                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1756
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       *    Appeal from the United States
      v.                               *    District Court for the
                                       *    District of Minnesota.
Jose Angel Almendares,                 *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: November 15, 2004
                                Filed: February 11, 2005
                                 ___________

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

MURPHY, Circuit Judge.

       A jury convicted Jose Angel Almendares of aggravated bank robbery, and the
district court1 sentenced him to 78 months. Almendares argues on appeal that the
district court erred by denying his motion to suppress DNA evidence and that it
abused its discretion by admitting evidence of a prior armed robbery and by denying
his motion for a new trial based on the government's failure to disclose evidence. We
affirm.


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
                                           I.

       A masked man armed with a handgun robbed the United Prairie Bank in Round
Lake, Minnesota on the morning of June 3, 2003. He used few words and relied
mostly on gestures with his gun to direct people around the bank. One of the bank
employees, who was forced out of his office and onto his knees, testified that the
robber pressed the gun into his neck and shoulder as he knelt. The robber alternated
between threatening him and pointing his gun at the two tellers. He placed a white
plastic bag with blue lettering on the counter and directed a teller to fill the bag with
cash, and she placed over $7,800 in it. Included in the cash was $500 bait money in
the form of marked twenty dollar bills.

       The robber left the bank through the front entrance. One of the employees
watched him go outside, take off his ski mask, and turn the corner, but she was unable
to see his face. The bank employees described the robber as an Hispanic man in his
twenties or early thirties, between 5'7" and 5'10" tall, weighing 175 to 190 pounds,
with a medium to dark complexion. He was wearing shorts, a gray sweatshirt, white
work gloves, and a black ski mask with three holes cut out.

      Bruce Bentele was stopped at an intersection near the bank when he saw a man
come around the corner. He described him to police as Hispanic, 5'8" to 5'9" tall, of
medium build, with short dark hair and a mustache. Bentele testified at trial that the
man was carrying a white bag and had messy hair that looked like he had taken off
a stocking cap. He was about eight feet from Bentele, and he waved and asked
Bentele how the day was going as he walked quickly towards a light colored car.

      While Craig Patten was stopped at the same intersection, he saw a man run
down the street with a white bag after turning the corner. Patten saw him wave to
Bentele in his pickup and run to a light blue gray car. He looked around, threw the
white bag on the front seat, got into the car, and then accelerated quickly on the way

                                          -2-
out of town. Patten described the man as an Hispanic male in his mid twenties, with
dark hair and a mustache.

      Law enforcement officers learned that Jose Almendares had cashed a check at
the bank the morning of the robbery, and they arranged an interview with him that
evening. Jose acknowledged that he had been at the bank and that he had been
driving a gray Chevrolet Lumina which belonged to his brother Holvin. Jose
informed the officers that his own car was being repaired, and the next day an officer
discovered that Jose had paid a mechanic $1,460 in cash for repairs to his car. That
cash included $420 in bait bills from the robbery, as well as $500 in $10 bills
wrapped in rubber bands. The United Prairie Bank stores its ten dollar bills in that
way.

       Officers obtained a search warrant for the place where Almendares lived with
his brothers, Alexis, Holvin, and Roger, and his cousin Alex. During the search
officers found $1,435 in cash, including three of the $20 bait bills. The bait money
was found in Jose’s room, along with two shopping bags with blue or purple lettering.
In other buildings on the property, the officers found a black ski mask and white
gloves similar to those described by witnesses to the robbery. All five Almendares
men were arrested. Subsequently officers learned that Jose Almendares had sent a
$4,500 wire transfer to Honduras the day after the robbery.

       FBI Special Agent Drew Helms showed a photo lineup to Bentele the day the
five men were arrested. In the lineup were photographs of the five Almendares men
and two other Hispanics. Agent Helms arranged the seven photographs on a table
and asked Bentele if he recognized any of the men and from where. After viewing
the photographs, Bentele picked up the picture of Holvin Almendares and said "I
think this is the guy" or "It looks like this guy but I'm not sure." Helms did not
include this information in his 302 report which was turned over to Almendares



                                         -3-
before trial, together with a handwritten note Helms left for a sheriff's deputy stating
"No I.D.!?".

