United States v. Mack ( 2023 )

Case: 23-30077 Document: 00516881379 Page: 1 Date Filed: 09/01/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-30077 FILED
Summary Calendar September 1, 2023
____________ Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jmarreon Mack,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:19-CR-29-1
______________________________
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam: *
Post-affirmance on direct appeal to our court and denial of review by
the Supreme Court, United States v. Mack, 857 F. App’x 798 (5th Cir. 2021),
cert. denied, 142 S. Ct. 1134 (2022), Jmarreon Mack moved for a new trial
under Federal Rule of Criminal Procedure 33, relying on newly-discovered
evidence, see Rule 33 (b)(1), he claimed the Government had suppressed in
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30077 Document: 00516881379 Page: 2 Date Filed: 09/01/2023
No. 23-30077
violation of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. The
district court denied the motion, concluding the evidence was not material.
Mack contests the denial. To assess the merits of a Rule 33 motion
based on newly-discovered evidence, our court generally applies the Berry
rule. United States v. Turner, 674 F.3d 420, 429 (5th Cir. 2012) (outlining
rule of Berry v. State, 10 Ga. 511 (1851)). But when, as here, the movant
asserts violations of Brady in his Rule 33 motion, our court instead applies the
three-pronged Brady test. United States v. Runyan, 290 F.3d 223, 247 (5th
Cir. 2002). Brady requires the movant show: “(1) the evidence at issue is
favorable to the defense, either because it is exculpatory or impeaching, (2)
the prosecution suppressed the evidence, and (3) the evidence is material”.
Murphy v. Davis, 901 F.3d 578, 597 (5th Cir. 2018). Only the materiality
prong is at issue in this appeal.
Evidence is material under Brady if there is a “reasonable probability”
that its disclosure would have led to a different outcome. Kyles v. Whitley,
514 U.S. 419, 433–34 (1995). “The mere possibility that an item of
undisclosed information might have helped the defense, or might have
affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–10 (1976).
The defendant must instead show the evidence “could reasonably be taken
to put the whole case in such a different light as to undermine confidence in
the verdict”. Kyles, 514 U.S. at 435.
“We review the denial of a motion for a new trial for abuse of
discretion but consider alleged Brady violations de novo.” Turner, 674 F.3d
at 428. The de novo review, however, must be “with deference to the factual
findings underlying the district court’s decision”. Id. (quoting United States
v. Severns, 559 F.3d 274, 278 (5th Cir. 2009)).
2
Case: 23-30077 Document: 00516881379 Page: 3 Date Filed: 09/01/2023
No. 23-30077
Mack’s convictions stem from the discovery of contraband during a
2018 traffic stop. His new-trial motion was based on evidence that the state
trooper who initiated the stop later participated both in the fatal beating of a
black motorist (the incident) and the alleged cover-up effort. Evidence of the
trooper’s participation in the incident was available roughly a month before
the suppression hearing but was not disclosed. Mack asserts the evidence
could have altered his trial in two ways.
First, he contends he could have prevailed on his motion to suppress
the evidence seized in conjunction with the traffic stop by impeaching the
trooper at the suppression hearing. Mack fails to establish the materiality of
this contention. The sole issue in the suppression hearing was whether the
traffic stop was justified at its inception. The district court concluded it was
because Mack failed to properly signal a turn. This conclusion is supported
by the trooper’s suppression-hearing testimony and his vehicle’s dash-
camera video. (In that regard, our court held the video justified the stop.
Mack, 857 F. App’x at 802 (“[B]oth [the trooper’s] testimony and the video
evidence established [the trooper] did see Mack approach the left turn
without a continuous signal active, then seconds later execute that turn.”
(emphasis in original))).
Second, Mack contends he could have used the impeachment
evidence to induce jurors to reject the trooper’s trial testimony. Mack does
not demonstrate that the new evidence provides any specific reason for
questioning that testimony, only that it bears on the trooper’s general
credibility—in other words, his character for truthfulness. But Mack’s broad
condemnation of the trooper does little to explain how he would have used
specific acts to impeach the trooper’s character for truthfulness. See Fed.
R. Evid. 608(b); see also 28 Charles Alan Wright & Victor James Gold,
Federal Practice & Procedure: Federal Rules of Evidence § 6118 (2d ed.),
Westlaw (database updated Apr. 2023) (“[A] central purpose of Rule 608(b)
3
Case: 23-30077 Document: 00516881379 Page: 4 Date Filed: 09/01/2023
No. 23-30077
is to prevent the jury from hearing evidence that might cause it to draw the
tenuous inference that, because the witness has committed bad acts, he is a
bad person and, thus, a liar.”). Moreover, the trooper’s account of the facts
is well corroborated. Jurors were able to compare his testimony with the
testimony of another witness and footage from the trooper’s dash camera.
AFFIRMED.
4