USA v. Andre Barbary

Filing

Opinion issued by court as to Appellant Andre D. Barbary in 16-11163, Appellant Monica I. Lewis in 16-11491. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions. [16-11163, 16-11491]

Case: 16-11163

Date Filed: 02/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11163
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cr-60011-RNS-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE D. BARBARY,
Defendant-Appellant.
________________________
No. 16-11491
Non-Argument Calendar
________________________
D.C. Docket No. 0:12-cr-60011-RNS-9

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Date Filed: 02/23/2017

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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONICA I. LEWIS,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(February 23, 2017)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
In these consolidated appeals, defendant-appellants Andre Barbary and
Monica Lewis, proceeding pro se, challenge the district court’s denial of their
motions for new trial filed pursuant to Federal Rule of Criminal Procedure Rule
33.
In November 2012, a jury convicted defendants Barbary and Lewis and two
other codefendants of conspiracy to possess and distribute cocaine and oxycodone
and conspiracy to use a communication facility to commit a felony. According to
the trial evidence, which included wiretap evidence and the testimony of several
coconspirators, for twelve years Barbary was the leader of an interstate drug

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trafficking organization distributing large quantities of narcotics, including cocaine
and oxycodone, within Florida and to other states such as South Carolina,
Alabama, and Massachusetts. Lewis was one of the members of the conspiracy
who transported drugs and drugs proceeds for Barbary. The district court
sentenced Barbary to a total 240 months’ imprisonment and Lewis to a total 90
months’ imprisonment. This Court affirmed Barbary and Lewis’s convictions on
direct appeal. See United States v. Holt, 777 F.3d 1234 (11th Cir. 2015).
In October 2015, defendant Barbary filed his pro se Rule 33 motion for a
new trial based on newly discovered evidence and prosecutorial misconduct, citing
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Defendant Lewis filed her
own pro se Rule 33 motion adopting Barbary’s Rule 33 motion. The district court
denied both Rule 33 motions in a single order, concluding that: (1) the defendants
had not shown due diligence in failing to obtain the new evidence before trial; (2)
the evidence was merely impeaching; and (3) the evidence would not have altered
the jury’s guilty verdict. After review, we affirm. 1
I.

NEWLY DISCOVERED EVIDENCE

The district court did not abuse its discretion in denying defendants
Barbary’s and Lewis’s Rule 33 motions for a new trial based on newly discovered
evidence. To merit a new trial, a defendant must show that: (1) the evidence was
1

