In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3276
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JULIUS W. LAWSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:13‐CR‐4 — Theresa L. Springmann, Judge.
____________________
ARGUED NOVEMBER 2, 2015 — DECIDED JANUARY 19, 2016
____________________
Before BAUER, POSNER, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Defendant‐Appellant Julius W.
Lawson and his confederate attempted to commit robbery in
a United States branch post office located at a shopping cen‐
ter in Fort Wayne, Indiana. In the post office, the confederate
pointed a firearm at a patron while Lawson looked for prop‐
erty to steal. Lawson was later apprehended because he left
his cell phone, palm print, and fingerprints on the post office
counter. His confederate was never identified.
2 No. 14‐3276
A jury convicted Lawson on all three counts related to
aiding and abetting firearm use during the attempted rob‐
bery of the post office.
Lawson appeals his convictions on three grounds. First,
he argues that there was insufficient evidence for the jury to
find that a “firearm” was used. Second, he contends that the
jury was improperly instructed on the theory of aiding and
abetting firearm use in light of Rosemond v. United States, 134
S. Ct. 1240 (2014), entitling him to a new trial. Third, he
claims that he is entitled to a new trial because the govern‐
ment withheld evidence of an investigator offering a “bribe”
to a witness and a police officer’s disciplinary record in vio‐
lation of Brady v. Maryland, 373 U.S. 83 (1963). We disagree
and affirm the judgment of the district court.
I. BACKGROUND
Around 3:30 p.m. on December 19, 2012, two men en‐
tered through the first set of glass doors into the foyer of the
Diplomat Post Office in Fort Wayne, Indiana. The men put
masks over their faces and then walked through the second
set of glass doors into the lobby of the post office. Postal
worker Catherine Weigold spotted the men entering the lob‐
by. She then ran into the back office, locked the door, and
called the police.
The first man—the “counter‐jumper”—walked across the
lobby toward the unattended counter. The second man—the
“gunman”—approached patron Dawn Hunter, pointed an
object at her stomach, and said, “I have a gun.” The counter‐
jumper walked over to Hunter and rummaged through her
purse and wallet, but he took nothing. The gunman then di‐
rected Hunter to turn around and kneel in front of him.
No. 14‐3276 3
Meanwhile, the counter‐jumper returned to the sales coun‐
ter, placed his hands on it, and jumped over the counter. Af‐
ter a brief search behind the counter, the counter‐jumper
took nothing and hopped back over the counter. The two
men then left the post office, passing a second patron as they
exited. Video surveillance captured the entire robbery at‐
tempt.
A. Police Investigation and Indictment
Both Hunter and Weigold contacted the police. Hunter
reported that two men had robbed the post office, and one of
the men had pointed a gun at her. When the police arrived,
Hunter reported that there was a cell phone on the counter
that was not there before the robbery attempt, and the video
footage confirmed that it fell from the counter‐jumper when
he hopped back over the counter.
While police were investigating the scene, the cell phone
began to ring. Postal Inspector Kathryn Maxwell viewed the
phone’s display, which showed a ten‐digit number ending in
1880 and read “Violet.” Fort Wayne Detective Mark Rogers,
who was responsible for processing the crime scene, photo‐
graphed the cell phone on the counter and took it into evi‐
dence. Cell phone records showed that the cell phone on the
counter was registered to Julius Lawson.
The calls being received were from a phone registered to
Violet Hanson, the mother of Lawson’s son. At 9:37 p.m. that
same day, Hanson consented to a search of her cell phone.
There were seven outgoing calls made to Lawson’s phone on
the day of the attempted robbery.
Detective Rogers dusted the counter for prints and lifted
seven latent prints and a palm print, which he placed into
4 No. 14‐3276
evidence. Postal Inspector Andrew Gottfried sent the prints,
along with two known prints of Lawson, to the National Fo‐
rensics Lab in Dulles, Virginia. At trial, the fingerprint exam‐
iner testified that the latent prints and palm print found on
the counter belonged to Lawson.
