United States v. Brumfield

89 F.4th 506

UNITED STATES of America, Plaintiff—Appellee, v. Robert BRUMFIELD, III; Jeremy Esteves, Defendants—Appellants.

No. 22-30238

United States Court of Appeals, Fifth Circuit

FILED December 22, 2023

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:17-CR-201-5, Lance M. Africk, U.S. District Judge

Diane Hollenshead Copes, Esq. (argued), Kevin G. Boitmann, Jeffrey Ryan McLaren, Assistant U.S. Attorneys, Kyle Daly, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.

David Aaron Novod (argued), Law Office of D. Aaron Novod, New Orleans, LA, for Defendant-Appellant Robert Brumfield, III.

Fredrick Richard Sprinkle, Attorney (argued), Kathryn Jakuback Burke, Esq., Trial Attorney, Longman Jakuback, A.P.L.C., Baton Rouge, LA, for Defendant-Appellant Jeremy Esteves.

Before Clement, Elrod, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

This appeal arises from a 2013 armed robbery of a Loomis armored truck in New Orleans. One Loomis truck guard, Hector Trochez, was shot and killed during the attack. In total, six people were indicted in connection with the robbery and attendant conspiracy. A jury convicted Robert Brumfield III and his cousin Jeremy Esteves for their roles in the crime.

Before sentencing, new evidence emerged regarding the credibility of two Government witnesses. Esteves and Brumfield moved for a new trial, alleging that the Government had suppressed the evidence in violation of Brady v. Maryland¹ and Giglio v. United States.² The district court denied the motion.

On appeal, Brumfield and Esteves challenge the district court's denial of their motion, contending that the evidence was material impeachment evidence. Brumfield separately challenges the denial on the ground that the Government failed to correct false testimony in violation of Napue v. Illinois.³ He also appeals his sentence.

In short, Brumfield is not entitled to a new trial because the new evidence is not material in light of the entire trial record; his Napue claim fails because he has not shown that the Government knowingly presented materially false testimony; and his sentence was procedurally and substantively reasonable. But we conclude that the new evidence was material as to Esteves, so the district court must consider in the first instance whether he has satisfied all the elements of his Brady claim.

We AFFIRM IN PART, REVERSE IN PART, and REMAND to the district court for further consideration of Esteves's Brady claim.

I

In December 2013, a Chevy Tahoe with heavily tinted windows pulled up in front of a Chase Bank as an armored Loomis truck was making a delivery. Three armed men stepped out. Loomis guard Anjene Treaudo sat in the truck's driver's seat while a second guard, Hector Trochez, unloaded the currency. The three men shot at the truck and Trochez, killing him. The men then stole around $260,000 from the truck and sped off in the Tahoe. A brave eyewitness followed them. He saw two men exit the Tahoe and get into a second getaway car—a green Honda. The Tahoe, which was stolen a week before the robbery, was found abandoned nearby, its engine still running.

After a years-long investigation, police traced the robbery to Lilbear George, Curtis Johnson, Jr., Chukwudi Ofomata, Esteves, and Brumfield. All five were charged with conspiracy and other charges related to the robbery and Trochez's murder. Brumfield and Esteves were charged with three counts: (1) conspiracy to obstruct commerce by robbery, in violation of 18 U.S.C. § 1951(a); (2) obstruction of commerce by robbery, in violation of 18 U.S.C. § 1951(a); and (3) using, carrying, brandishing, and discharging firearms during and in relation to a crime of violence, causing death, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (j)(1).

Brumfield and Esteves moved to sever their cases from the other defendants who faced the death penalty. The district court granted the motions, and Brumfield and Esteves continued to trial.

Two days into trial, Brumfield and Esteves learned that the Government had failed to disclose two pieces of evidence: (1) phone recordings about the Loomis robbery between an FBI informant and cooperating witness Jamell Hurst; and (2) the FBI's informant file on Hurst, which contained an agreement between Assistant United States Attorney (AUSA) McMahon and the Orleans Parish District Attorney's Office not to extradite Hurst in connection with a 2013 aggravated burglary warrant.