We review the district court’s disposition of a motion for new trial for an abuse of
discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985).
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in fact discovered following trial; (2) the defendant exercised due care to discover
the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the
evidence is material; and (5) the evidence is of such a nature that a new trial would
probably produce a different result. United States v. Lee, 68 F.3d 1267, 1273 (11th
Cir. 1995). The defendant must satisfy all of these elements to warrant relief.
United States v. Williams, 816 F.2d 1527, 1530 (11th Cir. 1987).
The new evidence attached to defendant Barbary’s Rule 33 motion consisted
of documents obtained from the Miramar Police Department in response to a postjudgment open records request. Most of the documents pertained either to (1)
Lamar Bennett, one of the coconspirators who testified for the government at
Barbary and Lewis’s trial; or (2) the Drug Enforcement Agency’s (“DEA”)
investigation of the drug conspiracy from February 2010 to January 2012.
Relevant to this appeal, the documents included: (1) initial and supplemental
reports by the Miramar Police Department officers about the 2009 arrest and
investigation of Lamar Bennett and his brother Brendan for sale/manufacture of
OxyContin and transcripts of the Bennett brothers’ post-arrest interviews (Exhibits
1 and A-1); (2) a May 12, 2010 DEA case status report indicating that “due to
other priority enforcement operations, proactive measures to obtain information
regarding Andre Barbary and his associates have been limited in nature,” but that
the “case will remain open in active status” (Exhibit O); (3) a September 28, 2011
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DEA investigation report regarding aerial surveillance of Barbary as he drove
around Opa Locka, Florida on September 27, 2011 (Exhibit S); and (4) a January
19, 2012 DEA investigation report of the arrest and search of Barbary on January
13, 2012, including a summary of his post-arrest statements to investigators
(Exhibit DRE).
The supplemental police reports from the Miramar Police Department do not
warrant a new trial. These supplemental police reports contained no new
information, as they only reiterate what defendants Barbary and Lewis already
knew at the time of trial, namely that Bennett had a prior criminal record of drug
dealing. Indeed, Bennett testified at trial that he had been selling drugs since 1995
and that he had been arrested several times for, among other things, possession of
drugs and had served time in prison from 1996 to 2000. Furthermore, defendants
Barbary and Lewis themselves argued in their Rule 33 motions only that the
supplemental police reports showed that Bennett “was unreliable.” However,
during the trial, Barbary, Lewis and their co-defendants repeatedly used Bennett’s
history of drug dealing, including Bennett’s multiple prior arrests and convictions,
to impeach him. Accordingly, the supplemental police reports were merely
cumulative and impeaching.
Perhaps more importantly, defendants Barbary and Lewis already knew that
Bennett’s criminal history included a 2009 arrest by the Miramar Police
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Department for OxyContin possession. Specifically, approximately ten months
before trial, the government produced to the defendants the initial
Incident/Investigation report indicating that Bennett and his brother Brendan were
arrested by the Miramar Police Department in March 2009 after Bennett was found
to possess 286 OxyContin pills. Defendants Barbary and Lewis have not explained
why with due diligence they could not have discovered the Miramar Police
Department’s supplemental reports and interview transcripts before trial.
As to Exhibit O, the DEA case status report, defendants Barbary and Lewis
have not demonstrated that this evidence was material to the issues at trial or that
its admission in a new trial would have resulted in a different outcome. See Lee,
68 F.3d at 1273. Exhibit O shows that the DEA’s two-year investigation into
Barbary’s drug trafficking organization, which began in February 2010, was
“limited in nature” in May 2010. Trial testimony showed, however, that
defendants Barbary and Lewis and the agents investigating them were active at
many times before and after May 2010, and there is no evidence in the record that
the DEA’s investigation at large was somehow compromised or tainted by a pause
in the investigators’ work.
Importantly, nothing in the supplemental police reports or Exhibit O calls
into question Bennett’s trial testimony that defendants Barbary and Lewis were
both involved in an extensive drug trafficking organization. Nor does any of the
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information in these documents call into question the wiretap application and the
affidavit in support prepared by Special Agent Amber Sargent, which was
premised largely on information provided by confidential informants, cooperating
defendants, and investigators conducting surveillance, traffic stops, and searches of
coconspirators. 2
For these reasons, the district court did not abuse its discretion in denying
defendants Barbary’s and Lewis’s Rule 33 motions based on newly discovered
evidence. Moreover, because the new evidence Barbary and Lewis presented to
the district court was, on its face, cumulative, impeaching, and immaterial to the
issue at trial, and its introduction would not have resulted in a different outcome,
the district court in this instance was not required to first hold an evidentiary
hearing. See United States v. Culliver, 17 F.3d 349, 350-51 (11th Cir. 1994).
II. BRADY CLAIM
As to their Brady claim, defendants Barbary and Lewis argue that the
government concealed Exhibit O, the May 2010 DEA case status report, and that
Exhibit O shows that Special Agent Sargent’s affidavit in support of the wiretap

