United States v. Edwards ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 30, 2006
March 1, 2006
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
__________________
04-31210
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UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
EDWIN EDWARDS
Defendant - Appellant
__________________
04-31212
__________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANDREW MARTIN
Defendant - Appellant
___________________
04-31219
___________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
STEPHEN EDWARDS
Defendant - Appellant
Appeals from the United States District Court
for the Middle District of Louisiana, Baton Rouge
Before KING, BARKSDALE and PRADO, Circuit Judges.
KING, Circuit Judge:
In this consolidated appeal, appellants Edwin Edwards,
Stephen Edwards, and Andrew Martin challenge the district court’s
denial of their motions to vacate their sentences pursuant to 28
U.S.C. § 2255 and the district court’s denial of an evidentiary
hearing to determine whether the government withheld exculpatory
evidence during their criminal trial in violation of Brady v.
Maryland, 373 U.S. 83 (1963). They also appeal the district
court’s denial of their motions for leave to amend their § 2255
motions after the one-year statute of limitations had expired to
add a constitutional claim in light of United States v. Booker,
543 U.S. 220 (2005). For the reasons stated below, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Criminal Proceedings
Four-term Louisiana Governor Edwin Edwards, his son Stephen
Edwards, and his executive assistant Andrew Martin (collectively,
“Appellants”), along with several of their associates, were
indicted on thirty-four federal counts by superseding indictments
on August 4, 1999, for their roles in a number of illegal
activities designed to profit from awarding riverboat gambling
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licenses while Edwin Edwards was governor. The superseding
indictments alleged that Appellants had conspired in five
separate “schemes” to extort money from individuals who had
applied to the Louisiana Riverboat Gaming Commission for a
limited number of licenses to operate riverboat casinos along
Louisiana’s Gulf Coast and Lake Charles. In exchange for cash
bribes, Appellants promised to use Governor Edwards’s influence
with the Riverboat Gaming Commission to help applicants obtain
preliminary approval for the riverboat gambling licenses they
sought; for those applicants who refused to pay, Appellants
threatened to make obtaining a license impossible. Appellants
then attempted to launder the extorted money to cover up their
criminal activities. At their arraignments on August 24, 1999,
Appellants entered pleas of not guilty.
On May 9, 2000, after a four-month trial in the United
States District Court for the Middle District of Louisiana, the
jury returned its verdict. Appellants were convicted of, inter
alia, violating the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), RICO conspiracy, extortion,
conspiracy to commit extortion, wire and mail fraud, conspiracy
to commit wire and mail fraud, and conspiracy to commit money
laundering.
On January 8, 2001, Appellants were sentenced under the
United States Sentencing Guidelines. Governor Edwards was
sentenced to 120 months and Stephen Edwards was sentenced to 84
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months, and they were fined $250,000 and $60,000, respectively.
Andrew Martin received 68 months and a $50,000 fine. A
forfeiture order in the amount of $1.8 million was entered
against each appellant. While all three sentences were within
the Guidelines, they included enhancements for the amount of
intended loss, and Governor Edwards’s and Stephen Edwards’s
sentences also included enhancements for their roles in the
offenses.
Appellants appealed their convictions and sentences to this
court, which affirmed the district court’s judgment on August 23,
2002. United States v. Edwards, 303 F.3d 606, 647 (5th Cir.
2002). This court subsequently denied Appellants’ petition for
rehearing en banc. United States v. Edwards, 51 F. App’x 485
(5th Cir. 2002). On February 24, 2003, the Supreme Court denied
Governor and Stephen Edwards’s petition for writ of certiorari.
Edwards v. United States, 537 U.S. 1192 (2003). The Court denied
Andrew Martin’s petition for writ of certiorari on March 3, 2003.
Martin v. United States, 537 U.S. 1240 (2003).
