No. 19-2946 ___________________________

United States of America

Plaintiff - Appellee

v.

Jack Albert Chappell

Defendant - Appellant ____________

Appeal from United States District Court for the District of North Dakota - Bismarck ____________

Submitted: October 21, 2020 Filed: March 10, 2021 ____________

Before COLLOTON, GRASZ, and STRAS, Circuit Judges. ____________ GRASZ, Circuit Judge. Jack Albert Chappell appeals the district court’s 1 denial of his request for a new trial based on newly discovered evidence, a related Brady challenge, and his request for a lighter sentence. We affirm.

I. Background

After a four-day trial, a jury found Chappell guilty of conspiring to launder money and conspiring to distribute and possess with intent to distribute a controlled substance. On day one, Chappell’s counsel asked the district court to drug test Leslee Ball, an unindicted coconspirator and expected government witness. Chappell’s counsel believed that Ball “continu[ed] to use pretty significant narcotics” and alleged that “she had a drug overdose about three or four days ago.” The district court declined to drug test her, but stated it planned to assess her competence to testify, state of mind, and sobriety by listening to her testimony. It also reminded Chappell’s counsel that he could cross-examine her.

On day three, Ball testified. Chappell’s counsel and the district court asked about her substance use. Ball told the jury that she received treatment for alcoholism two years before trial but eventually relapsed. She also testified about sporadic methamphetamine use, starting years before trial, but described herself as “more of a drinker” than a methamphetamine user. No one asked her about any recent substance use in the weeks, days, or hours before she testified. After the district court asked its own questions, both parties declined a second chance to question Ball.

While in custody before sentencing, Chappell spoke to Ball multiple times. In one recorded call, the pair discussed a conversation between Ball and the government about a drug test. Soon after, Ball allegedly contacted Chappell’s

1 The Honorable Daniel L. Hovland, then Chief Judge, now United States District Judge for the District of North Dakota.

-2- counsel, stating that: (1) before testifying, she told the government that she could not pass a drug test; and (2) she testified against Chappell while drunk and high.

Based on those revelations, Chappell moved for a new trial and asserted that the government violated Brady v. Maryland, 373 U.S. 83, 87 (1963), by withholding this information. In support, he submitted e-mails and his calls with Ball. He did not submit a verified statement from Ball.

The district court concluded that it lacked new evidence to justify a new trial.2 While crediting the recorded calls as supporting-but-inconclusive evidence, the district court explained this evidence could only impeach Ball, not bar her testimony. Additionally, the district court “did not detect any impairment” during her testimony. And it considered it “highly unlikely that . . . Ball’s alleged impairment” would lead to an acquittal given the “overwhelming” evidence from five other cooperating witnesses.

The district court also rejected alleged constitutional violations under Brady or Giglio v. United States, 405 U.S. 150, 153 (1972), by noting that Chappell’s counsel alerted the court and the government to Ball