United States v. Paul Bergrin

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2828
_____________
UNITED STATES OF AMERICA
v.
PAUL W. BERGRIN,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-09-cr-00369-001)
District Judge: Honorable Madeline C. Arleo
_______________
Argued
November 17, 2021
Before: AMBRO, JORDAN, and ROTH, Circuit Judges
(Filed: April 6, 2022)
_______________
Lawrence S. Lustberg [ARGUED]
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Appellant
Mark E. Coyne [ARGUED]
Steven G. Sanders
Office of United States Attorney
970 Broad Street – Rm. 700
Newark, NJ 07102
Counsel for Appellee
OPINION
_______________
JORDAN, Circuit Judge.
Paul Bergrin was a high-profile criminal defense attorney who became a high-
profile criminal. In 2013, after a seven-week trial, he was convicted of conspiring to kill
adverse witnesses and operating a drug-trafficking business out of his law offices. He
now seeks a new trial, alleging that he and his team of private investigators have since
found an assortment of individuals who would testify that he was framed. The District
Court denied his motion, rejecting all of his arguments. So do we. Consequently, we
will affirm.
I. BACKGROUND1
Following service as a federal prosecutor, Bergrin began an apparently successful
private practice representing people accused of crimes. The veneer of success peeled
away in 2009, when he became the accused. As described in the operative indictment,
the charges against him included instigating the murder of Kemo McCray to protect
Bergrin’s client, William Baskerville, from McCray’s expected testimony (the “Kemo
Murder”); plotting to kill witnesses in the case against Vicente Esteves (the “Esteves
Plot”); and operating a drug-trafficking business. After Bergrin’s first trial on the Kemo

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
1
For more details about the charges against Bergrin, see United States v. Bergrin,
599 F. App’x 439 (3d Cir. 2014); United States v. Bergrin, 682 F.3d 261 (3d Cir. 2012);
and United States v. Bergrin, 650 F.3d 257 (3d Cir. 2011).
2
Murder ended with a hung jury, the District Court held a second trial in 2013 that
included additional charges related to the Esteves Plot and drug trafficking. Bergrin was
convicted on all counts, and he was sentenced to concurrent terms of life imprisonment.
Pursuant to Federal Rule of Criminal Procedure 33, Bergrin filed a motion for a
new trial. He claimed to have discovered new evidence – in the form of phone records,
wiretap recordings, and statements from almost a dozen individuals – demonstrating that
the prosecution’s key witnesses lied during his trial. He also said that the prosecution
suppressed certain exculpatory evidence in violation of its Brady obligations. The
District Court denied Bergrin’s motion, and he has timely appealed.
II. DISCUSSION2
A. Motion for a New Trial Based on Newly Discovered Evidence
We review for abuse of discretion the District Court’s denial of a Rule 33 motion
for a new trial based on new evidence. United States v. Saada, 212 F.3d 210, 215 (3d
Cir. 2000). “[A] district court abuses its discretion if its decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law[,] or an improper application of law
to fact.” United States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010) (citation omitted).
“Courts should exercise great caution in setting aside a verdict reached after fully-
conducted proceedings, and particularly so where the action has been tried before a jury.”
2
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
3
United States v. Kelly, 539 F.3d 172, 182 (3d Cir. 2008) (internal quotation marks and
citation omitted).
In United States v. Iannelli, 528 F.2d 1290 (3d Cir. 1976), we ruled that, when
presented with allegedly new evidence, a district court may order a new trial on that basis
only if the proffered evidence meets the following five requirements:
(a) the evidence must be[,] in fact, newly discovered, i.e., discovered since
the trial; (b) facts must be alleged from which the court may infer diligence
on the part of the movant; (c) the evidence relied on[] must not be merely
cumulative or impeaching; (d) it must be material to the issues involved; and
(e) it must be such, and of such nature, as that, on a new trial, the newly
discovered evidence would probably produce an acquittal.
Id. at 1292. Failure to satisfy any of those requirements is a ground for denying the Rule
33 motion, Kelly, 539 F.3d at 182, and the movant bears a “heavy burden” in justifying a
new trial. Saada, 212 F.3d at 216 (citation omitted).
