United States v. Griebel , 312 F. App'x 93 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
April 14, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 06-8054
v. (D.C. No. 05-CR-133-D)
(District of Wyoming)
GEORGE MATTHEW GRIEBEL,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, HOLLOWAY and GORSUCH, Circuit Judges.
This is a direct criminal appeal challenging only the convictions. This
court has jurisdiction under 28 U.S.C. § 1291.
I
Defendant-appellant George Matthew Griebel was among 21 persons named
in a thirty-two count superseding indictment filed July 13, 2005, in the federal
district court, alleging violations of the controlled substances and firearms laws.
Griebel was named in three of the counts. In Count One, Griebel and all 20 of the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P.32.1 and 10th
Cir. R. 32.1.
co-defendants were charged with conspiracy to possess with intent to distribute
and conspiracy to distribute 500 grams or more of a mixture containing
methamphetamine. 1 In a section of the superseding indictment detailing
allegations of overt acts done in furtherance of the alleged conspiracy, the grand
jury alleged that from January 2003 to December 2003, Griebel obtained “pound
quantities” of methamphetamine from one of the other defendants and other
persons and that during this same time he distributed methamphetamine to
persons “both known and unknown to the grand jury.” Count Thirty-one charged
that, from February 20, 2004 through May 27, 2005, Griebel unlawfully and
intentionally used firearms during and in relation to a federal drug trafficking
crime, i.e., the conspiracy alleged in Count One, in violation of 18 U.S.C. §
924(c)(1)(A). Count Thirty-two alleged that from January 2003, through March
2004, Griebel carried firearms during and in relation to a federal drug trafficking
crime, also in violation of 18 U.S.C. § 924(c)(1)(A).
Griebel was convicted on all three counts after a jury trial and was
ultimately sentenced to 245 months’ imprisonment on the drug conspiracy
conviction, with an additional 60 months’ imprisonment on the weapons charge to
be served consecutively, for a total of 305 months. 2
1
Count One also charged all defendants with conspiring to possess
marijuana with intent to distribute it.
2
The government eventually dismissed Count Thirty-one of the indictment
(continued...)
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Neither side offers a summary of the trial evidence in its brief. We also
conclude that such a summary is unnecessary to consideration of the issues raised.
We note only that Griebel does not dispute the sufficiency of the government’s
evidence at trial to support the convictions.
The focus of Griebel’s arguments on appeal is on the pretrial discovery
provided by the prosecution, or more accurately on the limits thereof.
Accordingly, a brief overview of the trial court’s handling of discovery will
provide the context for our analysis.
When the first of Griebel’s co-defendants was arraigned, several months
before Griebel was, 3 the court issued a discovery order to govern pretrial
proceedings in the case. The order was applicable to all of the named defendants
in the case. The order directed that discovery was to proceed in accordance with
Fed. R. Crim. P. 16. The order also noted the government’s expressed
willingness, “in its discretion,” to make immediately available to defense counsel
2
(...continued)
after the trial court had determined that the convictions on both weapons counts
could not stand under the circumstances of the case. See VIII R. at 34-45
(transcript of hearing at which the trial judge cited, inter alia, United States v.
Morris, 247 F.3d 1080, 1084 (10th Cir. 2001)). No issue has been raised on
appeal regarding that decision of the district court, and we accordingly express no
opinion on whether dismissal of Count Thirty-one was required.
3
Griebel was arraigned on October 31, 2005, more than three months after
the superseding indictment was returned.
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all material subject to the Jencks Act, 18 U.S.C. § 3500. 4 The district judge made
it clear, however, that he was not ordering the government to go beyond the
obligations created by Rule 16, Brady v. Maryland, 373 U.S. 83 (1963), Giglio v.
United States, 405 U.S. 150 (1972), and the Jencks Act.
On the same day that defendant Griebel was arraigned, his counsel filed a
discovery motion, a motion which presaged the positions taken in this appeal. In
the motion, Griebel’s counsel sought, in addition to all exculpatory material
covered by Brady and all material covered by Rule 16, “all statements and tape
recordings” in the case, all evidence possessed by the prosecution, copies of all
exhibits to be used at trial, and the names and addresses of all government
witnesses, all of which Griebel asked the court to order the government to
produce not later than thirty days before trial. (I R. doc. 419.)
Other motions were filed and hearings were held on them, but the pattern
established in the beginning did not change: Griebel’s lawyer consistently
demanded much more disclosure from the government than the law requires –
while failing to support his demands with any legal authority – and direly warned
that he would be unable to render effective assistance to his client if his demands
were not met. The trial judge finally advised counsel this way:
4
The Jencks Act requires the government to produce at trial, after a
witness has testified, any previous statements given by that witness. Thus, the
government in this case offered to be much more accommodating to defense
counsel than was required of it.
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These are the rules. I don’t make them up. I know you don’t like
them, Mr. Goody, but run for Congress. I mean, basically I’m just
going to have to apply these rules, and I know of no basis within the
Tenth Circuit precedent or Supreme Court precedent certainly that
would contemplate that this material would be disgorged, and I think
frankly I would be abusing my discretion to do so.
V R. at 33.
