U.S. v. Buchanan, s. 88-2709

• Decision Date: 12 December 1989
• Docket Number: 88-2791,Nos. 88-2709,s. 88-2709
• Citation: 891 F.2d 1436
• Parties: UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Jessie Ervin BUCHANAN, Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1436

891 F.2d 1436

UNITED STATES of America, Plaintiff-Appellant and Cross-Appellee, v. Jessie Ervin BUCHANAN, Defendant-Appellee and Cross-Appellant.

Nos. 88-2709, 88-2791.

United States Court of Appeals, Tenth Circuit.

Dec. 12, 1989.

Paul G. Hess, Asst. U.S. Atty. (Roger Hilfiger, U.S. Atty., on the brief), Muskogee, Okl., for plaintiff-appellant and cross-appellee.

David Booth, Federal Public Defender, Muskogee, Okl., for defendant-appellee and cross-appellant.

Before BALDOCK, McWILLIAMS and EBEL, Circuit Judges.

BALDOCK, Circuit Judge.

Petitioner-appellee and cross-appellant, Jessie Ervin Buchanan (Buchanan), was charged with the manufacture and possession of an unregistered firearm, 26 U.S.C. § 5861(d) & (f), and conspiracy to commit these offenses, 18 U.S.C. § 371. His first trial produced a hung jury. His second trial resulted in a conviction which was affirmed on direct appeal in United States v. Buchanan, 787 F.2d 477 (10th Cir.1986). We affirmed in part, reversed in part and remanded the case after the denial of Buchanan's subsequent petition for modification of sentence in United States v. Buchanan, 830 F.2d 146 (10th Cir.1987).

Buchanan sought collateral relief under 28 U.S.C. § 2255, alleging that the government's failure to disclose a personal relationship between its Bureau of Alcohol, Tobacco and Firearms (BATF) investigator and Buchanan's former wife violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court agreed and granted Buchanan a new trial. The United States now appeals. Buchanan cross-appeals, arguing that the district court erred in granting him a new trial instead of setting aside his conviction. Our jurisdiction arises under 28 U.S.C. §§ 2253 & 2255. Because we find that the undisclosed evidence is not material to Buchanan's guilt or punishment, we reverse.

I.

A.

Joann Huffman is the mother of Gwen Whitten, Buchanan's former wife. On September 3, 1982, Huffman's trailer home was destroyed by a fire resulting from a gasoline firebomb. John Omstead confessed to the bombing, while being held on an unrelated charge. The government subsequently charged Buchanan with hiring Omstead and Eric Elrod to burn the trailer.

Prior to trial, Buchanan's counsel filed an extensive discovery motion seeking exculpatory and other evidence. Paragraph VIII of the motion sought "any evidence which might be used for impeachment of any witness for the prosecution at the time of trial," specifying four distinct sources of inquiry. ¹ The court subsequently ordered the government to disclose all material "which may be used to impeach substantially the credibility of key government witnesses." United States v. Buchanan, No. 84-4-CR, order at 5 (E.D.Okla. Feb. 1, 1984) (emphasis in original).

At trial, Gwen Whitten testified that a rancorous relationship existed between Buchanan and her mother. Tr. 72-73. ² She stated that Buchanan threatened Huffman on several occasions: "[H]e threatened my mother to me at one time. We were in an argument and he told me, he said, 'Gwen I love you and I'm going to get you through someone you love.' " Tr. 66. Huffman's testimony corroborated the antipathy between Buchanan and herself. She testified that Buchanan made a threat directly to her: "[H]e took some money out of his pocket, I don't know how much, he had a roll of money, and he said, 'I've got you right here.' " Tr. 90.

The government's principal witness was Eric Elrod. Elrod testified that on the evening of September 1, 1982, he was sitting in his truck with John Omstead and Kathy Bunch when Buchanan motioned Elrod to Buchanan's car. Tr. 126. While Omstead and Bunch waited in Elrod's truck, Elrod walked to Buchanan's car, whereupon Buchanan offered him $800 to burn Huffman's trailer. Tr. 128. According to Elrod, Buchanan paid him $400 that night, Tr. 131, and told him to collect the balance at the Tri-a-Nite lounge when the job was completed. Elrod explained:

[Buchanan] wanted to establish his alibi there. He told me that he will be there and have plenty of people around him. He told me when ... I go in there, he'll go to the bathroom, you know, he didn't want me to follow him right away, he just, you know, go ahead and order me a beer, he told me, and wait. And he went in the bathroom and told me to follow him in there an he would pay me the rest of the money there.

Tr. 130. Elrod met Buchanan the following evening and the two confirmed this plan. Tr. 143.

Elrod testified that the next day he and Omstead constructed a firebomb out of a plastic milk jug filled with gasoline and charcoal fluid. Tr. 148-49. They drove to Huffman's trailer, made sure no one was inside, and then tossed the lighted bomb through the bedroom window. Tr. 152-54. After leaving the burning trailer, Elrod and Omstead drove to the Tri-a-Nite lounge:

PROSECUTOR: Did you see Jessie Buchanan [there]?