Under the first two Iannelli requirements, evidence is not “newly discovered” if, at
the time of trial, it was actually known or could have been known through reasonable
diligence by the defendant or his counsel. United States v. Cimera, 459 F.3d 452, 461
(3d Cir. 2006). When determining whether the defendant exercised “reasonable
diligence,” the court must “carefully consider the factual circumstances of the case.” Id.“[T]o satisfy the diligence standard, counsel must conduct further inquiry once the
circumstances alert her to the existence of additional information that has a reasonable
possibility of proving material to the defense.” United States v. Noel, 905 F.3d 258, 272
(3d Cir. 2018).
4
Under the last Iannelli requirement, when determining whether the newly
discovered evidence would probably result in an acquittal, the district court has to assess
the credibility of the evidence. Kelly, 539 F.3d at 188 (“[I]t is the job of the district court,
either on affidavits or after an evidentiary hearing[,] … to decide whether the newly
discovered evidence is credible[.]” (citation omitted) (third alteration in original)). “[A]
district court’s statement that newly discovered evidence ‘is not credible’ … is perfectly
acceptable as long as the court sets forth its reasoning.” Id. at 189 n.14. If the district
court determines that the evidence is credible, it must then determine “whether a jury
probably would reach a different result upon hearing the new evidence.” Id. at 189. In
reaching that determination, the district court “must weigh the [new] testimony against all
of the other evidence in the record,” including what the jury already weighed in the
defendant’s initial trial. Id.
1. Evidence Relating to the Kemo Murder
The record at trial3 showed that Bergrin was the lawyer for a drug-trafficking
organization run by Hakeem Curry. In that capacity, Bergrin was retained to represent
Curry’s underlings, including William Baskerville. After Baskerville was arrested in
2003 for selling crack cocaine, he told Bergrin that his “buyer” was a police informant
named Kemo. Bergrin then met with Curry and several of his associates to discuss
Baskerville’s situation. We previously summarized that meeting as follows:
According to [Anthony] Young, [an associate of Curry who eventually
became a key government witness,] Bergrin told the group that Baskerville
3
Our reference here is to the second trial, which produced the guilty verdicts.
5
“was facing life in prison for that little bit of cocaine,” and “if Kemo
testif[ies] against Will, Will was never coming home. [Bergrin] said … don’t
let [Kemo] … testify against Will, and if he don’t testify, [Bergrin will] make
sure he gets Will out of jail.” Bergrin repeated: “no Kemo, no case,” a phrase
he reiterated upon leaving the group while pointing his finger.
United States v. Bergrin, 599 F. App’x 439, 441 (3d Cir. 2014) (internal citations
omitted). A few months later, Young shot and killed Kemo McCray. Bergrin was
convicted of conspiring to commit that murder.
Bergrin now alleges that he has discovered two new witnesses who would testify
that Young lied on the stand at trial to frame him as a conspirator in the Kemo Murder.
The first of those new witnesses is Charles Madison, a friend of Young’s.
According to Madison’s affidavit, Young called Madison in late 2005 to say that he was
getting out of prison early. After Madison inquired further, Young said that he had
falsely confessed to shooting Kemo in order to get a more lenient sentence. Young also
told Madison that prosecutors had kept pressuring him about Bergrin until he eventually
made up the story about the “no Kemo, no case” meeting. Young stated, “[Bergrin]
didn’t do anything[,] but if I don’t say that [Bergrin was involved in the murder,] my deal
is off the table.” (App. at 4402.)
Bergrin’s second proposed witness is Hassan Miller, a fellow inmate of Young’s.
The government had Miller wear a body wire to record a conversation with Young while
they were in prison together, a conversation in which Young admitted that he was the one
who shot Kemo. Miller later told Bergrin’s investigators, however, that Young lied in
that conversation. Miller also reported that Young was “going around saying … ‘I’m
going to say Paul … had something to do with it, and he orchestrated the whole thing.’”
