United States v. Ildefonso Flores ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4220
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ILDEFONSO MADRID FLORES, a/k/a Alfonso,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00353-MOC-DCK-1)
Argued: March 19, 2014 Decided: April 7, 2014
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew Brady Banzhoff, DEVEREUX & BANZHOFF, Asheville,
North Carolina, for Appellant. April Anita Christine, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Mythili Raman, Acting Assistant Attorney General,
Denis J. McInerney, Deputy Assistant Attorney General, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Ildefonso Madrid Flores was convicted
of conspiracy to possess cocaine with intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and 846. Flores contends
that the government violated Brady v. Maryland, 373 U.S. 83(1963), by withholding important information about the
prosecution’s key witness. Flores appeals the district court’s
denial of his motion for a mistrial and his motion for a new
trial on this ground. Finding no error, we affirm.
I.
During Flores’s trial for his drug offense, the government
planned to call David Kennedy, one of Flores’s co-conspirators,
as a key witness. Kennedy had been attending court-mandated
counseling sessions at New Beginnings Counseling Center. At the
request of Flores’s attorney, the court issued a subpoena to New
Beginnings requiring it to turn Kennedy’s mental health records
over to the court.
On May 7, 2012, the eve of Flores’s trial, a representative
from New Beginnings came to the courthouse to deliver Kennedy’s
subpoenaed files. Rather than turning the files over to the
Clerk of Court, however, the representative mistakenly handed
them to an Assistant U.S. Attorney (“AUSA”) who had no
involvement in Flores’s case. That AUSA--who knew nothing about
2
the subpoena’s instruction to turn the file over to the court--
informed the prosecutor in Flores’s case that documents relating
to the case had been delivered. The prosecutor working on
Flores’s case, however, did not actually see the file that New
Beginnings had delivered until the morning after the trial.
At the pretrial conference on the morning of May 8, 2012,
Flores’s attorney asked the court to conduct an in camera review
of the records subpoenaed from New Beginnings. The judge
informed Flores’s attorney that the court had not received the
records. At this time, the prosecutor noted that New Beginnings
had delivered a package to another AUSA the night before, but
that he had not seen the package. This is when the parties and
the court first learned of the improper delivery of Kennedy’s
New Beginnings records. The prosecutor tried to remedy the
situation by offering the court and Flores’s lawyer what he was
physically carrying at the time--a copy of Kennedy’s New
Beginnings file that he had obtained from Kennedy’s lawyer.
Unbeknownst to the prosecutor, Flores’s attorney, or the judge,
these records were incomplete and not identical to those that
New Beginnings had improperly delivered the previous afternoon.
The trial began immediately after this conference. On the
trial’s second day, Kennedy took the stand to testify. During
his cross-examination, Flores’s attorney impeached him at length
3
with his extensive history of heavy drug use. 1 Kennedy also
testified that he was undergoing drug counseling and treatment
for anxiety and depression. Because the New Beginnings records
used by both parties were incomplete, however, Flores’s attorney
was unaware of additional information that could have affected
Kennedy’s credibility, including the full extent of his drug
use, his auditory hallucinations, and that he had been
hospitalized for his drug use and mental illness.
The trial concluded on its second day, May 9, 2012, and the
jury began its deliberations. On May 10, 2012, as the jury
continued its deliberations, the judge held the post-trial
conference. At this time, the prosecutor informed the court and
Flores’s attorney that the New Beginnings file he had offered at
the pretrial conference was incomplete. He then turned over
Kennedy’s complete file, which New Beginnings had misdelivered.
The judge and Flores’s attorney reviewed it.
Later in the post-trial conference, the parties submitted
several motions in response to the revelation that the trial had
proceeded without Kennedy’s full mental health records. After
1
For example, during his cross-examination, Kennedy called
himself a “[v]ery heavy” drug user and admitted that he had been
fired from his previous job for drug use. J.A. 282. Kennedy
went on to say that he used cocaine “[a]ll day” on a daily basis
during the time that he interacted with Flores. J.A. 283–84.
Kennedy also admitted that his drug use “[c]ertainly” resulted
in memory loss. J.A. 291.
4
reviewing the contents of the New Beginnings records, Flores’s
attorney orally moved for a mistrial with prejudice and
requested a hearing to reveal possible governmental misconduct.
Flores’s attorney, in the alternative, moved for a new trial on
the ground of newly discovered evidence under Fed. R. Crim. P.
33(b)(1). The government orally moved for a mistrial without
prejudice, which Flores’s attorney opposed.
The district court ultimately rejected each motion and
allowed the jury to reach a verdict, as “this evidence came
in . . . after the jury was out.” J.A. 528. The district court
also rejected any notion that the government’s nondisclosure was
anything other than inadvertent. It noted that the mistake was
“not the government’s fault” because “[t]he person that screwed
up is the person that didn’t follow [the subpoena’s directions]
over there at the New Beginnings.” J.A. 506, 508.
The jury returned a guilty verdict. Flores’s attorney
filed a written motion for a mistrial and a new trial, again
requesting a hearing to determine if the prosecutor
intentionally withheld information from the defense. After full
briefing by both sides, the district court rejected Flores’s
motions. Flores appeals.
5
II.
We review each of the district court’s denials for abuse of
discretion. United States v. Chong Lam, 677 F.3d 190, 203 (4th
Cir. 2012); United States v. Wallace, 515 F.3d 327, 330 (4th
Cir. 2008). 2
Brady requires that the government disclose material
evidence favorable to the defendant in a criminal proceeding.
United States v. McLean, 715 F.3d 129, 142 (4th Cir. 2013)
(citing Brady, 373 U.S. at 87). A Brady violation occurs when
evidence favorable to the accused has been suppressed by the
state, and the defendant is prejudiced. Strickler v. Greene,
527 U.S. 263, 281–82 (1999). A Brady violation can occur
“irrespective of the good faith or bad faith of the
prosecution.” Giglio v. United States, 405 U.S. 150, 153
(1972). However, “a defendant is not entitled to the benefit of
the Brady doctrine” when the exculpatory information “is not
only available to the defendant but also lies in a source where
a reasonable defendant would have looked.” United States v.
Jeffers, 570 F.3d 557, 573 (4th Cir. 2009) (quoting United
2
Flores also appeals his sentence, claiming that he has a
constitutional right for a jury to determine drug weights used
in sentencing. Flores acknowledges that his position is not the
law in this circuit. We recognize that he seeks to preserve
this issue for a possible future challenge.
6
States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990)). That is
indisputably the case here.
Flores cannot benefit from Brady because Kennedy’s mental
health records fall squarely within the exception set forth
above. Flores’s attorney had equal access to the information
sought: the very subpoena obtained by Flores’s attorney ensured
that Kennedy’s complete New Beginnings records were available to
Flores. Therefore, we cannot say that the district court abused
its discretion in denying Flores’s motions for a mistrial and
for a new trial.
III.
For the foregoing reasons, the district court’s order is
AFFIRMED.
7