18-3074-cr(L)

U.S. v. Hunter et al.

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2021

Nos. 18-3074-cr (L), 18-3489 (CON), 19-790 (CON) 

UNITED STATES OF AMERICA,

Appellee,

v.

JOSEPH MANUEL HUNTER, AKA SEALED DEFENDANT 1, AKA FRANK 

ROBINSON, AKA JIM RIKER, AKA RAMBO, AKA JOSEPH HUNTER, CARL 

DAVID STILLWELL, AKA DAVID STILLWELL, ADAM SAMIA, AKA SAL,

AKA ADAM SAMIC,

Defendants – Appellants,

MICHAEL FILTER, AKA SEALED DEFENDANT 2, AKA PAUL, TIMOTHY 

VAMVAKIAS, AKA SEALED DEFENDANT 3, AKA TAY, DENNIS GOGEL,

AKA SEALED DEFENDANT 4, AKA DENNIS GOEGEL, AKA NICO,

SLAWOMIR SOBORSKI, AKA SEALED DEFENDANT 5, AKA GERALD,

Defendants.

On Appeal from the United States District Court

for the Southern District of New York
2

ARGUED: MARCH 22, 2022

DECIDED: APRIL 20, 2022

Before: CABRANES, RAGGI, Circuit Judges, and KORMAN, District Judge.1

The initial appeals of Defendants-Appellants Carl David 

Stillwell, Adam Samia, and Joseph Manuel Hunter (together, 

“Defendants”) were interrupted in October 2019, when we became 

aware that the Narcotic and Dangerous Drug Section (“NDDS”) of the 

U.S. Department of Justice had advised this Court that the District 

Court for the Southern District of New York (Ronnie Abrams, Judge) 

had entered a sealed protective order upon the filing of a post-trial, ex 

parte motion by the NDDS, which barred prosecutors in the U.S. 

Attorney’s Office for the Southern District of New York (“SDNY”) and 

defense counsel from reviewing certain classified documents. 

We vacated the District Court’s protective order and ordered 

those documents disclosed to both parties, leading defense counsel to 

argue for the first time on appeal that the prosecution had withheld 

the information in violation of Brady v. Maryland, 373 U.S. 83 (1963). In 

an opinion of January 27, 2021, we remanded the case to the District 

Court with a limited mandate to determine, in the first instance, 

1 Judge Edward R. Korman, of the United States District Court for the 

Eastern District of New York, sitting by designation.
3

“whether any evidence favorable to the Defendants was material, 

suppressed, or both.” United States v. Stillwell, 986 F.3d 196, 201 (2d Cir. 

2021) (“Stillwell”).

On remand, Defendants filed motions for a new trial under Rule 

33 of the Federal Rules of Criminal Procedure, which the District Court 

denied in a December 14, 2021 order, and a redacted version of that 

order was entered December 28, 2021. 

With jurisdiction now restored to us, we turn back to 

Defendants’ initial appeals from their judgments of conviction, and 

address those claims by summary order, entered the same day that this 

opinion is filed. We write separately here to address claims raised by 

Defendants Hunter and Stillwell in appealing the District Court’s Rule 

33 Order. In the unusual circumstances presented by this case, we are 

skeptical of the Government’s argument that the information withheld 

by the NDDS was not “suppressed” within the meaning of Brady. 

Nevertheless, we find that question unnecessary to resolve because we 

conclude that Defendants were not prejudiced by the withheld 

information, and it was therefore not material. Accordingly, we 

AFFIRM the December 14, 2021 order of the District Court denying 

Defendants’ motions under Rule 33. 

REBEKAH DONALESKI (Emil J. Bove III, Sarah 

K. Eddy, on the brief), Assistant United States 

Attorneys, for Damian Williams, United 
4

States Attorney for the Southern District of 

New York, for Appellee.

ROBERT J. BOYLE (Andrew Patel, on the brief), 

New York, NY, for Defendant-Appellant 

Hunter.

ROBERT W. RAY (Brittney M. Edwards, 

Thompson & Knight LLP, on the brief), 

Zeichner Ellman & Krause, LLP, New York, 

NY, for Defendant-Appellant Stillwell.

Aimee W. Brown (Masha G. Hansford, 

Kannon K. Shanmugam, Ethan R. Merel, on 

the brief), Paul, Weiss, Rifkind, Wharton & 

Garrison LLP, Washington D.C. and New 

York, NY, for Defendant-Appellant Samia.

JOSÉ A. CABRANES, Circuit Judge:

The initial appeals of Defendants-Appellants Carl David 

Stillwell, Adam Samia, and Joseph Manuel Hunter (together, 

“Defendants”) were interrupted in October 2019, when we became 

aware that the Narcotic and Dangerous Drug Section (“NDDS”) of the 

U.S. Department of Justice had advised this Court that the District 

Court for the Southern District of New York (Ronnie Abrams, Judge) 

had entered a sealed protective order upon the filing of a post-trial, ex 

parte motion by the NDDS, which barred prosecutors in the U.S. 
5

Attorney’s Office for the Southern District of New York (“SDNY”) and 

defense counsel from reviewing certain classified documents. 

We vacated the District Court’s protective order and ordered 

those documents disclosed to both parties, leading defense counsel to 

argue for the first time on appeal that the prosecution had withheld 

the information in violation of Brady v. Maryland, 373 U.S. 83 (1963). In 

an opinion of January 27, 2021, we remanded the case to the District 

Court with a limited mandate to determine, in the first instance, 

“whether any evidence favorable to the Defendants was material, 

suppressed, or both.”2

On remand, Defendants filed motions for a new trial under Rule 

33 of the Federal Rules of Criminal Procedure, which the District Court 

denied in a December 14, 2021 order, and a redacted version of that 

order was entered December 28, 2021.3

2 United States v. Stillwell, 986 F.3d 196, 201 (2d Cir. 2021) (“Stillwell”). We 

instructed that any further appeals should be returned to our panel. See id. at 202; 

cf. United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994).

