United States v. Jerry Cutno , 431 F. App'x 275 ( 2011 )


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  •      Case: 09-30004     Document: 00511520705         Page: 1     Date Filed: 06/24/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    June 24, 2011
    No. 09-30004                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    JERRY CUTNO,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    2:05–cr–00268–ILRL–SS–1
    Before WIENER, BENAVIDES and STEWART, Circuit Judges.
    PER CURIAM:*
    Jerry Cutno (“Cutno”) was convicted of conspiring to possess with the
    intent to distribute an amount of cocaine, under 
    21 U.S.C. § 841
    (a), and use of
    a firearm in the commission of a drug trafficking crime, which caused the death
    of Paul Miller (“Miller”), under 
    18 U.S.C. § 924
    (c) and (j). Cutno appeals,
    arguing that the district court erred when it denied his motion for a judgment
    of acquittal and/or new trial; denied his application to reopen an evidentiary
    hearing; and prematurely limited his cross examination of a police detective,
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
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    thereby preventing him from developing the theory of his defense. We AFFIRM.
    I.      Cutno’s Motion for Judgment of Acquittal and/or New Trial
    Cutno contends that the district court improperly denied his motion for
    judgment of acquittal and/or new trial. Cutno’s argument requires a discussion
    of Cutno’s relationship with Kenneth White (“White”). While awaiting trial,
    Cutno was housed in the Tangipahoa Parish Jail where he befriended and
    confessed to White his involvement in Miller’s murder.1 White testified against
    Cutno at trial, after which Cutno’s counsel impeached White through his state
    court convictions for distribution of cocaine and simple robbery, and a federal
    conviction for distribution of cocaine. The defense did not ask White if he had
    any other convictions. On appeal, Cutno points to ten misdemeanor convictions
    that he claims belong to White, the nondisclosure of which he believes constitute
    Brady2 violations. Cutno argues that White’s failure to divulge his entire
    criminal history constituted perjury. He contends that the Government’s failure
    to disclose White’s criminal history amounts to a Brady violation. Cutno argues
    that the compound of these errors entitles him to a new trial.
    This court reviews de novo a denial of a motion for a judgment of acquittal
    and/or new trial based on an alleged Brady violation. United States v. Gonzales,
    
    121 F.3d 928
    , 946 (5th Cir. 1997), abrogated by United States v. O’Brien, 130
    1
    Before trial, Cutno sought to suppress the confession and the district court held a Massiah
    hearing. In Massiah v. United States, the Supreme Court held that a criminal defendant may not
    have “used against him at his trial evidence of his own incriminating words, which federal agents
    had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 
    377 U.S. 201
    , 206 (1964). The district court denied Cutno’s Massiah motion and ordered the case tried
    before separate juries with co-defendant Veazie. This is discussed in greater detail in Section II,
    infra.
    2
    “[T]he suppression by the [Government] 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 [Government].” Brady v. Maryland, 373 U.S,
    83, 87 (1963).
    2
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    No. 09-
    30004 S.Ct. 2169
    , 2180 (2010). A court may “grant a new trial . . . if the interest of
    justice so requires.” FED. R. CRIM. P. 33(a). To receive a new trial, a defendant
    must prove that (1) the evidence is newly discovered and was unknown to him
    at the time of trial, (2) failure to detect the evidence was not due to a lack of
    diligence by the defendant, (3) the evidence is not merely cumulative or
    impeaching, (4) the evidence is material, and (5) the evidence introduced at a
    new trial would probably produce an acquittal. United States v. Jaramillo, 
    42 F.3d 920
    , 924 (5th Cir. 1995). To establish a Brady violation, a defendant must
    show that evidence was suppressed, favorable to the defendant, and material to
    either guilt or punishment. United States v. Martin, 
    431 F.3d 846
    , 850 (5th Cir.
    2005) (citing United States v. Runyan, 
    290 F.3d 223
    , 245 (5th Cir. 2002)). The
    Supreme Court counsels that “evidence is only 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.” United States v. Bagley, 
    473 U.S. 667
    ,
    682 (1985). “A reasonable probability is sufficient to undermine confidence in
    the outcome.” 
    Id.
     The materiality inquiry is done “collectively, not item by item
    . . . .” Kopycinski v. Scott, 
    64 F.3d 223
    , 226 (5th Cir. 1995). Kopycinski instructs
    us to consider whether the omission “puts the case in a different light so as to
    undermine confidence in the jury verdict.” 
    Id.
    The Government argues that, of the ten misdemeanor convictions cited by
    Cutno, only five belong to the “Kenneth White” in question: hit and run,
    aggravated assault, disturbing the peace, possession of marijuana, and
    dogfighting.   The Government contests the remaining five misdemeanor
    convictions as belonging to a different person with the name “Kenneth White.”
