United States v. Hunter

18-3074-cr(L)
U.S. v. Hunter et al.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
Nos. 18-3074-cr (L), 18-3489 (CON), 19-790 (CON)
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH MANUEL HUNTER, AKA SEALED DEFENDANT 1, AKA FRANK
ROBINSON, AKA JIM RIKER, AKA RAMBO, AKA JOSEPH HUNTER, CARL
DAVID STILLWELL, AKA DAVID STILLWELL, ADAM SAMIA, AKA SAL,
AKA ADAM SAMIC,
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: MARCH 22, 2022
DECIDED: APRIL 20, 2022
Before: CABRANES, RAGGI, Circuit Judges, and KORMAN, District Judge. 1
The initial appeals of Defendants-Appellants Carl David
Stillwell, Adam Samia, and Joseph Manuel Hunter (together,
“Defendants”) were interrupted in October 2019, when we became
aware that the Narcotic and Dangerous Drug Section (“NDDS”) of the
U.S. Department of Justice had advised this Court that the District
Court for the Southern District of New York (Ronnie Abrams, Judge)
had entered a sealed protective order upon the filing of a post-trial, ex
parte motion by the NDDS, which barred prosecutors in the U.S.
Attorney’s Office for the Southern District of New York (“SDNY”) and
defense counsel from reviewing certain classified documents.
We vacated the District Court’s protective order and ordered
those documents disclosed to both parties, leading defense counsel to
argue for the first time on appeal that the prosecution had withheld
the information in violation of Brady v. Maryland, 373 U.S. 83 (1963). In
an opinion of January 27, 2021, we remanded the case to the District
Court with a limited mandate to determine, in the first instance,
1 Judge Edward R. Korman, of the United States District Court for the
Eastern District of New York, sitting by designation.
2
“whether any evidence favorable to the Defendants was material,
suppressed, or both.” United States v. Stillwell, 986 F.3d 196, 201 (2d Cir.
2021) (“Stillwell”).
On remand, Defendants filed motions for a new trial under Rule
33 of the Federal Rules of Criminal Procedure, which the District Court
denied in a December 14, 2021 order, and a redacted version of that
order was entered December 28, 2021.
With jurisdiction now restored to us, we turn back to
Defendants’ initial appeals from their judgments of conviction, and
address those claims by summary order, entered the same day that this
opinion is filed. We write separately here to address claims raised by
Defendants Hunter and Stillwell in appealing the District Court’s Rule
33 Order. In the unusual circumstances presented by this case, we are
skeptical of the Government’s argument that the information withheld
by the NDDS was not “suppressed” within the meaning of Brady.
Nevertheless, we find that question unnecessary to resolve because we
conclude that Defendants were not prejudiced by the withheld
information, and it was therefore not material. Accordingly, we
AFFIRM the December 14, 2021 order of the District Court denying
Defendants’ motions under Rule 33.
REBEKAH DONALESKI (Emil J. Bove III, Sarah
K. Eddy, on the brief), Assistant United States
Attorneys, for Damian Williams, United
3
States Attorney for the Southern District of
New York, for Appellee.
ROBERT J. BOYLE (Andrew Patel, on the brief),
New York, NY, for Defendant-Appellant
Hunter.
ROBERT W. RAY (Brittney M. Edwards,
Thompson & Knight LLP, on the brief),
Zeichner Ellman & Krause, LLP, New York,
NY, for Defendant-Appellant Stillwell.
Aimee W. Brown (Masha G. Hansford,
Kannon K. Shanmugam, Ethan R. Merel, on
the brief), Paul, Weiss, Rifkind, Wharton &
Garrison LLP, Washington D.C. and New
York, NY, for Defendant-Appellant Samia.
JOSÉ A. CABRANES, Circuit Judge:
The initial appeals of Defendants-Appellants Carl David
Stillwell, Adam Samia, and Joseph Manuel Hunter (together,
“Defendants”) were interrupted in October 2019, when we became
aware that the Narcotic and Dangerous Drug Section (“NDDS”) of the
U.S. Department of Justice had advised this Court that the District
Court for the Southern District of New York (Ronnie Abrams, Judge)
had entered a sealed protective order upon the filing of a post-trial, ex
parte motion by the NDDS, which barred prosecutors in the U.S.
4
Attorney’s Office for the Southern District of New York (“SDNY”) and
defense counsel from reviewing certain classified documents.
We vacated the District Court’s protective order and ordered
those documents disclosed to both parties, leading defense counsel to
argue for the first time on appeal that the prosecution had withheld
the information in violation of Brady v. Maryland, 373 U.S. 83 (1963). In
an opinion of January 27, 2021, we remanded the case to the District
Court with a limited mandate to determine, in the first instance,
“whether any evidence favorable to the Defendants was material,
suppressed, or both.” 2
On remand, Defendants filed motions for a new trial under Rule
33 of the Federal Rules of Criminal Procedure, which the District Court
denied in a December 14, 2021 order, and a redacted version of that
order was entered December 28, 2021. 3
2 United States v. Stillwell, 986 F.3d 196, 201 (2d Cir. 2021) (“Stillwell”). We
instructed that any further appeals should be returned to our panel. See id. at 202;
cf. United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).
