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United States v. Slayton

United States District Court, S.D. Mississippi, Northern Division

August 19, 2019




         Defendants Jerome Benamon and Edward James Mobley have asked for a new trial under Federal Rule of Criminal Procedure 33. For the reasons that follow, their motions are denied.

         I. Facts and Procedural History

         On May 17, 2016, Benamon and Mobley, along with Khalil Slayton, were charged in the armed robbery of Marvin Davis, a United States Postal Service Highway Contract Route Driver. See Indictment [1] (charging Defendants with violations of 18 U.S.C. §§ 924(c), 1708, and 2114). Slayton pled guilty and testified against Benamon and Mobley at trial.

         According to Slayton's testimony, he, Mobley, and Benamon decided to rob Davis on April 4, 2016, after Benamon learned from his mother, postal-service employee Essie Benamon, that the mail truck would contain bags of cash that day. Slayton says that at around 4:30 p.m., Benamon dropped him and Mobley in Porterville, Mississippi, where they waited for Davis's scheduled arrival at the post office. Porterville, Mississippi, is a small rural community with little more than the post office and a few homes.

         After the drop off, Benamon was to wait just north of town on Porterville Road and then return when Slayton and Mobley had the money. But Slayton said things quickly deviated from the script when Mobley unexpectedly pointed a 9-millimeter firearm at Davis and Davis charged Mobley to secure the gun. The gun discharged during the struggle, but no one was hit. When Slayton heard the shot from inside the postal truck's cargo area, he panicked. Instead of waiting for Benamon's return, he ran across nearby railroad tracks and into the woods with the money.

         The trial lasted eight days, and the jury convicted Benamon and Mobley on Counts 1 and 2 of the Indictment. In their motions for a new trial, Defendants say the Government violated their due-process rights under Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce exculpatory surveillance tapes. They also contend that the prosecutor engaged in misconduct during closing argument. Following initial briefing, the Court ordered supplemental briefing. Order [165]. It then held a February 27, 2019 evidentiary hearing and requested final briefing based on new arguments Defendants asserted that day. Order [179]. The Court is now prepared to rule.

         II. Standard

         Rule 33 allows the Court to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). But “[t]he grant of a new trial is necessarily an extreme measure.” United States v. O'Keefe, 128 F.3d 885, 898 (5th Cir. 1997). Therefore, “motions for new trial are not favored, and are granted only with great caution.” Id. (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir. 1977)). “A new trial is granted only upon demonstration of adverse effects on substantial rights of a defendant.” United States v. Wright, 634 F.3d 770, 775 (5th Cir. 2011) (quoting O'Keefe, 128 F.3d at 898). An error affects the defendant's substantial rights if “it affected the outcome of the trial court proceedings.” United States v. Alarcon, 261 F.3d 416, 423 (5th Cir. 2001).

         When considering a motion for a new trial, the Court “may weigh the evidence and assess the credibility of the witnesses.” United States v. Arnold, 416 F.3d 349, 360 (5th Cir. 2005) (citing United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir. 1997)). “The evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.” Id. (quoting Robertson, 110 F.3d at 1118). And “any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.” United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004) (quoting 3 Charles Alan Wright, et al., Federal Practice and Procedure § 556 (3d ed. 2004)).

         III. Analysis

         A. Brady and the Surveillance Video

         At trial, Porterville resident Steve Blaylock testified regarding video captured on his home surveillance system. Blaylock lived on Porterville Road approximately 2 to 3 miles north of the Porterville post office where the crime occurred and roughly one-quarter mile south of the Highway 45 and Porterville Road intersection. According to Blaylock, someone ran over his dog that evening, so he checked his newly installed surveillance camera to see who it was. At approximately 5:43 p.m. on the tape, he saw what he believed to be a maroon Toyota Camry with tinted windows and chrome rims pass his house heading south toward the post office, hit his dog, and fail to stop. There is no dispute Benamon drove a maroon Toyota Camry with tinted windows and custom rims.

