United States v. Jeanpierre

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1882
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Marco Jeanpierre, *
*
Appellant. *
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Submitted: October 19, 2010
Filed: April 12, 2011
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Before SMITH, COLLOTON, and SHEPHERD, Circuit Judges.
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SMITH, Circuit Judge.

A jury convicted Marco Jeanpierre of one count of conspiracy to distribute 50
grams or more of crack cocaine, nine counts of distribution of crack cocaine, and one
count of being a felon in possession of a firearm. Prior to trial, the government filed
an information pursuant to 21 U.S.C. § 851 advising Jeanpierre that it intended to seek
an enhanced sentence from the statutory mandatory minimum term of ten years to 20
years based on his prior state conviction for a felony drug offense. At sentencing, the
district court1 sentenced Jeanpierre to the enhanced statutory mandatory minimum

1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
sentence of 20 years' imprisonment. On appeal, Jeanpierre asserts that he is entitled
to a new trial because the government repeatedly failed to provide discovery in a
timely fashion in violation of Brady v. Maryland, 373 U.S. 83 (1963). He also asserts
that the government abused its discretion in filing the information pursuant to § 851
or, in the alternative, exceeded its authority and the intent of the statute because
Congress did not intend the sentencing enhancements to apply to a low-to-mid-level
retailer or "street-level" offender. We affirm.

I. Background
Jeanpierre was charged in a superseding indictment with one count of
conspiracy to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846; numerous counts of distribution of crack
cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and
two counts of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Prior to trial, the government filed an information
notifying Jeanpierre that, pursuant to § 851, it intended to rely on Jeanpierre's May 5,
1998, Hennepin County, Minnesota conviction for a third-degree felony drug offense
for the purpose of enhancing his sentence from the statutory mandatory minimum of
ten years to 20 years.

A. First Motion To Dismiss
During trial, Jeanpierre made two motions to dismiss. The first motion to
dismiss stemmed from Jeanpierre's receipt of a wiretap summary prepared by
Minneapolis Police Officer John Biederman. The wiretap summary listed the pertinent
calls intercepted over the duration of the wiretap investigation. The wiretap summary
was a compilation of the wiretap monitoring that Officer Biederman and other officers
had conducted. Officer Biederman's wiretap summary contained references to traffic
stops. These stops had nothing to do with the ongoing wiretap investigation. Officers
not related to the narcotics investigation conducted these stops for unrelated, routine
traffic offenses.

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 During the pretrial phase, Jeanpierre lodged a motion to dismiss alleging that
the government failed to provide Computer Assisted Police Record System (CAPRS)
reports2 to him regarding the traffic stops mentioned in Officer Biederman's wiretap
summary. In response, the government stated that "all the reports that we have relative
to this investigation we have disclosed." Indeed, Jeanpierre had received a copy of all
of the intercepted calls in which he participated, had access to all intercepted calls
involving his codefendants, and reviewed, via his counsel, the government's file. The
court denied the motion to dismiss.

On the third day of trial, anticipating that Jeanpierre would renew his motion
to dismiss, the government raised the issue of the CAPRS reports related to the
wiretap summary. According to the government, it pulled every report referenced in
the wiretap summary and provided those reports to Jeanpierre. The government also
prepared a summary of incidents detailed in the reports, indicating whether the traffic
stops were random or were directed by officers in the case. Jeanpierre then renewed
his motion to dismiss, arguing that the government should have disclosed the CAPRS
reports referenced in the wiretap summary because they constituted Jencks Act3
material. The district court asked Jeanpierre's counsel to point to specific reports that
contained Jencks Act material. Counsel replied, "Again, I have not read all of these
documents. I tried to scan them while I was, here I am listening in one ear to the

2
The court asked Jeanpierre's counsel to explain what a CAPRS report was, to
which counsel replied, "I believe it's the police report that in their training manual, any
time a significant event happens with a Minneapolis police officer, a case number
needs to be created, or this CAPRS number, and there's a protocol for describing who,
what, where, why, along . . . ." Counsel clarified for the court that a police officer
must make a CAPRS report any time that he or she makes a stop or arrest.
3
"The Jencks Act requires the district court, on the motion of a defendant, to
produce any 'statements' of a government witness that relate to the subject matter of
the witness's testimony, after the witness has testified on direct examination." United
States v. New, 491 F.3d 369, 376 (8th Cir. 2007).

