United States v. Lynval Dwyer

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11435
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20186-JLK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LYNVAL DWYER,
a.k.a. Richie,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 18, 2015)
Before TJOFLAT, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Lynval Dwyer appeals pro se the denial of his belated motions for a new
trial and for discovery. See Fed. R. Crim. P. 33. Dwyer moved for a new trial on
the ground of prosecutorial misconduct and for discovery related to the alleged
misconduct. We affirm.
On November 18, 2010, a jury found Dwyer guilty of conspiring to import
500 grams or more of cocaine into the United States, 21 U.S.C. § 963, and of
conspiring to possess and of attempting to possess with intent to distribute 500
grams or more of cocaine, id. § 846; 18 U.S.C. § 2. The district court sentenced
Dwyer to 72 months of imprisonment. Dwyer appealed and challenged the denial
of his motions to testify about coercive statements allegedly made by a drug
supplier and by a confidential informant, Lloyd Garrick, and to have a related jury
instruction about duress. We affirmed on the basis that Dwyer’s proffer of
evidence failed to prove that he acted under an immediate threat of harm or that he
was unable to inform the police of the alleged coercion before his arrest. United
States v. Taylor, 457 Fed. App’x 835, 837 (11th Cir. 2012).
In February 2013, Dwyer moved to vacate his convictions on the ground that
his trial counsel was ineffective for failing to argue that Dwyer was entrapped by
Garrick. See 28 U.S.C. § 2255. In support of his motion, Dwyer submitted
evidence that, before his trial, he received a transcript of a trial in which Garrick
testified as an informant for the government and admitted that he had been
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convicted of a felony in 1991. The district court denied the motion on the ground
that trial counsel made a strategical decision not to pursue an entrapment defense
because Dwyer admitted to importing drugs to aid Garrick. Dwyer did not appeal.
On June 30, 2014, Dwyer moved for a new trial, see Fed. R. Crim. P. 33(a),
and for production of his grand jury proceedings, see Fed. R. Crim. P. 6(e). Later,
Dwyer moved for discovery related to Garrick’s criminal proceedings. Dwyer
alleged that the government had withheld information about Garrick’s prior
convictions, Garrick’s contract with the government, and recordings of telephone
calls in 2008 between Garrick and Dwyer that would have proved Garrick induced
or entrapped Dwyer to import cocaine in 2010, see Brady v. Maryland, 373 U.S.
83, 83 S. Ct. 1194 (1963), and that the government misrepresented Dwyer’s role in
the conspiracy, Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763 (1972). The
district court denied Dwyer’s motion for a new trial as untimely and, in the
alternative, lacking merit. The district court also denied Dwyer’s motions for
discovery.
The district court did not abuse its discretion when it denied as untimely
Dwyer’s postconviction motion for a new trial. To obtain a new trial, a defendant
must file a motion “grounded on newly discovered evidence . . . within 3 years
after the verdict,” Fed. R. Crim. P. 33(b)(1), and for “any other reason . . . within
14 days after the verdict,” Fed. R. Crim. P. 33(b)(2). Dwyer waited more than
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seven months after the three-year deadline expired to file his motion.
Dwyer argues that his filing deadline should have been extended, but the
district court did not abuse its discretion in denying this request. Dwyer failed to
establish that the delay in filing his motion was attributable to “excusable neglect.”
See Fed. R. Crim. P. 45(b)(1). The district court was entitled to find, after “tak[ing]
account of all relevant circumstances,” that Dwyer was dilatory in acting on
information he obtained before trial about Garrick’s work as a government
informant and his criminal history. See Advanced Estimating Sys., Inc. v. Riney, 77
F.3d 1322, 1325 (11th Cir. 1996).
The district court was not required to conduct an evidentiary hearing when
Dwyer’s motion was untimely and a cursory review revealed that his allegations of
prosecutorial misconduct lacked merit. See United States v. Massey, 89 F.3d 1433,
1443 (11th Cir. 1996). Dwyer could not prove that the government violated Brady
when Dwyer possessed or with reasonable diligence could have obtained the
information about Garrick’s background; the information could not be used for
impeachment because Garrick did not testify; and the telephone conversations in
which Dwyer discussed importing drugs with Garrick would have been unhelpful
in portraying Dwyer as a victim of duress or entrapment. See Brady, 373 U.S. at
87, 83 S. Ct. at 1196–97; United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir.
2001).The evidence about Garrick also could not cast doubt on the evidence about
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Dwyer’s role when Dwyer testified that Garrick was “not involved” in the
conspiracy. See Giglio, 405 U.S. at 153, 92 S. Ct. at 766.
The district court also did not abuse its discretion when it denied Dwyer’s
motions to conduct discovery and to obtain records of grand jury proceedings.
Dwyer was not entitled to discovery that was not intended to unearth evidence to
justify a new trial. See United States v. Espinosa-Hernandez, 918 F.2d 911, 913–14
(11th Cir. 1990). Evidence regarding Garrick’s background was irrelevant to
Dwyer’s guilt and was unnecessary to dispose of his motion for a new trial. Dwyer
also failed to establish he had a “compelling and particularized need” to breach the
secrecy traditionally afforded to grand jury proceedings. See United States v.
Aisenberg, 358 F.3d 1327, 1348 (11th Cir. 2004). Dwyer’s allegations that
disclosure “may reveal” grounds to challenge his indictment or convictions, as the
district court stated, exemplify “the kind of fishing expedition that cannot justify
disclosure.”
Dwyer argues that his trial counsel was ineffective and his indictment should
be dismissed, but these arguments fail. We decline to consider issues that Dwyer
failed to raise in his motion for a new trial. See Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998). Moreover, Dwyer may not challenge the
competence or reliability of the evidence on which the grand jury based its finding
of probable cause. See Kaley v. United States, 571 U.S. ____, 134 S. Ct. 1090,
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1097–98 (2014). And Dwyer is barred from relitigating the effectiveness of trial
counsel. See United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005).
We AFFIRM the denial of Dwyer’s motions for a new trial and for
discovery.
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