3 United States v. Hunter, No. 13-cr-521-RA, ECF 796 (S.D.N.Y. Dec. 28, 2021) 

(“Rule 33 Order”). Prior to this case coming to us on initial appeal, Hunter filed 

post-trial motions pursuant to Federal Rules of Criminal Procedure 29 and 33, 

Stillwell filed a post-trial motion pursuant to Rule 29, and Samia joined those 

motions, all unrelated to Brady, which were all denied by the District Court. See 

United States v. Hunter, No. 13-cr-521-RA, 2018 WL 4961453 (S.D.N.Y. Oct. 15, 2018) 

(“Post-Trial Opinion”). For clarity, we refer to the District Court’s October 15, 2018 

opinion and order denying those motions as its “Post-Trial Opinion,” and we refer 

to the District Court’s December 14, 2021 order denying the Rule 33 motions based 

on Brady claims made following our remand in Stillwell as its “Rule 33 Order.”
6

With jurisdiction now restored to us, we turn back to 

Defendants’ initial appeals from their judgments of conviction, and 

address those claims by summary order, entered the same day that this 

opinion is filed. We write separately here to address claims raised by 

Defendants Hunter and Stillwell in appealing the District Court’s Rule 

33 Order. In the unusual circumstances presented by this case, we are 

skeptical of the Government’s argument that the information withheld 

by the NDDS was not “suppressed” within the meaning of Brady.

Nevertheless, we find that question unnecessary to resolve because we 

conclude that Defendants were not prejudiced by the withheld 

information, and it was therefore not material. Accordingly, we 

AFFIRM the December 14, 2021 order of the District Court denying 

Defendants’ motions under Rule 33. 

I. BACKGROUND

A. Murder-for-Hire and Trial

Paul Calder LeRoux (“LeRoux”) ran a transnational criminal 

organization engaged in money laundering, drug and weapons 

trafficking, and various acts of violence, including murder. The scale 

and variety of his outrageous criminal conduct defies an easy 

summary, and includes arms and technology dealings with Iran and 

North Korea, attempts at minor warlordism in Africa, and the plotting 

of a coup d’état in the Seychelles. As the District Court has aptly 
7

characterized it, he committed “an array of crimes worthy of a James 

Bond villain.”4

In September 2012, the U.S. Drug Enforcement Administration 

(“DEA”) arrested LeRoux in Liberia and he began cooperating with 

authorities. The DEA used LeRoux’s cooperation to target various 

other members of his criminal organization. 

Defendants are among the members of that organization 

arrested by the DEA and jointly tried on five counts: (1) conspiracy to 

commit murder-for-hire, in violation of 18 U.S.C. § 1958(a);5 (2) 

murder-for-hire, in violation of 18 U.S.C. § 1958(a); (3) conspiracy to 

murder and kidnap in a foreign country, in violation of 18 U.S.C. § 

956(a);6 (4) causing death with a firearm during and in relation to a 

4 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 22.

5 “Whoever travels in . . . interstate or foreign commerce, or uses . . . the mail 

or any facility of interstate or foreign commerce, with intent that a murder be 

committed in violation of the laws of any State or the United States as consideration 

for the receipt of, or as consideration for a promise or agreement to pay, anything 

of pecuniary value, or who conspires to do so . . . and if death results, shall be 

punished by death or life imprisonment, or shall be fined not more than $250,000, 

or both.” 18 U.S.C. § 1958(a).

6 “Whoever, within the jurisdiction of the United States, conspires with one 

or more other persons . . . to commit at any place outside the United States an act 

that would constitute the offense of murder [or] kidnapping . . . if committed in the 

special maritime and territorial jurisdiction of the United States shall, if any of the 

conspirators commits an act within the jurisdiction of the United States to effect any 

object of the conspiracy, be punished [by] . . . imprisonment for any term of years 

or for life.” 18 U.S.C. § 956(a).
8

crime of violence, in violation of 18 U.S.C. § 924(j);7 and (5) conspiracy 

to launder money, in violation of 18 U.S.C. § 1956(h).8

In particular, the Government alleged that in late 2011 and early 

2012, Hunter, Samia, and Stillwell conspired to commit murders-forhire, for which purpose they traveled from the U.S. to the Philippines; 

that while there, Hunter provided Samia and Stillwell with “target 

packages” of individuals to kill; and that on February 12, 2012, Samia

and Stillwell shot and killed Catherine Lee, a Filipino real estate 

agent.9

At trial, only Samia (who does not now appeal the District 

Court’s Rule 33 Order) maintained his actual innocence. Hunter and 

Stillwell both admitted involvement in Lee’s murder, but argued that

the Government had failed to establish the jurisdictional element of 

7 “A person who, in the course of a violation of [18 U.S.C. § 924(c)] causes 

the death of a person through the use of a firearm, shall if the killing is a murder

. . . be punished by death or by imprisonment for any term of years or for life.” 18 

U.S.C. § 924(j).

18 U.S.C. § 924(c) provides that “any person who, during and in relation to 

any crime of violence . . . uses or carries a firearm, or who, in furtherance of any 

such crime, possesses a firearm, shall, in addition to the punishment provided for 

such crime of violence[,] . . . if the firearm is discharged, be sentenced to a term of 

imprisonment of not less than 10 years.” 18 U.S.C. § 924(c).

8 “Any person who conspires to commit [a money laundering offense] shall 

be subject to the same penalties as those prescribed for the offense the commission 

of which was the object of the conspiracy.” 18 U.S.C. § 1956(h); see 18 U.S.C. §§

1956(a), 1957(a) (defining relevant money laundering offenses).