Finally, we note that at this last hearing the prosecutor expressed concern
that two investigators for Griebel’s attorney had intimidated two witnesses, a
concern which re-enforced his reluctance to disclose more than he already had
(which was more than he was required to disclose) about the government’s
witnesses. The defense offered a completely different version of the
investigators’ encounter with the two witnesses. But in a later sentencing
hearing, the government offered testimony that one of defendant’s investigators
had been charged with “witness tampering” in federal court and eventually
pleaded guilty, the charge having been based on her efforts in this case. VII R. at
37-38.
II
On appeal, Griebel asserts violation of several constitutional rights – the
right to due process of law, the right to confront the witnesses against him, and
the right to effective assistance of counsel. Griebel contends that these
constitutional violations followed from the prosecution’s withholding of pretrial
discovery. Griebel’s arguments are vastly overblown, relying on broad
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allegations augmented by copious amounts of bombast. The arguments are not,
however, supported by any reference to specific evidence that should have been
disclosed nor any demonstration of how those disclosures would have been so
vital to the defense that in their absence the proceedings failed to meet the
standard of due process. Nor is this entreaty for a dramatic expansion of the
government’s discovery obligations – obligations that as the district court noted
are defined by Rule 16, Brady, Giglio and the Jencks Act – supported by any legal
authority. Because the arguments do not illuminate any specific violation of any
right, we find them unpersuasive and reject them.
The centerpiece of Griebel’s argument is that the government violated his
due process rights by failing to disclose prior to trial information that would have
been exculpatory or would have aided his defense by providing grounds for
impeachment of prosecution witnesses. Thus the argument focuses on the
prosecution’s duties under Brady v. Maryland, 373 U.S. 83 (1963), and its
progeny. We review a due process claim based on Brady under the de novo
standard. United States v. DeLuna, 10 F.3d 1529, 1534 (10th Cir. 1993).
To establish a Brady violation, Griebel must show that: “(1) the
prosecution suppressed the evidence; (2) the evidence would have been favorable
to [him]; and (3) the suppressed evidence is material.” Id. (quoting United States
v. Wolf, 839 F.2d 1387, 1391 (10th Cir. 1988)). Evidence is material in this
analysis “only if there is a reasonable probability that, had the evidence been
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disclosed to the defense, the result of the proceeding would have been different.
A ‘reasonable probability’ is a probability sufficient to undermine confidence in
the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).
Griebel fails to establish the first of the three elements and so simply
defaults as to the other two. He has failed to show that the prosecution
suppressed any evidence that would have been exculpatory or of impeachment
value. His broad assertions are not supported by any facts of record.
As an illustration of the lack of support for the sweeping contentions of
deprivation of constitutional rights, we note that Griebel’s brief, after alleging
that the government’s investigative files consisted of over 6000 pages, states as a
bald conclusion: “It stands to reason that these materials contain a great deal of
exculpatory evidence that was never revealed to appellant.” Opening Br. at 15.
This is no substitute for showing that exculpatory evidence was suppressed in
violation of Brady.
The brief then goes on to say that the statement of witnesses which were
produced as required by the Jencks Act “contained a substantial amount of
exculpatory materials.” Griebel does not allege a violation of the Jencks Act per
se. Rather, he alleges that the statements of witnesses produced in compliance
with the Jencks Act included portions that should have been produced earlier
because they were exculpatory as to him and so subject to Brady. Apparently it
remains an open question in our circuit whether, as Griebel argues, a statement
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otherwise covered by the Jencks Act’s requirement of production at trial is
required to be produced earlier when the statement includes Brady material. See
United States v. Lujan, 530 F. Supp. 2d 1224, 1255-56 (D.N.M. 2008) (noting that
the question is unresolved in this circuit and there is a conflict among other
circuits as the required timing of disclosure of such evidence); United States v.
McVeigh, 923 F. Supp. 1310, 1315 (D.Colo. 1996) (same).
We need not address this issue of apparent first impression here. Griebel
does not offer a single example of a witness’s statement that might have been used
more effectively had it been produced sooner. Apparently we are expected to
conclude that it “stands to reason” that defense of the case was unfairly hobbled.
We are simply invited to speculate that the prosecution violated Brady. Even if we
were willing to do that, however, we would still be unable to complete the proper
analysis unless we were to also assume, as Griebel suggests, that the suppressed
evidence was material and that prejudice resulted. We are not willing, nor are we
obligated, to forgive Griebel’s failure to support his assertions by simply indulging
his request to assume away all three elements of our established test for evaluation
of Brady claims.
In short, Griebel falls short at the first step of the analysis of his Brady
claim: He has not shown that the government suppressed evidence that should
have been disclosed. We have often reminded counsel that it is not the function of
the court to comb the record in search of support for their arguments. “Judges are
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not like pigs, hunting for truffles buried in briefs.” Gross v. Burggraf Constr. Co.,
53 F.3d 1531, 1546 (10th Cir. 1995) (quoting United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991)).
Because the same unsupported allegation that the government withheld
evidence is the cornerstone for Griebel’s allegation that his right to confront
witnesses was infringed, and because Griebel does not support the allegation with
any reasoned argument or applicable legal authority, further analysis on this point
is unnecessary. As to the allegation that Griebel was denied the effective
assistance of counsel, in keeping with our general rule we will decline to address
that matter on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1242
(10th Cir. 1995) (en banc).
The judgment of the district court is therefore AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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