         Within 24 hours of the hit and run, Blaylock sent a screenshot of the vehicle to a sheriff's deputy. A short time later, law-enforcement officers reviewed Blaylock's video footage, and the Government eventually produced two short video clips from it to Defendants. The clips showed the maroon sedan twice passing Blaylock's house as it drove south toward Porterville-once at approximately 2:39 p.m. and then at approximately 5:43 p.m. when it hit the dog.

         Defendants say the absence of any video showing the sedan passing Blaylock's home around 4:30 p.m. contradicts Slayton's trial testimony that Benamon drove south on Porterville Road around that time to drop Slayton and Mobley off near the post office. See Slayton Tr. [169-1] at 174-75. But their legal arguments regarding the tape have evolved over time.

         Defendants initially argued that the Government possessed but failed to produce the remaining video, thereby violating their Brady rights. See Mot. [160] at 1. They based that argument on Blaylock's trial testimony that he “gave the [G]overnment three days' worth of videos.” Blaylock Tr. [163] at 33. But the Government responded to the initial Brady argument with declarations from Blaylock and lead United States Postal Inspector Dominick Riley, stating that the Government never obtained three days' worth of video from Blaylock's system. See Riley Decl. [164-1]; Blaylock Decl. [164-3]. Blaylock's hearing testimony then confirmed that he gave the Government access to his surveillance system but that he did not mean to suggest the Government took three days' worth of video. Accordingly, Defendants' initial argument is not factually supported.

         Faced with this post-trial evidence, Benamon pivoted his argument, claiming the Government failed to preserve additional footage from Blaylock's camera before the system automatically recorded over it-something that was set to occur every 30 days. Benamon says this failure violated his due-process rights.

         “The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material to either guilt or to punishment.” California v. Trombetta, 467 U.S. 479, 480 (1984). “Evidence is material under Brady when there is a ‘reasonable probability' that the outcome of the trial would have been different if the evidence had been disclosed to the defendant.” United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

         In Trombetta, the Supreme Court considered “whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants.” 467 U.S. at 481. The Court held that the Constitution imposes a duty on the government to preserve evidence only if that evidence “both possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489.

         The Supreme Court added to the analysis in Arizona v. Youngblood, when it considered the government's failure to preserve evidence that was only “potentially useful.” 488 U.S. 51, 58 (1988). The Court held “that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. So under these decisions, “[f]ailure to preserve material exculpatory evidence violates due process rights irrespective of whether the government acted in good faith or bad faith. However, failure to preserve merely potentially useful evidence does not constitute a denial of due process absent a showing of bad faith.” United States v. McNealy, 625 F.3d 858, 868 (5th Cir. 2010) (emphasis added).

         When the officers obtained the two clips, the remaining video evidence from that afternoon was potentially useful but not materially exculpatory. The only way the evidence would be truly exculpatory is if it showed no traffic on Porterville Road just before the robbery and the perpetrator had no other route to the scene. But as seen in the following diagram, Porterville can be accessed by car from the east or west on Highway 498, and from the north by either taking Porterville Road or Highway 45 south and then Highway 498 east. Or, one could arrive on foot by walking from Highway 45 through a wooded area to the community.[1]

         (Image Omitted)

         So even if the video shows no traffic on Porterville Road just before the robbery, a suspect could have accessed and then left Porterville other ways. The missing video was never exculpatory; and there is certainly nothing suggesting the officers should have considered it exculpatory before it was recorded over.

         At most, the absence of Benamon's vehicle on the video around 4:30 p.m. would have contradicted Slayton's timeline testimony, which is not itself exculpatory. But even that value was unknown when the officers obtained the clips. By all accounts, the Government visited Blaylock two or three days after the April 4, 2016 robbery, yet Slayton was not arrested until June 8, 2016. So at the earliest, the Government would not have known about the alleged impeachment value until one month after the video was automatically recorded over.

