Petition for Writ of Certiorari — Edwin Pawlowski, Petitioner v. United States

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 23-1078

UNITED STATES OF AMERICA

v.

EDWIN PAWLOWSKI,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal Action No. 5:17-cr-00390-001)

District Judge: Honorable Juan R. Sanchez

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 14, 2024

Before: JORDAN, PHIPPS, and NYGAARD, Circuit Judges

(Opinion filed: June 26, 2024)

OPINION*

PER CURIAM

Appellant Edwin Pawlowski, proceeding pro se, appeals from the District Court’s

denial of his motion for a new trial. For the following reasons, we will affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

Pawlowski, the former mayor of the City of Allentown, was convicted of 38

corruption-related offenses in 2018. He was sentenced to 180 months’ imprisonment.

We affirmed that sentence on direct appeal. See United States v. Pawlowski, 27 F.4th

897 (3d Cir. 2022).

In 2020, Pawlowski filed a motion for an evidentiary hearing, arguing that an

investigating law enforcement agent’s comments on a 2019 podcast suggested that the

Government withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S.

83 (1963), and Giglio v. United States, 405 U.S. 150 (1972).1 The District Court

construed it as a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33

and denied it. Pawlowski filed a timely notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291. Where, as here, a motion for a new

trial is based on questions of law as well as fact, we conduct a de novo review of the

District Court’s legal conclusions and a “clearly erroneous” review of any fact findings.2

1 Pawlowski argued that the podcast revealed that the Government failed to disclose:

(1) evidence showing that the FBI used a confidential source or undercover agent to make

contact with a public official in an attempt to connect with Pawlowski’s associates;

(2) evidence that an undercover agent acted as an investor to “entrap” Pawlowski in a

“pay-to-play” scheme; (3) data from a cell phone belonging to Pawlowski’s campaign

manager; (4) data from various devices belonging to an employee of Pawlowski’s

campaign manager; and (5) evidence that Pawlowski’s campaign funds were seized to

prevent him from using the money to hire counsel. See Dkt. No. 289 at 4-9. The District.

Court held the motion in abeyance pending the outcome of Pawlowski’s direct appeal,

then ordered the Government to produce a variety of documents and documentation of

the evidence’s production during discovery. The Government complied.

2 Our review is limited to those arguments put forth in Pawlowski’s opening brief, and we

deem forfeited any other potential challenges to the denial order. See M.S. by & through

2

United States v. Pelulio. 399 F.3d 197, 202 (3d Cir. 2005). Where a Rule 33 motion is

based on newly discovered evidence, the movant shoulders a “heavy burden,” see United

States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010), of proving five elements: the evidence

must be (1) newly and (2) diligently discovered; (3) not merely cumulative or

impeaching; (4) material; and (5) capable of “probably” producing an acquittal on a new

trial,3 see United States v. Schneider, 801 F.3d 186, 201-02 (3d Cir. 2015). “If just one of

the requirements is not satisfied, a defendant’s Rule 33 motion must fail.” United States

v. Kelly, 539 F.3d 172, 182 (3d Cir. 2008)

Despite Pawlowski’s general assertions otherwise, most of the evidence discussed

on the podcast was produced during discovery, so it was not “newly discovered” as

Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (holding that

the appellant forfeited claims by failing to raise them in the opening brief). Among other

issues, Pawlowski has not challenged the District Court’s conclusion that it had already

resolved his claims regarding two categories of allegedly withheld evidence, and

therefore we need not address that conclusion or remand for further proceedings as to it.

Pawlowski asserts on appeal that the Government failed to prove all the elements

required to support his fraud and bribery convictions, and that his wire and mail fraud

conviction should be reversed in light of recent Supreme Court decisions, but he failed to

raise those arguments to the District Court, and we will not address them for the first time

on appeal. See United States v. Dowdell, 70 F.4th 134, 146 (3d Cir. 2023).

