UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1258
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID SEPULVEDA,
Defendant, Appellant.
No. 93-1259
UNITED STATES OF AMERICA,
Appellee,
v.
EDGAR SEPULVEDA,
Defendant, Appellant.
No. 93-1260
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM D. WALLACE,
Defendant, Appellant.
No. 93-1261
UNITED STATES OF AMERICA,
Appellee,
v.
EDWARD W. WELCH, JR.,
Defendant, Appellant.
No. 93-1262
UNITED STATES OF AMERICA,
Appellee,
v.
KEVIN CULLINANE,
Defendant, Appellant.
No. 93-1263
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER DRIESSE,
Defendant, Appellant.
No. 93-1280
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD LABRIE,
Defendant, Appellant.
No. 93-1281
UNITED STATES OF AMERICA,
Appellee,
v.
SHANE WELCH,
Defendant, Appellant.
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No. 93-1282
UNITED STATES OF AMERICA,
Appellee,
v.
ERNEST F. LANGLOIS,
Defendant, Appellant.
No. 93-1283
UNITED STATES OF AMERICA,
Appellee,
v.
TONY ROOD,
Defendant, Appellant.
No. 93-1284
UNITED STATES OF AMERICA,
Appellee,
v.
CHERYL T. JOHNSON,
Defendant, Appellant.
No. 93-1285
UNITED STATES OF AMERICA,
Appellee,
v.
ARLINE S. WELCH,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
Before
Selya, Cyr and Boudin,
Circuit Judges.
David H. Bownes for appellant David Sepulveda.
Julia M. Nye for appellant Edgar Sepulveda.
Stephen A. Cherry for appellant Edward W. Welch, Jr.
Kevin M. Fitzgerald for appellant Arline S. Welch.
Paul J. Haley for appellant Shane Welch.
Michael J. Ryan for appellant Kevin Cullinane.
John P. Rab for appellant Christopher Driesse.
Robert P. Woodward for appellant Cheryl T. Johnson.
Mark H. Campbell for appellant Richard Labrie.
Paul J. Garrity for appellant Tony Rood.
Matthew J. Lahey for appellant William D. Wallace.
Julie L. Lesher for appellant Ernest F. Langlois.
Terry L. Ollila, Special Assistant United States Attorney, with
whom Peter E. Papps, United States Attorney, was on brief for the
United States.
December 30, 1993
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BOUDIN, Circuit Judge. On June 3, 1991, a jury
convicted the 12 defendants in this case of conspiracy to
possess cocaine with intent to distribute; one of the
defendants, David Sepulveda, was also convicted on a
continuing criminal enterprise count. 21 U.S.C. 846, 848.
On December 10, 1992, the defendants filed a post-trial
motion seeking dismissal or a new trial based on newly
discovered evidence. The district court denied the motion in
a decision filed February 25, 1993. The defendants appealed
separately from the judgments of conviction and from the
denial of the post-trial motion, and the cases were
consolidated for oral argument.
In United States v. Sepulveda, No. 92-1362, et al. (1st
Cir., Dec. 20, 1993), this court has affirmed the convictions
of 10 of the 12 defendants, but vacated two of the sentences
and remanded those cases for resentencing.1 That decision
sets forth in detail the factual background of the case but
addresses only issues presented on the original appeals from
the convictions. In this opinion, we consider the appeals
challenging the denial of the defendants' post-trial motion.
We conclude that the district court properly denied the
1In United States v. Sepulveda, Nos. 92-1368 and 92-1370
(1st Cir. 1993), filed simultaneously with this opinion, this
court has affirmed the convictions of the remaining two
defendants but remanded one of the two cases for
resentencing.
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motion and that neither a new trial nor a dismissal of the
cases was warranted.
Among the more than 30 witnesses who testified for the
government at the trial was Joseph Baranski. Baranski
testified that he had dealt in cocaine as a user and a
retailer and that David Sepulveda had been one of Baranski's
sources of supply. Baranski described journeys with David
Sepulveda to secure drugs in Nashua, New Hampshire, and
estimated that he had bought from him 50 to 60 times in the
period 1985-1986. Baranski said that co-defendant Edgar
Sepulveda sometimes participated in the trips. Baranski also
made brief incriminating references to several other
defendants, such as Cullinane and Langlois. The former, said
Baranski, supplied one of Baranski's other sources of drugs,
and the latter was an enforcer for David Sepulveda.