6
(App. at 4412-13.) Young allegedly told Miller that he was going to “pin this on Paul” so
that he could “get out faster[.]” (App. at 4412, 4415.) Miller further claimed that he later
informed the government that Young was lying about Bergrin.
The District Court held that Bergrin had not met his heavy burden of establishing
that Madison’s or Miller’s testimony would probably produce an acquittal. That was not
an abuse of discretion.
As an initial matter, both their stories are hearsay and would only be admissible
for attempting to impeach Young. See Fed. R. Evid. 613(b) (permitting admission of
extrinsic evidence of a witness’s prior inconsistent statement). But Bergrin already spent
multiple days at trial attempting to impeach Young on cross-examination, and the jury
evidently still accepted Young’s testimony. We cannot disagree with the District Court’s
assessment that the additional impeachment evidence from Madison and Miller would
not have tipped the balance about Young’s credibility in Bergrin’s favor.
That is particularly true given Madison’s and Miller’s own credibility issues. As
the District Court noted, a jury would have to grapple with Madison’s “lengthy criminal
history” and certain “meaningful logical flaws” in his assertions, including the “far-
fetched theory” that Young had falsely confessed to a murder in exchange for leniency on
a state weapons charge. (App. at 23 & n.15.) The District Court also opined that Miller’s
interview “suffers from the same admissibility and credibility issues as Madison’s
statements.” (App. at 11 n.8.) For example, his unsworn and unsigned statements came
from an informal jailhouse interview with Bergrin’s private investigators, without the
presence of counsel.
7
Their credibility is further undermined by contradictions and inconsistencies in
their statements. Several of Madison’s statements conflict with the trial record, which
showed that Young cold-called the FBI to implicate Bergrin before he was even facing
any charges, as opposed to after being pressured to do so by the prosecution in order to
secure a plea deal. Likewise, several of Miller’s statements to Bergrin’s investigators
conflict with his own previous statements and the trial record. For example, Miller said
that the government had him wear a wire to “catch [Young] in his lies against Paul
Berg[ri]n and Hakeem Curry,” although the record reflects that the government’s purpose
was to catch Young confessing that he himself was the shooter. (App. at 4421.) Miller
had previously advised the government that Young “confessed to him repeatedly
regarding shooting [Kemo].” (App. at 11 n.8.) The District Court properly weighed the
record and the proffered testimony in finding that Madison and Miller lacked credibility,
a conclusion that is not clearly erroneous. See Kelly, 539 F.3d at 188.
Furthermore, Madison’s and Miller’s accounts would probably need to do more
than impeach Young, because his testimony was not the only evidence inculpating
Bergrin in the Kemo Murder. As the District Court properly observed, a jury weighing
Madison’s or Miller’s testimony against Young’s testimony would consider the other
“sufficient” and “significant” inculpatory evidence that favors Young’s side of the story.
(App. at 11 n.8, 23.) See Kelly, 539 F.3d at 189 (“[The district court] must weigh the
8
testimony against all of the other evidence in the record, including the evidence already
weighed and considered by the jury in the defendant’s first trial.”).4
Based on the questionable credibility of Madison’s and Miller’s proposed
testimony, the limited utility of the testimony as impeachment evidence, and the record’s
independent evidence supporting Bergrin’s guilt, the District Court did not abuse its
discretion in finding that the presentation of Madison and Miller as witnesses would not
probably produce an acquittal.5
2. Evidence Relating to the Esteves Plot
Much of the government’s evidence of Bergrin’s involvement in the Esteves Plot
centered around body-wire recordings made by Oscar Cordova. Cordova was a
confidential informant for the government who posed as a hitman. At the government’s
behest, Cordova used a tamper-proof device to record various conversations in which
Bergrin discussed murdering witnesses and trafficking drugs. One such conversation
involved a potential witness against Esteves. When Cordova brought up killing the
witness, Bergrin told him that “[i]t’s gonna help” Esteves’s case. (App. at 2097-98.)
4
For example, Bergrin later told a client that he would kill an informant and that it
would not be his first time – inferably a reference to the killing of Kemo. Bergrin, 599 F.
