United States Court of Appeals
For the First Circuit
No. 01-1589
UNITED STATES,
Appellee,
v.
JEREMY BENDER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
Jane Elizabeth Lee for appellant.
F. Mark Terison, Senior Litigation Counsel, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
September 23, 2002
CAMPBELL, Senior Circuit Judge. This is an appeal from
the judgment of conviction entered against Jeremy Bender
("Bender"). Bender was charged and convicted under the Armed
Career Criminal Act of possession of four firearms as a convicted
felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (2000). On
appeal, Bender contends that the district court erred when it
declined to exclude the testimony of Smokey Heath ("Heath"), a
government witness. Bender argues that Heath's testimony should
have been excluded because the government violated its duty under
Brady v. Maryland, 373 U.S. 83 (1963), when it delayed disclosure
of impeaching material regarding Heath. Finding no error, we
affirm.
I. Background
We describe briefly the background of this case at this
juncture and add more detail as it becomes relevant to the legal
analysis. On November 29, 2000, a grand jury returned a four count
indictment against Bender for possession of four firearms - three
revolvers identified in counts one, two, and four, and two rifles
(a semiautomatic and a lever-action) identified in count three - as
a convicted felon.
Prior to the start of trial, defense counsel made a
timely request from the government for all Brady material. The
request for Brady material included "the details or evidence
concerning any witness, especially any informants, who is or was
[sic] suffering from any mental disability, emotional disturbance,
drug addiction or alcohol addiction during the past fifteen years."
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The government responded that it "under[stood] and accept[ed] its
obligations under Brady" and that it would provide the materials
consistent with the procedural requirements of case law.
Trial began on January 16, 2001. In support of its case,
the government offered the testimony of 27 individuals. The
evidence undisputedly linked Bender to the four weapons. The most
damning testimony came from Kevin Lepine and Chuckie Lepage, both
testifying pursuant to plea agreements. Kevin Lepine stated that
he had sold Bender two of the revolvers identified in the
indictment. Chuckie Lepage testified that he and Bender had
planned and executed a number of residential burglaries in which
they stole the remaining guns identified in the indictment,
including two semiautomatic .45 pistols, a .357 magnum with a
scope, a .22 semiautomatic, and two hunting rifles. Bender was
further linked to the burglaries through pawn receipts indicating
that he hocked several items stolen on those occasions, and through
the seizure, in Bender's basement, pursuant to a search warrant, of
personal items belonging to the victims of the burglaries.
Testimony by the victims of the burglaries identified the items
taken from their homes and the stolen guns.
The jury also heard testimony from Heath. According to
Heath, in May 1999, while Bender was incarcerated awaiting trial,
he confessed details of his crime to Heath, himself an inmate in
state custody, and sought Heath's assistance to discredit Chuckie
Lepage. Instead, Heath contacted the Maine Violent Crime Task
Force and disclosed Bender's admissions.
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On the Friday of a three-day weekend, just prior to the
start of trial, Heath told the Assistant United States Attorney
that, while he was incarcerated in state prison, he had been taken
to the Augusta Mental Health Institute ("AMHI"), a state mental
hospital. The prosecutor immediately notified defense counsel,
prepared a release for Heath's signature, and arranged to have
copies of AMHI's records brought to the federal courthouse the
following Tuesday, the first day of trial. The medical records
revealed that Heath may have experienced auditory hallucinations
while incarcerated, or in the alternative, that Heath was
malingering to avoid his legal dilemmas. While the court denied
defense counsel's request to preclude Heath's testimony, it offered
to delay the testimony for "another day or so." Defense counsel
maintained that such a brief continuance was not an adequate
remedy, and instead elected to use the information in the AMHI
records to cross-examine Heath and to argue to the jury.
After a two-day trial the jury returned verdicts of
guilty on all four counts. Bender was sentenced to serve 293
months in prison on each count, to be served concurrently, and to
serve concurrent supervised release terms of five years on each
count.
This appeal followed.
II. Discussion
Bender seeks reversal of his conviction on the grounds
that the government failed to timely disclose Heath's medical
treatment records in violation of Brady v. Maryland, 373 U.S. 83
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(1963), and Giglio v. United States, 405 U.S. 150 (1972), thus
impairing his ability to defend the case. He contends that the
district court erred when it failed to recognize the prejudicial
impact and allowed Heath's testimony. We do not find these
contentions persuasive.
First, it is questionable whether the federal
government's duty under Brady was triggered given that Heath's
mental health records were never in its possession or under its
control. United States v. Sepulveda, 15 F.3d 1161, 1179 (1st Cir.
1993); United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991).
This court has stated that "the rigors of Brady usually do not
attach to material outside the federal government's control."
Sepulveda, 15 F.3d at 1179. Heath, at all relevant times, was a
prisoner in the custody and control of the State of Maine. He was
not in federal custody. He testified pursuant to a subpoena. AMHI
is a state-owned and operated mental health facility. The
prosecution asserts that it was caught unawares - it did not know
of Heath's mental health records. When it discovered their
existence, it acted promptly and appropriately.