Following the robbery attempt, Inspector Gottfried inter‐
viewed Weigold. She described the counter‐jumper as being
about 5’8” with a thin build. She also said she saw the coun‐
ter‐jumper’s face before he pulled down his mask and re‐
called him having no facial hair or tattoos. Lawson, however,
had a thin mustache, light hair on his jaw line, and a small
star tattoo on his left cheek. Gottfried showed Weigold a se‐
ries of twelve photographs. Weigold said that if she “had to
pick out of that stack, [she’d] pick him” as the counter‐
jumper. The photograph she chose was of Lawson.
On January 23, 2013, a Fort Wayne grand jury indicted
Lawson on three counts related to aiding and abetting the
use of a firearm during the post office attempted robbery in
violation of 18 U.S.C. § 2114(a), 18 U.S.C. § 924(c), and 18
U.S.C. §§ 111(a)(1) and (b).
B. Trial
At trial, the government presented the physical evidence
found at the scene, including the cell phone and its corre‐
sponding records, fingerprint evidence, and surveillance
footage. In addition, Hunter testified that the gunman
walked in and “said, ‘I have a gun,’ and he aimed it at [her]
stomach.” She said that she was able to see the “gun” when
it was directly in front of her. When asked to identify that the
object pointed at her was in fact a gun, the following ex‐
change occurred:
No. 14‐3276 5
Q: Are you familiar with guns at all, ma’am?
A: I grew up with a family that hunted, so yes,
ma’am.
Q: How about handguns or pistols or—
A: Yes, ma’am.
Q: Do you have an idea what type of handgun that
was?
A: It looked like my father‐in‐law’s handgun.
Q: What type of gun does your father‐in‐law have?
A: He has a Cobra .380.
Q: Were you able to see what color the gun was?
A: Black.
Q: Do you know if it was a revolver or a semi‐
automatic or automatic or you couldn’t tell?
A: It wasn’t a revolver.
(Trial Tr. 16–17, May 15, 2013.)
On cross‐examination, however, Hunter indicated that
she was not positive that the object pointed at her was a Co‐
bra .380, only that it “looked similar to a Cobra .380.” The
defense brought out a stage prop that was the same size,
color, and shape as a Cobra .380. The stage prop was not a
firearm because it did not have a firing pin, slide mecha‐
nism, clip, or ejection chamber. Hunter testified that she was
“not positive” whether the object she saw that day was in
fact a firearm and that it “could have been” a well‐made rep‐
lica.
After the government rested, Lawson moved for a judg‐
ment of acquittal on all counts. Fed. R. Crim. P. 29(a). In par‐
6 No. 14‐3276
ticular, Lawson argued that he could not be convicted under
18 U.S.C. § 924(c) because Hunter’s testimony was insuffi‐
cient to prove that the object was a “firearm”—meaning that
it “will or is designed to … expel a projectile by the action of
an explosive.” § 921(a)(3)(A). Because she testified that it
could have been either a firearm or a well‐made replica,
Lawson argued that the evidence was insufficient to find a
“firearm.” The district court took the motion under advise‐
ment, and the trial proceeded.
Lawson’s primary defense at trial was alibi. The patron
the robbers passed when exiting the post office was Curtis
Molton, an acquaintance of Lawson’s, who testified that he
did not recognize either person leaving the post office to be
Lawson. Cynita Wyatt and Elliot Diaz, friends of Lawson,
both testified that Lawson was at their apartment between
3:30 and 3:45 p.m. on the day of the attempted robbery.
Hanson also testified for the defense. She testified that
she and Lawson had gone to the post office the week before
Christmas to buy stamps. She further testified that she had
kicked Lawson out of her home on December 18, and that he
did not return to her apartment until 5:00 or 5:30 p.m. the
next day. She admitted that on the evening of the robbery
attempt Lawson asked to use her phone to “try and track
down his phone.”
