United States v. Ildefonso Flores, 4th Cir. (2014)
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Scribd Government DocsUnited States v. Ildefonso Flores, 4th Cir. (2014)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4220
UNITED STATES OF AMERICA,
Plaintiff Appellee,
v.
ILDEFONSO MADRID FLORES, a/k/a Alfonso,
Defendant Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00353-MOC-DCK-1)
Argued:
March 19, 2014
Decided:
April 7, 2014
Before DUNCAN, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Andrew Brady Banzhoff, DEVEREUX & BANZHOFF, Asheville,
North Carolina, for Appellant.
April Anita Christine, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Mythili Raman, Acting Assistant Attorney General,
Denis J. McInerney, Deputy Assistant Attorney General, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
After a jury trial, Ildefonso Madrid Flores was convicted
of conspiracy to possess cocaine with intent to distribute in
violation of 21 U.S.C. 841(a)(1) and 846.
that
the
(1963),
government
by
violated
withholding
Brady
v.
important
prosecutions key witness.
Flores contends
Maryland,
information
373
U.S.
about
83
the
Flores appeals the district courts
denial of his motion for a mistrial and his motion for a new
trial on this ground.
Finding no error, we affirm.
I.
During Floress trial for his drug offense, the government
planned to call David Kennedy, one of Floress co-conspirators,
as a key witness.
Kennedy had been attending court-mandated
counseling sessions at New Beginnings Counseling Center.
At the
request of Floress attorney, the court issued a subpoena to New
Beginnings requiring it to turn Kennedys mental health records
over to the court.
On May 7, 2012, the eve of Floress trial, a representative
from New Beginnings came to the courthouse to deliver Kennedys
subpoenaed files.
Rather than turning the files over to the
Clerk of Court, however, the representative mistakenly handed
them
to
an
Assistant
U.S.
involvement in Floress case.
Attorney
(AUSA)
who
had
no
That AUSA--who knew nothing about
2
the subpoenas instruction to turn the file over to the court-informed the prosecutor in Floress case that documents relating
to
the
case
had
been
delivered.
The
prosecutor
working
on
Floress case, however, did not actually see the file that New
Beginnings had delivered until the morning after the trial.
At the pretrial conference on the morning of May 8, 2012,
Floress attorney asked the court to conduct an in camera review
of
the
records
subpoenaed
from
New
Beginnings.
The
judge
informed Floress attorney that the court had not received the
records.
At this time, the prosecutor noted that New Beginnings
had delivered a package to another AUSA the night before, but
that he had not seen the package.
This is when the parties and
the court first learned of the improper delivery of Kennedys
New
Beginnings
records.
The
prosecutor
tried
to
remedy
the
situation by offering the court and Floress lawyer what he was
physically
carrying
Beginnings
file
that
at
he
the
had
time--a
obtained
copy
from
of
Kennedys
Kennedys
New
lawyer.
Unbeknownst to the prosecutor, Floress attorney, or the judge,
these records were incomplete and not identical to those that
New Beginnings had improperly delivered the previous afternoon.
The trial began immediately after this conference.
On the
trials second day, Kennedy took the stand to testify.
During
his cross-examination, Floress attorney impeached him at length
with his extensive history of heavy drug use. 1
Kennedy also
testified that he was undergoing drug counseling and treatment
for anxiety and depression.
Because the New Beginnings records
used by both parties were incomplete, however, Floress attorney
was unaware of additional information that could have affected
Kennedys credibility, including the full extent of his drug
use,
his
auditory
hallucinations,
and
that
he
had
been
hospitalized for his drug use and mental illness.
The trial concluded on its second day, May 9, 2012, and the
jury began its deliberations.
continued
conference.
its
deliberations,
On May 10, 2012, as the jury
the
judge
held
the
post-trial
At this time, the prosecutor informed the court and
Floress attorney that the New Beginnings file he had offered at
the pretrial conference was incomplete.
He then turned over
Kennedys complete file, which New Beginnings had misdelivered.
The judge and Floress attorney reviewed it.
Later in the post-trial conference, the parties submitted
several motions in response to the revelation that the trial had
proceeded without Kennedys full mental health records.
After
For example, during his cross-examination, Kennedy called
himself a [v]ery heavy drug user and admitted that he had been
fired from his previous job for drug use.
J.A. 282.
Kennedy
went on to say that he used cocaine [a]ll day on a daily basis
during the time that he interacted with Flores.
J.A. 28384.
Kennedy also admitted that his drug use [c]ertainly resulted
in memory loss. J.A. 291.
4
reviewing the contents of the New Beginnings records, Floress
attorney
orally
moved
for
mistrial
with
prejudice
and
requested a hearing to reveal possible governmental misconduct.
Floress attorney, in the alternative, moved for a new trial on
the ground of newly discovered evidence under Fed. R. Crim. P.
33(b)(1).
The government orally moved for a mistrial without
prejudice, which Floress attorney opposed.
The
district
court
ultimately
rejected
each
motion
and
allowed the jury to reach a verdict, as this evidence came
in . . . after the jury was out.
J.A. 528.
The district court
also rejected any notion that the governments nondisclosure was
anything other than inadvertent.
It noted that the mistake was
not the governments fault because [t]he person that screwed
up is the person that didnt follow [the subpoenas directions]
over there at the New Beginnings.
The
jury
returned
guilty
J.A. 506, 508.
verdict.
Floress
attorney
filed a written motion for a mistrial and a new trial, again
requesting
hearing
to
determine
if
the
intentionally withheld information from the defense.
prosecutor
After full
briefing by both sides, the district court rejected Floress
motions.
Flores appeals.
II.
We review each of the district courts denials for abuse of
discretion.
United States v. Chong Lam, 677 F.3d 190, 203 (4th
Cir. 2012); United States v. Wallace, 515 F.3d 327, 330 (4th
Cir. 2008). 2
Brady
requires
that
the
government
disclose
material
evidence favorable to the defendant in a criminal proceeding.
United
States
v.
McLean,
715
F.3d
(citing Brady, 373 U.S. at 87).
129,
142
(4th
Cir.
2013)
A Brady violation occurs when
evidence favorable to the accused has been suppressed by the
state, and the defendant is prejudiced.
Strickler v. Greene,
527
violation
U.S.
263,
irrespective
prosecution.
(1972).
28182
of
(1999).
the
Giglio
good
v.
Brady
faith
United
or
bad
States,
405
can
occur
faith
of
the
U.S.
150,
153
However, a defendant is not entitled to the benefit of
the Brady doctrine when the exculpatory information is not
only available to the defendant but also lies in a source where
a reasonable defendant would have looked.
Jeffers,
570
F.3d
557,
573
(4th
Cir.
2009)
United States v.
(quoting
United
Flores also appeals his sentence, claiming that he has a
constitutional right for a jury to determine drug weights used
in sentencing. Flores acknowledges that his position is not the
law in this circuit.
We recognize that he seeks to preserve
this issue for a possible future challenge.
6
States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990)).
That is
indisputably the case here.
Flores cannot benefit from Brady because Kennedys mental
health
above.
records
fall
squarely
within
the
exception
set
forth
Floress attorney had equal access to the information
sought: the very subpoena obtained by Floress attorney ensured
that Kennedys complete New Beginnings records were available to
Flores.
Therefore, we cannot say that the district court abused
its discretion in denying Floress motions for a mistrial and
for a new trial.
III.
For the foregoing reasons, the district courts order is
AFFIRMED.
