United States v. Robinson , 272 F. App'x 421 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0809n.06
Filed: November 19, 2007
No. 06-1800
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
United States of America, )
) ON APPEAL FROM THE
Plaintiff-Apppellee,) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
Edward Robinson, )
)
Defendant-Appellant.)
BEFORE: MOORE and GRIFFIN, Circuit Judges, and GRAHAM,* District
Judge.
GRAHAM, District Judge. Defendant-appellant Edward Robinson
was indicted in the Eastern District of Michigan on drug and
weapons charges allegedly committed on April 22, 2004. In a
superseding indictment filed on December 14, 2005, defendant was
charged with conspiracy to possess with intent to distribute and to
distribute heroin and more than five grams of cocaine base in
violation of 21 U.S.C. § 846 (Count One); possession with the
intent to distribute more than five grams of cocaine base in
violation of 21 U.S.C. § 841(a)(1) (Count Two); possession with
intent to distribute heroin in violation of § 841(a)(1) (Count
Three); using, carrying and brandishing a firearm during and in
relation to the drug trafficking crimes charged in Counts 1 through
3 of the indictment in violation of 18 U.S.C. §924(c) (Count Four);
and being a felon in possession of a firearm in violation of 18
U.S.C. §922(g)(1) (Count Six).
*
The Honorable James L. Graham, Senior United States District Judge for the
Southern District of Ohio, sitting by designation.
Defendant’s case proceeded to trial before a jury. The record
reveals that on April 19, 2004, a confidential informant working
under the supervision of Officer Don Eastman of the Detroit Police
Department Narcotics Bureau, was sent to 2701 Chrysler, Apartment
Number 1721, to purchase crack cocaine. The transaction was
completed, and on April 21, 2004, Officer Eastman obtained a search
warrant for the premises. JA 28-29.
The warrant was executed on April 22, 2004, at approximately
9:15 a.m. JA 444. Prior to entry, the officers knocked on the
door and announced their presence. JA 449-450. When they received
no response, a forced entry was ordered. JA 451. Officer Jerold
Blanding of the Narcotics Bureau was the first officer through the
door. He was armed with a short-barreled shotgun. JA 444. As
Officer Blanding entered the apartment, he saw the defendant
sitting in a chair in the back bedroom. JA 452-53, 495. Three
women were also in the apartment. Officer Blanding ordered
defendant to show his hands. JA 453-54. Defendant reached with
his left hand down to his left side, pulled out a pistol, and
leaned forward preparing to aim the pistol at the officer, at which
point Officer Blanding shot defendant in the abdomen. JA 455-58.
Defendant fell back into the chair, and the gun fell to the left
between defendant’s leg and the chair. JA 458. Officer Blanding
obtained the pistol and placed it on the floor while defendant was
being handcuffed. JA 473. Defendant was then transported to the
hospital.
Upon searching the apartment, the police observed 135 ten-
dollar baggies of crack cocaine, each weighing approximately .101
grams, three baggies of heroin, a razor blade, a scale, and a
2
sifter used to process heroin located on a coffee table near the
defendant’s chair in the back bedroom. JA 617-618, 630-31, 635,
643-44, 677-78. A .357 Magnum handgun was found in the back
bedroom under the cushion of a sofa on which a woman was sleeping
at the time of the entry. JA 461-62. The officers also recovered
$2,495 in cash found in a locked bag located next to the chair in
the bedroom. JA 836-37.
The jury convicted defendant on all counts. The district
court imposed a sentence of 120 months on Counts One and Two and 70
months on Counts Three and Six. As to Count Four, the district
court declined to find that defendant brandished the firearm, and
imposed a consecutive sentence of 60 months for using or carrying
a firearm during a drug trafficking offense. JA 1125. Defendant
now appeals his convictions.
I.
Defendant raises as error the district court’s failure to
suppress the evidence obtained as a result of the search warrant.
In the affidavit supporting the search warrant, see JA 56, Officer
Eastman stated that he is “a member of the Detroit Police
Department Narcotics Bureau” and that he “has been assigned in this
capacity for approximately seventeen years.” He stated that he was
seeking a search warrant for 2701 Chrysler, Apartment Number 1721,
as well as authorization to search the person of an individual
known as “‘Earl, Jr[.],’ B/M/late 40's, 6'2", 190lbs, and wearing
glasses.” He further stated:
The affiant is working in conjunction with other members
of the Narcotics Bureau, and a registered informant SOI
#2179, who is credible and reliable, having been utilized
by members of the Narcotics Bureau on at least 10
occasions, resulting in the arrests of at least 10
persons for VCSA and related offenses, with at least 5
3
persons having been convicted in 36th District and 3rd
Circu[i]t Courts, and with some cases still pending.
On 4-19-04, the affiant met with the SOI and formulated
a plan to make a controlled substance purchase from the
above location. The SOI was searched for drugs and
money, with negative results obtained. The SOI was then
issued a sum of pre-recorded secret service funds with
which to make an [sic] purchase, and then driven to the
above location. Upon leaving the affiant, the SOI walked
directly to the front entrance of the above location,
whereupon entering the lobby and out of the affiant’s
sight, stayed for a short time. Upon exiting the
building, the SOI returned directly to the affiant,
turning over to the affiant a quantity of suspected
cocaine, and stating that it had been purchased from the
above location, and the above described B/M. The SOI was
once again searched for drugs and money with negative
results.
