                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 17 2003
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 02-4200
          v.                                                (D. Utah)
 WALLY MARTINEZ,                                (D.C. No. 01-CR-564-01-B)

               Defendant - Appellant.


                             ORDER AND JUDGMENT         *




Before EBEL , ANDERSON , and HARTZ , Circuit Judges.




      Wally A. Martinez was charged by indictment with one count of bank

robbery in violation of 18 U.S.C. § 2113(a); one count of felon in possession of a

firearm in violation of 18 U.S.C. § 922(g); two counts of interference with

commerce by threats or violence in violation of 18 U.S.C. § 1951(a); and three

counts of possession of a firearm during a crime of violence in violation of 18

U.S.C. § 924(c). A jury found Martinez guilty of all charges, and he was


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentenced to sixty-five years in prison. On appeal, Martinez argues that the

district court erred: (1) by refusing to grant a mistrial, either under   Brady v.

Maryland , 373 U.S. 83 (1963), or as a discovery sanction, due to the prosecutor’s

failure to disclose before trial evidence obtained from a confidential informant;

and (2) by refusing to sever the charges, which arose in connection with three

separate robberies. For the reasons set forth below, we affirm.



                                     BACKGROUND

       On September 21, 2001, two individuals—a man and a woman—robbed

Beehive Credit Union in Taylorsville, Utah, obtaining $2,552. When, later that

day, FBI agents reviewed the surveillance photographs taken during the robbery,

one agent identified the female perpetrator as Jamie A. Lucero. The FBI had

previously been told by the West Jordan Police Department, based on information

obtained from Greg Magalogo, a confidential informant, that Lucero was planning

a series of robberies with an unknown accomplice named “Steve.” The FBI had

identified the unknown “Steve” as Lucero’s acquaintance, Steven Evans, but

concluded, after some investigation, that Evans had abandoned the planned

robberies after police stopped him for unrelated reasons. After identifying Lucero

as one of the credit union robbers, the FBI asked the West Jordan police whether

Magalogo had any new information. The police reported that Magalogo


                                              -2-
confirmed Lucero’s participation in the credit union robbery and identified

Lucero’s accomplice as “Demon.” FBI agents then arrested Lucero at her

residence and asked her where “Demon” was. It is undisputed that Mr.

Martinez’s gang moniker is “Demon.” Lucero confessed to the robbery and

identified Mr. Martinez as her accomplice. The FBI found Martinez that evening

at the motel where Lucero told them he would be and placed him under arrest.

      Lucero’s statement to the FBI and her testimony at trial presented the

following story: Lucero and Martinez had planned the credit union robbery the

night before. Martinez kept Lucero’s car, a white Pontiac Grand Am, overnight.

The next morning, Martinez picked Lucero up in her car, and they drove to the

vicinity of the credit union. Before entering the credit union, Lucero and

Martinez went first to a Rite Aid and then to a Reams food store, where they stole

sunglasses for Lucero and a black bandanna for Martinez to wear around his neck

to hide his tattoos. In the Reams parking lot, they removed the car’s rear license

plate. Martinez wrote a demand note on a notepad in upper case block letters. He

put a .22 handgun belonging to Lucero in his waistband. They then drove to the

credit union parking lot, backed into a parking stall, got out of the car, and

entered the credit union. Lucero approached one of the tellers and showed her the

demand note while Martinez stayed near the entrance. After the teller complied

with the note, Lucero put the money in her purse, and she and Martinez left the


                                          -3-
credit union and drove back to Lucero’s residence. There, they summoned

Magalogo and purchased from him between two and four hundred dollars worth

of methamphetamine, which they split between them. After Magalogo left,

Lucero took enough money to buy her daughter a pizza, and Martinez left in

Lucero’s car with the remaining money. Lucero bundled the clothes they had

worn during the robbery inside her blue sweatshirt and put the bundle in her

basement.

      Lucero’s story was corroborated by the evidence found by the FBI as they

continued their investigation. After Lucero’s arrest, the FBI retrieved her wallet,

containing two small plastic bags of methamphetamine, from her house.

Sunglasses were found in the garbage can outside the house, where Lucero said

she had discarded them. The bundle of clothes was found in Lucero’s basement.