3 The Brady standard overlaps with the Rule 33 standard. See Pelulio, 399 F.3d at 209

(explaining that, to establish a due process violation under Brady, a 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”)

(cleaned up). Therefore, the Government’s failure to disclose evidence violates due

process, and thus requires a new trial, “only if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the proceeding would have been

different.” United States v. Scarfo, 41 F.4th 136, 228 (3d Cir. 2022) (cleaned up).

3

required by Rule 33. See United States v. Cimera, 459 F.3d 452, 461 (3d Cir. 2006)

(explaining that “the evidence must be in fact, newly discovered, i.e., discovered since

the trial”). Before trial, the Government provided the content of conversations between a

confidential source or undercover agent and a public official,4 information about its use

of an undercover agent posing as a potential developer to gain access to Pawlowski’s

associates,5 and data from Pawlowski’s campaign manager’s phone and devices

belonging to an employee of the campaign manager. Further, Pawlowski has not

established that any of this evidence was material. See generally Lesko v. Sec’y Pa.

Dep’t of Corr.. 34 F.4th 211, 233 (3d Cir. 2022) (noting that, under Brady, “pure

speculation” is “not enough to show materiality”). The District Court thus properly

concluded that Pawlowski failed to meet his burden under Rule 33.

Pawlowski also argues that his rights under Brady were violated because the

Government failed, to disclose that it seized his assets for the purpose of restricting his

ability to acquire counsel of his choice.6 To the extent Pawlowski can raise this claim

4 The Government produced only summaries, rather than recordings, of three of those

conversations. It conceded that it produced neither a recording nor summary of one

conversation, which the District Court reviewed in camera. The District Court concluded

that the content of those four recordings was “entirely inculpatory,” Dkt. No. 344 at 4, so,

even if they were withheld, they were not subject to Brady disclosure, see United States

v. Boone, 279 F.3d 163, 189-90 (3d Cir. 2002). Pawlowski does not challenge that

conclusion on appeal.

5 Pawlowski’s counsel relied on recordings resulting from this investigatory tactic during,

its cross-examination of the campaign manager’s employee.

6 Pawlowski was represented by privately retained counsel throughout his criminal

proceedings and on direct appeal.

4

through a Rule 33 motion, cf. United States v. DeRewah 10 F.3d 100, 104-05 (3d Cir.

1993) (explaining § 2255 motion was proper vehicle to bring Sixth Amendment claim,

not Rule 33 motion), it fails under the relevant standard because Pawlowski has not

shown that the reason'for seizing his assets is material. See United States v. Walker. 657

F.3d 160, 188 (3d Cir. 2011) (“[T]he touchstone of materiality is a reasonable probability

of a different result.” (internal quotations and citation omitted)). The District Court also

correctly concluded that it was permissible for the Government to seize tainted assets,

even if they were intended for the payment of an attorney. See United States v.

Monsanto, 491 U.S. 600, 616 (1989) (explaining that “the Government may—without

offending the Fifth or Sixth Amendment—-obtain forfeiture of property that a defendant

might have wished to use to pay his attorney”).

We discern no abuse of discretion in the District Court’s decision not to hold an

evidentiary hearing, especially after the Government produced documentation of its prior

discovery disclosures. See United States v. Noel, 905 F.3d258, 275 n.l0(3dCir. 2018)

(explaining that a district court may forgo a hearing on a Rule 33 motion “where the

motion is capable of resolution on the existing record”).

Accordingly, we will affirm the judgment of the District Court.7

7 Pawlowski’s motions to file briefs exceeding the page limits are granted.

5

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.

EDWIN PAWLOWSKI

CRIMINAL ACTION

No. 17-390-1

MEMORANDUM

Juan R. Sanchez, C.J. January 5, 2023

Petitioner Edwin Pawlowski, currently serving a 180-month term of imprisonment for a

slew of corruption-related offenses, moves for a new trial pursuant to Federal Rule of Criminal

Procedure 33 on the basis of newly discovered evidence. He alleges the Government withheld

exculpatory evidence at trial and requests an evidentiary hearing to discern the extent of the

violations Because the evidence Pawlowski claims is newly discovered was in fact produced

during discovery, is not material, or does not suggest the possibility of acquittal, Pawlowski s

motion will be denied.

