                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 07-14633         ELEVENTH CIRCUIT
                                                      APRIL 2, 2010
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                         CLERK

                D. C. Docket No. 06-00067-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ROBERT EARL WINSTON,
a.k.a. Pumpkin,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (April 2, 2010)


Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Robert Earl Winston appeals his convictions for (1) aiding and abetting

another who murdered Haines City Police Officer Chistopher Todd Horner with

the intent to prevent Officer Horner from communicating to law enforcement or a

judge information related to the commission of a federal offense, in violation of 18

U.S.C. §§ 1512(a)(1)(C) and (a)(3)(A), 1111, and 2; and (2) aiding and abetting

another who knowingly used and carried a firearm during and in relation to a crime

of violence, and, in the course thereof, murdered Officer Horner, in violation of 18

U.S.C. §§ 924(c)(1)(A) and (j)(1), 1111, and 2. Winston raises two arguments on

appeal, which we address in turn.

                                          I.

      Winston first contends the Government violated Brady v. Maryland, 83 S.

Ct. 1194 (1963), when it failed to disclose a tacit agreement in which the

Government agreed to seek a reduction to a witness’s sentence in exchange for his

testimony. We review de novo a district court’s conclusion that there was no

Brady violation. United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir.1996).

      Under Brady, “the prosecution is required to disclose to the defense

evidence favorable to the accused if the evidence is material to guilt or

punishment.” United States v. Starrett, 55 F.3d 1525, 1555 (11th Cir. 1995). “The

United States Supreme Court has held that ‘[i]mpeachment evidence, . . . as well as



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exculpatory evidence, falls within the Brady rule.’” Starrett, 55 F.3d at 1555

(alteration in original) (quoting United States v. Bagley, 105 S. Ct. 3375, 3380,

(1985)). Thus, “[t]he government has a duty to disclose evidence of any

understanding or agreement as to prosecution of a key government witness.”

Brown v. Wainwright, 785 F.2d 1457, 1464 (11th Cir. 1986). The reason for such

disclosure is “to ensure that the jury knows the facts that might motivate a witness

in giving testimony.” Id. at 1465 (quotation omitted).

      Winston has failed to demonstrate the existence of an agreement, tacit or

otherwise, between the Government and its witness that was not disclosed to the

jury before or during Winston’s trial. Although the witness ultimately received

favorable treatment from the Government, “it is not the case that, if the

government chooses to provide assistance to a witness following a trial, a court

must necessarily infer a preexisting deal subject to disclosure under Brady.” Bell

v. Bell, 512 F.3d 223, 234 (6th Cir. 2008). Because Winston has failed to show the

Government suppressed an agreement with the witness, he cannot establish a

Brady violation.

                                         II.

      Winston next asserts the district court erred by allowing a medical examiner

to testify based on the forensic reports of another examiner in violation of the Sixth



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Amendment and the Supreme Court’s intervening decision in Melendez-Diaz v.

Massachusetts, 129 S. Ct. 2527 (2009). When the defendant fails to object to an

alleged violation of the Confrontation Clause at trial, we review the alleged

violation only for plain error. United States v. Brazel, 102 F.3d 1120, 1141 (11th

Cir. 1997). We review for plain error even when the “error arises only because of

a later Supreme Court decision.” United States v. Fern, 155 F.3d 1318, 1327 (11th

Cir. 1998). In order for an error to be plain, it must be “clear under current law,”

United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (quotation

omitted), though “it is enough that an error be ‘plain’ at the time of appellate

consideration.” Johnson v. United States, 117 S. Ct. 1544, 1549 (1997). “[W]here

neither the Supreme Court nor this Court has ever resolved an issue, and other

circuits are split on it, there can be no plain error in regard to that issue.”

Aguillard, 217 F.3d at 1321.

       The Confrontation Clause of the Sixth Amendment provides a defendant in a

criminal trial with the right to confront and cross-examine the witnesses against

him. U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court held

that a defendant’s Sixth Amendment right of confrontation is violated by the

admission of testimonial statements of a witness who was not subject to

cross-examination at trial, unless the witness was unavailable to testify and the



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defendant had a prior opportunity for cross-examination. 124 S. Ct. 1354, 1374,

(2004). While Winston’s appeal was pending, the Supreme Court held in

Melendez-Diaz that reports admitted at trial regarding the results of certain forensic

analyses constituted testimonial statements. 129 S. Ct. at 2531–32. The Court

concluded the Confrontation Clause applied because the forensic reports were

made under oath for the purpose of establishing a fact and “under circumstances

which would lead an objective witness reasonably to believe that [they] would be

available for use at a later trial.” Id. (quoting Crawford, 124 S. Ct. at 1354).

      Although Melendez-Diaz discusses when a forensic opinion may be admitted

into evidence, neither it nor any opinion of this Court addresses whether an expert

witness’s testimony that is based on a forensic opinion prepared by a non-testifying

expert, in addition to other evidence, violates a defendant’s right to confrontation.

We have held that, pursuant to Federal Rule of Evidence 703, an expert witness

may base his testimony on inadmissible information so long as such information is

“regularly relied upon by experts in his field.” See United States v. Steed, 548 F.3d

961, 975 (11th Cir. 2008). As the Seventh Circuit stated in United States v.

Turner, 591 F.3d 928, 934 (7th Cir. 2010), “Melendez-Diaz did not do away with

Federal Rule of Evidence 703.”




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      The Supreme Court’s decision in Melendez-Diaz did not address the facts

that may form the basis of expert testimony, and therefore that decision neither

controls the instant case nor demonstrates plain error.

                                          III.

      The district court did not err by finding Winston failed to establish a Brady

violation when he identified no evidence of an agreement between the Government

and its witness that was not disclosed to the jury. Further, the district court did not

plainly err by admitting the testimony of an expert witness who relied in part on

another expert’s forensic report. Accordingly, we affirm Winston’s conviction.

      AFFIRMED.




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