9 Joint App’x at 282–83 (Superseding Indictment).
9

the 18 U.S.C. § 956(a) count, by not demonstrating that they had 

engaged in the conspiracy while in the U.S.10

The Government’s case advanced various items of evidence to 

establish the jurisdictional element of that count. In particular, as 

relevant to the arguments made by Hunter and Stillwell in appealing 

the Rule 33 Order, the Government submitted evidence that Hunter 

had flown to the U.S. on Korean Airlines Flight 35 on December 10, 

2011, and that he had met with Stillwell and Samia in North Carolina

later that month. Further, LeRoux testified that a previous statement 

he had made to authorities in 2015 as part of a proffer—that Stillwell 

did not know about the murderous purpose of his trip to the 

Philippines until after leaving the U.S. (the “2015 Statement”)—had 

been a lie. 

Following a jury trial in April 2018, the three Defendants were 

convicted on all counts and sentenced principally to life in prison.11

Defendants timely filed their initial appeals.

10 The parties agreed that Counts 1, 2, and 4 of the indictment were 

predicated on Count 3, the 18 U.S.C. § 956(a) count. Post-Trial Opinion, 2018 WL 

4961453, at *2 n.4. As is relevant to Defendants’ appeal, the District Court instructed 

that in order to sustain a conviction on that count, the Government had to prove 

that a defendant “conspired with one or more members of the conspiracy while that 

defendant was physically present in the United States.” Joint App’x 974 (Trial Tr.

2011:10–13).

11 Hunter was not charged with Count 5. Judgments entered on October 12, 

2018 (Stillwell), November 14, 2018 (Samia), and March 25, 2019 (Hunter).
10

B. Appeal and Remand

We heard oral argument on the initial appeals of Samia and 

Stillwell on October 30, 2019.12

As we described in Stillwell, soon after this, we became aware 

that in October 2018, the NDDS had filed a notice with this Court 

advising us that the District Court had entered a sealed protective 

order in the case barring prosecutors from the U.S. Attorney’s Office 

for the SDNY and defense counsel from reviewing certain classified 

documents. That protective order had been granted pursuant to 

Section 4 of the Classified Information Procedures Act (“CIPA”), 18 

U.S.C. app. 3 §§ 1 et seq., and Federal Rule of Criminal Procedure 

16(d),13 upon the filing of a post-trial ex parte motion by an NDDS 

attorney, with no notice to counsel of record for any of the parties.

12 Hunter’s notice of appeal was filed later, and his case was therefore not 

consolidated with Samia and Stillwell’s until April 30, 2020. On August 11, 2020, 

we ordered a modified briefing schedule as to Hunter, allowing him and his 

counsel additional time to receive and respond to disclosures of previouslywithheld information. As of November 19, 2020, Hunter’s initial appeal was fully 

briefed, and his counsel was able to argue issues related to the Rule 33 Order and

the initial appeal at oral argument before us on March 22, 2022.

13 See 18 U.S.C. app. 3 § 4 (“The court, upon a sufficient showing, may 

authorize the United States to delete specified items of classified information from 

documents to be made available to the defendant through discovery under the 

Federal Rules of Criminal Procedure, to substitute a summary of the information 

for such classified documents, or to substitute a statement admitting relevant facts 

that the classified information would tend to prove. The court may permit the 

United States to make a request for such authorization in the form of a written 

statement to be inspected by the court alone.”); Fed. R. Crim. P. 16(d)(1) (“At any 
11

In Stillwell, we described the complete procedural background, 

including a series of Orders to Show Cause that we subsequently 

issued, and a series of disclosures that followed.14 In short, and as is 

relevant here, we vacated the District Court’s protective order and 

eventually ordered that the withheld information be disclosed, first to 

the U.S. Attorney’s Office for the SDNY, and then to defense counsel.

The supplemental briefing and disclosure we ordered were 

completed—with some delay due to the COVID-19 pandemic—by 

December 2020. At that point, Defendants raised their Brady claims in 

our Court. 

On January 27, 2021, we issued our opinion in Stillwell, 

remanding the case to the District Court to “consider the Brady claims 

in the first instance on an appropriate post-trial motion by 

Defendants” and to “determine whether any evidence favorable to the 

Defendants was material, suppressed, or both.”15

time the court may, for good cause, deny, restrict, or defer discovery or inspection, 

or grant other appropriate relief. The court may permit a party to show good cause 

by a written statement that the court will inspect ex parte. If relief is granted, the 

court must preserve the entire text of the party’s statement under seal.”).

14 See Stillwell, 986 F.3d at 198–99.

15 Id. at 201–02.
12

C. Developments Post-Remand

In the District Court, Defendants submitted motions for a new 

trial under Rule 33, making Brady claims based on the withheld

information. 

On November 18, 2021, the District Court held a classified 

hearing on those motions. 

Defendants referred to the withheld information to advance a 

series of arguments about LeRoux and his role in their trial. Two 

categories of information are relevant to the instant arguments of 

Hunter and Stillwell on appeal. 

First, the withheld information contains what the District Court 

usefully termed “Management and Manipulation Material”—that is, 

evidence that LeRoux was in firm control of his criminal empire and 

that he was willing to deceive, manipulate, and lie in order to advance 

his own interests. 

Many documents tend to show that LeRoux took an active hand 

in managing his organization. For example, LeRoux appears to have 

required certain employees to seek his approval before acting, and 

LeRoux had several in-depth conversations with his associates about 

wire transfers and other means of moving money. Several other 

documents tend to show that LeRoux had a detailed knowledge of 

legal systems and a willingness to manipulate them. For example, 

LeRoux had discussions with his wife about an investigation he was 

then facing in Hong Kong; he mentioned the lawyers he had employed 
13

to deal with that investigation, compared his ability to affect the 

outcome of the investigation in Hong Kong as opposed to the 

Philippines, and talked about the impact that getting a divorce might 

have on the investigation.

Second, a particular document reflects a conversation that 

Stillwell contends is about the disposal of the Lee murder weapon. In 

the communication, LeRoux had a discussion with an unidentified 

man, who told LeRoux that he was “going to throw the candles to the 

river.”16 LeRoux appeared to reply affirmatively, urging him to throw 

“the other steel shit” in the river. 17

The parties also submitted information to the District Court 

about the withheld information itself, including how the government 

came by the information, what governmental entities possessed that 

information, and the relationships between those governmental 

entities and the prosecution of the legal case against Defendants. 