There was no black bandanna inside the bundle, but a black bandanna was found

in Lucero’s car, which was in Martinez’s possession at the time of his arrest. A

Reams employee testified that the store carried the particular brands of sunglasses

and bandanna that were found. When the agents who arrested Martinez asked him

where the gun was, he pointed to the trunk of the car, where the agents found a

.22 Ruger. Martinez also had $801 cash on his person. Inside the wad of bills

was an empty small plastic bag that, according to lab tests, had contained

methamphetamine. After Martinez’s arrest, FBI agents followed Martinez’s


                                         -4-
girlfriend Crystal Keeley to her apartment and, after obtaining consent to search

it, found a small notebook, on a back page of which was written the statement,

“This is a robbery . . . ,” in the all-caps style identified by Lucero as the style of

the credit union robbery demand note.

      The FBI subsequently obtained eyewitness identifications of Martinez as a

perpetrator in two previous armed robberies in West Valley City, one at a Payless

Shoesource on July 12, 2001, and another at a Papa John’s Pizza on August 5,

2001. In both of those robberies, two men armed with a gun demanded the money

in the stores’ cash registers. One employee from each of those robberies

identified Martinez in photo lineups that took place in mid to late October 2001.

Jamie Lucero had given the FBI information implicating her acquaintance Steven

Evans as the other perpetrator in the two robberies.

      The charges brought against Martinez in connection with all three robberies

were joined on the basis that they were “of the same or similar character” under

Rule 8(a) of the Federal Rules of Criminal Procedure. Martinez’s defense

attorney moved to sever the charges relating to the Payless and Papa John’s

robberies from those relating to the credit union robbery, claiming unfair

prejudice under Rule 14. The district court denied this motion.

      In a series of pre-trial discovery requests, the defense asked the United

States Attorney’s Office to turn over “all investigative reports and other


                                           -5-
documents,” “[a]ny and all 302 reports authored by F.B.I. agents relating to any

investigation in regard to charges filed,” and “FBI Reports of Special Agent

James Dempsey,” one of the FBI agents who arrested Lucero, relating to

Martinez’s prosecution. The documents delivered by the U.S. Attorney’s Office

in response to these requests failed to include an FBI report by Special Agent

Dempsey that requested authorization to pay the confidential informant Greg

Magalogo $1000 for the information he provided about the credit union robbery.

The document revealed that Magalogo had advised the police that “Demon” was

Lucero’s accomplice in the credit union robbery. Because the prosecution, hoping

to keep Magalogo’s identity confidential, did not plan to call Magalogo as a

witness at trial, the defense received no information concerning Magalogo’s

involvement with the FBI’s investigation.

      At trial, the defense argued that although the details of all three robberies

may be as the prosecution alleged, the prosecution could not prove that Martinez

had participated in any of these robberies. According to the defense, the only

evidence of Martinez’s participation was Lucero’s testimony, in regard to the

credit union, and one photo identification, in regard to each of the other

robberies. The defense challenged Lucero’s testimony as self-serving and

emphasized that Lucero had repeatedly lied in the past. The defense also

challenged the credibility of the photo identifications because they took place two


                                         -6-
to three months after the robberies and because of the likelihood of cross-racial

misidentification by Caucasian witnesses of a Hispanic perpetrator.

      When Lucero testified on the second day of trial, the defense counsel was

surprised to hear her say that the FBI agents asked about “Demon” before she had

identified Martinez as her accomplice. Still not knowing that the FBI agents had

access to information provided by Magalogo before they questioned Lucero, the

defense counsel believed he had caught Lucero in an outright lie on the stand and

hoped to use this to his advantage. Thus, the next day, when cross-examining

Lucero, the defense asked her to repeat this point several times. Then, when

cross-examining Special Agent Dempsey, the defense asked a series of questions

designed to show that the FBI’s only information that Martinez was Lucero’s

accomplice came from Lucero. The defense asked: “So your testimony today is

that the only person who could be identified [from the surveillance photos] was

Jamie Lucero?” Special Agent Dempsey answered: “By Agent Juan Becerra,”

referring to the agent who had initially identified Lucero from the credit union

robbery photos. The defense, intending it to be a rhetorical question, then asked:

“Was somebody else to identify somebody?” R. Vol. IV at 352. At this point, the

prosecutor interrupted and disclosed in a bench conference, outside the jury’s




                                         -7-
hearing, that Magalogo had identified Martinez from the credit union surveillance

photos. 1

       After the bench conference, the defense counsel repeated his question to

Special Agent Dempsey, eliciting the testimony that Magalogo had identified

Lucero’s accomplice as “Demon” before Lucero’s arrest and that the agents had,

as Lucero claimed, asked about “Demon” before she identified Martinez.