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testimony, trying to review this and go through it like we're going through it now."
The court then advised counsel that if he found something in the documents that
constituted Jencks Act material, he should advise the court. Additionally, the court
stated, "I think we're in agreement this is not Jencks. This name Detrick Giles,
telephone, this is not a prior statement given by a witness, so that's not Jencks, but if
there's any Jencks in here, let me know." And, the court noted that any CAPRS report
relating to Jeanpierre would constitute disclosable material under Federal Rule of
Criminal Procedure 16.

After the court afforded Jeanpierre's counsel time to review the reports, the trial
resumed. The court then asked counsel if he had anything that he wanted the court to
review, to which counsel replied, "No, Your Honor, other than on behalf of Mr.
Jeanpierre, we would request an adjournment to further prepare for these
proceedings." In response, the government argued that most of the reports were
merely traffic stops unrelated to the wiretap initiated for narcotics interdiction.
According to the government, they were included simply to provide complete
information and did not implicate the Jencks Act. The district court denied counsel's
request for an adjournment. Subsequently, Jeanpierre's counsel never conducted any
inquiry of any witnesses based on the CAPRS reports.

B. Second Motion To Dismiss
Jeanpierre's second motion to dismiss related to two fingerprint reports that the
government provided to him. The reports concerned two issues: (1) fingerprint
analysis for Jeanpierre's prior state felony conviction and (2) fingerprint analysis of
two firearms that did not reveal any fingerprint detail. Prior to trial, Jeanpierre agreed
to stipulate that he was the person convicted of the prior qualifying predicate felony
offense. On the eve of trial, Jeanpierre changed his mind, deciding not to stipulate. He
conceded that the government had relied on his agreement to stipulate. The
government then provided a copy of the fingerprint report to Jeanpierre.

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 Jeanpierre's counsel represented to the district court that the government
provided the fingerprint reports "not before trial but only during trial." Counsel argued
that he needed the reports to assist in examining witnesses. In response, the
government stated:

There's reference that counsel didn't get fingerprints until this trial
started. That's because he indicated he was going to stipulate. And since
he was not going to stipulate, then we decided we needed to provide that
information for him. So that's what those fingerprint references were for.

Jeanpierre filed a written motion to dismiss, alleging that the government had
"committed several discovery violations." According to Jeanpierre, the government
had "repeatedly failed to disclose relevant, exculpatory and impeachment evidence"
and had provided him with "a fingerprint report after the Government's witness had
testified." In response, the government informed the court that it had provided
Jeanpierre with the fingerprint report "prior to any testimony being offered at trial."
According to the government, although it did not provide the fingerprint report to
Jeanpierre before trial began, "he had possession of the report prior to any testimony
on the matter, and [he] used the findings of the fingerprint analyst in cross-
examination of the government's first witness. [Jeanpierre] also used these findings
in his closing argument to the jury." The government contended that no Brady
violation occurred.

At trial, the jury found Jeanpierre guilty on one count of conspiracy to distribute
50 grams or more of crack cocaine, nine counts of distribution of crack cocaine, and
one count of felon in possession of a firearm. The jury acquitted him on one count of
distribution of powder cocaine and one count of felon in possession of a firearm.

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 The district court denied Jeanpierre's motion to dismiss, stating:

The [late disclosure of fingerprint] data relate[s] to Count 65 of the
superseding indictment. As the jury returned a verdict of not guilty on
that count, the motion is moot with respect to that count. To the extent
the motion relates to Count 66, on which Defendant was found guilty, it
is without merit.