B. Post-Conviction Proceedings
1. Section 2255 Proceedings
On February 18, 2004, Appellants timely filed in the United
States District Court for the Middle District of Louisiana cross-
incorporated post-conviction motions to vacate their sentences
under 28 U.S.C. § 2255, alleging six separate grounds for relief
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and requesting an evidentiary hearing. Two of these grounds,
which are now before this court on appeal, alleged that during
Appellants’ trial the government withheld impeachment evidence
relating to two of its key witnesses, Robert Guidry and John
Brotherton, in violation of Appellants’ due process rights under
Brady, 373 U.S. 83.
a) Robert Guidry’s Plea Agreement
In their § 2255 motions, Appellants asserted that the
government violated their due process rights under Brady when it
concealed information regarding the plea agreement of Louisiana
businessman Robert Guidry, a government witness who had testified
against Appellants pursuant to a grant of immunity. Appellants
further maintained that Guidry gave false testimony concerning
the scope of his plea agreement and that the government failed to
correct it in violation of Napue v. Illinois, 360 U.S. 264, 270
(1959).
Appellants asserted that at their trial, the government
relied heavily on Guidry’s testimony to convict Appellants on
counts related to the so-called “Treasure Chest Scheme.” Guidry,
the owner of the Treasure Chest Riverboat Casino, testified that
in 1994 he had agreed to pay Appellants $100,000 per month in
exchange for a license hearing before the Riverboat Gaming
Commission. Guidry received a license and, after Governor
Edwards left office in 1996, began making the monthly cash
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payments of $100,000. Guidry testified that between February
1996 and April 1997 he paid a total of $1.4-$1.5 million to
Appellants.
Guidry gave this testimony in exchange for immunity from
further prosecution pursuant to a written plea agreement with the
federal government. Per the agreement, at his October 16, 1998,
arraignment, Guidry pleaded guilty to one count of conspiracy to
commit extortion related to the “Treasure Chest Scheme” in the
United States District Court for the Middle District of
Louisiana. The agreement also required that he forfeit $3
million and pay $250,000 in restitution and $250,000 in fines,
capping his total financial liability to the federal government
at $3.5 million.1 In addition, Guidry received state immunity in
an October 15, 1998, letter to Eddie Jordan, the United States
Attorney for the Eastern District of Louisiana, signed by East
Baton Rouge Parish District Attorney Doug Moreau. In this
letter, Moreau promised that he would “defer to federal
prosecution in the matter [and] grant [Guidry] immunity for
crimes he may have committed concerning the Louisiana Riverboat
Gaming Industry and specifically the Treasure Chest riverboat
casino.” Def. § 2255 Exh. tab 2. Guidry’s plea agreement
1
Under the terms of the plea agreement, Guidry was to
pay the $250,000 in restitution to be distributed by the court at
sentencing to parties who could show that they suffered damages
as a result of Guidry’s conduct. See Def. § 2255 Exh. tab 1 at
2.
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specified that “the statements set forth above represent the
entire agreement with the government, any prior oral discussions
or written letters do not affect this agreement.” Def. § 2255
Exh. tab 1 at 4. The government produced Guidry’s written plea
agreement and the Moreau letter to Appellants prior to the
beginning of Appellants’ criminal trial.
On October 7, 1999, the Louisiana Attorney General, on
behalf of the state of Louisiana, filed a civil suit in state
court against Guidry. The state sought damages arising from
Guidry’s illegal dealings with Appellants, including all of the
profits resulting from Guidry’s breach of fiduciary duty and the
value of his gaming license. Shortly before the beginning of
Appellants’ criminal trial, the district court stayed the state
action against Guidry pending the outcome of Appellants’ trial.
During Appellants’ trial, Guidry testified that, although his
financial liability to the federal government was capped at $3.5
million, his overall financial exposure was possibly much greater
because he had “two or three lawsuits that’s [sic] pending
against all this money.” 120 Rawle at 214. After Appellants’ trial
and convictions, Guidry was sentenced in federal court consistent
with his plea agreement on January 17, 2001.2
2
At the sentencing hearing, the state of Louisiana
sought a restitution award out of the $250,000 that Guidry had
paid to the court pursuant to his plea agreement, arguing a
breach of fiduciary duty theory similar to the theory of recovery
articulated in Louisiana’s state court suit pending against
Guidry at the time.