In particular, the Government submitted that the DEA agents 

who possessed the withheld information prior to its disclosure to the 

parties were members of the DEA’s Special Project Section (“DEASPS”), whereas the DEA agents who helped build the case against 

Defendants were members of the DEA’s Bilateral Investigations Unit 

16 Gov’t Br. Ex. B, PC #2012-79691 at 2, United States v. Hunter, No. 13-cr-521-

RA, ECF 764. Unless otherwise noted, “Gov’t Br.” refers to the Government’s 

classified memorandum of law filed in the District Court on April 5, 2021 in 

opposition to Defendants’ Rule 33 motions on remand.

17 Id.
14

(“DEA-BIU”). The Government submitted an affidavit from the 

Assistant Special Agent in Charge of the DEA-SPS explaining that 

while the DEA-SPS and DEA-BIU are both part of the DEA’s Special 

Operations Division [DEA-SOD], they are “separate and distinct” and 

“[p]ersonnel assigned to the [DEA-BIU] were not read on nor given 

access to information available to and collected by personnel assigned 

to the [DEA-SPS]” in this case.18

On December 14, 2021, following its classified hearing, the 

District Court issued its Rule 33 Order denying Defendants’ motions.19

On December 28, 2021, Hunter and Stillwell filed a motion in 

our Court to recall the mandate. They simultaneously moved for us to 

vacate certain counts of conviction in light of the Supreme Court’s 

decision in United States v. Davis20 and to remand for resentencing. 

Also on December 28, 2021, Samia filed a separate motion to 

recall the mandate in which he simultaneously moved to 

unconsolidate his appeal from that of the other two Defendants. 

On January 7, 2022, we denied the motions to recall the mandate 

as moot, noting that the District Court’s Rule 33 Order had 

automatically restored jurisdiction to our panel pursuant to our remand

18 Gov’t Br. Ex. C, at 1–2.

19 Rule 33 Order, No. 13-cr-521-RA, ECF 792, 796.

20 139 S. Ct. 2319 (2019).
15

order in Stillwell.21 We denied Defendants’ motions to vacate and 

remand, and to unconsolidate, without prejudice. With the cause again 

before us, we instructed any Defendants wishing to appeal the District 

Court’s Rule 33 Order to submit supplemental letter briefs addressing 

that issue, and provided a schedule for the parties to respond and 

reply.

That supplemental briefing was completed March 2, 2022, at 

which point all three Defendants’ fully-briefed initial appeals, as well 

as Hunter’s and Stillwell’s appeals from the Rule 33 Order, were all 

pending before our Court. On March 22, 2022 we heard oral argument. 

In a summary order filed the same day as this opinion, we 

address Defendants’ claims in their initial appeals. And we proceed in 

this opinion to examine in particular the claims of Hunter and Stillwell

on appeal of the Rule 33 Order.

II. DISCUSSION

Rule 33 of the Federal Rules of Criminal Procedure provides that 

“[o]n the defendant’s motion, the court may vacate any judgment and 

grant a new trial to that defendant if the interest of justice so 

requires.”22 On such a motion, “[t]he defendant bears the burden of 

proving that he is entitled to a new trial,” and in order to grant a new 

21 See Jacobson, 15 F.3d at 22 (explaining a mechanism for the “automatic 

restoration of appellate jurisdiction” following a remand “seek[ing] 

supplementation of the record”). 

22 Fed. R. Crim. P. 33.
16

trial, “a district court must find that there is a real concern that an 

innocent person may have been convicted.”23

As we have explained, “[w]e review challenges to a district 

court’s denial of a Rule 33 motion for an abuse of discretion and accept 

the district court’s factual findings unless they are clearly erroneous.”24

It is well-established by Brady and related authorities that in a 

criminal prosecution, “the government has an affirmative duty” under 

the Due Process Clause “to disclose favorable evidence known to it, 

even if no specific disclosure request is made by the defense.”25 If this 

obligation is violated, the district court may grant a new trial. That 

said, not all instances of governmental nondisclosure violate Brady, or 

warrant such relief.

.26 “There are three components of a 

true Brady violation: The evidence at issue must be favorable to the 

accused, either because it is exculpatory, or because it is impeaching; 

that evidence must have been suppressed by the State, either willfully 

or inadvertently; and prejudice must have ensued.”27 In other words, 

23 United States v. McCourty, 562 F.3d 458, 475 (2d Cir. 2009) (citation and 

internal quotation marks omitted).

24 Id. (citation and internal quotation marks omitted). 

25 United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995); see generally Brady 

v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972).

26 See United States v. Locascio, 6 F.3d 924, 949 (2d Cir. 1993).

27 Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
17

true Brady material must be (1) favorable, (2) suppressed, and (3) 

prejudicial. 

Before the District Court and on appeal, the parties agree that 

the withheld information was “favorable” and dispute only the second 

and third points. The District Court held that the withheld information 

was neither “suppressed” within the meaning of Brady, nor 

prejudicial, and therefore denied Defendants’ motions. We address 

both of these conclusions, beginning with prejudice.

A. Prejudice 

Under Brady, the prosecution is required to disclose evidence 

“where the evidence is material either to guilt or to punishment.”28 To 

establish “materiality,” a defendant must show that he was prejudiced 

by the prosecution’s failure to disclose.