App’x at 441. Also, rather than denying his involvement in the scheme, Bergrin boasted
to his law partner that the government lacked the evidence to convict him of the Kemo
Murder – which supports a similar inference. Id.5
Bergrin’s failure to establish that the evidence would probably produce an
acquittal is sufficient to disqualify it as a basis for granting a new trial. United States v.
Kelly, 539 F.3d 172, 182 (3d Cir. 2008). Therefore, we need not address whether the
evidence was in fact newly discovered.
9
Bergrin then instructed Cordova to “put on a ski mask” and “make it look like a robbery,”
emphasizing that “[i]t cannot under any circumstances look like a hit.” (App. at 2098-
99.)
Bergrin argues that he has discovered a witness, Savina Sauseda, who would
testify that Cordova tampered with the recordings in order to falsely incriminate Bergrin.
Sauseda stated that she came across a recording device that Cordova had left in her home.
She listened to the recordings, and it sounded to her like Cordova had been tampering
with the tapes and “trying to transfer certain portions of conversations from one tape onto
a different tape or another tape recorder[.]” (App. at 4472.) She also accused Cordova of
lying on the witness stand.
The District Court did not abuse its discretion in finding that Sauseda’s proposed
testimony was unlikely to produce an acquittal at trial. In particular, her testimony would
not probably cause a jury to reject the truthfulness and accuracy of Cordova’s recordings.
Besides Cordova’s own testimony, other witnesses involved in the Esteves Plot testified
at trial that Bergrin directed Cordova to kill witnesses. Moreover, Bergrin had already
advanced at his second trial his theory that the recordings were doctored, presenting
expert testimony that they could have been tampered with, but the jury evidently rejected
that argument. Again, we see no abuse of discretion in the District Court’s conclusion
that Sauseda’s testimony was not likely to persuade a jury to reach a different conclusion
– particularly given that Bergrin’s own expert conceded on cross-examination that the
10
specific tapes in question could not have been intentionally altered by Cordova in the way
that Sauseda now suggests.6 That proposed testimony thus does not warrant a new trial.
3. Evidence Relating to the Drug-Trafficking Business
Bergrin was also convicted of conspiring to operate a cocaine-trafficking business.
Trial evidence showed that he connected buyers with cocaine suppliers and personally
supplied clients with cocaine from his law office. Now, however, he presents statements
from three witnesses to show that he was not involved in the drug trafficking and that the
government’s witnesses fabricated their stories. He also asserts that he discovered phone
records demonstrating that he did not participate in the drug trafficking. We address each
piece of evidence in turn.
a. Shariff’s Proffered Testimony
Amin Shariff was a federal prisoner who had cooperated with the government on
other cases. According to Shariff, government agents continuously pressured him to
testify about Bergrin’s involvement in drug trafficking, even after Shariff said he knew
nothing of the sort. Shariff eventually sought advice from his cousin, Eugene Braswell,
who was also in prison. Braswell told Shariff to lie: “Jump on Paul’s case. Everyone is
doing it, including me. … He’s our ticket to freedom.” (App. at 4573.) Braswell
ultimately testified for the government against Bergrin, but Shariff refused to do so.
6
The District Court also held that Sauseda’s proposed testimony would be merely
impeaching and cumulative, and Bergrin contests that holding. For the same reasons
discussed above in note 3, however, we need not address that issue because we can affirm
on the District Court’s alternative ground.
11
Shariff’s proffered testimony does not justify a new trial, as it would not probably
produce an acquittal. Even if the testimony could be used to impeach Braswell, Bergrin
has not established that Braswell’s testimony was so critical to the jury’s decision that
impeaching it would cause a jury to decide the case differently. The inculpatory evidence
against Bergrin includes the testimony of at least four other co-conspirators who told
about his drug-trafficking business; hours of recordings of him discussing and conducting
that business; and the seizure of 53 kilograms of cocaine from a property he owned.
