18-3074-cr(L)
United States v. Stillwell, Samia, Hunter
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
Nos. 18-3074-cr, 18-3489-cr, 19-790-cr
UNITED STATES OF AMERICA,
Appellee,
v.
CARL DAVID STILLWELL, AKA DAVID STILLWELL, ADAM SAMIA, AKA
SAL, AKA ADAM SAMIC, AND JOSEPH MANUEL HUNTER, AKA SEALED
DEFENDANT 1, AKA FRANK ROBINSON, AKA JIM RIKER, AKA RAMBO, AKA
JOSEPH HUNTER,
Defendants-Appellants,
MICHAEL FILTER, AKA SEALED DEFENDANT 2, AKA PAUL, TIMOTHY
VAMVAKIAS, AKA SEALED DEFENDANT 3, AKA TAY, DENNIS GOGEL,
AKA SEALED DEFENDANT 4, AKA DENNIS GOEGEL, AKA NICO,
SLAWOMIR SOBORSKI, AKA SEALED DEFENDANT 5, AKA GERALD,
Defendants.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: OCTOBER 30, 2019
DECIDED: JANUARY 27, 2021
Before: CABRANES, RAGGI, Circuit Judges, and KORMAN, District Judge. 1
Defendants-Appellants Carl David Stillwell, Adam Samia, and
Joseph Manuel Hunter (together, “Defendants”) appeal their
judgments of conviction for murder-for-hire and related crimes,
entered in the Southern District of New York (Ronnie Abrams, Judge).
Long after Defendants filed their appeals, the Narcotic and Dangerous
Drug Section (“NDDS”) of the U.S. Department of Justice filed a notice
in this Court, advising us that the District Court had entered a sealed
protective order upon the filing of an ex parte motion by the NDDS,
which barred prosecutors in the U.S. Attorney’s Office for the
Southern District of New York and defense counsel from reviewing
certain documents. We later vacated the protective order and ordered
disclosure of the material to the U.S. Attorney for the Southern District
of New York and then to defense counsel, consistent with the
prosecution’s obligations under Brady v. Maryland, 373 U.S. 83 (1963),
Giglio v. United States, 405 U.S. 150 (1972), and related authorities. With
that disclosure and supplemental briefing now concluded, Defendants
have raised a new claim that the prosecution withheld exculpatory
1 Judge Edward R. Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.
2
information in violation of the rule of Brady v. Maryland, 373 U.S. 83
(1963). We decline to consider, let alone resolve, Defendants’ Brady
claims, which are raised for the first time on appeal. We REMAND for
the District Court to consider those claims in the first instance on an
appropriate post-trial motion by Defendants.
EMIL J. BOVE III (Rebekah Donaleski and
Sarah K. Eddy, on the brief), Assistant United
States Attorneys, for Audrey Strauss, United
States Attorney for the Southern District of
New York, New York, NY, for Appellee.
ROBERT W. RAY (Brittney M. Edwards on the
brief), Thompson & Knight LLP, New York,
NY, for Defendant-Appellant Stillwell.
MASHA G. HANSFORD (Kannon K.
Shanmugam on the brief), Paul, Weiss,
Rifkind, Wharton & Garrison LLP,
Washington, DC, for Defendant-Appellant
Samia.
ROBERT J. BOYLE, Robert J. Boyle Attorney at
Law, New York, NY, for Defendant-Appellant
Hunter.
3
JOSÉ A. CABRANES, Circuit Judge:
Defendants-Appellants Carl David Stillwell, Adam Samia, and
Joseph Manuel Hunter (together, “Defendants”) appeal their
judgments of conviction for murder-for-hire and related crimes,
entered in the United States District Court for the Southern District of
New York (Ronnie Abrams, Judge) on October 12, 2018 (Stillwell),
November 14, 2018 (Samia), and March 25, 2019 (Hunter).
After the first of the three appeals was filed, the Narcotic and
Dangerous Drug Section (“NDDS”) of the U.S. Department of Justice
(“DOJ”) filed a notice in this Court in October 2018, advising the Clerk
of Court that the District Court had entered a sealed protective order
upon an ex parte motion by the NDDS, which barred prosecutors in the
U.S. Attorney’s Office for the Southern District of New York and
defense counsel from reviewing certain documents. 2
The NDDS’s rather extraordinary notice to this Court—
considered by the panel after oral arguments for Samia’s and
Stillwell’s appeals took place—initiated a series of events that
culminated in our ordering disclosure of the materials, first to the U.S.