3 United States v. Hunter, No. 13-cr-521-RA, ECF 796 (S.D.N.Y. Dec. 28, 2021)
(“Rule 33 Order”). Prior to this case coming to us on initial appeal, Hunter filed
post-trial motions pursuant to Federal Rules of Criminal Procedure 29 and 33,
Stillwell filed a post-trial motion pursuant to Rule 29, and Samia joined those
motions, all unrelated to Brady, which were all denied by the District Court. See
United States v. Hunter, No. 13-cr-521-RA, 2018 WL 4961453 (S.D.N.Y. Oct. 15, 2018)
(“Post-Trial Opinion”). For clarity, we refer to the District Court’s October 15, 2018
opinion and order denying those motions as its “Post-Trial Opinion,” and we refer
to the District Court’s December 14, 2021 order denying the Rule 33 motions based
on Brady claims made following our remand in Stillwell as its “Rule 33 Order.”
5
With jurisdiction now restored to us, we turn back to
Defendants’ initial appeals from their judgments of conviction, and
address those claims by summary order, entered the same day that this
opinion is filed. We write separately here to address claims raised by
Defendants Hunter and Stillwell in appealing the District Court’s Rule
33 Order. In the unusual circumstances presented by this case, we are
skeptical of the Government’s argument that the information withheld
by the NDDS was not “suppressed” within the meaning of Brady.
Nevertheless, we find that question unnecessary to resolve because we
conclude that Defendants were not prejudiced by the withheld
information, and it was therefore not material. Accordingly, we
AFFIRM the December 14, 2021 order of the District Court denying
Defendants’ motions under Rule 33.
I. BACKGROUND
A. Murder-for-Hire and Trial
Paul Calder LeRoux (“LeRoux”) ran a transnational criminal
organization engaged in money laundering, drug and weapons
trafficking, and various acts of violence, including murder. The scale
and variety of his outrageous criminal conduct defies an easy
summary, and includes arms and technology dealings with Iran and
North Korea, attempts at minor warlordism in Africa, and the plotting
of a coup d’état in the Seychelles. As the District Court has aptly
6
characterized it, he committed “an array of crimes worthy of a James
Bond villain.” 4
In September 2012, the U.S. Drug Enforcement Administration
(“DEA”) arrested LeRoux in Liberia and he began cooperating with
authorities. The DEA used LeRoux’s cooperation to target various
other members of his criminal organization.
Defendants are among the members of that organization
arrested by the DEA and jointly tried on five counts: (1) conspiracy to
commit murder-for-hire, in violation of 18 U.S.C. § 1958(a); 5 (2)
murder-for-hire, in violation of 18 U.S.C. § 1958(a); (3) conspiracy to
murder and kidnap in a foreign country, in violation of 18 U.S.C. §
956(a); 6 (4) causing death with a firearm during and in relation to a
4 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 22.
5“Whoever travels in . . . interstate or foreign commerce, or uses . . . the mail
or any facility of interstate or foreign commerce, with intent that a murder be
committed in violation of the laws of any State or the United States as consideration
for the receipt of, or as consideration for a promise or agreement to pay, anything
of pecuniary value, or who conspires to do so . . . and if death results, shall be
punished by death or life imprisonment, or shall be fined not more than $250,000,
or both.” 18 U.S.C. § 1958(a).
6 “Whoever, within the jurisdiction of the United States, conspires with one
or more other persons . . . to commit at any place outside the United States an act
that would constitute the offense of murder [or] kidnapping . . . if committed in the
special maritime and territorial jurisdiction of the United States shall, if any of the
conspirators commits an act within the jurisdiction of the United States to effect any
object of the conspiracy, be punished [by] . . . imprisonment for any term of years
or for life.” 18 U.S.C. § 956(a).
7
crime of violence, in violation of 18 U.S.C. § 924(j); 7 and (5) conspiracy
to launder money, in violation of 18 U.S.C. § 1956(h). 8
In particular, the Government alleged that in late 2011 and early
2012, Hunter, Samia, and Stillwell conspired to commit murders-for-
hire, for which purpose they traveled from the U.S. to the Philippines;
that while there, Hunter provided Samia and Stillwell with “target
packages” of individuals to kill; and that on February 12, 2012, Samia
and Stillwell shot and killed Catherine Lee, a Filipino real estate
agent. 9
At trial, only Samia (who does not now appeal the District
Court’s Rule 33 Order) maintained his actual innocence. Hunter and
Stillwell both admitted involvement in Lee’s murder, but argued that
the Government had failed to establish the jurisdictional element of
7 “A person who, in the course of a violation of [18 U.S.C. § 924(c)] causes
the death of a person through the use of a firearm, shall if the killing is a murder
. . . be punished by death or by imprisonment for any term of years or for life.” 18
U.S.C. § 924(j).
18 U.S.C. § 924(c) provides that “any person who, during and in relation to
any crime of violence . . . uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall, in addition to the punishment provided for
such crime of violence[,] . . . if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.” 18 U.S.C. § 924(c).
8 “Any person who conspires to commit [a money laundering offense] shall
be subject to the same penalties as those prescribed for the offense the commission
of which was the object of the conspiracy.” 18 U.S.C. § 1956(h); see 18 U.S.C. §§
1956(a), 1957(a) (defining relevant money laundering offenses).
9 Joint App’x at 282–83 (Superseding Indictment).
8
the 18 U.S.C. § 956(a) count, by not demonstrating that they had
engaged in the conspiracy while in the U.S. 10
The Government’s case advanced various items of evidence to
establish the jurisdictional element of that count. In particular, as
relevant to the arguments made by Hunter and Stillwell in appealing
the Rule 33 Order, the Government submitted evidence that Hunter
had flown to the U.S. on Korean Airlines Flight 35 on December 10,
2011, and that he had met with Stillwell and Samia in North Carolina
later that month. Further, LeRoux testified that a previous statement
he had made to authorities in 2015 as part of a proffer—that Stillwell
did not know about the murderous purpose of his trip to the
Philippines until after leaving the U.S. (the “2015 Statement”)—had
been a lie.