Shariff’s impeachment of Braswell would, in all likelihood, not persuade a jury to ignore
or disbelieve all of that inculpatory evidence.7 Furthermore, Shariff has his own
credibility issues. For example, although he now says that he had “never heard of Paul
being involved with drugs, doing drugs, [or] selling drugs[,]” he previously told the
government he had heard that Bergrin used cocaine and associated with individuals who
smuggled drugs to his clients in prison. (App. at 4573.) In light of the independent
evidence of Bergrin’s guilt and Shariff’s credibility problems, the proffered testimony
would not probably result in acquittal, and the District Court did not err in rejecting it as
grounds for a new trial.8
7
Contrary to Bergrin’s argument, Braswell’s statement to Shariff that
“[e]veryone” was jumping on Bergrin’s case is not sufficiently concrete or credible to
allow a reasonable jury to conclude that all of the government’s witnesses were lying.
(App. at 4573.) A jury could just as easily conclude that “everyone” was opting to testify
truthfully.
8
The District Court rejected Shariff’s proffered testimony on the separate ground
that it was not newly discovered. It decided that, because Bergrin knew that the
government had interviewed Shariff in unrelated cases and that Bergrin was a topic of
conversation in those interviews, Bergrin should have conducted his own interview of
12
b. Jauregui’s Proffered Testimony
Yolanda Jauregui was Bergrin’s co-defendant on the drug-trafficking charges.
When moving for a new trial, Bergrin submitted an unsigned declaration from Jauregui
stating that Bergrin was not involved in the drug trafficking, that Jauregui and others hid
their drug trafficking from him, and that the government had coerced her into lying about
Bergrin’s involvement. The District Court rejected the Jauregui declaration as a basis for
a new trial primarily because of the “highly suspicious circumstances” surrounding its
creation. (App. at 17 n.12.)
That was not an abuse of discretion. Bergrin drafted the declaration himself,
before his investigators had even interviewed Jauregui. Jauregui only received a copy of
the affidavit after lawyers and movie producers associated with Bergrin told her about
“lucrative” rights to a book and movie deal that were contingent on her cooperation.
(App. at 16.) And although Bergrin says that Jauregui read the declaration and affirmed
that it was materially accurate, she never signed it. Based on those circumstances, the
District Court was well within its discretion in making an adverse credibility
determination. Kelly, 539 F.3d at 188. And even if the document had a more reliable
provenance, it is not probable that it would persuade a jury to disregard all the
inculpatory evidence in the record, as discussed above, and so to acquit Bergrin. The
Shariff before trial. There may be reason to doubt that Bergrin should have known about
Shariff’s conversations with Braswell, but we may affirm the District Court on any
ground supported by the record, even if the District Court did not address that ground.
United States v. Rocco, 587 F.2d 144, 148 (3d Cir. 1978).
13
District Court’s rejection of the Jauregui declaration as a ground for a new trial was not
an abuse of discretion.
c. Vannoy’s Proffered Testimony
Theresa Vannoy was raised by Jauregui and lived with her for many years,
including at the time when Bergrin was dating Jauregui and had moved in with them.
After trial, Bergrin’s investigators interviewed Vannoy’s biological mother, who
supposedly said that Vannoy had told her that “Paul did not know anything” about the
drug trafficking and that “Paul was never around when any of the drugs or money or any
of this stuff was being talked about.” (App. at 4506-07.) Bergrin says Vannoy would
testify consistent with what she told her biological mother.