Attorney for Southern District of New York and then to defense
counsel, consistent with the prosecution’s obligations under Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150
(1972), and related authorities. We further set forth a schedule for
disclosure of the materials and supplemental briefing, which has been
Stillwell filed his appeal on October 18, 2018. Samia’s appeal was filed on
2
November 20, 2018 and Hunter’s appeal was filed on March 28, 2019.
4
subject to delays due to circumstances created by the COVID-19
pandemic. 3
With supplemental briefing and disclosure now complete,
Defendants challenge their convictions by claiming that the
prosecution withheld exculpatory information in violation of the rule
of Brady. We decline to consider, let alone resolve, Defendants’ Brady
claims at this time. We REMAND for the District Court to consider
those claims in the first instance on an appropriate post-trial motion
by Defendants.
I. BACKGROUND
Defendants-Appellants Carl David Stillwell, Adam Samia, and
Joseph Manuel Hunter (together, “Defendants”) were tried on five
Counts 4 in the United States District Court for the Southern District of
New York. Count One charged conspiracy to commit murder-for-hire,
in violation of 18 U.S.C. § 1958(a). Count Two charged murder-for-
hire, in violation of 18 U.S.C. § 1958(a). Count Three charged
conspiracy to murder and kidnap in a foreign country, in violation of
3 This Court’s actions pertained only to the protective order entered in this
case. Nevertheless, to the extent the NDDS or similar entities may have obtained
similar ex parte sealed protective orders against all parties in other criminal cases in
this Circuit, district courts may wish to consider whether such orders should be
maintained in light of this decision. In order to permit effective review, any decision
to enter or maintain such an ex parte sealed protective order against all parties
should be supported by a clear statement of reasons, including specific reasons why
disclosure cannot be permitted even as to the pertinent U.S. Attorney in the first
instance.
4 Hunter was not charged with Count Five.
5
18 U.S.C. § 956(a). Count Four charged causing death with a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C.
§ 924(j). Count Five charged conspiracy to launder money, in violation
of 18 U.S.C. § 1956(h).
The jury returned verdicts of guilty on all counts for Defendants
on April 18, 2018. Hunter filed post-trial motions pursuant to Federal
Rules of Criminal Procedure 29 and 33, 5 Stillwell filed a post-trial
motion pursuant to Rule 29, 6 and Samia apparently joined these
motions, 7 which were denied by the District Court. All three
Defendants were sentenced principally to life imprisonment, and
judgments entered on October 12, 2018 (Stillwell), November 14, 2018
(Samia), and March 25, 2019 (Hunter). These timely appeals followed.
We held oral argument on Samia’s and Stillwell’s appeals on
October 30, 2019. 8 At about this time, we learned that the NDDS of the
DOJ had filed a notice with this Court in October 2018, advising the
Clerk of Court that the District Court had entered a protective order in
the case barring prosecutors in the U.S. Attorney’s Office for the
Southern District of New York and defense counsel from reviewing
5 USA v. Hunter et al., No. 13-cr-521-RA-1, ECF. 602 (S.D.N.Y., June 6, 2018).
6 Hunter et al., No. 13-cr-521-RA-7, ECF. 601 (S.D.N.Y., June 6, 2018).
7 Hunter et al., No. 13-cr-521-RA-6, ECF. 625 (S.D.N.Y., August 14, 2018)
(noting, in reference to the post-trial motion filed by Stillwell, that “the Court
understands [Samia] has joined his co-defendants' motions”).
8 We did not hear oral argument in Hunter’s appeal at that time because
(1) the primary briefing was still underway and (2) it was not yet consolidated with
the appeals of Stillwell and Samia.
6
certain documents. The District Court had granted the sealed
protective order pursuant to Section 4 of the Classified Information
Procedures Act (“CIPA”), 18 U.S.C. app. 3 §§ 1 et seq. and Federal Rule
of Criminal Procedure 16(d), upon the filing of an ex parte motion by
an NDDS attorney, with no notice to counsel of record for either the
prosecution or the defense. Transmitted with the notice were the
motion and memorandum of law, the exhibits that supported the
motion, and the protective order.
On November 19, 2019, we issued a sealed Order to Show Cause
to the NDDS to demonstrate why the motion and memorandum of
law, the exhibits that supported the motion, and the protective order
should not be disclosed to the U.S. Attorney for the Southern District
of New York for his review.
On December 8, 2019, the NDDS responded to the Order to
Show Cause in a sealed memorandum of law in support of the
protective order, requesting that this Court refrain from disclosing the
materials to the U.S. Attorney for the Southern District of New York.