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Soon thereafter, the state of Louisiana proceeded with its
civil suit against Guidry. In support of his motion for a
preliminary injunction, Guidry’s defense attorneys argued that
the immunity provisions set forth in the Moreau letter should be
construed under Louisiana law to include immunity from state
civil suit for money damages as well as from state criminal
prosecution. At a June 26, 2003, hearing on the motion, Guidry’s
attorneys attempted to elicit testimony from the federal and
state prosecutors involved in the plea agreement to support this
civil immunity theory. The state court judge denied the
preliminary injunction on the ground that, given the testimony
from the hearing, “there was simply no meeting of the minds”
regarding an agreement to extend civil immunity to Guidry. Def.
§ 2255 Exh. tab 16 at 5.
Despite the state court’s finding, Appellants, citing newly
discovered evidence of a Brady violation, built on Guidry’s civil
immunity theory a year later during their § 2255 proceedings.
They argued that Guidry’s plea agreement went beyond the contents
of the written agreement and the Moreau letter because Guidry had
also entered into an unwritten, undisclosed deal with federal
prosecutors and the state of Louisiana immunizing Guidry from
financial liability to the state arising from crimes he may have
committed in connection with the Treasure Chest Casino.
Appellants further suggested that a federal judge approved this
separate agreement at Guidry’s 1998 arraignment in a secret, off-
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the-record chambers conference with Guidry, his lawyers, and the
prosecutors.
b) John Brotherton’s Book Deal
In their § 2255 motions, Governor and Stephen Edwards (“the
Edwardses”)3 also contended that the government violated their
due process rights under Brady when it failed to disclose that,
during the trial, cooperating witness John Brotherton had been
writing a book about his role in the Edwards case. The Edwardses
asserted that Brotherton, a Vice President for the Players Casino
Company who testified pursuant to a grant of immunity, was a
crucial witness in the government’s “Players Scheme” case because
he and Richard Shetler, an Edwards family friend and paid
consultant for Players, were the only two witnesses to testify to
extortion connected with the Players Casino.
The Edwardses argued that the government’s failure to
disclose that Brotherton was writing a book deprived them of
impeachment evidence concerning Brotherton’s purported financial
stake in the outcome of the trial. Moreover, the Edwardses
contended that the contents of the book revealed further
exculpatory evidence that the government had failed to disclose
in violation of Brady, including the existence of tape recordings
3
Appellant Andrew Martin was not named in the “Players
Scheme” counts of the indictment and thus was not found guilty of
the related racketeering counts that Brotherton’s testimony
addressed.
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obtained from a wiretap of an undercover informant.
c) The District Court’s Ruling
The district court denied Appellants’ § 2255 motions and
their request for an evidentiary hearing on November 3, 2004.
The court found that there was no evidence that the government
had concealed the extent of Guidry’s financial immunity in
violation of Appellants’ due process rights because (1) Guidry
testified extensively on cross-examination about the terms of his
plea agreement, including the limitations on his federal
forfeiture, his understanding of his immunity deal with the state
of Louisiana, and his plea agreement’s relationship to the
pending collateral civil suits; (2) Appellants were able to
impeach Guidry effectively on the financial liability limitation
contained in his written plea agreement, and even if the
government had disclosed its purported belief that the state
lawsuit against Guidry was barred because of his financial
immunity deal, such information “would have been at best,
cumulative,” and at worst, “not material”; and (3) Appellants’
“argument that the plea agreement contained an undisclosed (and
unwritten) clause which barred the State from seeking monetary
damages from Guidry is speculative and unsupported” by the
evidence. Ruling on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence, No. 98-165-C, at 7-9 (Nov. 3, 2004)
[hereinafter “Dist. Ct. § 2255 Ruling”]. Because the court found
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no evidence of an undisclosed financial immunity deal, it also
rejected Appellants’ contention that Guidry gave false testimony
at trial that the government failed to correct.