    The omitted evidence is immaterial for many            reasons.    First, the
    convictions are for misdemeanors and thus unavailable as a means of
    impeachment. Second, the convictions acknowledged by the Government were
    not ones involving dishonesty or moral turpitude. Federal Rule of Evidence 609
    3
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    makes clear that impeachment for convictions of a crime is permissible only if
    the conviction was either for a felony or for a crime in which dishonesty or false
    statement is an element. Furthermore, setting aside White’s testimony for a
    moment, the jury nonetheless had sufficient evidence to convict Cutno. Ashley
    Williams, the girlfriend of Cutno’s co-defendant Ryan Veazie, lived in the
    apartment which served as the scene of the crime. Her testimony put Cutno at
    the scene, as did shell casings and blood found on Cutno’s person after police
    apprehended him. A cell phone, bloodied counterfeit money, and a handgun
    found close to where Cutno was apprehended also tied Cutno to the scene of the
    crime without resort to White’s testimony.
    Disclosure of even the five misdemeanor convictions conceded by the
    Government pales when compared to the formidable criminal record that White
    did disclose at trial. White was extensively cross-examined about his prior state
    and federal felony convictions, history of mental health and intelligence and, as
    discussed in Section II, infra, his role as an informant for the Government.
    From this, the defense had sufficiently impeached White. After a witness is
    impeached, “any further impeachment of the type that the defense now desires
    would merely have been cumulative.” United States v. O’Keefe, 
    128 F.3d 885
    ,
    897 (5th Cir. 1997). Bagley requires a reasonable probability that the omitted
    evidence affects the outcome of the trial. 
    473 U.S. at 682
    . Here, the damage to
    White’s credibility was already done through revelation of his other, more
    serious crimes. Therefore, disclosing additional crimes would likely not have
    resulted in a different verdict. Thus, the omission of White’s misdemeanor
    convictions does not undermine our confidence in the verdict.
    We next examine whether the nondisclosures constituted a Brady
    violation. As United States v. Agurs makes clear, Brady applies to “information
    [] known to the prosecution, but unknown to the defense.” 
    427 U.S. 97
    , 103
    (1976). Yet, “there are limits on the imputation of knowledge from one arm of
    4
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    the Government to prosecutors. The prosecution is deemed to have knowledge
    of information readily available to it.” United States v. Webster, 
    392 F.3d 787
    ,
    798 n.20 (5th Cir. 2004) (internals quotations, citations, and brackets omitted).
    “It is well-settled that if a member of the prosecution team has knowledge of
    Brady material, such knowledge is imputed to the prosecutors.”                            Avila v.
    Quarterman, 
    560 F.3d 299
    , 307 (5th Cir. 2009). Exactly who constitutes a
    member of the prosecution team is done after a “case-by-case analysis of the
    extent of interaction and cooperation between the two governments.” Id. at 570
    (discussing the cooperation between federal and state government agencies,
    versus different arms of the federal government).
    To determine whether the Government knew of White’s misdemeanor
    convictions, we examine the interplay between the United States Attorney’s
    office and the Clerk’s office of St. James Parish, the jurisdiction in which White
    committed his misdemeanor convictions. St. James Parish took no part in the
    prosecution of Cutno for Miller’s murder. The record demonstrates that the
    Government’s research of White’s criminal history was done through the
    National Crime Information Center (NCIC) and by checking its report and rap
    sheets, which were disclosed pursuant to Brady.                            The omissions for
    misdemeanors at the heart of Cutno’s argument did not appear on the NCIC rap
    sheet and thus, were unknown to the Government.3 Cutno presupposes that the
    Government knew White’s concession of his criminal history to be incomplete
    and permitted it anyway. That is simply not the case. Thus, the district court
    3
    The Government avers that counsel for Cutno knew of White’s other convictions
    independent of the NCIC rap sheet at the time of trial. If true, this presents certain problems for
    Cutno. First, it undermines his argument that the Government knew and was not disclosing White’s
    other convictions. Next, a colloquy at trial between the district court and Cutno’s lawyer suggests
    White was not being forthright with testimony regarding his convictions and that defense counsel
    knew this. It was Cutno’s choice not to question White regarding the totality of his criminal record.
    5
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    did not err when it held that the omitted evidence was immaterial to the jury’s
    assessment of the evidence as a basis for denying the Rule 33 motion.
    II.      The Massiah Hearing
    Cutno alleges that the district court erred when it refused to reopen the
    Massiah Hearing. We review the decision to refuse to conduct or reopen a
    pretrial evidentiary hearing for an abuse of discretion.                  United States v.
    Harrelson, 
    705 F.2d 733
    , 737 (5th Cir. 1983). If an abuse of discretion is
    discovered, it is scrutinized under the harmless error doctrine. United States v.
    Clark, 
    577 F.3d 273
    , 287 (5th Cir. 2009) (citing United States v. Sanders, 
    343 F.3d 511
    , 517 (5th Cir. 2003)). In such a scenario, “[r]eversible error occurs only
    when the admission of evidence substantially affects the rights of a party.” 
    Id.
    (citing United States v. Crawley, 
    533 F.3d 349
    , 353 (5th Cir. 2008)). To allege a
    Massiah violation, a criminal defendant must establish that a Sixth Amendment
    right to counsel attached; an individual seeking the information was a
    government agent acting without the defendant’s counsel being present; and,
    that the agent deliberately elicited incriminating statements from the defendant.