The evidence was conveyed to the Narcotics Bureau
analysis section where it was tested and found to contain
cocaine by PO Dekun. The cocaine was placed into LSF
N002889104.
During trial, Officer Eastman testified that the funds given
to the informant were not pre-recorded funds. JA 258. During a
pretrial hearing, Officer Michael Deacon (his name was misspelled
as “Dekun” in the affidavit) testified that he performed a test on
the substance purchased by the confidential informant which was
positive for cocaine, but that this analysis was not performed in
a laboratory. Defendant moved to suppress the warrant under Franks
v. Delaware, 438 U.S. 154 (1978), arguing that two false statements
in the warrant rendered it invalid. The district court denied the
motion to suppress.
Upon review of a “district court’s ruling on a Franks
challenge, we review de novo the district court’s legal
conclusions, and we review the district court’s findings of fact
for clear error.” United States v. Keszthelyi, 308 F.3d 557, 566
4
(6th Cir. 2002). The first step in the Franks analysis is to
determine whether “a false statement knowingly and intentionally,
or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit[.]” Franks, 438 U.S. at 155-56.
Mere inadvertence or negligence in making erroneous statements is
insufficient to require exclusion. United States v. Elkins, 300
F.3d 638, 649 (6th Cir. 2002). If the affidavit is found to contain
false statements knowingly or recklessly made, then the next step
in the analysis is to determine “with the affidavit’s false
material set to one side,” whether “the affidavit’s remaining
content is insufficient to establish probable cause[.]” Franks,
438 U.S. at 156. If the affidavit, minus any recklessly or
intentionally made and materially false statements no longer
establishes probable cause, then the court must hold the search
warrant invalid. Franks, 438 U.S. at 156.
In regard to the reference to “pre-recorded” funds, Officer
Eastman testified at trial that the funds used in this case were
not pre-recorded, and that this was “just a common terminology used
in each and every affidavit that I’ve ever done[.]” JA 258.
Although the district court indicated its disapproval of the use of
this language as boilerplate, the court never made a specific
finding as to whether the false statement was intentionally or
recklessly included in the affidavit. Instead, the court concluded
that use of the term “pre-recorded” was not material. The court
noted that because there was no reference in the affidavit to any
additional fact which would render the pre-recorded nature of the
funds relevant, such as the discovery of pre-recorded funds on the
premises, whether the funds used to purchase drugs were pre-
5
recorded had no bearing on the existence of probable case or the
magistrate’s determination. JA 1092-1093. This court agrees.
Even assuming that the false description of the funds as “pre-
recorded” was knowingly or recklessly made, the characterization of
the funds as “pre-recorded” was not material to the magistrate’s
finding of probable cause in this case.
As to the reference to the “Narcotics Bureau analysis
section,” defendant argued that the term “analysis section”
suggests a laboratory. Officer Deacon testified that he works in
the Narcotics Prisoner Processing Unit. JA 312. Although he was
not familiar with the term “analysis section,” he stated that he
does perform drug testing. JA 314. He testified that the
chemicals he uses to test for the presence of a controlled
substance are the same chemicals used in the lab, and that any
distinction arises in testing for potency or purity. JA 314. He
stated that he did perform the analysis in the instant case, which
was positive for cocaine, and that he assigned the lock seal folder
a number, as stated in the affidavit. JA 316.
The district court found that the reference to the “analysis
section” was not included in the affidavit with the intent to
mislead the magistrate concerning the nature of the drug test, but
rather was an “inartful mischaracterization.” JA 346-348. The
court noted that the affidavit stated that the test was performed
by Officer Deacon, with no indication that he was a chemist or lab
technician. JA 346. The fact that the test was performed by a
police officer suggests a field test rather than a laboratory
analysis, and supports the district court’s finding that the
affiant had no intent to mislead the magistrate concerning where
6
the test was conducted. With the exception of the use of the
ambiguous term “analysis section,” the other statements concerning
the testing of the substance, including the fact that the test was
positive for cocaine, were true and correct. We agree with the
district court’s conclusion that the reference to “analysis
section” was not an intentional or material falsehood.
The district court also performed the second branch of the
Franks analysis. The district court noted the fact that the
informant had worked with the police on numerous occasions and “had
a track record which had been borne out.” JA 1084. The court
further noted that Officer Eastman searched the informant and found
no drugs or money on his person before he entered the building, and
that when he searched the informant on his return, he had cocaine
but no funds. JA 1084. The court concluded that even disregarding
the inaccurate statements in the affidavit, the warrant was still
supported by probable cause. JA 1084-85, 1093-94.
“To demonstrate probable cause to justify the issuance of a
search warrant, an affidavit must contain facts that indicate a
fair probability that evidence of a crime will be located on the
premises of the proposed search.” United States v. Frazier, 423
F.3d 526, 531 (6th Cir. 2005) (internal quotations and citation
omitted). The affidavit in this case is based in large part on
information provided by a confidential informant. In such a case,
the court must consider the veracity, reliability, and basis of
knowledge for that information as part of the totality of the
circumstances for evaluating that information. United States v.