At trial defense counsel managed to impair Baranski's
credibility rather effectively. Baranski denied making any
deal with the government that might explain why he was
delivering testimony that incriminated him as well as several
of the defendants. Instead, he said he was testifying out of
friendship with James Noe, who had previously been a business
partner with Baranski both in operating a compact disc store
in Manchester, New Hampshire, and in cocaine trafficking.
Baranski said that Noe, who was also a witness, had asked him
to testify and that he had obliged.
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Asked whether he had received any compensation from the
government, Baranski said that he had been bought a diet
soda. The assistant United States attorney then advised
defense counsel that records of the Drug Enforcement
Administration showed that Baranski had been paid $500 in
1986 and again in 1988 for assisting it in drug arrests or
prosecutions. Baranski was recalled for further cross-
examination and made to admit the more recent payment; the
earlier one he said he did not recall. His testimony
included other improbable failures of recollection.
Following the trial and the resulting convictions,
defense counsel uncovered a sworn complaint dated September
15, 1992, that Baranski had filed in his own lawsuit against
the State of New Hampshire. In that document, Baranski
described a raid by New Hampshire state police conducted on
February 10, 1988, on Baranski and Noe's compact disc store
in Manchester. There the police seized cocaine and about
$20,000 in cash. Baranski's complaint said that he had no
knowledge of the drug dealing and that all but $1,700 of the
funds were proceeds of legitimate business interests.
The complaint went on to say that the law enforcement
officers had told Baranski that the bulk of the seized money
would not be returned to him unless he was "willing to work
it off." Baranski, according to the complaint, then
"reluctantly agreed to assist the state in its anti-drug
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operations. Since the date of the seizure Mr. Baranski has
assisted the state of New Hampshire." Baranski's complaint
said that the state had returned $6,000 of the money to him
but declined to return the rest. The complaint sought "the
balance" of the money as an unconstitutional taking of
property.2
In their motion filed on December 10, 1992, the
defendants argued that the information set forth in
Baranski's complaint was newly discovered evidence of great
significance. The motion claimed that the information
constituted Brady material of which the prosecution knew, or
should have known, either directly or through its agents.3
Defense counsel charged the government with misconduct and
argued that during his testimony Baranski had concealed his
relationship with law enforcement authorities and his
compensation arrangements concerning the seized money. The
remedy, defendants urged, was either dismissal of the cases
or a new trial.
2Based on this information, defense counsel then
searched the state court records pertaining to the search
warrant that had authorized the raid of February 10, 1988. A
state police property receipt showed that the amounts
specified in Baranski's complaint had indeed been seized.
3Brady v. Maryland, 373 U.S. 83 (1963), is the standard
statement of the prosecutor's obligation to turn over
exculpatory material. In Giglio v. United States, 405 U.S.
150 (1972), the Supreme Court said that the obligation
includes evidence that would impeach the credibility of
government witnesses.
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A flurry of further filings followed. The prosecutors
denied that they or the case agents assisting them had during
the trial any knowledge of an arrangement between Baranski
and the state police for him to cooperate with law
enforcement authorities. The government also argued that the
additional impeaching effect of such information, if true,
would not conceivably have altered the outcome of the trial,
given the limited role of Baranski's testimony and the parade
of witnesses against the defendants. Defense counsel filed a
broad-gauged motion to produce including all materials
related to any agreements with Baranski or Noe as to the
return of the seized money.
On February 25, 1993, the district court denied the
motion for dismissal or a new trial. It ruled that the
record provided an adequate basis for resolving the motion.
The court pointed out that Noe had testified at trial and
disclosed the search of his business premises in the February
1988 raid; since the records of the raid were not sealed, the
court said that defense counsel, knowing of the raid, could
have secured the information about the funds seizure
themselves. Accordingly, the court declined to describe the
evidence as "newly discovered," implying that due diligence
by defense counsel would have uncovered the information in
time for trial.
