                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2484
                                   ___________

United States of America,               *
                                        *
            Plaintiff-Appellee,         *
                                        *
      v.                                *   Appeal from the United States
                                        *   District Court for the
James R. Carman, also known as          *   Western District of Missouri
Carman Carman, also known as            *
Jim Carman, also known as               *
James Carmen,                           *
                                        *
            Defendant-Appellant.        *

                                   ___________

                            Submitted: November 6, 2002
                               Filed: December 23, 2002
                                ___________

Before McMILLIAN, MURPHY, and MELLOY, Circuit Judges.
                          ___________

MURPHY, Circuit Judge.

       James R. Carman was convicted by a jury of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 210 months
imprisonment. He moved for a new trial claiming that the government had violated
his rights under Brady v. Maryland, 373 U.S. 83 (1963), by suppressing evidence
favorable to him. The district court1 denied the motion, and Carman appeals. We
affirm.

       On November 14, 2000, officers of the Cameron, Missouri police force went
to Carman's apartment to arrest him after receiving information that he was
manufacturing methamphetamine. They knocked, and Carman came to the door and
stepped out into the corridor when he saw who was there. Carman was placed under
arrest and requested permission to go inside for more clothes since he was only
wearing jeans. The police asked if there were any weapons or other people in the
apartment, and Carman responded that his girlfriend was inside and that there was a
rifle next to the front door. When they entered the apartment, the police found an
assault rifle loaded with a banana clip leaning against the entry door jamb. They
asked Carman where it came from, and he replied that he had purchased it at a garage
sale. An officer testified at trial that he told Carman on that evening that it was illegal
for a convicted felon like him to possess a firearm and that Carman responded that he
had understood that only handguns were prohibited.

        A federal grand jury indicted Carman for being a felon in possession of a gun.2
At trial Carman claimed that the gun had been left in his apartment by someone else
and that he had only seen it for the first time when he went to open the door for the
police and that his comment about the garage sale had been meant sarcastically. He
testified that Julie Toni, Keith Akey, and three other people regularly stayed at the
apartment and that Akey had a key to the front door. According to his testimony,


      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
      2
        Carman's criminal record includes felony convictions for second degree
burglary, conspiracy to commit burglary, and conspiracy to commit murder. Because
of his prior convictions, he was sentenced as an "armed career criminal." See United
States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov. 2000).

                                           -2-
Akey, Toni, and the Wheeler brothers had been in the apartment shortly before the
police arrived. The jury returned a verdict of guilty, and Carman was sentenced to
210 months.

       A police officer testified at the sentencing hearing that Carman and several
others had been under surveillance for methamphetamine production for over a month
prior to his arrest on November 14, 2000. Following the hearing, defense counsel
requested a copy of the police activity logs related to the surveillance. Copies of the
logs were then furnished to the prosecutor and to defense counsel. The logs lent some
support to Carman's claim that other people had lived in his apartment and that the
gun was not his. They indicated that police had received a complaint on October 3,
2000 that two people, including Akey, were residing impermissibly in the same
apartment complex in which Carman lived. The logs did not show in which
apartment the two were alleged to be staying, but they noted that officers saw Julie
Toni enter the apartment complex and spotted Akey in the area on November 6, 2000.
Police observed several people with Carman at a convenience store on November 10
and saw him purchase lighter fluid, gloves, and a lighter.3 The log for that day also
reported that two people were seen purchasing three cans of starter fluid at the same
store and identified one as the "younger Wheeler boy."

       Carman moved for a new trial, arguing that the police logs had not been
disclosed to him by the government in violation of his due process rights under Brady
v. Maryland, 373 U.S. 83 (1963). He contended that the new evidence supported his
claim that the rifle belonged to someone else because it corroborated his testimony
that other people stayed in, and had access to, his apartment. He also pointed out that




      3
       Carman claims that the entry for November 10 shows that on that day he was
seen with others at his apartment, but our review of the logs reveals that at most one
or two others were seen at the apartment complex.

                                         -3-
three cans of starter fluid had been found near the rifle, suggesting that the gun might
have belonged to one of the Wheelers.

