United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE
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.
Facts and Procedural History
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  (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.
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.
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.
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
. It then held a February 27, 2019 evidentiary hearing
and requested final briefing based on new arguments
Defendants asserted that day. Order . The Court is now
prepared to rule.
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).
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)).
Brady and the Surveillance Video
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.
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.
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.
initially argued that the Government possessed but failed to
produce the remaining video, thereby violating their
Brady rights. See Mot.  at 1. They
based that argument on Blaylock's trial testimony that he
“gave the [G]overnment three days' worth of
videos.” Blaylock Tr.  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.
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
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)).
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.
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
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
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
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
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,
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.
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.
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.
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
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).
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.
“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