NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0055n.06
No. 07-2183 FILED
Jan 28, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ALONZO BATES, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
)
)
Before: BATCHELDER, Chief Judge; GIBBONS, Circuit Judge; MALONEY, Chief
District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Alonzo Bates appeals
from the district court’s denial of his motion for a new trial under Brady v. Maryland, 373 U.S. 83
(1963). Bates pled guilty to four counts of failing to file a tax return and was convicted on four
counts of theft from a program receiving federal funds and one count of bank fraud. The charges
related to Bates’s use of his city-funded payroll during his three years as a Detroit City councilman.
Bates argued before the district court that the government failed to turn over exculpatory and
material evidence in the form of handwritten notes by an FBI case agent that contained two purported
statements made by Bates’s former girlfriend, Verenda Arnold. The statements were not included
*
The Honorable Paul L. Maloney, Chief United States District Judge for the Western District
of Michigan, sitting by designation.
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United States v. Bates
in the previously disclosed FBI 302 report, authored by the same agent, that detailed the interview
with Arnold. The district court rejected Bates’s Brady claims regarding both purported
statements. For the reasons herein, we affirm.
I.
On March 9, 2006, a federal grand jury returned a superseding indictment charging Bates in
fourteen counts, including mail fraud, in violation of 18 U.S.C. § 1341 (counts one through four);
theft from a program receiving federal funds, in violation of 18 U.S.C. § 666 (counts five through
eight); extortion, in violation of 18 U.S.C. § 1951 (count nine); bank fraud, in violation of 18 U.S.C.
§ 1344 (count ten); and failure to file a tax return, in violation of 26 U.S.C. § 7203 (counts eleven
through fourteen). The government alleged that Bates, an elected member of the Detroit City
Council, orchestrated a scheme to employ “ghost” employees, including Arnold, who were paid
hourly by the city to perform work for the office of Councilman Bates but who actually did not
perform their work obligations, thereby stealing money from the city. On August 22, 2006, the first
day of trial, Bates pled guilty to all four counts of failure to file a tax return, and the government
dismissed the four counts of mail fraud. A jury convicted Bates on four counts of theft from a
program receiving federal funds and one count of bank fraud but did not reach a verdict on the
extortion count.
On January 30, 2007, Bates moved for a new trial, alleging that the government failed to turn
over exculpatory evidence prior to trial in violation of Brady. Bates argued that the government did
not disclose FBI case agent Michael Haynie’s handwritten notes, which indicated that Arnold had
said during a government debriefing that Bates did not know that she was not working her assigned
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twenty hours per week. That statement was not included in the FBI 302 report formally summarizing
the debriefing that was authored by Agent Haynie and disclosed to the defense prior to trial.
Furthermore, Bates contended that Haynie also omitted from the FBI 302 report the fact that Arnold
strongly disagreed with the government’s calculation of the hours for which she was wrongfully
paid. The government disputed whether Arnold had made the statement relating to Bates’s
knowledge during the debriefing and argued that Arnold’s comment regarding the number of hours
billed that she actually worked was made outside the presence of the prosecution team. On the
question of whether there was a Brady violation, the Government argued before the district court that
1) Arnold’s statement as to Bates’s knowledge was speculative and therefore inadmissible at trial;
2) in light of the overwhelming evidence at trial, the outcome would not have been different even
if the evidence had been admitted; and 3) Bates was on notice of the essential facts contained in the
handwritten notes.
The district court held evidentiary hearings on the motion on March 7 and June 12, 2007, and
subsequently denied Bates’s motion on July 26, 2007. Regarding whether Arnold made a statement
during the debriefing that disputed the percentage of hours billed for which she actually worked, the
district court found that Bates did not offer any evidence to refute a contradictory assertion made in
the affidavit of Arnold’s attorney, Robert Harris. Harris had stated that Arnold never made that
statement to the prosecution team but rather had made the claim to Harris outside the presence of
the prosecution team. Because Bates did not establish that the prosecution team was even aware that
Arnold claimed to have worked at least fifty percent of the hours billed, the district court found that
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Bates could not establish suppression of that information by the government.1 Turning to the issue
of Arnold’s statement regarding Bates’s lack of knowledge of her failure to work her billed hours,
the district court presumed that Arnold made the statement to the prosecution team during the
debriefing. The district court concluded, however, that the government’s failure to disclose this
information to Bates did not constitute a Brady violation because Bates was indisputably aware that
Arnold might be a source of exculpatory evidence and that he reasonably should have interviewed
her on the subject of whether Bates knew of her actual work hours.
On September 20, 2007, the district court sentenced Bates to thirty-three months of
imprisonment. Bates timely appealed.
II.
This court “reviews denial of a motion for a new trial based on Brady violations under an
abuse of discretion standard,” but reviews “the district court’s determination as to the existence of
a Brady violation . . . de novo.” United States v. Graham, 484 F.3d 413, 416-17 (6th Cir. 2007)
(citing United States v. Jones, 399 F.3d 640, 647 (6th Cir. 2005), and United States v. Miller, 161
F.3d 977, 987 (6th Cir. 1998)).
III.