Following a jury trial in April 2018, the three Defendants were
convicted on all counts and sentenced principally to life in prison. 11
Defendants timely filed their initial appeals.
10 The parties agreed that Counts 1, 2, and 4 of the indictment were
predicated on Count 3, the 18 U.S.C. § 956(a) count. Post-Trial Opinion, 2018 WL
4961453, at *2 n.4. As is relevant to Defendants’ appeal, the District Court instructed
that in order to sustain a conviction on that count, the Government had to prove
that a defendant “conspired with one or more members of the conspiracy while that
defendant was physically present in the United States.” Joint App’x 974 (Trial Tr.
2011:10–13).
11 Hunter was not charged with Count 5. Judgments entered on October 12,
2018 (Stillwell), November 14, 2018 (Samia), and March 25, 2019 (Hunter).
9
B. Appeal and Remand
We heard oral argument on the initial appeals of Samia and
Stillwell on October 30, 2019. 12
As we described in Stillwell, soon after this, we became aware
that in October 2018, the NDDS had filed a notice with this Court
advising us that the District Court had entered a sealed protective
order in the case barring prosecutors from the U.S. Attorney’s Office
for the SDNY and defense counsel from reviewing certain classified
documents. That protective order had been granted 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), 13 upon the filing of a post-trial ex parte motion by an NDDS
attorney, with no notice to counsel of record for any of the parties.
12 Hunter’s notice of appeal was filed later, and his case was therefore not
consolidated with Samia and Stillwell’s until April 30, 2020. On August 11, 2020,
we ordered a modified briefing schedule as to Hunter, allowing him and his
counsel additional time to receive and respond to disclosures of previously-
withheld information. As of November 19, 2020, Hunter’s initial appeal was fully
briefed, and his counsel was able to argue issues related to the Rule 33 Order and
the initial appeal at oral argument before us on March 22, 2022.
13 See 18 U.S.C. app. 3 § 4 (“The court, upon a sufficient showing, may
authorize the United States to delete specified items of classified information from
documents to be made available to the defendant through discovery under the
Federal Rules of Criminal Procedure, to substitute a summary of the information
for such classified documents, or to substitute a statement admitting relevant facts
that the classified information would tend to prove. The court may permit the
United States to make a request for such authorization in the form of a written
statement to be inspected by the court alone.”); Fed. R. Crim. P. 16(d)(1) (“At any
10
In Stillwell, we described the complete procedural background,
including a series of Orders to Show Cause that we subsequently
issued, and a series of disclosures that followed. 14 In short, and as is
relevant here, we vacated the District Court’s protective order and
eventually ordered that the withheld information be disclosed, first to
the U.S. Attorney’s Office for the SDNY, and then to defense counsel.
The supplemental briefing and disclosure we ordered were
completed—with some delay due to the COVID-19 pandemic—by
December 2020. At that point, Defendants raised their Brady claims in
our Court.
On January 27, 2021, we issued our opinion in Stillwell,
remanding the case to the District Court to “consider the Brady claims
in the first instance on an appropriate post-trial motion by
Defendants” and to “determine whether any evidence favorable to the
Defendants was material, suppressed, or both.” 15
time the court may, for good cause, deny, restrict, or defer discovery or inspection,
or grant other appropriate relief. The court may permit a party to show good cause
by a written statement that the court will inspect ex parte. If relief is granted, the
court must preserve the entire text of the party’s statement under seal.”).
14 See Stillwell, 986 F.3d at 198–99.
15 Id. at 201–02.
11
C. Developments Post-Remand
In the District Court, Defendants submitted motions for a new
trial under Rule 33, making Brady claims based on the withheld
information.
On November 18, 2021, the District Court held a classified
hearing on those motions.
Defendants referred to the withheld information to advance a
series of arguments about LeRoux and his role in their trial. Two
categories of information are relevant to the instant arguments of
Hunter and Stillwell on appeal.
First, the withheld information contains what the District Court
usefully termed “Management and Manipulation Material”—that is,
evidence that LeRoux was in firm control of his criminal empire and
that he was willing to deceive, manipulate, and lie in order to advance
his own interests.
Many documents tend to show that LeRoux took an active hand
in managing his organization. For example, LeRoux appears to have
required certain employees to seek his approval before acting, and
LeRoux had several in-depth conversations with his associates about
wire transfers and other means of moving money. Several other
documents tend to show that LeRoux had a detailed knowledge of
legal systems and a willingness to manipulate them. For example,
LeRoux had discussions with his wife about an investigation he was
then facing in Hong Kong; he mentioned the lawyers he had employed
12
to deal with that investigation, compared his ability to affect the
outcome of the investigation in Hong Kong as opposed to the
Philippines, and talked about the impact that getting a divorce might
have on the investigation.
Second, a particular document reflects a conversation that
Stillwell contends is about the disposal of the Lee murder weapon. In
the communication, LeRoux had a discussion with an unidentified
man, who told LeRoux that he was “going to throw the candles to the
river.” 16 LeRoux appeared to reply affirmatively, urging him to throw
“the other steel shit” in the river. 17
The parties also submitted information to the District Court
about the withheld information itself, including how the government
came by the information, what governmental entities possessed that
information, and the relationships between those governmental
entities and the prosecution of the legal case against Defendants.
In particular, the Government submitted that the DEA agents
who possessed the withheld information prior to its disclosure to the
parties were members of the DEA’s Special Project Section (“DEA-
SPS”), whereas the DEA agents who helped build the case against
Defendants were members of the DEA’s Bilateral Investigations Unit
16 Gov’t Br. Ex. B, PC #2012-79691 at 2, United States v. Hunter, No. 13-cr-521-
RA, ECF 764. Unless otherwise noted, “Gov’t Br.” refers to the Government’s
classified memorandum of law filed in the District Court on April 5, 2021 in
opposition to Defendants’ Rule 33 motions on remand.
