U.S. v. O'Hara

• Decision Date: 20 August 2002
• Docket Number: No. 01-2950.,01-2950.
• Citation: 301 F.3d 563
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard O'HARA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

301 F.3d 563

UNITED STATES of America, Plaintiff-Appellee, v. Richard O'HARA, Defendant-Appellant.

No. 01-2950.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 2002.

Decided August 20, 2002.

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Tracy M. Johnson (Argued), Michelle L. Jacobs, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Allan A. Ackerman (Argued), Chicago, IL, Marc W. Martin (Argued), Chicago, IL, for Defendant-Appellant.

Before BAUER, POSNER and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge.

Richard O'Hara was convicted of conspiracy to possess stolen property (Count I) and traveling in interstate commerce to commit extortion (Count IV).¹ O'Hara was sentenced to sixty (60) months on each count, to run consecutively, as well as supervised release and a special assessment. On appeal, O'Hara argues that: (1) his due process rights were violated when he was not granted full access to the classified FBI file on one of the government's witnesses; (2) the district court erred in dismissing his motion for judgment of acquittal on Count IV; and (3) the district court abused its discretion in imposing consecutive sentences. We find each of these arguments to be without merit.

Background

O'Hara, an antique art dealer from Chicago, had an ongoing business and sometimes romantic relationship with Marilyn Karos, a Milwaukee art dealer, beginning in about 1991. In the mid to late 1980's, Karos received four antique scientific instruments — three astrolabes and one armillary sphere — as collateral in an independent transaction. Some time later, after researching the origin and worth of the collateral Karos became aware that at least some if not all of it was stolen.

In 1997, Karos met Zakria El-Shafei. Karos hired El-Shafei to assist her in selling various antique and art works. Among the items Karos asked El-Shafei to sell were some valuable paintings, whose purchase had been financed by O'Hara, and, eventually, the astrolabes and armillary sphere. El-Shafei's lack of success in selling either the paintings and/or scientific instruments became a source of frustration for both Karos and O'Hara.

Karos really became upset upon learning that El-Shafei pawned one of the astrolabes at a jewelry store. She confronted El-Shafei, who returned only some of the items that she had given him to sell. Karos then spoke to O'Hara about the problems she was having with El-Shafei. O'Hara offered to speak to El-Shafei himself in an effort to get the rest of the items back.

After plans to meet with El-Shafei in Chicago failed, O'Hara decided to travel to Milwaukee to confront El-Shafei. O'Hara asked two associates, whose presence he felt would intimidate El-Shafei, to join him. On November 22, 1997, O'Hara and the two men met at his Chicago gallery, drank alcohol, and then drove to Milwaukee. On arriving in Milwaukee, O'Hara and the two men met Karos at a public rendezvous point, from where they all proceeded to Karos's residence.

That night, Karos invited El-Shafei to her home. El-Shafei arrived at Karos's house at approximately 8:00 p.m. and followed her into the basement where he was assaulted by O'Hara and the two men. After a struggle, El-Shafei managed to break free and call 911. When the police arrived, El-Shafei informed them that he had been assaulted by three men, one of whom wore a mask and beat him with a baseball bat. The bat wielder was later identified as O'Hara.

On September 6, 2000, a grand jury returned a three-count indictment charging Karos and O'Hara with violations of 18 U.S.C. §§ 371 (conspiracy to possess stolen goods) and 2315 (possession of stolen goods). A superseding indictment was returned on February 6, 2001, adding two counts of violating 18 U.S.C. § 1952 (interstate travel to commit extortion) against O'Hara.

During trial, the defense counsel brought to the court's attention that potential Brady information contained in FBI reports concerning prosecution witness El-Shafei had not been disclosed in response to pretrial discovery requests. The government denied any knowledge of this material and was instructed by the court to contact the FBI. After looking further into the matter, the government requested and was granted an ex parte communication with the court to discuss the material in El-Shafei's FBI file. Following this ex parte communication (which was taped and sealed) the court advised counsel for the defense that El-Shafei's file did contain some information it deemed Brady material to which the defense was entitled. However, the court determined that disclosure of the Brady material implicated the Classified Information Procedures Act ("CIPA").

Pursuant to CIPA, the district court then reviewed El-Shafei's file in camera. The court found that the majority of the information contained therein was not Brady material and had no likelihood of impacting the trial. The court identified ten statements that he felt should be disclosed under Brady and the government agreed to declassify the identified material, which was placed under protective order.² The defense was granted a continuance until March 19, 2001, in order to investigate and call witnesses (the sources for three of the statements were declassified) based on the newly disclosed information.

When the trial resumed, O'Hara elected not to call any witnesses. On March 19, 2001, O'Hara was found guilty of conspiring to possess stolen property (Count I) and traveling in interstate commerce to commit extortion (Count IV). He was sentenced to a total term of 120 months.

Discussion

A) CIPA and Disclosure of Brady Material

As an initial matter, O'Hara argues that any reliance by the government and/or court on CIPA was misplaced because the classified material in question had been discovered after the commencement of trial.

We do not agree that CIPA is limited to pretrial proceedings. We review questions of statutory construction and interpretation de novo. Masters v. Hesston Corp., 291 F.3d 985, 989 (7th Cir.2002). Section 4 of CIPA reads:

The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

18 U.S.C.App. 3 § 4. Nothing in section 4 nor elsewhere in CIPA limits its invocation and use to pretrial proceedings. To the contrary, when read in its entirety, CIPA contains repeated references to trial as well as pretrial proceedings. CIPA's plain terms evidence Congress's intent to protect classified information from unnecessary disclosure at any stage of a criminal trial. Any other interpretation would be wholly inconsistent with and threaten to undermine CIPA's fundamental purpose — protecting and restricting the discovery of classified information in a way that does not impair the defendant's right to a fair trial. The district court acted within its authority when it relied on section 4 in determining whether the potential Brady material in El-Shafei's FBI file was "classified," as that term is defined by CIPA.³

We next turn to the question of whether the timing and manner of disclosing El-Shafei's FBI file amounted to a Brady violation. We review the district court's ruling regarding disclosure of claimed Brady material, made after an in camera review pursuant to CIPA, for an abuse of discretion. United States v. Plescia, 48 F.3d 1452, 1457 (7th Cir.1995). "When a criminal defendant seeks access to confidential ... files, we rely particularly heavily on the sound discretion of the trial judge to protect the rights of the accused as well as the government." Id.

There are three components to a Brady violation: (1) the evidence at issue is favorable to the accused because it is either exculpatory or impeaching; (2) the evidence has been suppressed by the government, either willfully or inadvertently; and (3) the suppressed evidence resulted in prejudice. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). "[T]here is never a real `Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Id. at 281. Moreover, evidence for Brady purposes is deemed "suppressed" if (1) the prosecution failed to disclose the evidence before it was too late for the defendant to make use of the evidence, and (2) the evidence was not otherwise available to the defendant through the exercise of reasonable diligence. Boss v. Pierce, 263 F.3d 734, 739 (7th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1961, 152 L.Ed.2d 1022 (2002).

The evidence at issue here was not suppressed at all. Though discovered during trial, O'Hara had sufficient time to make use of the material disclosed. Delayed disclosure of evidence does not in and of itself constitute a Brady violation. United States v. Walton, 217 F.3d 443, 450-51 (7th Cir.2000); United States v. Higgins, 75 F.3d 332, 335 (7th Cir.1996). The government acted promptly to ensure Brady compliance once the evidence was discovered, and the court proceeded cautiously to avoid prejudice and ensure compliance with applicable law. O'Hara was provided all information the court concluded to be Brady material after in camera review.⁴ He was also...