeting with

them. At this meeting, which was held in April of 2005, the

defendant urged the investors to destroy the false statements

showing gains in their hedge fund accounts and replace them with

statements showing losses. He explained, falsely, that the

proposal was designed to help them avoid tax liability on their

gains, which he disingenuously maintained were still increasing.

This artifice drew no takers and, therefore, no investors destroyed

their original statements in response to it.

In the end, Massad and the other investors sustained

substantial losses as a result of the defendant's chicanery. The

SEC's investigation continued, leading to both criminal and civil

proceedings against the defendant.

B. The Aftermath.

This brings us to the defendant's criminal trial, which

began on May 5, 2008. The government introduced evidence

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establishing the facts recounted above. In the course of its case

in chief, it produced copious evidence corroborating the

defendant's role in the fraudulent scheme (including his use of the

mails and wire transmissions).

The defendant premised his defense on two lack-of-

knowledge theories. First, he argued that he himself was an

innocent dupe whose business partner, Johar, had supplied him with

misinformation. Second, he argued that he was somehow a pawn in a

broad but ill-defined scheme orchestrated by Massad. The evidence

at trial belied both theories. It showed, for example, that the

defendant received monthly statements from K&C enumerating the

funds actually contained in Entrust's brokerage account. Moreover,

the defendant had, on occasion, personally directed the avails of

specific (profitable) trades both in the hedge fund and in

Entrust's account to his personal accounts. There was no probative

evidence of any overarching plot masterminded by Massad.

We come now to the denouement. On the seventh day of

trial (May 13, 2008), the government rested. Immediately prior to

resting, it handed over a previously undisclosed memorandum

emanating from the SEC investigation (the SEC Memorandum); this

document had not come to the prosecutor's attention until that day.

The document contained conclusions drawn from interviews with

several of the testifying investors.

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 With regard to Massad, the SEC Memorandum limned three

pieces of information that the defendant characterizes as

significant. First, Massad had retained counsel in connection with

his financial affairs. Second, Massad had made inconsistent

statements concerning the amount of money in his Entrust account.

Third, John Sten, an attorney in the law firm of Greenberg Traurig,

had represented both Massad and the defendant for some period of

time and, during this period, had delivered bogus bank statements

to the SEC, ostensibly via a Commerce Bank facsimile machine.

At the end of that day, the defendant moved to dismiss

the indictment, arguing that the failure to disclose the SEC

Memorandum earlier in the proceedings denied him a fair trial. The

government objected and, in an effort to show that the information

contained in the SEC Memorandum had previously been turned over,

submitted copies of various documents, including SEC interviews of

Massad and other investors, that had been given to the defendant's

counsel in 2005.

On May 14, the district court offered to halt the trial

and give the defendant time to "sort . . . out" the new

information, assuring him that he would not be required to proceed

until that feat was accomplished. The defendant declined the

court's invitation.

On May 15, the court postponed the trial for another day.

It renewed its invitation for a continuance and again offered to

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allow the defendant to recall any of the government's witnesses for

further cross-examination. The defendant refused the offers, and

the court then heard arguments on the motion to dismiss.

On the next day the court, ruling ore tenus, denied the

motion. It emphasized the defendant's decision neither to recall

any witnesses nor to avail himself of a continuance in order to

analyze and follow up on the belatedly disclosed information. It

observed that the defendant had pointed to nothing in the new

material that would have enabled him to impeach any witness, nor

had he identified any other aspect of the material that would have

been helpful to his case in any meaningful sense. Following the

lawyers' summations and the court's charge, the jury found the

defendant guilty on all counts.

We fast-forward to April 1, 2009. On that date, the

defendant moved for a new trial. See Fed. R. Crim. P. 33. As part

of its opposition, the government disclosed additional materials

(the Greenberg Traurig Documents) elaborating upon the information

contained in the SEC Memorandum. The prosecution represented that

it had obtained the Greenberg Traurig Documents from Attorney John

Sten after the defendant claimed to have been ignorant of Sten's

dual representation of both Massad and himself. The Greenberg

Traurig Documents included end-of-year account statements, on

Entrust letterheads and bearing Entrust's Louisiana address, which

purported to show losses in Massad's investment account for 2002,

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2003, and 2004. They also included a facsimile cover sheet

purportedly indicating that the documents had been transmitted from

a number at Commerce Bank, as well as a transmittal letter from

Sten to the SEC.

