United States v. Paul Bergrin

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-2828

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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

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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

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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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