U.S. v. Andrews

Decision Date15 July 2008
Docket NumberNo. 07-3024.,07-3024.
Citation532 F.3d 900
PartiesUNITED STATES of America, Appellee v. LaTanya ANDREWS, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 06cr00026-02).

Ryan M. Malone argued the cause for appellant. With him on the briefs was Peter M. Brody, appointed by the court.

Daniel A. Petalas, Attorney, U.S. Department of Justice, argued the cause and filed the brief for appellee. Roy W. McLeese, III, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge ROGERS.

GARLAND, Circuit Judge:

LaTanya Andrews appeals her conviction for bribery and conspiracy to defraud the United States on the ground that the government failed to disclose exculpatory evidence to her in a timely fashion, in violation of her rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). She also appeals her sentence on the ground that the district court applied the wrong edition of the United States Sentencing Guidelines Manual, and in so doing violated the Ex Post Facto Clause of the Constitution. Because we find no Brady violation, and conclude that any error the court made in referring to the 2006 Guidelines Manual was not plain, we affirm the judgment of the district court.

I

LaTanya Andrews worked at the Department of Veterans Affairs Medical Center (DVAMC) for eighteen years, beginning in 1988. In 2000, Andrews worked in the DVAMC's payroll section as a payroll technician. That section was located in the same area as the human resources section — the department charged with storing official personnel folders, including those pertaining to employee benefits — in which Andrews had worked earlier in her career. Andrews' codefendant, Peter Turner, worked at the DVAMC as a volunteer driver.

From 1998 to 2000, Turner was romantically involved with Vestor Mayo, a DVAMC nurse with whom he and Andrews sometimes commuted to work. Mayo suffered a stroke on December 8, 2000, and she died two weeks later. At the time of her death, Mayo was insured through the Federal Employees' Group Life Insurance (FEGLI) program, which is administered through the Office of Federal Employees' Group Life Insurance (OFEGLI). The designation-of-beneficiary form received by OFEGLI in January 2001 listed Turner and Mayo's mother, Lorenza Mayo, as co-beneficiaries. Pursuant to that designation, OFEGLI distributed $20,562.90 to each beneficiary as money market accounts on which they could draw checks. On February 1, 2001, Turner wrote Andrews a check from his beneficiary account for $1,000. It was the first check that Turner wrote from that account; the memorandum line stated that the money was a loan. In March 2001, Andrews purchased a car for $800.

When Lorenza Mayo went to the DVAMC human resources section to review the paperwork necessary to obtain her share of her daughter's insurance proceeds, she examined the designation-of-beneficiary form and concluded that it was a forgery: the handwriting and signature did not look like those of her daughter, the Social Security number was incorrect, and Lorenza's name and address were misspelled. Lorenza and her husband reported the forgery to OFEGLI, which in turn forwarded the claim to the Office of Personnel Management (OPM) for review.

In November 2005, Andrews submitted to a voluntary interview by Special Agents Shantel Robinson and Derek Holt of OPM's Office of Inspector General. When asked whether she had ever received money or a loan from Turner, Andrews said he had never given her anything more than $10. When confronted with the $1,000 check that he had written to her, she changed her story, ultimately claiming that it was a loan. The agents recorded Andrews' statements in the handwritten notes they took during the interview and in Robinson's typewritten report prepared the same day.

On January 31, 2006, Andrews and Turner were indicted and charged with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, and one count of bribery, in violation of 18 U.S.C. § 201(b). The indictment alleged that Turner and Andrews conspired to defraud the United States and that Turner paid Andrews $1,000 for assisting him in placing the forged beneficiary form in the file. The indictment also charged that Andrews and Turner agreed to conceal the conspiracy and any acts committed in furtherance thereof.