C. Motion for New Trial
After trial, the government informed Jeanpierre that it had become aware of an
adverse credibility ruling regarding the testimony of Sergeant Grant Snyder, albeit in
an unrelated case. Prior to sentencing, Jeanpierre filed a motion for new trial,
renewing his argument that the government failed to timely provide the CAPRS
reports and fingerprint reports. He also moved for a new trial based on the newly
discovered credibility ruling regarding Sergeant Snyder. The district court denied the
motion for new trial, concluding that the magistrate judge's statement in the unrelated
case regarding Sergeant Snyder's credibility would be inadmissible hearsay. The
district court also noted that the magistrate judge "did not permit the government to
offer evidence that would have rebutted the magistrate judge's finding because it
wasn't needed for the probable case finding that was at issue in that case."

D. Applicability of 21 U.S.C. § 851
At sentencing, the district court addressed the applicability of the § 851
enhancement. Jeanpierre had filed a response to the government's notice of intent to
pursue an enhanced sentence, arguing that he did "not challenge or deny that his prior
qualifying conviction" applies in the case; instead, he asserted that the enhancement
did not apply because he was not a "major" manufacturer or distributor of crack
cocaine. According to Jeanpierre, the government abused its discretion in filing the
information. The district court rejected this argument, holding that the government did
not abuse its discretion.

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 Ultimately, the district court sentenced Jeanpierre to 240 months' imprisonment,
followed by 10 years of supervised release.

II. Discussion
On appeal, Jeanpierre argues that this court should reverse his convictions and
remand for a new trial because the government's repeated failures to provide discovery
in a timely fashion, cumulatively, violated his Fifth Amendment right to due process
of law and his Sixth Amendment rights to a fair trial and effective assistance of
counsel. In the alternative, he asks this court to find that, under the circumstances of
his case, the § 851 sentencing enhancement does not apply.

A. Discovery
Jeanpierre asserts that the government violated its obligation under Brady to
timely disclose exculpatory evidence when it (1) belatedly provided, during the course
of trial, CAPRS reports regarding the surveillance and traffic stops of Jeanpierre and
various codefendants and unindicted coconspirators; (2) belatedly provided, during
the course of trial, two fingerprint reports; and (3) informed him, long after trial, that
a magistrate judge in an unrelated case found Sergeant Snyder's testimony not
credible.

The government has an obligation to disclose evidence that is favorable
to the accused and material to either guilt or punishment, and this duty
extends to impeachment evidence. To show a Brady violation, the
defendant must establish that (1) the evidence was favorable to the
defendant, (2) the evidence was material to guilt, and (3) the government
suppressed evidence.

United States v. Ladoucer, 573 F.3d 628, 636 (8th Cir. 2009) (quotations, alteration,
and citations omitted). "Evidence is material only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different." Id. (quotation, alteration, and citation omitted); see also

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United States v. Pulliam, 566 F.3d 784, 787 (8th Cir. 2009) ("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.") (quotation, alteration, and citation
omitted).

1. CAPRS Reports
Assuming, without deciding, that the CAPRS Reports were favorable to
Jeanpierre and material to his guilt, Jeanpierre has failed to prove that the government
suppressed the CAPRS reports. See Ladoucer, 573 F.3d at 636. "Although a
defendant's Brady rights are violated if he discovers information after trial which had
been known to the prosecution but unknown to the defense, the same is not true,"
where, as here, "the evidence is discovered during trial." United States v. Almendares,
397 F.3d 653, 664 (8th Cir. 2005) (quotation and citations omitted). We have
previously held that "Brady does not require pretrial disclosure, and due process is
satisfied if the information is furnished before it is too late for the defendant to use it
at trial." Id. Here, Jeanpierre was given the opportunity to call any additional
witnesses based on the content of the reports without objection from the government.
He elected not to conduct any further inquiry of any witness based on this material.
Thus, due process is satisfied. See Almendares, 397 F.3d at 664.