BACKGROUND

pay-lo-play scheme

while in public office. The Court later sentenced him to 180 months

of incarceration.

After his conviction, Pawlowski filed a motion to "Compel Post Conviction

•

Discovery/Brady Material." See Def.'s Mot. Compel 1, ECF No. 237. This motion alleged the

Government failed to turn over the following evidence: (1) reports and schedules from Sam

Ruchlewicz; (2) a tablet from Alison Fleck; (3) data from Fran Dougherty; (4) emails from Mike

Fleck; (5) second phones and email accounts from Ruchlewicz and Fleck; and (6) texts deleted by

Case'5:17-cr-00390-JS Document 344 Filed 01/05/23 Page 1 of 6

Ruchlewicz. See id. at 4-5. The Court denied this motion, as Pawlowski failed to contest the

Government's assertion that the requested content was either produced during discovery or never

in the Government's possession. Order, Dec. 10, 2018, ECF No. 258.

Sixteen months later, Pawlowski made a similar filing entitled "Motion for Evidentiary

Hearing Contingent Upon Newly Discovered Exculpatory Brady Type Material." Def.'s Mot.

Hearinq 1 ECF No. 289. In this motion, Pawlowski asserts the existence of the following

exculpatory evidence not turned over during discovery: (1) various iPods, computers, and phones

from Ruchlewicz; (2) a second cell phone from Fleck; (3) tape recordings between a confidential

informant and an unknown public official; (4) the Government’s intent to deprive Pawlowski of

money to pay for an attorney; and (5) the Government's entrapment techniques and strategies. Se<

id at 4-8 The existence of this evidence was allegedly discovered through a podcast interview

oiven by Special Agent Scott Curtis on May 2, 2019, focusing on his experience investigating the

Pawlowski case. Id. at 3. Pawlowski had filed an appeal of his sentence, so this Court entered an

Order holding the motion in abeyance pending the outcome of that appeal. Order of Jan. 29, 2021,

ECF No. 310. As the Third Circuit Court of Appeals has affirmed Pawlowski's sentence, the

motion is now ripe for adjudication.

STANDARD OF REVIEW

,. .

.

„c . „

A Court may grant a new trial under Rule 33 "if the interest of justice so requires. Fed R.

(

Crim P 33 The decision to grant such a motion lies "within the district courts sound discretion.

United States v. Ortiz, 182 F. Supp. 2d 443, 446 (E.D. Pa. 2000) (internal quotation marks and

cuaiion ommea;. in xne i mra circuit, Kuie 33 motions are disfavored and "should be granted

sparingly and only in exceptional cases." Gov't of V.l. v. Derricks, 810 F.2d 50, 55 (3d Cir 1987).

Case 5:17-cr-00390-JS Document 344 Filed 01/05/23 Page 2 of 6

3

To show that a new trial is necessary on the ground of newly discovered evidence, a plaintiff must

show:

(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 [defendant]; (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.

United States v. Kelly, 539 F.3d 172, 181-82 (3d Cir. 2008) (internal citation omitted). The movant

has a "heavy burden of proving each of these requirements." United States v. Cimera, 459 F.3d

452, 458 (3d Cir. 2006).

A court need not hold an evidentiary hearing in every case where a defendant seeks a new

trial on the basis of newly discovered evidence. United States v. Herman, 614. F.2d 369, 372 (3d

Cir. 1980). Instead, a Rule 33 motion may be decided "either on affidavits or after an evidentiary

hearing." Kelly, 539 F.3d at 188 (emphasis added). The decision to not hold a hearing is especially

sound when a record on the issue was developed at trial, and when the judge who rules on the

motion also presided at trial. Herman, 614 F.2d at 372. A hearing is only required in "exceptional

circumstances." United States v. Bergrin, Civ. No. 20-2828, 2022 WL 1024624, at *7 (3d Cir. Apr.