The District Court correctly concluded that Vannoy’s proposed testimony could
not support Bergrin’s Rule 33 motion, because Bergrin failed to demonstrate that he
exercised reasonable diligence in attempting to procure her testimony before trial. Even
assuming that the substance of Vannoy’s testimony was not “actually known” to Bergrin,
it “could have been known by [his] diligence.” Cimera, 459 F.3d at 461. Vannoy was
raised by Jauregui and stayed with her, including during a time when Bergrin lived with
them. In addition, Vannoy had told Bergrin that she had seen Jauregui with Alejandro
Barraza-Castro, another co-defendant in their drug-trafficking scheme. Vannoy’s
proximity to Bergrin, Jauregui, and Barraza-Castro was sufficient to “alert [Bergrin] to
the existence of additional information that ha[d] a reasonable possibility of proving
material to [his] defense.” Noel, 905 F.3d at 272. Yet Bergrin failed to exercise the
necessary diligence to discover her statements. The record suggests that Bergrin did
14
nothing more than send one subpoena to Vannoy’s biological mother, which arrived late,
and he allegedly sent one subpoena to Vannoy, which it seems was never delivered.9
Bergrin was an experienced criminal defense attorney with a team of private investigators
and almost four years to prepare for trial. Based on a “careful[] consider[ation]” of those
factual circumstances, Cimera, 459 F.3d at 461, the District Court could rightly exercise
its discretion to reject Vannoy’s proposed testimony as a basis for a new trial.
d. Phone Records
Bergrin asserts that, prior to his arrest, he called DEA Agent Gregory Hilton on
numerous occasions to report instances of drug trafficking, which arguably implies that
he was not involved in drug trafficking himself. During pre-trial discovery, Bergrin was
given records of his own telephone calls dating back many years. It was only after trial,
however, that Bergrin identified which of those calls were made to Agent Hilton. The
phone records showed that Bergin made 54 short calls – typically lasting only one minute
– to Agent Hilton’s phone number between October 2004 and February 2008.
The District Court held that, even if the phone records qualified as newly
discovered evidence, they would not probably result in an acquittal at a new trial. The
records shed no light on the substance of the calls, and the mere fact that Bergrin placed
9
Bergrin’s argument that Vannoy was exceptionally difficult to track down
because her mother “secretly” arranged to take her back to Louisiana is unpersuasive.
(Opening Br. at 41.) Vannoy did not go to Louisiana until February 2012, almost three
years after Bergrin was indicted and arrested. By the time of trial, Bergrin knew that
Vannoy’s mother lived in Louisiana and had even had his investigators interview her –
indicating that Vannoy’s pre-trial location was not an unsolvable mystery.
15
over fifty short calls to Agent Hilton’s number in the course of a few years would not
probably persuade a new jury to acquit him. Furthermore, contrary to Bergrin’s
argument, the phone records’ potential to impeach Agent Hilton or refresh his
recollection does not justify holding a new trial. Bergrin already had the option to call
Agent Hilton as a defense witness at trial, and he chose not to, perhaps because Agent
Hilton denied to Bergrin’s counsel that the calls ever occurred. Bergrin has not
demonstrated that Agent Hilton’s response would be any different if he were shown the
phone records. And the mere impeachment of Agent Hilton would not probably
outweigh “the other substantial evidence” of Bergrin’s drug-trafficking activities. (App.
at 22.) The District Court did not abuse its discretion in rejecting the phone records as a
reason for a new trial.10
4. An Evidentiary Hearing on the New Evidence
Bergrin argues that, at a minimum, the District Court should not have denied his
motion for a new trial based on newly discovered evidence without holding an
evidentiary hearing. But a district court need not hold a hearing on every motion for a
new trial. United States v. Herman, 614 F.2d 369, 372 (3d Cir. 1980). When deciding
whether newly discovered evidence is credible or whether it would probably produce an
acquittal in a new trial, the District Court may reach its conclusion “either on affidavits or
10
Because we affirm the District Court’s conclusion that the phone records would
not probably result in an acquittal, we need not address the government’s argument that
the District Court erred in finding that the phone records were not newly discovered
evidence under Rule 33.
16
after an evidentiary hearing[.]” Kelly, 539 F.3d at 188 (emphasis added); see also United
States v. Glinn, 965 F.3d 940, 942-43 (8th Cir. 2020) (explaining that “the district court
may ordinarily decide factual issues based on affidavits without an evidentiary hearing”
and that a hearing is only required in “exceptional circumstances”). We review for abuse
of discretion the District Court’s decision to not hold an evidentiary hearing. Noel, 905
F.3d at 270 n.7. While we may reverse the District Court’s decision if its underlying
findings are “wholly unsupported by evidence,” we may not reverse merely because we
believe that convening a hearing would have been the “better course” for the District
Court to have followed. Government of Virgin Islands v. Lima, 774 F.2d 1245, 1251 (3d
Cir. 1985) (deferring to the district court’s finding, on the affidavits, that new evidence
would not have undermined the credibility of the government’s witness).
