U.S. v. Banks

• Citation: 546 F.3d 507
• Decision Date: 09 October 2008
• Docket Number: No. 07-3348.,07-3348.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Eddie BANKS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

546 F.3d 507

UNITED STATES of America, Plaintiff-Appellant, v. Eddie BANKS, Defendant-Appellee.

No. 07-3348.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2008.

Decided October 9, 2008.

Stuart D. Fullerton (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellant.

Beau B. Brindley (argued), Law Offices of Beau B. Brindley, Chicago, IL, for Defendant-Appellee.

Before EASTERBROOK, Chief Judge, and RIPPLE and WOOD, Circuit Judges.

WOOD, Circuit Judge.

This case illustrates the critical role that the standard of appellate review can, and must, play in our judicial system. As we explained in United States v. Williams, 81 F.3d 1434 (7th Cir.1996), "[it] is difficult for nonlawyers to understand or accept ... that because the question whether to grant a new trial is committed to the discretion of the district judge, as the defendants rightly concede, United States v. Knox, 68 F.3d 990, 1000 (7th Cir.1995); United States v. Maloney, 71 F.3d 645, 654 (7th Cir.1995), it is possible for two judges, confronted with the identical record, to come to opposite conclusions and for the appellate court to affirm both. That possibility is implicit in the concept of a discretionary judgment." 81 F.3d at 1437 (emphasis removed). In Williams, we found that one district judge did not abuse his discretion when he refused to grant a new trial based on the government's use of perjured testimony, even though we had found that a different district judge who was trying other defendants involved in the very same conspiracy also did not abuse his discretion when he did grant a new trial based on exactly the same perjured testimony. See United States v. Boyd, 55 F.3d 239 (7th Cir.1995).

In the case now before us, defendant Eddie Banks was charged in a multi-defendant indictment with four drug-related counts (counts 1, 10, 30, and 31). A jury convicted Banks on all four counts and made a special finding for counts 1 and 10 that the conspiracy and distribution offenses involved at least 500 grams but less than 5 kilograms of cocaine. Based on information that came to light after the jury delivered its verdict, Banks moved for a new trial. The district court granted a new trial on count 10 and a new trial on the drug type and quantity applicable to counts 1 and 10. The Government has appealed from those orders. Bearing in mind the fact that, just as in Williams and Boyd, we are reviewing only for abuse of discretion, we affirm.

I

A great deal of evidence was presented against Banks in his drug trial. The Government collected numerous recorded telephone conversations between Banks and others relating to cocaine deals. Informant and drug dealer Clarence Whalum testified that he sold cocaine to Banks every two or three weeks in quantities ranging from over two ounces to one kilogram, and that he participated in a controlled sale of a kilogram of cocaine to Banks. There was also police testimony describing surveillance of Banks immediately after the purchase from Whalum. Officers pulled Banks over for a traffic infraction, seized the package that Banks had hastily stashed in his pants, released him to protect the integrity of their investigation into the drug conspiracy, and then arrested him on a later occasion. Finally, at the center of this appeal is the expert testimony of Drug Enforcement Administration (DEA) forensic chemist Theresa Browning, who testified that she had tested the material in the package seized by police and found that it was 999.1 grams of cocaine hydrochloride. The theory of the defense was that Banks was not the person who was pulled over by the police in possession of the package that later tested positive for cocaine.

After the jury returned a verdict of guilty on all four counts, the prosecution and defense learned for the first time that Browning was under investigation at the time of trial for professional misconduct, described further below. Banks moved for a new trial based on the Government's failure to disclose this impeaching information. The district court concluded that a new trial was necessary only on count 10 and the special finding of drug type and quantity relating to counts 1 and 10, and it entered an appropriate order, from which the Government has appealed. See 18 U.S.C. § 3731, ¶ 1. (Banks's convictions under counts 30 and 31 for using a telephone to facilitate a violation of the drug laws are not affected by the district court's order.)

Information brought out during a post-trial hearing revealed that at the time she testified, Browning was fighting off accusations about misuse, or possibly even fraud, in connection with the use of her government-issued credit card. As a federal employee, Browning was entitled to have the card for purposes of covering expenses related to her government employment— primarily travel expenses. Normally, before the due date for payment on the credit card, the Government would deposit directly into her bank account money to cover the expenses. She was required to use these funds to pay the credit card bill, and timely payment was required. In March 2006, however, Browning used the deposited funds to pay for personal expenses and then had insufficient funds available when her government credit card bill came due. This constituted misappropriation of those funds. Browning waited until her next paycheck came and then paid off the card, but her payment was one week late. She had not requested an extension and did not self-report this violation.

When the misconduct was discovered, Browning feared that she would lose her job and asked her supervisor to "keep the consequences at the laboratory level"—in other words, not to let the higher-ups at DEA know about her misstep. The supervisor did not honor this request, and instead reported Browning's violation to the DEA Office of Professional Responsibility (OPR), which investigated the matter. OPR interviewed Browning approximately four months prior to her testimony in Banks's trial, and Browning heard nothing further about the status of the investigation for a long time. She still knew nothing at the time of her testimony at Banks's trial, but she heard from OPR a few days after the trial was over. In the end, the only professional consequence she suffered from her misconduct was the agency's issuance of a letter of caution warning her to make future payments in a timely manner. The letter was issued on October 4, but Browning did not receive it until October 20, after testifying against Banks on October 17, 2006. The prosecutors did not know anything about Browning's problem until after the trial.

II

Under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Government has a duty to disclose evidence favorable to the defendant, whether the evidence is exculpatory or tends to impeach a Government witness. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Nonetheless a violation of this duty, whether intentional or inadvertent, entitles the defendant to a new trial only if the failure to disclose the evidence resulted in denial of a fair trial. Id. at 281-82, 119 S.Ct. 1936. The latter condition is satisfied only when the suppressed evidence is material, meaning when 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. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

The only point of dispute in this case is whether the undisclosed information was "material" in the Bagley sense of the term. The Government has not argued that Browning's testimony related only to the underlying question whether the substance was really cocaine, and, on that point, the defense was just as well positioned to test it as the prosecution was. If the evidence about Browning's legal problems was material, then Banks was entitled to a new trial. The district court held that the fact that Browning was under investigation by her government employer at the time she tendered testimony favorable to the Government in Banks's criminal case was material impeachment evidence with respect to the guilt phase on count 10, and material with respect to the sentencing factors of drug type and quantity for counts 1 and 10.

At oral argument, a member of the panel raised the question whether the Brady rule should be invoked to grant a new trial for non-disclosure of this type of impeachment evidence. The question is first whether we should be focusing not on Browning but on the topic of her testimony—the nature of the substance—and second, whether the law draws any distinction between a witness who may be lying about a verifiable subject and a witness who may be lying about a non-verifiable subject (such as a visual observation). Under the theory (once again, not presented by the Government) that the only question is whether the substance in the package was really cocaine, one might ask what a new trial would accomplish. If Banks had impeached Browning with this evidence, then the Government now asserts that it would simply have put a different expert on the stand (presumably one whose work could not be impeached, though without a crystal ball, it is hard to be confident about that). The Government did not proffer evidence to this court that later tests have confirmed Browning's chemical findings. It has only alleged that Browning was the second chemist to test the material and determine it to be cocaine, but it has not provided either the name, the date, the laboratory, or any other information about this supposed earlier test. Indeed, it supports this assertion only by pointing to Browning's testimony that she was the second chemist to make such a finding.

If we are to acknowledge the possibility that Browning's conflict of interest led her to falsify her own chemical analysis and commit perjury, we cannot rely on her own testimony...