Likewise, the district court rejected Appellants’ assertion
that the government’s failure to disclose John Brotherton’s book
deal violated Appellants’ due process rights under Brady.
Because “Brady requires that materiality be determined in light
of all evidence at trial,” the court examined the totality of the
evidence supporting the convictions for the “Players Scheme.”
Id. at 28-29. The court found that ample evidence besides
Brotherton’s testimony supported the convictions, and “[i]t is
rank speculation to conclude that, compared with this
incriminating evidence, any marginally more impeaching evidence
concerning Brotherton could have created in the jurors’ minds
reasonable doubt as to the [Appellants’] guilt.” Id. at 29.
Appellants filed notices of appeal of the district court’s
ruling and motions for a certificate of appealability (“COA”) on
November 30, 2004.
2. Appellants’ Motions to Amend Their § 2255 Motions
Appellants did not challenge the constitutionality of their
sentences in the § 2255 motions that they filed on February 18,
2004. On June 24, 2004, the United States Supreme Court handed
down Blakely v. Washington, 542 U.S. 296 (2004), striking down a
state sentencing guideline scheme that allowed sentence
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enhancements based on facts found by a judge and not a jury.
Anticipating that the Supreme Court might extend Blakely to the
federal Sentencing Guidelines, Appellants filed motions for leave
to amend their § 2255 motions on July 1, 2004, outside of the
§ 2255, ¶ 6, one-year limitation period. In a ruling dated
September 4, 2004, the district court denied Appellants’ motions
based solely on United States v. Pineiro, 377 F.3d 464 (5th Cir.
2004), vacated, 543 U.S. 1101 (2005), which held that Blakely did
not invalidate the federal Sentencing Guidelines. Appellants
filed notices of appeal and motions for a COA on November 30,
2004. Shortly thereafter, on January 12, 2005, the Supreme Court
handed down Booker, 543 U.S. 220, which applied Blakely to hold
the mandatory application of the federal Sentencing Guidelines
unconstitutional.
3. Certificate of Appealability
On December 13, 2004, the district court granted each
Appellant a COA pursuant to 28 U.S.C. § 2253(c)(1)(B), finding
that Appellants had demonstrated a substantial showing of the
denial of a constitutional right on the following issues:
1. Whether the [Appellants’] due process rights were
violated by the government’s failure to disclose a
promise to cooperating witness Robert Guidry that he
would not be liable in money damages to the State of
Louisiana.
2. Whether the [Appellants’] due process rights were
violated by the government’s failure to correct Robert
Guidry’s trial testimony that he faced financial exposure
from the lawsuits pending against him and from the denial
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of an evidentiary hearing on this issue.
3. Whether the [Appellants’] due process rights were
violated by the government’s failure to disclose
exculpatory, impeachment material relating to cooperating
witness John Brotherton and from the denial of an
evidentiary hearing on this issue.
4. Whether the [Appellants] should be permitted to raise
a constitutional claim pursuant to Blakely v. Washington.
Appellants now request that this court reverse the district
court’s judgment and vacate their convictions, or, in the
alternative, remand for an evidentiary hearing.
II. DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), our review is limited to the issues enumerated in
the COA.4 28 U.S.C. § 2253(c)(1). In reviewing a district
court’s denial of a motion to vacate sentence under § 2255, we
review questions of fact for clear error and questions of law de
novo. United States v. Chavez, 193 F.3d 375, 378 (5th Cir.
1999). Claims that the government violated Brady v. Maryland are
mixed questions of law and fact that we review de novo. United
States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000); Felder v.