       The defense counsel then requested another bench conference and moved

for a mistrial based on the prosecutor’s failure to disclose this information in pre-

trial discovery. The defense counsel noted that he had been proceeding “on the

theory that Ms. Lucero was the only one placing Mr. Martinez at [the credit

union]” and argued that Martinez’s case “is damaged irreparably.”     Id. at 363.

The court acknowledged that the defense should have been told before trial that

the FBI had someone in mind when they questioned Lucero and suggested a name

to her because this information could be used by the defense to impeach Lucero’s

credibility. However, the court denied the defense’s motion, reasoning that in a

new trial, in order to use the exculpatory aspects of the information to its

advantage, the defense would still have to reveal the inculpatory fact that



       1
        It is not clear from the record whether Magalogo actually identified
Martinez from the surveillance photos or based his identification solely on his
visit to Lucero’s residence following the robbery. Magalogo’s testimony,
described below, referred only to the latter.

                                          -8-
someone else had identified Martinez as one of the credit union robbers. The

court also noted that the defense would have the opportunity to attempt to use the

information to its advantage in the remainder of the trial. In further cross-

examination of Special Agent Dempsey, the defense did attempt to impeach

Lucero’s identification using the disclosed information. When Lucero was later

recalled as a witness, the defense had an opportunity to cross-examine Lucero on

this point as well but did not do so.

      The next day, after the prosecution turned over to the defense the FBI

report by Special Agent Dempsey concerning Magalogo’s payment, the defense

again moved for a mistrial. The court again denied the motion, concluding that,

even though the prosecutor should have given the information to the defense

before trial, its failure to do so was not significant in this case.

      Following the disclosure, the district court had ordered the prosecution to

have Magalogo transported from prison, where he was then incarcerated, to the

courthouse so that the defense could interview him. After Magalogo was brought

in, the FBI also re-interviewed him, and Magalogo told them that he had heard

Martinez make an incriminating statement while at Lucero’s residence. The

prosecution then called Magalogo as a rebuttal witness to testify to this statement.

The defense, on cross-examination, suggested that Magalogo had a motive to

incriminate Martinez falsely because he and Martinez belonged to rival gangs.


                                            -9-
      At the conclusion of the five-day trial, the jury found Martinez guilty of all

charges, and Martinez filed a timely notice of appeal.



                                   DISCUSSION

      1. Delayed Disclosure of Impeachment Evidence

      Martinez argues first that the prosecution’s belated disclosure of

Magalogo’s involvement with the FBI’s investigation led the defense counsel into

an “evidentiary ambush” that prevented him from effectively impeaching Lucero

and resulted in the disclosure of incriminating information that would otherwise

never have been revealed. Appellant’s Br. at 23-27. According to Martinez, the

district court’s denial of Martinez’s motion for a mistrial on this basis was in

error either under Brady v. Maryland , 373 U.S. 83 (1963), or under procedural

discovery rules.

             a. Brady Claim

       Brady recognized that a criminal defendant’s right to a fair trial under the

Due Process Clause requires the prosecution to disclose before trial “‘evidence

favorable to an accused,’” including evidence that could be used to impeach a

government witness, “‘where the evidence is material either to guilt or to

punishment.’”   Strickler v. Greene , 527 U.S. 263, 280 (1999) (quoting    Brady , 373

U.S. at 87). The Supreme Court has explained the “three components of a true


                                         -10-
Brady violation”: (1) “The evidence at issue must be favorable to the accused,

either because it is exculpatory or because it is impeaching;” (2) “that evidence

must have been suppressed by the State, either willfully or inadvertently;” and (3)

“prejudice must have ensued.”       Id. at 281-82. We review a district court’s

decision regarding an alleged     Brady violation de novo.      United States v. Combs ,

267 F.3d 1167, 1172 (10th Cir. 2001).

       The parties agree that the defense could use the belatedly disclosed

evidence to impeach Lucero’s credibility by arguing that she falsely identified

Martinez as her accomplice in order to comply with the FBI’s suggestion that it

was “Demon.” In that sense, the evidence is properly considered favorable to

Martinez even though Magalogo’s identification of the second credit union robber

as “Demon,” aka Martinez, clearly had at least as much inculpatory as exculpatory

potential. The government concedes that this material should have been produced

prior to trial. We therefore turn to the question of whether the delayed disclosure

prejudiced the outcome of Martinez’s trial.

