U.S. v. Newton, s. 92-8228

Citation44 F.3d 913
Decision Date22 December 1994
Docket NumberNos. 92-8228,92-8764 and 94-8376,s. 92-8228
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph NEWTON, Eddie Gregory Batten, Robert Moss, Jr., John Brown, Jr., Grady D'Vaughn Reddick, Sean Jackson, Robert Jivens, Willie Lee Palmer, Sr., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Robert MOSS, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Grady D'Vaughn REDDICK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

James L. Pannelly (Court-appointed), Savannah, GA, for Newton.

Kran Riddle, Savannah, GA, for Batten.

William E. Dillard, III, Savannah, GA, for Moss.

Don L. Waters, Savannah, GA, for Brown.

John R. Calhoun, Gregory N. Crawford, Calhoun & Associates, Savannah, GA, for Reddick.

John C. Watts, Sr., Savannah, GA, for Jackson.

Linnie L. Darden, III, Savannah, GA, for Jivens.

Roy L. Allen, II, Savannah, GA, for Palmer.

Joseph D. Newman, Asst. U.S. Atty., Savannah, GA, John T. Garcia, Asst. U.S. Atty., Augusta, GA, for U.S.

Appeal from the United States District Court for the Southern District of Georgia.

Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior Circuit Judge.

ORDER

The court, on the panel's own motion, has reconsidered the opinion heretofore issued in these cases. Upon such reconsideration it appears that passages in the original opinion appear to ground the judgment of the court upon an erroneous premise. It is therefore ORDERED that the attached opinion is substituted as the opinion of the court.

Before EDMONDSON and BIRCH, Circuit Judges, and HILL, Senior Circuit Judge.

HILL, Senior Circuit Judge:

Appellants Joseph Newton, Grady D'Vaughn Reddick, Willie Lee Palmer, John Brown, Jr., Robert Jivens, Sean Jackson, Eddie Batten, and Robert Moss appeal their convictions and sentences for conspiracy to distribute and to possess with intent to distribute cocaine, violating 21 U.S.C. Sec. 846 (Count One). Moss appeals his conviction of employing persons under eighteen years of age to distribute controlled substances, violating 21 U.S.C. Sec. 861(a)(1) (Count Two). Jivens, Moss, Batten, Brown, and Jackson appeal their convictions of using a firearm during a drug trafficking offense, violating 18 U.S.C. Sec. 924(c) (Count Three). Reddick and Palmer, charged as aiders and abettors under Count One, appeal their convictions on substantive money laundering offenses, violating 18 U.S.C. Sec. 1956(a)(1)(B)(i) (Counts Four, Five, Six, and Seven). Newton and Moss appeal their convictions for using a communication facility to commit a drug felony, violating 21 U.S.C. Sec. 843(b) and (c) (Counts Nine and Ten). For the reasons that follow, we affirm the convictions and sentences of Brown and Moss and reverse Reddick's convictions. The judgments of conviction and the sentences of Newton, Palmer, Jivens, Jackson, and Batten are affirmed without opinion. See 11th Cir.R. 36-1.

I. FACTUAL AND PROCEDURAL BACKGROUND

In September 1991, a federal grand jury indicted seventeen individuals as members of a crack cocaine distribution conspiracy who acted under the direction of and in concert with Ricky Maurice Jivens. 1 The conspiracy's genesis was in late 1988. The locally notorious street-level crack gang routinely employed violence and was responsible for many homicides and aggravated assaults in Savannah. To insure loyalty and to prevent members from readily turning on their former confederates, Ricky Jivens insisted on all of the principals' "getting down," that is, killing someone before receiving any sizeable quantity of "fronted" cocaine. The Jivens organization was equally murderous in dealing with people who owed them money, stole from them or sought to, in Ricky Jivens' words, "switch out."