17 Id.
13
(“DEA-BIU”). The Government submitted an affidavit from the
Assistant Special Agent in Charge of the DEA-SPS explaining that
while the DEA-SPS and DEA-BIU are both part of the DEA’s Special
Operations Division [DEA-SOD], they are “separate and distinct” and
“[p]ersonnel assigned to the [DEA-BIU] were not read on nor given
access to information available to and collected by personnel assigned
to the [DEA-SPS]” in this case. 18
On December 14, 2021, following its classified hearing, the
District Court issued its Rule 33 Order denying Defendants’ motions.19
On December 28, 2021, Hunter and Stillwell filed a motion in
our Court to recall the mandate. They simultaneously moved for us to
vacate certain counts of conviction in light of the Supreme Court’s
decision in United States v. Davis 20 and to remand for resentencing.
Also on December 28, 2021, Samia filed a separate motion to
recall the mandate in which he simultaneously moved to
unconsolidate his appeal from that of the other two Defendants.
On January 7, 2022, we denied the motions to recall the mandate
as moot, noting that the District Court’s Rule 33 Order had
automatically restored jurisdiction to our panel pursuant to our remand
18 Gov’t Br. Ex. C, at 1–2.
19 Rule 33 Order, No. 13-cr-521-RA, ECF 792, 796.
20 139 S. Ct. 2319 (2019).
14
order in Stillwell. 21 We denied Defendants’ motions to vacate and
remand, and to unconsolidate, without prejudice. With the cause again
before us, we instructed any Defendants wishing to appeal the District
Court’s Rule 33 Order to submit supplemental letter briefs addressing
that issue, and provided a schedule for the parties to respond and
reply.
That supplemental briefing was completed March 2, 2022, at
which point all three Defendants’ fully-briefed initial appeals, as well
as Hunter’s and Stillwell’s appeals from the Rule 33 Order, were all
pending before our Court. On March 22, 2022 we heard oral argument.
In a summary order filed the same day as this opinion, we
address Defendants’ claims in their initial appeals. And we proceed in
this opinion to examine in particular the claims of Hunter and Stillwell
on appeal of the Rule 33 Order.
II. DISCUSSION
Rule 33 of the Federal Rules of Criminal Procedure provides that
“[o]n the defendant’s motion, the court may vacate any judgment and
grant a new trial to that defendant if the interest of justice so
requires.” 22 On such a motion, “[t]he defendant bears the burden of
proving that he is entitled to a new trial,” and in order to grant a new
See Jacobson, 15 F.3d at 22 (explaining a mechanism for the “automatic
21
restoration of appellate jurisdiction” following a remand “seek[ing]
supplementation of the record”).
22 Fed. R. Crim. P. 33.
15
trial, “a district court must find that there is a real concern that an
innocent person may have been convicted.” 23
As we have explained, “[w]e review challenges to a district
court’s denial of a Rule 33 motion for an abuse of discretion and accept
the district court’s factual findings unless they are clearly erroneous.” 24
It is well-established by Brady and related authorities that in a
criminal prosecution, “the government has an affirmative duty” under
the Due Process Clause “to disclose favorable evidence known to it,
even if no specific disclosure request is made by the defense.” 25 If this
obligation is violated, the district court may grant a new trial. That
said, not all instances of governmental nondisclosure violate Brady, or
warrant such relief..26 “There are three components of a
true Brady violation: The 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 State, either willfully
or inadvertently; and prejudice must have ensued.” 27 In other words,
23 United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (citation and
internal quotation marks omitted).
24 Id. (citation and internal quotation marks omitted).
25United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995); see generally Brady
v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972).
26 See United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993).
27 Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
16
true Brady material must be (1) favorable, (2) suppressed, and (3)
prejudicial.
Before the District Court and on appeal, the parties agree that
the withheld information was “favorable” and dispute only the second
and third points. The District Court held that the withheld information
was neither “suppressed” within the meaning of Brady, nor
prejudicial, and therefore denied Defendants’ motions. We address
both of these conclusions, beginning with prejudice.
A. Prejudice
Under Brady, the prosecution is required to disclose evidence
“where the evidence is material either to guilt or to punishment.” 28 To
establish “materiality,” a defendant must show that he was prejudiced
by the prosecution’s failure to disclose.
Evidence is “material” within the meaning of Brady when there
is a reasonable probability that, had the evidence been disclosed,
the result of the proceeding would have been different. A
“reasonable probability” of a different result is one in which the
suppressed evidence undermines confidence in the outcome of
the trial. In other words, [Defendants] . . . are entitled to a new
28 Brady, 373 U.S. at 87 (emphasis added).
17
trial only if they establish the prejudice necessary to satisfy the
“materiality” inquiry. 29
This inquiry presents a mixed question of law and fact. 30 “While the
trial judge's factual conclusions as to the effect of nondisclosure are
entitled to great weight, we examine the record de novo to determine
whether the evidence in question is material as a matter of law.” 31 We
conclude that neither Stillwell nor Hunter have met their burden. The
evidence against both of them at trial, considered next to whatever
favorable uses they might have had for the withheld information, does
not permit us to conclude that there is a “reasonable probability” that
even one juror would have voted to acquit either of them. 32
Hunter and Stillwell both argue that the withheld information
would have primarily supplied impeachment evidence against
LeRoux. Hunter argues, for example, that “the undisclosed
materials . . . demonstrate that LeRoux was a master at manipulating
the system,” which, if shown to a jury, would have cast doubt on
LeRoux’s testimony relevant to establishing the jurisdictional element
29Turner v. United States, 137 S. Ct. 1885, 1893 (2017) (alterations, citations,
and some internal quotation marks omitted); see also Cone v. Bell, 556 U.S. 449, 469–
470 (2009); Strickler, 527 U.S. at 290; United States v. Bagley, 473 U.S. 667, 677 (1985);
Strickland v. Washington, 466 U.S. 668, 694 (1984).