       The parties differ in regard to the standard they would have us apply to

determine whether there has been prejudice in this case. Martinez argues that,

because the defense here made a specific discovery request that the prosecution

did not fulfill, there is prejudice if the suppressed evidence “‘    might have affected

the outcome of the trial.’” Appellant’s. Br. at 18 (emphasis added) (quoting


                                             -11-
United States v. Abello-Silva , 948 F.2d 1168, 1180 (10th Cir. 1991)). In contrast,

the government argues that because disclosure here was delayed rather than

entirely withheld, there is no prejudice as long as the defense was able “‘to make

use of any benefits of the evidence.’” Appellee’s Br. at 13 (quoting     United States

v. Scarborough , 128 F.3d 1373, 1376 (10th Cir. 1997) (further quotation

omitted)). Neither party is correct. The Supreme Court has overruled the lower

standard urged by Martinez, as we recognized in       Smith v. Secretary of New

Mexico Department of Corrections       , 50 F.3d 801, 827 (10th Cir. 1995) (discussing

United States v. Bagley , 473 U.S. 667 (1985)). Further, a fair reading of our

previous cases concerning delayed disclosures shows that our focus in such cases

is on “whether there is a reasonable probability that the outcome of [the trial]

would have been different had the State disclosed this information earlier.”

Knighton v. Mullin , 293 F.3d 1165, 1172-73 (10th Cir. 2002). In other words, we

consider “whether earlier disclosure would have created a reasonable doubt of

guilt that did not otherwise exist.”   United States v. Rogers , 960 F.2d 1501, 1511

(10th Cir. 1992) (further quotation omitted);      see Scarborough , 128 F.3d at 1376

(“Ultimately, . . . appellant has not shown that earlier disclosure of this material

would have created any greater doubt about defendant’s guilt or affected the

result of the trial.”).




                                            -12-
      Accordingly, we turn to consider whether, in this case, there is a reasonable

probability that Martinez would have been acquitted had the prosecution not

delayed its disclosure of Magalogo’s identity and involvement in the FBI

investigation. Martinez asserts prejudice on two separate bases. First, he argues

that the defense was unable to use the evidence effectively to impeach Lucero

because the way in which the evidence was revealed “emphasized” its “prejudicial

aspects” while “neutraliz[ing]” its “exculpatory aspects.” Appellant’s. Br. at 26-

27. In fact, however, as indicated above, it was the defense counsel’s questioning

of Special Agent Dempsey,   after being informed in a bench conference that

Magalogo had identified Martinez, that brought this identification before the jury.

We must therefore attribute the emphasis on the prejudicial aspects of this

evidence not to the prosecution’s delay but to the defense’s unwise tactical choice

on cross-examination. Moreover, even had defense counsel been aware of this

evidence before trial, there is no suggestion that his overall strategy, which was

already focused on impeaching Lucero’s credibility, would have been different.

Taking the totality of the circumstances into account, including the evidence

found in Martinez’s control at the time of his arrest that corroborated Lucero’s

story, the impeachment value of this evidence was very slight. Thus, even if the

defense had presented the evidence in the most effective way possible, we cannot

conclude that it would have had any impact on the case’s outcome.


                                         -13-
       Second, Martinez argues that if not for the delayed disclosure of this

information, Magalogo would never have been transported from prison to the

court so that defense counsel could interview him, which, rather than helping the

defense to respond to the disclosure, led the prosecution “to learn of and then

elicit [in court] additional damaging testimony regarding a statement made by Mr.

