United States v. Nosworthy

11-2888-cr
United States v. Nosworthy
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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 11th day of April, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.

————————————————————————

UNITED STATES OF AMERICA,
Appellee,

v. No. 11-2888-cr

PAUL NOSWORTHY,
Defendant-Appellant.

————————————————————————

FOR APPELLANT: DIARMUID WHITE (Brendan White, on the brief), White &
White, New York, NY.

FOR APPELLEE: JOHN P. NOWAK, Assistant United States Attorney (Emily
Berger, Assistant United States Attorney, on the brief), for
Loretta E. Lynch, United States Attorney for the Eastern
District of New York, Brooklyn, NY.
 Appeal from the United States District Court for the Eastern District of New York
(Eric N. Vitaliano, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

On June 11, 2007, two police officers directed defendant Paul Nosworthy to exit his

parked vehicle, and then searched his person and discovered a firearm. Nosworthy was

subsequently indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1), 924(a)(2). Prior to trial, he moved to suppress the firearm as the product of an illegal

search. The district court denied the motion, and Nosworthy was later convicted following a

jury trial. He now appeals, arguing that the district court erred by denying his suppression

motion and by denying his post-trial motion for a new trial in light of evidence that was

allegedly improperly withheld by the government. For the reasons that follow, we affirm the

judgment of the district court. We assume the parties’ familiarity with the underlying facts and

procedural history of the case.

I. Suppression Motion

When reviewing a district court’s denial of a motion to suppress evidence, we review its

factual findings for clear error, viewing the evidence in the light most favorable to the

government, and review its conclusions of law de novo. See United States v. Worjloh, 546 F.3d

104, 108 (2d Cir. 2008). A factual finding “is clearly erroneous when although there is evidence

to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.” United States v. Sash, 396 F.3d 515, 521 (2d

Cir. 2005) (internal quotation marks omitted). In cases where “there are two permissible views

of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Id. (internal

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quotation marks omitted). Factual findings that are based on credibility determinations are

entitled to “particularly strong deference.” United States v. Mendez, 315 F.3d 132, 135 (2d Cir.

2002).

Officers Christopher Lesiewicz and George Dumont of the New York City Police

Department both testified during the initial suppression hearing. Officer Lesiewicz testified that

he and Dumont first noticed Nosworthy’s vehicle because it was “double-parked,” by which

Lesiewicz claimed to mean that it was parked “five or six feet” from the curb. He further

testified that once he approached the vehicle, Nosworthy reached for his rear pants pocket

several times, prompting him to order Nosworthy to exit the car for a pat-down. According to

Lesiewicz, as Nosworthy opened the door, Lesiewicz observed a marijuana cigarette on top of

the car’s center console. Lesiewicz testified that, as Nosworthy was leaving the vehicle,

Nosworthy’s hand again went to his back pants pocket, at which time Lesiewicz reached into the

pocket and retrieved a firearm. According to Lesiewicz, after a brief struggle, Nosworthy took

back the gun, Lesiewicz drew his own gun, and Nosworthy threw his gun away and was

ultimately arrested. Officer Dumont’s testimony was generally consistent with Lesiewicz’s,

although Dumont suggested that Nosworthy’s “double-parked” car was parked “approximately

three feet” from the curb.

The defense argued that the officers were not credible, noting, among other things, that a

DNA test of the marijuana cigarette showed that the cigarette contained DNA from two

unidentified men, but not from either Nosworthy or his passenger, that there were

inconsistencies in the police officers’ various written and testimonial descriptions of the arrest

regarding whether the cigarette was lit and whether the officers smelled the odor of marijuana

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when they approached the car, and that their idiosyncratic definition of “double-parked” may

have been concocted to conform their testimony that the car was too far from the curb to an

earlier assertion that the car had been double-parked.

At the end of the initial suppression hearing, the district court noted that there were

“troubling” inconsistencies in the record regarding the marijuana cigarette, and stated that it did

not “know what [it] would do, frankly, if that was the only thing before the court.” Nonetheless,

the court found that the stop and search were permissible for an independent reason: that

Nosworthy had committed a traffic violation by parking more than a foot from the curb. See

N.Y. Veh. & Traf. Law § 1203(b) (providing that, unless angled parking is authorized, vehicles

parked on a one-way roadway must be parked parallel to and within twelve inches of the curb).

In reaching this conclusion, the court noted that it found the officers’ testimony on the location

of the car “totally credible.” Having determined that the initial stop was lawful, the court went

on to find that Officer Lesiewicz was entitled to ask Nosworthy to step out of the car. The court

also found that Lesiewicz’s testimony that Nosworthy made furtive movements towards his rear

pocket was credible, and therefore concluded that the search of Nosworthy’s person was lawful.

Based on these findings, the court denied Nosworthy’s suppression motion.