6, 2022) (quoting United States v. Glinn, 965 F.3d 940, 942 (8th Cir. 2020)).

DISCUSSION

The mbtion now before the Court asserts the existence of five pieces of newly discovered'

evidence: (1) devices from Ruchlewicz; (2) a cell phone from Fleck; (3) recordings between a

confidential informant and a public official; (4) the Government's intent behind seizing

Pawlowski's assets; and (5) the Government's entrapment strategy. Def.'s Mot. Hearing 5-8, ECF

No. 289. Because the Court already considered the first and second items, they need not be

addressed again here. See Order, Dec. 10, 2018, ECF No. 258. The balance of the remaining

Case 5:17-cr-00390-JS Document 344 Filed 01/05/23 Page 3 of 6

4

evidence Pawlowski claims is newly discovered does not satisfy the heavy burden of provjng the

need for a new trial. See Cimera, 459 F.2d at 458. The evidence was either not "newly discovered"

within the meaning of Rule 33, is.not material, or does not suggest that, but for its absence,

Pawlowski would have been acquitted. See Kelly, 539 F.3d at 181-82. Accordingly, the motion

will be denied.

First, Pawlowski claims Curtis, while speaking on the podcast, identified recordings made

between a confidential informant and a public official which were not disclosed during discovery.

Def.'s Mot. Hearing 5, ECF No. 289. Almost all of these conversations, however, were in fact

turned over to the defense on August 3, 2017. Gov't.'s Resp. 2, ECF No. 336 (screenshots of

discovery hard drive). The Government admits the FBI inadvertently failed to produce four

recordings. Gov't/s Mem. Opp. Def.’s Mot. Hearing 8-9, ECF No. 333. The content of three of

the four of these recordings was disclosed to Pawlowski before trial, notwithstanding the

Government’s unintentional withholding of the recordings themselves, their content was disclosed

before trial. See Aff., Nov. 25, 2013 at 3, ECF No. 336-1 (noting the affidavit included

"[s]ummaries of recorded conversations"). The information gleaned from all four of these

recordings was also entirely inculpatory, meaning they were not Brady material and would not

have supported Pawlowski's acquittal.1 Because the Government turned over all but four

recordings, and each of these contained inculpatory information the majority of which was

previously shared Pawlowski's allegedly new discovery of them does not warrant a new trial.

1 Transcripts or summaries of three of the four recordings were produced during discovery and

contain wholly inculpatory information. See Third Fifteen Day Report 8-9, ECF No. 336-3 ^

(suggesting payment in exchange for support in transferring a liquor license); id. at 9-10 ("We

took care of that liquor thing for you."); Aff., Mar. 31, 2014 at 155, ECF No. 342-1 (describing

payment in exchange for favorable treatment in development project). The fourth recording, made

on July 12, 2014, has been reviewed by the Court in camera and does not contain any exculpatory

information.

Case 5:17-cr-00390-JS Document 344 Filed 01/05/23 Page 4 of 6

Second Pawlowski claims Curtis' interview revealed new evidence of the FBI's alleged

"entrapment" strategy. Def.'s Mot. Hearing 6, ECF No. 289. Curtis shared that the FBI hired an

undercover agent to act as a potential developer in determining whether Pawlowski was soliciting

"pay-to-play" bids. Id. at 7. Again, the Government disclosed this information during discovery,

as it was included in Curtis' wiretap affidavit. See Aff., Nov. 25, 2013 at 3, ECF No. 336-1

(revealing the use of an undercover FBI employee in the investigation), id. at 11 (describing how

the undercover agent posed as a potential developer and used a confidential source to gain access

to Pawlowski's associates). Therefore, the evidence is not newly discovered.

