NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0461n.06
Filed: June 3, 2005
No. 03-2546
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) EASTERN DISTRICT OF MICHIGAN
)
AMONT JEFFERSON, ) OPINION
)
Defendant-Appellant. )
)
)
BEFORE: COLE and GIBBONS, Circuit Judges, and SCHWARZER,* Senior District
Judge
PER CURIAM. Amont Jefferson appeals his conviction, after a jury trial, of bank robbery
under 18 U.S.C. §§ 2 and 2113(a). He also appeals the denial of his motion for a new trial and his
sentence of six years’ imprisonment. Jefferson argues that the government’s failure to disclose the
report of a witness interview violated the Supreme Court’s decision in Brady v. Maryland, 373
U.S. 83 (1963), which established that the government may not suppress material evidence that is
favorable to the accused. The district court held a hearing and determined that even if the interview
report was deliberately withheld, there was no constitutional error because the evidence would not
have affected the outcome of the case. The court therefore denied Jefferson’s motion for a new trial.
*
The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
No. 03-2546
United States v. Jefferson
For the reasons discussed below, we affirm Jefferson’s conviction and the denial of his motion for
a new trial, but remand for resentencing.
BACKGROUND
On September 18, 2001, Jefferson, Arthur Bowlson, Robert Moore, and Marco Houston met
at the house of Brent Crowell to plan a bank robbery, which they carried out later that day at a
branch of National City Bank in St. Clair Shores, Michigan. Jefferson’s job was to enter the bank
to see how many people were inside the bank and whether the tellers were protected by bulletproof
glass. To do this, Jefferson entered the bank and pretended to be interested in opening a bank
account. The bank surveillance camera photographed Jefferson standing at the teller window, and
the teller recorded information about his inquiry. Jefferson then left the bank and described the
interior to Bowlson, who entered the bank with his face concealed and a gun in his hand and
obtained over $12,000 in cash from the tellers’ drawers. After Bowlson left the bank, he and Moore
fled a short distance and were apprehended. Jefferson and Houston escaped safely but were later
arrested.
Jefferson was indicted for bank robbery and carrying a firearm during a crime of violence.
His first trial resulted in a not guilty verdict on the firearm charge and no verdict on the bank
robbery charge. In his second trial, he was convicted of bank robbery and sentenced to six years’
imprisonment.
During Jefferson’s sentencing hearing, defense counsel learned that the FBI had interviewed
Crowell, whose statement contradicted some of the testimony of Moore, the principal witness
against Jefferson. Specifically, Jefferson argues that Crowell’s statement contradicted Moore’s
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United States v. Jefferson
testimony by indicating that the men arrived and left in only one car, rather than two; that the men
left and brought back breakfast from McDonald’s, rather than raiding Crowell’s refrigerator; and
that there was no gun in Crowell’s house for the men to have taken. Jefferson moved for a new trial
on the ground that the government’s failure to disclose the information regarding the Crowell
interview in response to discovery requests was a Brady violation. After a hearing, the trial court
held that the evidence would not have affected the outcome of the case and denied the motion. The
court thereafter sentenced Jefferson to six years’ imprisonment. Jefferson timely appealed.
STANDARD OF REVIEW
“The decision whether to grant or to deny a motion for a new trial rests within the district
court’s sound discretion.” United States v. Braggs, 23 F.3d 1047, 1050 (6th Cir. 1994) (citing
United States v. Seago, 930 F.2d 482, 488 (6th Cir. 1991)). “[T]his court reviews the denial of a
motion for a new trial based on newly discovered Brady evidence for an abuse of discretion.”
United States v. Ross, 245 F.3d 577, 584 (6th Cir. 2001) (citation omitted).
DISCUSSION
I. BRADY VIOLATION
The Supreme Court recently summarized the three components of a “true” Brady violation,
stating that “[t]he evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have been suppressed by the State,
either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.
263, 281-82 (1999). Demonstrating prejudice requires the defendant to show that the suppressed
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United States v. Jefferson
favorable evidence at issue is material. Id. at 282. Favorable evidence is material for Brady
purposes “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. at 280; Kyles v. Whitley, 514 U.S. 419,
433-34 (1995); Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir. 2003) (citing United States v.
Bagley, 473 U.S. 667, 682 (1985)). In this case, the evidence is not material nor favorable to
Jefferson and, in any event, was not suppressed by the government.
