Dеfendant, Robert Hawkins, was indicted on three counts: possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); possession of firearms in the course of a drug-trafficking crime in violation of 18 U.S.C. § 924(c); and possession of a firearm as a felon in violation of 18 U.S.C. § 922(g). At the initial trial, he was convicted on the third count, but á mistrial was declared as to the other counts because the jury was unable to reach a verdict. Defendant was convicted of the first two counts at a subsequent trial.
After sentencing, Hawkins filed motions for a new trial, which were denied. By аn order of this court, defendant’s direct appeal has been consolidated with his appeal from the denial of a motion to vacate sentence made pursuant to 28 U.S.C. § 2255, and the denial of a motion for new trial on the basis of newly discovered evidence. Hawkins now argues that: (1) he was not a felon for the purposes of 18 U.S.C. § 922(g) because his past offense only resulted in probation pursuant to a Michigan statute authorizing “probation without judgment of guilt” for first-time, drug law offenders; (2) evidence confiscated from another man was improperly admitted into evidence at defendant’s trial; (3) evidence discovered after the trial indicates that the govern *172 ment improperly suppressed evidence concerning potential witnesses who could have provided exculpatory information; and (4) the district court wrongly denied the section 2255 motion to vacate defendant’s sentence based upon ineffective assistance of counsel, prosecutorial misconduct, and the illegality of the search warrant for his home. For the reasons that follow, we affirm the judgment of the district court.
I.
For the purposes of this appeal, an abbreviated recitation of the facts will suffice. The government's confidential informant, Randy Ulmer, testified that he and William Clemons went to defendant’s home on May 7, 1989 to purchase cocaine and observed a number of “kilos” in the basement of the residence. According to Ul-mer, he removed several of the kilos for Clemons, and left money that Clemons had brought with him in a paper bag for defendant. On May 9, Ulmer gave this information to Jerome Sharpe, а West Bloomfield (Michigan) Township police officer assigned to the Oakland County Narcotics Enforcement Team. Officer Sharpe secured a search warrant for defendant’s residence based in part on Ulmer’s information; the affidavit for the warrant indicates that the informant told Officer Sharpe that he observed “between two and three hundred kilos” of pre-packaged bricks of cocaine at defendant’s home.
On May 11, Officer Sharpe and other officers executed the search warrant and seized $1.2 million in cash, stored in luggage and an end table, as well as other valuable items and several firearms. Officer Sharpe testified that the officers also found cocaine residue in the containers where the money was located.
On May 22, 1989, Officer Sharpe arrested Clemons after purchasing a kilo of cocaine from him in a deal arranged by Ul-mer. This kilo and its wrapper were introduced at Hawkins’ trial, and Ulmer testified that the wrapping was done in the same manner and using the same material as that used for the kilos he carried from Hawkins’ home оn May 7.
II.
A. Prior Felony
Count III of defendant’s indictment charged that he violated 18 U.S.C. § 922(g)(1) by possessing four firearms while having been “previously convicted of a crime punishable by imprisonment for a term exceeding one (1) year, that is Attempt [sic] Possession of a Controlled Substance.” Section 922(g)(1) states: “It shall be unlawful for any person ... who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ... possess ... any firearm or ammunition....” Defendant argues that there was no evidence establishing that he was previоusly convicted of a crime punishable by imprisonment for more than one year.
The government put into evidence a Michigan court’s order of probation indicating that defendant had been charged with attempted possession of cocaine but was sentenced to probation pursuant to section 333.7411 of the Michigan Compiled Laws, which allows a court to impose “probation without judgment of guilt” for first-time drug law offenders. Defendant was on probation under this statute at the time the federal indictment in the instant case was handеd down. Attempted possession of cocaine is ordinarily punishable by more than one year in prison in Michigan. Therefore, the question before us is whether placing a defendant on probation pursuant to M.C.L. § 333.7411 constitutes a “conviction” for purposes of 18 U.S.C. § 922(g).
Section 333.7411 provides:
When an individual who has not previously been convicted [of a drug crime] pleads guilty to or is found guilty of possession of a controlled substance under [specified Michigan drug laws] ... the court, without entering a judgment of guilt with the consent of the accused, may defer further proceedings and place the individual on probation upon terms and conditions. Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as other *173 wise provided. Upon fulfillment of the terms and conditions, the court shall discharge the individual and dismiss the proceedings. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime....
M.C.L. § 333.7411(1) (emphasis added). Defendant argues that under this provision a person is not “convicted” until or unless there has been a violation of a term of probation and an adjudication of guilt. He argues that the contrary position, adopted by the district court, is “illogical and Kafkaesque,” because under that interpretation the imposition of probation would be considered a conviction during the probation period and yet deemed not to be a conviction at a later time, i.e., upon fulfillment of the terms of probation.
Because we agree with the district court that the placement of аn individual on probation pursuant to M.C.L. § 333.7411 constitutes a conviction for these purposes, we affirm that court’s judgment. In
People v. Preuss,
By its terms, M.C.L. § 333.7411 only applies when an individual “pleads guilty to or is found guilty of” specified statutes banning drug possession and use. As this constitutes a conviction under the rule derived from Preuss, Funk, and M.C.L. § 769.1(1), the evidence that defendant had been put on probation pursuant to section 333.7411 was sufficient to sustain the conviction under 18 U.S.C. § 922(g).
