U.S. v. Jones, s. 94-1127

• Decision Date: 19 October 1994
• Docket Number: 94-1130,Nos. 94-1127,s. 94-1127
• Citation: 34 F.3d 596
• Parties: UNITED STATES of America, Appellee/Cross-Appellant, v. Carlos JONES, also known as Dion Tillman, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 596

34 F.3d 596

UNITED STATES of America, Appellee/Cross-Appellant, v. Carlos JONES, also known as Dion Tillman, Appellant/Cross-Appellee.

Nos. 94-1127, 94-1130.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1994.

Decided Aug. 25, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 19, 1994.

Mark Joseph Cero, Sr., St. Louis, MO, argued, for appellant.

Thomas J. Mehan, St. Louis, MO, argued, for appellee.

Before LOKEN, Circuit Judge, and JOHN R. GIBSON and FRIEDMAN ^*, Senior Circuit Judges.

FRIEDMAN, Senior Circuit Judge.

A jury in the United States District Court for the Eastern District of Missouri convicted the appellant Tillman of carjacking (the armed taking of a motor vehicle), in violation of 18 U.S.C. Secs. 2119 and 2 (Count I) and using or carrying a firearm during and in relation to the carjacking, in violation of 18 U.S.C. Sec. 924(c)(1) Count II). Prior to sentencing, the district court ¹ dismissed Count II, on the ground that multiple punishments for the two offenses would subject Tillman to double jeopardy.

In his appeal, Tillman contends that the district court improperly denied his motion for a new trial, which he sought on two grounds: (1) that the government's failure to disclose to him before trial several prior convictions of a principal government witness denied him due process; and (2) that there was newly discovered evidence that he would have used to impeach another government witness. In its cross appeal, the government challenges the district court's ruling that multiple punishments for the two offenses would subject Tillman to double jeopardy.

We affirm the denial of a new trial, but reverse the dismissal of Count II on double jeopardy grounds and remand for sentencing under that count.

I

A. There was evidence from which the jury could have found as follows:

Michael Patrick and Donald Ray drove in Patrick's friend's car to a gasoline station, where Patrick used the telephone and Ray remained in the car. Tillman and two others, wearing bandannas over their faces and carrying handguns, robbed Patrick of his money. Tillman and another of the robbers then entered the car, ordered Ray at gunpoint to get out, which he did, and drove off. After a brief police chase, the car struck the curb, and Tillman was arrested as he ran from the car. At trial, Tillman admitted that he drove the car without permission.

Tillman and James Mills were indicted on two counts charging them with carjacking and using or carrying a firearm during and in relation to the carjacking. The case was severed for trial, and Tillman was tried before Mills, who ultimately was acquitted.

B. Prior to trial, Tillman moved for production of the arrest and conviction reports of all witnesses the government intended to call. The prosecution made a records check of Donald Ray, which included a review of the Missouri Uniform Enforcement records, which did not show any convictions.

On the morning of Tillman's trial, Ray told the prosecutor that he had served time in Illinois for burglary, and the prosecutor informed Tillman of that fact. Tillman used that conviction in cross-examining Ray.

At the subsequent trial of co-defendant Mills, Mills brought out in cross-examination of Ray that the latter had multiple convictions, including two for possession of a stolen vehicle, aggravated battery, armed robbery, and another theft. Each of these convictions was in Illinois state proceedings, and was a "public record."

C. At Tillman's trial, Patrick testified that he was robbed at the phone booth by Tillman and one accomplice. Patrick stated on cross-examination that the money taken was in part from his employment at Number One Wholesale, on 2101 Salisbury, where he worked full-time for Maurice Locke, and still worked. At co-defendant Mills' later separate trial, however, Billy Hicks testified that he owned the property at 2101 Salisbury, that Locke had been out of the building for a couple of years and was not running Number One Wholesale out of that building for that time, including the day of Tillman's trial, and that Number One Wholesale had been out of business for two years. On cross-examination, Hicks gave testimony which appeared somewhat inconsistent with his prior testimony about the operation of Number One Wholesale at 2101 Salisbury.