During her cross‐examination on Thursday, May 16,
2013, Hanson admitted that Inspector Gottfried had inter‐
viewed her the night of the offense. After the defense rested,
the government requested a recess to review a thirty‐eight
minute video recording of Gottfried’s interview of Hanson
for possible impeachment evidence. Lawson objected be‐
cause the government had not disclosed the video recording
No. 14‐3276 7
to the defense, and he requested to view a copy of the re‐
cording for potential exculpatory evidence. The district court
granted Lawson’s disclosure motion and dismissed the jury.
The following day, Lawson argued that the government
had violated Brady because the recording contained im‐
peachment material of Gottfried. Specifically, Lawson ar‐
gued that Gottfried seemed to be offering Hanson a bribe for
favorable testimony:
Gottfried says, “Would there be any reason why
[Lawson] is on the video robbing the post office?”
Hanson said, “I hope he isn’t. I don’t know why he
would be there. Then shit, where is my little mon‐
ey? He ain’t done shit for my son.”
Gottfried replies, “Is that something you want? Is
that something you need? Do you need money
from us to help out?”
Hanson replies, “No. Hell no.”
(Trial Tr. 13, May 17, 2013.)
Lawson contended that this exchange shows that Gott‐
fried offered Hanson a bribe, and he requested a mistrial as a
result of the failure to disclose the video recording. Although
the district court found that the failure to disclose was inten‐
tional, instead of declaring a mistrial, it granted Lawson
more time to review the tape and permitted him to reopen
any portion of his case. On Monday, May 20, the district
court denied Lawson’s motion for a mistrial, concluding that
there was “no clear violation of Brady” because “almost four
whole days ha[d] passed since the discovery [of] that state‐
ment[,] … [and] the defense now has an opportunity to
8 No. 14‐3276
make a determination on how it wants to deal with that evi‐
dence.”
Lawson chose to reopen his case and recall Inspector
Gottfried to testify about his interview of Hanson. Gottfried
admitted that he interviewed Hanson and that she had de‐
nied using her phone that evening to contact Lawson. Gott‐
fried also admitted that he had offered Hanson money. He
denied, however, that he was attempting to persuade Han‐
son to change her testimony in exchange for money. Instead,
he testified that he was referring to the money available to
persons who become confidential informants, but when
Hanson said that she was not interested in money, he moved
on. The defense chose not to recall any other witnesses and
instead rested.
The district court denied Lawson’s renewed Rule 29 mo‐
tion for a judgment of acquittal, concluding that there was
sufficient evidence “to possibly sustain a conviction.”
After closing arguments, the district court instructed the
jury. Specifically on count two, a violation of 18 U.S.C.
§ 924(c), the district court instructed:
[T]he government [must] prove the following be‐
yond a reasonable doubt:
1. The defendant knew, either before or during the
crime, of another person’s use, carrying, or bran‐
dishing of a firearm; and
2. The defendant intentionally facilitated the use,
carrying, or brandishing of the firearm once so in‐
formed.
Lawson did not object to the instruction. Subsequently, the
jury convicted Lawson on all counts.
No. 14‐3276 9
C. Post‐Trial Procedure
Four months after Lawson’s trial, Detective Rogers was
indicted in state court for sexual misconduct with a person
subject to lawful detention, official misconduct, and false in‐
forming.
The government then requested Rogers’s personnel file
from the Fort Wayne Police Department, in which it found
prior instances of misconduct that Rogers had not disclosed.
The government disclosed to Lawson Rogers’s four letters of
reprimand: (1) in July 2013 (after Lawson’s trial), Rogers was
reprimanded for negligently failing to log evidence into the
evidence management system; (2) in 2006, Rogers was rep‐
rimanded for a preventable accident involving a police vehi‐
cle; (3) in 2004, Rogers received a sustained reprimand for
improper conduct; and (4) in 1998, Rogers received a sus‐
tained reprimand for improper conduct.
