U.S. v. Mitchell, 98-3172

• Decision Date: 24 May 1999
• Docket Number: No. 98-3172,98-3172
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antowine MITCHELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.3d 904

UNITED STATES of America, Plaintiff-Appellee, v. Antowine MITCHELL, Defendant-Appellant.

No. 98-3172.

United States Court of Appeals,

Seventh Circuit.

Argued Feb. 11, 1999.

Decided May 24, 1999.

Paul Kanter (argued), Thomas P. Schneider, Office of United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Michael Holzman, Rosen & Holzman, Waukesha, WI, for Defendant-Appellant.

Before CUMMINGS, ^* BAUER, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

Antowine Mitchell ("Mitchell") appeals his conviction for bank robbery. He maintains that: (1) the district judge should have conducted an in camera inspection of the presentence reports of three accomplice witnesses to determine whether the reports contain Brady material, (2) there was insufficient evidence to support the jury's verdict, (3) the testimony of four of the government's witnesses was obtained in violation of the federal anti-bribery statute, 18 U.S.C. § 201(c)(2), and (4) the district court should have reduced Mitchell's offense level by two because he was a minor participant in the offense, U.S.S.G. § 3B1.2(b). We reject these arguments and affirm the district court's judgment in all respects.

I. BACKGROUND

On August 8, 1997, the North Shore Bank in Racine, Wisconsin was robbed. One of the robbers, Walter Williams ("Williams"), handed a teller a note that said "give me the money or I'll shoot you don't do anything stupid." The teller gave him approximately five thousand dollars, and he left the bank. Mitchell followed him out. On February 10, 1998, Mitchell was charged with one count of bank robbery, in violation of 18 U.S.C. §§ 2113(a), 2.

The witness list at Mitchell's trial shows that there is indeed no honor among thieves. Williams, who pled guilty to the North Shore Bank robbery, testified that on August 8, 1997, he, Bridget Womack ("Womack"), and Mitchell drove to the North Shore Bank and parked across the street. Womack then wrote out two demand notes and gave one each to Williams and Mitchell. The plan was for Williams and Mitchell to approach two tellers simultaneously and present the demand notes. Williams and Mitchell left the car and went into the bank carrying the demand notes. Because the bank was very busy, however, Mitchell was left standing at a service counter while Williams approached a teller. After the teller gave Williams the money, he and Mitchell left the bank and ran to the car where Womack was waiting. The money was divided up a short time later.

Womack testified that she, Williams, and Mitchell had robbed the North Shore Bank on August 8, 1997. She also testified that she wrote out two demand notes, that Williams and Mitchell entered the bank with the notes intending to approach two tellers at once, and that Williams and Mitchell told her that only Williams had approached a teller because the bank had been so busy.

Natasha Williams testified that her husband, Williams, as well as Womack and Mitchell drove off together in two cars on the morning of August 8, 1997. She also testified that Williams arrived home at 2:00 a.m. the next morning accompanied by Mitchell.

Finally, Joshua Taylor ("Taylor") testified that Mitchell had discussed the bank robbery with him while the two were in jail together. Mitchell told Taylor that he went into a bank with his friend in order to help his friend rob the bank, but did not end up approaching a teller. Mitchell also told Taylor that he acted as a lookout during the robbery.

When Mitchell found out that his accomplices would be testifying against him, he requested that the district judge review their presentence reports in camera for impeachment material. The district judge denied the motion. (Order of April 15, 1998.) Nonetheless, Mitchell did not lack impeachment material. For example, at the time of Mitchell's trial, Williams, Natasha Williams, Womack, and Taylor were each bound by plea agreements that required that they provide substantial assistance to the government. All four witnesses testified that they had not been promised anything by the government in return for their testimony, but that they hoped that their cooperation would be considered at their own sentencing hearings. All the relevant plea agreements were introduced into evidence at trial.

After a five day trial, the jury found Mitchell guilty of the single count of bank robbery. On August 17, 1998, the judge sentenced Mitchell to eighty-five months of imprisonment. This appeal followed.

