United States v. Elem, Johnell

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 00-2495, 00-2701
United States of America,
Plaintiff-Appellee,
v.
Johnelle Elem and Odell Jennings,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97-CR-765--Paul E. Plunkett, Judge.
Argued September 28, 2001--Decided October 23, 2001
Before Flaum, Chief Judge, and Bauer and
Evans, Circuit Judges.
Flaum, Chief Judge. Defendants Johnelle
Elem/1 and Odell Jennings (collectively
"Defendants") appeal the district court’s
denial of a motion for a new trial based
upon the government’s failure to comply
with Brady v. Maryland, 373 U.S. 83
(1963), and the Jencks Act, 18 U.S.C.
sec. 3500. Jennings and Elem also contend
that a new trial is warranted because the
prosecution improperly bolstered a
government witness’s credibility. For the
reasons stated herein, we affirm.
I. Background
On February 5, 1998, a federal grand
jury returned a ten-count superseding
indictment charging Jennings, Elem, and
Clarence Anderson/2 with participating
in a series of five armed bank robberies.
Anderson pleaded guilty to one count of
armed bank robbery and testified before
the grand jury that returned the
superseding indictment against Jennings
and Elem. Anderson also testified for the
government at Jennings’s and Elem’s
trial.
At trial, Anderson’s testimony described
each of the five armed bank robberies and
identified Jennings and Elem as
participants in the robberies. Moreover,
on direct examination the prosecution
asked Anderson about the lawyer provided
to him during post-arrest questioning.
The following colloquy took place between
the prosecutor and Anderson:
Q. During the day did you ask to speak
with an attorney?
A. Yes.
Q. And did the FBI allow an attorney to
come and visit you?
A. Yes.
* * *
Q. And was he a private attorney?
* * *
A. No.
Q. A private attorney that you had
retained?
A. No.
Q. So how did he come to be your attorney?
A. He’s a government attorney.
Q. Is he a Federal Defender?
A. Yes.
Q. I mean, does he work for the United
States Attorney’s Office or the defense--
A. Yes. The United States Attorney’s
Office.
Q. In the past?
A. Yes.
Q. Does he work for the U.S. Attorney’s
Office now?
A. No.
Q. So who does he work for now?
A. The government--the public defenders
[sic] office.
During the exchange, the district judge
overruled defense counsel’s relevancy
objection. Following a four-day trial, a
jury found both Jennings and Elem guilty
as charged.
Approximately seven months after the
jury rendered its verdict, Defendants
learned that a journalist named Shane
DuBow published an article in GQ Magazine
about the bank robberies. DuBow had been
a customer in one of the banks at the
time of the robbery and interviewed
Anderson during the course of his
research for the article. The district
court expressed concern that DuBow’s
interviews may have influenced Anderson’s
trial testimony. Accordingly, the
district judge authorized Defendants to
depose both DuBow and Anderson regarding
the timing of the interviews.
During the DuBow and Anderson
depositions, Jennings and Elem learned
for the first time that Anderson had
testified before the grand jury that
returned the superseding indictment
against them. However, the prosecution
had never furnished Defendants with a
transcript of Anderson’s testimony.
Jennings and Elem then reviewed
Anderson’s grand jury testimony and
DuBow’s interview notes and identified
several inconsistencies with Anderson’s
trial testimony, including the following:
(1) In his direct examination at trial,
Anderson testified that he supported
himself by robbing drug dealers, whereas
he told Shane DuBow that he in fact sold
illegal drugs. DuBow’s interview notes
describe in some detail Anderson’s drug-
dealing activity.
(2) Anderson testified at trial that he
received a gun used in the second robbery
from an individual on the street, but he
said before the grand jury that he
received it from a friend named "Pookie."
(3) Anderson testified at trial that he
contacted Jennings to initiate the plan
to rob the first bank. In contrast,
Anderson told the grand jury that
Jennings contacted him, and he agreed to
go with Jennings.
(4) In describing the first robbery at
trial, Anderson testified that before
Defendants entered the bank, Jennings,
Anderson and a third defendant named Joe
Smith obtained sunglasses at a dollar
store. Before the grand jury, Anderson
testified that Jennings sent him and
Smith to purchase the sunglasses.
(5) Anderson provided inconsistent
descriptions regarding the location of a
third defendant immediately following the
fourth robbery.
Based upon this evidence, Jennings and
Elem moved the district court for a new
trial. In support of their motion,
Jennings and Elem argued that they could
have used Anderson’s grand jury testimony
and DuBow’s interview notes to impeach
Anderson at trial. Elem also argued that
the identification of Anderson’s attorney
as a former prosecutor improperly
bolstered Anderson’s credibility as
awitness.
The district court reviewed all of the
relevant material and denied Defendants’
motion. The district court held that the
inconsistencies between Anderson’s trial
testimony and his grand jury testimony
were not material for two reasons. First,
Defendants cross-examined Anderson
onmatters far more damaging to his
credibility; and second, the evidence
corroborating Anderson’s identification
of the Defendants as his accomplices was
overwhelming. This appeal followed.