Helton, 314 F.3d 812, 819 (6th Cir. 2003). However, “the affiant
need only specify that the confidential informant has given
7
accurate information in the past to qualify [the informant] as
reliable.” United States v. Greene, 250 F.3d 471, 480 (6th Cir.
2001).
The affidavit indicates that the informant was known to the
affiant, and that he had worked with officers of the Narcotics
Bureau on at least ten previous occasions, resulting in the arrests
of at least ten persons and at least five convictions. This
information was sufficient to establish the reliability of the
informant. See United States v. Rodriguez-Suazo, 346 F.3d 637, 646
(6th Cir. 2003)(informant assisted law enforcement with information
leading to more than three arrests and convictions); United States
v. Williams, 224 F.3d 530, 532-33 (6th Cir. 2000)(finding a
confidential informant reliable where the affidavit stated that the
informant had provided information leading to “arrests and
convictions”).
The affidavit also states that Officer Eastman, an officer
with seventeen years experience in the Narcotics Bureau, searched
the informant with negative results, gave funds to the informant,
and watched the informant enter the building at 2701 Chrysler.
When the informant returned, he delivered a substance to the
officer which tested positive for cocaine. The informant was
searched again, and he had no cash or drugs on his person. The
affidavit further states that the informant told the officer that
he had purchased the substance at Apartment Number 1721 from the
individual described in the affidavit.
We agree with the district court that the facts contained in
the affidavit are sufficient to establish probable cause even if
the false statements are disregarded, and defendant’s motion to
8
suppress the warrant was properly denied.1
II.
Defendant argues that his right to confront witnesses under
the Sixth Amendment of the United States Constitution was violated
when Officer Eastman was permitted to testify concerning
information the police had received about there being a known
shooter on the premises. We review the question of whether the
admission of evidence violates the Confrontation Clause de novo.
United States v. Stover, 474 F.3d 904, 912 (6th Cir. 2007).
The Confrontation Clause of the Sixth Amendment gives a
criminal defendant the right to confront the witnesses against him
and the opportunity to cross-examine such witnesses. Stewart v.
Wolfenbarger, 468 F.3d 338, 347 (6th Cir. 2006). In Crawford v.
Washington, 541 U.S. 36 (2004), the Supreme Court held that this
provision bars “admission of testimonial statements of a witness
who did not appear at trial unless he was unavailable to testify,
and the defendant ha[s] had a prior opportunity for cross-
examination.” Id. at 53-54. However, the Confrontation Clause
“does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Id. at 59 n.
9; see also United States v. Pugh, 405 F.3d 390, 399 (6th Cir.
2005).
1
Defendant argues that the warrant must be held invalid because, if the
magistrate had known that the affidavit contained false statements, he may have
concluded that Officer Eastman was totally lacking in credibility and may have
declined to issue the warrant, although there is no evidence that any of the
other statements in the affidavit were false. This approach would be equivalent
to holding that the mere presence of false statements is sufficient to invalidate
the warrant. That is not the law. Rather, Franks also requires an independent
analysis of the affidavit by the reviewing courts to determine if the facts in
the affidavit, minus the false statements, are sufficient to establish probable
cause. Franks, 438 U.S. at 156. It is only when probable cause is found lacking
during this process that the warrant must be held defective. Id.
9
In this case, defense counsel cross-examined Officer Eastman
concerning the short amount of time the police waited after
knocking and announcing their presence before they broke down the
door of the apartment. JA 270-273. On redirect, the prosecutor
was permitted to ask Officer Eastman why the police entered the
apartment so quickly, and Officer Eastman stated that “in our pre-
raid debriefing, we had information from our SOI [that] there may
have been a person on the premises who was deemed a shooter. And
so for that fact, the safety of the raid, personnel was the greater
consideration at that point.” JA 284. He was then asked what he
meant by “shooter,” and he responded, “Someone who is known to have
shot people ... in the past.” JA 284. He explained that if the
information was reliable, it meant that an increase in the time it
took the officers to enter the apartment also raised the likelihood
that they would receive fire from an individual on the inside. JA
284. After this testimony, the court instructed the jury:
In this case, you may use Officer Eastman’s testimony to
understand and evaluate the reasons why he went into–he
and the other officers went into the door as quickly as
they did.
In other words, you may use it in evaluating what was his
state of mind at the time and what they knew at the time.
However, you may not use it for the truth of what was
stated in these–in these statements.
In other words, that there was, in fact, a shooter in the
apartment at any time previously, only as the evidence
bears upon why the officers acted as they did. Okay?
But not for the truth.
JA 285-86.
The record indicates that Officer Eastman’s testimony
concerning the information the police had received about a possible
10
shooter was offered not for the truth of the matter asserted, but
rather to explain, in response to the defense inquiries, why the
police did not wait longer after announcing their presence before
breaking down the door. See United States v. Chance, 306 F.3d 356,
385 (6th Cir. 2002)(“[W]here one party has ‘opened the door’ on an
issue, the opponent, in the trial court’s discretion, may introduce
evidence on the same issue to rebut any false impression that may
have been created by the earlier admission of evidence.”). The
trial court gave a cautionary instruction to the jury which limited
the jury’s consideration of the evidence to that purpose. “Federal
courts generally ‘presume that juries follow their instructions.’”