Four days later, the district court held a non-

evidentiary hearing. It denied the defendant's new trial motion,

concluding that much of the information contained in the SEC

Memorandum, as explicated by the Greenberg Traurig Documents, was

either irrelevant or immaterial. Although a small fraction of the

information might have been used for impeachment purposes, it was

of questionable value and incapable of affecting the outcome of the

trial.

The court then turned to sentencing. The defendant did

not object to proceeding on that day, nor did he request a

continuance. After further arguments and allocution, the court

imposed a 120-month incarcerative term on each count of conviction,

to run concurrently. This timely appeal followed.

II. ANALYSIS

The defendant contends that the district court erred both

in denying his motion for a new trial and in sentencing him too

hastily. These plaints rest on the notion that the government

failed to satisfy its Brady obligations and thereby prejudiced the

defendant. Given the related nature of these plaints, we address

them together.

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 To gain a new trial based on newly discovered evidence,

a defendant normally must pass a four-part test: he must show that

(i) the evidence in question was unknown or unavailable to him at

the time of trial; (ii) his failure to learn of it did not result

from a lack of due diligence on his part; (iii) the evidence is

material; and (iv) the evidence, if available upon retrial, would

likely bring about an acquittal. United States v. Huddleston, 194

F.3d 214, 218 (1st Cir. 1999); United States v. Wright, 625 F.2d

1017, 1019 (1st Cir. 1980). When, however, a criminal defendant's

new trial motion is premised on the belated disclosure of evidence

that should have been made available to him in accordance with the

imperatives of Brady, a somewhat less formidable standard applies.

To obtain the benefit of this more defendant-friendly

paradigm, a defendant must make three showings. "The evidence at

issue (whether exculpatory or impeaching) must be favorable to the

accused; that evidence must have been either willfully or

inadvertently suppressed by the government; and prejudice must have

ensued." United States v. Connolly, 504 F.3d 206, 212 (1st Cir.

2007) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

The first two showings are comparable to the first two requirements

of the Wright test.

The difference between the two standards lies in the

replacement of the last two requirements of the Wright test "with

the unitary requirement that the defendant establish 'a reasonable

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probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.'" Id. at

213 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

In this context, the Supreme Court has equated "reasonable

probability" with something sufficient to "undermine[] confidence

in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434

(1995) (internal quotation omitted).

We have noted two other refinements that distinguish the

Brady new trial standard from the ordinary Wright standard. See

Connolly, 504 F.3d at 213. First, the probability that a defendant

must show does not have to be an "actual probability that the

result would have differed"; it may be "a merely theoretical (but

still reasonable) probability." Id. (emphasis in original).

Second, "undisclosed impeachment evidence, if it suffices to

undermine confidence in the outcome of the trial, may carry the

day." Id. (citing Bagley, 473 U.S. at 682).

We do not apply these standards directly. In the first

instance, that is the responsibility of the trial court. The 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." United States v. Natanel, 938 F.2d 302, 313 (1st Cir.

1991). Thus, his views about the likely impact of newly disclosed

evidence deserve considerable deference. Connolly, 504 F.3d at

211; United States v. Maldonado-Rivera, 489 F.3d 60, 65 (1st Cir.

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2007). For those reasons, we review the challenged rulings in this

case for abuse of discretion.3 See, e.g., Connolly, 504 F.3d at

211; United States v. Alicea, 205 F.3d 480, 486 (1st Cir. 2000).

It is within the confines of this template that we consider whether

the late disclosure of either the SEC Memorandum or the Greenberg

Traurig Documents warrants relief.

We start with the arguendo assumption that these

materials, which comprised part of the parallel SEC investigation,

were constructively in the prosecution's possession. See

Strickler, 527 U.S. at 280-81 (extending the disclosure obligation

to materials in the possession of government agents). We also

assume, again for argument's sake, that the substance of the

materials was not made available to the defendant before trial.