Evidence is “material” within the meaning of Brady when there 

is a reasonable probability that, had the evidence been disclosed, 

the result of the proceeding would have been different. A 

“reasonable probability” of a different result is one in which the 

suppressed evidence undermines confidence in the outcome of 

the trial. In other words, [Defendants] . . . are entitled to a new 

28 Brady, 373 U.S. at 87 (emphasis added).
18

trial only if they establish the prejudice necessary to satisfy the 

“materiality” inquiry.29

This inquiry presents a mixed question of law and fact.30 “While the 

trial judge's factual conclusions as to the effect of nondisclosure are 

entitled to great weight, we examine the record de novo to determine 

whether the evidence in question is material as a matter of law.”31 We 

conclude that neither Stillwell nor Hunter have met their burden. The 

evidence against both of them at trial, considered next to whatever 

favorable uses they might have had for the withheld information, does 

not permit us to conclude that there is a “reasonable probability” that 

even one juror would have voted to acquit either of them.32

Hunter and Stillwell both argue that the withheld information

would have primarily supplied impeachment evidence against 

LeRoux. Hunter argues, for example, that “the undisclosed 

materials . . . demonstrate that LeRoux was a master at manipulating 

the system,” which, if shown to a jury, would have cast doubt on 

LeRoux’s testimony relevant to establishing the jurisdictional element 

29 Turner v. United States, 137 S. Ct. 1885, 1893 (2017) (alterations, citations, 

and some internal quotation marks omitted); see also Cone v. Bell, 556 U.S. 449, 469–

470 (2009); Strickler, 527 U.S. at 290; United States v. Bagley, 473 U.S. 667, 677 (1985); 

Strickland v. Washington, 466 U.S. 668, 694 (1984).

30 United States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005).

31 Id.

32 Cf. Cone, 556 U.S. at 452 (instructing the district court to determine 

“whether there is a reasonable probability that the withheld evidence would have 

altered at least one juror’s assessment”). 
19

with regard to Hunter.33 Stillwell similarly argues that “the jury at a 

new trial through impeachment [could] conclude that LeRoux” only 

recanted his “2015 Statement” (that Stillwell was unaware of the 

purpose of his trip to the Philippines prior to his departure) in order 

to make himself a more useful government witness.34 In other words,

Stillwell claims the recantation was the actual lie, and this argument 

might have undermined the jurisdictional element of the prosecution’s 

case against him. 

We assess these arguments and the withheld information “in 

light of the entire record,”35 and easily conclude, as the District Court 

did, that there was significant additional evidence against both 

Defendants, such that simply impeaching LeRoux as described would 

not have sufficed to upset the trial verdict. “Where the evidence 

against the defendant is ample or overwhelming, the withheld Brady

material is less likely to be material than if the evidence of guilt is 

thin.”36 Here, substantial other evidence existed to establish the 

jurisdictional elements of the conspiracy charges as to both 

Defendants, and LeRoux was already thoroughly impeached at trial. 

The District Court was therefore correct to deny the Rule 33 motions

on remand. We examine in turn the Defendants’ arguments in the 

33 Hunter Supp. Ltr. Br. 7 & n.4.

34 Stillwell Supp. Ltr. Br. 5.

35 United States v. Rivas, 377 F.3d 195, 199 (2d Cir. 2004).

36 United States v. Gil, 297 F.3d 93, 103 (2d Cir. 2002).
20

context of other evidence presented against them individually, and 

then generally discuss the cumulativeness of impeaching LeRoux.

1. Hunter

As the District Court explained in its Rule 33 Order, “[t]he 

jurisdictional case against Hunter . . . did not rest on . . . LeRoux’s 

testimony.”37 Rather, significant additional evidence established that 

Hunter engaged in the murder conspiracy while in the U.S. 

The Government submitted evidence that Hunter had taken 

Korean Airlines flight 35 to the U.S. on December 10, 2011, and that he 

met with Samia and Stillwell later that month in North Carolina to plot 

murders-for-hire in the Philippines. That evidence included records 

from the Treasury Enforcement Communications Systems (“TECS”) 

database showing Hunter’s name and a Korean Airlines manifest 

indicating Hunter had been on the flight. It also included the 

testimony of a cooperator from LeRoux’s organization, Timothy 

Vamvakias, who testified to receiving a December 2011 call from 

Hunter from a Kentucky area-code. Vamvakias testified that Hunter 

confirmed during the phone call that he was home in Owensboro, 

Kentucky and stated that he was on his way to “Carolina” to meet with 

Samia.38

Defendants argued extensively at trial that Hunter was not on 

the Korean Airlines flight, and that he did not actually attend the 

37 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 14.

38 Joint App’x 768 (Trial Tr. 1209:6–1210:11).
21

December 2011 meeting. Even if we were to accept Hunter’s version of 

the evidence on the December 2011 meeting—which we cannot, given 

the “great weight” afforded the District Court’s factual findings39—the 

Government still presented ample additional evidence to satisfy the

jurisdictional element.

Most critically, even though the parties at trial focused intensely 

on the North Carolina meeting based on its temporal proximity to the 

Lee murder, the Government established that Hunter began 

conspiring with LeRoux to commit murders-for-hire as early as

December 2009. For example, the Government introduced emails from 

December 2009 between a former murder-for-hire leader in the 

LeRoux organization named David Smith, Hunter, and Samia about 

“bonus” jobs.40 It further introduced evidence that in the time between 

December 2009 and December 2011, Hunter remained involved in 

LeRoux’s murder-for-hire conspiracy, eventually replacing Smith in a 

leadership role.41 The Government’s evidence also showed that 

Hunter was in the U.S. at multiple points between then and his trip to 

the Philippines, notably in February 2011.42

39 Madori, 419 F.3d at 169.

40 Gov’t Hunter Supp. App’x 60-61 (GX 400-20); Joint App’x 564 (Trial Tr. 

406:2–407:17)

41 Joint App’x 565 (Trial Tr. 409:17–410:19); 570-71 (Trial Tr. 431:4–8; 432:14–

433:7).

42 Gov’t Hunter Supp. App’x 72 (GX 506), 73 (GX 509); Joint App’x 814 (Trial 

Tr. 1386:7–1390:2).
22

In other words, this was a not a case where the Government’s 

ability to establish the jurisdictional element of Hunter’s murder 

conspiracy charge depended on LeRoux’s testimony about the 

December 2011 meeting. To the contrary, in light of the Government’s 

other evidence there is no reasonable probability that disclosure 

would have caused a different result at trial.