Eighteen months later, the district court re-opened the suppression hearing to permit

testimony from Edmundo Abrigande, a civilian bystander who had observed some of the

incident and who testified that Nosworthy’s car was parked “the right distance” under the one-

foot rule – a rule that Abrigande was aware of at the time of Nosworthy’s arrest because he had

recently taken his driving test. The district court chose not to credit Abrigande’s testimony

regarding the distance between Nosworthy’s car and the curb, noting that Abrigande had

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admitted that he had not actually looked at Nosworthy’s tires. Accordingly, the court denied

Nosworthy’s renewed suppression motion.1

Nosworthy argues that the district court erred by crediting the testimony of Officers

Lesiewicz and Dumont, noting several concerning aspects of their testimony. For example,

Nosworthy notes that the affidavit Lesiewicz filed in state court shortly after the arrest described

Nosworthy’s vehicle as “double parked,” and that under New York law double-parking is

defined as being parked on the roadway side of a parked vehicle, rather than a few feet from the

curb. See N.Y. Veh. & Traf. Law § 1202(a)(1) (defining double parking as “[s]top[ping],

stand[ing] or park[ing] a vehicle . . . [o]n the roadway side of any vehicle stopped, standing or

parked at the edge or curb of a street”).2 Nosworthy also emphasizes that Abrigande’s testimony

directly contradicted that of the officers, and that Abrigande had no apparent incentive to lie and,

indeed, had been relied upon in other respects by the government at trial as a neutral, credible

bystander witness. Moreover, Nosworthy argues that the fact that the DNA test found neither

Nosworthy’s nor the passenger’s DNA on the marijuana cigarette recovered from the car—but

did find the DNA of two other unidentified men—should have led the district court to conclude

that the cigarette was planted by the officers and to discredit all of the officers’ testimony.

1
Abrigande also testified that Nosworthy’s car was parked in a “No Parking” zone. The
district court invoked this violation as an alternative ground for sustaining the officers’ stop and
search, although there was no evidence suggesting that the officers were aware that Nosworthy
was parked in a “No Parking” zone. The government does not press this alternative ground on
appeal, and we do not reach its merits.
2
This is not only a legal definition. According to various dictionaries, it is also the common
English vernacular definition of the term. See, e.g., The American Heritage Dictionary of the
English Language 539 (5th ed. 2011) (“To park alongside another vehicle already parked parallel
to the curb.”); Merriam-Webster’s Collegiate Dictionary 347 (10th ed. 1998) (“To park (a vehicle)
beside a row of vehicles already parked parallel to the curb”). We have found no legal or lay source
that defines the term as it was used by the officers in this case.

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 These are strong arguments, and a different factfinder might well have found them

persuasive and concluded that the officers’ testimony was less than credible. Nonetheless, we

cannot say that the district court—which had the benefit of observing the testimony of the

witnesses—clearly erred in crediting the officers’ testimony and discounting the testimony

favored by Nosworthy. See Mendez, 315 F.3d at 135 (noting that credibility determinations are

entitled to “particularly strong deference”). Throughout their testimony, the officers remained

consistent in using the term “double parking” to refer to being parked several feet from the curb.

The district court plausibly discredited Abrigande’s testimony, given that Abrigande’s attention

was likely more focused on the arrest than the precise location of Nosworthy’s car, and that

Abrigande admitted that he did not look at Nosworthy’s tires. Finally, there are possible

explanations other than police misconduct for the results of the DNA test; for example, the

cigarette may have been smoked by prior passengers in the car. In any event, the district judge

placed no weight on the testimony about that subject, which he found “troubling.” Even if the

police did testify dishonestly regarding the marijuana cigarette, the district court was not

required to conclude that they also lied about where Nosworthy’s car was parked. Under the

deferential standard of review that applies to credibility determinations, we cannot say that the

district court committed clear error in crediting the officers’ testimony regarding Nosworthy’s

traffic violation. Accordingly, we can find no error in the denial of Nosworthy’s motion to

suppress.

II. New Trial Motion

We review the denial of a Rule 33 motion “for an abuse of discretion” and “accept the

district court’s factual findings unless they are clearly erroneous.” United States v. McCourty,

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562 F.3d 458, 475 (2d Cir. 2009) (internal quotation marks omitted). Motions for a new trial

“should be granted only with great caution and in the most extraordinary circumstances.” United

States v. Stewart, 433 F.3d 273, 296 (2d Cir. 2006) (internal quotation marks omitted).

In his Rule 33 motion, Nosworthy argued that, three months after arresting Nosworthy,

Officer Lesiewicz gave suspiciously similar testimony at a suppression hearing in United States

v. Esterine, No. 07-CR-258, 2007 WL 3274887 (E.D.N.Y. Nov. 5, 2007). In Esterine, Lesiewicz

testified that while on patrol in a police van driven by Officer Dumont, he observed a car

illegally parked partially on the street and partially on the curb. Esterine, who was sitting on the

passenger side, was alone in the vehicle. After approaching, Lesiewicz looked through the car

window and saw a plastic bag containing marijuana and cigarette rolling papers. He also

smelled the aroma of marijuana. After asking Esterine to exit the vehicle, Lesiewicz patted him

down for weapons and retrieved a firearm from Esterine’s rear waistband.