       The day after Jose's arrest for the bank robbery, a police officer requested a
DNA sample from him as part of an investigation into an earlier robbery and sexual
assault at a Mexican variety store in Worthington, Minnesota. That crime had taken
place some seven months before, and Worthington is 12 to 15 miles from Round
Lake. After realizing that Jose did not speak English well, the officer called a
telephone interpreting service. Through the interpreter the officer told Almendares
that he was investigating a different case and that he wanted a sample of his DNA.
They then went over a consent form, line by line. Because the preprinted form was
prepared for search of a car or building, the officer wrote in "DNA sample by mouth"
and told the interpreter to tell Almendares that he wanted a sample from his mouth.
Almendares signed the consent form, and the interpreter told the officer that Jose had
said it was "okay" to take the sample. After Almendares signed the form and the
interpreter was about to end the call, the officer asked, "He told you that I can take
the sample, right?" The interpreter answered, "yes sir." The DNA evidence collected
from Jose Almendares matched the DNA left at Video Lupita, the Mexican variety
store, in October 2002, but the DNA collected from the other Almendares men did
not.

        A preliminary hearing was held on June 9, 2003, four days after Bentele saw
the photo lineup. Defense counsel questioned Agent Helms about any photographic
lineups that had been conducted during the investigation of the bank robbery. Helms
testified that he had conducted such a lineup but that Bentele had not identified
anyone and had been unable to distinguish any of the men in the pictures. Jose
Almendares was indicted on July 1, 2003, for aggravated bank robbery in violation
of 18 U.S.C. § 2113 (a), (d).




                                          -4-
       Almendares moved to suppress the DNA evidence, arguing that he had not
consented to the search and that the officer had unreasonably relied on the
interpreter's statement that he had. After a de novo review of the record, the district
court adopted the report and recommendation of the magistrate judge2 to deny the
motion. The court found that the officer conducting the search had reasonably
believed that Almendares had consented to the search, and it concluded that the
evidence would have been inevitably discovered in any event because that officer had
been instructed to obtain a search warrant if necessary.

       When a defense investigator talked to Bentele, he said that he had identified
a man in the lineup as the robber, but he was unable to say who it was he had
identified. Due to the inconsistency between Bentele's statement and Agent Helms'
testimony at the preliminary hearing, Almendares moved for an order compelling
disclosure of any Brady material, in particular "[a]ny identification of persons other
than the Defendant by witnesses to the alleged crime(s)." At the motion hearing, the
defense again questioned Agent Helms about the lineup, and Helms testified that
Bentele had not been able to recognize anyone in the photographs and had not
positively identified the robber. The court entered an order compelling disclosure of
evidence favorable to the defense, but nothing was provided to indicate Bentele had
made any type of identification. A few weeks later a defense investigator showed
Bentele the photo lineup that had been entered into evidence during the hearing, but
Bentele was unable at that time to identify which photograph he had picked out some
four months earlier.

      Almendares also moved to exclude evidence of the Video Lupita crime. The
court decided to admit evidence of the prior armed robbery, but to exclude any
evidence of the sexual assault because of undue prejudice. The parties reached a


      2
       The Honorable Jonathan Lebedoff, Chief United States Magistrate Judge for
the District of Minnesota.

                                         -5-
stipulation to ensure that the jury would not learn about the sex crime, and the court
excluded evidence of the sexual assault which had produced the DNA evidence
matched with Jose Almendares. Before leaving Video Lupita, the robber had taken
the clerk into the back of the store, told her to undress, and then ejaculated on her
body. A DNA sample was taken from the victim's underwear, but at trial she testified
only that the robber had left material at the scene which had been turned over to the
police.