Hill v. Mitchell, 400 F.3d 308, 325 (6th Cir. 2005)(quoting
Washington v. Hofbauer, 228 F.3d 689, 706 (6th Cir. 2000)).2 Since
the statement was not offered for the truth of the matter asserted,
Officer Eastman’s testimony did not violate the Confrontation
Clause, and the trial court did not err in allowing this testimony.
III.
Defendant argues that the trial court erred in precluding
defense counsel from cross-examining Officer Blanding concerning
three prior incidents in which Officer Blanding discharged his
weapon.3 The district court concluded that the proffered evidence
2
Even if the jury was tempted to ignore these instructions, there was no
testimony identifying either defendant or any of the three females found in the
apartment as the “shooter” referred to in the statement.
3
The first incident allegedly occurred in 1995 when Officer Blanding, while
searching an abandoned building for squatters, shot at a pigeon that startled
him. In 1997, Officer Blanding was off duty and standing outside a nightclub at
2:00 a.m. A man drove up to Officer Blanding and began firing, and Officer
Blanding returned the fire, emptying his weapon. In 1998, Officer Blanding,
again off duty, was withdrawing money from an ATM machine in a bank parking lot
when a man opened his car door. Seeing an object in the man’s hand and thinking
that he was being robbed, Officer Blanding shot the man. JA 166-168.
11
was not admissible under Fed.R.Evid. 404(b). This court reviews
the district court’s evidentiary rulings for an abuse of
discretion. United States v. Ayoub, 498 F.3d 532, 547 (6th Cir.
2007). “A district court abuses its discretion when it applies the
incorrect legal standard, misapplies the correct legal standard, or
relies upon clearly erroneous findings of fact.” Schenck v. City
of Hudson, 114 F.3d 590, 593 (6th Cir. 1997). The lower court’s
ruling will be reversed only if we are firmly convinced that a
mistake has been made. Pugh, 405 F.3d at 397.
Fed.R.Evid. 404(b) provides in relevant part:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
In determining the admissibility of evidence under Rule
404(b), the district court must apply a three-step analysis: (1) is
there sufficient evidence that the other act in question actually
occurred; (2) is the evidence of the other act probative of a
material issue other than character; and (3) does the probative
value of the evidence substantially outweigh its potential unfair
prejudicial effect. United States v. Jenkins, 345 F.3d 928, 937
(6th Cir. 2003).
Under Rule 404(b), evidence of prior acts is not admissible to
show criminal disposition or propensity. United States v. Lattner,
385 F.3d 947, 956 (6th Cir. 2004)(evidence of past criminal activity
is inadmissible to show criminal propensity); United States v.
Ushery, 968 F.2d 575, 580 (6th Cir. 1992)(Rule 404(b) bars evidence
offered to show criminal disposition or propensity). Rule 404(b)
12
applies to any person, and contemplates the prior act by another
person being offered as exculpatory evidence by the defendant as
“reverse 404(b) evidence.” See United States v. Lucas, 357 F.3d
599, 605 (6th Cir. 2004). However, evidence of prior acts of a
third party offered by a defendant is subject to the same
strictures and analysis as Rule 404(b) evidence offered by the
government. Id. at 605-06; see also United States v. Williams, 458
F.3d 312, 317 (3d Cir. 2006)(prohibition against propensity
evidence applies to acts of a third party offered by a defendant).
Defendant argues that the proffered evidence was admissible
under Rule 404(b) because it tended to show that Officer Blanding
may have fired at defendant even though he did not see defendant
with a gun, and that he lied about seeing defendant pull a weapon
in order to shield himself from liability. Assuming arguendo that
there was sufficient evidence that the other acts occurred, the
district court correctly noted that the evidence of the prior
incidents went to Officer Blanding’s character, specifically, his
propensity to “shoot first and think up an explanation later.” JA
581. A person’s propensity to act in a certain way is not a ground
for the admission of prior act evidence under Rule 404(b). Insofar
as defendant argued that the prior acts might bear on Officer
Blanding’s credibility, the reference to “motive” in Rule 404(b)
does not refer to a motive to testify falsely. See United States
v. Black, 28 F.3d 1214 (table), 1994 WL 325992 at *2 (6th Cir. July
5, 1994)(Rule 404(b) does not pertain to evidence on the issue of
credibility); United States v. Farmer, 923 F.2d 1557, 1567 (11th
Cir. 1991)(the word “motive” as used in Rule 404(b) does not refer
to a motive to testify falsely). See also, United States v.
13
Taylor, 417 F.3d 1176, 1180 (11th Cir. 2005)(holding that trial
court properly disallowed evidence of citizen complaints of alleged
racial harassment, brutality and evidence planting against officer
to show that officer had a motive to frame the defendant and lie at
trial; “motive” in Rule 404(b) context does not refer to witness’s
motive to testify falsely). The district court correctly held that
the proffered evidence was not admissible under Rule 404(b).
The district court was also concerned about the danger of
confusion which would arise by “having a parade of witnesses ...
testifying about acts not directly related to” the case against
defendant, that “the jury could easily be misled and confused and
that this would be not only confusing to the jury, but would be
very prejudicial to the government’s case.” JA 582-83. Under
Fed.R.Evid. 403, relevant evidence “may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.”