Defendant’s protestations notwithstanding, there is nothing illogical about this interpretation. As we read it, the imposition of probation pursuant to section 333.-7411 requires an initial finding of guilt, and thus a conviction, but provides something akin to expungement if the defendant completes the probation without incident: the individual is discharged and the proсeedings dismissed only “[ujpon fulfillment of the terms and conditions” of probation. Defendant concedes that he had not yet fulfilled the terms of his probation when he was indicted for the federal violations at issue here. There is nothing illogical about providing that a conviction may be expunged or vacated upon the successful completion of probation but not before or unless that occurs.
B. Introduction of Cocaine and Wrapper From Clemons’ Home
At trial, the government introduced both the kilo of cocaine and the wrapper confiscated from Clemons when he was arrestеd during a drug sale to Officer Sharpe on May 22, 1989, eleven days after the search of defendant’s home. When shown this kilo and its wrapper at trial, confidential informant Ulmer testified that it was similar to those he observed and removed from defendant’s home on May 7. Defendant argues that the government failed to connect the kilo or its wrapper to him, and that they should not have been admitted into evidence, as they were not relevant and their probative value was substantially outweighed by their prejudicial effect. Fed. R.Evid. 401-403. He also contеnds that the testimony of Ulmer and Sharpe concerning the arrest of Clemons should have been excluded.
*174 It is unclear from the record whether the defense objected to the introduction of this evidence at trial, or whether objection was made only to the validity of the search warrant for defendant’s home. However, assuming the proper objection was made, we cannot say that admission of this evidence was improper.
We review the trial court’s determination of relevancy for abuse of discretion.
Selden Apаrtments v. United States Dep’t of Housing and Urban Dev.,
Having determined that the evidence was relevant, we must determine whether it should have been excluded under Fed.R.Evid. 403, which provides that relevant evidence “may be excluded if its probative value is substantially outweighеd by the danger of unfair prejudice, confusion of the issues, or misleading the jury....” The district court is granted “very broad” discretion in making this determination.
United States v. Vance,
C. Motion for New Trial Based on Newly Discovered Evidence
Defendаnt appeals from the denial of his motion for a new trial based on newly discovered evidence made pursuant to Fed. R.Crim.P. 33, asserting that (1) the government suppressed the address of his and his wife’s attorney, Alvin Brazzell/Glenn (“Glenn”), who could have testified that the vast amounts of cash and valuables confiscated from defendant’s home and introduced at trial were the result of the $2 million settlement from a personal injury lawsuit, contradicting the government’s theory that there were no legitimate sources of that wealth; (2) the government wrongly failed to disclose unsuccessful attempts to press Edward Hansard, a known drug dealer, to implicate defendant in wrongdoing, and evidence of this pressure would have furthered the defense theory that the government used an informant willing to fabricate a story implicating defendant in drug dealing so that it could confiscate his material wealth; and (3) the government wrongly failed to supply the defense with Clemons’ post-arrest statement that his kilo of cocaine came from someone other than defendant.
*175
Motions for a new trial based on newly discovеred evidence are disfavored, and a trial court’s determination that a new trial is not warranted will not be reversed absent a “clear abuse of discretion.”
United States v. O’Dell,
(1) the new evidence was discovered after the trial;
(2) the evidence could not have been discovered earlier with due diligence;
(3) the evidence is material and pot merely cumulative or impeaching; and
(4) the evidence would likely produce an acquittal.
Id.
(citing
United States v. Barlow,
The district court did not clearly abuse its discretion in refusing to order a new trial based on any of the three reasons put forth by defendant. First, defendant knew of the alleged lawsuit settlement pri- or to trial, and Glenn was not the only witness who could have testified regarding that lawsuit; in fact, the settlement was reached without his involvement. Thus, evidence concerning this lawsuit fails the
O’Dell
test: the settlement was not newly discovered and Glenn’s statement was cumulative in light of defendant’s access to other evidence of the settlement.
United States v. Seago,
Second, the post-trial discovery of Hansard’s statement, that he was offered a deal if he could connect to defendant the $369,000 in cash in Hansard’s possession, does not warrant reversal. Defendant argues that this was exculpatory Brady 2 material because it could have been used to impeach government informant Ulmer by showing that the government was pressing criminals into creating a story implicating defendant in a drug deal in order to confiscate his wealth.
In
O’Dell,
we stated that, in cases involving the suppression of evidence by the prosecution, the' last prong of the four-prong test is modified and the defendant only needs to establish that the evidence is “material.”
To assert successfully that the conviction was obtained with the use of testimony that the prosecution knew was false, the moving party must show that the statements were material, that they were actually false, and that the prosecution knew they were false.
O’Dell,
Therefore, we must determine only whethеr there is a reasonable probability that, had the communication with Hansard been disclosed to the defense, the result of the proceeding would have been different. United States v. White,
Defendant's third basis for asserting he has a right to a new trial is also unpersuasive. As the district court pointed out, Clemons' statement to Officer Sharpe upon arrest, indicating that his cocaine came from a man named Skip, was not newly discovered; the defense was probably aware of the statement because defendant was represented by the same counsel or the same law firm as Clemons. The district сourt also stated that this evidence, even if newly discovered, was not material. Again, defendant has not established that the government knowingly put on false testimony; it had no reason to believe the statement made by Clemons while being arrested rather than the testimony of UI-mer under oath. Therefore, the test for materiality is whether there is a reasonable probability that the result of the trial would have been different had Clemons' statement been disclosed.
Clemons did not testify for the government at defendant's trial, so the only relevance оf the statement would be to cast doubt upon the possible inference that the particular kilo sold by Clemons to Officer Sharpe came from defendant. As discussed earlier, evidence of the connection between the cocaine and wrapper confiscated from Clemons and those seen at defendant's home was not particularly strong, and the inference that this cocaine and wrapper came from defendant was by no means essential to his conviction. Thus, the district court did not clearly abuse its discretion in holding that it is not reasonably probable that the result of the trial would have been different had Clemons' statement been presented to the jury.
D. Motion To Vacate Sentence
Defendant argues that the district court erred in denying his motion to vacate sentence under 28 U.S.C. § 2255, filed after imprisonment following the second trial. Hawkins contends that he was entitled to relief because of ineffective assistance of counsel, prosecutorial misconduct, and the use of an illegal search warrant. We will take these up in reverse order. We note preliminarily that an order denying a motion to vacate will not be reversed unless that order contains "a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.s. 424, 428,
Defendant argues that the district court improperly denied his motion to suppress evidence seized pursuant to the search warrant executed on his home, which was obtained from a Michigan state judge. He argues that the affidavit in support of the application for the search warrant inaccurately states that an investigator for the Wayne County Prosecutor's Office was unable to find any legitimate source, includ- *177 ing a lawsuit, for defendant’s wealth; that confidential informant Ulmer had helped obtain federal indictments in the past; and that Ulmer observed two to three hundred kilos of cocaine in a room protected by a steel door.
None of these complaints provides grounds for reversal. First, the statement that no legitimate sources of defendant’s wealth were found has not been shown to be untruthful, as the investigator reasonably believed that the alleged settlement of defendant’s personal injury lawsuit was part of a scam to launder money. Second, Detective David Bergsma, the Michigan police officer referred to in the warrant, testified that he personally knew Ulmer for eight years, and that, as stated in the warrant application, Ulmer provided information which resulted in levies against individuals in a murdered friend’s drug organization. Therefore, there was an adequate basis for crediting Ulmer’s statements. Finally, the fact that no stеel door or drugs were found in defendant’s home does not make the search warrant invalid. Ulmer admitted at trial that he exaggerated the amount of cocaine he saw, but insisted that what he observed represented more kilos of cocaine than he had ever seen before, and that he believed there was a steel door in defendant’s basement. In
Franks v. Delaware,
[PJrobable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.... [I]t is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Id.
In
Illinois v. Gates,
Defendant’s assertion of prosecutorial misconduct is based on the government’s failure to turn over the post-arrest statement of Clemons, provide infоrmation regarding the personal injury lawsuit, and disclose the fact that Edward Hansard had been pressed to incriminate defendant in illegal activity. However, as we have already discussed, none of this comprised exculpatory Brady . material which the government was obligated to disclose.
Finally, defendant claims that he was the victim of ineffective assistance of counsel at both trials, because his counsel: (1) had been convicted of a misdemeanor for willful failure to pay federal income taxes; (2) failed to object to the admission of the probation order used as evidence of defendant’s past felony conviction for Count III; (3) failed to make a pretrial motion to suppress evidence obtained with the search warrant for his house; (4) failed to discover the identity of the confidential informant prior to trial; (5) failed to investigate or call alibi witnesses; (6) failed to seek discovery in the state forfeiture proceeding of documents that could account for defendant’s wealth; and (7) was in a conflict of interest situation because his firm also represented Clemons.
The test for ineffective аssistance of counsel claims is laid out by the Supreme Court in
Strickland v. Washington,
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed the *178 defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id.
at 687,
However, we will briefly address defendant’s argument concerning his lawyer’s failure to discover the identity of the confidential informant, because defendant asserts that the district court’s reliance on the rule that defendants are not entitled to the names of government witnesses in advance of trial,
United States v. McCullah,
However, while defendant describes an interesting way to attempt to learn the informant’s identity prior to trial, counsel was by no means required to adopt this elaborate course of action in order to meet the level of competence required by the Sixth Amendment. As the Court stated in
Strickland,
“a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”
For these reasons, we are unable to say that the district court’s order denying defendant relief contains “a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsistent with the rudimentary demands of fair procedure.”
Hill,
III.
For the reasons stated above, we affirm the judgment of conviction and the district court’s denial of defendant’s motions to vacate sentence and order a new trial.