These assumptions permit us to narrow the lens of our inquiry to

focus on whether the evidence was favorable to the defendant and,

if so, whether its dilatory disclosure prejudiced him.

The defendant asserts that the belatedly disclosed

materials would have supported his theory that Massad was not a

victim but, rather, was engaged in "funny business of his own." In

his view, the SEC Memorandum shows that Massad retained control of

his own finances and told inconsistent stories about his dealings

3
The government argues that the defendant failed to preserve
his claim of error with respect to the Greenberg Traurig Documents
and that, therefore, we should review the rejection of that claim
only for plain error. This argument is of dubious force and, in
any event, it is unnecessary for us to consider it.

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with Entrust. Moreover, the Greenberg Traurig Documents can be

read to indicate that Massad forwarded bogus statements to the SEC

(through Sten). The defendant protests that the timely

availability of these materials would have enabled him to impeach

Massad. He further insists that the materials have a potentially

exculpatory value because they suggest that (i) Massad was using

Sten as part of a plot to manipulate the defendant and to obscure

his own malefactions and (ii) Massad and others should be

investigated further for potential fraudulent activity.

The defendant's claim that he could have used the

belatedly disclosed materials for impeachment purposes is wishful

thinking. The impact of withholding evidence is more severe when

it is highly impeaching or when the impeached testimony is

essential to the defendant's conviction. United States v. Avilés-

Colón, 536 F.3d 1, 19 (1st Cir. 2008). Here, however, these

conditions do not obtain. The defendant's attempt to shift the

blame to Massad verges on the chimerical. The impeachment value of

the evidence is marginal (necessarily so, given the vagueness of

the defendant's allegations), and that value could effectively have

been realized by recalling Massad for further cross-examination.

What is more, the modest impeachment potential of this

evidence is diminished by the extensive corroboration of Massad's

direct testimony. Like other testifying investors, Massad was able

to describe in exquisite detail the losses that he incurred as a

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result of the defendant's misrepresentations and misappropriations.

To buttress this testimony, the government introduced abundant

documentary evidence supporting a conclusion that Massad had been

victimized. This evidence included phony statements sent by the

defendant purporting to show that Massad's instructions had been

followed and that Massad's investments had prospered under the

defendant's stewardship. Similarly, the government adduced both

documentary and testimonial evidence demonstrating that the

defendant had sent Massad ersatz dividends on stock that had never

been acquired. The amount of money that Massad ultimately lost in

his dealings with the defendant bore grim witness to the veracity

of Massad's account. And finally, plenitudinous documentary

evidence spoke to the defendant's esurient use of client money for

personal expenses and his efforts to hide the truth from his

clients.4 There was a mountain of incriminating evidence against

the defendant. Against this backdrop, the marginal impeachment

value of the belatedly disclosed materials was manifestly

insufficient to place the trial record in "such a different light

as to undermine confidence in the verdict." Kyles, 514 U.S. at

4
We note in passing that Massad's testimony was not essential
to the government's case. The government proved that several other
investors were bilked by the defendant in much the same way. This
is important because a reviewing court should "evaluate the
strength of . . . impeachment evidence and the effect of its
suppression in the context of the entire record to determine its
materiality." Conley v. United States, 415 F.3d 183, 189 (1st Cir.
2005).

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435. Even if Massad was engaged in "funny business of his own" —

a dubious premise on this record — that fact would not weaken the

robust nature of the government's case against the defendant.

The defendant's separate contention that the belatedly

disclosed documents contain exculpatory information is no more

persuasive. He claims the materials suggest that Massad employed

Sten in furtherance of a contrivance either to manipulate the

defendant or to set him up as a scapegoat. This claim lacks any

footing in the record. Furthermore, it is sharply undercut by

Sten's uncontradicted statement to the government that he spoke to

Massad only once — during a three-way telephone conversation in

which the defendant also participated.5 Contrary to the

defendant's importunings, neither the SEC Memorandum nor the

Greenberg Traurig Documents, fairly read, support a lack-of-

knowledge defense. These materials simply do not speak, directly

or indirectly, to the defendant's claim of innocence — and saying

that they do does not make it so.

