SELYA, Circuit Judge.
Defendant-appellant Frank Peake, smarting under the double sting of his conviction for antitrust conspiracy and this court's affirmance of that conviction, asked the district court to wipe the slate clean and grant him a new trial based on freshly discovered evidence. The district court demurred. Peake appeals. After careful consideration, we affirm the judgment below.
We sketch the facts, mindful that the reader who hungers for more exegetic detail may consult our earlier opinion affirming the underlying conviction and the district court's thoughtful rescript denying the appellant's motion for a new trial.
The government's case against the appellant had its roots in "one of the largest antitrust conspiracies" in United States history.
While the appellant joined the conspiracy in 2005, we fast-forward to November of 2011, at which time, a federal grand jury indicted the appellant on a charge of conspiracy to violate section one of the Sherman Act, which proscribes "agreements in restraint of trade or commerce `among the several [s]tates.'"
The government's case included a trove of incriminating e-mails linking the appellant to the conspiracy. Among these e-mails was one sent by the appellant to a Horizon executive discussing prices quoted to a customer and expressing the appellant's desire to "avoid a price war."
All in all, an "overwhelming amount" of evidence, including travel and telephone records, corroborated the appellant's leading role in orchestrating the conspiracy.
In addition, Ron Reynolds, a United States Department of Agriculture (USDA) agent, testified about the conspiracy's impact on federal food assistance programs. Gabriel Lafitte, the purchasing director for nearly 200 Burger King restaurants in Puerto Rico, testified about the conspiracy's impact on the chain's island-wide costs and prices.
The appellant did not offer any witnesses at trial. Nor did he spend much time attacking the existence of the charged conspiracy. Instead, his counsel argued that the government had failed to prove that the appellant knowingly participated in the conspiracy. In this vein, counsel made much of the fact that William Stallings, a former Sea Star executive cooperating with the government, had recorded conversations with conspiracy participants for two months, but had never recorded any statements by the appellant.
The jury rejected the appellant's defense and found him guilty. The district court sentenced him to sixty months' imprisonment, and we affirmed the conviction and sentence.
Long after the jury had rendered its verdict, the appellant learned that Stallings (whom neither party had called as a witness) had filed a qui tam action pursuant to the False Claims Act (FCA), 31 U.S.C. §§ 3729-3733, on January 15, 2013. In his complaint, Stallings alleged that Sea Star and Horizon had collogued to defraud the government. Stallings's qui tam action was unsealed and settled approximately thirteen months later.
On April 18, 2014, the appellant moved for a new trial in his criminal case pursuant to Federal Rule of Criminal Procedure 33. He argued that the government's failure to inform him of Stallings's qui tam action offended the due process guarantees memorialized in
In this venue, the appellant advances two assignments of error. First, he renews his contention that the government's nondisclosure of Stallings's qui tam action demanded a new trial, and he therefore faults the district court for denying his Rule 33 motion. Second, he contends for the first time that relief under Rule 33 is warranted because Puerto Rico should not be treated like a state for the purposes of the Sherman Act. We address these contentions one by one.
The Nondisclosure Claim.
Rule 33 authorizes the district court, on motion of a criminal defendant, to "grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). When, as now, a Rule 33 motion is made more than fourteen days after the verdict, it must be "grounded on newly discovered evidence." Fed. R. Crim. P. 33(b). Under ordinary circumstances, a defendant seeking such relief must satisfy four conditions: he must show that the specified evidence "was unknown or unavailable to him at the time of trial"; that the failure to discover such evidence was not the result of his "lack of diligence"; that "the evidence is material" and not "merely cumulative or impeaching"; and that "the evidence is such that its introduction would probably result in an acquittal upon a retrial of the case."
This formulation is somewhat different if a movant colorably asserts that the government violated
This alteration in the Rule 33 framework eases a defendant's burden in two significant ways. For one thing, instead of having to demonstrate "
In applying these principles, we do not write on a pristine page. Rather, our review of a decision denying a Rule 33 motion must take into account that the district court "has a special sense of the ebb and flow of the ... trial."
Here, the district court conducted a searching appraisal of the record and found no hint of cognizable prejudice stemming from the government's failure to disclose Stallings's filing of the qui tam action.