         Because the tapes were potentially useful but not materially exculpatory, under Youngblood, Defendants must show the Government acted in bad faith by failing to preserve additional footage from Blaylock's video surveillance system. A similar argument was asserted in United States v. Moore, 452 F.3d 382, 388 (5th Cir. 2006). There, the government recorded the defendant's telephone conversations while he was incarcerated on another charge, but it retained only the conversations that were incriminating. Id. The defendant argued that the government should have kept all recorded conversations and acted in bad faith by allowing the other tapes to be recycled per BOP policy. The Fifth Circuit rejected the argument, holding:

Moore also fails to successfully traverse the second avenue for demonstrating a Brady violation. With respect to potentially useful evidence, the lost tapes parallel the cocaine in Youngblood, which was destroyed pursuant to standard procedure and, thus, did not constitute a constitutional violation. Similarly, the BOP recycled all of the tapes after 180 days, as per the BOP's policy. As such, the BOP did not destroy the tapes in bad faith. Moore's argument that bad faith can be inferred from the fact that only excerpts containing inculpatory evidence survived and that retaining all of the tapes would not have been unduly burdensome altogether fails to prove bad faith.

Id. at 388-89.

         As in Moore, Defendants fault the Government for preserving only portions of the video, speculating that the rest would help them. But bad faith is even less apparent here. In Moore, the government's own policies allowed the evidence to be destroyed. Here, the evidence was lost due to Blaylock's retention settings. Finally, as noted above, Defendants have not shown that before the tapes were recycled the agents had reason to know that a video showing no traffic on Porterville Road was noteworthy, much less exculpatory. Absent a showing of bad faith, the failure to preserve additional video evidence that would have been potentially useful to the defense does not amount to a constitutional violation. See Youngblood, 488 U.S. at 58.

         But the analysis does not end there because Mobley's post-trial counsel raised another argument at the February 27 evidentiary hearing. Mobley contends that under Brady, the Government was required to disclose that the unpreserved video footage would have contradicted Slayton's testimony once his testimony was known.

         Based on the post-trial hearing testimony, it seems apparent that one of the officers who visited Blaylock's home to see the video footage must have viewed the contents of the robbery-day video between 2:39 p.m. to 5:43 p.m. Blaylock merely looked at the time when the car hit his dog, so someone else reviewed what happened earlier. And that officer chose to keep the two clips of the maroon sedan passing Blaylock's home. Either the remaining video showed no additional traffic, or the officer missed Benamon's vehicle heading south around 4:30 p.m. (as Slayton testified). Either way, it seems reasonable that the officer who reviewed the video thought there were no other instances where the suspected get-away car passed Blaylock's home.[2]

         So the question is whether the Government should have told Defendants that they believed the video showed no other traffic once it knew Slayton's account. “To establish a Brady violation, 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.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016).

         As discussed, no one knows what the missing video might show, but if the jury heard that the officers thought they produced the only video of Benamon on Porterville Road, it would impeach Slayton's timeline testimony. Strickler v. Greene, 527 U.S. 263, 281-82 (1999) (explaining that Brady requires “the evidence at issue [to] be favorable to the accused, either because it is exculpatory, or because it is impeaching” (emphasis added)). And because the state and federal officers worked together, that knowledge would be imputed to the prosecutors. See Avila v. Quarterman, 560 F.3d 299, 307-08 (5th Cir. 2009). While it is not clear which officers reviewed the full video or what they saw, assuming the evidence was suppressed after Slayton gave his account, Defendants still fail to show materiality.

         Materiality “is generally the most difficult [Brady element] to prove.” Mahler v. Kaylo, 537 F.3d 494, 500 (5th Cir. 2008).

Evidence qualifies as material when there is any reasonable likelihood it could have affected the judgment of the jury. To prevail on [a] Brady claim, [the defendant] need not show that he more likely than not would have been acquitted had the new evidence been admitted. He must show only ...

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