D. After the jury verdict, the district court granted Tillman's motion to dismiss Count II, on the ground that multiple punishments under the two counts would subject Tillman to double jeopardy. The court stated:

Congress has not clearly indicated an intent to authorize cumulative punishment for carjacking and using or carrying a firearm during a carjacking. Therefore cumulative sentences would violate double jeopardy.

E. Tillman moved for a new trial on two grounds: (1) the prosecution's failure to disclose Ray's other convictions, which could have been used to impeach Ray, denied Tillman due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) Hicks' testimony at Mills' trial regarding Patrick's employment at Number One Wholesale, which allegedly impeached Patrick's trial testimony on that subject, constituted newly discovered evidence. The district court denied a new trial.

II

In Brady, the Supreme Court stated:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process 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. at 1196-97.

As this court has recognized, "the Brady rule applies to impeachment evidence, as well as to exculpatory evidence." United States v. Wayne, 903 F.2d 1188, 1192 (1990) (citing Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)).

Tillman contends that the prosecution's failure to disclose to him before trial Ray's additional Illinois state convictions, which he could have used to impeach Ray, violated Brady and, therefore, denied him due process.

The fatal flaw in this contention is that Brady requires the prosecution to disclose to the defendant only evidence in the prosecution's possession. Prior to trial, however, the only conviction of Ray that the prosecution knew about was his burglary conviction. The prosecution learned about this conviction from him only on the morning of trial, and promptly disclosed it to Tillman. The prosecution did not learn about Ray's other Illinois convictions until they were disclosed in the subsequent trial of Mills, by which time Tillman's trial had been completed.

The government has no "affirmative duty ... to take action to discover information which it does not possess." United States v. Tierney, 947 F.2d 854, 864 (8th Cir.1991) (citation omitted). See also United States v. Dunn, 851 F.2d 1099, 1101 (8th Cir.1988) ("the government has no affirmative obligation to discover potentially exculpatory information which it neither possessed nor of which it was aware"). There is, therefore, no Brady violation if the government does not "possess" the material at issue. Id. In addition, the "prosecutor has no duty to undertake a fishing expedition in other jurisdictions in an effort to find impeaching evidence." United States v. Stuart, 923 F.2d 607, 612 (8th Cir.1991), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991).

Tillman contends that the prosecution should be deemed to have possessed before trial the information about Ray's additional convictions because it could have discovered that information if it had made a proper inquiry into Ray's criminal history, by checking the records of the Federal Bureau of Investigation or making inquiry of the National Crime Information Center. He relies on the Fifth Circuit's decision in United States v. Auten, 632 F.2d 478 (1980), which held that the government was in constructive possession of evidence of a witness's additional convictions, despite its apparent lack of actual knowledge of them, because the information was "readily available" to it. Id. at 481.

In the present case, unlike Auten, the government did make a records check--of the criminal records of Missouri, the state where the crimes were committed--and found nothing. We do not believe that when the government learned, on the morning of trial, of Ray's Illinois burglary conviction, its failure to make further inquiry about Ray's other convictions put it in "constructive possession" of knowledge of those convictions, so that its failure to disclose them to Tillman constituted a Brady violation.

Auten, of course, does not bind us. To the extent it is inconsistent with our decisions cited above, we decline to follow it.

Furthermore, there is nothing in the record that shows that a check of the records of the Federal Bureau of Investigation or the National Crime Information Center would have disclosed Ray's other state convictions. Tillman's argument, therefore, is "nothing more than a shot in the dark." See United States v. Navarro, 737 F.2d 625, 632 (7th Cir.), cert. denied, 469 U.S. 1020, 105 S.Ct. 438, 83 L.Ed.2d 364 (1984) (rejecting such a contention where the defendant offered no evidence that there were records of prior convictions in the federal government's files).

Moreover, the information about Ray's criminal record was first revealed through the investigation made by Mill's counsel. This suggests that this information also was accessible to Tillman's attorney. The district court in Mills' trial concluded that Ray's convictions were a "public record." When information is readily available to the defendant, it is not Brady material, and the prosecution does not violate Brady by not discovering and disclosing the information. Tierney, 947 F.2d at 864; United States v. Willis, 997 F.2d 407, 412-13 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 704, 126 L.Ed.2d 670 (1994). See also Reese v. Frey, 801 F.2d...