Simpson v. United States

16-1522 Simpson v. United States UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 1 At a stated term of the United States Court of Appeals for 2 the Second Circuit, held at the Thurgood Marshall United States 3 Courthouse, 40 Foley Square, in the City of New York, on the 4 6th day of July, two thousand seventeen. 5 6 PRESENT: DENNIS JACOBS, 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 Circuit Judges. 10 11 - - - - - - - - - - - - - - - - - - - -X 12 DAVID Z. SIMPSON, 13 Petitioner-Appellant, 14 15 -v.- 16-1522 16 17 UNITED STATES OF AMERICA, 18 Respondent-Appellee. 19 - - - - - - - - - - - - - - - - - - - -X 20 21 FOR APPELLANT: NORMAN TRABULUS; New York, NY. 22 23 FOR APPELLEE: J.E. SHREVE ARIAIL (Peter A. 24 Norling, on the brief) for Bridget 25 M. Rohde, Acting United States 26 Attorney for the Eastern District 27 of New York; Brooklyn, NY. 1 1 2 Appeal from a judgment of the United States District Court 3 for the Eastern District of New York (Johnson, J.). 4 5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 6 DECREED that the judgment of the district court be AFFIRMED. 7 8 David Z. Simpson appeals from a final order entered in the 9 United States District Court for the Eastern District of New 10 York (Johnson, J.) denying his motion for relief pursuant to 11 28 U.S.C. § 2255. We assume the parties’ familiarity with the 12 underlying facts, the procedural history, and the issues 13 presented for review. 14 Simpson was convicted after jury trial of (1) conspiring 15 to import and (2) importing into the United States 500 grams 16 or more of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), 17 960(b)(2)(B)(ii), and 963; and (3) conspiring to possess with 18 intent to distribute and (4) attempted possession of 500 grams 19 or more of cocaine in violation 21 U.S.C. §§ 841(a)(1), 20 841(b)(1)(B)(ii)(II), and 846. He was sentenced to four 21 concurrent terms of 135 months of incarceration and five years 22 of supervised release. His conviction was affirmed in United 23 States v. Simpson, 443 Fed. App’x 625 (2d Cir. 2011). 24 Simpson collaterally attacks that conviction in this § 2255 25 action, arguing that the government violated the rule of Brady 26 v. Maryland, 373 U.S. 83 (1963), by failing to disclose prior 27 inconsistent statements allegedly made by government witness 28 Michelle Yearwood; or, if the government did disclose those 29 statements, that Simpson’s trial counsel was unconstitutionally 30 ineffective because he failed to use those statements to impeach 31 Yearwood. Simpson infers that Yearwood made prior inconsistent 32 statements on the basis of two documents from the separate 33 prosecution of co-conspirator Sheldon Holder: a criminal 34 complaint filed against Holder and his presentence investigation 35 report. 36 The government is obligated under Brady to disclose 37 favorable evidence to the defense that is material to guilt or 38 punishment. To establish a Brady violation, a defendant must 39 show that: (1) the evidence at issue was favorable to the accused, 2 1 (2) the government suppressed that evidence, and (3) prejudice 2 ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). 3 “For Brady purposes, information is material if there is a 4 reasonable probability that, had the evidence been disclosed 5 to the defense, the result of the proceeding would have been 6 different. A ‘reasonable probability’ is a probability 7 sufficient to undermine confidence in the outcome.” United 8 States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005) (citation 9 and quotation marks removed). Whether an alleged Brady 10 violation is material presents a mixed question of law and fact 11 that is reviewed de novo, with “great weight” given to the 12 district court’s factual conclusions regarding the effect of 13 nondisclosure. Id. 14 Assuming arguendo that Simpson’s inference is correct--and 15 the apparent inconsistency between Yearwood’s testimony and the 16 documents from the Holder case reflects a prior inconsistent 17 statement that the government failed to disclose--Simpson has 18 not established prejudice. Materiality is assessed in light of 19 the evidence adduced at trial, because “the strength of the 20 independent evidence . . . increases the degree of significance 21 that would need to be ascribed to the withheld impeachment 22 evidence in order for it reasonably to undermine confidence in 23 the verdict.” United States v. Orena, 145 F.3d 551, 559 (2d Cir. 24 1998). The evidence that the government adduced included 25 Simpson’s arrest at the airport while picking up a courier, the 26 phone and parking records connecting him to Yearwood at the times 27 of her flights, and the notes in his pockets connecting him to 28 other co-conspirators. We agree with the district court that 29 this corroborating evidence supports the conclusion that the 30 lost opportunity for marginally more impeachment of Yearwood 31 does not undermine confidence in the verdict. 32 Accordingly, and finding no merit in appellant’s other 33 arguments, we hereby AFFIRM the judgment of the district court. 34 FOR THE COURT: 35 CATHERINE O’HAGAN WOLFE, CLERK 3