Martinez which implied his participation in the robbery.”        Id. at 27. Martinez

cites no cases to support the proposition that an assessment of prejudice under

Brady includes the impact of otherwise admissible inculpatory evidence that, but

for the delayed disclosure of exculpatory evidence, would have remained

unknown to the prosecution. Such a proposition goes beyond the due process

concern under Brady with ensuring that the defendant “‘received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.’”         Strickler , 527

U.S. at 290 (quoting Kyles v. Whitley , 514 U.S. 419, 434 (1995)). Our previous

Brady cases have only examined the potential use a defendant could make of

exculpatory material, not the defendant’s potential avoidance of inculpatory

material. We do not believe that Martinez can claim prejudice under            Brady

simply because of the prosecution’s unexpected discovery and presentation to the

jury of new incriminating evidence.

       We therefore affirm the district court’s denial of a mistrial under       Brady .




                                            -14-
                b. Discovery Sanction

       Martinez also argues that the district court should have granted his motion

for a mistrial as a discovery sanction because the prosecution’s failure to give the

defense the FBI report on Magalogo before trial was a violation of the

government’s “open file” policy. We review a district court’s refusal to impose a

discovery sanction for abuse of discretion.          United States v. Franklin , 704 F.2d

1183, 1191 (10th Cir. 1983). In exercising its broad discretion to impose

sanctions on the government for failure to comply with a discovery order, a

district court should consider: “(1) the reasons the government delayed producing

the requested materials, including whether or not the government acted in bad

faith . . . ; (2) the extent of prejudice to the defendant as a result of the

government’s delay; and (3) the feasibility of curing the prejudice with a

continuance.”     United States v. Peveto , 881 F.2d 844, 863 (10th Cir. 1989). Here,

the record shows that the district court carefully considered the nature of the

evidence disclosed, the effect of the delayed disclosure, and how best to cure any

resulting prejudice before concluding that a mistrial was unwarranted. This

conclusion was not an abuse of the court’s discretion.




                                              -15-
       2. Refusal to Sever

       Martinez next argues that the joinder of all charges in a single trial was

unfairly prejudicial and that the district court should therefore have granted his

motion to sever the charges related to the credit union robbery from those related

to the other two robberies. Rule 14 permits a district court to order separate trials

“[i]f the joinder of offenses . . . appears to prejudice a defendant . . . .” Fed. R.

Crim. P. 14(a). “The decision whether to grant or deny severance is in the sound

discretion of the trial court, and will not be disturbed on appeal unless there is an

affirmative showing of abuse of discretion.”        United States v. Parra , 2 F.3d 1058,

1062 (10th Cir. 1993) (further quotation omitted). “The burden of the defendant

to show an abuse of discretion in this context is a difficult one.”     Id. (further

quotation omitted).

       Martinez argues that joinder was prejudicial in this case because the

evidence that Martinez was in possession of a firearm at the time of his arrest

soon after the credit union robbery might lead the jury to infer that he had a

criminal disposition and was thus likely to have committed the other two

robberies. Martinez also argues that the theory of defense he presented in

connection with the credit union robbery—that the main witness was lying—and

the theory he used in connection with the other robberies—that the eyewitnesses




                                             -16-
misidentified him—were incompatible and “los[t] all credibility when joined

together.” Appellant’s Br. at 31.

       We have previously recognized that where, as here, “joinder of offenses is

based upon their ‘same or similar character,’ the prejudice to the defendant is

more likely since proof of one crime may tend to corroborate the commission of

the other crime in violation of the evidentiary rules.”   United States v. Muniz , 1

F.3d 1018, 1023 (10th Cir. 1993). By itself, however, the “‘spillover’ effect” of

damaging evidence is insufficient to warrant reversal of a district court’s denial

of severance. United States v. Furman , 31 F.3d 1034, 1037 (10th Cir. 1994).

Thus, we have upheld a district court’s refusal to sever such offenses where the

“counts were separate and distinct, and the evidence presented at trial was not too

confusing or unfairly overlapping,” and “the case for each count was strong

enough on its own.”     Muniz , 1 F.3d at 1023.

       These factors are also at work here. Martinez does not allege that the

government was “attempting to strengthen a weak case by joining it with a strong

case.” Id. The evidence related to each robbery was presented separately and was

not confusing. We are unpersuaded that Martinez’s defense strategies were

unduly hampered as a result of their presentation in a single trial. Martinez has

not met the heavy burden required for a reversal on this claim. We therefore

affirm the district court’s refusal to sever.


                                             -17-
For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                       ENTERED FOR THE COURT



                                       Stephen H. Anderson
                                       Circuit Judge




                                -18-
