Third Circuit Rejects Claim Of Brady Violation, Upholds Bank Fraud Conviction
The necessity for making requests for Brady evidence specifically and repeatedly has been noted time and time again. The importance of obtaining Brady evidence and any appropriate remedy at the trial level is based on the recognition that the standard for appellate review of alleged Brady violations is an extraordinarily difficult one to meet for aggrieved defendants. One recent example is the discussion of the issue in a non-precedential opinion by a panel of the Third Circuit in United States v. Battles, No. 12-1827 (3d Cir. February 28, 2013). In Battles, the Third Circuit upheld convictions for bank fraud and conspiracy to commit bank fraud.
According to the evidence presented by the government at trial, Jonathan Battles designed a scheme in which one of his girlfriends, Angelique Torres, would steal vendor checks from her employer and send them to Battles. Battles then gave the checks to another one of his girlfriends, Tamika Booker, who would deposit them in her bank account. Both Torres and Booker pled guilty while Battles opted to go to trial, which ended with him being found guilty of bank fraud and conspiracy to commit bank fraud.
The focus of Battles’ argument regarding Brady evidence was the video tape evidence regarding police interviews of Torres. Torres was interviewed by police three times and served as the government’s chief witness at trial. Records indicate that each of the interviews was videotaped. However, the tapes weren’t provided to Battles prior to trial. Rather, Battles was given only summaries of the first and third interview. Battles did not request copies of any of the videos in pretrial discovery. The first and third interview videos were produced following trial and reviewed by the district court prior to the court ruling that Battles was not entitled to relief. The government claimed not to have any knowledge of the videotape of the second interview.
The court stated once again, however, that the focus is on the fairness of the trial, not on whether the prosecutor acted in good faith or whether defense counsel did all he or she could have done to gather helpful information.
The Third Circuit acknowledged that the government is required to provide a criminal defendant with all exculpatory evidence, including evidence that could be used to impeach a government witness. The court stated once again, however, that the focus is on the fairness of the trial, not on whether the prosecutor acted in good faith or whether defense counsel did all he or she could have done to gather helpful information. On appellate review, evidence is only considered exculpatory if there is a reasonable probability that the jury would have reached a different decision if the evidence had been disclosed.
The court, citing United States v. Perdomo, 929 F.2d 967, 970 (3rd Cir. 1991) re-stated the three elements for a Brady claim in the Third Circuit:
- the prosecution must suppress or withhold evidence,
- which is favorable, and
- material to the defense.
Of course, the most difficult hurdle in the Brady challenge is the “materiality” of the evidence. On that issue, the court went on to state that the evidence is only material if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different, citing U.S. v. Bagley, 473 U.S. 667, 675 (1985).
The Court, based on this standard, held that the undisclosed videos were not material. As set forth in its decision in United States v. Welker, 657 F.3d 160, 186, 188 (3rd Cir. 2011), the court emphasized that “undisclosed Brady material that would have provided a different avenue of impeachment is material, even where the witness is otherwise impeached” but “it is only those new avenues of impeachment that sufficiently undermine confidence in the verdict that will make out a successful Brady claim.” Additionally, impeachment evidence has little, if any, use if it is similar to evidence which was introduced at trial. The Third Circuit held that Battles failed to show how the videos would have provided him with additional grounds to attack Torres’ credibility. Therefore, he failed to establish that his rights had been violated.
Battles also claimed, among numerous additional issues for appeal that the district court misapplied the sentencing guidelines in several ways. The first alleged error relating to the district court’s finding of the amount of loss in the range of $400,000 – $1,000,000. Torres stole five checks totaling $169,494, which were sent to Battles. These checks were identified in the indictment. Torres later stole eight checks, totaling $708,682. However, these checks weren’t sent to Battles. Rather, they were seized by police when they searched her home. The district court considered the value of both sets of checks in determining that the intended loss was between $400,000 and $1,000,000.
Battles argued that the district court should have only considered the checks identified in the indictment. The Third Circuit determined that it was not clearly erroneous for the district court to consider the second set of checks were acts that Battles “aided, abetted, counseled, commented, induced, procured or willfully caused and were also reasonably foreseeable acts – of others in furtherance of the jointly undertaken criminal activity. U.S.S.G. 1B1.3(a)(1)(A) & (B).” In this regard, Torres testified that she and Battles had discussed her stealing additional checks, which he said he needed for his business, and that she did so. While Torres had been inconsistent about whether she intended to send the checks to Battles, because she testified that she stole them after Battles told her he needed them, the second theft could be considered part of the same scheme as the first theft.
A complete copy of the opinion can be found here: http://www.ca3.uscourts.gov/opinarch/121827np.pdf