U.S. v. Weintraub, 87-1857

• Decision Date: 21 April 1989
• Docket Number: No. 87-1857,87-1857
• Citation: 871 F.2d 1257
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard WEINTRAUB, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1257

871 F.2d 1257

UNITED STATES of America, Plaintiff-Appellee, v. Bernard WEINTRAUB, Defendant-Appellant.

No. 87-1857.

United States Court of Appeals, Fifth Circuit.

April 21, 1989.

Benson B. Weintraub, Benedict P. Kuehne, Sonnett, Sale & Kuehne, Miami, Fla., for defendant-appellant.

William D. Sheetz, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, WILLIAMS and JONES, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Appellant, Bernard Weintraub, was convicted of various criminal offenses arising from his involvement in a cocaine distribution conspiracy. He has filed a petition in the nature of habeas corpus under 28 U.S.C Sec. 2255 seeking to have his conviction vacated and his sentence set aside. We uphold his conviction. We must set aside the sentence and remand for further proceedings, however, based upon our conclusion that the prosecution improperly withheld favorable evidence that was material to Weintraub's punishment.

I. Facts and Prior Proceedings

Bernard Weintraub was charged in a five count indictment with conspiracy to possess and distribute cocaine and related substantive offenses. Count I of the indictment alleged twenty overt acts that Weintraub or his co-conspirators committed in furtherance of this conspiracy, recounting the details of eight specific cocaine transactions. Counts II and III alleged that Weintraub distributed five ounces of cocaine to an unindicted co-conspirator, Gregory Brown Emrick, on March 23, 1983, and traveled in interstate commerce to carry on this unlawful activity. Counts IV and V alleged that Weintraub distributed cocaine to Emrick on April 23, 1983, and used the telephone to facilitate this transaction. Weintraub was convicted by a jury in the Northern District of Texas on three counts of the indictment: Count I (the conspiracy charge); Count IV (use of the telephone to facilitate the April 23, 1983 transaction); and Count V (distribution of cocaine on April 23, 1983). He was acquitted on Counts II and III, arising from the alleged March 23, 1983 transaction.

On May 23, 1985, Weintraub was sentenced to fifteen years' imprisonment on Count I, running concurrently with a fifteen-year prison term on Count V and a four-year term on Count IV. He was also fined $75,000. Weintraub did not file a direct appeal.

On September 26, 1985, Weintraub filed a motion to reduce his sentence under Fed.R.Crim.P. 35(b), claiming an unjust disparity between his sentence and the punishment of his co-conspirators. Weintraub also filed a consolidated motion under 28 U.S.C. Sec. 2255 and Fed.R.Crim.P. 35(a), seeking to vacate, set aside, or correct his sentence based on various procedural defects in the sentencing proceedings. Subsequent discovery revealed that Weintraub's trial prosecutor had failed to disclose certain evidence to Weintraub during the course of the trial. Weintraub contends that this information was withheld in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Weintraub amended his Sec. 2255 motion to include this ground, and also sought to have his conviction set aside because of the alleged Brady violation.

The district court denied Weintraub's motion for a reduction of sentence under Rule 35(b). ¹ The consolidated Rule 35(a)/Sec. 2255 motion to vacate or correct the sentence was referred to a federal magistrate, who conducted an evidentiary hearing in March, 1987. ² In October, 1987, the magistrate recommended that the district court deny all requested relief. The magistrate concluded that the prosecution should have revealed certain evidence favorable to Weintraub at trial. The magistrate determined, however, that Weintraub's conviction and sentence should not be set aside because this evidence was not material. The magistrate also recommended that Weintraub's sentence should not be set aside on the basis of procedural violations in Weintraub's sentencing proceeding. The district court adopted the findings and conclusions of the magistrate, and denied all relief. Weintraub now appeals the denial of his 28 U.S.C. Sec. 2255 motion.

II. Withheld Evidence

Under Brady v. Maryland, the prosecution must disclose to the defendant evidence that is favorable to the accused and "material either to guilt or to punishment." 373 U.S. at 87, 83 S.Ct. at 1196-97. Failure to disclose such evidence violates a defendant's due process right to a fair trial. The withholding of material evidence favorable to the accused may require a new trial or, where the evidence is material only to the punishment, a new sentencing proceeding. See, e.g., id. at 88-89, 83 S.Ct. at 1197-98 (withheld evidence material only to punishment); Lindsey v. King, 769 F.2d 1034, 1041-43 (5th Cir.1985) (new trial required when withheld evidence cast serious doubt on key witness' identification of capital murder defendant).