Johnson, 180 F.3d 206, 211 (5th Cir. 1999). We review for abuse
of discretion a district court’s denial of an evidentiary
4
AEDPA applies because Appellants filed their § 2255
motions on February 18, 2004, well after AEDPA’s effective date
of April 24, 1996. See United States v. Williamson, 183 F.3d
458, 461 n.2 (5th Cir. 1999).
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hearing, which we will grant only “[i]f the [Appellants]
produce[] independent indicia of the likely merit of [their]
allegations.” United States v. Cervantes, 132 F.3d 1106, 1110
(5th Cir. 1998); see also United States v. Auten, 632 F.2d 478,
480 (5th Cir. 1980) (noting that mere conclusory allegations are
not sufficient to support a request for an evidentiary hearing).
A district court’s denial of a motion to amend a § 2255 motion is
also subject to review for abuse of discretion. United States v.
Saenz, 282 F.3d 354, 356 (5th Cir. 2002).
B. Analysis
1. The Alleged Brady Violations
Under Brady, “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.”
373 U.S. at 87. The Supreme Court subsequently extended this
principle to impeachment evidence, holding that “[w]hen the
‘reliability of a given witness may well be determinative of
guilt or innocence,’ nondisclosure of evidence affecting
credibility falls within this general rule.” Giglio v. United
States, 405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at
269); see also United States v. Bagley, 473 U.S. 667, 676-77
(1985) (rejecting any distinction between exculpatory and
impeachment evidence for Brady purposes). To establish a Brady
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violation, Appellants must prove that (1) the prosecution
suppressed evidence; (2) the evidence was favorable to the
defendant because it was either exculpatory or impeaching; and
(3) the evidence was material. United States v. Sipe, 388 F.3d
471, 477 (5th Cir. 2004); see also Strickler v. Greene, 527 U.S.
263, 281-82 (1999); Kyles v. Whitley, 514 U.S. 419, 433-38
(1995).
a) Robert Guidry’s Plea Agreement
Appellants allege that the government violated Brady with
regard to cooperating witness Robert Guidry because (1) in
addition to a grant of immunity from state prosecution, Guidry’s
plea deal included a secret, unwritten promise of immunity from
any future civil suit for damages that the state of Louisiana
might bring against him; (2) the deal was confected without
Appellants’ knowledge by federal prosecutors, the Baton Rouge
district attorney’s office, and Guidry’s defense lawyers and then
secretly approved by a federal judge; and (3) the government
failed to disclose the deal to Appellants prior to trial,
depriving them of valuable impeachment evidence.
Our review of the record reveals no factual support for this
improbable scenario; instead, the record affirmatively
contradicts Appellants’ arguments. To support their theory,
Appellants rely primarily on the transcript of a 2003 state court
hearing on Guidry’s request for a preliminary injunction of the
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state lawsuit filed against him. Appellants maintain that the
testimony that Guidry’s attorneys elicited from federal and state
prosecutors who were parties to the Guidry plea negotiations
indicates that there was indeed a hidden promise limiting
Guidry’s state financial liability. To the contrary, the record
reflects that even Guidry’s attorneys--who Appellants claim
negotiated the alleged deal with the state and federal
prosecutors--never argued or attempted to insinuate during
questioning that Guidry had agreed to a secret deal that included
civil immunity. Rather, they merely argued that the state
immunity provisions set forth in the Moreau letter should be
construed under Louisiana law to include immunity from the state
civil suit.5 The theory alleging an unwritten side deal was
5
Guidry’s attorneys did not argue the existence of a
hidden deal in their January 31, 2003, Memorandum in Support of
Request for Preliminary Injunction:
Unquestionably, the State could not prosecute Guidry
criminally under the immunity granted to him. The
question here is whether the immunity agreement bars the
state from prosecuting this so-called civil lawsuit on
the basis of his immunized information and testimony. We
submit firstly that the State is barred from using the
immunized information and testimony under Louisiana
immunity law, and alternatively, it is barred because the
lawsuit in reality is an attempt to obtain restitution,
a criminal penalty, under the guise of a civil claim.