Fed.R.Evid. 403. The district court has broad discretion in
determining whether the danger of unfair prejudice outweighs the
probative value of the evidence. United States v. Mack, 258 F.3d
548, 555 (6th Cir. 2001). The district court did not abuse its
discretion in holding that even if the evidence was admissible, its
probative value was substantially outweighed by the danger of jury
confusion and unfair prejudice to the government.4
Defendant claims that the inability to cross-examine Officer
4
In correlation with prohibiting inquiry into the prior shooting incidents
involving Officer Blanding, the district court, to defendant’s benefit, also
denied the government’s request to delve into the defendant’s alleged tendency
to brandish a weapon when confronted by the police, and struck the brandishing
element from the § 924(c) count, thereby reducing the potential penalty on that
count. JA 582-84; 1125. These additional rulings are not at issue in this
appeal, and we express no opinion as to whether they were correct.
14
Blanding concerning the prior shootings denied defendant his Fifth
Amendment right to present evidence in his defense and his Sixth
Amendment right to cross-examine his accusers. However, “a
complete defense does not imply a right to offer evidence that is
otherwise inadmissible under the standard rules of evidence.”
Lucas, 357 F.3d at 606. Since the proffered evidence was not
admissible under Rule 404(b), defendant’s Fifth Amendment challenge
fails.
Likewise, “not all limitations on cross-examination have
constitutional implications” and courts are accorded broad
discretion in limiting cross-examination. Wright v. Dallman, 999
F.2d 174, 179 (6th Cir. 1993); see also, Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986)(“[T]rial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or
only marginally relevant.”). “Limitations on specific inquiries by
the defense are permissible so long as ‘the jury has sufficient
other information upon which it may make a discriminating appraisal
of the witness’s motives and bias.’” Dallman, 999 F.2d at 179
(quoting United States v. Baker, 494 F.2d 1262, 1267 (6th Cir.
1974)). Here, defense counsel thoroughly cross-examined Officer
Blanding concerning his encounter with the defendant. Officer
Blanding was asked if he could have been mistaken under the
pressures of the situation about seeing a gun in defendant’s hand.
JA 527. Officer Blanding acknowledged that if he admitted that
defendant did not have a gun, this would expose him to civil
15
liability and criminal prosecution. JA 528-29. He was questioned
about whether he could make a mistake about someone having a gun.
JA 530. The exclusion of evidence of the prior shootings did not
prevent the jury from appraising Officer Blanding’s motive and
credibility, and the trial court’s ruling did not infringe upon the
defendant’s right to confront witnesses under the Sixth Amendment.
IV.
Defendant argues that the court erred in admitting medical
records which indicated that defendant had cocaine in his system at
the time he was arrested. Defendant argues that this evidence was
not relevant to the issue of whether he acted in an aggressive
manner during the raid.
Relevant evidence is “evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” Fed.R.Evid. 401. Defendant does not
contend that the issue of whether he acted aggressively was not “of
consequence to the determination of the action[.]” Evidence that
the defendant acted aggressively supported Officer Blanding’s
testimony that defendant pulled a gun, which in turn was relevant
to prove that defendant used or carried a firearm during and in
relation to a drug trafficking offense, as alleged in Count 4, and
possessed a firearm, as alleged in Count Six. Rather, defendant
argues that the district court erred in determining that the
presence of cocaine in defendant’s system made it more probable
that the defendant acted aggressively.
Sergeant Joseph Harris testified that he had been a police
officer for nineteen years. JA 614. Based on Sergeant Harris’s
16
experience in narcotics investigations with the Detroit Police
Department and the Drug Enforcement Agency, the district court
found that he could testify as an expert concerning narcotics
trafficking. JA 619-22. Sergeant Harris testified that he had
purchased drugs approximately five hundred times. JA 625. He
further stated, based on his experience, that crack cocaine dealers
sometimes use cocaine, and that he had often seen persons under the
influence of cocaine. JA 669-70. Sergeant Harris testified that
persons under the influence of cocaine are “[h]ard to contain,
don’t follow directions. Strong, very combative.” JA 671. He
also stated that persons under the influence of cocaine are very
aggressive, and will not follow orders due to their combative
nature. JA 672. The district court noted this testimony and
concluded that the fact that defendant was under the influence of
cocaine went to the defense theory that defendant did not respond
aggressively with a gun. JA 967.
The medical records satisfy the requirements for relevant
evidence. In light of Sergeant Harris’s testimony that cocaine
users act aggressively, the medical records stating that defendant
had cocaine in his system at the time of his arrest made it more
probable than it would have been without that evidence that he
acted aggressively by pulling a firearm. Defendant notes that the
records failed to indicate the concentration of cocaine in
defendant’s system, but this goes to the weight to be given the
evidence, not to its admissibility. See Moross Ltd. Partnership v.
Fleckenstein Capital, Inc., 466 F.3d 508, 516 (6th Cir.
2006)(weakness in factual basis for expert opinion goes to weight
of evidence rather than admissibility). The district court did not
17
abuse its discretion in admitting this evidence.
V.
