United States v. Jermaine Howard , 516 F. App'x 409 ( 2013 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0178n.06
No. 11-6488
FILED
Feb 15, 2013
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JERMAINE HOWARD, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: MOORE, SUTTON and DONALD, Circuit Judges.
SUTTON, Circuit Judge. A sawed-off shotgun caught the eye of Chattanooga police officers
as they searched a home for stolen car keys, leading to the conviction of Jermaine Howard on two
gun charges. On appeal, Howard claims a federal prosecutor withheld evidence en route to the
convictions and that the district court should have ordered a competency hearing prior to sentencing.
We affirm.
I.
Chattanooga police received a report of a stolen vehicle complete with the street where they
could find the car. It turned out that the “stolen” vehicle complaint boiled down to a payment
dispute between Howard and an acquaintance who had sold Howard the car. Unaware of the back
story, two officers responded on the assumption that they were looking for a stolen vehicle. They
No. 11-6488
United States v. Howard
found the car at Howard’s girlfriend’s home. When they approached the house, Howard came
outside. He told the officers the keys to the car were in the house but that the officers could not go
inside without his girlfriend’s permission. The officers waited until the woman returned, and she
permitted the officers to search for the keys.
The keys were not all the officers found. A shotgun, illegally modified with a shortened
barrel, sat on top of a dresser in one of the bedrooms. In the dresser drawer were a few more items
of interest: a shotgun shell, a driver’s license application filled out in Howard’s name and mail
bearing Howard’s name at that address. In a nearby dresser, the officers found a box of shotgun
shells.
Federal prosecutors took over and indicted Howard for possession of a firearm and
ammunition by a convicted felon, 18 U.S.C. § 922(g), and possession of an unlawful short-barreled
shotgun, 26 U.S.C. §§ 5861(d), 5845(a). A jury convicted him on both counts, and the district court
sentenced him to 103 months in prison.
II.
Howard claims that, before trial, the prosecutor impermissibly withheld “crucial” fingerprint
test results. Appellant Br. at 3; see Brady v. Maryland, 373 U.S. 83, 87 (1963). He is right about
one thing: A miscommunication between forensic technicians and federal prosecutors led to a failure
to disclose a fingerprinting report. He is wrong about another: the report was not “crucial.”
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Before trial, Howard asked the government to disclose any fingerprint results. A forensics
case agent told the prosecutor “[t]hey were unable to locate any fingerprints.” R. 121 at 50. The
prosecutor relayed that information to Howard, saying “no fingerprint tests were done.” Id. Howard
learned at trial that this last statement was not quite true. On cross-examination—and to everyone’s
surprise—one of the investigating officers said that the gun and bullets had been fingerprinted and
that crime-scene technicians had a report of the results. During a trial break, the prosecutor obtained
a copy of the report. But this suspense-filled recess ended with a fizzle, as the report revealed that
the technicians had recovered only unidentifiable smudges on the box of shotgun shells.
Because the prints were unidentifiable, the court ruled that the report’s late disclosure was
not prejudicial and denied Howard’s motion for a mistrial. When the trial reconvened, Howard’s
counsel cross-examined the investigating officer about the report and the fingerprints. The
government did not mention the fingerprint evidence, in truth the absence of fingerprint evidence,
at trial.
A successful Brady claim has three components: favorable evidence, suppression and
prejudice. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The government’s withholding of
evidence does not prejudice the defendant unless “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.” Id.
at 280. Prejudice is more difficult to prove when the evidence comes to light at trial, rather than
after, because the defendant may then have a “full and adequate” opportunity to use the evidence.
United States v. Holloway, 740 F.2d 1373, 1381 (6th Cir. 1984).
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Howard has not shown prejudice. The jury heard evidence that Howard was present in the
home where police found the gun sitting on a dresser. Howard’s license application and personal
mail—sent to that address—were in the dresser drawer next to a shotgun shell. Police found an
additional box of shells in a nearby drawer, and there was no doubt who owned them. During a
Mirandized interrogation, Howard admitted to buying the shells at Wal-Mart: “It must not be illegal,
or they wouldn’t have sold them to me.” R.121 at 145. All of this showed that Howard possessed
the gun and the ammunition.
In the face of this evidence, how would an earlier disclosure of finger smudges on the box
of shotgun shells have been “crucial” to Howard’s case? How could the evidence have exonerated
him? The unidentifiable prints were not critical. And they could not plausibly have exonerated him.
An unidentifiable print proved only a neutral point—that someone, anyone (including potentially
Howard), touched the box. At best the test results showed that the government lacked fingerprint
evidence pointing to Howard, a truth he already knew. Howard insists he was denied the opportunity
to have his own expert review the fingerprint report. But he does not tell us what good that would
have done. Howard in the end has not shown a reasonable probability that an earlier disclosure
would have altered the trial’s outcome. The Brady claim thus must fail.
Howard next claims that the district court should have given him a competency hearing
before sentencing. A district court should grant such a hearing if there is “reasonable cause to
believe” the defendant is mentally incompetent. 18 U.S.C. § 4241(a). We review a district court’s
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United States v. Howard
“reasonable cause” determination for abuse of discretion. United States v. Jones, 495 F.3d 274, 277
(6th Cir. 2007).
The district court held a hearing before trial and determined that Howard was mentally
competent despite having some history of mental illness. After trial, Howard’s counsel moved for
another competency hearing because Howard had refused to allow his counsel to see him. The
motion recounted counsel’s attempt to meet with Howard in prison and Howard’s response—a
handwritten note that said, “I am sick on meds tell him to write me.” R.112 at 1. And the prison
chaplain had followed up with a phone call to counsel, informing him that Howard was too sick to
meet in person. The district court denied the motion, reasoning that Howard’s refusal to meet with
counsel face to face did not establish incompetency.
That was not an abuse of discretion. The district court had already held a pretrial competency
hearing and based its decision on testimony from a forensic psychologist. And it was reasonable for
the district court to conclude that Howard’s mental health after trial had not changed. Howard’s
handwritten note suggested a willingness to correspond with counsel in writing, undermining the
notion that he lacked “sufficient present ability to consult with his lawyer with a reasonable degree
of rational understanding.” United States v. Miller, 531 F.3d 340, 348 (6th Cir. 2008). Further, the
defense’s own subsequent psychological evaluation, completed prior to sentencing, resulted in a
conclusion that Howard was competent. See R.115.
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III.
For these reasons, we affirm.
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