Lawson filed a motion for a new trial arguing that the
failure to disclose Rogers’s personnel file was a violation of
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972). Lawson argued that Rogers’s past
misconduct impeached the reliability of the fingerprint evi‐
dence that he had collected. Lawson also argued that be‐
cause of his disciplinary record, Rogers “knew he was on
thin ice,” and this knowledge “automatically makes Rogers
biased and prejudiced against the defendant.”
In addition, the Supreme Court issued its opinion in
Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014), in
which it held that to sustain a conviction under 18 U.S.C.
§ 924(c), the jury must find that the accomplice had advance
knowledge that a firearm would be used. Lawson moved for
10 No. 14‐3276
a new trial based on Rosemond because the jury had not been
properly instructed.
On August 26, 2014, the district court denied both of
Lawson’s motions. First, the district court concluded that
Lawson had not been prejudiced by the government’s failure
to disclose Rogers’s personnel file. Second, the district court
acknowledged that the instruction given was an error under
Rosemond, but it concluded that the erroneous instruction
did not affect Lawson’s substantial rights because based on
the evidence presented at trial, the jury’s verdict could “only
be understood as a determination that the Defendant in‐
tended to assist in an armed robbery.”
The district court sentenced Lawson to 84 months on
counts one and three to be served concurrently and 60
months on count two to be served consecutively, plus three
years of supervised release. Lawson appeals.
II. ANALYSIS
Lawson raises three issues on appeal. First, he argues
that there was insufficient evidence for the jury to find that
there was a “firearm” used during the robbery attempt. Sec‐
ond, he challenges the district court’s jury instruction in light
of the Supreme Court’s decision in Rosemond. Third, he con‐
tends that he is entitled to a new trial in light of evidence
that was not disclosed in violation of Brady. We address each
issue in turn.
A. Sufficiency of the Evidence of “Firearm” Use
All three counts upon which Lawson was convicted re‐
quired the prosecution to prove beyond a reasonable doubt
that Lawson aided and abetted the use of a “firearm.” Law‐
son contends that the government did not meet this burden
No. 14‐3276 11
because the only evidence that a firearm was used comes
from Hunter, who testified that she was not sure whether the
object was a firearm or a well‐made replica.
When faced with a challenge to the sufficiency of the evi‐
dence, “we must view the evidence in the light most favora‐
ble to the prosecution and determine whether any rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Smith, 697
F.3d 625, 635 (7th Cir. 2012) (quotation marks omitted).
Determinations of a witness’s credibility are to be made
by the jury, and “[w]e will not … second‐guess the jury’s
credibility determinations.” United States v. King, 643 F.3d
1003, 1006 (7th Cir. 2011). “Generally, juries may reject parts
of a witness’s testimony while accepting other parts.” United
States v. Colston, 936 F.2d 312, 315 (7th Cir. 1991).
A “firearm” is defined as “any weapon … which will or
is designed to or may readily be converted to expel a projec‐
tile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A).
Use of a replica or toy gun is not sufficient to convict of an
offense involving a “firearm.” Cf. United States v. Jones, 222
F.3d 349, 351 (7th Cir. 2000) (implicitly acknowledging that a
BB gun is not a “firearm”).
Because the object used was never recovered and the
surveillance footage could not be enhanced, the only evi‐
dence that there was a “firearm” comes from the testimony
of Hunter. There is no requirement that the government
produce the firearm or other corroborating evidence to sus‐
tain a conviction. See United States v. Buggs, 904 F.2d 1070,
1076 (7th Cir. 1990) (upholding conviction based on witness
testimony without presence of the weapon). Nor is there any
12 No. 14‐3276
requirement that the government produce an expert witness
or more than one lay witness. See, e.g., United States v. Floyd,
81 F.3d 1517, 1526 (10th Cir. 1996) (upholding firearms con‐
viction based on testimony of one lay witness experienced
with firearms); United States v. Beverly, 99 F.3d 570, 572 (3d
Cir. 1996) (upholding conviction where victim testified that
the defendant “threatened him with a gun during the course
of the robbery, and that the gun … was a chrome‐plated re‐
volver”); Parker v. United States, 801 F.2d 1382, 1384–85 (D.C.
Cir. 1986) (upholding conviction for using a “firearm” after
concluding that testimony by an “expert” witness is not nec‐
essary).
Hunter had ample opportunity to view the gun up close
while it was pointed directly at her stomach. Hunter testified
that she was familiar with guns, that the gun looked like a
Cobra .380, and that it was not a revolver. Additionally, the
robber told her that he had a gun—implying that it was op‐
erable and that he would be willing to use it if Hunter did
not comply. Cf. Parker, 801 F.2d at 1384 (“The act of threaten‐
ing others with a gun is tantamount to saying that the gun is
loaded and that the gun wielder will shoot unless his com‐
mands are obeyed.” (quotation marks omitted)).
Hunter’s testimony is sufficient for a rational juror to find
beyond a reasonable doubt that the object used was in fact a
firearm. The jury was free to discredit the portions of
Hunter’s testimony where she admitted that it “could have
been” a well‐made replica. In fact, we have rejected just such
an argument. Buggs, 904 F.2d at 1074–75 (upholding firearms
conviction where police officer and lay witness testified that
they saw “what appeared to them to be a large pistol. It ap‐
No. 14‐3276 13
peared to each of them to be a .357 magnum but neither was
sure.” (quotation marks omitted)).
Therefore, while it is preferable for there to be physical
evidence and more witnesses to testify regarding the exist‐
ence of a “firearm,” it is not necessary. The jury was free to
credit Hunter’s testimony that the object was in fact a fire‐
arm, discredit the defense’s attempts to show that it was a
well‐made replica, and find beyond a reasonable doubt that
Lawson’s confederate used a firearm.
B. Jury Instruction In Light of Rosemond
When a defendant did not object to a jury instruction at
trial, we review only for plain error. United States v. McClel‐
lan, 794 F.3d 743, 753–54 (7th Cir. 2015). “In order to reverse
for plain error, we must find (1) error (2) that is plain, and (3)
that affects the defendantʹs substantial rights.” Id. at 754
(quotation marks omitted). To show that an error affected a
defendant’s substantial rights, he “‘must demonstrate that
[the error] affected the outcome of the district court proceed‐
ings.’” United States v. Caira, 737 F.3d 455, 462 (7th Cir. 2013)
(quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). Fi‐
nally, we may exercise our discretion to correct the error if it
“seriously affect[s] the fairness, integrity or public reputa‐
tion of judicial proceedings.” Id. (alteration in original and
quotation marks omitted).
For instructional errors, we evaluate whether the defec‐
tive instruction “improperly influenced the jury’s verdict,”
United States v. Salinas, 763 F.3d 869, 879 (7th Cir. 2014),
“against the backdrop of the entire trial,” Caira, 737 F.3d at
464. The verdict may stand “if it appear[s] ‘beyond a reason‐
able doubt that the error complained of did not contribute to
14 No. 14‐3276
the verdict obtained.’” Caira, 737 F.3d at 464 (quoting Neder v.
United States, 527 U.S. 1, 15 (1999)). Even under this test, “it is
rare that we reverse a conviction on the basis of an improper
jury instruction to which there was no objection.” United
States v. Wheeler, 540 F.3d 683, 689 (7th Cir. 2008).
The government properly concedes that the jury instruc‐
tion given on count two, a violation of 18 U.S.C. § 924(c), was
erroneous in light of Rosemond v. United States, 134 S. Ct. 1240
(2013). The only remaining question is whether this plain er‐
ror affected Lawson’s substantial rights. We conclude that it
did not.
Rosemond held that in order to show aiding and abetting
a § 924(c) offense, the “defendant’s knowledge of a firearm
must be advance knowledge—or otherwise said, knowledge
that enables him to make the relevant legal (and indeed,
moral) choice.” Id. at 1249. That means knowledge of a fire‐
arm must come “at a time the accomplice can do something
with it—most notably, opt to walk away.” Id. at 1249–50.