       The trial testimony began with bank employees. Barbara Bosma testified that
on her way to work the morning of the robbery, she saw a charcoal gray or slate blue
Chevy Lumina driven by a man wearing a stocking cap even though the weather was
not that cold. She later saw the same man try to get into the bank lobby before it
opened at 9:00 a.m. and then go over to the walk up window which opens earlier than
the lobby. The teller at the walk up window testified that Jose Almendares was the
only window customer before the lobby opened that morning.

       The prosecutor called Bentele to the stand on the second day of trial. On direct
examination he said that he had identified someone at the lineup who he thought was
the robber. Almendares moved for a mistrial, arguing that the government had
suppressed Brady material. The prosecutor responded that he had just learned that
morning that Bentele had picked a photo out of the lineup and that Agent Helms had
told him he only regards an identification as positive if it is certain. During a break
Helms then told defense counsel that Bentele had identified Holvin Almendares as
the man he thought was the robber, and this was in turn reported to the district court.
The court denied the motion for mistrial, observing that the defense had discovered
before trial that Bentele had picked out a man at the lineup and that it could have
asked Helms about it before trial.

     There were also witnesses who knew the Almendares men from their work at
New Fashion Pork. Lowell Baumgarn testified that he saw Jose driving a gray

                                         -6-
Chevrolet Lumina about twenty minutes after the robbery, on a road where he had not
expected to see him. Baumgarn said that Jose slowed down and made a low wave,
but he did not stop to talk as he normally would have. Lowell’s father, Byron
Baumgarn, testified that he had seen Jose at work early on the morning of the bank
robbery and had seen a black ski mask hanging on a hook near him. Byron noticed
that he was wearing shorts which struck him as unusual because Jose usually wore
coveralls at work. Byron said that Almendares had asked that morning to borrow
$1,500 for car repairs and a plane ticket, pleading that he desperately needed the
money. Byron also testified that later that afternoon he saw a black stocking cap in
the open trunk of the gray Lumina, then parked near a building where Jose and his
brother Roger were working. He also said that Jose seemed shaky and nervous that
afternoon. Two other coworkers who looked at the bank surveillance photos testified
that out of the five Almendares men, Jose most closely matched the description of the
robber. The photos also show that the little finger of the robber's left glove did not
appear to be filled, and there was evidence that Jose had lost part of his left little
finger.

       The victim of the Video Lupita robbery testified at trial that a man with a gun
entered the store around 8:00 a.m. on October 30, 2002. He placed a sign on the front
door that read "closed today thank you" in Spanish, locked the front door, and turned
off the lights. The man was wearing a black ski mask with three holes in it, white
gloves, sweat pants, and a gray hooded sweatshirt. He spoke Spanish and told her to
give him the money or he would shoot, to hurry up, and not to say anything or
scream. The victim described the man as 5'8" to 5'9" tall and "bulky" but not fat. He
pointed the gun towards her back and shoulder and walked her around the counter to
get the money for him, and she could feel the gun being pressed into "the back part
of [her] shoulder." The robber pointed to an orange plastic bag on the floor that she
did not think had been in the store before he entered, and together they put money and
jewelry in the bag. The court gave a limiting instruction on the use of the robbery
evidence, telling the jury it could use the evidence to help decide whether any

                                         -7-
similarity between it and the bank robbery suggested that the same person committed
both acts. It also told the jury that "the mere fact that the defendant may have
committed a similar act in the past is not evidence that he committed such an act in
this case" and that it could not convict him simply because jurors believed he may
have committed a bad act in the past.