2. Fingerprint Reports
Jeanpierre's argument that the government violated Brady by belatedly
providing the fingerprint reports also fails. See Almendares, 397 F.3d at 664. First,
both reports were provided to Jeanpierre during trial. With regard to the fingerprint
report related to Jeanpierre's prior conviction, Jeanpierre himself contributed to its
tardiness. The government provided Jeanpierre with the report after Jeanpierre, on the
eve of trial, reneged on his agreement to stipulate to the prior conviction. Second, with
regard to the fingerprint report of the two firearms, although the government did not
provide the report prior to trial, it did provide the report prior to any testimony being

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offered at trial. Following the disclosure, Jeanpierre used the report in his cross
examination of Agent Calvin Meyer and in his closing argument, pointing out to the
jury that his fingerprints were not on the AB-10 9mm handgun. Accordingly, due
process is satisfied. See Almendares, 397 F.3d at 664.

3. Credibility of Sergeant Snyder
Finally, Jeanpierre asserts that the government violated Brady by advising him,
long after trial, that a magistrate judge, in a probable cause hearing in an unrelated
case with a different defendant, determined that Sergeant Snyder was not credible.
According to Jeanpierre, not being aware of this prior finding prevented his counsel
from effectively cross-examining Sergeant Snyder to impeach his testimony.

"Under Giglio v. United States, 405 U.S. 150, 153–55, 92 S. Ct. 763, 31
L. Ed. 2d 104 (1972), the government must disclose matters that affect
the credibility of prosecution witnesses." United States v. Morton, 412
F.3d 901, 906 (8th Cir. 2005). "[F]or example, a defendant is entitled to
know of a promise to drop charges against a key witness if that witness
testifies for the government." Id. However, the nondisclosure of Giglio
evidence only justifies a retrial if the withheld information is deemed
material. United States v. Spinelli, 551 F.3d 159, 164 (2d Cir. 2008).

United States v. Garcia, 562 F.3d 947, 952 n.7 (8th Cir. 2009).

Undisclosed Brady/Giglio information is deemed material so as to justify
a retrial only if there is a reasonable probability that, had it been
disclosed to the defense, the result of the proceeding would have been
different. A reasonable probability of a different result is shown when
the government's failure to disclose undermines confidence in the
outcome of the trial.

Id. at 953 (internal quotations, alterations, and citations omitted).

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 Here, the district court found that the magistrate judge's credibility
determination was inadmissible because it was hearsay. A majority of our sister
circuits to consider the issue have held "that judicial findings of facts are hearsay,
inadmissible to prove the truth of the findings unless a specific hearsay exception
exists." United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007) (citing Herrick v.
Garvey, 298 F.3d 1184, 1191–92 (10th Cir. 2002); United States v. Jones, 29 F.3d
1549, 1554 (11th Cir. 1994); Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993)). But
see United States v. Dawson, 434 F.3d 956, 959 (7th Cir. 2006) (finding that the
decision whether to allow witness to be cross-examined about prior judicial
determination finding him not credible is confided to discretion of trial judge and that
such questioning is not barred by Federal Rule of Evidence 608(b), which proscribes
the use of extrinsic evidence to undermine witness's character for truthfulness).

Under the Federal Rules of Evidence, two hearsay exceptions permit the
admission of judgments. Neither of these exceptions are applicable in the present case
because they

are limited to (1) prior judgments involving criminal convictions subject
to more than one year of imprisonment, Fed. R. Evid. 803(22), and (2)
judgments used to provide "proof of matters of personal, family or
general history, or boundaries," id. 803(23).

Sine, 493 F.3d at 1036–37.

In any event, we need not decide whether judicial credibility determinations are
inadmissible hearsay because, even assuming that they are admissible, Jeanpierre has
failed to show under Giglio how the adverse credibility finding was material.
Jeanpierre simply cannot show "a reasonable probability that, had it been disclosed
to the defense, the result of the proceeding would have been different." Garcia, 562
F.3d at 953 (internal quotations, alteration, and citations omitted). The government
produced overwhelming evidence of Jeanpierre's guilt at trial. As the government

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notes, seven codefendants testified that they spoke to Jeanpierre and later met with
him to purchase crack cocaine on numerous occasions between October 2007 and
December 2007. Additionally, officers conducting surveillance observed Jeanpierre
at these meetings, and numerous intercepted wiretap calls established that Jeanpierre
agreed to meet and sell crack cocaine to his codefendants through these calls. Finally,
a videotape showed Jeanpierre engaging in drug trafficking activity.