2. Stillwell

Similarly, the District Court concluded in its Rule 33 Order that 

“LeRoux’s testimony at trial was not a critical aspect of the 

government’s case against Stillwell as to the jurisdictional element” of 

the conspiracy charge,43 and we agree. As with Hunter, Stillwell’s 

presence in the U.S. when he conspired to commit murder was 

established by multiple items of evidence.

The government submitted substantial evidence from Stillwell’s 

laptop computer, including a file titled “Hitman,” kept in a folder 

titled “Interesting Stuff,” which contained instructions on how to 

commit murder.44 Those instructions corresponded exactly to the 

manner in which the Lee murder was carried out. These files were 

accessed—if not necessarily opened—in October 2011, prior to 

43 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 18 (brackets omitted) 

(quoting Post-Trial Opinion, 2018 WL 4961453, at *6 n.17).

44 Joint App’x 695 (Trial Tr. 921:23–25), 702 (Trial Tr. 948:4–950:19).
23

Stillwell’s and Samia’s departure from the U.S. for the Philippines.45

Stillwell then brought the laptop with him to the Philippines and the 

files were accessed again in February 2012, days before Lee was killed. 

The Government also provided evidence that Stillwell and 

Samia worked together closely while in the U.S. to prepare for their 

Philippines trip. This included evidence of a phone call between them 

on September 30, 2011, the same day Samia paid for Stillwell to apply

for a passport for the first time in his life. It also included email traffic 

between Samia, Hunter, and LeRoux, discussing the timing of the 

Philippines trip in the context of when Samia’s “partner” would be 

“ready” for the two of them to “come [to the Philippines] together for 

[n]inja stuff.”46 Stillwell essentially argues that he and Samia engaged 

in this extensive joint preparation for the Philippines, but Samia kept 

him completely in the dark as to the real reason for the trip, viz., to 

commit murder. In light of the evidence, and considering that Samia 

and Stillwell had known each other for more than seven years and 

worked closely together before, there is not a reasonable probability 

that disclosure before trial would have produced a different result. 

45 Supp. App’x 306 (GX N226-28), 308 (GX N226-30); Joint App’x 696 (Trial 

Tr. 923:25–924:17); see also id. at 717 (Trial Tr. 1009:8–17) (containing testimony that 

the files may not have been opened).

46 Supp. App’x 103 (GX 400-46); Joint App’x 576 (Tr. 454:24–455:10).

Testimony on the record revealed that “ninja stuff” was a euphemism used by the 

conspirators to mean murder-for-hire work. Joint App’x 761 (Tr. 1182:4–1183:1). 
24

3. Impeaching LeRoux

As a general matter, the withheld information was nonprejudicial not only because other evidence existed to establish the 

jurisdictional elements of Hunter and Stillwell’s crimes, but also 

because significant impeachment evidence against LeRoux already 

existed at trial, where he was extensively impeached. In other words, 

impeachment based on the withheld information would have been 

cumulative.47

As we have previously explained specifically with regard to 

withheld impeachment evidence, “a new trial is generally not required 

when the testimony of the witness is corroborated by other testimony, 

or when the suppressed impeachment evidence merely furnishes an 

additional basis on which to impeach a witness whose credibility has 

already been shown to be questionable.”48 In LeRoux’s case, the 

evidence at trial left little doubt that he was untrustworthy. For 

example, the “2015 Statement”—and LeRoux’s recantation of it—was 

the subject of close cross-examination by attorneys for several of the

Defendants.49

Attorneys for the Government and several Defendants also 

cross-examined LeRoux about his vast international criminal 

47 See United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998) 

(“[U]ndisclosed evidence may be cumulative, and hence not material.”).

48 Payne, 63 F.3d at 1210 (citation and internal quotation marks omitted).

49 Joint App’x 611–12 (Trial Tr. 594:21–597:7), 620-21(628:22–629:21)
25

organization. During the course of that testimony, LeRoux admitted to 

a host of deceitful and manipulative acts, including murdering a 

witness; framing individuals for crimes they did not commit; bribing 

multiple foreign authorities, including a judge; and attempting to 

secure diplomatic privileges for himself by supporting a coup in the 

Seychelles. And all of this is to say nothing of the litany of generally 

violent and nefarious acts to which he also admitted, including 

arranging for numerous other murders; personally committing 

murder; extensive trafficking in weapons and narcotics; and dealing 

in weapons with Iran and North Korea. Hunter and Stillwell would 

have us believe that additional evidence merely demonstrating that 

LeRoux was a liar, manipulative, or a perjurer would somehow have 

been the straw that broke the camel’s back with the jury—finally 

causing them to distrust Paul LeRoux. We are unpersuaded.50

50 Our conclusion is unaltered by Stillwell’s argument that the withheld 

information would have shown that LeRoux perjured himself at trial. Stillwell 

refers to an instance where an unidentified person tells LeRoux that he will “throw 

the candles to the river.” Gov’t Br. Ex. B, PC #2012-79691, at 2. LeRoux agrees, and 

urges his interlocutor to throw “the other steel shit” in the river. Id. Stillwell claims 

that LeRoux and his interlocutor are discussing the disposal of the Lee murder 

weapon, that LeRoux therefore perjured himself when he testified at trial that the 

weapon was returned to a warehouse, and that the nondisclosure prejudiced 

Stillwell by preventing him from making this argument to the jury. 

We disagree. Stillwell’s argument under Brady requires multiple 

assumptions, including that the word “candles” as used in the communication 

meant guns and that the guns at issue included the Lee murder weapon. This, 

despite the fact there was no concrete connection between LeRoux’s interlocutor 

and the Lee murder, and three months had elapsed between the Lee murder and 

the communication. LeRoux’s criminal network and dealings were extensive. The 
26

In sum, we recall that, “strictly speaking, there is never a real 

‘Brady violation’ unless the nondisclosure was so serious that there is 

a reasonable probability that the suppressed evidence would have 

produced a different verdict.”51 The withheld information would not 

have produced a different verdict here, it was not “material” under 

Brady, and the District Court on remand was right to deny Defendants’ 

Rule 33 motions.

