341 F.3d 829 (8th Cir. 2003), 02-3999, U.S. v. Gary

Docket Nº:02-3999
Citation:341 F.3d 829
Party Name:U.S. v. Gary
Case Date:September 09, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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341 F.3d 829 (8th Cir. 2003)

UNITED STATES of America, Plaintiff--Appellee,


James Leroy GARY, Defendant--Appellant.

No. 02-3999.

United States Court of Appeals, Eighth Circuit

September 9, 2003

Submitted: June 10, 2003.

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[Copyrighted Material Omitted]

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Stephen G. Mirakian, argued, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO (Rebecca M. Hain, on the brief), for appellant.

Philip M. Koppe, argued, Asst. U.S. Atty., Kansas City, MO (Todd P. Graves, U.S. Atty., on the brief), for appellee.

Before MELLOY, HANSEN, and SMITH, Circuit Judges.

MELLOY, Circuit Judge.

On April 24, 2002, a jury convicted James L. Gary of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court 1 sentenced Gary to a term of incarceration of 105 months. On appeal, Gary asserts eight points of error. We affirm.


On November 15, 2002, while executing a warrant for a suspected methamphetamine lab, police found a Lorcin .380 semiautomatic

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handgun in a dresser located in the spare bedroom of Gary's residence. Also in the dresser, police found ammunition and a cleaning kit. Police did not find any fingerprints on the gun or ammunition. They did lift a print from the cleaning kit and placed it on a fingerprint card. This print, however, turned out to be unusable because it lacked sufficient distinguishing marks.

At trial, the jury heard conflicting evidence regarding the gun. Police testified that, after arrest, Gary first stated that he bought the gun on the street but then quickly recanted and invoked his right to remain silent. Gary testified that he had no knowledge of the gun and that he actually told police that the gun must have come from the street. Gary's mother testified that, without Gary's knowledge, she obtained the gun from Darren Williams and put it in the dresser. 2 Michael Clemmons, one of Gary's former cellmates, testified that Gary admitted the gun was his, but that Gary stated his mother was going to claim it was her gun. Ultimately, the jury did not believe the testimony of Gary or his mother, and he was convicted of being a felon in possession of a firearm.

After the trial, Gary submitted an affidavit from Darren Williams in support of a claim that the police withheld exculpatory information garnered from Williams' two pretrial interviews. In the affidavit, Williams stated that he told police about seeing a gun in Gary's mother's possession fifteen months prior to the arrest. Gary presented this affidavit as newly discovered evidence in a motion for a new trial. The police refuted this claim by introducing a written summary from Williams' first interview and a transcript taken from an audiotape recording of his second interview. The district court found that neither document indicated that Williams ever discussed Gary's mother in connection with the possession of a gun. The district court denied the motion for a new trial.

At the sentencing hearing, the district court enhanced Gary's sentence on the basis that he obstructed justice by enlisting his mother and Williams to lie on his behalf. U.S.S.G. § 3C1.1. The district court also characterized Gary's prior felony conviction of escape from federal custody as a crime of violence, thereby increasing Gary's base offense level. U.S.S.G § 4B1.2. As a result, Gary was sentenced to a term of 105 months.


Gary asserts eight points of error. These alleged errors can be broken down into five contested categories: Brady violations, jury instruction errors, constitutional error, sentencing errors, and an untimely motion to object.

A. Brady Violations

In Points I and II, Gary challenges the district court's denial of his motion for a new trial based on alleged violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In order to prove a Brady violation, Gary must show: "1) that the government suppressed evidence; 2) that the evidence was exculpatory; and 3) that the evidence was material either to guilt or punishment." United States v. Dittrich, 204 F.3d 819, 822 (8th Cir. 2000). We review the district court's "denial of a motion for a new trial based on a Brady claim for an abuse of discretion." United States v. Carman, 314 F.3d 321, 324 (8th Cir. 2002).

Point I challenges the government's alleged suppression of Williams' pretrial interviews. Williams, by affidavit,

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stated that these interviews placed the gun in the possession of Gary's mother fifteen months prior to the arrest. However, Williams' claims were refuted by the police and found perjurious by the district court. It is the responsibility "of the district court ... to decide whether the newly discovered evidence is credible, and, if so, whether it would probably produce an acquittal if a new trial were held." United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir. 1997) (internal citation omitted). Here, as will be discussed further in Point VI, the district court found Williams lacking in credibility--so much so that his involvement in the case significantly contributed to the district court's finding that Gary obstructed justice. Because Williams is not credible, his allegations are neither exculpatory nor material. Further, after thorough review of the Williams interviews, we agree with the district court that Williams' pretrial interviews did not implicate Gary's mother in any way. Thus, no Brady violation occurred and the district court did not abuse its discretion in denying the motion for a new trial on this basis.

In Point II, Gary alleges that the government violated Brady when it failed to disclose that a print was lifted from the cleaning kit and failed to provide the defense with the fingerprint card or any notes regarding that print. Prior to trial, Gary requested all the fingerprint evidence. The government did not turn over or disclose any information about a print on the cleaning kit. According to the government, the print was unusable because it lacked sufficient distinguishing marks. The police apparently discarded the fingerprint card and any notes of analysis because the negative results had no value to them. The government should have produced the card in response to Gary's request. Gary had a right to have independent expert analysis of the usability of the print. Failure to produce the card was error, but, for the reasons below, it was not an error that rises to the level required for a Brady violation.

In order to prove a Brady violation, Gary must not only show that evidence was improperly suppressed, but also that the evidence was material and exculpatory. Dittrich, 204 F.3d at 822. Exculpatory evidence is material evidence favorable to the accused. United States v. Nelson, 970 F.2d 439, 442 (1992). We have held that evidence is material under Brady " 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " United States v. Ryan, 153 F.3d 708, 711 (8th Cir. 1998) (quoting Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (in turn quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985))). Therefore, Gary must demonstrate a reasonable probability that, had the fingerprint card been disclosed to the defense, the jury would have acquitted on the possession charge.

In United States v. Sumner, 171 F.3d 636 (8th Cir. 1999), the defendant appealed his car theft conviction on Brady grounds. Sumner claimed that the government suppressed "material" evidence when it failed to inform him that a fingerprint found in the stolen car did not match his own prints. Id. at 637. We concluded, under the Brady material evidence standard, that no violation occurred because the prints would have had little impact on the overall record supporting the conviction. More specifically, we held that "there is no reasonable probability that the verdict would have been different had the results of the fingerprint analysis been made known to Sumner prior to trial." Id. As in Sumner, we believe that if the fingerprint analysis

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had been available to Gary, it would not have changed the jury's...

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