Therefore, we hold that the government did not violate Brady or Giglio in
belatedly disclosing the adverse credibility finding made against Sergeant Snyder in
an unrelated case.

B. Section 851 Enhancement
Jeanpierre also challenges the district court's application of the sentencing
enhancement under § 851. He does not challenge or deny his prior qualifying
conviction; instead, he asserts that he was "otherwise not subject to an increased
sentence as a matter of law," as provided in § 851(d)(2). Specifically, he maintains
that the government abused its discretion in filing the information; in the alternative,
he asserts that the government exceeded its authority and the intent of § 851 because
Congress did not intend the sentencing enhancement to apply to a low-to-mid-level
retailer or "street-level" retailer like Jeanpierre.

"Pursuant to 21 U.S.C. § 851(a)(1), a defendant's sentence may not be increased
by reason of his prior convictions unless the government files a written notice of its
intent to rely on those convictions prior to entry of the defendant's guilty plea." United
States v. Timely, 443 F.3d 615, 625–26 (8th Cir. 2006).

Section 851 is a provision that requires, if the United States Attorney
intends to seek enhanced penalties based on the defendant's prior
criminal record, that prior to the start of trial or the entry of a plea of
guilty, the defendant be given notice of that intent. The fact that it is the

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 prosecutor who decides whether to give such notice is simply a facet of
the above prosecutorial authority . . . .

United States v. Sanchez, 517 F.3d 651, 671 (2nd Cir. 2008). But a prosecutor's
discretion

"is, of course, subject to constitutional constraints," United States v.
Batchelder, 442 U.S. 114, 125, 99 S. Ct. 2198, 60 L. Ed. 2d 755 (1979);
the decision whether to prosecute may not be based on "an unjustifiable
standard such as race, religion, or other arbitrary classification," Oyler
v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962); see
also Yick Wo v. Hopkins, 118 U.S. 356, 373–74, 6 S. Ct. 1064, 30 L. Ed.
220 (1886). However, because the United States Attorneys are charged
with taking care that the laws are faithfully executed, there is a
"presumption of regularity support[ing] their prosecutorial decisions and,
in the absence of clear evidence to the contrary, courts presume that they
have properly discharged their official duties." [United States v.]
Armstrong, 517 U.S. [456,] 464, 116 S. Ct. 1480 [(1996)] (internal
quotation marks omitted); see also Oyler, 368 U.S. at 456, 82 S. Ct. 501
(Mere "conscious exercise of some selectivity in enforcement is not in
itself a federal constitutional violation.").

Id.

Here, Jeanpierre first argues that the government abused its discretion in filing
the information; however, he has not alleged that the government violated a
constitutional restraint in filing the information.

Next, he asks this court to find that the government exceeded the authority and
intent of § 851 because Congress did not intend the enhancement to apply to a low-to-
mid-level retailer or "street level" offender. In support of this argument, he relies on
the statutory notes to the 1986 amendments to 21 U.S.C. § 841, which created the
sentencing enhancement at issue. These statutory notes provide:

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 Subsec. (b)(1)(A). Pub.L. 99-570, § 1002(2), created an additional new
penalty for major manufacturers or distributors of drugs who would be
classified by the Drug Enforcement Administration as domestic class I
or II violators, and revised the triggering quantities and types of drugs to
which this subparagraph applies.

But a review of the text of § 851 reveals no requirement that the defendant be a
"major" manufacturer or distributor. "As with any question of statutory interpretation,
our analysis begins with the plain language of the statute." Jimenez v. Quarterman,
129 S. Ct. 681, 685 (2009). Jeanpierre has not identified any language in the statute
or any cases interpreting that statute to support his argument that the government
could not charge him under § 851 unless it established that he was a "major"
manufacturer or distributor. Therefore, we affirm the district court's application of the
enhancement to Jeanpierre.

III. Conclusion
Accordingly, we affirm the district court's judgment.
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