Under Brady, “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,
1
Bates raises this argument again on appeal. The district court’s conclusion, however, that
Bates had not offered any evidence to refute the statement contained in the affidavit of Arnold’s
attorney that Arnold never made this statement to the prosecution team, is fully supported by the
record. Bates does not now cite, nor does a review of the record reflect, any evidence that challenges
the district court’s finding.
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irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87. There is no Brady
violation, however, “unless the nondisclosure was so serious that there is a reasonable probability
that the suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S.
263, 281 (1999). As the Court noted in Kyles v. Whitley, “[t]he question is not whether the defendant
would more likely than not have received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”
514 U.S. 419, 434 (1995). We have held that where the defendant was “‘aware of the essential facts
that would enable him to take advantage of the exculpatory evidence,’” the government’s failure to
disclose that evidence does not violate Brady. Spirko v. Mitchell, 368 F.3d 603, 610 (6th Cir. 2004)
(citing United States v. Todd, 920 F.2d 399, 405 (6th Cir. 1990)). To be entitled to a new trial, a
defendant must also show that the suppressed exculpatory evidence “could not have been discovered
earlier with due diligence, and is material.” United States v. Corrado, 227 F.3d 528, 538 (6th Cir.
2000) (citing United States v. Frost, 125 F.3d 346, 382 (6th Cir. 1997)).
Bates has not shown that he would have been unable to obtain Arnold’s statement regarding
his knowledge of work hours through reasonable pretrial due diligence. Rather, the record reflects
that Arnold’s statement and the related testimony that might result from the discovery of that
statement were available to Bates from an easily accessible and known source. Bates has himself
argued that his knowledge about whether his employees were working the hours for which they
billed was a central issue for the defendant at trial, and the record demonstrates that Bates and his
counsel were aware that Arnold might have been able to provide information on that issue.
Furthermore, given the more than twenty-five year romantic relationship between Bates and Arnold
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and the “strong emotional attachment” that Arnold still feels for Bates, Bates and his counsel clearly
had access to Arnold pretrial. Bates’s trial counsel, Steven Fishman, stated that he had “many
conversations” with Arnold’s lawyer prior to trial and that Arnold’s lawyer “kept [him] apprised of
what was going on” with Arnold. (Mot. Hr’g Tr. at 77.) In fact, before Arnold pled guilty, Fishman
believed that Arnold “was going to stand trial and claim that she didn’t misstate her hours, that she
worked those hours and she was supposedly going to explain how she was able to have a full-time
job plus work the 20 hours a week for which she was paid.” (Mot. Hr’g Tr. at 72.) A reasonable
defendant, therefore, “would have pursued that inquiry” by interviewing Arnold prior to trial,
“unless, of course, he already knew that the inquiry would not in fact result in exculpatory
information.” Spirko, 368 F.3d at 611. Because Bates was aware of the essential facts that would
enable him to take advantage of the exculpatory evidence and could have discovered the evidence
prior to trial with due diligence, we affirm the district court’s denial of Bates’s motion for a new
trial.
Even if this Court were to assume that Bates could not have discovered the evidence prior
to trial with due diligence, the record demonstrates that Arnold’s statement about Bates’s knowledge
and related testimony on that topic would not have created a “reasonable probability” of a different
verdict. Strickler, 527 U.S. at 281. Bates argues that “Arnold’s proposed testimony, like her
statements to agents during the debriefing, would have contradicted everything that the Government
was arguing about [Bates’s] knowledge of the hours worked/billed by his employees.” (Def.’s Br.
at 10.) While Arnold’s statement and testimony may be viewed as somewhat favorable to Bates, the
inconsistencies present in that testimony render it insufficient to have produced a different result at
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No. 07-2183
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trial. Although Arnold testified at the evidentiary hearing that Bates did not know when she worked
fewer than twenty hours per week, she contradicted herself in explaining that Bates was “very hard
on” his employees and required that they take notes at meetings to document and prove that they
were there. (Evid. Hr’g Tr. at 13.) Furthermore, Arnold testified that while there “were weeks that
[she] worked less than 20 hours” (Evid. Hr’g Tr. at 17), Bates approved all of her time sheets. These
statements cast significant doubt on Arnold’s claim that Bates lacked knowledge about the hours she
worked.
The record also reveals significant questions regarding Arnold’s credibility that would impact
the value of her testimony at trial. See Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003)
(approving district court’s credibility determination in Brady analysis). First, Arnold’s long
relationship with Bates, the fact that they have a son together for whom Bates pays child support, and
Arnold’s “strong emotional attachment” and desire not “to see him go to jail” all demonstrate a bias
in favor of Bates. (Evid. Hr’g Tr. at 18, 30-31.) Second, the government has identified several
instances of untruthfulness in Arnold’s testimony that would undercut its value before a jury,
including Arnold’s lack of candor regarding whether she worked the midnight shift at the hospital
leaving her days free, the nature of her relationship with Bates, and whether she did work for Bates
during her hours at the hospital.
In light of the inconsistencies in Arnold’s testimony and the credibility issues raised by the
government, Arnold’s statement does not rise to the level of materiality warranting reversal under
Brady.
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IV.
For the foregoing reasons, we affirm the district court’s denial of defendant Bates’s motion
for a new trial and affirm his convictions.
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