United States of America v. Gary Lee, a/k/a GENERAL Gary Lee

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-1305
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UNITED STATES OF AMERICA
v.
GARY LEE, a/k/a GENERAL
Gary Lee, Appellant.
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 02-cr-00093-7 )
District Judge: Honorable Donetta W. Ambrose
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Submitted Pursuant to Third Circuit LAR 34.1(a)
September 22, 2009
Before: RENDELL, FUENTES and ALDISERT, Circuit Judges
Opinion filed: September 24, 2009
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OPINION
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PER CURIAM
In March of 2003, a grand jury in the Western District of Pennsylvania returned a
superseding indictment against appellant Gary Lee, Omari Patton, and 21 other

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Section 851 of title 21 provides in pertinent part:1
(a) Information filed by United States Attorney
(1) No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty, the
United States attorney files an information with the court (and serves a copy
of such information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon....
21 U.S.C. 851(a)(1).
Rule 33 provides:2
(a) Defendant’s Motion. Upon the defendant’s motion, the court may
vacate any judgment and grant a new trial if the interest of justice so
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individuals. In pertinent part, Count One charged that from 1998 until April 18, 2002,
Lee, Patton, and others conspired to distribute more than five kilograms of cocaine, more
than one kilogram of heroin, and more than fifty grams of crack cocaine in violation of 21
U.S.C. §846. Count Fifteen charged Lee with possession with intent to distribute more
than five kilograms of cocaine in violation of 21 U.S.C. §841(a)(1). In late 2004, Lee,
along with Patton, proceeded to trial. The Government filed an Information giving notice
of its intent to seek an increased penalty under 21 U.S.C. § 851. The jury returned a1
verdict of guilty as against Lee on both counts. On February 22, 2005, the District Court
sentenced Lee to a term of imprisonment of 240 months, to be followed by a five-year
term of supervised release. Lee timely appealed.
On April 10, 2007, and while his direct appeal was pending in this Court, Lee filed
a motion for a new trial pursuant to criminal Rule 33. On September 5, 2008, we2

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requires. If the case was tried without a jury, the court may take additional
testimony and enter a new judgment.
(b) Time to File.
(1) Newly Discovered Evidence. Any motion for a new trial grounded
on newly discovered evidence must be filed within 3 years after the verdict
or finding of guilty. If an appeal is pending, the court may not grant a
motion for a new trial until the appellate court remands the case.
(2) Other Grounds. Any motion for a new trial grounded on any reason
other than newly discovered evidence must be filed within 7 days after the
verdict or finding of guilty.
Fed. R. Crim. Pro. 33 (2008).
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affirmed Lee’s judgment of conviction and sentence in United States v. Patton, 292 Fed.
Appx. 159 (3d Cir. 2008). Following issuance of the mandate, the District Court denied
Lee’s Rule 33 motion, see Federal Rule of Criminal Procedure 33(b)(1) (noting that if
appeal is pending when motion for new trial is filed, "the court may not grant a motion for
a new trial until the appellate court remands the case"). Lee appeals.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291. Our standard of
review for the denial of a Rule 33 motion is abuse of discretion. United States v. Iannelli,
528 F.2d 1290, 1292 (3d Cir. 1976). To win a new trial on the basis of newly discovered
evidence, a defendant must meet these requirements: (1) the evidence must be newly
discovered, that is, discovered since the trial; (2) the defendant must have been diligent in
discovering the new facts; (3) the evidence must not be merely cumulative or impeaching;
(4) the evidence must be material to the issues involved; and (e) the evidence must be
such that, in a new trial, it would probably produce an acquittal. See id.; United States v