Allowing this suit to proceed on the basis of the
immunized information and testimony would result in an
erroneous interpretation of Louisiana’s immunity law and
an improper application of federal and state principles
of criminal restitution.
Def. § 2255 Exh. tab 11 at 4.
Likewise, Guidry’s attorneys did not assert that their
client had agreed to such a deal in an affidavit submitted in
support of their motion for a preliminary injunction. The most
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articulated for the very first time in Appellants’ § 2255
motions, six years after Guidry entered into his written plea
agreement and more than one year after Guidry’s state court
preliminary injunction hearing.
Moreover, at least two of the attorneys who allegedly
concocted the secret plea agreement--East Baton Rouge Parish
District Attorney Doug Moreau and Assistant United States
Attorney Fred Harper--testified under oath at the hearing that no
mutual understanding or provision limiting Guidry’s state
financial liability ever existed. Indeed, at the time that
Moreau extended state immunity “for crimes [Guidry] may have
committed” in return for Guidry’s cooperation with federal
authorities, the state civil lawsuit against Guidry had not been
filed, and it is clear from the record that none of the actors
involved even contemplated that the state would pursue such a
lawsuit. According to Moreau, “I had never even thought about
[civil immunity] before this lawsuit. . . . I did not contemplate
the use immunity or transactional immunity in regard to civil
proceedings. That . . . never crossed my mind. . . . I didn’t
even know of such a concept as civil immunity.” Def. § 2255 Exh.
they alleged was that Guidry “still refused to enter a plea and
cooperate with the government unless he could be assured that the
State of Louisiana would defer its interest in the case to the
federal government and would agree to limit its financial
recovery to the amount specified in the federal proceeding.”
Even this statement stops short of alleging the actual existence
of an agreement limiting Guidry’s state financial exposure. Def.
§ 2255 Exh. tab 12 at 2.
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tab 15 at 42-44. Likewise, Harper testified that side agreements
outside the scope of the written plea agreement would have been
prohibited and that no one involved had anticipated that the
state of Louisiana would subsequently bring a civil suit against
Guidry:
[N]ever, in my experience, have I ever had a situation
where unbeknownst to me at the time this plea agreement
was entered into, and I believe at the time Mr. Guidry
pled guilty, . . . the state of Louisiana, or anybody
else for that matter, sued a cooperating defendant in a
criminal case. . . . Never, in any case in the 28 years
I’ve been doing this, have I ever seen the state sue a
cooperating defendant civilly. . . . [T]he thought of a
civil action brought by the state of Louisiana against
this cooperating defendant never entered anybody’s mind.
Id. at 67-68.6
Finally, Appellants contend that a federal judge colluded
with the federal prosecutors and Guidry’s attorneys to approve
the alleged civil immunity agreement at Guidry’s arraignment in
an in camera, “secret proceeding.” Appellants offer no support
for this serious allegation other than pointing to a short, off-
the-record chambers conference between the judge and the
attorneys that happened during Guidry’s arraignment and
speculating that something illicit occurred during the recess.
6
Resting its decision on this testimony, the state court
ultimately denied Guidry’s motion for a preliminary injunction,
stating, “[c]onsidering the testimony of the witnesses at the
hearing, it is clear that there was simply no meeting of the
minds regarding any civil liability of Mr. Guidry. . . . The
court reads [the Moreau letter’s] granting of immunity to apply
to criminal culpability only and not to any civil matters.” Def.
§ 2255 Exh. tab 16 at 5.
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This contention is wholly without merit, particularly because
this same judge later rejected the argument that the federal plea
agreement necessarily limited Guidry’s financial liability to the
state during the restitution portion of Guidry’s sentencing. See
Def. § 2255 Exh. tab 10 at 18-19.