       After a five day trial, the jury convicted Almendares of aggravated bank
robbery, in violation of 18 U.S.C. § 2113(a), (d). He moved for a new trial, arguing
that the government's failure to disclose Bentele's identification of Holvin violated
his rights under Brady v. Maryland, 373 U.S. 83, 87 (1963) (due process violated if
prosecution suppresses evidence favorable to defendant and material to guilt or
punishment). In ruling on the motion the district court observed that Almendares had
known before trial that Bentele had identified another individual and that Agent
Helms admitted during trial that Bentele had identified Holvin; Almendares therefore
had sufficient time to prepare his defense and use the evidence at trial. The court
characterized Bentele's identification of Holvin as weak and inconclusive and noted
that the government's case had not depended on Bentele's identification. The court
denied the motion for new trial and sentenced Almendares to 78 months
imprisonment. Almendares appeals.

                                         II.

      On appeal, Almendares argues that the district court clearly erred in its
determination that the police officer reasonably believed he had consented to the
DNA search and that that evidence would have been inevitably discovered. He also
argues that the court abused its discretion in admitting evidence of the Video Lupita
robbery and in denying his motion for a new trial.




                                         -8-
                                          A.

       Almendares contends that the district court clearly erred in finding that the
police officer had a reasonable belief that he had consented to the DNA search. The
officer used a consent form intended for the search of a building or vehicle rather than
a person, and Almendares argues that it was unreasonable for him to rely on a
translation over the telephone. Almendares contends that the interpreter incorrectly
interpreted the acronym "DNA" and his responses, such as interpreting "mmmhhh"
as "yes," and that the officer showed he did not believe there was consent because he
asked the interpreter after the form had been signed, "He told you I can have the
sample, right?" Almendares argues the officer unreasonably relied on the interpreter's
opinion that he had consented.

       The government argues that it was objectively reasonable for the officer to
believe that Almendares had consented to the DNA swab. The government notes that
Almendares was told that the officer wanted a sample from his mouth, that after
listening to a translation he signed a form consenting to a "DNA sample by mouth,"
that the interpreter told the officer that Almendares said it was okay to take the
sample, and that Almendares opened his mouth for the swab. See United States v.
Hampton, 260 F.3d 832, 835 (8th Cir. 2001) (consent found where individual opened
the door and allowed police to enter). The government also asserts that the general
atmosphere of the search was noncoercive and that Almendares' conduct supports a
finding of reasonableness because he did not seem nervous, appeared competent, and
was not under the influence of drugs or alcohol.

      We review the district court's finding of consent for clear error. United States
v. Morreno, 373 F.3d 905, 910 (8th Cir. 2004). A warrantless search does not violate
the Fourth Amendment if knowing and voluntary consent was given. United States
v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir. 2004). The government bears the
burden of proving voluntary consent by a preponderance of the evidence and must

                                          -9-
show that on the totality of the circumstances the officer reasonably believed that the
search was consensual. Id. at 684-85; United States v. Sanchez, 156 F.3d 875, 878
(8th Cir. 1998). In examining the reasonableness of the officer's belief, we consider
the nature of the encounter and the characteristics of the consenting party, including
the party's age, intelligence and education, whether he was under the influence of
drugs or alcohol, whether he was informed of his right to withhold consent, and
whether he was aware of rights afforded criminal suspects. United States v. Chaidez,
906 F.2d 377, 380-81 (8th Cir. 1990).

        In this case the translated record of the telephone call with the interpreter
indicates that she told Almendares that the officer wanted to take a sample from his
mouth and that he could withdraw his consent at any time. Almendares also said he
understood the contents of the consent form before signing it. The police officer
testified at the suppression hearing that he had not understood the Spanish exchange
between Almendares and the interpreter, but that he had no reason to think the term
"DNA" had been interpreted incorrectly. At the end of the telephone call, the officer
checked again with the interpreter to make sure that Almendares had said he could
take the sample, and the interpreter said yes. Almendares cooperated with the taking
of the sample by opening his mouth and did not object at any time. The officer also
testified that Almendares was pleasant, cheerful, and polite during the interaction.