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Adams, 759 F.2d 1099, 1108 (3d Cir. 1985).
Lee was a member of a large-scale drug conspiracy based in Pittsburgh, with ties
to New Jersey, New York and Georgia. Government witness Edward Myrick was
associated with Lee and developed a source of cocaine in Georgia and that source
supplied the conspiracy with hundreds of kilograms of cocaine. In addition to his
dealings with Lee and his co-conspirators, Myrick dealt cocaine with Terrance Cole,
another Pittsburgher. In April of 2002, a grand jury in the Western District of
Pennsylvania returned an indictment against Myrick and others. One month later, Myrick
pleaded guilty to one count of conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin and 5 kilograms or more of cocaine. In
October of 2002, the District Court sentenced Myrick to a term of imprisonment of 188
months. In exchange, Myrick became a key witness in the Government’s case against
Lee in D.C. Crim. No. 02-cr-00093, and Terrance Cole in D.C. Crim. No. 04-cr-00109.
At his November 2004 trial, Lee premised his defense on the credibility of the
Government’s witnesses, in that they had made deals with the Government. Lee sought to
establish this defense through the cross-examination of Myrick, among others. Under
direct examination by the Government, Myrick admitted that he was currently
incarcerated as a result of his conviction for conspiracy to possess with intent to distribute
a controlled substance. See N.T., 11/12/04, at 23. He told the jury that, as a result of that
conviction, he had received a sentence of 188 months. Id. He then admitted that he had a

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plea agreement with the United States in which he agreed to cooperate with the
Government in exchange for a reduced sentence. Id. at 23-24. Lee’s counsel then cross-
examined Myrick and got him to admit that, because he was charged with dealing in
excess of five kilograms of cocaine, he was facing a mandatory ten years in jail, and,
because he had a prior felony drug conviction, that mandatory minimum of ten years
would be doubled to twenty years. Id. at 103-04. After obtaining Myrick’s agreement
that he would have qualified as a career offender, id. at 104, Lee’s counsel got Myrick to
admit that he could have been sentenced to 262 to 327 months imprisonment, id. at 105.
He asked, “So you got a break from 262 to 327 down to 188 already, right?,” and Myrick
answered, “Yes.” Id. at 106.
In February of 2005, Cole and one co-defendant proceeded to trial. Myrick also
testified at this trial. After a five-week trial, the jury convicted the co-defendant but, with
regard to Cole, the jury was unable to reach a verdict. Cole’s second trial, conducted in
the Fall of 2005, ended in a guilty verdict. (Myrick also testified at this trial.) In the first
trial, Myrick told the jury that he was serving a sentence of 188 months in a federal
prison, following a guilty plea to conspiracy to distribute cocaine. See N.T., 3/3/05, at
88-90. Explaining that he had entered into a plea agreement with respect to a drug
conspiracy, Myrick told the jury that he had agreed to fully cooperate with the
Government in the hope that he might receive a sentence reduction. Id. at 89. Myrick
also testified that the plea agreement contained a stipulation that the amount of drugs

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involved in his offense was 50 to 150 kilograms of cocaine. Id. at 90-91. On cross-
examination, Cole’s counsel got Myrick to repeat that the Government was going to, or
had, limited his participation in the conspiracy to 50 to 150 kilograms of cocaine and no
heroin. Id. at 145.
In his Rule 33 motion, Lee argued that Myrick’s testimony at Cole’s first trial
constituted newly discovered evidence relevant to his trial. Specifically, he claimed that
he did not know, until Myrick was cross-examined at Cole’s trial, that the Government
had decided not to file a motion for an enhancement based on Myrick’s prior conviction,
see 21 U.S.C. § 851. In rejecting this claim as meritless, the District Court concluded,
after reviewing the transcript, that Lee and his counsel were well aware of Myrick’s prior
drug conviction and the fact that the Government had chosen not to file an Information
for an enhancement based on that prior conviction. Therefore, the evidence was not new.
Lee also contended that the cross-examination of Myrick at the Cole trial
demonstrated that Myrick lied in Lee’s trial when testifying about promises made to him
by the Government. The District Court rejected this claim as meritless, observing that, in
Lee’s trial, Myrick admitted that he had a prior drug conviction, the Government could
have doubled his mandatory sentence based on that prior conviction, he was a career
offender whose sentence could have been in a substantially harsher advisory guideline
range, he expected the Government to file a motion to further reduce his sentence, and he
got a deal from Atlanta authorities who promised not to prosecute him, and Myrick’s