It is uncontroverted that, at the time of trial, the appellant was unaware of Stallings's plan to file a qui tam action. Nor does the government suggest that the appellant's lack of awareness stemmed from any failure of diligence on his part. But even assuming that the government knew about such evidence and had custody of it,
The appellant insists that, had he been aware of the qui tam action, he would have called Stallings to testify and would have elicited testimony regarding three data points: that a different Sea Star executive (Leonard Shapiro) consummated Sea Star's conspiratorial agreement with Horizon in 2002; that Baci (the appellant's subordinate) played a central role in the conspiracy; and that the appellant was not a participant in any of the seventeen conversations that Stallings recorded while acting under the government's auspices. None of these data points, though, had anything to do with the qui tam action. Moreover, none of them was controversial. The government never disputed that it was Shapiro who forged the fifty-fifty arrangement with Horizon in 2002 (indeed, the government itself introduced trial testimony to that effect). So, too, Baci testified at the trial as a government witness and made clear that he managed the day-to-day details touching upon Sea Star's anticompetitive arrangement with Horizon. Last — but far from least — the government produced Stallings's seventeen recordings in discovery, and the appellant's counsel harped upon the appellant's absence from the recordings in his opening statement.
The short of it is that the appellant — who could have called Stallings as a trial witness but chose not to do so — fails to
The appellant resists the district court's conclusion to this effect, mustering a litany of other possible uses that he might have made of the qui tam action (had he known about it). These are, however, shots in the dark — and none of them comes close to hitting the mark.
To begin, the appellant submits that he would have introduced the qui tam complaint into evidence. The complaint would have been useful, he suggests in hindsight, because of what it does not say (that is, it hardly refers to the appellant). But this is whistling past the graveyard: the qui tam complaint contains two highly incriminating references to the appellant, which would have buttressed the government's theory that he was a moving force in the conspiracy.
Next, the appellant argues that timely disclosure of the qui tam action would have enabled him to impeach Stallings regarding the latter's financial incentive to cooperate with the government. One flaw in this argument is that neither side called Stallings as a trial witness, so any such impeachment evidence would have been inadmissible.
Sounding a similar note, the appellant contends that he could have used the qui tam action to impeach Reynolds (the USDA agent) who testified for the government. Evidence of the qui tam action would have been useful to prove Reynolds's bias, the appellant insists, inasmuch as the appellant's conviction would have tended to increase the likelihood of a substantial recovery by the government in the qui tam action.
This contention borders on the frivolous. Reynolds's testimony was offered solely to prove that the conspiracy affected interstate commerce.
Grasping at straws, the appellant argues that knowing about the qui tam action would have propped up his unsuccessful motion to transfer the criminal case to the Middle District of Florida. This argument is hopeless. In the first place,
To say more on the prejudice point would be supererogatory. Common sense teaches that an undisclosed piece of evidence often looms larger in the eyes of a hopeful defendant than its actual dimensions warrant. In the
To sum up, we conclude that the district court's finding that the appellant suffered no cognizable prejudice from the delayed disclosure is fully supportable. The government's failure to disclose the qui tam action is "manifestly insufficient to place the trial record in `such a different light as to undermine confidence in the verdict.'"
A loose end remains. The appellant argues, in the alternative, that the district court should have convened an evidentiary hearing on his Rule 33 motion. This argument contains more cry than wool.
We previously have explained that "evidentiary hearings on new trial motions in criminal cases are the exception rather than the rule."
The Status Claim.
The appellant has one last arrow in his quiver. He complains that his conviction is invalid due to Puerto Rico's status. This plaint builds on the uncontroversial premise that the statute of conviction (the Sherman Act) outlaws conspiracies "in restraint of trade or commerce among the several [s]tates." 15 U.S.C. § 1. While acknowledging our case law holding that such a proscription applies to commerce between Puerto Rico and one or more states,
Even without dwelling on the fact that this claim is foreclosed because it was not raised below,
In all events, the appellant's claim is misdirected. The record in this case makes pellucid that the conspiracy in which the appellant participated involved more than commerce between a state and Puerto Rico. As we noted in affirming the appellant's conviction, the trial evidence showed that "the commerce affected by the conspiracy was not only between a state and Puerto Rico, but also among the states."
We need go no further. For the reasons elucidated above, the judgment of the district court is
Relatedly, the appellant invites us to remand this matter to the district court so that he may explore what the government knew about Stallings's decision to file the qui tam action and when the government knew it. Since we have assumed, arguendo, that the government had custody and control over the information about Stallings's decision, remand would serve no useful purpose.