There are no exceptional circumstances in this case mandating an evidentiary
hearing. The District Court’s opinion demonstrates that it thoroughly considered the trial
record and the numerous affidavits and exhibits that Bergrin submitted, all of which
formed an adequate basis for the District Court’s decision.11 Its findings, including with
regard to the credibility and persuasive weight of the evidence, are amply supported by
11
Bergrin argues that we should not defer to the credibility determinations that
Judge Arleo made without an evidentiary hearing because she was not the judge who
presided over Bergrin’s trial. Although Rule 33 motions are regularly heard by the same
judge who presided at trial, an evidentiary hearing is not necessarily required when that is
not the case. See, e.g., United States v. Persico, 339 F. Supp. 1077, 1084 (E.D.N.Y.),
aff’d, 467 F.2d 485 (2d Cir. 1972). We decline to adopt such a blanket rule.
Furthermore, Bergrin has not given us any meaningful reason to doubt that Judge Arleo
was completely familiar with the trial record and capable of discerning the credibility and
weight of the evidence, even without having heard the original testimony herself.
17
the record. Lima, 774 F.2d at 1251. Thus, the District Court did not abuse its discretion
in declining to hold an evidentiary hearing.
B. Motion for New Trial Based on Brady Violations
Bergrin argues that the District Court erred in denying his motion for a new trial
based on Brady violations. “In considering a district court’s ruling on a motion for a new
trial based on the failure to disclose Brady materials, we will conduct a de novo review of
the district court’s conclusions of law as well as a ‘clearly erroneous’ review of any
findings of fact where appropriate.” United States v. Thornton, 1 F.3d 149, 158 (3d Cir.
1993) (citation and internal quotation marks omitted). “Where the district court applies
the correct legal standard, its weighing of the evidence merits deference from the Court
of Appeals[.]” Id. (citation and internal quotation marks omitted).
Under Brady and its progeny, the government violates a defendant’s Fifth
Amendment right to due process if it suppresses “evidence favorable to an accused …
where the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The
government also may not suppress evidence relating to the credibility of a witness.
Giglio v. United States, 405 U.S. 150, 154-55 (1972). To establish a due process
violation under Brady, the defendant must show that: “(1) evidence was suppressed; (2)
the suppressed evidence was favorable to the defense; and (3) the suppressed evidence
was material either to guilt or to punishment.” United States v. Schneider, 801 F.3d 186,
202 (3d Cir. 2015) (citation and internal quotation marks omitted). And, again, Brady
18
obligates prosecutors to produce both exculpatory evidence and evidence that might be
impeaching. United States v. Bagley, 473 U.S. 667, 676 (1985).
In short, “[t]he government must disclose all favorable evidence[,]” even if the
defendant could have obtained the evidence himself with reasonable diligence. Dennis v.
Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 292 (3d Cir. 2016) (en banc). But the
government need not disclose such evidence when it is aware that defense counsel
already has the material. Id. When the government does turn over all favorable
evidence, however, we will still hold that it has “suppressed” the evidence if “a
prosecutor misleads the defense into believing the evidence will not be favorable to the
defendant[,]” thus “effectively nullif[ying]” defense counsel’s knowledge of that
evidence. United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2005).
Favorable evidence is material “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation and internal quotation
marks omitted). A reasonable probability exists when the favorable evidence puts the
case in a different light and “undermines confidence in the outcome of the trial.” Id. at
434-35 (quoting Bagley, 473 U.S. at 678).