Bender suggests that after he requested information
relative to the mental health of a government witness, the
prosecutor had a duty, once he knew someone was to be a witness, to
find and disclose that information if it existed - regardless of
where or with whom the information rested. To support this
proposition, Bender relies on our decision in United States v.
Osorio, 929 F.2d 753 (1st Cir. 1991), in which we stated that a
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prosecutor "using a witness with an impeachable past has a
constitutionally derived duty to search for and produce impeachment
evidence requested regarding a witness." Id. at 761.
Neither the relevant Supreme Court precedent under Brady
nor our decision in Osorio requires a prosecutor to seek out and
disclose exculpatory or impeaching material not in the government's
possession. To comply with Brady the individual prosecutor has a
duty to find any evidence favorable to the defendant that was known
to those acting on the government's behalf. Strickler v. Greene,
527 U.S. 263, 280 (1999). Such persons include other members of
the prosecuting team, including police investigators working for
the prosecution. Kyles v. Whitley, 514 U.S. 419, 437 (1995). In
Osorio, the prosecutor had failed to discover - from colleagues
within his own office - that the prosecution's chief witness was a
major drug dealer. 929 F.2d at 756. We held that a "prosecutor
charged with discovery cannot avoid finding out what 'the
government' knows, simply by declining to make reasonable inquiry
of those in a position to have relevant knowledge." Id. at 761.
There is no evidence here that the prosecutor, or anyone acting on
behalf of the federal government, was aware of Heath's mental
health history until Heath disclosed the information on the eve of
trial.
Bender's argument that the government had a duty under
Brady is further weakened by evidence that Bender himself was aware
of Heath's mental health history prior to the disclosure of the
AMHI records. Brady applies to material that was known to the
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prosecution but unknown to the defense. United States v.
Soto-Alvarez, 958 F.2d 473, 477 (1st Cir. 1992) (citing United
States v. Agurs, 427 U.S. 97, 102 (1976)). Heath testified that he
had told Bender, prior to Bender's trial, that he had been taken to
AMHI for a "nervous breakdown." Prior to trial, defense counsel
had the opportunity to interview Heath and examine him on the
stand, under oath, during an evidentiary hearing on Bender's motion
to suppress particular statements, including his confession to
Heath. During the oral argument to preclude Heath's testimony,
defense counsel informed the court that Heath had applied for SSI
benefits "because of his mental disability." Thus, the defendant
was on notice that Heath may have had a "mental disability" and
defense counsel had ample opportunity and reason to explore Heath's
competence to testify months prior to the start of trial.
While the absence of a Brady violation ends the matter,
even if we were to assume, for purposes of argument, the existence
of a Brady problem, Bender has utterly failed to demonstrate
prejudice arising from the delay. A defendant must show that
"learning the information altered the subsequent defense strategy,
and [that] given a more timeous disclosure, a more effective
strategy would likely have resulted." United States v. Lemmerer,
277 F.3d 579, 588 (1st Cir. 2002) petition for cert. filed, (July
11, 2002) (No. 02-5207) (quoting United States v. Devin, 918 F.2d
280, 290 (1st Cir. 1990)). It is not enough for Bender merely to
assert that he would have conducted cross-examination somewhat
differently. United States v. Smith, 292 F.3d 90, 103 (1st Cir.
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2002). At the very least, he needs to show that a plausible
strategic option was foreclosed by the delay. Id. The impact of
the delayed disclosure on Bender's cross-examination of Heath
turns, in part, on "the extent the defendant actually managed to
use the [disclosed material] despite the delay." United States v.
Ingraldi, 793 F.2d 408, 412 (1st Cir. 1986).
We find little reason to believe that an earlier
disclosure of the AMHI records would have improved Bender's
defense. Bender suggests that his cross-examination of Heath would
have been more effective. Had the records been earlier disclosed
he says he could have "confronted Heath with the evidence of his
malingering and manipulation of his symptoms to avoid legal
difficulties;" obtained the services of a medical expert to
decipher the medical terminology in the records; and subpoenaed
Heath's additional mental health records.
Defense counsel, in fact, conducted an effective and
thorough cross-examination of Heath along these very lines by using
the AMHI records and his criminal history to attack his
credibility. Defense counsel questioned Heath about the "nervous
breakdown" that led to his 30-day commitment to AMHI. He asked
whether Heath reported auditory hallucinations. He questioned
Heath about the mental health treatment he received prior to his
commitment to AMHI. He pressed Heath about his desperation to
avoid incarceration, that included swallowing a metal object, and
suggested that perhaps it also included fabricating a confession to
garner favor with law enforcement officials. He elicited testimony
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that Heath had indeed asked for favors from law enforcement
officials after he disclosed Heath's confession - specifically that
he be transferred to a different, more congenial facility. He
brought out Heath's prior convictions for burglary, kidnapping and
terrorizing, and gross sexual assault. We conclude that any delay
in the disclosure of Heath's AMHI records did not impair defense
counsel's effective use of the information or hinder a presentation
of the defense. Devin, 918 F.2d at 289.
We find no basis for reversing Bender's conviction. The
judgment of the district court is affirmed.
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