Defendant argues that the prosecution failed to disclose
evidence prior to trial in violation of Fed.R.Crim.P. 16 and Brady
v. Maryland, 373 U.S. 83 (1963). During trial, defendant moved for
a mistrial due to the government’s alleged failure to disclose
certain evidence prior to trial, specifically: (1) a fingerprint
analysis of a print identified as belonging to a co-defendant; (2)
the shirt worn by defendant at the time he was shot; and (3) the
falsity of the statement in the warrant affidavit that the funds
used by the confidential informant were pre-recorded funds. The
court denied the motion for a mistrial. JA 598-613. Defendant
repeated these arguments in a motion for a new trial made prior to
sentencing. JA 176-177. The trial court also denied the motion
for a new trial. JA 1105.
We review a district court’s decisions under Rule 16, as well
as the denial of a mistrial due to delayed disclosure of evidence,
for abuse of discretion. United States v. Davis, 306 F.3d 398, 420
(6th Cir. 2002); United States v. Quinn, 230 F.3d 862, 866 (6th Cir.
2000). The district court’s determination as to the existence of
a Brady violation is reviewed de novo. United States v. Graham,
484 F.3d 413, 416-17 (6th Cir. 1998). For the following reasons,
we conclude that defendant was not denied a fair trial.
Rule 16 provides that the government, upon request by a
defendant, must permit the defendant to inspect and to copy or
photograph papers or tangible objects “if the item is within the
government’s possession, custody, or control” and is material to
preparing the defense, intended for use in the government’s case in
18
chief, or belongs to the defendant. Fed.R.Crim.P. 16(a)(1)(E).
Rule 16 also provides that the government must permit defendant to
inspect and copy or photograph the results or reports of any
scientific test if: (1) the item is within the government’s
possession, custody, or control; (2) counsel for the government
knows or should have known of the item’s existence through the
exercise of due diligence; and (3) the item is either material to
the preparation of the defendant or intended for use during the
government’s case in chief. Fed.R.Crim.P. 16(a)(1)(F).
If the trial court finds that a violation of Rule 16 has
occurred, the court may impose a number of sanctions, including
entering an order mandating discovery or inspection, granting a
continuance, excluding the undisclosed evidence, or granting any
other remedy “that is just under the circumstances.” Fed.R.Crim.P.
16(d)(2). In deciding the appropriate remedy, the court considers:
(1) the reasons for any delay in producing materials, including ill
intent or bad faith; (2) the degree of prejudice, if any, to the
defendant; and (3) whether any prejudice may be cured with a less
severe course of action like a continuance or a recess. United
States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995).
The Supreme Court held in Brady that “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady, 373 U.S. at 87. To establish a Brady
violation, the defendant must show that: (1) the evidence must be
favorable to the defendant because of its exculpatory or impeaching
nature; (2) the evidence was willfully or inadvertently suppressed
19
by the government; and (3) the defendant was prejudiced. Strickler
v. Greene, 527 U.S. 263, 281-82 (1999). Evidence “is material ‘if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.’” Id. at 280 (quoting United States v. Bagley, 473
U.S. 667, 676 (1985)). Evidence is favorable to the defendant if
it exculpates the defendant or enables the defendant to impeach
witnesses. Bagley, 473 U.S. at 676.
In this case, the evidence noted by defendant was disclosed
during the course of the trial. “Brady generally does not apply to
delayed disclosure of exculpatory information, but only to a
complete failure to disclose.” United States v. Bencs, 28 F.3d
555, 560-61 (6th Cir. 1994). Delay only violates Brady when the
delay itself causes prejudice. United States v. Blood, 435 F.3d
612, 627 (6th Cir. 2006).
A.
The first alleged violation relates to the results of a
fingerprint analysis. On the first day of trial, prior to opening
statements, counsel for the government informed the court that he
had just spoken with the lab on the phone, and was informed that
the lab had identified the fingerprint of co-defendant Bianca
Shelman. The prosecutor did not know on what piece of evidence the
print had been found or the quality of the print, and he told the
lab to fax the report to chambers. JA 356. Since the parties had
not yet seen the report, the court instructed counsel not to
mention it during opening statements. JA 357. In arguing the
mistrial motion, defense counsel expressed no problem with the
fingerprint analysis itself because counsel viewed that evidence as
20
being exculpatory to the defendant, but counsel argued that
defendant was prejudiced because counsel was not able to refer to
this evidence during the opening statements. JA 603-07. The
district court concluded that the defendant failed to show
prejudice because the ability to use the fingerprint evidence
during trial was more effective than an opening statement, which
was not evidence. JA 613.
No violation under Rule 16 or Brady occurred in regard to the
fingerprint analysis. The district court noted that the analysis
was completed right before the trial began. JA 1069-1070. Defense
counsel also stated that “the fingerprint analysis, apparently, did
not take place until one business day before trial began.” JA 603.
There is no evidence that the results of the analysis were in the
possession, custody or control of the government prior to trial.
Thus, the failure to provide the report of the analysis to
defendant prior to trial did not violate Rule 16. Likewise, “Brady
and its progeny have recognized a duty on the part of the
prosecutor to disclose material evidence that is favorable to the
defendant over which the prosecution team has control.” Graham,
484 F.3d at 417. Brady does not impose a duty upon the government
to discover information which it does not possess. Id.
In any event, defendant has not shown prejudice due to the
delay in disclosure, since he was able to take advantage of the
exculpatory fingerprint evidence at trial. Detective Sergeant
Charles Morden testified that a fingerprint belonging to Bianca
Shelman was found on a plastic bag, and stated on cross-examination
that no other identifiable fingerprints were found. JA 821, 832.