30 United States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005).
31 Id.32 Cf. Cone, 556 U.S. at 452 (instructing the district court to determine
“whether there is a reasonable probability that the withheld evidence would have
altered at least one juror’s assessment”).
18
with regard to Hunter. 33 Stillwell similarly argues that “the jury at a
new trial through impeachment [could] conclude that LeRoux” only
recanted his “2015 Statement” (that Stillwell was unaware of the
purpose of his trip to the Philippines prior to his departure) in order
to make himself a more useful government witness. 34 In other words,
Stillwell claims the recantation was the actual lie, and this argument
might have undermined the jurisdictional element of the prosecution’s
case against him.
We assess these arguments and the withheld information “in
light of the entire record,” 35 and easily conclude, as the District Court
did, that there was significant additional evidence against both
Defendants, such that simply impeaching LeRoux as described would
not have sufficed to upset the trial verdict. “Where the evidence
against the defendant is ample or overwhelming, the withheld Brady
material is less likely to be material than if the evidence of guilt is
thin.” 36 Here, substantial other evidence existed to establish the
jurisdictional elements of the conspiracy charges as to both
Defendants, and LeRoux was already thoroughly impeached at trial.
The District Court was therefore correct to deny the Rule 33 motions
on remand. We examine in turn the Defendants’ arguments in the
33 Hunter Supp. Ltr. Br. 7 & n.4.
34 Stillwell Supp. Ltr. Br. 5.
35 United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004).
36 United States v. Gil, 297 F.3d 93, 103 (2d Cir. 2002).
19
context of other evidence presented against them individually, and
then generally discuss the cumulativeness of impeaching LeRoux.
1. Hunter
As the District Court explained in its Rule 33 Order, “[t]he
jurisdictional case against Hunter . . . did not rest on . . . LeRoux’s
testimony.” 37 Rather, significant additional evidence established that
Hunter engaged in the murder conspiracy while in the U.S.
The Government submitted evidence that Hunter had taken
Korean Airlines flight 35 to the U.S. on December 10, 2011, and that he
met with Samia and Stillwell later that month in North Carolina to plot
murders-for-hire in the Philippines. That evidence included records
from the Treasury Enforcement Communications Systems (“TECS”)
database showing Hunter’s name and a Korean Airlines manifest
indicating Hunter had been on the flight. It also included the
testimony of a cooperator from LeRoux’s organization, Timothy
Vamvakias, who testified to receiving a December 2011 call from
Hunter from a Kentucky area-code. Vamvakias testified that Hunter
confirmed during the phone call that he was home in Owensboro,
Kentucky and stated that he was on his way to “Carolina” to meet with
Samia. 38
Defendants argued extensively at trial that Hunter was not on
the Korean Airlines flight, and that he did not actually attend the
37 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 14.
38 Joint App’x 768 (Trial Tr. 1209:6–1210:11).
20
December 2011 meeting. Even if we were to accept Hunter’s version of
the evidence on the December 2011 meeting—which we cannot, given
the “great weight” afforded the District Court’s factual findings 39—the
Government still presented ample additional evidence to satisfy the
jurisdictional element.
Most critically, even though the parties at trial focused intensely
on the North Carolina meeting based on its temporal proximity to the
Lee murder, the Government established that Hunter began
conspiring with LeRoux to commit murders-for-hire as early as
December 2009. For example, the Government introduced emails from
December 2009 between a former murder-for-hire leader in the
LeRoux organization named David Smith, Hunter, and Samia about
“bonus” jobs. 40 It further introduced evidence that in the time between
December 2009 and December 2011, Hunter remained involved in
LeRoux’s murder-for-hire conspiracy, eventually replacing Smith in a
leadership role. 41 The Government’s evidence also showed that
Hunter was in the U.S. at multiple points between then and his trip to
the Philippines, notably in February 2011. 42
39 Madori, 419 F.3d at 169.
Gov’t Hunter Supp. App’x 60-61 (GX 400-20); Joint App’x 564 (Trial Tr.
40
406:2–407:17)
41 Joint App’x 565 (Trial Tr. 409:17–410:19); 570-71 (Trial Tr. 431:4–8; 432:14–
433:7).
Gov’t Hunter Supp. App’x 72 (GX 506), 73 (GX 509); Joint App’x 814 (Trial
42
Tr. 1386:7–1390:2).
21
In other words, this was a not a case where the Government’s
ability to establish the jurisdictional element of Hunter’s murder
conspiracy charge depended on LeRoux’s testimony about the
December 2011 meeting. To the contrary, in light of the Government’s
other evidence there is no reasonable probability that disclosure
would have caused a different result at trial.
2. Stillwell
Similarly, the District Court concluded in its Rule 33 Order that
“LeRoux’s testimony at trial was not a critical aspect of the
government’s case against Stillwell as to the jurisdictional element” of
the conspiracy charge, 43 and we agree. As with Hunter, Stillwell’s
presence in the U.S. when he conspired to commit murder was
established by multiple items of evidence.
