09-3289-cr
U.S. v. Hernandez

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure
32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this
court, a party must cite either the Federal Appendix or an electronic database (with the notation
“summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 8th day of November, two thousand and ten.

PRESENT:

          JOSÉ A. CABRANES,
          DENNY CHIN,
                               Circuit Judges,
          STEFAN R. UNDERHILL,
                               District Judge.*
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UNITED STATES OF AMERICA,

                    Appellee,

                    -v.-                                                                   Nos. 09-3289-cr

MANUEL HERNANDEZ, also known as Manny,

                    Defendant-Appellant,

FRANK ALVAREZ, also known as Amado, ALVIN OZORIA,
also known as Doctor, EDGAR RODRIGUEZ, JIMMY RIVERA,
also known as Jingo, EMILIO RODRIGUEZ, also known as
June, ANTHONY BERRIOS, also known as Tony, JOSE


          *
        The Honorable Stefan R. Underhill, of the United States District Court for the District of
Connecticut, sitting by designation.

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HERNANDEZ, also known as Poochie, OSCAR VARGAS, JOE
COFFMAN, REGINALD MARVIN, also known as Reggie, JIM G.
RIVERA JR., CARLOS RODRIGUEZ, also known as Pauly,
MARTIN SANTIAGO, also known as Marty, PABLO VEGA,

                     Defendants,

FRED ALBINO, also known as Freddy,

                     Defendant.**
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FOR DEFENDANT-APPELLANT:                                       JONATHAN I. EDELSTEIN (Robert Grossman, on the
                                                               brief), New York, NY.

FOR APPELLEE:                                                  ANTHONY M. BRUCE, Assistant United States
                                                               Attorney (William J. Hochul, Jr., United States
                                                               Attorney, and Monica J. Richards, Assistant United
                                                               States Attorney, on the brief), United States Attorney’s
                                                               Office for the Western District of New York,
                                                               Buffalo, NY.

       Appeal from a July 20, 2009, amended judgment of the United States District Court for the
Western District of New York (Richard J. Arcara, Judge).1

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court be AFFIRMED.

         Defendant-Appellant Manuel Hernandez appeals from an amended judgment of
conviction for conspiracy to possess with intent to distribute 500 grams to 5 kilograms of cocaine
in violation of 21 U.S.C. § 846 and use of a communications facility to commit a controlled
substance offense in violation of 21 U.S.C. § 843(b). We assume the parties’ familiarity with the
underlying facts and procedural history.

        Hernandez challenges his conviction on two grounds. First, Hernandez alleges the District
Court erred in denying his motion, pursuant to Fed. R. Crim. P. 33, to vacate his conviction and
order a new trial following the discovery of information—allegedly suppressed in violation of


          **
          The Clerk of the Court is directed to amend the official caption of this action to conform
to the caption listed above.
          1
         Defendant-Appellant Fred Albino’s appeal was dismissed with prejudice on June 11, 2010,
pursuant to a March 22, 2010, order, for failing to file a timely brief and appendix with this Court.

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Brady v. Maryland, 

(1963), and Giglio v. United States, 

(1972)—related to the
mental health and drug abuse of a key government witness, Alvin Ozoria. We review challenges to
a district court’s denial of a Rule 33 motion “for an abuse of discretion.” United States v. Gallego,

, 161 (2d Cir. 1999); cf. Sims v. Blot, 

, 132 (2d Cir. 2008) (“A district court
has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly
erroneous assessment of the evidence, or rendered a decision that cannot be located within the
range of permissible decisions.” (alteration, citations, and internal quotation marks omitted)).

          It is well-established that the government’s obligation to disclose “material” evidence
under Brady and Giglio extends only to circumstances in which “‘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. Coppa, 

, 141 (2d Cir. 2001) (quoting United States v. Bagley,

, 682 (1985)). Indeed, we have explicitly rejected the government’s obligation to
disclose exculpatory or impeachment evidence that is not material. 

(“Brady
[and Giglio do] not . . . require the prosecution to disclose all exculpatory and impeachment
material; it need disclose only material ‘that, if suppressed, would deprive the defendant of a fair
trial.’” (quoting 

)).

         In this case, we have already determined in a prior appeal that “in light of the wealth of
impeachment evidence available with respect to Ozoria,” evidence that Ozoria suffered from
paranoid schizophrenia was not reasonably likely to have changed the result of the prosecution’s
case against Hernandez. United States v. Berrios, 279 F. App’x. 82, 85 (2d Cir. 2008). Ozoria
admitted at trial that during the years when the events about which he was testifying occurred, he
was, in his words, “delusional,” and could not distinguish the voices and images in his head from
reality. Moreover, the government’s letter to Hernandez’s counsel noted that Ozoria suffered
from “one or more psychological problems.” There is, therefore, no reason to expect that if the
jury found Ozoria’s testimony to be credible at trial—and in light of the independent evidence on
which Hernandez might have been convicted we have no reason to assume that it did—the “new”
evidence on which Hernandez now relies relating to Ozoria’s additional mental illnesses and use of
psychedelic drugs would not have led to a different result.

         Our case law is clear that “[w]hen a witness’s credibility has already been substantially
called into question in the same respects by other evidence, additional impeachment evidence will
generally be immaterial and will not provide the basis for a Brady claim.” Tankleff v. Senkowski, 

, 251 (2d Cir. 1998); see also Shabazz v. Artuz, 

, 166 (2d Cir. 2003) (“Where the
undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose
credibility has already been shown to be questionable or who is subject to extensive attack by
reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.”)

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(internal quotation marks omitted). Because Ozoria’s credibility had been substantially called into
question in the same respects by evidence other than that allegedly suppressed, we hold that the
additional impeachment evidence is immaterial and that the District Court did not abuse its
discretion when it denied Hernandez’s Rule 33 motion.2

        Second, Hernandez argues that the sentence imposed by the District Court is substantively
unreasonable because the imposition of a Guideline sentence was greater than necessary to meet
the purposes of 18 U.S.C. § 3553(a), as required by that statute. We disagree. We review the
reasonableness of a district court’s sentencing determinations under a “deferential
abuse-of-discretion standard.” Gall v. United States, 

, 41 (2007). While not
presumptively reasonable, United States v. Eberhard, 

, 179 (2d Cir. 2008), “in the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range
of sentences that would be reasonable in the particular circumstances.” United States v. Fernandez,

, 27 (2d Cir. 2006). Because the District Court explained at length its reasons for
imposing a 97-month sentence that was not “manifestly unjust[,] ... shockingly high, shockingly
low, or otherwise unsupportable as a matter of law,” United States v. Rigas, 

, 123 (2d
Cir. 2009), we cannot say the District Court erred, much less abused its discretion.

                                         CONCLUSION

       We have considered each of Hernandez’s arguments on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the judgment of the District Court.




                                               FOR THE COURT,

                                               Catherine O’Hagan Wolfe, Clerk of Court




       2
           Because the allegedly suppressed evidence is not material, we need not decide whether the
government had an obligation to search state penal and hospital records for potentially exculpatory
material, and express no view on that question.

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