We need not probe these points more deeply because, in

all events, the defendant has not shown any cognizable prejudice

attributable to the late disclosure. We explain briefly.

To begin, the defendant has not identified any plausible

strategic option that the delayed disclosure hampered or

5
The defendant could, of course, have recalled Massad to
inquire into this point, or could have called Sten in his own case.
He took no such action.

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foreclosed. See United States v. Misla-Aldarondo, 478 F.3d 52, 63

(1st Cir. 2007); United States v. Devin, 918 F.2d 280, 290 (1st

Cir. 1990). He was not prevented from advancing his dual lack-of-

knowledge theories at trial, and his counsel argued those theories

vigorously.

To cinch matters, the able district court, concerned

about whether the late disclosure might inhibit that effort, went

to great lengths to ensure that the defendant had a full and fair

opportunity to use the new material. The customary remedy for a

Brady violation that surfaces mid-trial is a continuance and a

concomitant opportunity to analyze the new information and, if

necessary, recall witnesses. See, e.g., United States v.

Sepulveda, 15 F.3d 1161, 1178 (1st Cir. 1993); United States v.

Diaz-Villafane, 874 F.2d 43, 47 (1st Cir. 1989). The court offered

precisely this remediation when the SEC Memorandum came to light,

but the defendant repeatedly rejected the proffered anodynes.

"Generally, we have viewed the failure to ask for a continuance as

an indication that defense counsel was himself satisfied he had

sufficient opportunity to use the evidence advantageously." United

States v. Osorio, 929 F.2d 753, 758 (1st Cir. 1991) (citing United

States v. Ingraldi, 793 F.2d 408, 413 (1st Cir. 1986)). A

fortiori, we can draw a comparable inference from a defendant's

outright rejection of a proffered continuance. Such a decision

often will reveal, with conspicuous clarity, defense counsel's

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perception that the belatedly disclosed information was not

critical to his client's defense. So it is here.

In an effort to blunt the force of this reasoning, the

defendant asseverates that the customary remedy was insufficient in

the case at hand because the jury already had formed first

impressions. Other courts have rejected conclusory arguments along

these same lines. See, e.g., United States v. Burke, 571 F.3d

1048, 1055-56 (10th Cir.), cert. denied, 130 S. Ct. 565 (2009);

United States v. Davis, 306 F.3d 398, 420-21 (6th Cir. 2002);

United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). So do

we: the defendant never explains why, in this case, first

impressions should be regarded as decisive. Thus, accepting his

argument would create an exception that would swallow in a single

gulp the general rule requiring parties to ask for continuances.

In a variation on this theme, the defendant suggests that

the late disclosure was prejudicial because, if he had the

information before trial, he might have negotiated a favorable plea

deal. Because he lacked the wherewithal to cast Massad as the

villain of the piece, his thesis runs, the government was more

sanguine about both the odds of a conviction and the length of the

likely sentence. Consequently, it was less amenable to a plea

bargain.

This argument has no traction. The animating principle

of Brady is the "avoidance of an unfair trial." Brady, 373 U.S. at

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87. It is, therefore, universally acknowledged that the right

memorialized in Brady is a trial right. See, e.g., United States

v. Moussaoui, 591 F.3d 263, 285 (4th Cir. 2010). Consequently,

courts enforce Brady in order "to minimize the chance that an

innocent person [will] be found guilty." Id. The core question is

whether, despite the suppressed evidence, the accused "received a

fair trial, understood as a trial resulting in a verdict worthy of

confidence." Kyles, 514 U.S. at 434.

In urging us to extend Brady's prejudice component to

pretrial plea negotiations, the defendant exhorts us to break new

ground. He does not cite a single case standing for this novel

approach but, rather, relies on authority extolling the importance

of plea negotiations. See, e.g., Corbitt v. New Jersey, 439 U.S.

212, 222 n.12 (1978). Although we recognize that plea negotiations

are important, that fact provides no support for an unprecedented

expansion of Brady. See United States v. Ruiz, 536 U.S. 622, 632

(2002) (warning that the benefits of plea bargaining would be

undermined by an extension of Brady into the pretrial realm).

