U.S. v. Breit

• Decision Date: 18 July 1985
• Docket Number: No. 84-6628,84-6628
• Citation: 767 F.2d 1084
• Parties: UNITED STATES of America, Appellee, v. Calvin W. BREIT, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1084

767 F.2d 1084

UNITED STATES of America, Appellee, v. Calvin W. BREIT, Appellant.

No. 84-6628.

United States Court of Appeals, Fourth Circuit.

Argued June 4, 1985.

Decided July 18, 1985.

James C. Roberts, Anthony F. Troy, Richmond, Va. (Robert D. Seabolt, Mays, Valentine, Davenport & Moore, Richmond, Va., on brief), for appellant.

William G. Otis, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before HALL and SNEEDEN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

K.K. HALL, Circuit Judge:

Calvin W. Breit appeals from the district court's order, denying his motion for a new trial based on an alleged Brady violation. ¹ We affirm.

I.

Breit was indicted, inter alia, on one count of conspiracy, in violation of 21 U.S.C. Sec. 846, and six counts of possession and aiding and abetting possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, on August 6, 1982. Overt act number 10 of the conspiracy count charged that:

On or about April 25, 1980, in the vicinity of Virginia Beach, Virginia, CALVIN W. BREIT, Defendant herein, tendered to an unindicted co-conspirator a cashier's check in the approximate amount of $35,000 drawn on the Virginia National Bank, payable to David Williams such funds to be utilized in the purchase of cocaine.

Count Five was the substantive count pertaining to the alleged overt act involving the $35,000 check. Government witness Harry Creta testified he received the $35,000 check from Breit and used the proceeds to purchase cocaine from Thomas Glenn ("Tommy") Flowers, Jr. Count Seven, also a possession count, was based on testimony of Charles MacElwain that in May, 1980, he had purchased cocaine with funds supplied by Breit. The government also used Creta's testimony to connect Breit to the MacElwain purchase.

On August 11, 1982, Breit filed a fifteen-page general motion for discovery and inspection under Fed.R.Crim.P. 16 and for exculpatory evidence. In particular, Breit requested "impeaching evidence" and elaborated as follows:

(1) The defendant specifically requests evidence or information which may be used to impeach any government witness or which may lead to evidence which might be used to impeach any witness.

(2) Defendant further requests disclosure of any statements of any individuals which may be inconsistent, in whole or in part, with any other statement made by the same individual; and any statements made by any individuals, which are inconsistent, in whole or in part, with any statements made by other individuals who have given statements relevant to the charges against defendant.

In response to Breit's request, the government asserted it had no Brady material beyond what it intended to give and ultimately gave defense counsel in the form of "Jencks" statements ² of its witnesses. The district court then dismissed Breit's Brady motion as moot.

Harry Creta was the government's principal witness at trial. The sum of his testimony was that Breit financed several cocaine purchases in late 1979 through the early part of 1980: Breit provided cash for Creta to purchase cocaine, and Creta used Flowers as a source to supply cocaine and returned a profit of $7,000 to $12,000 to Breit for each investment, totaling $60,000.

Creta testified he entered into a number of cocaine "buys" from Flowers, the first of which did not involve Breit. He said that in April, 1980, he asked Breit for money to fund a cocaine purchase from Flowers. According to Creta, Breit gave him a check for $35,000, dated April 11, 1980. Creta stated that he and Flowers went to the drive-in window of a local bank where Creta negotiated the check. Creta told the jury that his bank trip with Flowers was the consummation of their fourth and final deal in which he intended to pay $20,000, as payment in full, for "ten or eleven ounces" of cocaine. Creta further testified he received from the bank teller $20,000 in cash and a $15,000 cashier's check made out to him. Creta identified as the checks in question (1) a copy of a $35,000 check bearing his endorsement as well as David Williams' and (2) a copy of a $15,000 cashier's check dated April 24, 1980, and noted at the bottom "B[alance] of 353 exchange check, Bank of Virginia." These copies were admitted into evidence. Creta said he gave the $20,000 cash to Flowers to pay for the cocaine and, after endorsing it, returned the $15,000 cashier's check to Breit. Creta was then asked whether the April 24, 1980, date on the cashier's check was the date he drove Flowers to the bank. He replied that it was.

