UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 96-50897
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
ROY MARION JONES,
Defendant-Appellant
Appeal from the United States District Court
For the Western District of Texas
(A-94-CV-222-JN)
February 20, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:*
I.
Facts & Procedural History
Appellant, Roy Marion Jones, fled the United States after his
April 6, 1983, indictment for conspiracy to import marijuana.
Jones was captured and jailed in Colombia on July 29, 1983, where
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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he was living under an assumed name. In November, 1983, the United
States sought Jones’ extradition. Jones was subsequently convicted
in Colombia, resulting in a term of imprisonment there. Jones’
sentence in Colombia was commuted on January 22, 1988, upon
condition of his leaving the country, and on November 22, 1990, he
was deported to the United States and arrested upon his arrival in
Miami. Jones was tried and convicted on April 25, 1991, of
conspiracy to import and conspiracy to distribute marijuana. The
District court sentenced Jones to consecutive five years terms for
each count. Apparently, still feeling the itch to be free, Mr.
Jones has filed no less than four appeals with this Court, two of
which have been resolved on the merits, this being the fourth.
Both of the previously adjudicated appeals presented the same or
similar questions by different methods.
The first appeal in 1991 was a direct appeal from his
conviction, wherein Mr. Jones argued that he was denied a speedy
trial, that the evidence was insufficient to convict him and that
the district court abused its discretion in sentencing him to
consecutive terms. This Court determined all of those issues
against Mr. Jones. United States v. Jones, No. 91-8399 (5th Cir.
March 10, 1992)(unpublished). Thereafter, on June 11, 1992, Mr.
Jones filed in the district court a Motion to Correct or Reduce
Sentence, purportedly under Fed. R. Crim. P. 35, claiming that the
evidence did not support his conviction and that his consecutive
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sentences were an abuse of discretion. That motion was summarily
rejected by the district court, reconsidered under the then recent
Supreme Court decision in Doggett v. U.S., 505 U.S. 647 (1992) and
rejected again. On appeal this Court again rejected Mr. Jones’
arguments finding that Fed. R. Crim. P. 35 was an inappropriate
vehicle for challenging the merits of one’s conviction and that the
district court did not abuse its discretion in sentencing Mr. Jones
to consecutive sentences. United States v. Jones, No. 92-8411 (5th
Cir. Oct. 25, 1993)(unpublished).
On March 30, 1994, Mr. Jones filed a Motion to Vacate, Set
Aside or Correct Judgment under 28 U.S.C. § 2255 claiming for the
third time that his sentence was invalid and for the second time
that he had been denied the right to a speedy trial. The district
court denied Mr. Jones § 2255 petition. Mr. Jones appealed that
denial on September 11, 1995, which appeal was dismissed for
failure to pay the filing fee. United States v. Jones, No. 94-50679
(5th Cir. Oct. 28, 1994)(unpublished).
The fourth appeal, with which we are presently concerned,
started life on August 2, 1995, as a Motion to Present New Evidence
for Reconsideration. By that Motion for Reconsideration Mr. Jones
presented three old issues (speedy trial, insufficient evidence to
convict, and invalid sentence) and a new Brady issue.2 The
2
Brady v. Maryland, 373 U.S. 83 (1963), the landmark Supreme Court
case establishing the prosecutorial duty to disclose exculpatory evidence
to the defense.
3
district court dismissed Jones’ Motion for Reconsideration, and
this appeal followed.
On appeal this Court treated Jones’ Motion for Reconsideration
as a second § 2255 petition subject to the constraints of Rule 9(b)
of the Rules Governing § 2255 Proceedings regarding successive
petitions. United States v. Jones, No. 95-50715 (5th Cir. April 5,
1996). This Court held that the district court and this Court
could not dismiss Jones’ second § 2255 petition under Rule 9(b),
because Jones’ had not been given notice of the possibility of
dismissal. Therefore, this Court remanded the matter to the
district court so that the district court might review Jones’
second § 2255 petition under Rule 9(b).
