United States v. Jack Chappell ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2946
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United States of America
Plaintiff - Appellee
v.
Jack Albert Chappell
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: October 21, 2020
Filed: March 10, 2021
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Before COLLOTON, GRASZ, and STRAS, Circuit Judges.
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GRASZ, Circuit Judge.
Jack Albert Chappell appeals the district court’s 1 denial of his request for a
new trial based on newly discovered evidence, a related Brady challenge, and his
request for a lighter sentence. We affirm.
I. Background
After a four-day trial, a jury found Chappell guilty of conspiring to launder
money and conspiring to distribute and possess with intent to distribute a controlled
substance. On day one, Chappell’s counsel asked the district court to drug test
Leslee Ball, an unindicted coconspirator and expected government witness.
Chappell’s counsel believed that Ball “continu[ed] to use pretty significant
narcotics” and alleged that “she had a drug overdose about three or four days ago.”
The district court declined to drug test her, but stated it planned to assess her
competence to testify, state of mind, and sobriety by listening to her testimony. It
also reminded Chappell’s counsel that he could cross-examine her.
On day three, Ball testified. Chappell’s counsel and the district court asked
about her substance use. Ball told the jury that she received treatment for alcoholism
two years before trial but eventually relapsed. She also testified about sporadic
methamphetamine use, starting years before trial, but described herself as “more of
a drinker” than a methamphetamine user. No one asked her about any recent
substance use in the weeks, days, or hours before she testified. After the district
court asked its own questions, both parties declined a second chance to question Ball.
While in custody before sentencing, Chappell spoke to Ball multiple times.
In one recorded call, the pair discussed a conversation between Ball and the
government about a drug test. Soon after, Ball allegedly contacted Chappell’s
1
The Honorable Daniel L. Hovland, then Chief Judge, now United States
District Judge for the District of North Dakota.
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counsel, stating that: (1) before testifying, she told the government that she could not
pass a drug test; and (2) she testified against Chappell while drunk and high.
Based on those revelations, Chappell moved for a new trial and asserted that
the government violated Brady v. Maryland, 373 U.S. 83, 87 (1963), by withholding
this information. In support, he submitted e-mails and his calls with Ball. He did
not submit a verified statement from Ball.
The district court concluded that it lacked new evidence to justify a new trial.2
While crediting the recorded calls as supporting-but-inconclusive evidence, the
district court explained this evidence could only impeach Ball, not bar her testimony.
Additionally, the district court “did not detect any impairment” during her testimony.
And it considered it “highly unlikely that . . . Ball’s alleged impairment” would lead
to an acquittal given the “overwhelming” evidence from five other cooperating
witnesses.
The district court also rejected alleged constitutional violations under Brady
or Giglio v. United States, 405 U.S. 150, 153 (1972), by noting that Chappell’s
counsel alerted the court and the government to Ball’s alleged recent overdose but
asked no on-the-stand questions about her recent substance use.
At sentencing, Chappell asked for a fifty-percent downward variance for
diagnosed-but-untreated physical pain caused by broken metal hardware in his neck.
Doctors had told Chappell that he needed significant invasive surgery and referred
him to the Mayo Clinic. The district court did not vary downward as it sentenced
Chappell to serve concurrent 360 and 240-month sentences. The district court
planned to strongly encourage the Bureau of Prisons to place Chappell at a federal
medical center, preferably near the Mayo Clinic.
2
The district court did not hold an evidentiary hearing because no one knew
where to find Ball.
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II. Discussion
Chappell anchors the appeal of his conviction to an alleged but unproven lie.
To grant relief, we need more. The record leaves us with no room to reverse his
sentence, either.
A. New Trial
Chappell asks for a new trial because Ball allegedly lied about recent
substance use and testified while under the influence of those substances. We review
the denial of Chappell’s motion for a clear abuse of discretion. United States v.
Baker, 479 F.3d 574, 577 (8th Cir. 2007). A district court may vacate a conviction
based on newly discovered evidence. Fed. R. Crim. P. 33(b)(1). To receive a new
trial, the moving party must show that: (1) the evidence was actually newly
discovered since trial; (2) the moving party acted diligently; (3) the newly
discovered evidence is neither merely cumulative nor impeaching; (4) the newly
discovered evidence is material to the issues involved; and (5) it is probable that the
newly discovered evidence would produce an acquittal. United States v. Shumaker,
866 F.3d 956, 961 (8th Cir. 2017).
Chappell’s newly-discovered-evidence challenge fails because he cannot
satisfy most, if not all, of the elements that he must to receive a new trial.