       We have upheld consent findings in similar situations where the subject did not
speak English. See e.g., Cedano-Medina, 366 F.3d at 685-87 (officer reasonably
believed that suspect consented to search of truck when he opened the door and stood
back during search even though he spoke broken English and initially appeared
confused); Sanchez, 32 F.3d at 1335-36 (consent found where one defendant
interpreted for the other, both signed a consent form and cooperated, and neither
objected). We conclude after our review of the record that the district court did not
clearly err in finding consent.



                                         -10-
                                          B.

        Almendares also contends that the district court abused its discretion by
admitting the Video Lupita robbery evidence under Rule 404(b) on the issue of
identity, without first having determined that there were unique similarities between
the two robberies, citing United States v. LeCompte, 99 F.3d 274, 278 (8th Cir. 1996)
(similarities must tend to prove unique modus operandi). We explained in United
States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000), that before admitting evidence
of a prior act on a theory of signature facts or modus operandi, the district court
should make a threshold determination that the evidence would permit the jury to find
that the same person committed both crimes because of their similarities. Almendares
argues that the district court did not make that finding and that the two robberies were
very different. He claims there were only a few similarities, such as use of a ski
mask, a gun, and gloves, and that they were too common to satisfy the test for modus
operandi evidence. Almendares also contends that the prejudice to him substantially
outweighed the probative value of the evidence and prevented him from receiving a
fair trial.

       The government responds that the district court did not abuse its discretion in
admitting evidence of the Video Lupita robbery, given the similarities in the crimes
and the short time between them. It contends that evidence of the Video Lupita
robbery was particularly probative on the issue of identity because Jose’s trial
strategy was to show that one of his brothers had committed the bank robbery and the
brother looked like Jose. The district court also took proper steps to limit the danger
of unfair prejudice it says, and the evidence was also admissible to prove intent or
absence of mistake or accident.

      The district court has broad discretion in admitting other crimes evidence.
United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987). We review its Rule 404(b)
decision for abuse of discretion and "reverse only when such evidence clearly had no

                                         -11-
bearing on the case and was introduced solely to prove the defendant's propensity to
commit criminal acts." United States v. Howard, 235 F.3d 366, 372 (8th Cir. 2000)
(quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998), cert. denied,
525 U.S. 1169 (1999)). Under Rule 404(b), evidence of a prior crime, though
inadmissible to show that a person acted in conformity with the prior act, may be
admissible for other purposes, such as "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R.
Evid. 404(b). Such evidence is admissible if it is (1) relevant to a material issue; (2)
similar in kind and close in time to the crime charged; (3) proven by a preponderance
of the evidence; and (4) if the potential prejudice does not substantially outweigh its
probative value. Carroll, 207 F.3d at 469 n.2; Howard, 235 F.3d at 372. The district
court instructed the jury that it could consider evidence of the Video Lupita robbery
to show identity.

       If the conduct underlying the prior act and the current charged offense involved
a unique set of "signature facts," then evidence of the prior act is admissible to show
that the same person committed both crimes. Carroll, 207 F.3d at 468. In order to
admit identity evidence on a signature facts or modus operandi theory, the district
court must make a threshold determination that a reasonable juror could find from
comparing the acts that the same person committed both crimes. Id. at 469. Two
factors relevant to this determination are the distinctiveness of the facts that make the
crimes unique and the distance between the crimes in space and time. Id.

      In this case an Hispanic male committed both robberies, and eyewitnesses to
both crimes gave similar descriptions of his height and build. The Video Lupita
robber wore a black ski mask, a gray hooded sweatshirt, sweat pants, and white
gloves; the bank robber wore a black ski mask, a gray sweatshirt, jean shorts, and
white gloves. In both instances the robber spoke very few words, used a handgun
aggressively to direct the victims, and pushed his gun into their shoulders. The Video
Lupita robbery took place at 8:00 a.m. just after the store opened. Although the bank

                                          -12-
robbery occurred at 11:00 a.m., testimony showed that Almendares had cashed a
check at the bank before the lobby opened at 9:00 a.m. The bank robbery took place
seven months after the Video Lupita robbery, and the fifteen mile distance between
the robberies was small, particularly since both took place in a rural area. See United
States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996) (forty mile distance between
crimes was small, especially when considered in the context of rural northwest
Wisconsin).

