United States v. Johnson , 264 F. App'x 388 ( 2008 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 31, 2008
No. 06-41470
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LAVELLE LUNDRE JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas,
Laredo Division.
USDC No. 5:06-CR-00107-1
Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
A jury convicted Appellant Lavelle Lundre Johnson of unlawfully
transporting aliens. On appeal, Appellant claims that the Government
suppressed favorable evidence and that the district court violated his Sixth
Amendment right to cross-examination. We AFFIRM.
I. Factual and Procedural History
On December 30, 2005, United States Border Patrol agents arrested
Appellant and his father, Joseph Johnson, upon discovering ten illegal aliens in
*
Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this order should
not be published and is not precedent except under the limited circumstances set forth in Rule
47.5.4.
No. 06-41470
the sleeper compartment of Appellant’s tractor-trailer. Three of the aliens
remained in the United States as participants in the Material Witness Program
of the Laredo Division of the Southern District of Texas, which includes a
temporary work-release program.
The Johnsons were charged under a three-count indictment with violation
of 8 U.S.C. § 1324(a)(1)(A)(ii). Joseph Johnson pleaded guilty but Appellant
denied that he knew the aliens were present in his tractor. Appellant proceeded
to trial. On the morning of trial, the Government filed a motion in limine
seeking to preclude testimony about the work-release program. The district
court orally ruled that the parties could not reference the program during
opening statements and explained that the court would decide later whether
testimony about the program could be introduced.
The Government chose not to call one of the three material witnesses,
Cynthia Veronica Rojas-Lopez, to trial because she was pregnant and under a
doctor’s orders not to travel. The Government, therefore, dismissed count two
of the indictment, which related to Rojas-Lopez. The jury found Appellant guilty
on two counts of transporting aliens by means of a motor vehicle. Appellant was
sentenced to eighteen (18) months of imprisonment.
II. Discussion
A. Alleged Brady Violations
Brady v. Maryland, 373 U.S. 83 (1963), requires the Government to
disclose to criminal defendants favorable evidence material to guilt or
punishment. United States v. Moore, 452 F.3d 382, 387 (5th Cir. 2006). To
establish a due process violation under Brady, a defendant ordinarily must show
that (1) evidence was suppressed; (2) the suppressed evidence was favorable to
the defense; and (3) the suppressed evidence was material to either guilt or
punishment. United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002).
“Brady claims involve ‘the discovery, after trial[,] of information which had been
known to the prosecution but unknown to the defense,’” and evidence disclosed
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at trial does not constitute suppressed evidence. Lawrence v. Lensing, 42 F.3d
255, 257 (5th Cir. 1994) (quoting United States v. Agurs, 427 U.S. 97, 103
(1976)).
Appellant claims that the Government violated Brady by (I) filing a motion
in limine concerning the material witness work-release program; and (ii) not
presenting witness Rojas-Lopez at trial. The Government filed a motion in
limine that sought to prevent testimony about the work-release program unless
the defense first approached the bench for a ruling on the matter. A request that
the trial court limit cross-examination about facts known to both parties is
clearly not “suppression” of evidence unknown to the defense and therefore
cannot constitute a Brady violation.
As to the other claim, Rojas-Lopez had been previously identified to
Appellant as an alien material witness who had been transported by the
Johnsons. Furthermore, when the Government announced that it would not
bring Rojas-Lopez to the trial and would therefore dismiss the count that related
to her, Appellant did not seek to subpoena Rojas-Lopez and did not request a
continuance to either depose her or wait until she had recovered and could
testify. Appellant knew Rojas-Lopez’s identity prior to trial and could have
secured her testimony by reasonable diligence. Again, no evidence unknown to
the defense was “suppressed” by the Government.
Accordingly, neither of Appellant’s claims constitutes suppression of
evidence under Brady.
B. Alleged Sixth Amendment Violation
Appellant also argues that participation in the work-release program was
a benefit conferred on the material witnesses by the Government and that he
should have been allowed to raise and explore on cross-examination this possible
motivation for their cooperation with the Government and any effect on their
testimony.
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Before trial, the district court considered the Government’s motion in
limine and orally ruled that the parties could not reference the work-release
program during opening statements. The judge stated, however, that he wanted
to look at the issue further. At trial, defense counsel cross-examined the two
material witnesses about their inconsistent statements but did not seek a ruling
allowing him to cross-examine them about the work-release program.
Consequently, the district court did not receive an opportunity to rule on the
scope of the cross-examination.
When a motion in limine to exclude evidence is granted, the party seeking
to introduce the evidence must attempt to offer the evidence at trial to preserve
the issue for appeal. United States v. Estes, 994 F.2d 147, 149 (5th Cir. 1993);
United States v. Jimenez, 256 F.3d 330, 342 (5th Cir. 2001) (“Objecting to an in
limine order excluding testimony or evidence does not relieve a party from
making an offer of proof.”). Appellant failed to preserve a Sixth Amendment
claim for review.
AFFIRMED.
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