13-3520-cr United States v. Wade


## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER 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 TO 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 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 13 thday of November, two thousand fourteen. 3 4 PRESENT: 5 PIERRE N. LEVAL, 6 GERARD E. LYNCH, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges. 9

_____________________________________ 10 11 UNITED STATES OF AMERICA, 12 13 Appellee , 14 15 v. No. 13-3520-cr 16 17 JULIAN V. WADE, 18 19 Defendant-Appellant

. 20

_____________________________________ 21 22 23 

### FOR APPELLANT: Patrick J. Brown, LoTempio & Brown, Buffalo, 24 

### NY. 25 26 

### FOR APPELLEE: Stephan J. Baczynski, Assistant United States 27 

### Attorney, for William J. Hochul, Jr., United 28 

### States Attorney for the Western District of New 29 

### York, Buffalo, NY. 30

### Appeal from a judgment of the United States District Court for the Western 1 

### District of New York (William M. Skretny, Chief Judge). 2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3 DECREED that the judgment is AFFIRMED. 4 

### On December 21, 2010, defendant-appellant Julian Wade was found guilty of: 5 

### possessing with intent to distribute five grams or more of cocaine base, see21 U.S.C. 6 

### § 841(a)(1), (b)(1)(B) (“Count 1”); possessing more than five grams of cocaine base, see 7 

### id . § 844(a) (“Count 2”); possessing a firearm during and in relation to the foregoing drug 8 

### crimes, see18 U.S.C. § 924(c) (“Count 3”); and possessing a firearm and ammunition as 9 

### a convicted felon, seeid . § 922(g)(1) (“Count 4”). On March 7, 2012, Wade was 10 

### sentenced principally to 120 months’ imprisonment on Count 1; 60 months’ 11 

### imprisonment on Count 2, to run concurrently with Count 1; 60 months’ imprisonment on 12 

### Count 3, to run consecutively to Count 1; and 60 months’ imprisonment on Count 4, to 13 

### run concurrently with Count 1. 14 

### Wade appealed his conviction and sentence, asserting a number of trial errors and 15 

### contending that his sentence did not accord with the Fair Sentencing Act of 2010, Pub. L. 16 

### No. 111-220, 124 Stat. 2372 (Aug. 3, 2010) (“FSA”). We agreed that his sentence did not 17 

### accord with the FSA but rejected his remaining arguments, and therefore “vacate[d] 18 

### Wade’s sentences on Counts 1 and 2 and remand[ed] for the limited purpose of 19 

### resentencing on those counts pursuant to the FSA.” United States v. Wade, 512 Fed. 20 

### App’x 11, 16 (2d Cir. 2013). 21



### 2

### On remand, Wade moved pursuant to Fed. R. Cr. P. 33 for a new trial based on 1 

### newly discovered evidence, because the Erie County forensics laboratory that analyzed 2 

### DNA evidence in his case had subsequently changed its reporting thresholds such that the 3 

### number of persons who could not be excluded as the source of the DNA was reduced 4 

### from 1 in 56,400 to 1 in 170. The district court denied Wade’s motion on the grounds 5 

### that the revised threshold did not constitute new evidence and would not be likely to 6 

### result in an acquittal. At the resentencing, Wade argued that – despite the limited remand 7 

### – he should be resentenced on Count 4 as well as Counts 1 and 2, because “the reversal 8 

### [on Counts 1 and 2] effectively undoes the entire knot of calculation.” United States v. 9 

### Quintieri , 306 F.3d 1217, 1228 (2d Cir. 2002). The court sentenced Wade to 60 months’ 10 

### imprisonment on Count 1 and 24 months imprisonment on Count 2, to run concurrently 11 

### with Count 1, leaving in place the 60-month consecutive sentence on Count 3. Based on 12 

### these sentences, the court determined it did not need to reconsider the 60-month 13 

### concurrent sentence for Count 4. 14 

### In this appeal, Wade argues that the district court erred in: (1) denying his Rule 33 15 

### motion for a new trial; and (2) failing to resentence him on Count 4. We assume the 16 

### parties’ familiarity with the facts and procedural history, which we reference only as 17 

### necessary to explain our decision. 18 

### 1. Rule 33 Motion 19 

### A defendant seeking a new trial on the basis of newly discovered evidence must 20 

### show: (1) “the evidence [is] newly discovered after trial”; (2) “due diligence . . . to obtain 21


### 3

### the evidence” prior to trial; (3) the “evidence is material”; (4) the evidence “is not merely 1 

### cumulative or impeaching”; and (5) “the evidence would likely result in an acquittal.” 