The instruction given at Lawson’s trial required that the
government prove “that the defendant knew, either before or
during the crime” of the firearm and “intentionally facilitat‐
ed the use.” The instruction was erroneous because it could
hypothetically permit a conviction where the jury thought
that Lawson learned of the firearm during the attempted
robbery and intentionally facilitated its use only because it
was too late for him to “opt to walk away.” Id. Such a convic‐
tion would run afoul of Rosemond.
The theoretical possibility of a conviction on this improp‐
er ground, however, does not warrant reversal in this case.
There is no reasonable doubt that had the proper instruction
No. 14‐3276 15
been given, Lawson would have been acquitted. Given the
evidence that was presented at trial, it is unreasonable to
think that the jury convicted Lawson because he learned of
the firearm during the crime and intentionally facilitated its
use only because it was too late to opt to walk away.
After entering the post office, his confederate immediate‐
ly pulled the firearm, announced that he had a gun, and
pointed it at Hunter. Lawson did not abort the offense. Nor
is there any indication in the video footage that Lawson hesi‐
tated at the sight of the gun, which appears to be in his line
of sight while searching Hunter’s purse. Instead, Lawson
continued to participate in the offense. Lawson approached
Hunter and looked through her purse and wallet. Lawson
also hopped over the counter and searched for items to steal,
all while his confederate continued to point the firearm at
Hunter. Lawson then rejoined his partner and left with him.
Based on these facts, the government argued to the jury
that Lawson and his confederate had a “division of labor al‐
ready mapped out” before entering the post office: the ac‐
complice would neutralize threats, while Lawson would
steal property. Furthermore, these two men had the fore‐
thought to bring masks to hide their faces, indicating that
there was a plan to rob the post office. They walked into the
post office to rob it in the middle of the day. It is implausible
that such a mid‐day robbery plan would not have included a
firearm designed to influence and threaten the employees or
patrons that are sure to be there. Cf. Parker, 801 F.2d at 1385
(“[T]he use of an unloaded gun to rob a bank would be a
very hazardous venture for the robber.” (quotation marks
omitted)). Accordingly, the verdict may stand because it ap‐
16 No. 14‐3276
pears beyond a reasonable doubt that the error complained
of did not have any effect on the verdict.
Indeed, Lawson’s case is quite distinct from the facts pre‐
sented to the jury in Rosemond. Rosemond arose out of a
“drug deal gone bad.” 134 S. Ct. at 1243. In that case, a deal‐
er arranged a drug deal with two men. The dealer drove to a
park accompanied by two confederates, one of whom was
Rosemond. One of the buyers entered the vehicle, inspected
the marijuana, and instead of handing over the money, he
punched the confederate in the face and ran. At that point,
one of the male confederates—it was contested who this
was—exited the vehicle and fired shots from a handgun.
Rosemond was charged under § 924(c), and one of the theo‐
ries of liability was aiding and abetting. The district court
instructed the jury that a defendant is guilty of aiding and
abetting a § 924(c) violation if he knew of the firearm at some
point and actively participated in the underlying drug crime.
Id. at 1244.
Lawson, however, was convicted of aiding and abetting
by intentionally facilitating the use of a firearm, not just by
participating in the underlying robbery attempt. Nothing in
Lawson’s case indicates that the use of a firearm was an un‐
planned surprise like in Rosemond’s drug deal gone wrong or
that Lawson only intended to participate in an unarmed
robbery. Rather, the wearing of masks and his confederate’s
pulling of the firearm before Lawson attempted to take
property was evidence of an armed robbery gone right, and
the jury’s conviction based on the evidence it heard confirms
this assessment. The crime that Rosemond intended to
commit was a peaceful, albeit illegal, transaction, which is
No. 14‐3276 17
quite distinct from the mid‐day violent taking of property
Lawson intended to commit.