       In its decision on the motion the district court correctly noted that to succeed
on a Brady claim, "Carman must establish that the prosecution suppressed evidence,
that the evidence was favorable to him, and that the evidence was material to either
his guilt or his punishment." United States v. Carman, No. 01-00003-01-CR-W-6,
slip op. at 1 (W.D. Mo. May 1, 2002) (citing Johns v. Bowersox, 203 F.3d 538, 545
(8th Cir. 2000)). The court also correctly stated the law that "'[e]vidence is material
if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.'" Id. (internal
quotation marks omitted) (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)).
After applying these standards, the district court denied the motion. It concluded that
the logs were favorable to Carman's theory that someone else owned the weapon, that
they were irrelevant to the issue of whether he had constructive possession of it, and
that constructive possession is sufficient for conviction under § 922(g)(1), see United
States v. Boykin, 986 F.2d 270, 274 (8th Cir. 1993). The court held that the police
logs were therefore not material evidence because they would not have changed the
result of the trial had they been disclosed to the defense.

      On appeal, Carman argues that the district court abused its discretion by
denying the motion for a new trial. He contends that the district court improperly
applied a sufficiency of the evidence standard in evaluating the materiality of the new
evidence, instead of considering the evidence in the context of the prosecution's case.
See Kyles v. Whitley, 514 U.S. 419, 434–35 (1995). He argues that the government's
case had not included a theory of constructive possession, but that it rested on the
theory that Carman had actually owned and possessed the gun. The logs were
therefore material when evaluated under the proper standard.




                                          -4-
       We review a denial of a motion for a new trial based on a Brady claim for an
abuse of discretion. United States v. Parker, 267 F.3d 839, 846 (8th Cir. 2001). To
establish a Brady violation, a defendant must "demonstrate that the government
suppressed evidence, that the evidence was exculpatory, and that the evidence was
material either to guilt or to punishment." United States v. Ryan, 153 F.3d 708, 711
(8th Cir. 1998). Evidence is material under Brady, "'if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.'" Id. at 712 (internal quotation marks omitted)
(quoting Kyles, 514 U.S. at 433–34). A reasonable probability "'is a probability
sufficient to undermine confidence in the outcome.'" Id. (quoting Clemmons v. Delo,
124 F.3d 944, 949 (8th Cir. 1997)). Materiality is to be determined not by "a
sufficiency of the evidence test," but rather by consideration of "what the
government's case would have looked like if the defense had had access to the
[suppressed evidence]." Id. Materiality "is not established through the mere
possibility that the suppressed evidence might have influenced the jury." Id.

       An examination of the record reveals that the district court did not employ a
sufficiency of the evidence test. Although it is true that the government had argued
that he actually owned the gun, Carman is wrong in his contention that the
government had never presented a theory of constructive possession. The jury
instructions included a definition of constructive possession, and in his closing
argument the prosecutor specifically told the jury that "the law recognizes several
kinds of possession[, including] . . . . constructive possession." We thus cannot say
that the district court ignored the context of the government's case in considering the
materiality of the police logs, for constructive possession was among the issues in the
case.

      The record supports the district court's conclusion that the police logs were
immaterial. As the court correctly noted, constructive possession is sufficient for
conviction under § 922(g)(1) and it can be established "by a showing that the firearm

                                         -5-
was seized at the defendant's residence." Boykin, 986 F.2d at 274. While the police
logs might support Carman's claim that he did not own the rifle, they do nothing to
alter the undisputed fact that the gun was found in his apartment. The logs provide
little support for his claim that the rifle had been placed in his apartment immediately
before the police arrived on November 14, since the last cited entry had been made
on November 10. Moreover, the evidence in the logs that others had entered
Carman's apartment is merely cumulative of his direct testimony at trial. As Carman's
counsel recognized at oral argument, the evidence provided by the police logs is also
inculpatory in that it indicates he was involved in manufacturing drugs, thus
suggesting a motive to have a gun ready to protect that operation. After studying the
record, we conclude that it is not reasonably probable that the police logs would have
changed the outcome of the trial had they been disclosed.

      We conclude that the district court did not err or abuse its discretion in denying
the motion for a new trial, and we therefore affirm the judgment.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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