At the outset, his appellate brief cited trial testimony to show that Ball lied on
the stand. But during oral argument, counsel conceded that the cited testimony came
not from Ball, but from a different witness. 3 A review of the trial testimony—which
3
That concession also defeats any entitlement to a new trial based on newly
discovered evidence under the theory that the government knowingly used perjured
testimony to convict Chappell. Cf. United States v. Lewis, 976 F.3d 787, 797 (8th
Cir. 2020) (recognizing that for a conviction to be set aside, the government must
have known it was using perjured testimony).
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includes no question about Ball’s recent or near-trial drug or alcohol use—disproves
the argument that Ball lied on the stand about recent or near-trial drug or alcohol
use. Thus, Chappell’s challenge, to the extent that it relies on Ball’s purportedly
perjured testimony, lacks merit.
Then, we turn to the argument that Chappell should receive a new trial based
on Ball’s post-trial revelation that she testified while drunk and high. First, we
question whether Chappell has presented any evidence that would qualify as “new
evidence.” United States v. Hill, 737 F.3d 683, 687 (10th Cir. 2013) (“Implicit in a
claim of newly discovered evidence is that there is new evidence—that is, material
that is admissible at trial.”) (emphasis in original). Ball’s unverified allegations
about her impairment (including her conversation with the government), as relayed
through Chappell’s counsel or through the recorded phone calls, seem unlikely to be
admissible at trial. E.g., id.; see also United States v. Chapman, 851 F.3d 363, 382
(5th Cir. 2017) (rejecting “an un-notarized written declaration by [defendant’s]
counsel restating what [the alleged gun owner] had revealed to counsel” because
“[s]uch representations from defense counsel repeating statements that [the alleged
gun owner] had made to counsel are inadmissible hearsay and a motion for new trial
may not be based on inadmissible evidence.”) (internal citation and quotation marks
omitted). To be clear, this does not mean that a criminal defendant can never use a
government witness’s post-trial recorded perjury admissions to seek Rule 33(b)
relief.
But even if we assume that Chappell meets the first element, he cannot satisfy
the other four. He cannot show diligence. His drug-test request cannot explain away
his counsel’s failure to ask a sworn-in Ball about recent substance use despite
receiving an additional chance to do so.
Further, Chappell’s “newly discovered evidence only impeached.” United
States v. Lewis, 976 F.3d 787, 795 (8th Cir. 2020). According to Chappell, the newly
discovered evidence could have challenged Ball’s competency to testify and her
testimony’s admissibility. See Fed. R. Evid. 601; Fed. R. Evid. 403. But Chappell
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fails to negate Ball’s presumed competency to testify. See Fed. R. Evid. 601 (“Every
person is competent to be a witness unless these rules provide otherwise.”); see also
United States v. Hyson, 721 F.2d 856, 864 (1st Cir. 1983) (“There is no provision in
the rules for the exclusion of testimony because a witness is mentally incompetent.”).
Bare assertions cannot show incompetency, especially when coupled with
Chappell’s two chances to question Ball at trial. See United States v. Skorniak, 59
F.3d 750, 755 (8th Cir. 1995) (no abuse of discretion in allowing testimony when
defendant could cross-examine witness about his history of mental health
complications and substance use). And the record does not undermine the district
court’s finding that Ball lacked an impairment when she testified. Chappell’s
argument also fails because it rests on the unsupported perjury contention.
Finally, “[b]ecause the newly discovered evidence only impeached, it was not
material.” Lewis, 976 F.3d at 795. Nor was it probable that an acquittal would flow
from that evidence. See id. Without any support, Chappell characterizes Ball’s
testimony as “the critical lynch-pin of the [g]overnment’s case” and as weightier
than the testimony of the other five government witnesses. After carefully reviewing
the record, we agree with the district court that the evidence of guilt—even without
Ball’s testimony—was “overwhelming and compelling.” Thus, even if Chappell
had blocked Ball’s testimony, an acquittal seems unlikely.
Without satisfying all new-trial elements, we conclude that the district court
did not abuse its discretion in denying a new trial.
B. Brady
We review denials of constitutional claims de novo. United States v. Dones-
Vargas, 936 F.3d 720, 722 (8th Cir. 2019). Under the Due Process Clause of the
Fifth Amendment to the United States Constitution, the government must disclose
to the accused favorable evidence that is material to guilt, punishment, or the
credibility of a witness. Id. (citing Brady, 373 U.S. at 87 (guilt and punishment
evidence), and Giglio, 405 U.S. at 154 (witness credibility)). “To establish a due
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process violation, a defendant must show that the evidence in question was favorable
to him, that the government suppressed the evidence, and that the evidence was
material.” Dones-Vargas, 936 F.3d at 722.
Generally, “[e]vidence is material when there is a ‘reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different.’” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 433–34 (1995)).