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The District Court also addressed an additional piece of “new” evidence. During the3
Cole trial, Cole’s defense counsel questioned Myrick about the conspiracy count to which
he had pleaded guilty, which according to counsel, included an allegation that there were
eleven deaths associated with the heroin part of the conspiracy, and that by pleading
guilty to a conspiracy involving only cocaine, Myrick was avoiding a mandatory
life sentence. Since the relevant indictment made no mention of a heroin conspiracy
causing death, the District Court concluded that Cole’s defense counsel’s mistaken
characterization of the conspiracy charge was not material evidence capable of producing
an acquittal in a new trial. Lee has not pursued this issue in his brief on appeal and we
thus consider it waived. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
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cross-examination at the Cole trial was essentially and materially the same. It thus did not
constitute newly discovered evidence.3
On appeal, Lee has contended that he did not know, until Myrick testified at the
first Cole trial, that the Government stipulated with Myrick to a low drug amount – 50 to
150 kilograms of cocaine – for sentencing purposes, with no reference to any amount of
heroin or to an enhancement for a prior conviction under 21 U.S.C. § 851, and thus that
the Government had promised Myrick a particular sentence lower than the 240-month
mandatory minimum. See Appellant’s Informal Brief, at 3. According to Lee, Myrick’s
testimony on this point at the Cole trial rendered false his testimony at Lee’s trial that no
particular sentence had been promised to him. Furthermore, the Government withheld
information concerning the low drug amount stipulation in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
We have reviewed Myrick’s testimony at both trials and conclude that the District
Court properly exercised its discretion not to grant a new trial under Rule 33. Although
we doubt whether the evidence is really new, see Appellee’s Brief, at 27-30, the

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stipulated drug amount does not have the capacity to produce an acquittal. Lee’s defense
counsel thoroughly attacked Myrick’s credibility on cross-examination by questioning
him about his expectation, and achievement, of a reduced sentence as a result of his
cooperation with the Government. The jury heard ample evidence of a possible motive to
falsely implicate Lee. The stipulated drug amount would have added little to the cross-
examination, and, in fact, Lee’s counsel may reasonably have chosen to focus on the
sentence reduction of 74 to 139 months that Myrick actually received as a result of his
cooperation, N.T., 11/12/04, at 105-06, in driving home, in a more concrete way than a
drug amount would, the benefit to Myrick of his bargain with the Government. Cf.
Appellee’s Brief, at 28. In addition, the record plainly supports the District Court’s
conclusion that Lee and his defense counsel were aware of Myrick’s prior drug
conviction and the Government’s choice not to file an Information under section
851(a)(1), and they made use of it at Lee’s trial. See id. at 103-04. We also agree with
the District Court that Myrick’s cross-examination in the Cole trial was materially and
essentially the same and did not constitute newly discovered evidence.
Lee continues that the Government’s failure to disclose the details of the low drug
amount stipulation amounted to a Brady violation. To establish a violation of due process
under Brady, 373 U.S. 83, a defendant must show not only that the evidence was
suppressed, but also that it was material and favorable. Id. at 87. Evidence is material if
there is “a reasonable probability that, had the evidence been disclosed to the defense, the

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result of the proceeding would have been different.” United States v. Bagley, 473 U.S.
667, 682 (1985). The question is whether, in the absence of the evidence, the defendant
“received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995). Again, even assuming that the stipulated
drug amount was withheld, Lee’s trial was not rendered unfair by its absence, in view of
his counsel’s thorough cross-examination of Myrick on the subject of Myrick’s
achievement of a significantly reduced sentence in exchange for his cooperation.
Although evidence affecting a witness’s credibility can be material to guilt or innocence,
see United States v. Biberfeld, 957 F.2d 98, 103 (3d Cir. 1992), with Myrick’s direct and
cross-examination, Lee’s jury was aware that Myrick received a significant sentencing
benefit from his cooperation deal with the Government. Accordingly, there was no due
process violation.
For the foregoing reasons, we will affirm the order of the District Court denying
the Rule 33 motion for a new trial. Appellant’s motion for appointment of counsel on
appeal is denied.

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