Our review of the record leaves us with the firm conviction
that there was no clandestine, collateral plea agreement
protecting Guidry from state financial liability. Appellants’
contentions are speculative and find no support in Guidry’s plea
agreement, the Moreau immunity letter, the transcripts of
proceedings from the state’s lawsuit against Guidry, or the
record on appeal.7 Because “[t]he prosecution has no duty to
turn over to the defense evidence that does not exist,” we reject
Appellants’ Brady claims with respect to Robert Guidry.8 Brogdon
v. Blackburn, 790 F.2d 1164, 1168 (5th Cir. 1986) (per curiam);
7
For the same reasons, the district court did not abuse
its discretion when it denied Appellants’ request for an
evidentiary hearing. Appellants have failed to provide
“independent indicia” of the likely merits of their allegations
and instead rely on speculation based on a misreading of the
record, which is insufficient to warrant an evidentiary hearing.
See Cervantes, 132 F.3d at 1110; Auten, 632 F.2d at 480
(“[C]onclusory assertions do not support the request for an
evidentiary hearing.”).
8
Accordingly, we need not address the materiality vel
non of the allegedly suppressed evidence. Likewise, because the
record reveals neither that a civil immunity agreement concerning
Guidry existed, nor that the government was aware that Guidry
might have believed that such a deal existed, we need not address
Appellants’ related claim that the government violated their due
process rights in violation of Napue, 360 U.S. 264, by failing to
correct Guidry’s allegedly false testimony.
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see also United States v. Rivera Rangel, 396 F.3d 476, 486 n.11
(1st Cir. 2005) (reversing the district court’s grant of a new
trial based on an alleged Brady violation resulting from the
suppression of a cooperating witness’s plea agreement, noting
that “the district court’s finding that [the witness] entered
into a plea agreement was entirely at odds with the only
evidence--which was in the form of sworn statements--that had
been offered on the subject, and as a result, it was
unjustified”); Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)
(addressing a prisoner’s claim that the government suppressed the
existence of a cooperating witness’s plea agreement and holding,
“Todd cannot prove an agreement existed. . . . Without an
agreement, no evidence was suppressed, and the state’s conduct,
not disclosing something it did not have, cannot be considered a
Brady violation”).
b) John Brotherton’s Book Deal
The Edwardses also contend that the government violated
their Brady rights by failing to disclose: (1) that cooperating
witness John Brotherton was writing a book during their trial;
(2) Brotherton’s allegation in the book that the government
secretly recorded a meeting between Brotherton and government
informant Patrick Graham, which the government subsequently
failed to disclose to the Edwardses; and (3) a fabricated
memorandum that Brotherton claims he prepared at one point to
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secure a job with a tribal casino, which he also discusses in his
book.
Even if the government had known that Brotherton was writing
a book and had failed to provide the Edwardses with this
information--and it is unclear from the record whether this was
even the case9--the Edwardses’ claim fails because the evidence
was not material for Brady purposes. “‘[E]vidence is material
only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would
have been different.’” Rector v. Johnson, 120 F.3d 551, 562 (5th
Cir. 1997) (quoting Bagley, 473 U.S. at 682 (1985)).
Specifically, we must determine whether the allegedly suppressed
evidence, considered collectively and in light of all of the
evidence at trial, could reasonably be taken to put the entire
case in a different light so as to “‘undermine[] confidence in
the outcome of the trial.’” Kyles, 514 U.S. at 434 (quoting
9
The Edwardses’ assertions that the government even knew
of Brotherton’s book deal are largely speculative. The Edwardses
cite the book’s preface, in which Brotherton congratulates the
government on its successful prosecution of Governor Edwards, for
the proposition that “the prosecutors were apparently aware of”
both the existence and the contents of Brotherton’s book.
Edwards Br. at 46 (emphasis added). Moreover, to support their
claim, the Edwardses merely assert that “the government has not
denied” knowledge of this evidence. Id. at 50. This argument
ignores that the Edwardses, as the parties alleging a Brady
violation, have the burden of establishing all three prongs of
the Brady test. See, e.g., Sipe, 388 F.3d at 477 (“To establish
a Brady violation, a defendant must make three showings . . . .”)