Based on the evidence presented and the government’s
argument to the jury, the jury’s conviction on count two can
only be understood as finding that Lawson intended to aid
and abet an armed robbery. Accordingly, Lawson has not
shown that the erroneous instruction prejudiced him in any
way, and a new trial is not warranted.
C. Brady Claims
Finally, Lawson contends that the government withheld
evidence in violation of his due process rights. Brady v. Mary‐
land, 373 U.S. 83 (1963). Specifically, he contends that the
government’s failure to disclose Inspector Gottfried’s vide‐
otaped interview with Hanson and Detective Rogers’s per‐
sonnel file warrants a new trial.
We review a district court’s decision to grant or deny a
new trial for a Brady violation for an abuse of discretion;
however, we review pure questions of law de novo. United
States v. Bhutani, 175 F.3d 572, 576 (7th Cir. 1999).
To warrant a finding of a Brady violation, a defendant
must point to specific evidence that was (1) favorable to the
defense; (2) suppressed by the government; and (3) “material
to an issue at trial.” United States v. Shields, 789 F.3d 733, 746
(7th Cir. 2015) (quotation marks omitted).
Evidence is favorable to the defense when it is either ex‐
culpatory or could be used for purposes of impeachment.
Kyles v. Whitley, 514 U.S. 419, 433 (1995). The government
concedes that the videotaped interview of Hanson and De‐
tective Rogers’s personnel record are favorable to the defense
as impeachment evidence, and we agree.
18 No. 14‐3276
The next prong of the Brady inquiry requires that the evi‐
dence was suppressed. “Evidence is suppressed when ‘the
prosecution fail[s] to disclose the evidence in time for the de‐
fendant to make use of it’ and ‘the evidence was not other‐
wise available to the defendant through the exercise of rea‐
sonable diligence.’” Shields, 789 F.3d at 746–47 (quoting Ienco
v. Angarone, 429 F.3d 680, 683 (7th Cir. 2005)).
A mid‐trial disclosure “suffices if time remains for the de‐
fendant to make effective use of the exculpatory material.”
United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996); see
also Bielanski v. County of Kane, 550 F.3d 632, 645 (7th Cir.
2008) (“Even late disclosure does not constitute a Brady vio‐
lation unless the defendant is unable to make effective use of
the evidence.”).
The videotaped interview was disclosed on May 16, and
the jury was dismissed. No more evidence was heard until
May 21. During that time, Lawson and his counsel reviewed
the tape. The district court gave Lawson wide discretion to
reopen his case and recall any witnesses in order to incorpo‐
rate the videotape. Inspector Gottfried did admit that he of‐
fered Hanson money. Finally, Lawson argued extensively to
the jury that Inspector Gottfried had offered Hanson a bribe.
Accordingly, Lawson was able to make effective use of the
impeachment evidence contained in the video recording. See
United States v. Fallon, 348 F.3d 248, 252–53 (7th Cir. 2003)
(holding that evidence disclosed during trial was not “sup‐
pressed” where the defendant was able to cross‐examine
witness with the impeachment evidence and witness admit‐
ted to falsifying documents).
Lawson argues that he was unable “to incorporate this
evidence into [his] presentation to the jury” because he
No. 14‐3276 19
could not question the cell‐records witness or Hanson. (Ap‐
pellant’s Br. at 29.) That is not the case. The district court
gave Lawson broad authority to reopen his case in any way
he saw fit. It was his choice to only recall Inspector Gottfried,
and he did in fact get an admission. Because Lawson was
able to effectively make use of the videotaped interview, it
was not suppressed under Brady.
The government concedes, however, that Detective Rog‐
ers’s personnel record was suppressed within the meaning of
Brady, and we agree. The remaining inquiry then is whether
it was material. It was not.