The rash of violence caused the assembly of a state and federal task force in January 1991, focusing on the gang's activities. The gang's cohesiveness began to unravel when the Drug Enforcement Agency (DEA) task force was successful in infiltrating the group with undercover informants and in converting gang members to informants. 2 Following the arrest of Ricky Jivens and Sean Jackson on September 20, 1991, the DEA agents obtained a series of search warrants and executed a coordinated series of raids the next morning, bringing Appellants into their net. After indictment, a jury trial was held in January 1992. With one exception, the jury convicted Appellants on all counts. 3 The district court denied Moss' extraordinary motion for new trial. 4 The remaining Defendants either pled guilty or their trials were severed from the main group.

II. ISSUES ON APPEAL

Each of the three remaining Appellants raises many separate issues on appeal. 5 Those issues with merit are: (1) Moss contends that the district court erred in denying his motion for a new trial based on newly discovered evidence and in considering activities before his eighteenth birthday in applying the Sentencing Guidelines; (2) Brown contends that during closing argument, the prosecutor improperly vouched for the credibility of his own witness; and (3) Reddick asserts that the evidence was insufficient to support his convictions.

III. DISCUSSION
A. Moss' Rule 33 Motion

Moss contends that the district court erred in denying his motion for new trial based on newly discovered evidence pursuant to Rule 33 of the Federal Rules of Criminal Procedure. He asserts that after trial it was ascertained that the testimony of a juvenile witness, identified as CJR, was in all likelihood perjurious concerning Moss' involvement in the murder of indicted drug dealer Antonio Anderson. CJR testified that he heard Moss' voice inside the drive-by car from which the fatal bullets were fired. CJR testified that Anderson was shot by two automatic weapons, a Tech-9 and an AK 47, from a distance of ten to fifteen feet. This testimony was later proved incorrect. 6 After trial, Savannah Police Department homicide records and Georgia Bureau of Investigation crime lab reports were discovered in the Government's possession by defense attorneys preparing for another case. These documents suggested that Anderson was shot at close range, six to eighteen inches, and died from gunshot wounds from a .38 or .357 pistol, not an automatic weapon. CJR also testified that Anderson was shot about 11:00 p.m. when the actual time of death was shown by the autopsy report and Savannah homicide records to be many hours earlier.

Moss contends that the Government's failure to provide him with copies of the reports prior to trial violates Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Government asserts that the reports were never in the actual physical custody of the prosecutor. It contends that the reports were mailed from the state crime lab to the state district attorney's office and inadvertently placed in a generic file cabinet. The Government also asserts that, even if Moss' defense attorney had been privy to this impeaching evidence prior to trial, it would not have changed the verdict. We agree.

1. Standard of Review.

The denial by the district court of Moss' extraordinary motion for new trial is reviewed for abuse of discretion. United States v. Champion, 813 F.2d 1154, 1172 (11th Cir.1987).

2. Analysis.

The Supreme Court has held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Evidence favorable to the accused includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3384, 87 L.Ed.2d 481 (1985). A constitutional error occurs, however, only if the suppressed evidence is material, i.e., only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 680, 105 S.Ct. at 3383.

This court applies a four-prong test to decide whether a new trial is required because of a Brady violation. United States v. Spagnoulo, 960 F.2d 990, 994 (11th Cir.1992). To obtain a new trial, a defendant must show each of the following elements: (1) that the Government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant did not possess the evidence nor could he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been revealed to the defense, there is a reasonable probability that the outcome of the proceedings would have been different. Id. at 994.

After an evidentiary hearing on the Rule 33 motion, the district court found that although Moss proved the first three elements, he failed to prove the fourth because he could not show that the undisclosed evidence would have made any difference in the verdict. The trial judge refused to grant Moss a new trial. Suppression of evidence results in constitutional error "only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

The Brady rule protects a defendant from erroneous conviction and is not designed to punish the Government. See Jackson v. Wainwright, 390 F.2d 288, 295 (5th Cir.1968). A punitive element is, however, often enrobed in or accompanies a Brady violation, but it implicates the Government's lawyer qua lawyer and not the Government as a party. Should it appear that Government counsel has intentionally--or culpably carelessly--concealed known Brady material from a defendant, the lawyer is not absolved from that professional misdeed merely because the concealment is found not to have been material in the Bagley sense.

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