II. DISCUSSION

A. In Camera Inspection of Presentence Reports

Mitchell challenges the district court's refusal to conduct an in camera inspection of the presentence reports of Williams, Natasha Williams, and Womack. Mitchell argues that such an inspection was required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because an inspection may have turned up impeachment information, such as inconsistent or false statements concerning the North Shore Bank robbery, and/or information concerning the criminal records of the witnesses. We review the district judge's refusal to inspect the documents for abuse of discretion.

In Brady, the Supreme Court held that "the 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." 373 U.S. at 87, 83 S.Ct. at 1196-97. Impeachment evidence, as well as exculpatory evidence, falls within this rule. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Boyd, 55 F.3d 239, 244 (7th Cir.1995). Finally, we have noted that "[g]enerally, presentence reports are helpful in effectively cross-examining witnesses because these reports may contain impeachment material." United States v. Canino, 949 F.2d 928, 942 (7th Cir.1991). Thus, Mitchell argues that the district judge was required to conduct an in camera inspection of the presentence reports of the government's accomplice-witnesses in order to determine whether the reports contained any impeachment material.

Mitchell's argument is misguided. As we have explained before, a "due process standard which is satisfied by mere speculation would convert Brady into a discovery device and impose an undue burden upon the district court." United States v. Morris, 957 F.2d 1391, 1403 (7th Cir.1992) (quoting United States v. Navarro, 737 F.2d 625, 631 (7th Cir.1984)). It is simply asking too much of district court judges to require that they review the presentence reports of all witnesses when there is no particular indication that the reports contain Brady material. In a drug conspiracy case, such a rule could easily result in the judge being obligated to root through the presentence reports of twenty coconspirator witnesses. For this reason, "[m]ere speculation that a government file may contain Brady material is not sufficient to require a remand for in camera inspection, much less reversal for a new trial." Id.

We have been guided by this principle in several cases. In Morris, we held that the district judge was not required to conduct an in camera review of FBI reports on a government witness because the defendant could not offer anything beyond speculation to indicate that the reports contained Brady information and because the government claimed that it had turned over all Brady material. 957 F.2d at 1402. In United States v. Andrus, we held that the district judge was not obligated to examine the personnel files of law enforcement witnesses when there was no suggestion that the files contained any impeachment material. 775 F.2d 825, 843 (7th Cir.1985). Finally, in United States v. Navarro, we held that the district court was not required to examine the INS file of an informant-witness when the defendant offered nothing more than speculation that the file contained evidence of a cooperation agreement. 737 F.2d at 631-32. Similarly, Local Rule 20.01 for the Eastern District of Wisconsin, which constrained the government in this case, states that a presentence report may only be disclosed to someone other than the subject of the report when the person requesting the report establishes "with particularity the need for specified information contained in [the report]." E.D. Wis. R. 20.01.

Mitchell's case closely parallels Morris, Andrus, and Navarro. There is no indication that the presentence reports of Williams, Natasha Williams, and Womack contain undisclosed Brady material. Furthermore, the district judge found that the government was "well aware of its obligations under Brady." (Order of April 15, 1998.) In addition, as the magistrate judge noted, the government's open file policy provides defendants with "more discovery materials than the defendant would be entitled to obtain under strict adherence to the federal rules." ¹ (Order of March 25, 1998.) Under these circumstances, the district judge concluded that there was no need to examine the presentence reports in camera. (Order of April 15, 1998.) We are inclined to agree.

Mitchell's citations to United States v. Anderson, 724 F.2d 596 (7th Cir.1984), and Canino, 949 F.2d 928, do not persuade us otherwise. Neither case announces an absolute requirement that district judges examine witnesses' presentence reports. In Anderson, the defendant sought review of a witness' presentence report specifically to determine when the witness had stopped using heroin, and to determine whether the witness' use of heroin had had deleterious effects on his memory. Anderson, 724 F.2d at 597. We held that a trial judge has no duty to disclose presentence reports about a witness at the "mere request of a criminal defendant," but that "[w]hen a defendant suspects that a witness' presentence report contains impeachment material, [the defendant] should request the trial court to make an in camera examination of the report." Id. at 598....