On January 2, 2020, this Court vacated the District Court’s
protective order. We simultaneously issued a sealed Order directing
disclosure of the documents at issue to the U.S. Attorney for the
Southern District of New York and requiring him to Show Cause why,
pursuant to the Government’s disclosure obligations, the defense
counsel should not be made aware of the sealed proceedings or the
material subject to the protective order.
7
On January 24, 2020, the U.S. Attorney for the Southern District
of New York responded with a sealed memorandum of law in which
he claimed, for several reasons, that the protected material and the
sealed proceedings should not be disclosed to defense counsel.
On March 10, 2020, this Court issued an Order directing the U.S.
Attorney of the Southern District of New York to disclose any material
subject to Federal Rule of Criminal Procedure 16, 18 U.S.C. § 3500,
Brady, and Giglio to defense counsel. 9 We subsequently set forth a
schedule for supplemental briefing and disclosure of the pertinent
classified materials, which was substantially delayed due to the
circumstances created by the COVID-19 pandemic.
The supplemental briefing and disclosure were completed by
December 2020. 10 In light of the materials disclosed pursuant to our
March 10, 2020 Order, Defendants now raise an additional challenge
to their convictions: that the prosecution withheld exculpatory
information in violation of the rule of Brady. 11
9 Our March 10, 2020 Order provided that such a disclosure could be in an
unclassified format through a so-called “substitution” pursuant to CIPA Section 6.
See 18 U.S.C. app. 3 § 6.
10As of November 19, 2020, the primary briefing for Hunter’s appeal was
also completed.
11 Although each member of the panel has had the opportunity to review
the parties’ submissions, we find it unnecessary to rely on anything beyond the
public record to reach our decision in this opinion.
8
II. DISCUSSION
It is well established that the prosecution has an obligation
under the Due Process Clause to disclose to the defendant material
exculpatory and impeaching evidence. 12 To establish a Brady violation,
“a defendant must show that: (1) the [prosecution], either willfully or
inadvertently, suppressed evidence; (2) the evidence at issue is
favorable to the defendant; and (3) the failure to disclose this evidence
resulted in prejudice.” 13 The suppression of exculpatory or
impeaching evidence does not constitute a constitutional violation
unless the evidence is “material.” 14 Undisclosed evidence is “material”
only if “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” 15 And the “prosecutor has a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in the
case[.]” 16
See generally Brady, 373 U.S. 83; Giglio, 405 U.S. 150; see also United States v.
12
Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) (explaining that the prosecution “has an
affirmative duty to disclose favorable evidence known to it, even if no specific
disclosure request is made by the defense”).
13 United States v. Coppa, 267 F.3d 132, 140 (2d Cir. 2001).
14 Kyles v. Whitley, 514 U.S. 419, 434 (1995).
15 Payne, 63 F.3d at 1209 (internal quotation marks omitted).
Kyles, 514 U.S. at 437; but see United States v. Locascio, 6 F.3d 924, 949 (2d
16
Cir. 1993) (holding that “[w]e will not infer the prosecutors’ knowledge simply
because some other government agents knew about the report.”); United States v.
Quinn, 445 F.2d 940, 944 (2d Cir. 1971) (holding that knowledge on the part of one
arm of government does not imply knowledge by the prosecutor).
9
It is also a well-established general rule that an appellate court
will not consider an issue raised for the first time on appeal. 17 This rule
is not an absolute bar to raising new issues on appeal; the general rule
is disregarded when we think it necessary to remedy an obvious
injustice. 18 Ultimately, “[e]ntertaining issues raised for the first time
on appeal is discretionary with the panel hearing the appeal.” 19
After due consideration, we find that we must refrain from
resolving Defendants’ Brady claims in the first instance. 20
First, there is no record below for us to review. No Brady claim
was presented to the District Court during either the trial or the post-
trial proceedings. But we note that, in these circumstances, the
Defendants could not have done so. The NDDS first filed its notice in
17 See generally United States v. Keshner, 794 F.3d 232, 234 (2d Cir. 2015)
(quoting Greene v. United States, 13 F.3d 577, 585–86 (2d Cir. 1994)); see also Singleton
v. Wulff, 428 U.S. 106, 120 (1976).
18See T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 168 (2d Cir.
2014) (quoting Greene, 13 F.3d at 585–86); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900
F.2d 522, 527 (2d Cir. 1990).