A. The Evidence Is Not Material
Jefferson claims that because Crowell’s testimony contradicts some of Moore’s testimony,
the withholding of the interview report constituted a Brady violation. Specifically, Jefferson argues
that in light of Crowell’s statement, the jury could have inferred that Moore was lying about
significant events leading up to the robbery and could have concluded that he was not credible
regarding the information he provided about Jefferson’s involvement in the robbery.
While Crowell may have contradicted Moore on some points–namely, what the defendants
ate while they were at his house, which particular cars they used, and whether there was a gun in the
house–Crowell’s testimony would have contradicted Jefferson’s defense theory in more significant
respects. Jefferson testified that he did not know Crowell or Bowlson and that he was not with
Moore or Bowlson on the day of the robbery. Crowell’s testimony that Jefferson was in the
company of the other defendants on the day of the robbery would only have enhanced the
government’s case. The type of cars at Crowell’s house, what the men ate for breakfast, and whether
there was a gun at Crowell’s house have little relevance to the case against Jefferson.
Jefferson was photographed in the bank less than twenty minutes before Bowlson robbed it.
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No. 03-2546
United States v. Jefferson
Jefferson’s girlfriend verified that the man in the surveillance photo was Jefferson. He gave a false
name and pretended to be interested in opening an account. The Sable in which Bowlson made his
getaway was rented to Jefferson’s girlfriend. Additionally, Moore was extensively cross-examined
about his prior convictions, the fact that he lied to his common-law wife about his girlfriend, the
details of his cooperation agreement with the government, and even whether he was lying about
where the group had breakfast that day. As the district court noted at the sentencing hearing, the
defense did a good job of impeaching Moore at the trial. Details about cars used or where the men
ate breakfast would not have changed the outcome of the jury verdict, and whether there was a
firearm at Crowell’s house is irrelevant because Jefferson was acquitted of the firearm charge in his
first trial.
In light of the great weight of evidence against Jefferson that would result from Crowell’s
testimony, the slight impeachment value of the testimony, and the fact that Moore had already been
extensively cross-examined with impeaching evidence, the district court did not abuse its discretion
in holding that the outcome would not have been different if the report of Crowell’s testimony had
been known to the defense.
B. The Evidence Was Not Suppressed
In any case, there was no Brady violation because the information that Crowell provided to
the FBI in his interview was not suppressed. Brady holds that the prosecution may not suppress
favorable material evidence. 373 U.S. at 87. But evidence is not “suppressed” when it is readily
available to the defendant from other sources. United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir.
1994); see also United States v. Corrado, 227 F.3d 528, 538 (6th Cir. 2000) (stating that evidence
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No. 03-2546
United States v. Jefferson
need not be disclosed if the defense could have located and interviewed witnesses through a
reasonable effort). We have held that no Brady violation exists “where a defendant knew or should
have known the essential facts permitting him to take advantage of any exculpatory information.”
United States v. Cottage, 307 F.3d 494, 499-500 (6th Cir. 2002) (quoting United States v. Clark, 928
F.2d 733, 738 (6th Cir. 1991) (internal citations omitted)).1
In this case, Crowell was listed as a government witness in the first trial, although he never
testified. Moreover, Jefferson knew long before the trial that the government’s theory included the
facts surrounding the meeting of the four alleged bank robbers at Crowell’s house on the morning
of the robbery. Moore testified at Jefferson’s first trial that Jefferson was with the other three
robbers at Crowell’s house on the morning of the robbery. Crowell’s potential testimony regarding
the events of that morning would seem to be of great interest to the defense, yet there is no
indication that defense counsel pursued this evidence. Furthermore, there is nothing to suggest that
Crowell was not accessible for questioning by defense counsel. Crowell was not in custody or
otherwise in the control of the government. And there is no indication that Crowell refused to speak
with defense counsel. See Strickler, 527 U.S. at 285 & n.27 (holding that records and notes of
interviews were suppressed because the witness refused to speak to defense counsel before trial);
1
In Mullins, this court held that the FBI did not violate due process under Brady by failing
to disclose a summary of a witness interview conducted by the FBI because the defendant knew, or
was aware of, the information that the witness provided to the FBI. 22 F.3d at 1371-72. Similarly,
here, Jefferson could have located and interviewed Crowell with a reasonable effort, thus permitting
him to take advantage of any exculpatory information Crowell might have to offer. Therefore, the
evidence at issue here was not suppressed. See Cottage, 307 F.3d at 499-500; Corrado, 227 F.3d
at 538.
