United States v. Kersey , 130 F.3d 1463 ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-8611
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D.C. Docket No. 5:94-CR-10-001-WLS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WENDELL J. KERSEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Georgia
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(December 16, 1997)
Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.
HATCHETT, Chief Judge:
Appellant Wendell Kersey appeals his conviction and sentence for two counts of
perjury, in violation of 18 U.S.C. § 1621. We affirm.
I. BACKGROUND
In March 1995, a federal grand jury returned an indictment against Kersey,
alleging that he twice lied under oath during a 1989 civil suit that the government brought
against him as guarantor of a defaulted Small Business Administration (SBA) loan.
During the discovery phase of the civil action, in both an affidavit and a deposition,
Kersey claimed that the signature on the SBA guarantor agreement was not his signature.
Among other evidence at the criminal trial, the government presented testimony from
Royce Cooley, who claimed to have witnessed Kersey sign the guarantor agreement.
After conviction but before imposition of sentence, the government disclosed to
Kersey, for the first time, the existence of a document that purported to be a duplicate
original of the guarantor agreement. In response, Kersey filed a “Motion for New Trial
Based on Newly Discovered Evidence Pursuant to Rule 33.” The district court held an
evidentiary hearing, where the government presented one witness, an expert who opined
that the signature on the duplicate original matched Kersey's. The district court thereafter
denied Kersey's motion, finding that the new evidence -- the duplicate original -- failed to
meet the standard for a new trial under Federal Rule of Criminal Procedure 33.
At sentencing, the district court adopted the probation officer's recommendation in
the presentence investigation report (PSR) to apply the 1997 version of the United States
Sentencing Guidelines. Kersey did not object to this recommendation, either in writing or
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in open court. Based on a total offense level of fourteen and criminal history category of
I -- which generated a sentencing range of fifteen to twenty-one months -- the district
court sentenced Kersey to fifteen months imprisonment and three years supervised
release.
II. ISSUES
We discuss: (1) whether the district court should have granted a new trial under
Brady v. Maryland, 373 U.S. 83 (1963), and (2) whether the district court's application of
the 1997 version of the Guidelines violated the Ex Post Facto Clause.
III. CONTENTIONS
Kersey contends that the district court employed the wrong legal standard in its
order denying his motion for new trial. Kersey argues that, under Brady, the duplicate
original constituted crucial impeachment evidence. The government denies that the
duplicate original has any impeachment value and asserts that Kersey failed to present
properly his Brady argument in the district court.
As to the second issue, Kersey contends that the district court should have applied
the 1989 version of the Guidelines in effect at the time of his offense instead of the 1997
version. Under the 1989 version, Kersey asserts that the district court would have
grouped his perjury counts, resulting in a total offense level of twelve and a range of ten
to sixteen months. The government claims that Kersey also failed to preserve this
argument and contends that even under the 1989 version the district court would not have
grouped the counts.
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IV. DISCUSSION
A.
Generally, this court reviews a district court's denial of a motion for new trial
based on a Brady violation for abuse of discretion. United States v. Newton, 44 F.3d 913,
918 (11th Cir.), cert. denied, 116 S. Ct. 161 (1995). If, however, the defendant did not
precisely articulate a Brady violation in his or her motion for new trial, this court need
only conduct a plain error review. See United States v. Noriega, 117 F.3d 1206, 1213 n.4
(11th Cir. 1997); United States v. Hawkins, 566 F.2d 1006, 1013 (5th Cir. 1978), cert.
denied, 439 U.S. 848 (1978). In this case, Kersey did not properly preserve his Brady
argument. Kersey styled and presented his written motion for new trial as one brought
exclusively under the “new evidence” prong of Federal Rule of Criminal Procedure 33.1
While at the evidentiary hearing Kersey did mention Brady and cases interpreting it, he
made no attempt, either orally or in writing, to amend his motion. Instead, Kersey asked
the district court to employ Rule 33's new evidence standard as we articulated it in United
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That rule provides, pertinent part, that:
The court on motion of a defendant may grant a new trial to that defendant
if required in the interest of justice. . . . A motion for new trial based on the
ground of newly discovered evidence may be made only before or within
two years after final judgment . . . . A motion for new trial based on any
other grounds shall be made within 7 days after verdict . . . .
Fed. R. Crim. P. 33 (emphasis added).
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States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989).2 Accordingly, because
Kersey did not properly present the Brady issue to the district court, we will not set aside
Kersey's convictions unless the government's unintentional suppression of the duplicate
original guarantor agreement “seriously affect[ed] the fairness, integrity or public
reputation of [the] judicial proceeding.” United States v. Hastamorir, 881 F.2d 1551,
1559 (11th Cir. 1989).
We conclude that the district court did not plainly err in failing to analyze Kersey's
claim under Brady. First, in light of the unchallenged testimony from the expert witness
at the evidentiary hearing that the signature on the duplicate original belonged to Kersey,
that document does not serve to exculpate him. See Brady, 373 U.S. at 87. Likewise, we
reject Kersey's bare assertion that the duplicate original served as a “practice” form for
the phantom forger of his signature. Next, we cannot say that the duplicate original
would have had “a definite impact on the credibility of an important prosecution witness.”
United States v. Crockett, 534 F.2d 589, 601 (5th Cir. 1976). Contrary to Kersey's view,
cross-examining Cooley about whether he witnessed Kersey sign two, as opposed to one,
2
The standard for a new trial based on new evidence is a five-part test:
(1) the evidence must be discovered following trial; (2) the movant must
show due diligence to discover the evidence; (3) the evidence must not be
merely cumulative or impeaching; (4) the evidence must be material to
issues before the court; and (5) the evidence must be of such a nature that a
new trial would probably produce a new result . . . .
United States v. DiBernardo, 880 F.2d 1216, 1224 (11th Cir. 1989) (citations omitted).
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guarantor agreements would not have, with any reasonable probability, changed the
verdict. See United States v. Arnold, 117 F.3d 1308, 1315 (11th Cir. 1997). Readily
available evidence that Kersey also signed the duplicate original would have greatly
outweighed any nominal information elicited from such an inquiry.
B.
As to properly preserved sentencing issues, this court reviews de novo a district
court's application of the Guidelines. United States v. Newsome, 68 F.3d 1276, 1279
(11th Cir. 1995), cert. denied, 510 U.S. 1062 (1996). Kersey, however, complains for the
first time on appeal that the district court erred in applying the 1997 version of the
Guidelines instead of the 1989 version. Because the district court provided to Kersey
every opportunity to raise the issue below, we will review his Ex Post Facto argument
only if failure to do so would result in manifest injustice. See United States v. Jones, 899
F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906 (1990). We find no manifest
injustice in refusing to review Kersey's fifteen month sentence, as it falls within the 1989
guideline range which Kersey contends applies.
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V. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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