Evidence is material for purposes of Brady if there is a
“‘reasonable probability’ of a different result,” meaning that
the “suppression ‘undermines confidence in the outcome of
the trial.’” Kyles, 514 U.S. at 434 (quoting United States v. Bag‐
ley, 473 U.S. 667, 678 (1985)). In examining whether evidence
was material, the court considers “what purpose the evi‐
dence would have served and how it might have affected the
jury’s view of the evidence that was introduced.” Toliver v.
McCaughtry, 539 F.3d 766, 780 (7th Cir. 2008) (citing Kyles,
514 U.S. at 441–54).
Lawson claims that evidence that Detective Rogers had
been reprimanded for improper conduct twice and for his
involvement in a preventable accident with a police vehicle
undermines confidence in the verdict in two ways.
First, Lawson argues that the records tend to show that
the fingerprint evidence is unreliable because it allows the
jury to question “the manner in which he gathered evidence
from the crime scene and his maintenance of the ongoing
integrity of that evidence.” (Appellant’s Br. at 33.)
20 No. 14‐3276
Second, Lawson argues that Rogers’s disciplinary record
tends to make it more probable that Detective Rogers re‐
placed the fingerprints of the “real robber” with those of
Lawson.
Rogers’s only testimony was that he dusted for prints,
lifted the latent prints that he found, and placed them on a
white backing card. Rogers then turned the card over to In‐
spector Gottfried who placed it in a sealed bag and recorded
it into evidence. Lawson was not implicated until an inde‐
pendent examination was conducted by a fingerprint exam‐
iner.
The fact that several years prior Detective Rogers had
been reprimanded for improper conduct and involved in a
preventable accident does not tend to make it more probable
that Rogers mishandled the evidence or replaced the finger‐
prints he lifted with Lawson’s. Nothing in the personnel file
at the time of Lawson’s trial suggests that Rogers had a his‐
tory of mishandling evidence. Nor is there any explanation
as to why Rogers would have replaced the “real robber’s”
fingerprints with Lawson’s—a man he did not know.
Instead, Lawson’s fingerprints ended up on a card that
was marked with the date, time, and location of the finger‐
print lift and independently examined and attributed to
Lawson. Given the extensive evidence against Lawson, in‐
cluding the fact that his cell phone was found at the scene of
the crime, there is no reasonable probability that prior disci‐
No. 14‐3276 21
plinary actions against Rogers would have affected the out‐
come.*
Finally, Lawson argues that the cumulative effect of the
videotaped interview of Hanson and Rogers’s personnel rec‐
ord shows a pattern of police misconduct that “raises signifi‐
cant questions about the integrity and completeness of the
investigation.” (Appellant’s Br. at 32.) We disagree. The evi‐
dence against Lawson was extensive. In addition to the fin‐
gerprint evidence, the jury saw surveillance footage of the
entire attempted robbery. The jury saw an object fall from
the counter‐jumper’s pocket when he jumped over the coun‐
ter and heard that Lawson’s cell phone was found on the
counter. Hanson testified that Lawson could not find his
phone later that evening and used her phone to call his. The
jury also heard testimony from eyewitnesses, including the
post office worker who later identified Lawson as the coun‐
ter‐jumper. Furthermore, Lawson was able to argue to the
jury that Inspector Gottfried offered Hanson a “bribe.” Giv‐
en the overwhelming evidence against Lawson and his abil‐
ity to use the videotape of Hanson’s interview at trial, the
evidence that he points to as showing police misconduct
does not put the case in such a different light as to under‐
mine confidence in the verdict.
* The government’s reliance on Officer Rogers’s assertion before trial that
there was nothing in his disciplinary file “pending or sustained that
went to his truthfulness” is not best practice. See Dep’t of Justice, U.S.
Attorneys’ Manual § 9‐5.100 (“[P]rosecutors will receive the most com‐
prehensive potential impeachment information by having both the can‐
did conversation with the agency employee and by submitting a request
for potential impeachment information to the investigative agency.”
(emphasis added)).
22 No. 14‐3276
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.