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United States v. Jefferson
United States v. Frost, 125 F.3d 346, 381 (6th Cir. 1997) (finding that the government had
suppressed part of the statement of a witness who refused to be interviewed by the defense).
Nothing prevented defense counsel from calling Crowell as a witness or interviewing him to see
whether he would contradict Moore’s testimony regarding the events at his house. Jefferson’s
counsel did not need to read a report of an FBI interview with Crowell to discover whether Crowell
could provide any exculpatory evidence.
Because the interview report was neither material nor suppressed, there was no
Brady violation.
II. SENTENCING
Jefferson originally challenged his sentence on the basis that the federal Sentencing
Guidelines are unconstitutional in their entirety or, alternatively, that he was erroneously assessed
two additional points on his offense level based on facts found by the sentencing judge rather than
by the jury, in violation of his Sixth Amendment rights.2 We need not reach the issue of whether
there was a Sixth Amendment violation because United States v. Barnett, 398 F.3d 516 (6th Cir.
2005), dictates that the remedial interpretation of the Sentencing Guidelines set forth in United
States v. Booker, 125 S. Ct. 738 (2005), must be applied to all cases on direct review, even to those
2
Specifically, the district court found that Jefferson committed perjury at trial and therefore
added an obstruction of justice enhancement. At trial, Jefferson testified that he did not participate
in the robbery, that he did not go to Moore’s house on the day of the robbery, that he did not even
know who Crowell was, that he went to the bank only to open an account for Houston, and that he
did not even know the robbery had occurred until two weeks later. The court determined, as the
government now argues, that the jury’s verdict established that Jefferson committed perjury because
the jury could not have believed these statements without acquitting Jefferson.
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No. 03-2546
United States v. Jefferson
defendants “who had been sentenced under the mandatory Guidelines without suffering a Sixth
Amendment violation.” Barnett, 398 F.3d at 524 (citing Booker, 125 S. Ct. at 765). However, a
defendant must raise this argument on appeal to obtain relief. United States v. Oliver, 397 F.3d 369,
377 n.1 (6th Cir. 2005) (noting that supplemental authority letters submitted prior to and subsequent
to oral argument were sufficient to raise Booker issue on appeal).
In his brief, Jefferson based his argument regarding his sentence on Blakely v. Washington,
124 S. Ct. 2531 (2004) (holding that judges may not enhance sentences based on facts not admitted
by defendant or found by a jury), contending that his Sixth Amendment rights were violated.
However, prior to oral argument, Jefferson submitted a supplemental citation of authority on the
sentencing issue, citing Booker, 125 S. Ct. 738. Jefferson now argues that his sentence was imposed
in error because the district court sentenced him under the belief that the Guidelines were
mandatory. Jefferson’s supplemental citation of authority was sufficient to raise on appeal
Jefferson’s argument that his sentence violated Booker. See Oliver, 397 F.3d at 377 n.1. However,
because Jefferson did not raise this issue at sentencing, we review for plain error. Id. at 377.
The district court erred in treating the Guidelines as mandatory. Barnett, 398 F.3d at 525.
The error was plain because Booker effectuated a clear and obvious change in the law by making
the Guidelines advisory. Id. at 526. Prejudice may be assumed because the court would have been
free to impose a lower sentence under an advisory Guidelines regime. Id. at 527-28. In this case,
prejudice is also apparent because in adding points due to obstruction of justice, the court stated:
[A]s a matter of philosophy or personal belief, I might come out with a different
result than the U.S. Supreme Court did in terms of allowing more points for
exercising the constitutional right to testify on your own behalf. But where – I am
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United States v. Jefferson
basically under the supervision of the Supreme Court, I have to follow their
precedent, and then the only question becomes is that substantial evidence is in
support of finding what the guidelines calls an obstruction of justice based on
perjury, and I’m making that finding.
Finally, exercising discretion to correct the plain error is appropriate in this case where it is
impossible to tell if the judge would have given the same sentence under the new regime. Id. at 529-
30. “We would be usurping the discretionary power granted to the district courts by Booker if we
were to assume that the district court would have given [the defendant] the same sentence post-
Booker.” Oliver, 397 F.3d at 380 n.3.
We therefore remand this case in light of Booker for resentencing under an advisory
Guidelines regime. Barnett, 398 F.3d at 531; see also United States v. Howard, 2005 WL 612121
at *2 (6th Cir. Mar. 17, 2005) (remanding for resentencing under Booker and Barnett absent a Sixth
Amendment violation).
REMANDED for resentencing.
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