II. Discussion
A. Anderson’s Grand Jury Testimony
Jennings and Elem argue that the
government’s failure to deliver
Anderson’s grand jury testimony
constituted a violation of both Brady v.
Maryland and the Jencks Act. Defendants
claim that had they received Anderson’s
grand jury testimony, their cross-
examination would have been more
effective and would have altered the
outcome of the trial.
We review for abuse of discretion the
denial of a motion for new trial based
upon newly discovered evidence claimed to
violate Brady. See United States v.
Asher, 178 F.3d 486, 496 (7th Cir. 1999);
United States v. Silva, 71 F.3d 667, 670
(7th Cir. 1995).
1. Brady v. Maryland
Under Brady v. Maryland, 373 U.S. 83, 87
(1963), the government has an obligation
to disclose favorable evidence that is
material to the case. The prosecution’s
duty to disclose evidence encompasses
both exculpatory and impeachment
evidence. See United States v. Bagley,
473 U.S. 667, 676 (1985). However, a
Brady violation occurs only if the
government withholds evidence that, had
it been disclosed, creates a reasonable
probability that the result of the trial
would have been different. Strickler v.
Green, 527 U.S. 263, 289-90 (1999);
United States v. Stott, 245 F.3d 890, 901
(7th Cir. 2001). The later inquiry is
subjective; "the question is not whether
the defendant would more likely than not
have received a different verdict with
the evidence, but whether in its absence
he received a fair trial, understood as a
trial resulting in a verdict worthy of
confidence." Kyles v. Whitley, 514 U.S.
419, 435 (1995); see also Strickler, 527
U.S. at 289-90.
In this case, the inconsistencies
between Anderson’s grand jury testimony
and his trial testimony do not undermine
the legitimacy of the jury’s verdict for
several reasons. First, the main purpose
of Anderson’s testimony at trial was to
identify Jennings and Elem as his
accomplices. While Anderson may have
mistaken minor details, nothing in
Anderson’s grand jury testimony weakens
his identification of Jennings and Elem.
Second, the inconsistencies between
Anderson’s grand jury testimony and his
trial testimony would not have the effect
that they must to state a viable Brady
claim--that is, damaging Anderson’s
credibility to such an extent that the
jury would discredit his identification
of Jennings and Elem. The government
never concealed Anderson’s credibility,
but rather directly impeached him by
identifying prior felony convictions,
prior bad acts, prior inconsistent
statements, and bias and prejudice for
his deal with the government./3 Why the
jury would disbelieve Anderson after
hearing that he gave inconsistent
accounts regarding which defendant
actually purchased sunglasses prior to
one of the robberies is beyond
comprehension.
Faced with such trivial discrepancies,
the district court held that the
government’s failure to turn over
Anderson’s grand jury testimony did not
result in prejudice because it could have
no conceivable effect on the outcome of
the proceeding. Cf. United States v.
Nash, 29 F.3d 1195, 1202 (7th Cir. 1994)
(rejecting Brady claim where impeachment
evidence "cannot be characterized as
anything but minor" under the facts);
United States v. Montgomery, Nos. 96-
1303, 97-1313, 1997 U.S. App. LEXIS 27227
(7th Cir. October 1, 1997) (unpublished)
(while officer’s notes revealed
inconsistencies with trial testimony,
minor nature of discrepancies would not
have discredited officer’s testimony).
Thedistrict court’s holding does not
constitute an abuse of discretion.
2. Jencks Act
The Jencks Act provides that "witness
statements in the possession of the
United States which relate to the subject
matter as to which the witness testifies
shall be turned over to the defendant for
examination and use." United States v.
Radix Laboratories, Inc., 963 F.2d 1034,
1039 (7th Cir. 1992). Although Anderson’s
grand jury testimony is properly
classified as Jencks Act material, see 18
U.S.C. sec. 3500 (e)(3) (including
statements "made by said witness to a
grand jury"), Defendants’ arguments must
fail for the same reasons described in
our disposition of their Brady claim.
"Although the text of the Act does not
itself require a demonstration of
prejudice, courts have held that relief
may not be granted under the Jencks Act
without such a showing." United States v.
Johnson, 200 F.3d 529, 535 (7th Cir.
2000) (collecting cases). Because neither
Jennings nor Elem suffered any prejudice,
the government’s failure to produce the
grand jury testimony does not warrant a
new trial. See id., citing United States
v. Wables, 731 F.2d 440, 448 (7th Cir.
1984).
B. DuBow’s Interview Notes
Jennings and Elem next contend that
their "ignorance" of DuBow’s interviews
with Anderson, conducted before and
during Anderson’s preparation as a
witness, impeded their ability to
effectively cross-examine Anderson. This,
Defendants reason, resulted in a
violation of the Sixth Amendment’s
Confrontation Clause, particularly in
light of the government’s failure to turn
over Anderson’s grand jury testimony.
The Sixth Amendment guarantees each
defendant the right to "be confronted
with the witnesses against him." U.S.