2

Defendants did not address Exhibits S and DRE in their initial briefs, and thus
abandoned any argument as to them. See United States v. Cunningham, 161 F.3d 1343, 1344
(11th Cir. 1998). In any event, these documents do not warrant a new trial. Exhibit S
summarizes surveillance of Barbary on September 27, 2011, but the government did not
introduce any testimony regarding Barbary’s conduct on that date. Exhibit DRE summarizes
Barbary’s January 2012 post-arrest statements, in which he merely made clear that he was not
willing to cooperate and denied any involvement in a drug conspiracy. Neither document would
likely have produced a different result at trial.
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application contained “deliberate omission and falsehood” as to the necessity of the
wiretap.3
To prevail on a Brady claim, a defendant must establish three elements: (1)
the evidence is favorable to the defendant because it is exculpatory or impeaching;
(2) the government suppressed the evidence; and (3) the evidence is material so as
to establish prejudice. United States v. Naranjo, 634 F.3d 1198, 1212 (11th Cir.
2011). Nondisclosed evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceedings
would have been different. United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir.
1994). A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome. United States v. Brester, 786 F.3d 1335, 1339 (11th
Cir. 2015).
The district court did not abuse its discretion in denying the defendants’
Rule 33 motions based on Brady. Neither defendant has met the three elements
necessary to prevail on a Brady claim. Even assuming arguendo that the
government suppressed Exhibit O, the defendants have not established how that
evidence is material, as discussed above. There is not a “reasonable probability”
that Exhibit O undermines either the evidence presented at trial or Special Agent

3

With respect to their Brady claim, the defendants argue only that the government
suppressed Exhibit O. Thus, in reviewing this claim, we do not address any of the other
documents attached to Barbary’s Rule 33 motion. See Cunningham, 161 F.3d at 1344.
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Sargent’s wiretap affidavit to such an extent (if at all) that a new trial would
produce a different result. See Brester, 786 F.3d at 1339.
Contrary to the defendants’ claims, Exhibit O does not reveal any false
statements or omissions in Special Agent Sargent’s wiretap affidavit. Special
Agent Sargent’s 111-page affidavit was prepared in August 2011, more than a year
after the May 2010 case status report. The affidavit outlined in extensive detail the
DEA’s efforts to investigate Barbary’s drug trafficking organization over the
preceding 18 months. Importantly, Special Agent Sargent’s summary of the
investigation is consistent with Exhibit O in that she reports investigatory
developments in March 2010 and then in June and September 2010, but does not
report any developments in April or May 2010. The affidavit further recounts
numerous developments in the investigation between January and July 2011.
Thus, Special Agent Sargent’s affidavit does not conflict with Exhibit O, which
shows that the DEA investigation was “limited in nature” in May 2010, but
remained open and active.
As to necessity, Special Agent Sargent’s affidavit explained that
investigators had used confidential informants, but had been unable to make
controlled purchases from the Barbary organization, and, even if they had been
successful, these purchases would not have resulted in the identification of all of
the organization’s members or their method of operation. Further, Special Agent
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Sargent asserted that physical surveillance had met with limited success because of
evasion and counter-surveillance, and that trash pulls would be difficult because
law enforcement agents would be identified as outsiders in the neighborhoods
where the targets resided, and would be of limited use in explaining the large scale
interstate nature of the organization. As to search warrants, the affidavit explained
that there was insufficient evidence to search a number of organization members’
residences, and there was a risk that executing search warrants at some locations
would result in the destruction of evidence at others. The affidavit also explained
the inadequacy of other methods, such as the use of asset seizures, undercover
agents, toll and pen register analysis, grand jury subpoenas, interviews and arrest
warrants.
Nothing in Exhibit O contradicts Special Agent Sargent’s averments about
the need for a wiretap in any way. Exhibit O, and indeed all of the newly
discovered evidence attached to Barbary’s motion, does not undermine the wiretap
application, the wiretap evidence introduced at trial, or the testimony of multiple
coconspirators, all of whom tied defendants Barbary and Lewis to the drug
conspiracy for which they were convicted and sentenced. In sum, the district court
properly denied the defendants’ Rule 33 motions based on Brady because Exhibit
O, even if undisclosed, was not material so as to establish prejudice.
AFFIRMED.
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