Defense counsel argued during closing that no fingerprint evidence
21
linked defendant to the drug evidence found at the scene. JA 1030.
Defendant has shown no prejudice from the fact that counsel was
unable to refer to this evidence during opening statement.
B.
The second alleged violation concerns the government’s failure
to turn over the shirt defendant was wearing when he was shot.
This evidence was subject to disclosure under Rule 16. However,
there is no evidence that the government intentionally failed to
disclose this evidence to the defendant in violation of Rule 16.
The district court noted that it was not clear that the shirt was
not made available at the original production of evidence. JA
1079. The prosecutor indicated that he did not recall defense
counsel asking for the shirt, and stated that “had I known that’s
something they want, of course, we give it over.” JA 608-9.
During trial, the court ordered the government to turn the shirt
over to defense counsel, and the government complied. JA 609.
Since the shirt in question was the defendant’s property, the
defense also knew or had reason to know that this evidence existed.
“[T]here is no Brady violation if the defendant knew or should have
known the essential facts permitting him to take advantage of the
information in question[.]” Carter v. Bell, 218 F.3d 581, 601 (6th
Cir. 2000). If the defendant wanted to arrange for an expert
analysis of the shirt prior to trial, he could have petitioned the
government and the court for the production of the shirt for
testing.
In addition, defendant has not shown how he was prejudiced by
the failure to produce the shirt sooner. In denying defendant’s
motion for a new trial, the district court noted there was no
22
indication that the shirt was exculpatory evidence. JA 1079.
Defendant argued that the shirt was relevant to the issue of
whether he was shot on his right side, as Officer Blanding
testified, or his left side, the location of his colostomy bag. JA
500, 502. Officer Blanding testified that the gun was on
defendant’s left side, but agreed that no blood could be seen on
the gun in the photograph produced at trial. JA 506-7.
Defendant’s theory was that if he was shot in his left side and the
gun was located on his left side, there should have been blood on
the firearm as a result of the gunshot wound. However, the record
is silent as to what evidence, if any, the shirt would reveal on
those issues. Other evidence showed that the shotgun shell used to
shoot defendant contained approximately nine pellets. JA 459. The
defendant’s hospital records showed one pellet wound on the left
side, with the remainder being in the center and right side of
defendant’s abdomen. JA 580. Therefore, defendant has not shown
that the shirt would have supported his theories.
The district court also noted that defense counsel had the
opportunity to inspect the shirt during trial, but decided not to
use it, that the shirt was made available to defense counsel in
sufficient time to obtain an analysis of the shirt by a forensic
expert, and that defense counsel made no request for a continuance
for that purpose. JA 1075-80. In light of defendant’s failure to
request a continuance to obtain an expert examination of the shirt,
no prejudice has been shown. See O’Hara v. Brigano, 499 F.3d 492,
503 (6th Cir. 2007)(noting defendant’s failure to request a
continuance to prepare a defense or subpoena supporting evidence);
United States v. Holloway, 740 F.2d 1373, 1381 (6th Cir.
23
1984)(declining to find prejudice in light of defense counsel’s
failure to request a continuance).
C.
The third alleged violation is the failure to disclose prior
to trial that the description “pre-recorded” funds was false. This
fact was revealed at trial through the cross-examination of Officer
Eastman. No Rule 16 violation occurred, because the government was
not required under Rule 16 to disclose the anticipated statements
of witnesses prior to trial. See Fed.R.Crim.P. 16(a)(2)(Rule 16
does not “authorize the discovery or inspection of statements made
by prospective government witnesses except as provided in 18 U.S.C.
§ 3500."); 18 U.S.C. §3500(a) (no statement made by a government
witness other than the defendant shall be subject to discovery or
inspection “until said witness has testified on direct examination
in the trial of the case.”).
Likewise, pretrial disclosure of exculpatory or impeachment
evidence is not necessarily required under Brady. “As a general
proposition, ‘[t]here is no general constitutional right to
discovery in a criminal case, and Brady did not create one....’”
United States v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994)(quoting
Weatherford v. Bursey, 429 U.S. 545, 559 (1977)). “Where a
defendant claims a violation of Brady because of the Government’s
failure to produce impeachment evidence, ‘so long as the defendant
is given impeachment material, even exculpatory impeachment
material, in time for use at trial, we fail to see how the
Constitution is violated.’” United States v. Crayton, 357 F.3d
560, 569 (6th Cir. 2004)(quoting United States v. Presser, 844 F.2d
1275, 1283 (6th Cir. 1988)).
24
Defense counsel thoroughly cross-examined Officer Eastman
concerning his erroneous statement in the warrant affidavit that
the funds used were pre-recorded. JA 257-263. Defense counsel
noted the false statement during closing argument. JA 1013-14.
Thus, defendant was able to make use of any impeachment value to be
had from that evidence. Likewise, the disclosure of this evidence
during trial did not prejudice defendant’s position regarding his
motion to the suppress the search. As noted previously, the
district court correctly determined that the fact that pre-recorded
funds were not used was not material to the issuance of the search
warrant. Defendant has not shown that he was prejudiced by the
disclosure of the false statement in the affidavit during trial.