Const., amend. VI. The Supreme Court has
said that "a criminal defendant states a
violation of the Confrontation Clause by
showing that he was prohibited from
engaging in otherwise appropriate
cross-examination designed to show a
prototypical form of bias on the part of
the witness." Delaware v. Van Arsdall,
475 U.S. 673, 680 (1986). Confrontation
Clause violations most often arise when
the district court limits cross-
examination to areas that impede the
defendant’s ability to question the
witness. See United States v. Jackson, 51
F.3d 646, 651 (7th Cir. 1995); United
States v. Nelson, 39 F.3d 705, 708 (7th
Cir. 1994). The concern in such cases is
that a defendant have sufficient leeway
to establish "a reasonably complete
picture of the witness," particularly
when the witness’s credibility is at
stake. United States v. Saunders, 166
F.3d 907, 919 (7th Cir. 1999), citing
United States v. Laboy-Delgado, 84 F.3d
22, 28 (1st Cir. 1996).
In this case, nothing that occurred
during Defendants’ trial remotely
approaches a Confrontation Clause
violation. The government is not required
to relinquish material it does not
possess, of which it was not aware, or
over which it had no control. What
Defendants have failed to do (and what
they cannot do) is identify any action,
either by the prosecution or the trial
court, that prevented them from obtaining
DuBow’s interview notes and using those
notes during Anderson’s cross-
examination. Because the disputed
material was equally available to both
parties, Defendants’ inability to obtain
DuBow’s interview notes does not warrant
a new trial.
C. Questions Regarding Anderson’s
Attorney
Finally, Jennings and Elem maintain that
the government intentionally bolstered
Anderson’s credibility at trial by asking
several questions regarding whether a
former federal prosecutor represented
Anderson. According to Jennings and Elem,
this bolstering rose to a level that war
rants a new trial.
It is true that the government may not
"vouch" for the credibility of government
witnesses. United States v. Cornett, 232
F.3d 570, 575 (7th Cir. 2000). To assess
the impact of a prosecutor’s remarks on
the trial, this circuit engages in a two-
step process. First, we consider the
statements in isolation. United States v.
Renteria, 106 F.3d 765, 766 (7th Cir.
1997). If the remarks seem improper, we
then evaluate them "in the context of the
entire record and ask whether they denied
the defendant a fair trial." Cornett, 232
F.3d at 575; Renteria, 106 F.3d at 767.
In Renteria, this court acknowledged that
improper vouching generally falls into
two categories. The first occurs when a
prosecutor expresses her belief in the
credibility of a particular witness; the
second when a prosecutor implies facts
not before the jury that lend a witness
credibility. Id. at 766.
In this case, the first is absent
because the prosecutor said nothing that
directly bolstered Anderson’s
credibility. Nor did the government imply
facts tending to lend Anderson
credibility. While the question regarding
Anderson’s counsel was perhaps improper,
it fails to rise to the level of
reversible error. In each of the cases
where this court has found improper
vouching, a direct and cognizable
linkexisted between prosecutorial
comments and the witness’s credibility.
See, e.g., Cornett, 232 F.3d at 575-76
(vouching occurred where prosecutor
commented on occupational integrity of
police officers); United States v.
Johnson-Dix, 54 F.3d 1295, 1304-05 (7th
Cir. 1995) (improper to state that police
officer had no reason to risk career by
lying). See also United States v. Berry,
627 F.2d 193, 198 (9th Cir. 1980)
(prosecutor’s argument that government
had kept itswitnesses separated to ensure
the truthfulness of their testimony was
improper). In contrast, the questions in
this case do not necessarily lead to the
inference that Anderson is credible.
Furthermore, even if the prosecution
intended the jury to draw an inference
regarding Anderson’s credibility, we find
that the risk to Defendants’ "substantial
rights" was slight, and any error that
occurred was harmless. Cornett, 232 F.3d
at 576; United States v. Keskey, 863 F.2d
474, 480 (7th Cir. 1988). As noted above,
both the prosecution and defense counsel
did an adequate job of impeaching
Anderson’s credibility. The fact that a
former federal prosecutor represented
Anderson surely did not tip the scales in
favor of credibility. As a result, the
district court’s decision to deny
Defendants’ motion for a new trial was
not an abuse of discretion.
III. Conclusion
Jennings and Elem failed to establish
that the government’s misconduct caused
them any prejudice at trial. Nor have
they demonstrated that any government
action deprived them of the right to
cross-examine the prosecution’s
witnesses. Accordingly, the decision of
the district court is AFFIRMED.
FOOTNOTES
/1 Throughout the proceedings below, Elem was alter-
nately referred to as "Johnelle" and "Johnell."
The proper spelling, based upon all relevant
briefs and the government’s indictment, is
"Johnelle."
/2 The indictment charged additional defendants not
relevant to this appeal.
/3 Defense counsel’s cross-examination was equally
damaging to Anderson’s credibility. Anderson
admitted lying to government investigators about
his name, the number of people who were involved
in the series of bank robberies, his brother’s
alleged lack of involvement in the robberies, the
kind of weapon used in the second robbery, and
the fate of a vehicle used in the second robbery.