On remand the district court gave Jones notice that his second
§ 2255 petition might be dismissed. Thereafter, the district court
found that the issues of speedy trial, sufficiency of evidence to
convict and sentencing should be dismissed, because they had been
previously adjudicated. Finally, the district court found that,
even if Jones could show cause why he did not raise the Brady issue
in his first § 2255 petition, no prejudice resulted from the
government’s alleged Brady violation, and therefore, Jones’ second
petition must be dismissed en toto under Rule 9(b) and McCleskey v.
Zant, 499 U.S. 467, 489-96, 111 S. Ct. 1454, 1467-1471 (1991)(no
abuse of § 2255 procedure where petitioner can show cause for
failure to assert error in prior petition and prejudice from
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alleged error). Jones appealed the dismissal and this Court
granted a certificate of appealability under the Antiterrorism and
Effective Death Penalty Act on the Brady issue only.
I.
LAW & ANALYSIS
A.
Issues for Review
Initially, there is a question about what issues are properly
before this Court. The government argues that only the Brady issue
is properly before this Court. Jones argues that this Court
improperly issued a certificate of appealability limiting review to
the Brady issue, and therefore the Court also should determine
whether the other three issues (speedy trial, sufficiency of
evidence to convict and validity of consecutive sentences) were
properly dismissed under Rule 9(b).3
Whether this Court should have issued a certificate of
appealability or a certificate of probable cause is irrelevant.
Regardless of the method used, appellate review in this case was
properly limited to the Brady issue. This Court on direct appeal
has already determined the issues of speedy trial and sufficiency
of evidence to convict. United States v. Jones, No. 91-8399 (5th
Cir. March 10, 1992)(unpublished). Likewise, this Court has
3
Jones has made this argument twice already, and his petition for
panel rehearing and suggestion for rehearing en banc on the COA issue were
both denied.
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already determined that Jones’ sentence was appropriate by
affirming the district court’s denial of Jones’ motion under Fed.
R. Crim. P. 35. United States v. Jones, No. 92-8411 (5th Cir. Oct.
25, 1993)(unpublished). Therefore, the Brady issue is the only
issue raised by Jones’ second § 2255 petition that has not been
previously determined by this Court on the merits.
B.
Brady Issue
The crux of Jones’ argument is that the government failed to
inform the defense that one of its key witnesses, Robert Nestoroff,
was under investigation for conspiracy to obstruct justice and
perjury with respect to criminal investigations. Since this Brady
issue is raised in Jones’ second § 2255 petition, he must survive
the requirements of Rule 9(b) of the Rules Governing § 2255
Proceedings. Rule 9(b) requires the district court to determine
whether second or successive § 2255 petitions raising new and
different grounds for relief constitute an abuse of the procedure.
Successive writs raising new and different grounds for relief are
not an abuse of the procedure, if the petitioner can show cause for
failing to assert the new ground for relief in the prior petition
and that the alleged error prejudiced his defense. McCleskey v.
Zant, 499 U.S. 467, 489-96, 111 S. Ct. 1454, 1467-1471 (1991).
The district court found that, even if Jones could show cause
why he did not raise this issue in his first § 2255 petition, no
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prejudice resulted from the alleged Brady violation, because the
investigation of Nestoroff did not start until long after Jones’
trial. However, in making this ruling the district court accepted
the magistrate’s mistaken belief that Jones’ was tried in 1983. In
fact, Jones was indicted in 1983, but his trial took place on April
22-25, 1991. Nestoroff was notified on September 10, 1992, that he
was a target of a grand jury investigation in the Southern District
of Florida. Although the district court was clearly wrong about
the timing of Jones’ trial in relation to the grand jury
investigation of Nestoroff, there is no proof that the government
knew of Nestoroff’s illegal activities prior to or during Jones’
trial. As the district court properly noted, Brady does not
require the disclosure of exculpatory evidence which does not yet
exist. However, the fact that the grand jury investigation of
Nestoroff began less than eighteen months after Jones’ conviction
would at least support an inference that the government knew of
Nestoroff’s illegal activities well before that time and perhaps
even before Jones was convicted.