Nosworthy’s Rule 33 motion claimed that this testimony – which his attorney discovered

online after the trial – constituted newly discovered evidence and that the government’s failure to

disclose it earlier in the proceedings violated its obligations under Brady v. Maryland, 373 U.S.

83 (1963); the Jencks Act, 18 U.S.C. § 3500; and Federal Rule of Criminal Procedure 26.2.

Nosworthy accordingly asked the district court to re-open his suppression hearing and hold a

new trial. The court denied Nosworthy’s motion, holding that Nosworthy had not proven a

violation of Brady, the Jencks Act, or Rule 26.2, and that the Esterine testimony did not

constitute newly discovered evidence for purposes of Rule 33.

The district court did not abuse its discretion in denying Nosworthy’s Rule 33 motion.

First, the district court did not err in rejecting Nosworthy’s argument that the testimony

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constituted newly discovered evidence. Under Rule 33, a motion for a new trial based on newly

discovered evidence will be granted “‘only upon a showing that the evidence could not with due

diligence have been discovered before or during trial, that the evidence is material, not

cumulative, and that admission of the evidence would probably lead to an acquittal.’” United

States v. Owen, 500 F.3d 83, 87 (2d Cir. 2007) (quoting United States v. Alessi, 638 F.2d 466,

479 (2d Cir. 1980)). In this case, there is no reason why the simple Google search that

uncovered the Esterine testimony could not have been performed before trial. Moreover, earlier

access to the Esterine testimony would not likely have resulted in Nosworthy’s acquittal. The

testimony pertained to an entirely different arrest, and the details of that arrest were distinct in

several respects, undercutting the inference that the police used a “canned” story. To the extent

the two fact patterns were similar, that similarity could well result from the fact that street

narcotics officers like Lesiewicz and Dumont frequently encounter traffic violations and the

public use of marijuana in the course of their duties.

Second, the district court correctly found that the government was not required to turn

over the Esterine testimony under Brady. For the failure to disclose evidence to be a Brady

violation, “[t]he evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been suppressed by the

[prosecution], either willfully or inadvertently; and prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). We agree with the district court that the Esterine

testimony was neither exculpatory nor impeaching. It concerned a wholly unrelated criminal

arrest, and the magistrate judge in Esterine had specifically found the officers’ testimony

credible. It is uncertain whether the evidence would have furthered defense counsel’s vigorous

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effort to impeach the officers, or would instead have undercut Nosworthy’s case by

demonstrating that street narcotics officers in the ordinary course of their duties sometimes make

similar stops under similar circumstances. See United States v. Persico, 645 F.3d 85, 111 (2d

Cir. 2011) (“[U]ndisclosed impeachment evidence is not material in the Brady sense when,

although possibly useful to the defense, it is not likely to have changed the verdict.” (internal

quotation marks omitted)). In this regard, we note that the district judge, who would have been

the factfinder at a renewed suppression hearing, favored the latter theory.

Finally, the government did not violate the Jencks Act by failing to turn over the Esterine

testimony. The Jencks Act provides that “[a]fter a witness called by the United States has

testified on direct examination, the court shall, on motion of the defendant, order the United

States to produce any statement . . . of the witness in the possession of the United States which

relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). A

“statement” includes a verbatim transcription of an oral statement, such as a court transcript. See

18 U.S.C. § 3500(e). We have held that a witness’s statement “must at least relate generally to

the events and activities testified to before the statement must be produced” pursuant to the

Jencks Act. United States v. Pacelli, 491 F.2d 1108, 1118 (2d Cir. 1974) (internal quotation

marks omitted); see also United States v. Bin Laden, 397 F. Supp. 2d 465, 492 (S.D.N.Y. 2005).

Statements which are “merely incidental or collateral” need not be disclosed under the Act.

Pacelli, 491 F.2d at 1118 (internal quotation marks omitted). Similarly, “not all statements that

might in some way be helpful in impeaching the witness are producible.” United States v.

Birnbaum, 337 F.2d 490, 498 (2d Cir. 1964); see also Bin Laden, 397 F. Supp. 2d at 493. We

agree with the district court that the officers’ testimony in Esterine was not “related” to their

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testimony in this case. The testimony did not concern any of the facts surrounding Nosworthy’s

arrest, and was of only marginal impeachment value. We decline to embrace a reading of the

Jencks Act that would require the disclosure of information from an entirely unrelated case just

because it involved a broadly similar – and far from uncommon – fact pattern.3

We have considered Nosworthy’s other arguments and find them to be without merit.

For the foregoing reasons, the judgment of conviction is AFFIRMED.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

3
Nosworthy’s argument that the Esterine testimony should have been disclosed pursuant to
Rule 26.2, which contains a similar “relatedness” requirement, fails for the same reasons. See Fed.
R. Crim. P. 26.2 (“After a witness other than the defendant has testified on direct examination, the
court, on motion of a party who did not call the witness, must order an attorney for the government
or the defendant and the defendant’s attorney to produce, for the examination and use of the moving
party, any statement of the witness that is in their possession and that relates to the subject matter
of the witness’s testimony.” (emphasis added)).

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