United States v. Anthony Lester ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10506
Plaintiff-Appellee, D.C. No.
1:14-cr-00236-DAD-BAM-1
v.
ANTHONY LESTER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California, Fresno
Dale A. Drozd, District Judge, Presiding
Argued and Submitted April 19, 2019
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and MÁRQUEZ,** District Judge.
Appellant Anthony Lester appeals his conviction pursuant to 18 U.S.C. §
1341 and 1956. We have jurisdiction under 28 U.S.C. § 1291.
1. District courts have broad discretion to enforce or quash a pretrial
subpoena under Federal Rule of Criminal Procedure 17(c) and their decisions “will
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
be disturbed on appeal only where the action was clearly arbitrary or without
support in the record.” United States v. MacKey, 647 F.2d 898, 901 (9th Cir.
1981); see also United States v. Nixon, 418 U.S. 683, 702 (1974); United States v.
Reed, 726 F.2d 570, 577 (9th Cir. 1984).
Lester has failed to demonstrate that the district court’s decision to deny his
pre-trial Rule 17(c) subpoena was either: clearly arbitrary or without support in the
record. The district court denied Lester’s pre-trial Rule 17(c) subpoena because it
lacked specificity.1 Lester failed to articulate the basis for his belief that the
requested documents, including physical count adjustment reports, existed. “[A]
Rule 17(c) subpoena is not intended to serve as a discovery tool, or to allow a blind
fishing expedition seeking unknown evidence.” MacKey, 647 F.2d at 901 (internal
citation omitted).
Notably, Lester was in possession of a purported physical count adjustment
report, and when Lester attached it to his post-trial Rule 17(c) subpoena
application, the district court granted it because the application properly
demonstrated that the sought-after documents existed. Lester’s strategic decision to
withhold documents, resulting in a denial of his pre-trial Rule 17(c) subpoena, does
not render the district court’s decision clearly arbitrary or without support in the
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We note that the district court denied Lester’s pre-trial Rule 17(c) subpoena
without prejudice and provided Lester with an opportunity to cure his deficiencies.
Lester declined that opportunity.
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record. The district court did not abuse its discretion by finding Lester failed to
provide evidence that the documents he sought in his pre-trial Rule 17(c) subpoena
existed.
2. We review for clear error Lester’s claim that the district court erred by
calculating his sentence without producing physical count adjustment reports. See
United States v. Bright, 353 F.3d 1114, 1118 (9th Cir. 2004) (this Court reviews
“for clear error the district court's factual findings with respect to monetary loss to
victims”). Not only did the government present copious amounts of evidence that
Lester engaged in theft, including testimony by an experienced financial analyst
and bank records clearly establishing the flow of money out of the victim’s account
and into Lester’s account, Lester severely exaggerates the probative value of a
physical count adjustment report.
After his trial, Lester disclosed multiple physical count adjustment reports
that had not been previously disclosed and attempted to move for a new trial based
on those “newly discovered” documents. Those documents list item numbers and
amounts, but there is no indication that the reports reflect inventory purchased by
Lester. Nor has Lester made such a showing, as those “newly discovered”
documents were never authenticated, introduced at trial, or presented to witnesses.
The district court did not clearly err by relying upon the abundant evidence
presented at trial indicating Lester’s theft and, moreover, “[t]he court need not
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make its loss calculation with absolute precision; rather, it need only make a
reasonable estimate of the loss based on the available information.” United States
v. Zolp, 479 F.3d 715, 719 (9th Cir. 2007).
3. The district court did not err when it denied Lester’s motion for a new
trial. “A district court’s denial of a new trial motion based on alleged Brady
violations is reviewed de novo.” United States v. Antonakeas, 255 F.3d 714, 725
(9th Cir. 2001); see Brady v. Maryland, 373 U.S. 83, 87 (1963). “To prevail on a
Brady claim, the defendant must show that (1) the evidence was exculpatory or
impeaching; (2) it should have been, but was not produced; and (3) the suppressed
evidence was material to his guilt or punishment.” Id. (footnote omitted) (quoting
Paradis v. Arave, 130 F.3d 385, 392 (9th Cir. 1997)). “[T]he prosecution has a
duty to learn of any exculpatory evidence known to others acting on the
government’s behalf.” Carriger v. Stewart, 132 F.3d 463, 479-80 (9th Cir. 1997)
(emphasis added).
Lester provided no evidence, pre-trial, that physical count adjustment reports
existed or that the government was aware of the existence of such documents.
More importantly, the physical count adjustment reports Lester introduced post-
trial were neither exculpatory nor impeaching, and Lester therefore failed to
establish a Brady violation. The district court did not abuse its discretion in
denying Lester’s motion for an evidentiary hearing.
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Additionally, the government’s statement in rebuttal closing that no other
physical count adjustment reports existed, to which Lester did not object
contemporaneously, was not plain error.
AFFIRMED.
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