United States v. Mobley

Case: 19-60862 Document: 00515786662 Page: 1 Date Filed: 03/18/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60862 March 18, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Edward James Mobley; Jerome Benamon,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CR-40-3
Before Owen, Chief Judge, and Haynes and Costa, Circuit Judges.
Per Curiam:*
A jury convicted Edward James Mobley and Jerome Benamon of
assaulting a postal service driver and brandishing and discharging a firearm
during the assault, in violation of 18 U.S.C. § 2114(a) and 18 U.S.C.
§ 924(c)(1)(A). The district court sentenced Mobley to a total term of 183
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 19-60862
months of imprisonment and four years of supervised release. Benamon was
sentenced to a total term of 180 months of imprisonment and four years of
supervised release.
On appeal, Benamon and Mobley challenge the district court’s denial
of their motion for new trial based on a claim that the Government violated
Brady v. Maryland, 373 U.S. 83, 87 (1963). Benamon argues that the
Government violated Brady by failing to preserve favorable and material
video surveillance evidence. Both Benamon and Mobley argue that the
Government violated Brady by failing to disclose what investigators observed
on the subsequently destroyed footage once they learned that the footage was
inconsistent with the testimony of the Government’s primary witness, co-
defendant Khalil Slayton.
Benamon fails to identify “a single exculpatory fact that might have
emerged from the lost” video footage. United States v. Moore, 452 F.3d 382,
388 (5th Cir. 2006) (per curiam). Even if the lost video surveillance evidence
was potentially useful to his defense, Benamon fails to show that the
Government acted in bad faith in failing to preserve the evidence that was
destroyed due to a third-party’s retention settings. See id. at 388-89.
Moreover, even if we assume the Government failed to disclose the
contents of the lost video footage after Slayton’s testimony, Benamon and
Mobley fail to show that the evidence was material so as to “undermine
confidence in the verdict.” Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016)
(Alito, J., dissenting) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
The evidence does not appear to “seriously undermine” Slayton’s testimony
“on an essential issue.” See United States v. Sipe, 388 F.3d 471, 478 (5th Cir.
2004) (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th Cir.
1989)). Moreover, Slayton’s testimony was “strongly corroborated by
additional evidence” in the record supporting a guilty verdict. See id.2
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Accordingly, Benamon and Mobley have failed to show that the district court
erred in denying their motion for new trial.
Benamon also argues that, in its closing argument rebuttal, the
Government improperly referred to evidence that was not adduced at trial.
Because Benamon “failed to make a contemporaneous objection to the
prosecutor’s closing remarks in the trial court,” plain error review applies.
United States v. Mares, 402 F.3d 511, 515 (5th Cir. 2005) (citing United States
v. Gallardo-Trapero, 185 F.3d 307, 322 (5th Cir. 1999)). Even if the
prosecutor’s closing argument contained an improper or impermissible
statement based on facts not in evidence, the remarks were not “so
pronounced and persistent as to permeate the entire atmosphere of the trial.”
United States v. Ramirez-Velasquez, 322 F.3d 868, 875 (5th Cir. 2003)
(internal quotation marks omitted) (quoting United States v. Iredia, 866 F.2d
114, 117 (5th Cir. 1989) (per curiam)). Moreover, the district court instructed
the jury throughout the trial that the attorneys’ statements were not
evidence, further reducing any prejudice that may have stemmed from the
statements. See id. at 875. Lastly, the record contains ample evidence of
Benamon’s guilt which, when combined with the district court’s curative
instructions, outweighs any prejudicial effect of the prosecutor’s comments.
See id. at 875-76. Accordingly, Benamon fails to show his substantial rights
were affected or that any error seriously affected the public reputation of the
proceedings. See United States v. Aguilar, 645 F.3d 319, 323, 325 (5th Cir.
2011).
Lastly, Benamon challenges the denial of his motion to suppress his
written statement to police during an interview that he argues was obtained
in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Even if the district
court erred in finding that Benamon was not in custody at the time of his
interview, any such error is harmless. See United States v. Ackerman, 704 F.2d
1344, 1349 (5th Cir. 1983).
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* * *
Accordingly, the judgments of the district court are AFFIRMED.
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