Assuming that the government knew of Nestoroff’s criminal
activity before Jones’ trial, that information would have been
relevant only for purposes of impeaching Nestoroff’s testimony.
“When the ‘reliability of a given witness may well be
determinative of guilt or innocence,’ nondisclosure of
evidence affecting credibility falls within th[e] general
rule [of Brady]. We do not, however, automatically
require a new trial whenever ‘a combing of the
prosecutors’ files after the trial has disclosed evidence
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possibly useful to the defense but not likely to have
changed the verdict ...’ A finding of materiality of the
evidence is required under Brady ... A new trial is
required if ‘the false testimony could ... in any
reasonable likelihood have affected the judgment of the
jury ...’”
United States v. Bagley, 473 U.S. 667, 677, 105 S. Ct. 3375, 3381
(1985), quoting Giglio v. United States, 405 U.S. 150, 154, 92 S.
Ct. 763, 766 (1972)(citations omitted). Therefore, assuming a
Brady violation here, it avails Jones nothing unless Nestoroff’s
loss of credibility is reasonably likely to have affected the
judgment of the jury against Jones.
As it turns out, a careful reading of the trial transcript
reveals that Nestoroff’s testimony was almost entirely redundant,
and simply reiterated parts of the prior testimony of the
government’s key witness, Richard Braziel, the Drug Enforcement
Administration Agent who headed the investigation of Jones. In
fact Nestoroff’s testimony is wholly unnecessary to link Jones to
the airplane carrying the drugs from Mexico. That link was
established by Braziel’s voice identification of Jones as the pilot
of the aircraft, which Jones abandoned upon landing in Killeen,
Texas, and by the extrinsic evidence that Jones’ fingerprints were
found in the airplane.4 We cannot say that any prejudice resulted
4
The facts as alleged by the government and accepted by the jury were
that Jones was being investigated as part of a larger investigation of an
air smuggling ring. In early December, 1982, Agent Nestoroff used an
informant in the airplane chartering business, Ayla Schbly, to acquire the
right to afix a tracking device to an airplane which would then be offered
to the suspected drug smugglers for use in their smuggling operation. On
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from Jones not being able to impeach Nestoroff’s credibility, when
Braziel’s testimony alone was sufficient to establish Jones’ guilt.
Therefore, any error by the magistrate and district court regarding
the timing of Jones’ trial and the investigation of Nestoroff is
harmless, given the correctness of the magistrate’s finding that
“even if Nestoroff’s testimony had been excluded, the other
evidence of guilt is more than adequate to support Jones’
conviction.”
III.
CONCLUSION
It should be exceedingly clear that the issues of speedy
trial, sufficiency of the evidence to convict and consecutive
sentences forever have been resolved on the merits and cannot form
the basis for any subsequent motions or petitions from Jones,
barring some change in the law which would entitle him to relief.
Even assuming that Jones on remand could show a Brady violation,
December 18, 1982, Agent Braziel went to Gant aviation to look for the
plane, only to find it was gone and that Jones’ green and white pickup was
parked outside Gant aviation. On the evening of December 20, 1982, the
tracking device triggered an alarm at a monitoring station and the plane
showed up on radar as being off the coast of Texas, inbound from Mexico.
Agents alit in their own chase aircraft and began a pursuit in the dark;
none of the aircraft had their lights on. Agent Braziel overheard portions
of the radio conversation between the pilot of the suspect airplane and the
ground crew. Braziel identified the voice of the pilot as Jones.
Eventually, Braziel spoke directly with Jones, who responded to “Hey, Roy”.
Eventually, Jones landed the aircraft at Killeen Airport. The chase team
of three aircraft landed immediately behind Jones, but by the time they
reached the aircraft, Jones had abandoned it, filled to the brim with
marijuana. Jones fled to Colombia. At trial, Braziel’s testimony alone
was sufficient to establish that Jones was the pilot of the aircraft loaded
with marijuana.
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that Brady violation would not entitle Jones to relief because
Nestoroff’s testimony could be impeached or excluded entirely
without affecting the integrity of the verdict. Therefore, we
affirm.
AFFIRMED.
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