The government submitted substantial evidence from Stillwell’s
laptop computer, including a file titled “Hitman,” kept in a folder
titled “Interesting Stuff,” which contained instructions on how to
commit murder. 44 Those instructions corresponded exactly to the
manner in which the Lee murder was carried out. These files were
accessed—if not necessarily opened—in October 2011, prior to
43 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 18 (brackets omitted)
(quoting Post-Trial Opinion, 2018 WL 4961453, at *6 n.17).
44 Joint App’x 695 (Trial Tr. 921:23–25), 702 (Trial Tr. 948:4–950:19).
22
Stillwell’s and Samia’s departure from the U.S. for the Philippines. 45
Stillwell then brought the laptop with him to the Philippines and the
files were accessed again in February 2012, days before Lee was killed.
The Government also provided evidence that Stillwell and
Samia worked together closely while in the U.S. to prepare for their
Philippines trip. This included evidence of a phone call between them
on September 30, 2011, the same day Samia paid for Stillwell to apply
for a passport for the first time in his life. It also included email traffic
between Samia, Hunter, and LeRoux, discussing the timing of the
Philippines trip in the context of when Samia’s “partner” would be
“ready” for the two of them to “come [to the Philippines] together for
[n]inja stuff.” 46 Stillwell essentially argues that he and Samia engaged
in this extensive joint preparation for the Philippines, but Samia kept
him completely in the dark as to the real reason for the trip, viz., to
commit murder. In light of the evidence, and considering that Samia
and Stillwell had known each other for more than seven years and
worked closely together before, there is not a reasonable probability
that disclosure before trial would have produced a different result.
45 Supp. App’x 306 (GX N226-28), 308 (GX N226-30); Joint App’x 696 (Trial
Tr. 923:25–924:17); see also id. at 717 (Trial Tr. 1009:8–17) (containing testimony that
the files may not have been opened).
46 Supp. App’x 103 (GX 400-46); Joint App’x 576 (Tr. 454:24–455:10).
Testimony on the record revealed that “ninja stuff” was a euphemism used by the
conspirators to mean murder-for-hire work. Joint App’x 761 (Tr. 1182:4–1183:1).
23
3. Impeaching LeRoux
As a general matter, the withheld information was non-
prejudicial not only because other evidence existed to establish the
jurisdictional elements of Hunter and Stillwell’s crimes, but also
because significant impeachment evidence against LeRoux already
existed at trial, where he was extensively impeached. In other words,
impeachment based on the withheld information would have been
cumulative. 47
As we have previously explained specifically with regard to
withheld impeachment evidence, “a new trial is generally not required
when the testimony of the witness is corroborated by other testimony,
or when the suppressed impeachment evidence merely furnishes an
additional basis on which to impeach a witness whose credibility has
already been shown to be questionable.” 48 In LeRoux’s case, the
evidence at trial left little doubt that he was untrustworthy. For
example, the “2015 Statement”—and LeRoux’s recantation of it—was
the subject of close cross-examination by attorneys for several of the
Defendants. 49
Attorneys for the Government and several Defendants also
cross-examined LeRoux about his vast international criminal
47 See United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998)
(“[U]ndisclosed evidence may be cumulative, and hence not material.”).
48 Payne, 63 F.3d at 1210 (citation and internal quotation marks omitted).
49 Joint App’x 611–12 (Trial Tr. 594:21–597:7), 620-21(628:22–629:21)
24
organization. During the course of that testimony, LeRoux admitted to
a host of deceitful and manipulative acts, including murdering a
witness; framing individuals for crimes they did not commit; bribing
multiple foreign authorities, including a judge; and attempting to
secure diplomatic privileges for himself by supporting a coup in the
Seychelles. And all of this is to say nothing of the litany of generally
violent and nefarious acts to which he also admitted, including
arranging for numerous other murders; personally committing
murder; extensive trafficking in weapons and narcotics; and dealing
in weapons with Iran and North Korea. Hunter and Stillwell would
have us believe that additional evidence merely demonstrating that
LeRoux was a liar, manipulative, or a perjurer would somehow have
been the straw that broke the camel’s back with the jury—finally
causing them to distrust Paul LeRoux. We are unpersuaded. 50
50 Our conclusion is unaltered by Stillwell’s argument that the withheld
information would have shown that LeRoux perjured himself at trial. Stillwell
refers to an instance where an unidentified person tells LeRoux that he will “throw
the candles to the river.” Gov’t Br. Ex. B, PC #2012-79691, at 2. LeRoux agrees, and
urges his interlocutor to throw “the other steel shit” in the river. Id. Stillwell claims
that LeRoux and his interlocutor are discussing the disposal of the Lee murder
weapon, that LeRoux therefore perjured himself when he testified at trial that the
weapon was returned to a warehouse, and that the nondisclosure prejudiced
Stillwell by preventing him from making this argument to the jury.
We disagree. Stillwell’s argument under Brady requires multiple
assumptions, including that the word “candles” as used in the communication
meant guns and that the guns at issue included the Lee murder weapon. This,
despite the fact there was no concrete connection between LeRoux’s interlocutor
and the Lee murder, and three months had elapsed between the Lee murder and
the communication. LeRoux’s criminal network and dealings were extensive. The
25
In sum, we recall that, “strictly speaking, there is never a real
‘Brady violation’ unless the nondisclosure was so serious that there is
a reasonable probability that the suppressed evidence would have
produced a different verdict.” 51 The withheld information would not
have produced a different verdict here, it was not “material” under
Brady, and the District Court on remand was right to deny Defendants’
Rule 33 motions.
B. Suppression
Because we have determined that the withheld information was
not “material,” we need not determine whether it was “suppressed”
in order to decide this appeal. 52 Still, because the District Court
concluded that Defendants established neither materiality nor
suppression, we briefly examine the latter conclusion. 53
assumptions required to make this communication relevant to the Lee murder and
Stillwell’s case are not particularly persuasive, especially when taken together.
