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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14327
Non-Argument Calendar
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D.C. Docket No. 5:10-cr-00024-MTT-CHW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARSHALL H. FOSKEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 30, 2014)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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On November 5, 2010, Marshall Foskey, having been found guilty by a jury
of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1), was sentenced by the District Court to a prison term of 240 months. On
January 9, 2012, we affirmed his conviction. United States v. Foskey, 455
Fed.Appx. 884 (11th Cir. 2012), rejecting his challenge that the District Court erred
in denying his motion to suppress the “semiautomatic handgun, ammunition, and
camouflage clothing and face paint,” id. at 3, the Macon Police discovered in his
van during an inventory search. 1
On February 15, 2012, Foskey, proceeding pro se, moved the District Court
for a new trial pursuant to Federal Rule of Criminal Procedure 33 based on newly
discovered evidence relevant to the issues involved in the hearing on his motion to
suppress. The evidence consisted of the Macon Police Department (“MPD”)
Impound Motor Vehicle Procedure Policy, as contained in the MPD’s General
Order 1020. This evidence, he argued, established that the Government (1)
suppressed evidence favorable to the defense in violation of Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (2) knowingly used perjured
testimony, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31
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The police seized the van after Foskey refused to communicate with the police officers
who had arrested him because “no one was available to take custody of the vehicle.” Foskey 455
Fed.Zppx. at 3
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L.Ed.2d 104 (1972); and (3) committed prosecutorial misconduct by soliciting
perjured testimony, withholding exculpatory evidence, using fraudulent
documentation, and committing fraud on the court in order to obtain his
conviction. The District Court denied his motion, and he appeals.
On appeal, Foskey argues that the District Court abused its discretion in
denying his motion for a new trial, as he demonstrated that the Government, in
failing to disclose the MPD Impound Motor Vehicle Procedure Policy, violated the
Brady rule, and Giglio as well, because it obtained his conviction based on the
false testimony of MPD officers. Additionally, he argues that the court erred by
accepting the Government’s new theory for his vehicle’s impoundment; the
Government previously argued that the impoundment and subsequent inventory
search were authorized under the MPD’s Search and Seizure Policy. Finally, he
contends that the Government violated Brady and Giglio when it failed to disclose
to him the witness statements contained in the MPD’s investigative report that
were material to the case.
We review the denial of a Rule 33 motion for a new trial for abuse of
discretion. United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir. 2009).
Additionally, “[p]ro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.” Boxer X
v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (quotations omitted).
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“Under the law of the case doctrine, both district courts and appellate courts
are generally bound by a prior appellate decision in the same case.” Alphamed,
Inc. v. B. Braun Med., Inc., 367 F.3d 1280, 1285-86 (11th Cir. 2004). Further, “a
legal decision made at one stage of the litigation, unchallenged in a subsequent
appeal when the opportunity existed, becomes the law of the case for future stages
of the same litigation, and the parties are deemed to have waived the right to
challenge that decision at a later time.” United States v. Escobar-Urrego, 110 F.3d
1556, 1560 (11th Cir. 1997). The law of the case doctrine applies unless: (1) our
prior decision resulted from a trial where the parties presented substantially
different evidence from the case at bar; (2) subsequently released controlling
authority dictates a contrary result; or (3) the prior decision was clearly erroneous
and would work manifest injustice. Alphamed, 367 F.3d at 1286 n.3.
Rule 33 allows a defendant to file a motion for a new trial within 3 years
after the verdict if the motion is based on “newly discovered evidence,” or 14 days
after the verdict if based on “other grounds.” Fed. R. Crim. P. 33(b). The court
may grant the motion “if the interest of justice so requires.” Fed. R. Crim. P.
33(a). To succeed on a Rule 33 motion based on newly discovered evidence, the
defendant must establish that:
(1) the evidence was discovered after trial, (2) the failure of the
defendant to discover the evidence was not due to a lack of due
diligence, (3) the evidence is not merely cumulative or impeaching,
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(4) the evidence is material to issues before the court, and (5) the
evidence is such that a new trial would probably produce a different
result.
United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotations
omitted). The defendant must satisfy all of these elements to warrant relief.
United States v. Williams, 816 F.2d 1527, 1530 (11th Cir. 1987). Motions for a
new trial based on newly discovered evidence “are highly disfavored . . . and
should be granted only with great caution.” United States v. Campa, 459 F.3d
1121, 1151 (11th Cir. 2006) (en banc) (quotations omitted).
“[T]he 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.”
Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. In order to obtain a new trial on the
basis of a Brady violation, the defendant must show that:
(1) the government possessed favorable evidence to the defendant;
(2) the defendant does not possess the evidence and could not obtain
the evidence with any reasonable diligence; (3) the prosecution
suppressed the favorable evidence; and (4) had the evidence been
disclosed to the defendant, there is a reasonable probability that the
outcome would have been different.
United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002).