       We are satisfied that the district court applied the correct standard in admitting
the prior crimes evidence. The district court applied the Rule 404(b) factors and
found that the robberies were similar and close enough in time to be relevant on the
issue of identity. As we noted in Carroll, the threshold question of whether a
reasonable juror could conclude that the same person committed both crimes is
essentially no different from the inquiry in the first two parts of the general Rule
404(b) test. Carroll, 207 F.3d at 469 n.2.

       The district court also gave a limiting instruction to the jury telling it that the
evidence could not be used to show that Almendares would be more likely to have
committed the bank robbery if he had committed a robbery in the past. The use of
such an instruction decreases the danger that unfair prejudice will result from
admission of the evidence. United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987).
The district court was also careful to keep the jury from learning about the sexual
assault at Video Lupita to prevent unfair prejudice to Almendares. Deference is due
its judgment in balancing the probative value of evidence against its prejudicial
effect. Id. We conclude that the district court did not abuse its discretion in admitting
evidence of the Video Lupita robbery.




                                          -13-
                                          C.

        Almendares argues that the government's failure to disclose Bentele's
identification before trial impaired his pretrial investigation and forced him to change
his strategy in the middle of trial and that the district court failed to consider the
effect the nondisclosure had on his defense. Before learning that Bentele had
identified Holvin, the defense strategy was to show that any one of the other
Almendares men could have robbed the bank. They looked alike, and Jose could
argue the reason he had the bait bills was that the others turned over their money for
him to pay their expenses. If he had known about Bentele's identification he says, his
defense would have focused on an investigation of Holvin and would have
approached the cross examination of Bentele differently. Almendares argues that he
was unable to use the late disclosure effectively because even though he was able to
refocus his defense on Holvin, he still had to mention his other relatives as promised
in his opening. The respective heights, weights, builds, and facial features of Holvin
and Jose became especially important, and the defense had to rely on pictures and
witness testimony about Holvin since he had meanwhile been deported to Honduras.
It claims that it would have sought a material witness warrant to stop his deportation
if it had known about Bentele's identification earlier.

       Almendares complains that Helms gave false and misleading testimony at the
preliminary and motion hearings, that the government violated a court disclosure
order, and that confidence in the verdict was undermined as a result. Since the jury
deliberated for two days and twice sent notes to the judge asking what to do if it could
not reach a unanimous decision, this was a close case he contends. He argues the
government should not be permitted to disclose evidence at the last minute and that
failure to find a Brady violation here would create an intercircuit conflict with Grant
v. Alldredge, 498 F.2d 376 (2d Cir. 1974) (Brady violation when identification not




                                         -14-
disclosed prior to trial and evidence would have led to other information that could
have produced reasonable doubt).3

       The government argues that there was no Brady violation because Almendares
knew before trial that Bentele had identified someone, learned at trial that he had
identified Holvin, used that evidence at trial, and its disclosure did not affect the trial
outcome. In its opening statement the defense said that any of the other Almendares
men, including Holvin, could have committed the robbery and that "it was Holvin that
was really the one who needed the money." The government notes that Helms was
extensively crossexamined during its case, that he was recalled by the defense in its
case to testify about the lineup, and the fact that Bentele had identified Holvin was
used repeatedly at trial by the defense. The defense introduced several photographs
of Holvin and questioned witnesses about his physical description and his need for
money and also presented evidence that any of the other Almendares could have
committed the robbery. The government contends that even if the pretrial
nondisclosure were a Brady violation, the error would be harmless given the strong
evidence of Jose's guilt.

