United States v. Gingerich , 119 F. App'x 728 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0011n.06
Filed: January 5, 2005
No. 03-6669
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
EDWARD ANDREW GINGERICH, ) TENNESSEE
)
Defendant-Appellant. )
Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.*
SILER, Circuit Judge. Edward Gingerich appeals his conviction for possession with the
intent to distribute methamphetamine and for attempt to distribute methamphetamine. His claimed
errors include: (1) failure to admit certain evidence; (2) prosecutorial misconduct; and (3)
sufficiency of the evidence. We affirm.
BACKGROUND
Gingerich was arrested on narcotics charges following his attempt to sell two ounces of
methamphetamine to a police informant. The informant, William Darnell, was cooperating with the
Tennessee Highway Patrol in exchange for consideration on pending charges. Darnell and Gingerich
met on a road in Waynesboro, Tennessee. Darnell was equipped with a transmitter and police had
*
The Honorable William O. Bertelsman , United States District Judge for the Eastern District
of Kentucky, sitting by designation.
No. 03-6669
United States v. Gingerich
concealed their vehicles near the meeting site. At the meeting Gingerich indicated he had three
ounces for sale. The sale was disrupted by a third vehicle that alerted the men, who drove away
separately and rejoined later. Gingerich indicated he had disposed of the methamphetamine along
the road, needed to recover it, and that he would contact Darnell later. Police then arrested
Gingerich. Gingerich had approximately one half gram of methamphetamine in his possession. A
three ounce “rock” of methamphetamine was discovered alongside the road.
Gingerich was indicted for attempting to distribute 50 grams or more of a mixture or
substance containing methamphetamine, 21 U.S.C. § 846, and for possessing it with the intent to
distribute. 21 U.S.C. § 841(a)(1). After trial, he was found guilty on both the attempt and possession
counts and was sentenced to 78 months’ imprisonment.
STANDARD OF REVIEW
“When a trial court limits the scope of cross-examination, this court reviews that
determination for an abuse of discretion.” United States v. Kone, 307 F.3d 430, 436 (6th Cir. 2002).
The standard of review is also abuse of discretion for both a district court’s refusal to dismiss an
indictment, United States v. Overmyer, 899 F.2d 457, 465 (6th Cir. 1990), and denial of a motion
for a mistrial, United States v. Cope, 312 F.3d 757, 779 (6th Cir. 2002). When the sufficiency of
evidence needed to sustain a conviction is challenged this court determines whether “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Clay, 346 F.3d 173, 176 (6th Cir. 2003).
DISCUSSION
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No. 03-6669
United States v. Gingerich
Gingerich protests that the exclusion of certain exhibits which improperly restricted the
scope of his cross-examination of Darnell. The court ruled, based on Federal Rule of Evidence 609,
that the exhibits were inadmissible. Gingerich also invokes the Sixth Amendment right of
confrontation, arguing that a defendant seeking to demonstrate the existence of a bias may impeach
a witness either by cross-examination, Davis v. Alaska, 415 U.S. 308, 316 (1974), or by extrinsic
evidence demonstrating the witness’s bias. United States v. Phillips, 888 F.2d 38, 41 (6th Cir. 1989).
However, Federal Rule of Evidence 608(b) prohibits the introduction of extrinsic evidence proving
specific conduct for the purpose of attacking or supporting credibility. Id. The court did not limit
the scope of cross-examination in its ruling; rather, it clearly left the credibility issues of financial
motive and alleged intervention by police open and available for cross-examination.
After Brady v. State of Maryland, 373 U.S. 83, 87-88 (1963), the United States Supreme
Court held that “suppression of material evidence justifies a new trial irrespective of the good faith
or bad faith of the prosecution.” Giglio v. United States, 405 U.S. 150, 153-54 (1972) (internal
quotes omitted). When a witness’s credibility may determine guilt, then nondisclosure of evidence
affecting credibility falls within this general rule. Id. at 154. Not every failure on the part of a
prosecutor to disclose such evidence is grounds for reversal; rather, it turns on the materiality of the
information allegedly withheld. See Schledwitz v. United States, 169 F.3d 1003, 1011 (6th Cir.
1999). Materiality does not require that “the suppressed evidence in question establish the
defendant’s innocence by a preponderance of the evidence.” Id. at 1011-12. Rather this assessment
is made by determining whether a jury would have convicted based on other evidence not affected
by the Brady material. See Jamison v. Collins, 291 F.3d 380, 386 (6th Cir. 2002).
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No. 03-6669
United States v. Gingerich
Gingerich claims the prosecutor withheld advantageous information regarding Darnell’s
criminal history. He claims to have discovered through his own investigation that Darnell had
felony convictions and a series of misdemeanor arrests that had been dismissed, and that the amount
of Brady material not disclosed warranted a mistrial. By the time of trial, independent research had
provided Gingerich with as much or more information about Darnell’s criminal record as the
prosecutor had available. The prosecutor may have acted improperly in failing to disclose all
information relating to Darnell’s credibility. However, as Gingerich possessed sufficient
information before trial to attack Darnell’s credibility, he cannot show that he was prejudiced by the
failure to disclose; therefore, the district court’s refusal to grant a mistrial or to dismiss the
indictment was not an abuse of discretion.
He also has challenged the sufficiency of the evidence supporting his conviction. Gingerich
does not attack his convictions with any particularity. He instead asserts that Darnell set out to make
a case against him, and again attacks Darnell’s credibility as a witness. The evidence presented,
though disputed, was more than sufficient to sustain the conviction. A rational trier of fact could
have found the essential elements of the crimes beyond a reasonable doubt.
AFFIRMED.
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