51 See Strickler, 527 U.S. at 281; United States v. Coppa, 267 F.3d 132, 140 (2d
Cir. 2001).
52 See, e.g., United States v. Gonzalez, 110 F.3d 936, 944 (2d Cir. 1997) (“We
need not decide whether or not the evidence was suppressed, however, because we
believe, in any event, that the evidence was not material.”).
53Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 33 (“Defendants have failed
to demonstrate the suppression of evidence or materiality necessary to establish a
Brady violation.”).
26
“The Brady obligation extends only to material evidence . . . that
is known to the prosecutor.” 54 Because “the prosecution . . . alone can
know what is undisclosed,” it “must be assigned the consequent
responsibility to gauge the likely net effect of [undisclosed] evidence
and make disclosure when the point of ‘reasonable probability’ is
reached.” 55 In other words, the onus is naturally on the prosecutor to
determine what must be disclosed. The Supreme Court has thus
counseled several times that “the prudent prosecutor will resolve
doubtful questions in favor of disclosure.” 56
Moreover, as the Supreme Court explained in Kyles v. Whitley, 57
the fact that the prosecutor has a monopoly on potentially material
information prior to its disclosure imposes a further burden: “the
individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in the case,
including the police.” 58
But who is “acting on the government’s behalf” in a case?
Indeed, we have previously observed that answering this question
54 Avellino, 136 F.3d at 255 (emphasis added).
55 Kyles v. Whitley, 514 U.S. 419, 437 (1995).
56United States v. Agurs, 427 U.S. 97, 108 (1976); see also Kyles, 514 U.S. at 439(“[A] prosecutor anxious about tacking too close to the wind will disclose a
favorable piece of evidence.”); Bagley, 473 U.S. at 711 n.4 (Stevens, J. dissenting)
(quoting Agurs).
57 514 U.S. 419.
58 Id. at 437.
27
defies “a broad, categorial approach,” and instead requires us to
“examin[e] the specific circumstances of the person alleged to be an
‘arm of the prosecutor,’” 59 or, as we have also articulated it, part of the
“prosecution team.” 60
We have long rejected the notion that “knowledge of any part of
the government is equivalent to knowledge on the part of th[e]
prosecutor.” 61 And this circumscription on the Kyles duty is ultimately
grounded in a prudential concern:
[K]nowledge on the part of persons employed by a different
office of the government does not in all instances warrant the
imputation of knowledge to the prosecutor, for the imposition
of an unlimited duty on a prosecutor to inquire of other offices
not working with the prosecutor’s office on the case in question
would inappropriately require us to adopt “a monolithic view
of government” that would “condemn the prosecution of
criminal cases to a state of paralysis.” 62
59 United States v. Stewart, 433 F.3d 273, 298 (2d Cir. 2006) (quoting United
States v. Morell, 524 F.2d 550, 555 (2d Cir.1975)).
Stewart, 433 F.3d at 298; Locascio, 6 F.3d at 948; see also Morell, 524 F.2d at
60
557 (2d Cir. 1975) (Friendly, J., concurring in part).
61 United States v. Quinn, 445 F.2d 940, 944 (2d Cir. 1971) (record citation
omitted), cert. denied, 404 U.S. 850 (1971); accord Locascio, 6 F.3d at 949 (“[W]e will
not infer the prosecutors’ knowledge simply because some other government agents
knew about the [information in question].” (emphasis added)).
Avellino, 136 F.3d at 255 (quoting United States v. Gambino, 835 F. Supp. 74,
62
95 (E.D.N.Y. 1993), aff’d, 59 F.3d 353 (2d Cir. 1995), cert. denied, 517 U.S. 1187 (1996)).
28
Thus, while a prosecutor has a duty under Kyles to learn information
when that information is possessed by others on the “prosecution
team,” undisclosed information that is not known to anyone on that
team does not give rise to a Brady violation. 63
We have also made clear that the imputation of knowledge to
the prosecutor “does not turn on the status of the person with actual
knowledge, such as a law enforcement officer, prosecutor or other
government official. In other words, the relevant inquiry is what the
person did, not who the person is.” 64
We discussed this point in United States v. Locascio, 65 a case in
which a team of prosecutors in the U.S. Attorney’s Office for the
Eastern District of New York (“EDNY”) entered into a plea bargain
with Salvatore Gravano, the consigliere of the Gambino crime family
and a cooperator. In his plea, he stated that he had admitted to all the
crimes he had committed. Gravano subsequently testified at the trial
of Gambino crime family “boss” John Gotti and “underboss” Frank
Locascio.
FBI reports prepared by agents working in another district
contained evidence that Gravano had, in fact, committed other crimes,
in addition to those to which he had confessed. The work of those
63See, e.g., Locascio, 6 F.3d at 949 (declining to find a Brady violation where,
“[e]ven assuming the reports’ materiality, there [wa]s no evidence that the
prosecution team in the instant case was aware of the reports . . . .”).
64 Stewart, 433 F.3d at 298.
65 6 F.3d 924.
29
agents and the existence of their reports were entirely unknown to the
EDNY prosecution team throughout their prosecution of Gotti and
Locascio. After sentencing, an EDNY prosecutor encountered the
reports, confirmed no one on his prosecution team had been aware of
them, and disclosed them to counsel for Gotti and Locascio. They then
filed a motion for a new trial, arguing that the government had
suppressed favorable, material information in violation of Brady. We
affirmed the district court’s denial of that motion because “there [was]
no evidence that the prosecution team . . . was aware of the reports that
ha[d] subsequently come to light.” 66
The District Court here, relying in part on Locasio, held that this
was the sort of situation that faced the SDNY U.S. Attorney’s Office.