On cross-examination, however, Creta acknowledged that his memory of the transaction was imperfect. He testified that at first he thought he gave to Flowers both the $20,000 cash and the $15,000 cashier's check, but also said that when shown the cashier's check, he remembered giving it to Breit. He further stated he knew that Breit was involved with one check, "but I couldn't put the figures and the times together exactly."

Flowers, a federal prisoner at the time of Breit's trial, had been transported to Norfolk as a potential government witness. The prosecution, however, did not call Flowers to corroborate Creta's testimony that Flowers was present during the April 24, 1980, negotiation of the $35,000 check at the drive-in teller window.

Breit took the stand in his own defense and denied participating in any cocaine deals. He did not deny, however, that he had delivered the $35,000 check to Creta. He also admitted that Creta had given to him a $15,000 cashier's check. He claimed he gave Creta the $35,000 check as security for a personal loan to satisfy gambling debts and asserted that the $15,000 cashier's check constituted the actual loan proceeds. Breit explained the two checks by stating that he had asked Creta to cash the $35,000 check because he knew Creta had money and because he (Breit) was embarrassed to go to the bank with a check of that size. He further testified that Creta returned to him both the $20,000 cash and the $15,000 cashier's check a day or two after Creta went to the bank.

Accordingly, Creta's and Breit's testimony agreed on three points: (1) that Breit gave to Creta a $35,000 check in April, 1980; (2) that Creta cashed the check at the bank; and (3) that Creta returned to Breit a $15,000 cashier's check obtained as part of the proceeds. Their testimony disagreed only on what became of the $20,000 cash: Creta said he gave it to Flowers to pay for the cocaine deal in which he and Breit were engaged, whereas Breit said the cash was returned to him along with the $15,000 cashier's check. The jury believed Creta, concluded that the check transaction was intended to fund a cocaine deal, and convicted Breit of conspiracy and two possession counts (Five and Seven). We affirmed. United States v. Breit, 712 F.2d 81 (4th Cir.1983).

After his conviction, Breit became an inmate at the federal correctional facility in Petersburg, Virginia, where Flowers was also incarcerated. Almost immediately after his release from Petersburg, Flowers was visited by an investigator hired by Breit's family. Thereafter, Flowers gave a sworn statement on May 10, 1984, in the offices of Breit's present counsel.

In the statement, Flowers maintained that during Breit's trial he was interviewed by three Assistant United States Attorneys, Raymond Carpenter, Patricia Kerwin, and Tommy Miller. He stated he told them that Creta did not receive a $15,000 cashier's check as part of the proceeds of the $35,000 check. Instead, Flowers asserted that Creta gave him $27,000 in cash and kept the remaining funds. He said he had only two, not four, transactions with Creta, one of which related to the cashing of the $35,000 check. Flowers also stated that the check transaction occurred during cold weather but acknowledged that he could not recall the date because "it has been a long time." He further admitted he had been in Florida and had traveled to Virginia for the transaction. Although Flowers' initial response to a question concerning his apparel on the day in question was that "I don't know.... I can't remember what I was wearing," he eventually stated, after repeated questioning by counsel, that he was wearing a heavy sweater with a thermal lining. Other than the memory of cold weather, Flowers was unable to recall the date or even the month of the check transaction. He also stated that the other transaction occurred before the one involving the check.

Based upon Flowers' statement, Breit moved for a new trial on June 11, 1984. Breit argued that Flowers' May 10, 1984, account of the transaction differed from Creta's trial testimony on at least two points: (1) whether the transaction occurred when the weather was warm or cold and (2) whether the check proceeds were returned to Creta wholly in cash or partly in cash together with a $15,000 cashier's check. The thrust of the motion was that when Assistant United States Attorneys Carpenter, Miller, and Kerwin learned of these discrepancies between Flowers' story and the testimony they knew Creta would give at trial, but did not disclose them to Breit, they breached not only the requirements of Brady but probably the Code of Professional Responsibility as well. Alternatively, Breit contended that a new trial was warranted even if the government was unaware that Flowers would have contradicted Creta.

Prior to the hearing on the new trial motion, Breit moved on July 3, 1984, for disclosure of the transcript of Flowers' grand jury testimony. He also requested that a subpoena duces tecum be issued to the United States for all notes of interviews between Flowers and government personnel. The government furnished the transcript of Flowers' grand jury testimony and notes of an interview in May, 1982, between Flowers and FBI Agent Joseph O'Brien.

Like Creta, Flowers stated to the grand jury that the $35,000...