(emphasis added).
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Bagley, 473 U.S. at 678); see also Duncan v. Cain, 278 F.3d 537,
539 (5th Cir. 2002).
The Edwardses speculate that the fact that Brotherton was
writing a book and the book’s contents would have been
sufficiently impeaching to undermine confidence in the jury
verdict; however, taken in context, this evidence would have had
at best only a marginal impact on the government’s case against
the Edwardses. Brotherton was not the only witness to testify
against the Edwardses regarding the “Players Scheme,” nor was he
the most important. The trial record reflects that Richard
Shetler, another Players employee and long-time Edwards family
friend, provided extensive, damning testimony about the
Edwardses’ dealings with the casino. The government further
bolstered this testimonial evidence with copious exhibit evidence
and inculpatory taped conversations.
Given the amount of incriminating evidence other than
Brotherton’s testimony that the government presented, the
allegedly suppressed impeachment evidence is simply too
insignificant to undermine confidence in the jury’s verdict. See
Kopcynski v. Scott, 64 F.3d 223, 226-27 (5th Cir. 1995)
(rejecting a habeas petitioner’s Brady claim where the suppressed
impeachment evidence was immaterial in light of the other,
corroborated testimony and physical evidence supporting
petitioner’s conviction); see also Pippin v. Dretke, 434 F.3d
782, 789 n.7 (5th Cir. 2005) (“A claim that is largely
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speculative with respect to the effect of the allegedly
exculpatory evidence on the jury’s ultimate determination of
guilt or innocence cannot support a Brady violation.”). We thus
reject the Edwardses’ Brady claim with respect to John
Brotherton.10
2. Appellants’ Booker Claims
Finally, Appellants argue that the district court erred in
denying their motions for leave to amend their § 2255 motions in
light of Booker, 543 U.S. 220, and Blakely, 542 U.S. 296.
Although they acknowledge that they did not challenge the
constitutionality of their sentences on direct appeal or in their
initial § 2255 motions, Appellants argue that, in the wake of
10
Although, in the alternative, the Edwardses urge us to
grant an evidentiary hearing to explore their theory further, we
decline to do so. Due to the speculative and conclusory nature
of the Edwardses’ allegations with respect to both the
suppression and materiality Brady prongs, such a hearing would
serve as nothing more than a fishing expedition. See Cervantes,
132 F.3d at 1110 (noting that an evidentiary hearing is warranted
only “[i]f the [Appellants] produce[] independent indicia of the
likely merit of [their] allegations”); Auten, 632 F.2d at 480
(denying an evidentiary hearing because the conclusory
allegations set forth were not sufficient to support a request
for an evidentiary hearing). We have also denied evidentiary
hearings to explore similarly unsupported claims in state habeas
proceedings under § 2254, applying the same standard. See Hughes
v. Johnson, 191 F.3d 607, 629 (5th Cir. 1999) (denying an
evidentiary hearing to investigate a “purely speculative” Brady
claim); Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995) (“The
[habeas] petitioner must set forth specific allegations of fact,
not mere conclusory allegations.”); Ellis v. Lynaugh, 873 F.2d
830, 840 (5th Cir. 1989) (“The court need not blindly accept
speculative and inconcrete claims as the basis upon which to
order a hearing.”) (internal quotation marks and citation
omitted).
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Booker and Blakely, they should now be allowed to amend their
§ 2255 motions to add a collateral constitutional challenge to
their sentences.
This argument is foreclosed before this court by United
States v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005), and In re
Elwood, 408 F.3d 211, 212-13 (5th Cir. 2005) (per curiam), both
of which hold that the Blakely/Booker line of cases does not
apply retroactively to cases on collateral review. Appellants
correctly conceded in oral argument that this precedent
forecloses relief before this court. They raise this issue only
to preserve it for possible Supreme Court review, and we decline
to consider it further.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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