Because Hurst's testimony is central to Brumfield's and Esteves's Brady claim, we briefly recount his testimony. Hurst was one of the Government's main witnesses. He had been an FBI informant since at least 2014. At trial, Hurst implicated both Brumfield and Esteves in the robbery and conspiracy. As to Brumfield's involvement, Hurst testified that Brumfield told him he was staking out an armored truck in preparation for a robbery and that Brumfield commented that the robbery would be easy because the man in the truck was "big, fat, and clumsy." Hurst also said that he spoke with George, who told him Brumfield "was supposed to be involved in the robbery, but that he didn't have the character to pull it off and so he was replaced." Esteves, too, told Hurst that Brumfield was supposed to participate in the robbery, but the other participants were concerned he would "freeze up."

As to Esteves's involvement, Hurst testified that Esteves confessed that he, George, Ofomata, and Johnson committed the robbery and that Esteves was a getaway driver. Hurst told an FBI agent that in May 2014, Esteves drove him to Esteves's mother's home and showed him money in a shoebox. The FBI later found approximately $20,000, some of which was in a shoebox in the home.

As to the benefits Hurst received for testifying, Hurst testified that the government told him it would inform the Baton Rouge district attorney or judge overseeing his pending sexual battery charges that he was cooperating with the Loomis investigation. He also testified that the FBI gave him $1,200 to help buy a new phone and move back to New Orleans and that he was interested in the $50,000 reward for the information he provided.

Brumfield and Esteves moved for a mistrial based on the newly disclosed evidence. The district court continued trial to allow the defendants to review the evidence. It heard argument and orally denied the motions, holding that Brumfield and Esteves were not prejudiced by the Government's failure to disclose the evidence because they had a continuance to review the evidence before cross-examining Hurst.

The jury convicted Esteves on all three counts. But it convicted Brumfield only of conspiracy to commit the robbery.

After the verdict but before sentencing, Ofomata's counsel disclosed to Brumfield's and Esteves's counsel additional evidence about benefits that Hurst and another Government witness, Lydell Hinton, obtained for cooperating with the Government. Brumfield and Esteves moved for a new trial, arguing that the Government violated Brady and Giglio. The district court denied the motion, holding that the new evidence was immaterial in light of the entire trial record.

The same district judge sentenced all five defendants. Brumfield filed ten objections to his presentence investigation report (PSR). The Government opposed all of them. Most relevant here, Brumfield objected to (1) the district court's finding that he was the second getaway driver; (2) its rejection of the downward adjustment for being a minor participant; and (3) its application of the murder cross-reference for Trochez's death. The district court ruled on each objection in a written order, overruling the three objections relevant to this appeal.⁴ The court sentenced Brumfield to 240 months' imprisonment—the statutory maximum. Esteves received 600 months' imprisonment—120 months for Counts 1 and 2, and 600 months for Count 3, to be served concurrently. He does not appeal his sentence.

Brumfield and Esteves timely appealed the district court's denial of their motions for a new trial. Brumfield also challenges his sentence.

II

Brumfield and Esteves both challenge the district court's denial of their motion for a new trial. Brumfield raises two additional arguments. First, he argues that the Government violated his due process rights by failing to correct allegedly false witness testimony in violation of Napue v. Illinois. Second, he argues that his sentence is procedurally and substantively unreasonable. We address the motions for a new trial first.

A

We first address whether the Government suppressed material impeachment evidence in violation of Brady, entitling Brumfield and Esteves to a new trial. "We review motions for a new trial based on an alleged Brady violation de novo, 'while acknowledging that we must proceed with deference to the factual findings underlying the district court's decision.' "⁵

The district court denied the motions for a new trial because the evidence was immaterial in light of the entire trial record. We agree as to Brumfield, but not as to Esteves.⁶

"To prevail on a Brady claim, 'a defendant must show: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material.' "⁷ For evidence to be material, there must be "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."⁸ "A 'reasonable probability' is established when the failure to disclose the suppressed evidence 'could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' "⁹

Brumfield and Esteves contend that the Government suppressed the following evidence of Hurst's benefits for cooperating¹⁰:

• Recordings of seven phone calls from Hurst to his mom while he was in jail, in which he asked his mom to call the

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