United States v. King, Bryant J. , 193 F. App'x 611 ( 2006 )


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  •                             UNPUBLISHED ORDER
    Not to be cited per Circuit Rule 53
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Submitted August 16, 2006*
    Decided August 17, 2006
    Before
    Hon. RICHARD A. POSNER, Circuit Judge
    Hon. MICHAEL S. KANNE, Circuit Judge
    Hon. ILANA DIAMOND ROVNER, Circuit Judge
    No. 05-4239
    UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Northern District of
    Indiana, Fort Wayne Division
    v.
    No. 1:01-CR-12
    BRYANT J. KING,
    Defendant-Appellant.                      William C. Lee,
    Judge.
    ORDER
    In 2002 Bryant King was convicted of distributing methamphetamine, 
    21 U.S.C. § 841
    (a)(1), and sentenced to 262 months’ incarceration. The facts
    underlying his conviction are set out in United States v. King, 
    356 F.3d 774
     (7th Cir.
    2004), in which we affirmed his conviction and sentence. King then filed a
    collateral action under 
    28 U.S.C. § 2255
    , in which he argued that his trial counsel
    was ineffective and that the prosecution withheld exculpatory evidence. The
    district court denied the motion and, after King filed a notice of appeal, declined to
    grant him a certificate of appealability. King failed to pay the required docketing
    *
    After an examination of the briefs and the record, we have concluded that
    oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
    record. See Fed. R. App. P. 34(a)(2).
    No. 05-4239                                                                     Page 2
    fee, and we dismissed his appeal pursuant to Circuit Rule 3(b). See King v. United
    States, No. 05-2543 (7th Cir. Aug. 2, 2005). King then filed the motion for new trial
    at issue in this appeal, see Fed. R. Crim. P. 33(a), (b)(1), based on what he
    characterized as “new evidence” comprised of cell phone records, investigative
    reports authored by federal agents, information about the drug conviction of a third
    party, and correspondence between his trial counsel and the prosecutor. The
    district court denied the motion, reasoning that all of this was either known to King
    before his conviction or immaterial to the case.
    On appeal, King argues first that the district court abused its discretion in
    denying his motion because his evidence was newly discovered and material. We
    begin with the telephone records, which document calls made to and from the cell
    phone of a confidential informant who arranged the transaction that led to King’s
    arrest. These records, he contends, prove that he could not have made calls
    concerning this transaction that at least one witness attributed to him. But King
    bears the burden of showing, among other things, that the evidence “came to his
    knowledge only after trial” and “could not have been discovered sooner had due
    diligence been exercised.” United States v. McGee, 
    408 F.3d 966
    , 979 (7th Cir.
    2005). King based his § 2255 motion in part on an argument that his trial counsel
    was ineffective for failing to enter the informant’s phone records into evidence. In
    support of that argument, he submitted a memorandum which explicitly admits
    that the prosecution gave the records in question to his first appointed counsel. It is
    frivolous to argue that material that was actually disclosed before trial “came to his
    knowledge only after trial.” See id. King would have us ignore the production
    because his first attorney allegedly failed to pass the records on to substitute
    counsel after being relieved. But even if the allegation is true, it is a claim of
    ineffective assistance of counsel. King made a similar argument in his unsuccessful
    § 2255 motion, and he may not use Rule 33 to pursue a successive collateral attack.
    See Melton v. United States, 
    359 F.3d 855
    , 857 (7th Cir. 2004); United States v.
    Evans, 
    224 F.3d 670
    , 673 (7th Cir. 2000).
    Similarly, King asserts that he possesses investigative reports that he
    acquired from the Drug Enforcement Administration after trial using the Freedom
    of Information Act. The district court found that, not only did King have these
    reports before trial, but that he attached copies to a letter he mailed to the court
    and his appointed counsel more than a year before his conviction. King counters
    that he attached local police reports, not the DEA reports, to that letter. King’s
    assertion is dubious at best. He attached copies of the reports he received in
    response to his FOIA request to his Rule 33 motion, and they are (except for more
    extensive redaction) identical to the reports he attached to a pretrial letter to the
    district court. Although he says that the documents attached to his letter are “city
    reports,” he does not show—nor can we discern—any difference between the
    documents other than the broader redaction in the latter set. King was in personal
    No. 05-4239                                                                    Page 3
    possession of copies of these documents, and was aware of their contents before his
    trial concluded. They do not constitute “newly discovered evidence” for purposes of
    Rule 33.
    King also contends that he recently learned about the conviction of Fernando
    Villafana for distributing methamphetamine. The district court, in questioning the
    relevancy of Villafana’s conviction, noted that Villafana had pleaded to “distribution
    activities that occurred on June 11, 2003, almost a full year after King was tried
    and convicted.” King argues, though, that in a new trial evidence of Villafana’s
    conviction would probably lead to his acquittal because it supports his theory that
    he was the victim of entrapment. Because authorities mistakenly believed that he
    knew about Villafana’s methamphetamine distribution, King contends, he was
    entrapped in order to pressure him to betray Villafana’s confidence. The district
    court refused to allow King to present this defense at trial, because he could not
    produce any evidence of entrapment. King bears the burden of showing that the
    newly discovered evidence is material and “would probably lead to an acquittal in
    the event of a retrial.” McGee, 
    408 F.3d at 979
    . We do not see what relevance
    Villafana’s case would have to a defense of entrapment; at most, it could show that
    the authorities had a motive to target him for investigation. In the event of a
    retrial, if King raised an entrapment defense, he would be required to show “two
    related elements: government inducement of the crime, and a lack of predisposition
    on the part of the defendant to engage in the criminal conduct.” Matthews v. United
    States, 
    485 U.S. 58
    , 63 (1988). And evidence that a third party pleaded guilty to
    conduct that occurred well after King’s own trial and conviction would not be
    material to either element.
    Finally, King describes a letter sent by his first counsel to the prosecution
    informing the government of King’s request for cell phone records for the
    confidential informant—apparently the same records he now calls newly discovered
    evidence. He says the letter is evidence that shows that the government’s witnesses
    perjured themselves. But the letter is evidence of nothing; it merely sets out King’s
    request for the phone records. Nor could it be newly discovered, as King’s own
    counsel wrote the letter before his trial began.
    AFFIRMED.