    Henderson v. Quarterman, 
    460 F.3d 654
    , 664 (5th Cir. 2006).
    Here, Cutno asserts that White’s relationship with the Government
    through his cooperation with the Bureau of Alcohol, Tobacco & Firearm (“ATF”)
    in another case4 compromised his testimony in this case. The Government
    argues that White contacted the prosecution only after Cutno confessed to White
    his involvement in Miller’s murder, and that ATF agents thus testified truthfully
    at Cutno’s hearing to suppress his confession on Massiah grounds. Therefore,
    the Government asserts, the district court did not err when it found no evidence
    that White was ever directed to elicit statements from Cutno or anyone from law
    enforcement, and he therefore did not act as an agent for the Government.
    4
    United States v. Benjamin, No. 03-274, 
    2011 WL 288777
     (E.D. La. January 26, 2011).
    6
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    Cutno cannot demonstrate that the failure to reopen the hearing
    substantially affected his rights, such that they affected the outcome of the
    proceedings. First, contrary to Cutno’s assertions, the information that he
    supposes as newly discovered was, in fact, stale. White freely admitted (at the
    Massiah hearing) that he was cooperating in another case within the Eastern
    District of Louisiana, and he made that admission again at trial. Next, Cutno
    alleges that an envelope was sent by White to two ATF agents regarding his
    cooperation in another case. Cutno argues that this demonstrates perjury by
    two ATF agents when they testified that White was not an informant for them
    and did not contact them.5 Yet, the Government does not contest the fact that
    White reached out to the federal government. His doing so was the predicate to
    his transfer to Tangipahoa Jail from federal custody. This was known to the
    district court at the Massiah hearing and again divulged during trial. The
    district court found no evidence to demonstrate that White was acting at the
    Government’s behest at the time that Cutno made his confession to White.
    White testified that he and Cutno formed a friendship at which point Cutno
    confessed to Miller’s murder. Taken together, this defeats Cutno’s argument
    that White was acting as a Government agent. Because Cutno cannot prove
    that White was a Government agent, we conclude that his Massiah complaint
    fails and the district court did not err in regard to this issue.
    III.   Cutno’s Confrontation Clause Complaint
    Cutno’s theory of defense supposes that Veazie killed Miller because
    Veazie believed Miller was romantically involved with Williams. Cutno argues
    that he should have been allowed to cross-examine Detective Ronald Ruiz as to
    5
    ATF agent Michael Eberhardt testified he first became familiar with White after being
    contacted by the prosecuting attorney in this case. ATF agent Jennifer Doreck testified that
    she first heard of White from Eberhardt when Eberhardt asked her to escort White to a
    meeting. Both testified that White had never been an informant for the ATF
    7
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    this theory and should have been allowed to introduce affirmative evidence of
    Veazie’s prior drug dealing and his prior conspiracy to murder someone thought
    to be interfering in Veazie’s personal relationships. Review of a limitation of
    cross examination is for abuse of discretion. United States v. Davis, 
    393 F.3d 540
    , 548 (5th Cir. 2004) (citation omitted). A defendant’s right to cross examine
    witnesses against him is a constitutional right secured by the Confrontation
    Clause of the Sixth Amendment. 
    Id.
     (citation omitted) A judge’s discretionary
    authority to limit the scope of cross-examination comes into play only after the
    defendant has been permitted, as a matter of right, sufficient cross-examination
    to satisfy the Sixth Amendment. 
    Id.
     (citations omitted). The Confrontation
    Clause is satisfied where defense counsel has been allowed to expose the jury to
    facts from which the jury could appropriately draw inferences relating to the
    reliability of the witness. United States v. Restivo, 8 F.3d at 274, 278 (5th Cir.
    1993).    To demonstrate reversible error, a defendant must show that the
    limitation was clearly prejudicial. Id.
    Here, Cutno has not shown that, but for the limitation, the jury would
    have had a significantly different perception of the Ruiz’s credibility. United
    States v. Maceo, 
    947 F.2d 1191
    , 1200 (5th Cir. 1991). First, the district court
    considered the theory advanced by Cutno and dismissed it as speculative.
    Moreover, it was duplicative, as the district court indicated that “[Cutno’s
    Counsel] already brought out that [Ruiz] initially investigated [Veazie’s alleged
    earlier transgression].” The district court referenced an in camera meeting and
    reiterated the difficulty the it had in seeing the relevance, both temporally (the
    prior incident was five years before Miller’s murder and eight years before
    Cutno’s trial) and as it related to any of the individuals involved in the instant
    case.
    Thus, because we find Cutno’s rights under the Sixth Amendment were
    not violated, we need not determine if the alleged error was harmless beyond a
    8
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    reasonable doubt. See Delaware v. Van Arsdall, 
    475 U.S. 673
    , 684 (1986)
    (noting that the correct inquiry for an improper denial of a defendant’s
    opportunity to impeach a witness is subject to a harmless-error analysis).
    CONCLUSION
    Because we find no reversible error, we AFFIRM the judgment of the
    district court in all respects.
    9