2 

### United States v. Owen, 500 F.3d 83, 88 (2d Cir. 2007). “[A] district court must exercise 3 

### great caution in determining whether to grant a retrial on the ground of newly discovered 4 

### evidence, and may grant the motion only in the most extraordinary circumstances.” 5 

### United States v. Spencer, 4 F.3d 115, 118 (2d Cir. 1993) (internal quotation marks 6 

### omitted). “We review a district court’s denial of a Rule 33 motion deferentially and will 7 

### reverse only for abuse of discretion.” United States v. Snype, 441 F.3d 119, 140 (2d Cir. 8 

### 2006). 9 

### Here, the district court correctly concluded that the Erie County laboratory’s 10 

### subsequently revised threshold did not warrant a new trial. On cross-examination at trial, 11 

### Wade’s attorney had elicited from the laboratory’s forensics expert that the 1 in 56,400 12 

### figure was based on a threshold that was “subjective to the laboratory.” SeeUnited States 13 

### v. Wade , 1:09-cr-00260, Doc. 121 at 177. The expert acknowledged that “a laboratory in 14 

### [another city] may have a higher threshold” and that the “[s]ame is true with every other 15 

### laboratory in the country.” Id . at 176-77. Thus, it was clear at the time of Wade’s trial 16 

### that the number of people that could be excluded as a DNA match depended on a 17 

### threshold that was “subjective” rather than scientifically precise, and that varied among 18 

### laboratories. That remains so whether the alternative threshold was one used by a 19 

### different laboratory at the time of Wade’s trial, or one subsequently used by the Erie 20 

### County laboratory. 21


### 4

### Given the other evidence – which included evidence that the gun and drugs had 1 

### been found under the mattress shared by Wade and his girlfriend, and that the DNA was 2 

### definitely not from the girlfriend – and the jury’s awareness that the threshold was 3 

### subjective, we find no abuse of discretion in the district court’s conclusion that evidence 4 

### of the revised threshold was not likely to result in an acquittal. “[H]aving presided over 5 

### the trial, the [district court] is in a better position to decide what effect the newly 6 

### discovered materials might have had on the jury.” United States v. Gambino , 59 F.3d 7 

### 353, 364 (2d Cir.1995). 8 

### 2. Resentencing on Count 4 9 

### While “resentencing should be limited when the Court of Appeals upholds the 10 

### underlying convictions but determines that a sentence has been erroneously imposed and 11 

### remands to correct that error[,] . . . there may be circumstances when we reverse a 12 

### sentence in which the ‘spirit of the mandate’ requires de novo sentencing, for example 13 

### when the reversal effectively undoes the entire ‘knot of calculation.’” Quintieri, 306 F.3d 14 

### at 1228 (emphasis omitted). This may occur when “a sentencing determination had no 15 

### practical effect on a defendant’s sentence at the original sentencing but becomes relevant 16 

### only after appellate review,” in which case “a defendant is free to challenge that 17 

### sentencing determination” even on a limited remand. Id . at 1229-30. 18 

### Wade argues that by not resentencing him on Count 4, the court erroneously 19 

### allowed “the sentence on [C]ount 4 [to] control[] the sentencing range on [C]ount 1 by 20 

### effectively creating a 60 month minimum sentence.” Appellant’s Br. at 19. This 21


### 5

### misconstrues the order in which the district court approached Wade’s resentencing. The 1 

### court first determined that 60 months was the appropriate sentence on Count 1, while 2 

### clearly understanding it had the authority to impose a lesser sentence. It then concluded 3 

### that, as the 60-month sentence on Count 4 would run concurrently with the 60-month 4 

### sentence on Count 1, there was no need to revisit the sentence on Count 4. Because the 5 

### sentence on Count 4 did not affect the overall sentence length on either the original or the 6 

### revised package of sentences, the reduction of the sentences on Counts 1 and 2 did not 7 

### “effectively undo[] the entire ‘knot of calculation.’” Quintieri , 306 F.3d at 1228. We 8 

### therefore conclude that the district court did not err in declining to resentence Wade on 9


### Count 4. 10 

### We have considered all of Wade’s remaining arguments and find them to be 11 

### without merit. Accordingly, the judgment of the district court is AFFIRMED. 12


### FOR THE COURT: 13 

### Catherine O’Hagan Wolfe, Clerk 14 15 16



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