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United States v. Wagner

United States District Court, D. Nevada

January 26, 2017

PAUL WAGNER, Defendant.




         On October 12, 2012, after trial of approximately two weeks, the jury returned a verdict of guilty on all 12 counts remaining in the Superseding Indictment against Defendant Paul Wagner. (ECF No. 122.) On October 19, 2015, Wagner, proceeding pro se, [1] filed a motion for a new trial based on newly discovered evidence, contending that the government failed to disclose Brady and Giglio materials[2] (“Motion”). (ECF No. 235.) The Court permitted additional briefing, including allowing the government to file a rejoinder and Wagner to file a response to the rejoinder (“Response”). (ECF Nos. 249, 258, 260, 268.) For the reasons discussed below, Wagner's Motion is denied.


         Paul Wagner, a home builder, was indicted on one count of conspiracy to commit bank fraud and wire fraud, thirteen counts of bank fraud and three counts of wire fraud. (ECF No. 31.) Five counts (counts 8 through 12) were subsequently dismissed pursuant to the government's motion. (ECF No. 119.) The jury convicted Wagner of the remaining 12 counts for conduct that spanned over the course of two years and involved 85 transactions that affected over 30 lenders. The evidence at trial shows that Wagner inflated the value of the homes he built, utilized appraisers who gave false appraisals to support the sales prices, and offered cash incentives and kickbacks using funds from the loan proceeds to entice straw buyers, real estate agents and others to participate in a fraudulent scheme to allow him to sell his inventory of homes. Wagner then concealed these payments from lenders through payment to his Merrill Lynch account outside of escrow and through the use of third party disbursement companies to make mortgage payments on behalf of the straw buyers.

         Wagner was indicted on July 28, 2010. (ECF No. 8.) Lawrence Semenza commenced representation of Wagner shortly thereafter on September 8, 2010. (ECF No. 16.) Trial commenced on September 25, 2012. (ECF No. 106.) The jury returned a guilty verdict on October 12, 2012. (ECF No. 122.) The Court granted substitution of counsel, terminating Semenza's representation of Wagner on January 1, 2013, before Wagner was sentenced. (ECF No. 142.) Judgment was entered on July 30, 2013. (ECF No. 169.)

         Wagner seeks a new trial under Fed. R. Crim. P. 33(b)(1), discovery and an evidentiary hearing. (ECF No. 235.) The gist of Wagner's argument is that he has recently discovered new evidence that the government had failed to disclose in violation of its obligations under Brady and Giglio.


         A. Motion for a New Trial

         Pursuant to Federal Rule of Criminal Procedure 33(a), “[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Rule 33(b) limits the ground of a motion for a new trial filed after 14 days but within 3 years to newly discovered evidence. The Ninth Circuit Court of Appeals in United States v Harrington, 410 F.3d 598, 601 (9th Cir. 2005), reiterated a five-part legal test to examine a motion for a new trial grounded on newly discovered evidence. See also United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir. 2009) (en banc). Under that test, a defendant is required to show that “(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal.” Harrington, 585 F.3d at 601 (quoting United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir. 1991).

         It is well established that “a defendant seeking a new trial on the basis of newly discovered evidence must show that ‘the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial.” United States v. McKinney, 952 F.2d 333, 335 (9th Cir. 1991) (quoting Pitts v. United States, 263 F.2d 808, 810 (9th Cir.), cert. denied, 360 U.S. 919, (1959). Evidence that could have been obtained at any time or that was disclosed during trial does not satisfy the first factor of the Harrington five-factor test. See Harrington, 410 F.3d at 601 (finding that “photographs and street map [that] could have been obtained at any time” and testimony at a preliminary hearing that were captured on tape which could have been obtained by counsel during trial are not “newly discovered evidence”).

         B. The Government's Obligations under Brady and Giglio

         “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). Under Brady, a prosecutor must disclose evidence that is “material either to guilt or to punishment.” Id. In Giglio v. United States, the Supreme Court extended Brady's disclosure requirement to evidence that may impeach a government witness. Giglio, 405 U.S. 150 (1972). A defendant asserting a Brady/Giglio violation must satisfy three requirements: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.” United States v. Williams, 547 F.3d 1187, 1202 (9th Cir.2008) (quoting Strickler v. Greene, 527 U.S. 263, 281-82, (1999) (internal quotation marks omitted)).

         IV. ...

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