The Ruiz Court evinced a reluctance to extend a Brady-

like right to the realm of pretrial plea negotiations, holding

flatly that "the Constitution does not require the Government to

disclose material impeachment evidence prior to entering a plea

agreement with a criminal defendant." Id. at 633. While the Court

acknowledged that "the more information the defendant has, the more

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aware he is of the likely consequences of a plea," it nonetheless

concluded that a prosecutor has no obligation "to share all useful

information with the defendant" during pretrial plea negotiations.

Id. at 629.

Ruiz teaches that Brady does not protect against the

possible prejudice that may ensue from the loss of an opportunity

to plea-bargain with complete knowledge of all relevant facts.

This makes good sense: when a defendant chooses to admit his guilt,

Brady concerns subside. Moussaoui, 591 F.3d at 285; see also

Matthew v. Johnson, 201 F.3d 353, 361 (5th Cir. 2000) ("The Brady

rule's focus on protecting the integrity of trials suggests that

where no trial is to occur, there may be no constitutional

violation."). Here, moreover, nothing in the belatedly disclosed

documents suggests that they would have significantly strengthened

the defendant's hand in plea negotiations even if they had been

available to him from the start. Accordingly, we reject this

iteration of the defendant's prejudice argument.

The defendant has one more shot in his sling. He posits

that the disclosure of the Greenberg Traurig Documents a few days

prior to sentencing adversely impacted the length of his sentence

and the amount of restitution. He says that, given more time, he

could have used the belatedly disclosed material to discount

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Massad's losses and, thus, lower both his guideline sentencing

range (GSR) and the amount of restitution assessed.6

There are several flaws in the fabric of this argument.

First, it is underdeveloped; beyond some conclusory rhetoric, the

defendant does not explain how the Greenberg Traurig Documents,

which contained only information tangentially related to Massad's

financial transactions and no information at all related to the

amount of Massad's actual losses as an Entrust client, would have

helped him to overcome the extensive evidence in the record

establishing Massad's losses and the defendant's responsibility for

them. It is not our job to put flesh on the bare bones of an

underdeveloped argument, United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990), and the defendant's plaint could be rejected for

that reason alone.

What is more, the claim of sentencing prejudice is

undermined by the earlier production of the SEC Memorandum. That

report foreshadowed the information contained in the Greenberg

Traurig Documents, and the defendant had it in his possession for

many months prior to sentencing. He chose neither to follow up on

it nor to use it as a means of attacking the loss and restitution

calculations. That history impugns his claim that he was unfairly

6
In fraud cases, the amount of loss attributable to conduct
related to the crimes of conviction is an important integer in
establishing the GSR. See USSG § 2B1.1; see also United States v.
Carrasco-De-Jesús, 589 F.3d 22, 24 (1st Cir. 2009).

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prejudiced by the later disclosure of the Greenberg Traurig

Documents.

If more were needed — and we doubt that it is — actions

speak louder than words. When the Greenberg Traurig Documents

surfaced, the defendant did not seek a continuance to determine

what effect they might have but, rather, allowed the case to

proceed to sentencing without objection.

We have held before, and today reaffirm, that a

defendant's claim of unfair surprise at sentencing is "severely

undermined, if not entirely undone, by his neglect to ask the

district court for a continuance to meet the claimed exigency."

Diaz-Villafane, 874 F.2d at 47. It is "incumbent upon a party

faced with such a situation to ask explicitly that the court grant

the time needed to regroup, or waive the point." Id. Thus, the

defendant's response to the belated disclosure of the Greenberg

Traurig Documents dooms his claim of sentencing prejudice.

We need go no further. The government's casual approach

to document production in a criminal case is always a matter of

concern. Here, however, the belatedly disclosed documents were

small potatoes, unlikely to assist the defendant either in his

quest to shift blame to Massad or as a means of shortening his

sentence. Any possible utility that the documents might have

possessed could have been realized through a continuance, yet

defendant eschewed that remedy. The Brady error here, though

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regrettable, resulted in no prejudice to the defendant's

substantial rights.

III. CONCLUSION

For the reasons elucidated above, we conclude, without

serious question, that the district court did not abuse its

discretion either in rejecting the defendant's Brady claims or in

denying his motion for a new trial.

Affirmed.

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