United States v. Levi Akai Livingstone ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3418
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Levi Akai Livingstone, *
*
Appellant. *
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Submitted: June 9, 2009
Filed: August 18, 2009
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Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
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ARNOLD, Circuit Judge.
A jury convicted Levi Livingstone of one count of conspiring to distribute
50 grams or more of actual methamphetamine and 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, see 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(viii), 846, as well as three counts of distributing
methamphetamine, see 21 U.S.C. 841(a)(1). The district court1 then sentenced
Mr. Livingstone to 216 months in prison. He appeals his conviction on the conspiracy
count, asserting that the district court erred by denying his motions for a bill of
1
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
particulars and by failing to order the government to disclose information obtained
during pretrial interviews of various co-conspirators who testified at trial. We affirm.
I.
If a defendant believes that an indictment does not provide enough information
to prepare a defense, then he or she may move for a bill of particulars. See Fed. R.
Crim. P. 7(f). The purpose of a bill of particulars is to inform the defendant of the
nature of a charge with "sufficient precision to enable him to prepare for trial" and "to
avoid or minimize the danger of surprise at trial." United States v. Hernandez,
299 F.3d 984, 989-90 (8th Cir. 2002), cert. denied, 537 U.S. 1134 (2003). To
establish reversible error based on a denial of his motion, Mr. Livingstone "must show
that he was actually surprised at trial and suffered prejudice from the denial." United
States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993).
The government filed a number of indictments against Mr. Livingstone. The
second superseding indictment was the final charging document and it contained the
conspiracy charge at issue: It stated that for a period of about three years,
Mr. Livingstone "did unlawfully, knowingly and intentionally conspire with other
persons known and unknown to the grand jury to distribute and to possess with intent
to distribute 50 grams or more of actual methamphetamine" and 500 grams or more
of a mixture containing methamphetamine. Mr. Livingstone argued in support of his
motion for a bill of particulars that the government had a duty to disclose the evidence
that it intended to use against him at trial. The government's evidence of Mr.
Livingstone's involvement consisted principally of the testimony of alleged co-
conspirators, and Mr. Livingstone sought the specifics of what this testimony would
be.
In its response to the motion, the government explained its theory of the case,
noted that it had already provided Mr. Livingstone with considerable discovery,
including the names of its witnesses, and stated that it would disclose more
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information about the witnesses before trial. The magistrate judge2 observed that a
bill of particulars is not a discovery device to be used to require the government to
provide a detailed disclosure of the evidence that it will present at trial. See United
States v. Wessels, 12 F.3d 746, 750 (8th Cir. 1993), cert. denied, 513 U.S. 831 (1994).
The magistrate judge then denied the motion, concluding that the indictment and the
government's disclosures were sufficient to enable Mr. Livingstone "to understand the
nature of the charges, prepare a defense, and avoid unfair surprise." On the first day
of trial, after the government had provided additional information, the district court
denied Mr. Livingstone's motion to overturn the magistrate judge's denial of a bill of
particulars.
We review a district court's denial of a motion for a bill of particulars for an
abuse of discretion. See United States v. Sileven, 985 F.2d 962, 966 (8th Cir. 1993)
(per curiam); see also United States v. Shepard, 462 F.3d 847, 860 (8th Cir. 2006),
cert. denied, 549 U.S. 1099 (2006). We discern no abuse of discretion in this record,
nor has Mr. Livingstone demonstrated that the denial of his motion prejudiced him.
He does not maintain that he missed the chance to pursue a particular defense. His
defense strategy was to attack the credibility of the government's witnesses, but he
does not indicate how pretrial knowledge of their testimony would have assisted him
in doing that. We thus conclude that the district court did not err in denying
Mr. Livingstone's motion for a bill of particulars.
II.
Mr. Livingstone also contends that Brady v. Maryland, 373 U.S. 83 (1963),
required the government to disclose certain impeachment evidence. In Brady, the
Supreme Court held that "the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either
2
The Honorable Arthur J. Boylan, United States Magistrate Judge for the
District of Minnesota.
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to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution." Id. at 87. The disclosure obligation encompasses both substantive
exculpatory evidence and evidence that might be valuable in impeaching government
witnesses. See United States v. Bagley, 473 U.S. 667, 676 (1985). In reviewing a
Brady claim, we ask whether " 'there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.' " United States v. E.V., 500 F.3d 747, 756 (8th Cir. 2007) (quoting Bagley,
473 U.S. at 682).
In its opening statement, the government revealed the drug transactions to
which each of Mr. Livingstone's alleged co-conspirators was going to testify during
trial. In the two weeks leading up to the trial, the government had interviewed these
witnesses but it did not disclose the substance of those interviews to the defendant.
After the government's opening statement, Mr. Livingstone asked for the prosecutor's
interview notes and "time to deal with them," on the ground that the government
should have turned over the information because it was inconsistent with statements
that the witnesses had made earlier to the police. Mr. Livingstone does not maintain
that the witnesses' trial testimony was inconsistent with the information contained in
the government's interview notes. Instead, he merely asserts that the interview notes
might have been helpful in preparing for impeaching the witnesses during cross-
examination.
At trial, the government acknowledged that with respect to the testimony
implicating Mr. Livingstone "many of these witnesses did not provide such detail"
before the interviews, and their earlier statements to the police were thus arguably
inconsistent with their interviews. Prior inconsistent statements can, of course, be
used to undermine the credibility of a witness, see Fed. R. Evid. 613, and
Mr. Livingstone was unaware of the arguable inconsistency until the government's
opening statement. But Mr. Livingstone fails to show that the result of the trial would
have been different if he had known beforehand what the witnesses were going to say
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at trial, because the record reveals that he did in fact effectively cross-examine the co-
conspirators about inconsistencies between what they had said to the police and what
they testified to. Thus we see no reasonable probability that the outcome of the trial
would have been different if the government had disclosed the interview notes. See
E.V., 500 F.3d at 756.
Affirmed.
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