19 Greene, 13 F.3d at 586.
20 We observe that a panel of this Court has assumed, citing two decisions
from our sister Courts of Appeal, that we review an “unpreserved” Brady claim for
plain error. United States v. Kirk Tang Yuk, 885 F.3d 57, 86 (2d Cir. 2018) (citing United
States v. Catone, 769 F.3d 866, 871 (4th Cir. 2014) and United States v. Mota, 685 F.3d
644, 648 (7th Cir. 2012)). However, in Kirk Tang Yuk, even though the defendant did
not raise a Brady claim until direct appeal, the material at issue in the alleged
violation was in fact turned over to the defendant prior to trial. Id. In the
circumstances of this case, where it is undisputed that the information in question
was not disclosed until approximately two years after Defendants’ trial, we decline
to make a similar assumption.
10
this Court in October 2018 and then, in response to our sealed Order
to Show Cause, filed the requested materials under seal. After our
examination, we directed that the materials be turned over, first to the
U.S. Attorney for the Southern District of New York, and then to
defense counsel, consistent with the prosecution’s obligations under
Brady and related authorities. It was only after Defendants were able
to review the previously undisclosed material that they were in a
position to even determine whether to pursue such a claim.
Furthermore, by issuing the January 2, 2020 Order, we have
vacated the only record of the District Court’s analysis of the
previously undisclosed materials—the sealed protective order entered
pursuant to CIPA Section 4 and Federal Rule of Criminal Procedure
16(d).
Second, it appears to us from the record that the period of time
in which Defendants may file an appropriate Federal Rule of Criminal
Procedure 33 motion is rapidly drawing to a close. Rule 33(b)(1)
provides that a defendant may file a motion for a new trial based on
newly discovered evidence, but requires that “[a]ny motion for a new
trial grounded on newly discovered evidence . . . be filed within 3
years after the verdict or finding of guilty.” 21 The jury returned guilty
verdicts as to Stillwell, Samia, and Hunter on April 18, 2018. 22 It
appears that any Rule 33 motion based on newly discovered evidence
21 Fed. R. Crim. P. 33(b)(1).
See Hunter et al., No. 1:13-cr-521-RA, Dkt. Entry for April 18, 2018
22
(S.D.N.Y., April 18, 2018).
11
must, therefore, be filed by or on April 17, 2021—a date that is
approximately three months away.
Because of these arguable limitations, we are remanding to the
District Court to consider, if not fully determine, the matter. 23 The
Defendants’ allegations concerning the previously undisclosed
material, if true, are relevant to the establishment of cause for a new
trial. As such, they should be first presented to the District Court on
an appropriate post-trial motion. Of course, our decision in this
response is without prejudice to any action which the Defendants may
wish to take in the District Court.
If, on remand, Defendants timely file such a motion that
presents their Brady claims, the District Court should expeditiously
23 See, e.g., United States v. Dansker, 537 F.2d 40, 65 (3d Cir. 1976) (after
appellants raised, for the first time on direct appeal, claims that the prosecution
had withheld exculpatory information in violation of the rule of Brady v.
Maryland, 373 U.S. 83 (1963), refraining from resolving the Brady claims and
remitting the defendants to move in the first instance for a new trial before the
trial judge); see also United States v. Ferri, 778 F.2d 985, 997 (3d Cir. 1985) (citing
Dansker and doing the same); cf. United States v. Gupta, 699 F.3d 682, 686 (2d Cir.
2012) (remanding for supplemental fact finding where the appellant, “while his
appeal was pending before this Court,” submitted a letter in which he alleged for
the first time that the district court had violated his Sixth Amendment right by
closing the courtroom during voir dire); United States v. Seabrook, 571 F. App'x 27,
28, 29–30 (2d Cir. 2014) (non-published summary order) (where a public trial
claim was raised for the first time on appeal and “the limited record before us on
the issue is unclear,” remand is appropriate “for the district court to supplement
the record and determine in the first instance whether [appellant’s] Sixth
Amendment right to a public trial was violated”).
12
determine whether any evidence favorable to the Defendants was
material, suppressed, or both.
If the District Court determines that there was a Brady violation,
it should proceed to enter an order under Rule 33 granting such relief
as might be warranted.
As we decline to pass on this matter currently before us, we
express no opinion on the merits of Defendants’ Brady claims nor the
other arguments raised by Defendants on appeal.
III. CONCLUSION
For the foregoing reasons, we REMAND for the District Court
to consider the Brady claims in the first instance on an appropriate
post-trial motion by Defendants and for further proceedings
consistent with this decision. The mandate shall issue forthwith,
within five days from the publication of this opinion. In the interest of
judicial economy, any further appeal in these cases shall be directed to
this panel. 24
24 Cf. United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).
13