VI.
Defendant argues that he was denied a fair trial due to
prosecutorial misconduct. We review the question of whether
prosecutorial misconduct requires reversal de novo. Stover, 474
F.3d at 914. This court’s review of a prosecutorial misconduct
claim involves a two-step analysis: (1) were the prosecutor’s
remarks improper; and (2) were the remarks sufficiently flagrant to
warrant reversal. United States v. Jamieson, 427 F.3d 394, 413 (6th
Cir. 2005). In determining whether the conduct was “flagrant,” we
consider four factors: (1) whether the remarks tended to mislead
the jury or to prejudice the accused; (2) whether they were
isolated or extensive; (3) whether they were deliberately or
accidentally placed before the jury; and (4) the strength of the
evidence against the accused. Blood, 435 F.3d at 628. “In
examining prosecutorial misconduct, it is necessary to view the
conduct at issue within the context of the trial as a whole.”
25
United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004).
Defendant first argues that counsel for the government acted
improperly in identifying the confidential informant and co-
defendant Hoyle as witnesses.
Prior to opening statements, the government stated that,
contrary to its earlier representations, it would be calling the
confidential informant as a witness. JA 598-99. Defense counsel
objected about the lack of time to prepare, and the court ordered
the government to provide defense counsel with the informant’s
files. The court also indicated that it probably would not permit
the informant to testify due to the delay in identifying the
informant as a witness. JA 602. The government subsequently
decided not to turn over the files, and did not call the informant
as a witness. JA 599.
The gist of defendant’s argument is that the government’s
decision to call the informant as a witness deprived his counsel of
the opportunity to comment during opening statements that the
government “supposedly has a key witness that can point the finger
at” the defendant, but that “the government’s afraid to call that
witness.” JA 600-01. However, the government’s subsequent
decision not to call the informant as a witness did not constitute
misconduct. Further, during closing argument, defense counsel was
able to comment on the fact that the government had not called the
confidential informant as a witness, stating, “They have no
confidential informant that they could bring in and say Mr.
Robinson sold me drugs.” JA 1023. Therefore, defendant can show
no prejudice from the prosecutor’s actions.
The defendant also contends that the prosecutor engaged in
26
misconduct when he included Hoyle on his list of potential
witnesses read to the prospective jurors during voir dire, see JA
351, but did not call her as a witness during trial. Defendant
contends that the government included Hoyle on its witness list to
make its case look stronger and to intimidate defendant into
pleading guilty. The record does not support this contention.
Defense counsel argued before the district court that they knew
from speaking with Hoyle’s attorney that she had no intention of
pleading guilty. JA 1072-73. However, the district court
responded that if Hoyle was considering cooperating with the
government, her attorney would not be likely to reveal that
information to defendant’s counsel. JA 1073. The court further
observed that Hoyle was still engaged in plea negotiations with the
government at that time, and that there was always a chance that
Hoyle would change her mind and decide to cooperate. JA 1072-74.
Defendant cites no authority for the proposition that the
prosecution is obliged to call each and every potential witness
identified during voir dire, and the government did not engage in
misconduct by including Hoyle’s name in the list of potential
witnesses read to the jury. As the district court commented, if
the government had failed to identify Hoyle as a witness and she
later decided to testify, defense counsel would have objected to
the government’s failure to give the prospective jurors the
opportunity to say that they knew Hoyle. JA 1074. In addition,
defense counsel commented during closing argument concerning the
government’s failure to call any co-defendants as witnesses,
stating, “They have no co-defendants, cooperators, who’s [sic] are
going to come in and say Mr. Robinson was a part of the criminal
27
conspiracy and he’s guilty.” JA 1023. Defendant has shown no
prejudice from the inclusion of Hoyle’s name in the government’s
list of potential witnesses.
Defendant also argues that the prosecutor engaged in
misconduct when he asked defense counsel in front of the jury
whether counsel was willing to stipulate to defendant’s medical
records, knowing that defense counsel had previously objected to
the release of the medical records on the grounds of physician-
patient privilege. JA 575-580; 666. Defense counsel responded
that they were not going to stipulate to the admission of the
records. JA 666. The district court noted that the prosecutor
should not have assumed that there might be a stipulation, but
rejected defendant’s argument that the prosecutor acted with ill
will or that he had requested the stipulation hoping to create the
impression that the defense was hiding the records. JA 795-97;
799; 801.
While it may have been more appropriate for the prosecutor to
request a side bar conference to discuss the stipulation, his
actions did not rise to the level of misconduct. The remark was
isolated and, as the trial court noted, JA 797, it was not
sufficient to raise an implication that the defense was trying to
hide the records. Defendant declined the district court’s offer
for a curative instruction. JA 798-99. Finally, the evidence
against defendant was strong.
We conclude that defendant was not denied a fair trial due to
the actions of the prosecutor discussed above.
VII.
Finally, defendant argues that he is entitled to a new trial
28
due to the alleged cumulative errors committed during trial.
However, the accumulation of non-errors cannot collectively amount
to a violation of due process. Campbell v. United States, 364 F.3d
727, 736 (6th Cir. 2004). Since we have found no error in the
proceedings below, this argument is without merit.
VIII.
For the foregoing reasons, we affirm the defendant’s
convictions.
29