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The court also said that Baranski's own trial testimony
had shown him to be a witness of "dubious" credibility. The
additional information provided by the Baranski state court
complaint was, at most, additional impeaching evidence. The
court said that the additional evidence if presented to the
jury would not likely have altered the outcome of the trial,
so that the defendants had failed to make the minimum
necessary showing for a new trial. Indeed, the district
court indicated that there was no reasonable possibility that
the evidence would have had altered the outcome.
We agree with the district court that even the complete
discrediting and elimination of Baranski's testimony would
not have changed the outcome in this case, and that alone is
basis enough to affirm the court's denial of the motion. The
defense may have a plausible argument that even if a diligent
pre-trial search had uncovered the state police records of
the search and seizure of the funds, these facts would not
have disclosed the supposed "work it off" arrangement alleged
in Baranski's complaint. Nevertheless, as we explain below,
new trials based on newly discovered evidence, or on evidence
withheld by the prosecution, require specified showings as to
the likelihood of a different result. The defense has not
made those showings.
We start by putting to one side any claim that the
government engaged in deliberate misconduct. The prosecutors
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represented that neither they nor any of the case agents were
aware of any deal between Baranski and the New Hampshire
authorities that Baranski would regain seized funds by
cooperating with the state or anyone else. The district
court accepted this representation, and nothing said in the
defense briefs gives us any reason to question it or to
approve the fishing expedition proposed by the defense motion
to produce.
What we have is evidence that might have been useful to
defense counsel in seeking further to discredit Baranski.
Primarily, his state court complaint, if believed, suggests a
continuing link with state law enforcement authorities that
endured during the trial of this case and a desire to curry
favor with state authorities in order to recover more of his
funds. It is not apparent that helpful testimony by Baranski
in this federal prosecution would have been treated as
cooperation by the state or facilitated the recovery, but
defense counsel could have cross-examined on this point and
the jury might have believed that Baranski would benefit from
his testimony.
Further, information derived from the state court
complaint might have been used to bolster the impression that
Baranski was lying at trial in his vague and equivocal
statements about his prior links with law enforcement. It is
not clear that the state court complaint, or for that matter
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the two $500 payments by DEA to Baranski for earlier
cooperation, are literally inconsistent with Baranski's trial
testimony.4 Still, as with the $500 payments from DEA,
Baranski's failure to disclose the alleged arrangement with
the state police would probably have been portrayed as
discrediting, and the jury might have drawn such an
inference.
Thus, we have no difficulty in regarding the evidence as
potentially useful to the defense, although less damning than
the defense brief suggests. The difficulty for the instant
appeals starts with the reasonably high barriers erected by
case law when a defendant seeks a new trial based on newly
discovered evidence. If it is new evidence unconnected with
the government, then--other requisites aside--the evidence
must create an actual probability that an acquittal would
have resulted if the evidence had been available. United
States v. Slade, 980 F.2d 27, 29 (1st Cir. 1992); United
States v. Wright, 625 F.2d 1017, 1019 (1st Cir. 1980).
Where the government possessed the evidence but did not
disclose it, a statement of the rule is more difficult, in
part because the leading Supreme Court case produced two
4Baranski's reference to a diet soda was made in
response to rather loosely worded questions. The two $500
payments were apparently for his assistance on prior
occasions, and the defense brief points to no clear evidence
that Baranski had any deal with any law enforcement agency as
to this case, or received any compensation apart from the
diet soda for his testimony in this case.
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plurality opinions. United States v. Bagley, 473 U.S. 667
(1987). The usual locution, taken from Justice Blackmun's
opinion in Bagley, is that the nondisclosure justifies a new
trial if it is "material," it is "material" only if there is
"a reasonable probability" that the evidence would have
changed the result, and a "reasonable probability" is "a
probability sufficient to undermine confidence in the
outcome." Id. at 682.
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. After all, if the evidence is close
and the penalty significant, one might think that
undisclosed evidence creating (for example) a 33 percent
chance of a different result would undermine one's confidence
in the result. And while Bagley appears to give little
weight to other factors--such as the degree of fault on the
prosecutor's part and the specificity of the defense request-
-it is not entirely clear that these variables must be
ignored. Cf. Bagley, 473 U.S. at 680-82 (Blackmun, J.) and
685 (White, J.).