A “‘reasonable probability’ of a different result” exists when “the nondisclosure
‘undermines confidence in the outcome of the trial.’” Id. (citing United States v.
Bagley, 473 U.S. 667, 678 (1985)). To decide if impeachment evidence is
“material,” we examine the record as a whole because “[t]he relative strengths of the
prosecution’s case and the impeachment value of the undisclosed evidence bear on
whether disclosure in time for use at trial would have made a difference.” Id.Even if the government “conceal[ed]” Ball’s “mental state,” Chappell cannot
show that such evidence counts as “material” impeachment evidence. In Dones-
Vargas, we upheld a denial of a Brady and Giglio challenge to undisclosed paid-
witness testimony because the government’s case “did not hinge” on that evidence
when other witnesses testified to the same or similar facts. 936 F.3d at 722–23.
Likewise, the government’s case against Chappell “did not hinge” on Ball’s
testimony (id.), when, as the district court noted, five other witnesses presented
“overwhelming and compelling” testimony against Chappell. Accordingly, we
conclude that Chappell cannot establish “materiality.” In turn, we conclude that the
district court did not abuse its discretion in deciding against a Brady violation.
C. Sentencing
“We review the denial of a motion for downward variance by reviewing the
sentence for reasonableness, applying a deferential abuse-of-discretion standard.”
United States v. Angeles-Moctezuma, 927 F.3d 1033, 1037 (8th Cir. 2019). A
sentencing court abuses its discretion and imposes an unreasonable sentence by,
among other things, failing to consider a relevant sentencing factor that should have
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received significant weight. United States v. Mousseau, 517 F.3d 1044, 1048 (8th
Cir. 2008). It must make an individualized assessment of the appropriate sentence
under the facts presented, and it must consider the factors set out in 18 U.S.C.
§ 3553(a). United States v. Duke, 932 F.3d 1056, 1062 (8th Cir. 2019).
After reviewing the briefs and presentence investigation report, as well as the
parties’ arguments, the district court decided that the United States Sentencing
Guidelines set out a sufficient-but-not-greater-than-necessary sentence. In denying
the downward variance, the district court: (1) made an individualized assessment
under the facts presented; (2) considered the § 3553 factors (including Chappell’s
medical condition); and (3) gave a reasoned basis for exercising its judgment. Id. at
1061. Additionally, the specific and strong recommendation for a medical-facility
placement confirms that the district court considered Chappell’s medical condition,
even if it did not reduce his sentence on that basis. Chappell fails to show that the
district court abused its discretion or imposed an unreasonable sentence.
The judgment of the district court is affirmed.
COLLOTON, Circuit Judge, concurring in the judgment.
I do not share the majority’s apparent doubt that a trial witness’s post-trial
recorded admissions that she used drugs and drank alcohol shortly before testifying
would be new evidence for purposes of Federal Rule of Criminal Procedure 33.
When a witness’s post-trial statements could be used to impeach the witness’s trial
testimony, they would be admissible through cross-examination of the witness.
Where, as here, the new evidence would be used for impeachment purposes, it often
will not be material, and a new trial will not be warranted. E.g., United States v.
Bohmont, 413 F. App’x 946, 957-58 (8th Cir. 2011) (per curiam) (post-trial
discovery that prosecution witness “submitted a methamphetamine-positive urine
sample on the day he testified at trial” did not justify a new trial because “[a]t most,
this new evidence is cumulative impeachment evidence”); United States v. Holmes,
421 F.3d 683, 688 (8th Cir. 2005) (affirming denial of new trial where proffered
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hearsay affidavit would have had “negligible” value if “used to impeach” a witness’s
testimony at a new trial); United States v. L’Donna, 179 F.3d 626, 629 (8th Cir.
1999) (new evidence of witness’s perjury did not warrant new trial where evidence
of guilt was great, and “there was no foreseeable likelihood that any possible further
impeachment value” from new evidence would have affected the verdict); United
States v. Kraemer, 810 F.2d 173, 177 (8th Cir. 1987) (per curiam) (new evidence
did not warrant new trial because “[a]t a second trial, if Michaeloff’s testimony were
thoroughly impeached, Kraemer probably still would be convicted.”). But lack of
materiality should not be confused with lack of new evidence, for it is possible that
new evidence affecting a witness’s credibility in a particular case could be so
damaging to the prosecution that a new trial would be required. See United States
v. Wallach, 935 F.2d 445, 458-59 (2d Cir. 1991) (new evidence that key witness
committed perjury required new trial).
There are ample grounds to affirm the district court’s ruling in this case based
on lack of materiality and diligence, and I concur in the majority’s reasoning on
those points. I also agree that there was no violation of the Due Process Clause and
that the court imposed a reasonable sentence.
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