United States v. King, Bryant J.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 16, 2006*
Decided August 17, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-4239
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, Fort Wayne Division
v.
No. 1:01-CR-12
BRYANT J. KING,
Defendant-Appellant. William C. Lee,
Judge.
ORDER
In 2002 Bryant King was convicted of distributing methamphetamine, 21
U.S.C. § 841(a)(1), and sentenced to 262 months’ incarceration. The facts
underlying his conviction are set out in United States v. King, 356 F.3d 774 (7th Cir.
2004), in which we affirmed his conviction and sentence. King then filed a
collateral action under 28 U.S.C. § 2255, in which he argued that his trial counsel
was ineffective and that the prosecution withheld exculpatory evidence. The
district court denied the motion and, after King filed a notice of appeal, declined to
grant him a certificate of appealability. King failed to pay the required docketing
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-4239 Page 2
fee, and we dismissed his appeal pursuant to Circuit Rule 3(b). See King v. United
States, No. 05-2543 (7th Cir. Aug. 2, 2005). King then filed the motion for new trial
at issue in this appeal, see Fed. R. Crim. P. 33(a), (b)(1), based on what he
characterized as “new evidence” comprised of cell phone records, investigative
reports authored by federal agents, information about the drug conviction of a third
party, and correspondence between his trial counsel and the prosecutor. The
district court denied the motion, reasoning that all of this was either known to King
before his conviction or immaterial to the case.
On appeal, King argues first that the district court abused its discretion in
denying his motion because his evidence was newly discovered and material. We
begin with the telephone records, which document calls made to and from the cell
phone of a confidential informant who arranged the transaction that led to King’s
arrest. These records, he contends, prove that he could not have made calls
concerning this transaction that at least one witness attributed to him. But King
bears the burden of showing, among other things, that the evidence “came to his
knowledge only after trial” and “could not have been discovered sooner had due
diligence been exercised.” United States v. McGee, 408 F.3d 966, 979 (7th Cir.
2005). King based his § 2255 motion in part on an argument that his trial counsel
was ineffective for failing to enter the informant’s phone records into evidence. In
support of that argument, he submitted a memorandum which explicitly admits
that the prosecution gave the records in question to his first appointed counsel. It is
frivolous to argue that material that was actually disclosed before trial “came to his
knowledge only after trial.” See id. King would have us ignore the production
because his first attorney allegedly failed to pass the records on to substitute
counsel after being relieved. But even if the allegation is true, it is a claim of
ineffective assistance of counsel. King made a similar argument in his unsuccessful
§ 2255 motion, and he may not use Rule 33 to pursue a successive collateral attack.
See Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004); United States v.
Evans, 224 F.3d 670, 673 (7th Cir. 2000).
Similarly, King asserts that he possesses investigative reports that he
acquired from the Drug Enforcement Administration after trial using the Freedom
of Information Act. The district court found that, not only did King have these
reports before trial, but that he attached copies to a letter he mailed to the court
and his appointed counsel more than a year before his conviction. King counters
that he attached local police reports, not the DEA reports, to that letter. King’s
assertion is dubious at best. He attached copies of the reports he received in
response to his FOIA request to his Rule 33 motion, and they are (except for more
extensive redaction) identical to the reports he attached to a pretrial letter to the
district court. Although he says that the documents attached to his letter are “city
reports,” he does not show—nor can we discern—any difference between the
documents other than the broader redaction in the latter set. King was in personal
No. 05-4239 Page 3
possession of copies of these documents, and was aware of their contents before his
trial concluded. They do not constitute “newly discovered evidence” for purposes of
Rule 33.
King also contends that he recently learned about the conviction of Fernando
Villafana for distributing methamphetamine. The district court, in questioning the
relevancy of Villafana’s conviction, noted that Villafana had pleaded to “distribution
activities that occurred on June 11, 2003, almost a full year after King was tried
and convicted.” King argues, though, that in a new trial evidence of Villafana’s
conviction would probably lead to his acquittal because it supports his theory that
he was the victim of entrapment. Because authorities mistakenly believed that he
knew about Villafana’s methamphetamine distribution, King contends, he was
entrapped in order to pressure him to betray Villafana’s confidence. The district
court refused to allow King to present this defense at trial, because he could not
produce any evidence of entrapment. King bears the burden of showing that the
newly discovered evidence is material and “would probably lead to an acquittal in
the event of a retrial.” McGee, 408 F.3d at 979. We do not see what relevance
Villafana’s case would have to a defense of entrapment; at most, it could show that
the authorities had a motive to target him for investigation. In the event of a
retrial, if King raised an entrapment defense, he would be required to show “two
related elements: government inducement of the crime, and a lack of predisposition
on the part of the defendant to engage in the criminal conduct.” Matthews v. United
States, 485 U.S. 58, 63 (1988). And evidence that a third party pleaded guilty to
conduct that occurred well after King’s own trial and conviction would not be
material to either element.
Finally, King describes a letter sent by his first counsel to the prosecution
informing the government of King’s request for cell phone records for the
confidential informant—apparently the same records he now calls newly discovered
evidence. He says the letter is evidence that shows that the government’s witnesses
perjured themselves. But the letter is evidence of nothing; it merely sets out King’s
request for the phone records. Nor could it be newly discovered, as King’s own
counsel wrote the letter before his trial began.
AFFIRMED.