In all events, we need not wrestle with these
uncertainties in this case. We will assume arguendo (but
with little basis in this record) that the federal
prosecutors or their agents knew or should have known of the
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information in question. Nevertheless, we agree with the
district court that the likelihood of a different outcome, if
the additional information had been available to defense
counsel, is extremely slight and does not remotely undermine
our confidence in the verdicts. Thus, whichever standard is
applied--whether for newly discovered evidence or negligently
withheld evidence--the result in this case is the same.5
The only important testimony offered by Baranski against
any of the defendants concerned the Sepulvedas' own
trafficking and Baranski's trips with them while both, or in
some cases David Sepulveda alone, obtained cocaine for
Baranski in Nashua, New Hampshire. Quite similar testimony,
however, was provided by Noe himself. It is not apparent why
Baranski's self-described cooperation with state authorities
(even if true) discredits Noe's testimony.6 In any event,
other witnesses testified to various cocaine collection trips
5Neither our decisions nor those of other circuits have
been sympathetic to new trial claims based solely on the
discovery of additional information useful for impeaching a
government witness, e.g., United States v. Formanczyk, 949
F.2d 526, 531 (1st Cir. 1991); United States v. Burroughs,
830 F.2d 1574, 1578-79 (11th Cir. 1987), although we do not
read the cases to say that such evidence can never be
sufficient.
6A New Hampshire state police receipt, apparently
located by the federal prosecutors after this trial and
provided to defense counsel, indicates that $10,000 of the
seized funds were returned to Noe on February 12, 1990, two
days after the raid. There is no basis for inferring that
this return of funds was contingent on, or in any way related
to, Noe's testimony in this case which occurred more than a
year later.
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by the Sepulvedas, and there is no serious basis for doubting
that they occurred.
The defendants assert that Baranski and Noe furnished a
critical link in the evidence by establishing the Sepulvedas'
activities in 1985 and 1986--the principal period of these
witnesses' trips with the Sepulvedas--so that these
activities could be connected to the drug trafficking of the
Sepulvedas in 1987 and thereafter. This, say the defendants,
helped the government establish the single conspiracy
covering the entire period as charged in the indictment. But
in fact another drug dealer witness, Michael Lacerte,
described his drug dealings with David Sepulveda in 1985 and
1986, and his testimony was corroborated in different
respects by various law enforcement agents. The "critical
link" argument is inventive but not persuasive.
Defendants argue for a more favorable--that is, less
demanding--test of likelihood that the outcome would have
been different if the new information had been available,
citing our decision in United States v. Wright, 625 F.2d 1017
(1st Cir. 1990). There, the court described the ordinary
requisites for a new trial based on newly discovered
evidence, including the requirement that the defendant show
that the new evidence would probably have altered the result.
However, Wright went on to say that where a defense witness
is shown by post-trial evidence to have testified falsely, it
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may be enough to justify a new trial for the defendant to
show that the result "might" have been different without the
false testimony. Id. at 1020.7
The defendants, as already noted, overstate the force of
the new information: it does not demonstrate that Baranski
gave false testimony at trial. It is not even clear that the
new information seriously compromises Baranski's credibility,
although it opens a line of attack that defendants might have
exploited. We will assume for present purposes that Wright
establishes a special rule with a more favorable standard
where post-trial evidence shows that an important witness
lied at trial. Still, such a rule has no application in this
case because the state court complaint does not show that
Baranski lied at trial.
The appeals from the denial of the post-trial motion
have been vigorously pursued by able defense counsel. The
joint defendants' brief, and our own reading of all of
Baranski's trial testimony, confirm the trial judge's
assessment that Baranski's credibility was dubious. But
almost all the material for making that assessment was
available to the jury, and the new information derived from
Baranski's state court complaint added very little. In the
7Wright derived this "arguably applicable" standard for
perjured testimony from a 1928 Seventh Circuit decision,
Larrison v. United States, 24 F.2d 82 (7th Cir. 1928). See
625 F.2d at 1020.
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end, there is less to the defense argument than first meets
the eye, and certainly not enough to "undermine confidence in
the outcome." Bagley, 473 U.S. at 682.
Affirmed. The stay of mandate previously entered in
United States v. Sepulveda, No. 92-1362, et al. (1st Cir.,
Dec. 20, 1993), is dissolved.
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