B. Suppression 

Because we have determined that the withheld information was 

not “material,” we need not determine whether it was “suppressed” 

in order to decide this appeal.52 Still, because the District Court 

concluded that Defendants established neither materiality nor 

suppression, we briefly examine the latter conclusion.53

assumptions required to make this communication relevant to the Lee murder and 

Stillwell’s case are not particularly persuasive, especially when taken together.

51 See Strickler, 527 U.S. at 281; United States v. Coppa, 267 F.3d 132, 140 (2d 

Cir. 2001).

52 See, e.g., United States v. Gonzalez, 110 F.3d 936, 944 (2d Cir. 1997) (“We 

need not decide whether or not the evidence was suppressed, however, because we 

believe, in any event, that the evidence was not material.”). 

53 Rule 33 Order, No. 13-cr-521-RA, ECF 796, at 33 (“Defendants have failed 

to demonstrate the suppression of evidence or materiality necessary to establish a 

Brady violation.”). 
27

“The Brady obligation extends only to material evidence . . . that 

is known to the prosecutor.”54 Because “the prosecution . . . alone can 

know what is undisclosed,” it “must be assigned the consequent 

responsibility to gauge the likely net effect of [undisclosed] evidence 

and make disclosure when the point of ‘reasonable probability’ is 

reached.”55 In other words, the onus is naturally on the prosecutor to 

determine what must be disclosed. The Supreme Court has thus

counseled several times that “the prudent prosecutor will resolve 

doubtful questions in favor of disclosure.”56

Moreover, as the Supreme Court explained in Kyles v. Whitley,57

the fact that the prosecutor has a monopoly on potentially material 

information prior to its disclosure imposes a further burden: “the 

individual prosecutor has a duty to learn of any favorable evidence 

known to the others acting on the government’s behalf in the case, 

including the police.”58

But who is “acting on the government’s behalf” in a case? 

Indeed, we have previously observed that answering this question 

54 Avellino, 136 F.3d at 255 (emphasis added).

55 Kyles v. Whitley, 514 U.S. 419, 437 (1995).

56 United States v. Agurs, 427 U.S. 97, 108 (1976); see also Kyles, 514 U.S. at 439

(“[A] prosecutor anxious about tacking too close to the wind will disclose a 

favorable piece of evidence.”); Bagley, 473 U.S. at 711 n.4 (Stevens, J. dissenting)

(quoting Agurs).

57 514 U.S. 419.

58 Id. at 437.
28

defies “a broad, categorial approach,” and instead requires us to 

“examin[e] the specific circumstances of the person alleged to be an 

‘arm of the prosecutor,’”59 or, as we have also articulated it, part of the 

“prosecution team.”60

We have long rejected the notion that “knowledge of any part of 

the government is equivalent to knowledge on the part of th[e] 

prosecutor.”61 And this circumscription on the Kyles duty is ultimately 

grounded in a prudential concern:

[K]nowledge on the part of persons employed by a different 

office of the government does not in all instances warrant the 

imputation of knowledge to the prosecutor, for the imposition 

of an unlimited duty on a prosecutor to inquire of other offices 

not working with the prosecutor’s office on the case in question 

would inappropriately require us to adopt “a monolithic view 

of government” that would “condemn the prosecution of 

criminal cases to a state of paralysis.”62

59 United States v. Stewart, 433 F.3d 273, 298 (2d Cir. 2006) (quoting United 

States v. Morell, 524 F.2d 550, 555 (2d Cir.1975)).

60 Stewart, 433 F.3d at 298; Locascio, 6 F.3d at 948; see also Morell, 524 F.2d at

557 (2d Cir. 1975) (Friendly, J., concurring in part).

61 United States v. Quinn, 445 F.2d 940, 944 (2d Cir. 1971) (record citation 

omitted), cert. denied, 404 U.S. 850 (1971); accord Locascio, 6 F.3d at 949 (“[W]e will 

not infer the prosecutors’ knowledge simply because some other government agents 

knew about the [information in question].” (emphasis added)).

62 Avellino, 136 F.3d at 255 (quoting United States v. Gambino, 835 F. Supp. 74, 

95 (E.D.N.Y. 1993), aff’d, 59 F.3d 353 (2d Cir. 1995), cert. denied, 517 U.S. 1187 (1996)).
29

Thus, while a prosecutor has a duty under Kyles to learn information 

when that information is possessed by others on the “prosecution 

team,” undisclosed information that is not known to anyone on that 

team does not give rise to a Brady violation.63

We have also made clear that the imputation of knowledge to 

the prosecutor “does not turn on the status of the person with actual 

knowledge, such as a law enforcement officer, prosecutor or other 

government official. In other words, the relevant inquiry is what the 

person did, not who the person is.”64

We discussed this point in United States v. Locascio,65 a case in 

which a team of prosecutors in the U.S. Attorney’s Office for the 

Eastern District of New York (“EDNY”) entered into a plea bargain 

with Salvatore Gravano, the consigliere of the Gambino crime family 

and a cooperator. In his plea, he stated that he had admitted to all the 

crimes he had committed. Gravano subsequently testified at the trial 

of Gambino crime family “boss” John Gotti and “underboss” Frank 

Locascio. 

FBI reports prepared by agents working in another district 

contained evidence that Gravano had, in fact, committed other crimes, 

in addition to those to which he had confessed. The work of those 

63 See, e.g., Locascio, 6 F.3d at 949 (declining to find a Brady violation where, 

“[e]ven assuming the reports’ materiality, there [wa]s no evidence that the 

prosecution team in the instant case was aware of the reports . . . .”).