On July 31, 2006, after a four-day trial, a jury returned guilty verdicts against Andrews and Turner on both the conspiracy and bribery charges. On February 9, 2007, the district court sentenced Andrews to concurrent 15-month terms of imprisonment. In so doing, the court applied the then-effective 2006 United States Sentencing Guidelines Manual in an advisory fashion, as required by United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Andrews challenges the judgment below on two principal grounds: (1) that the government violated her rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, by failing to produce Special Agents Robinson's and Holt's handwritten interview notes prior to trial; and (2) that the district court erred under the U.S. Sentencing Guidelines and the Constitution's Ex Post Facto Clause by calculating her sentence based on the 2006 Sentencing Guidelines Manual, rather than on the Manual that was in effect in February 2001 — the month she contends the conspiracy ended. We consider these challenges below.1

II

We begin with Andrews' claim under Brady v. Maryland.

A

In pretrial hearings, the district court ordered the government to produce, inter alia, all Brady materials prior to trial.2 On February 16, 2006, the government produced 3,134 pages of documents and records as part of its pretrial discovery. Under separate cover, it also turned over Robinson's typewritten interview report, which conveyed the substance of Andrews' answers and noted Holt's presence during the interview. Before trial, the government represented to the court that it had complied with the court's production order.

At trial, Agent Robinson testified about her November 2005 interview with Andrews. Robinson stated that Andrews initially told her and Agent Holt that she had never borrowed or received more than $10 from Turner. Trial Tr. 651 (July 26, 2006). When Robinson showed Andrews a copy of the $1,000 check, Andrews changed her story, claiming that Turner had given her the check so that she could prove to a car dealership that she had a checking account. Id. When Robinson pointed out that a check written from Turner's beneficiary account would not show that Andrews had a checking account, Andrews changed her story again, claiming that she borrowed the money from Turner in order to purchase a car. Id. at 653. According to Robinson, Andrews also said that she had repaid Turner in February 2001 and that her bank statements should reflect that fact. Id. Robinson recounted that she checked Andrews' bank accounts and did not find such a payment, although there were regular cash withdrawals. Id. at 654, 658. Finally, she testified that documents showed Andrews purchased a car in March 2001, after the period in which she claimed she had repaid Turner for the loan. Id. at 655.

On cross-examination, at the end of the trial day, defense counsel asked Robinson whether her testimony was based on her memory of the interview. Robinson answered that it was also based on her interview report and on the handwritten notes that she took during the interview. Id. at 678-79. Defense counsel had not known of the notes' existence prior to that point and, upon making this discovery, asked to approach the bench. The prosecutor asserted that the government had no obligation to produce the notes because they were incorporated into Robinson's final report, but she conceded that she had not actually seen them. The court instructed the government to examine the notes overnight and to determine whether they should be produced. Id. at 680. Andrews' counsel opted to continue his cross-examination of Robinson without the notes. Id. After the cross-examination ended, the court adjourned trial for the day.

The following morning, the government advised the court that, although it still believed it had no obligation to produce Robinson's handwritten notes, it had voluntarily done so "in an abundance of caution." Trial Tr. 717-18 (July 27, 2006). The court then asked defense counsel whether there was "anything in [the notes] that requires any further inquiry." Id. at 718. Counsel said that further cross-examination was unnecessary, but he reserved the right to use the notes in the event that the government re-called Robinson on rebuttal. Id. The government did not re-call her, and defense counsel did not raise the issue again.

B

In Brady v. Maryland, the Supreme Court held that the Due Process Clause imposes upon the prosecution an obligation to disclose "evidence favorable to an accused ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. 1194. In Giglio v. United States and United States v. Bagley, the Court held that "[i]mpeachment evidence, ... as well as exculpatory evidence, falls within the Brady rule." Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (citing Giglio, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). As we have noted, "courts have used the term `Brady violation' to cover a multitude of prosecutorial sins involving breach of `the broad obligation to disclose exculpatory evidence,' often called `Brady material.'" In re Sealed Case, 185 F.3d 887, 892 (D.C.Cir. 1999) (quoting Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144...

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