1. The Curry Tapes
Bergrin alleges that the government suppressed exculpatory information contained
in the so-called “Curry Tapes,” which consist of hundreds of CDs containing thousands
of individual recordings from wiretaps of Hakeem Curry. While the government turned
the recordings over to Bergrin prior to trial, it later informed Bergrin’s counsel that it
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would not seek to admit the recordings into evidence because they were not timely
sealed. The government suggested that the Curry Tapes would have introduced “some
very damaging evidence” for Bergrin, but, according to Bergrin’s counsel, prosecutors
“gave no indication that the [Curry Tapes] contained significant exculpatory
information[.]” (App. at 4779, 4577.) Bergrin himself claims that the government said
the Curry Tapes “were highly inculpatory and offered no exculpatory evidence.” (App.
at 4724.) Bergrin now alleges that, contrary to the government’s representations, the
Curry Tapes did contain exculpatory evidence, in that they revealed discrepancies in
certain details of Young’s testimony about Bergrin’s involvement in the Kemo Murder.
The District Court rejected Bergrin’s argument about the Curry Tapes, concluding
that the government “did not suppress” the tapes because “they were in [Bergrin’s]
possession for nearly three years before the Second Trial.” (App. at 24.) But, as just
noted, the evidence could still be said to be “suppressed” under Brady if the government
“misl[ed] the defense into believing the evidence [would] not be favorable to the
defendant.” Pelullo, 399 F.3d at 213. The District Court did not address whether that
potential exception applied.
Nevertheless, the District Court did not err in rejecting Bergrin’s Brady argument
regarding the Curry Tapes because Bergrin has not established that he was misled. Curry
had previously told Bergrin that the recordings did not prove the existence of a “no
Kemo, no case” meeting, so Bergrin was already on alert that they might be helpful to his
defense. Furthermore, the only evidence suggesting that the government said anything
potentially misleading comes from Bergrin’s own declaration. Even then, he does not
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identify who, if anyone, said that the tapes contained no exculpatory material, what
exactly that person said, or when that person said it. And Bergrin’s version of the story
conflicts with his own counsel’s declaration, which indicates that the government only
asserted that there was abundant inculpatory material, not a lack of exculpatory material.
In fact, the record shows that the reason for the government telling Bergrin that the Curry
Tapes contained “some very damaging [inculpatory] evidence” was to dissuade him from
“open[ing] the door” by trying to proffer other parts of the Curry Tapes – thus clearly
signalling to Bergrin that some of the calls might indeed appear favorable to him. (App.
at 4778-79.)
In sum, because the Curry Tapes were turned over and the government did not
mislead Bergrin about them, the District Court was justified in deciding that the Curry
Tapes were not suppressed and there was no Brady violation.
2. Miller’s Statements
Bergrin also argues that the government violated Brady by failing to disclose
Miller’s statements about Young’s accusations against Bergrin. The District Court
rejected that claim for several reasons. First, it held that Bergrin failed to show “that he
exercised reasonable diligence in obtaining Miller’s proffered new testimony from other
sources at or before trial[.]” (App. at 24-25 (citing United States v. Perdomo, 929 F.2d
967, 973 (3d Cir. 1991).) That was legal error. Dennis overruled Perdomo and held that
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a defendant’s exercise of due diligence is not a consideration when deciding whether the
government has complied with its Brady obligations. Dennis, 834 F.3d at 292-93.
Still, the District Court alternatively rejected the Brady claim “because [Miller’s]
testimony pales in comparison to other evidence and credibility issues[.]” (App. at 25.)
That is not clearly erroneous. It is, on the contrary, completely accurate. As discussed
above, although Miller’s testimony might have been used to impeach Young, its origin
was questionable, and it conflicted with statements Miller had previously made to the
government. Its impeachment value was unlikely to overcome the evidence on which
Bergrin was convicted. Kyles, 514 U.S. at 433. Therefore, when the District Court found
that Miller’s statements shed only a “pale[]” light on the case and would be “not likely to
exonerate [Bergrin]” (App. at 11 n.8, 25), it appropriately determined that the allegedly
suppressed evidence was not material and that a new trial was not warranted.
III. CONCLUSION
In sum, the District Court did not err in rejecting Bergrin’s claims of newly
discovered evidence and Brady violations as grounds for a new trial. We will therefore
affirm.
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