While both impeachment and exculpatory evidence fall within the Brady
rule, a finding of materiality is required to support a new trial. United States v.
Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 3380-81, 87 L.Ed.2d 481 (1985).
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Evidence is material if there is a “reasonable probability” that disclosure of the
evidence would have changed the outcome of the proceeding. Id. at 682, 105 S.Ct.
at 3383. “The question is not whether the defendant would more likely than not
have received a different verdict with the [concealed] evidence, but whether in its
absence he received a fair trial.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct.
1555, 1566, 131 L.Ed.2d 490 (1995). The defendant does not have to demonstrate
by a preponderance that disclosure of the suppressed evidence would have resulted
in an acquittal. Id. Rather, the defendant establishes a Brady violation by showing
that “the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine confidence in the verdict.” Id. at 435, 115
S.Ct. at 1566. A reviewing court considers materiality “in terms of the cumulative
effect of suppression.” Id. at 437, 115 S.Ct. at 1567.
The government’s presentation of perjured testimony or failure to correct
false evidence violates due process. Giglio, 405 U.S. at 153-55, 92 S.Ct. at 766.
In order to establish a Giglio violation, the defendant must show that “(1) the
contested statements were actually false, (2) the statements were material, and
(3) the prosecution knew that they were false.” United States v. Bailey, 123 F.3d
1381, 1395 (11th Cir. 1997) (quotations omitted). The use of testimony that is
inconsistent with a witness’s prior testimony or that of a co-defendant does not
suffice to show that the proffered testimony was false. Hays v. State of Ala., 85
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F.3d 1492, 1499 (11th Cir. 1996) (addressing a federal habeas petition). Moreover,
“[a] different and more defense-friendly standard of materiality applies where the
prosecutor knowingly used perjured testimony, or failed to correct what he
subsequently learned was false testimony.” United States v. Alzate, 47 F.3d 1103,
1110 (11th Cir. 1995). The falsehood is deemed to be material “if there is any
reasonable likelihood that the false testimony could have affected the judgment of
the jury.” Id. (quotations omitted) (emphasis in original). “[T]his standard of
materiality is equivalent to the Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.
824, 828, 17 L.Ed.2d 705 (1967), ‘harmless beyond a reasonable doubt’ standard.”
Id.
We conclude that the District Court did not abuse its discretion by denying
Foskey’s Rule 33 motion for a new trial. First, with regard to his claim that the
Government violated Brady by failing to produce the impound policy, the court
correctly found that Foskey did not establish prejudice under Brady. See Vallejo,
297 F.3d at 1164. Under the policy, MPD officers were authorized to impound a
vehicle for safekeeping when the operator of the vehicle was arrested, as well as to
remove any evidence of a crime found during an inventory search of the vehicle.
In affirming Foskey’s conviction, we held that the court correctly found that the
officers reasonably suspected that the vehicle belonged to Foskey. See United
States v. Foskey, 455 Fed.Appx. 884, 889-90 (11th Cir. 2012) (unpublished).
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Therefore, under the law of the case doctrine, the officers were authorized under
the policy to impound the vehicle and conduct the inventory search. As such, even
had Foskey been provided the impound policy, there was not a reasonable
probability that the outcome of his proceedings would have been different. See
Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.
Next, the District Court also correctly found that Foskey was not entitled to
a new trial on the basis of any false testimony. While Foskey argues that the
arresting officers’ testimony was untrue, his claim is foreclosed by the law of the
case doctrine, as we held on direct appeal that the officers’ testimony was
consistent with the evidence in the record. See Foskey, 455 Fed.Appx. at 890.
Additionally, as the doctrine bars a finding that the officers’ testimony was false,
Foskey cannot establish that he was entitled to a new trial on the basis of any
Giglio violation. See Giglio, 405 U.S. at 153-55, 92 S.Ct. at 766; Bailey, 123 F.3d
at 1395.
Further, Foskey’s claim that he is entitled to a new trial because the
Government put forth, and the District Court adopted, a “new theory” for his
vehicle’s impoundment is unavailing. At the suppression hearing prior to trial, the
Government argued that the inventory search of Foskey’s vehicle was authorized
under the MPD’s search and seizure policy. Later, in response to Foskey’s motion
for a new trial, it argued that: (1) the impound policy was merely cumulative to the
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evidence presented at the suppression hearing; and (2) in any event, the officers
complied with the impound policy. Thus, the record does not support Foskey’s
assertion that the Government changed its theory for justifying the inventory
search.
Finally, the court correctly found that Foskey was not entitled to a new trial
on the basis of the MPD’s investigative report. The portions of the report at issue
contained witness statements, which were cumulative to the evidence presented at
the suppression hearing. In sum, the court correctly found that the report did not
support either a Brady or Giglio claim. See Bagley, 473 U.S. at 682, 105 S.Ct. at
3383; Alzate, 47 F.3d at 1110.
The District Court’s denial of Foskey’s motion for new trial is, accordingly,
AFFIRMED.
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