It is axiomatic, however, that not every instance of withheld evidence creates a due process violation. "The prosecution is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial." United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985). Our first task, then, is to determine whether a Brady due process violation occurred in this case.

A. The asserted Brady violations

Weintraub contends that the prosecution improperly withheld information in the Drug Enforcement Administration's (DEA) investigative reports, known as DEA-6's. These reports contained summaries of statements made by Weintraub's unindicted co-conspirator, Greg Emrick, during the course of the DEA investigation. Weintraub argues that, had this information been properly revealed at trial, he could have effectively impeached Emrick's trial testimony, undermining Emrick's credibility to the extent that the jury would have acquitted Weintraub on all charges.

Impeachment material is evidence "favorable to the accused," and as such comes under the Brady rule. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380. Some of Weintraub's asserted Brady violations, however, do not clearly fall within this category. Weintraub complains that the prosecution did not reveal that some of Emrick's trial testimony was not included in the DEA-6 reports. According to Weintraub, the fact that Emrick apparently failed to discuss certain information with the DEA in the course of its pretrial investigation is Brady material. We disagree.

The DEA-6 reports are not verbatim accounts of Emrick's pretrial statements. Instead, "the reports are short, concise, summaries of the witnesses' version of the facts as recounted to the agents." United States v. Merida, 765 F.2d 1205, 1215 (5th Cir.1985). In Weintraub's case, one of the reports at issue summarized Emrick's statements made in three separate interviews conducted over the course of two and a half months. Thus, the fact that a specific piece of trial testimony is not included in a DEA-6 is not necessarily a reflection on the credibility of the witness, but instead may be the result of an agent's transcription techniques. Taking into account the realities of this summation process, this Court was "not persuaded that any Brady -mandated material existed" in a similar case where the accused contended that the prosecution should have revealed that specific trial testimony was not included in a DEA-6. United States v. Merida, 765 F.2d at 1216. We conclude that the fact that the DEA-6's did not contain certain statements that Emrick made at trial is not Brady material that the prosecution was under a duty to disclose.

Weintraub also complains that the prosecution withheld evidence that was included in the DEA-6 reports and was contradicted by Emrick's trial testimony. The first serious inconsistency involves the amount of cocaine that Weintraub was responsible for distributing. During the course of its pretrial investigation, Emrick told the DEA that he had been purchasing three to five ounces of cocaine a week from Andrew Glomb, Weintraub's partner in supplying cocaine to the Dallas area, for two and a half to three years. ³ This statement was incorporated in a DEA-6. At trial, however, Emrick testified that he had purchased six to fourteen ounces a week from Glomb and Weintraub, totalling 50 to 70 pounds in a three year period. ⁴

Emrick also contradicted a pretrial statement in his trial testimony regarding a specific cocaine transaction. Emrick testified at trial that he traveled from Dallas, Texas to Miami, Florida on December 31, 1982, arriving in Miami at 6:14 p.m. Weintraub met him at the airport, and they drove to the Airport Marriott in Miami. Emrick purchased cocaine from Weintraub in the parking lot at the Airport Marriott. According to Emrick, this entire transaction took, at most, thirty minutes, and Weintraub departed from the hotel some time between 6:30 and 6:45.

In a pretrial statement to DEA investigators, however, Emrick said that he had arrived in Miami at 9:00 p.m. on December 31. This time variation is critical. Weintraub had a copy of an airline ticket, introduced in evidence at the Sec. 2255 hearing, which establishes that he flew from Miami to Las Vegas on December 31, 1982, departing at 7:01 p.m. Thus, he could not have met Emrick at the Miami Airport at 9:00 p.m., as Emrick originally stated to DEA investigators. Weintraub was not able to raise this inconsistency at trial, however, because the prosecution never disclosed the fact that Emrick had originally given the 9:00 p.m. time. ⁵

The magistrate who ruled on Weintraub's Sec. 2255 motion concluded that this impeachment evidence should have been revealed to Weintraub at trial. The government...