Finally, Pawlowski alleges Curtis revealed for the first time an allegedly improper motive

in the FBI's impoundment of three bank accounts. Def.'s Mot. Hearing 6, ECF No. 289. In his

interview, Curtis stated that he seized funds from Pawlowski's campaign accounts because

Pawlowski "could utilize those campaign funds to pay for attorneys to defend himself in this

^

investigation. So we wanted to minimize his opportunity to do that and cut off the funding there.

Episode 164- Scott Curtis Mayor of Allentown, Campaign Contribution Bribery, FBI RETIRED

CASE FILE REVIEW WITH JERRI WILLIAMS (May 1,2019), https://jerriwilliams.com/episode-164scott-curtis-mayor-of-allentown-campaign-contribution-bribery/.

Seizing assets intended for payment of an attorney, is permissibje. See Luis v. United States,

-578 U.S. 5,12 (2016); United States ^Mgnsa|jto^491_'U^S:.600r6-16 (1989) ("The Government

mav without offending the Fifth or SixtlTAmeridment obtain forfeiture of property that a

"d^lnd.ant..)Tiight,have-wishel1To""use f6^paf^i¥iattoFney:',)rWgainf'thefa^j^|!^j^^^teJi!S.®z^^j|!?r'

not newly discovered..See. Aff:,;Apr. 4, 2016’ati21-22rECPNo. 336-^^^si,musi.ngs^on-4he-.=^.

|^FcIiAliiip^iM^W5^^n;am;npt;rnaterialto,%is^^^ltin^|n

^^fo^Ii^^wictlFm.See Gov’t.-'s Mem. Opp.-Det's,Mot Hearing 13, ECF No. 333; Kelly,

'tlle^fi 7-cr-6039d-JS Document 344 Filed 01 /05/23 Page 5'of 6

6

cog c 3d at 181 At most ©vidsncs of ths^GdyofnmBnt S'SirQiOQy miyni Dc'irnjjt?doiiiiiy, wt 111*11* 10

insufficient to establish cause for a new triafuficler'Rule 33. See Kelly, 539 F.3d at 181. Finally,

there is no suggestion of prejudice such that Pawlowski would have been acquitted with this

(

evidence in hand, given he had the same counsel before, during, and after the seizures See Govt.s

Mem. Opp. Def.'s Mot. Hearing 13, ECF No. 333. As with his two other claims, Pawlowski has

not met the requirements for a new trial.

A district court need only order an evidentiary hearing on a Rule 33 motion if

HHfifeSfecodrt need Ml hearing on the matter. Pawlowski's motion will be

denied.

An appropriate Order follows.

BY THE COURT:

Isl Juan R. Sanchez .

Juan R. Scinchez, C.J.

Case 5:17-cr-00390-JS Document 344 Filed 01/05/23 Page 6 of 6

FXHTRIT

C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No, 23-1078

UNITED STATES OF AMERICA

v.

EDWIN PAWLOWSKI,

Appellant

(Related to E.D. Pa. No. 5:17-cr-00390-001)

SUR PETITION FOR REHEARING

Present: CHAGARES, ChiefJudge, JORDAN, HARDIMAN, SHWARTZ, KRAUSE,

RESTREPO, BIBAS, PORTER, MATEY, PHIPPS, FREEMAN, MONTGOMERYREEVES, CHUNG, and NYGAARD,* Circuit Judges.

The petition for rehearing filed by appellant in the above-entitled case having

been submitted to the judges who participated in the decision of this Court and to all the

other available circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing, and a majority of the judges of the

* Judge Nygaard’s vote is limited to panel rehearing.

circuit in regular service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc, is denied.

BY THE COURT,

s/ Peter J. Phipps

Circuit Judge

Date: July 26, 2024

CJG/cc:

Matthew T. Newcomer, Esq.

Edwin Pawlowski