ELROD: Yes.

PROSECUTOR: Where was he?

ELROD: He was sitting ... with a crowd of people to my right.

* * *

PROSECUTOR: And whenever you saw Jessie Buchanan over there, did you make any comments or gestures to him, or did he to you?

ELROD: No, I didn't say nothing to him, that was part of the deal. I looked at him ... and he looked at me and kind of nodded at him and he knew.

PROSECUTOR: All right. And then what happened next?

ELROD: He got up and went to the bathroom.

PROSECUTOR: Is that what he was supposed to do?

ELROD: Yes.

PROSECUTOR: And then what happened ...?

ELROD: I sat there and drank a couple more drinks of my beer, and then I went in there after him.

PROSECUTOR: And when you got to the bathroom what happened ...?

ELROD: Well, there was another person in there, you know, using the bathroom. He walked out, and [Buchanan] paid me the rest of my money and walked out.

Tr. 156-57.

Elrod testified that the following day he and Omstead went to Buchanan's home, informed Buchanan that Huffman's son was expected in town and asked for more money to get away from him. Buchanan complimented the pair on their "good job," gave Elrod an additional $200 and told the pair to go camping. Tr. 160. On cross-examination, defense counsel elicited that Elrod was testifying pursuant to a plea agreement, had lied to BATF investigators about his involvement in the burning and had been convicted of a felony on three prior occasions. Tr. 168-170 172, 191, 199.

Omstead's testimony corroborated Elrod's story in most respects. See tr. 234, 236, 238, 241, 243. However, Omstead never dealt directly with Buchanan, but indirectly through Elrod. Tr. 257. Omstead was cross-examined concerning his plea agreement, drug use, and prior inconsistent statements. Tr. 264-65, 273-74. Kathy Bunch testified that she had remained in the car with Omstead when Elrod spoke to Buchanan on the night of September 1, 1982. Bunch testified that when Elrod returned to his truck he "said something like flick of a light switch and then blow something." Tr. 319.

BATF Agent Doye A. Tilley testified as an expert in firearms. Tr. 354. He stated that the firebomb Elrod and Omstead constructed was a firearm under federal law for which Buchanan had no registration. Tr. 344-45. Tilley sat with the government prosecutors throughout the trial. Tr. 534.

In his defense, Buchanan produced three witnesses each of whom testified that they did not see Elrod and Omstead at the Tri-a-Nite lounge on the evening of the fire. Buchanan also testified in his own defense, denying any involvement in the bombing.

B.

The § 2255 hearing revealed that agent Tilley and Gwen Whitten met before Buchanan's first trial, when Tilley was investigating the fire at Huffman's trailer. Tr. 10. ³ Tilley obtained one statement from Whitten and reduced it to writing. Tr. 70-71. Despite the fact that Whitten "did not know anything about the fire," tr. 70 Tilley continued to meet with Whitten on a personal basis and the pair soon became "friends." Tr. 72, 32. Between Buchanan's first and second trial, Tilley and Whitten continued their friendship, meeting occasionally. Tr. 12-13. Subsequent to Buchanan's conviction in March, 1984, the pair continued to socialize and dine together. Tr. 91. Including telephone calls, Tilley acknowledged speaking with Whitten approximately a hundred times between 1983 and 1985. Tr. 121-22.

On June 1, 1985, Whitten gave birth to a girl named Angela Nicole Tilley. Tr. 13-14. On June 6, pursuant to Whitten's request, Tilley signed a sworn affidavit acknowledging paternity of the child. Tr. 92. Whitten testified, however, that Tilley was not the father and claimed that she had lied on the birth certificate. Tr. 35-36. Tilley testified that he did not know who the baby's father was. Tr. 120.

After hearing this testimony, the district court held that the undisclosed information concerning the Tilley-Whitten relationship raised a "reasonable probability" that Buchanan's conviction "may not have occurred." Buchanan v. United States, No. 87-50-C, order at 2, (E.D.Okla. Sept. 30, 1988). The court therefore held that the government's failure to disclose this relationship to Buchanan violated the Brady rule and entitled Buchanan to a new trial.

II.

We review the factual findings of a district court acting pursuant to 28 U.S.C. § 2255 under the clearly erroneous standard. United States v. Owens, 882 F.2d 1493, 1501-02 n. 16 (10th Cir.1989). However, the materiality of withheld evidence under Brady and its possible effect on the verdict are mixed questions of fact and law reviewed de novo. Bowen v. Maynard, 799 F.2d 593, 610 (10th Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986). We therefore review de novo the district court's holding that the government's failure to disclose the Tilley-Whitten relationship violated Brady.

To assess Buchanan's claim that the government's failure to disclose the Tilley-Whitten relationship violated Brady, our inquiry begins at the source. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct....