UNITED STATES of America, Plaintiff-Appellee, v. J. Patrick BRESTER, Defendant-Appellant.
No. 13-15311.
United States Court of Appeals, Eleventh Circuit.
May 20, 2015.
786 F.3d 1335
Before TJOFLAT, WILLIAM PRYOR, and BALDOCK, Circuit Judges. WILLIAM PRYOR, Circuit Judge.
3. Resulting Guidelines Calculation
Having determined that the district court did not clearly err by treating the Siegelman-Young-Bailey Sham Transactions and the Siegelman-Young Agreement as relevant conduct, we turn to Siegelman‘s remaining arguments, namely that the district court erred in calculating the value of the bribe and in granting both an obstruction-of-justice adjustment and an upward departure for systemic and pervasive government corruption. Because these arguments are premised on Siegelman‘s faulty assumption that the Siegelman-Young-Bailey Sham Transactions and the Siegelman-Young Agreement do not qualify as relevant conduct, we conclude that the district court did not err by: (1) accounting for the Siegelman-Young-Bailey Sham Transactions and the Siegelman-Young Agreement in calculating the value of the bribe;16 (2) granting an obstruction-of-justice adjustment based on the Siegelman-Young-Bailey Sham Transactions;17 or (3) granting the systemic and pervasive corruption upward departure based on the loss of public confidence in the government of the State of Alabama.18 We therefore affirm Siegelman‘s seventy-eight-month sentence.
CONCLUSION
The district court‘s order denying Siegelman‘s motion for a new trial and the district court‘s amended final judgment are AFFIRMED.
Victor Daniel Martinez, Tampa, FL, Fritz J. Scheller, Fritz Scheller, PL, Orlando, FL, for Defendant-Appellant.
Before TJOFLAT, WILLIAM PRYOR, and BALDOCK,* Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
This appeal requires us to decide wheth-er the government‘s failure to inform J.
I. BACKGROUND
In 2006, Brester, Landsman, Unger, and Chadwick conspired to charge lenders fraudulent “management fees” when they purchased and immediately re-sold apartment units. Brester purchased nine apartments in Sarasota, Florida, and immediately re-sold them to Chadwick. When Chadwick applied for mortgage loans from SunTrust Bank and Fifth Third Bank, Brester charged the banks “management fees” for services he never performed. Although Chadwick and Landsman used some of the cash from the “management fees” to make mortgage payments, Chadwick later declared bankruptcy and all nine units went into foreclosure.
In August 2012, a grand jury indicted Brester for conspiracy to commit wire fraud affecting a financial institution,
Landsman, Unger, and Chadwick testified at Brester‘s trial. They admitted that they had been convicted of conspiring to commit wire fraud and had agreed to cooperate with the government in exchange for plea agreements. A jury convicted Brester of conspiracy to commit wire fraud and three counts of wire fraud, but it found him not guilty of the other six counts of wire fraud.
At sentencing, the government argued that the loss amount attributed to Brester should include several uncharged transactions it had discovered after Landsman, Unger, and Chadwick pleaded guilty. The government also revealed that it had agreed to recommend a loss amount for the co-conspirators based only on the fraudulent transactions it had identified at the time of their plea agreements. Brester‘s counsel denied that he had been informed of this aspect of the co-conspirators’ plea agreements. The prosecutor conceded that although she offered Brester a plea agreement limited to the same fraudulent transactions and provided Brester with a copy of his co-conspirators’ plea agreements, she had not informed him of
After Brester filed a notice of appeal, he filed a motion to dismiss his convictions, or, alternatively, for a new trial and an evidentiary hearing. He contended that the government violated Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), when it failed to inform him that it had agreed to limit his co-conspirators’ loss amount. The district court denied the motion. The district court concluded that because Brester‘s appeal was pending before this Court, it lacked jurisdiction to consider Brester‘s motion to the extent that it sought dismissal of his counts of conviction. The district court also ruled that to the extent that Brester‘s motion sought a new trial, it did not specify whether it relied on “newly discovered evidence,”
II. STANDARDS OF REVIEW
We review an alleged Brady violation de novo. United States v. Schlei, 122 F.3d 944, 989 (11th Cir.1997). We review for abuse of discretion the denial of a motion for a new trial. United States v. Vallejo, 297 F.3d 1154, 1163 (11th Cir. 2002).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that we have jurisdiction to review the denial of Brester‘s motion. Second, we explain that Brester failed to establish a reasonable probability that the outcome of his trial would have been different had the government disclosed its agreements with his co-conspirators.
A. We Have Jurisdiction to Review the Denial of Brester‘s Motion.
As a threshold matter, we must consider whether we have jurisdiction to review the denial of Brester‘s post-appeal motion despite his failure to file a separate notice of appeal from the denial of that motion.
We have previously exercised jurisdiction in this kind of circumstance. In United States v. Wilson, 894 F.2d 1245, 1251 (11th Cir. 1990), two of the appellants filed motions for a new trial in the district court after they filed their notices of appeal. “We recognize[d] that it is clearly the better practice to perfect a separate appeal from the denial of a motion for a new trial....” Id. But we followed an earlier precedent of the former Fifth Circuit, United States v. Burns, 668 F.2d 855 (5th Cir.1982), and reviewed the denial of the motions “[b]ecause the government was not prejudiced ... by [the appellants‘] failure to file a separate notice of appeal”
B. The District Court Did Not Err When It Denied Brester‘s Motion.
To establish a Brady violation, Brester had to prove that the prosecution withheld favorable evidence and that he was prejudiced as a result. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). And to establish prejudice, Brester had to prove that there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial,” does not establish prejudice. United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).
Even if the government should have disclosed its agreements with Brester‘s co-conspirators about their loss amount, Brester failed to establish a reasonable probability that the outcome of his trial would have been different. The undisclosed information about the co-conspirators’ loss amount was cumulative of other impeachment evidence. Landsman, Unger, and Chadwick admitted that they had been convicted of conspiring to commit wire fraud and had agreed to cooperate with the government in exchange for plea agreements. Chadwick and Unger testified that they were ordered to pay restitution jointly and severally with the other co-conspirators. Unger acknowledged on cross-examination that his plea agreement provided “a huge incentive” for him to testify against Brester. And Chadwick admitted that he would benefit if Brester was required to pay part of the restitution he owed jointly and severally with Unger and Landsman. The jury learned of the motivations for the co-conspirators’ testimony, and we have repeatedly held that the failure to disclose “merely cumulative” impeachment evidence does not establish prejudice. Aldridge v. Dugger, 925 F.2d 1320, 1326 (11th Cir.1991). See also Kelley v. Sec‘y for Dep‘t of Corr., 377 F.3d 1317, 1361 (11th Cir.2004); United States v. Valera, 845 F.2d 923, 927-28 (11th Cir.1988). That the agreement to limit the co-conspirators’ loss amount potentially reduced their advisory guideline ranges for sentencing by two levels would not have appreciably altered the mix of the impeachment evidence presented to the jury. Brester has not established that there is a reasonable probability that the outcome of his trial would have been different had the jury learned of the promise about the loss amount.
IV. CONCLUSION
We AFFIRM Brester‘s convictions.