Indeed, we understand the position of the SDNY prosecutors, and also
their frustration—the protective order sought and obtained by the
Washington-based NDDS from the District Court specifically barred
the disclosure of the withheld information to prosecutors from that
office.
The harder question, however, is whether the NDDS—and the
DEA agents in the DEA-SPS who possessed the undisclosed
information—should themselves be considered part of the prosecution
team, SDNY’s position to the contrary notwithstanding.
We disagree with Defendants’ suggestion that the question
should be answered in the affirmative because “the DEA-BIU . . . and
66 Locascio, 6 F.3d at 949.
30
the DEA-SPS . . . are part of the same subdivision of the DEA, i.e.[,] the
DEA-SOD.” 67 This “bureaucratic proximity” argument may be
relevant in other circumstances, but as a general matter, and as applied
in this case, it tells us little about the actual relationship between the
prosecutors on the one hand, and the agencies, divisions, and
subdivisions at issue, on the other. 68 Relying solely on bureaucratic
proximity would ultimately undercut our clear pronouncement in
Stewart that “the relevant inquiry is what the person did, not who the
person is.” 69
However, Stewart simultaneously informs our skepticism that
the withheld material was not “suppressed.” If we are to look at what
the DEA-SPS and attorneys from the NDDS actually did, then we
should start—most obviously—with their decision to approach the
District Court and seek a protective order for their withheld
information.
Limiting disclosure obligations to the “prosecution team”
prudently prevents a prosecutor from needing to search the “whole-
of-government” for possibly material information in myriad cases and
controversies before the courts. Such an obligation would clearly be an
unworkable encumbrance on the system of justice. Whether an item of
67 Hunter Supp. Ltr. Br. 5–6 (emphasis omitted).
68 Cf. Quinn, 445 F.2d at 944 (rejecting an argument for the imputation of
knowledge based on departmental commonality and noting that the “Department
of Justice alone has thousands of employees in the fifty States of the Union”).
69 433 F.3d at 298.
31
information is material is the sort of thing a member of the
“prosecution team” can (and must) know—not the sort of thing a far-
flung member of the executive branch can (or can be expected to)
know. Here, though, such concerns about the NDDS’s ability to
determine its own relevance, and that of the information in the DEA-
SPS’s possession, are not present, because it was the NDDS that
approached the court. Unexpected and unbidden, they—in effect—
proclaimed their relevance. And despite that, they then asked the
courts to approve their nondisclosure. Clearly someone at NDDS
thought they or their information might be relevant in the case
pending in the SDNY, or they would not have thought to come to the
District Court (or us) ex parte and in camera at all.
In this published opinion, we express our doubt that the
NDDS—or any similarly-situated organ of the executive branch, for
that matter—having stepped out of the shadows at least to the extent
of asking the judiciary to bless its act of nondisclosure, even from local
prosecutors and agents in the case, could then successfully draw a
curtain of secrecy over “evidence . . . material either to guilt or to
punishment” by invoking our Brady jurisprudence.
To the extent filings and arguments before the District Court
suggest that the NDDS, in the normal course of its business, seeks
protective orders such as the one at issue here, we are troubled. By
contrast, we were encouraged to learn from SDNY prosecutors at the
most recent oral argument in our Court on this matter that our
message of concern “has been delivered both to the Department of
Justice and to the NDDS by the executive leadership” of the SDNY,
32
and that “the message has been received.” Oral Arg. at 48:20-40. As we
suggested in Stillwell and re-affirm here, we strongly question
whether—had the withheld information been material—our
jurisprudence circumscribing the “prosecution team” would have
been adequate to protect Defendants’ rights in the circumstances
presented here. 70
Ultimately, however, we raise this question only by way of
caveat. It is clearly not necessary for us to answer this question today.
Because we have firmly concluded that the withheld information was
not prejudicial, it was not “material” information under Brady, and we
are able to affirm the District Court’s Rule 33 Order on that basis.
70 This is not the first time our court and district courts in this circuit have
raised such concern. See United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir. 1997)
(“The extent to which knowledge may be imputed from one federal investigative
agency to another for Brady purposes is as yet unclear.”); see also United States v.
Morgan, 302 F.R.D. 300, 304 (S.D.N.Y. 2014) (“There is no clear test to determine
whether or not an individual or agency is a member of the prosecution team.”);
United States v. Meregildo, 920 F. Supp. 2d 434, 441 (S.D.N.Y. 2013) (same); United
States v. Bin Laden, 397 F. Supp. 2d 434, 484 (S.D.N.Y. 2013) (noting the Second
Circuit is “lacking a clearly articulated imputation test”); Chandras v. McGinnis, No.
01 Civ. 2519(LBS), 2002 WL 31946711, at *7 (E.D.N.Y. Nov. 13, 2002) (“[T]he exact
point at which government agents can fairly be categorized as acting on behalf of
the prosecution . . . is uncertain.”). One has only to imagine the information in
NDDS’s possession being actually exculpatory rather than cumulatively
impeaching to bring this concern into sharp relief.
33
III. CONCLUSION
To summarize:
1. We hold that the withheld information was not
prejudicial, and it was therefore not “material”
information under Brady.
2. We AFFIRM the District Court’s December 14, 2021 order
denying Defendants’ Rule 33 motions for a new trial.
3. The cause is REMANDED for resentencing, pursuant to
the summary order entered the same day this opinion is
filed, for reasons explained in that summary order.
34