United States Court of Appeals,
Fifth Circuit.
No. 93-7504.
UNITED STATES of America, Plaintiff-Appellee,
v.
Landen Max DULA and Accrabond Corporation, Defendants-Appellants.
Dec. 8, 1994.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before POLITZ, Chief Judge, WISDOM and SMITH, Circuit Judges.
POLITZ, Chief Judge:
Landen Max Dula appeals the district court's denial of habeas
relief, 28 U.S.C. § 2255, from his convictions and sentences for
wire fraud, mail fraud, and false statements. Finding no error, we
affirm.
Background
Accrabond Corporation, a manufacturer and vendor of industrial
sealants, adhesives, coatings, and other chemical products for both
private and government aerospace use, and Dula, its president, were
indicted on 18 counts of wire fraud,1 one of mail fraud,2 and 13
counts of falsely certifying products for use in defense
contracts.3 The charges arose from Accrabond's practice of filling
orders by substituting either cheaper products for the ones ordered
1
18 U.S.C. §§ 2, 1343.
2
18 U.S.C. §§ 2, 1341.
3
18 U.S.C. §§ 2, 1001.
1
or stale or outdated products which were altered to appear fresh,
and then using false labeling or certificates of compliance with
military specifications to conceal the fraudulent substitutions.
A jury convicted Dula of six counts of wire fraud and five
counts of false statements, and he was sentenced to concurrent
terms of 36 months imprisonment on each count and a fine of
$27,500. His convictions and sentences were affirmed on direct
appeal.4
Dula then filed the instant section 2255 motion, alleging that
the government had withheld Brady5 material by failing to reveal
certain reports, generated in response to an FAA inquiry, to the
effect that the Accrabond products performed adequately. The
district court denied the motion, finding that the prosecution
neither knew of nor possessed the documents in question, and that,
regardless, the documents were neither exculpatory nor material.
The instant appeal followed.
Analysis
Dula contends that the government was in possession of
responses to FAA inquiries to Accrabond customers which revealed
that, after testing or routine use, the products sold by Accrabond
were of acceptable quality, and that despite a defense request the
4
United States v. Dula, 989 F.2d 772 (5th Cir.), cert.
denied, --- U.S. ----, 114 S.Ct. 172, 126 L.Ed.2d 131 (1993).
Dula made the Brady claim in his direct appeal but, as the record
was incomplete on this issue, it was dismissed without prejudice
to his right to raise it via section 2255 motion.
5
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963).
2
government failed to produce these responses in violation of Brady.
To prevail on his Brady claim Dula must show that favorable
and material evidence was suppressed.6 We need address only the
issue of materiality for today's disposition.
In order for evidence to be material there must be "a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."7
A reasonable probability has been defined to be a "probability
sufficient to undermine confidence in the outcome."8 This case
presents no such probability.
Of the companies responding to the FAA inquiry, only five
reported any purchase or use of Accrabond products and, of these
five responses, only two arguably were favorable. Neither of these
responses were from companies involved in the case.9
6
United States v. Ellender, 947 F.2d 748 (5th Cir.1991).
7
United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375,
3383, 87 L.Ed.2d 481 (1985).
8
Id.
9
The first response was from Gulfstream Aerospace
Corporation, and stated:
We have procured several products from 1988 to the
present. These products do consist of sealants and
adhesives. These type products are tested upon receipt
at Gulfstream to the requirements of the product
specification, regardless of who supplies the product.
The history of testing on Accrabond supplied products
was reviewed and no discrepancies were found that would
substantiate the allegations.
The second response was from Dayton-Granger, Inc., and
stated:
We have placed several orders with Accrabond which are
3
The sole report from a corporation that was involved in the
case was from DME Corporation which stated:
Our inspection records indicate that no Accrabond products
have been used on any FAA product thus far. DME has in fact
bought and used various compounds from the supplier in
question, but these products have been used entirely on our
military products. DME has already made statements to the
Criminal Investigator for the Government, concerning the
products we have received and what contracts those products
were used on.
This statement is neutral and non-exculpatory;10 it is immaterial
to guilt and it is outside the scope of the Brady rule.11 Dula's
claim to the contrary is without merit.12
Dula also contends that these reports would have vitiated the
basis for the court's upward departure in sentencing. We are not
persuaded.
The upward departure stemmed from a finding that the
Guidelines did not adequately consider Dula's conduct, which "not
shown on the attached list. We have experienced no
problems with the material, but we shall investigate
further.
10
The quality of Accrabond products is unrelated to the
conduct charged in the indictments. The charged conduct stemmed
from material misrepresentation about product substitution and
testing to military specifications; whether or not the products
actually conformed to these specifications is a matter of
happenstance and is essentially irrelevant, as the district court
properly noted.
11
United States v. Nixon, 881 F.2d 1305 (5th Cir.1989).
12
As cross-examination of DME's representative during trial
revealed exculpatory information stronger than that in the report
to the FAA (to wit, that DME had neither experienced nor had
received any notice of problems with the Accrabond-supplied
materials), any suppression of alleged Brady materials from DME
was harmless. See United States v. Garcia, 917 F.2d 1370 (5th
Cir.1990); United States v. Cochran, 697 F.2d 600 (5th
Cir.1983).
4
only put at risk multimillion dollar military equipment, but also
lives of American Servicemen." The record reflects that an
essential element of the government's case was that the inferior
materials would, over time, deteriorate more rapidly than expected
by the user, creating commensurate risks to both equipment and
users; neither Gulfstream's testing of products upon receipt nor
Dayton-Granger's tentative endorsement negates this concern.
Further, the risks envisioned by the district court arose from the
use of military equipment from a plethora of manufacturers that
incorporated Accrabond products in their wares, and the qualified
satisfaction of one or two customers does not appreciably reduce
these risks.
Concluding that there was no Brady violation and that the
remainder of Dula's claims are without merit, the judgment of the
district court is AFFIRMED.
5