       The government states in addition that the prosecution had not known that
Bentele had identified anyone at the lineup until he was crossexamined at trial and
until Helms revealed that he had picked out Holvin’s picture. It also explains that
Helms previously testified that Bentele had not recognized anyone at the lineup
because he had interpreted the questions to ask whether Bentele had made a positive
identification and Helms did not believe he had.


      3
       Almendares also suggests that his due process rights were violated even if
there were no Brady violation, citing United States v. Gonzales, 90 F.3d 1363, 1369
n.3 (8th Cir. 1996), and Nassar v. Sissel, 792 F.2d 119, 122 (8th Cir. 1986). Due
process is generally satisfied if evidence is disclosed in time for the defense to take
advantage of it, Nassar, 792 F.2d at 121, and that was the case here.

                                           -15-
      To establish a Brady violation, a defendant must show that the government
suppressed exculpatory evidence that 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.'" Kyles v.
Whitley, 514 U.S. 419, 433-34 (1995) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985) (opinion of Blackmun, J.)). The critical question, however, is
whether the defendant received a trial resulting in a verdict worthy of confidence.
Kyles, 514 U.S. at 434. We review the district court's denial of a new trial motion
based on a Brady claim for abuse of discretion. United States v. Gary, 341 F.3d 829,
832 (8th Cir. 2003).

        We do not approve of any government agent avoiding a forthright disclosure
of relevant information. Even if Agent Helms interpreted Bentele's identification at
the lineup to be tentative or unsure, it should have been disclosed. Failure to disclose
such information could lead to a reversal and remand for a new trial if it seriously
affected the defendants' rights. Bagley, 473 U.S. at 675-76. Although a defendant's
Brady rights are violated if he discovers information after trial "which had been
known to the prosecution but unknown to the defense," Nassar v. Sissel, 792 F.2d
119, 121 (8th Cir. 1986), the same is not true if the evidence is discovered during
trial. United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996). Under the rule
in our circuit Brady does not require pretrial disclosure, and due process is satisfied
if the information is furnished before it is too late for the defendant to use it at trial.
Nassar, 792 F.2d at 121.

       Here, Almendares was able to use the information at trial, the jury was aware
that Bentele had identified Holvin, defense counsel chose not to recall Bentele to the
stand, and Helms was crossexamined regarding Bentele's identification and his own
testimony. Pictures of Holvin and his need for money were introduced into evidence,
and defense counsel argued in closing that Bentele's identification of Holvin created

                                           -16-
a reasonable doubt as to Jose’s guilt. The prosecutor was not involved in suppressing
the evidence, and it was disclosed in time to be used effectively at trial.

        There was also strong evidence pointing to Jose’s guilt. He met the description
of the robber, and his missing finger was consistent with the bank surveillance picture
showing the robber's gloved left hand. Officers found bait bills in Jose's room, he
used bait money to pay a mechanic, he was seen by a bank employee wearing a
stocking cap in the car on the morning of the robbery, and a stocking cap was later
seen in the trunk of the car he had driven. His coworkers testified about his unusual
behavior that day, the presence of a ski mask near him at work, and his expressed
need for money. The DNA evidence indicated that Jose had committed a similar
morning robbery seven months earlier, where a gun had also been pressed against the
victim and used to direct activity, the proceeds had been gathered in a plastic bag, and
the robber spoke no English. We conclude that the result of the trial would not have
been different if Bentele's identification had been disclosed earlier, Kyles, 514 U.S.
at 433-34, and that the district court did not abuse its discretion in denying the motion
for a new trial.

                                          III.

       The district court did not clearly err in finding that the officer reasonably
believed that Almendares had consented to the DNA search, and it did not abuse its
discretion in admitting evidence of the Video Lupita robbery. The district court also
did not abuse its discretion by denying the motion for a new trial because Almendares
was able to use the Bentele identification evidence at trial and there was other strong
evidence pointing to his guilt. We therefore affirm the judgment.
                         ______________________________




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