64 Stewart, 433 F.3d at 298.

65 6 F.3d 924.
30

agents and the existence of their reports were entirely unknown to the 

EDNY prosecution team throughout their prosecution of Gotti and 

Locascio. After sentencing, an EDNY prosecutor encountered the 

reports, confirmed no one on his prosecution team had been aware of 

them, and disclosed them to counsel for Gotti and Locascio. They then

filed a motion for a new trial, arguing that the government had 

suppressed favorable, material information in violation of Brady. We 

affirmed the district court’s denial of that motion because “there [was] 

no evidence that the prosecution team . . . was aware of the reports that 

ha[d] subsequently come to light.”66

The District Court here, relying in part on Locasio, held that this 

was the sort of situation that faced the SDNY U.S. Attorney’s Office.

Indeed, we understand the position of the SDNY prosecutors, and also 

their frustration—the protective order sought and obtained by the 

Washington-based NDDS from the District Court specifically barred

the disclosure of the withheld information to prosecutors from that 

office. 

The harder question, however, is whether the NDDS—and the 

DEA agents in the DEA-SPS who possessed the undisclosed 

information—should themselves be considered part of the prosecution 

team, SDNY’s position to the contrary notwithstanding. 

We disagree with Defendants’ suggestion that the question 

should be answered in the affirmative because “the DEA-BIU . . . and 

66 Locascio, 6 F.3d at 949.
31

the DEA-SPS . . . are part of the same subdivision of the DEA, i.e.[,] the 

DEA-SOD.”67 This “bureaucratic proximity” argument may be 

relevant in other circumstances, but as a general matter, and as applied 

in this case, it tells us little about the actual relationship between the 

prosecutors on the one hand, and the agencies, divisions, and

subdivisions at issue, on the other.68 Relying solely on bureaucratic 

proximity would ultimately undercut our clear pronouncement in 

Stewart that “the relevant inquiry is what the person did, not who the 

person is.”69

However, Stewart simultaneously informs our skepticism that

the withheld material was not “suppressed.” If we are to look at what 

the DEA-SPS and attorneys from the NDDS actually did, then we 

should start—most obviously—with their decision to approach the 

District Court and seek a protective order for their withheld 

information. 

Limiting disclosure obligations to the “prosecution team” 

prudently prevents a prosecutor from needing to search the “wholeof-government” for possibly material information in myriad cases and 

controversies before the courts. Such an obligation would clearly be an 

unworkable encumbrance on the system of justice. Whether an item of 

67 Hunter Supp. Ltr. Br. 5–6 (emphasis omitted).

68 Cf. Quinn, 445 F.2d at 944 (rejecting an argument for the imputation of 

knowledge based on departmental commonality and noting that the “Department 

of Justice alone has thousands of employees in the fifty States of the Union”). 

69 433 F.3d at 298.
32

information is material is the sort of thing a member of the 

“prosecution team” can (and must) know—not the sort of thing a farflung member of the executive branch can (or can be expected to) 

know. Here, though, such concerns about the NDDS’s ability to 

determine its own relevance, and that of the information in the DEASPS’s possession, are not present, because it was the NDDS that 

approached the court. Unexpected and unbidden, they—in effect—

proclaimed their relevance. And despite that, they then asked the 

courts to approve their nondisclosure. Clearly someone at NDDS 

thought they or their information might be relevant in the case 

pending in the SDNY, or they would not have thought to come to the 

District Court (or us) ex parte and in camera at all. 

In this published opinion, we express our doubt that the 

NDDS—or any similarly-situated organ of the executive branch, for 

that matter—having stepped out of the shadows at least to the extent 

of asking the judiciary to bless its act of nondisclosure, even from local 

prosecutors and agents in the case, could then successfully draw a 

curtain of secrecy over “evidence . . . material either to guilt or to 

punishment” by invoking our Brady jurisprudence.

To the extent filings and arguments before the District Court 

suggest that the NDDS, in the normal course of its business, seeks 

protective orders such as the one at issue here, we are troubled. By 

contrast, we were encouraged to learn from SDNY prosecutors at the 

most recent oral argument in our Court on this matter that our 

message of concern “has been delivered both to the Department of 

Justice and to the NDDS by the executive leadership” of the SDNY, 
33

and that “the message has been received.” Oral Arg. at 48:20-40. As we 

suggested in Stillwell and re-affirm here, we strongly question

whether—had the withheld information been material—our 

jurisprudence circumscribing the “prosecution team” would have 

been adequate to protect Defendants’ rights in the circumstances 

presented here.70

Ultimately, however, we raise this question only by way of 

caveat. It is clearly not necessary for us to answer this question today. 

Because we have firmly concluded that the withheld information was 

not prejudicial, it was not “material” information under Brady, and we 

are able to affirm the District Court’s Rule 33 Order on that basis.

70 This is not the first time our court and district courts in this circuit have 

raised such concern. See United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir. 1997) 

(“The extent to which knowledge may be imputed from one federal investigative 

agency to another for Brady purposes is as yet unclear.”); see also United States v. 

Morgan, 302 F.R.D. 300, 304 (S.D.N.Y. 2014) (“There is no clear test to determine 

whether or not an individual or agency is a member of the prosecution team.”); 

United States v. Meregildo, 920 F. Supp. 2d 434, 441 (S.D.N.Y. 2013) (same); United 

States v. Bin Laden, 397 F. Supp. 2d 434, 484 (S.D.N.Y. 2013) (noting the Second 

Circuit is “lacking a clearly articulated imputation test”); Chandras v. McGinnis, No. 

01 Civ. 2519(LBS), 2002 WL 31946711, at *7 (E.D.N.Y. Nov. 13, 2002) (“[T]he exact 

point at which government agents can fairly be categorized as acting on behalf of 

the prosecution . . . is uncertain.”). One has only to imagine the information in 

NDDS’s possession being actually exculpatory rather than cumulatively 

impeaching to bring this concern into sharp relief. 
34

III. CONCLUSION

To summarize: 

1. We hold that the withheld information was not 

prejudicial, and it was therefore not “material” 

information under Brady.

2. We AFFIRM the District Court’s December 14, 2021 order 

denying Defendants’ Rule 33 motions for a new trial.

3. The cause is REMANDED for resentencing, pursuant to 

the summary order entered the same day this opinion is 

filed, for reasons explained in that summary order.