                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 12-2887
                                    ___________

                          UNITED STATES OF AMERICA

                                         v.

                                BRANDON PIPER,
                                              Appellant
                             _______________________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        D.C. Criminal No. 1-09-cr-00218-001
                             (Honorable Joel H. Slomsky)
                                  ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 8, 2013

              Before: SCIRICA, JORDAN, and ROTH, Circuit Judges.

                                (Filed: May 24, 2013)

                                _________________

                             OPINION OF THE COURT
                                _________________

SCIRICA, Circuit Judge.

                                              I.

      Defendant Brandon Piper, then 19 years old, pooled his money with 16-year-old

E.B. and gave it to Amber Barger to purchase heroin on August 18, 2009. Defendant
drove E.B. and Barger to purchase the drugs, and drove them to Barger‟s apartment

where she injected E.B. with heroin. E.B. overdosed on the drugs and lost consciousness.

Defendant, unsure what to do, drove to various locations for several hours attempting to

revive E.B. with water and smelling salts before taking E.B. to the emergency room.

E.B. was not breathing when he was admitted, and died a few hours later.

       Six days into trial, after the prosecution rested, defendant pleaded guilty to aiding

and abetting distribution of heroin.1 The principal to the crime, Amber Barger, was not

prosecuted in federal court, and was granted immunity for her testimony against

defendant.2 In her immunity agreement with the government, Barger agreed not to

challenge the state court charges pending against her in the Cumberland County Court of

Common Pleas. Barger applied for the accelerated rehabilitative disposition (ARD)

program on May 17, 2010, which appeared on the public state court docket. Defense

counsel told the District Court he had a copy of the state court docket by August, 2011.

Defendant‟s trial commenced October 31, 2011, and defendant pleaded guilty on

November 8, 2011. Amber Barger testified at defendant‟s trial. She was cross-examined

about her federal immunity agreement and the leniency she expected in state court as a

result of her cooperation. Defense counsel did not question Barger about her ARD

application.



1
  Prior to trial defendant plead guilty to separate counts for distribution of heroin and
distribution of marijuana, unrelated to the August 18 incident.
2
  The District Court was concerned the accomplice in this case was being prosecuted
rather than the principal. But, the government explained to the court at the August 5,
2011 hearing they could not successfully prosecute Barger because the only evidence
                                              2
       Barger‟s state court docket was updated on February 16, 2012, showing her ARD

application was still pending. On February 29, 2012, defendant filed a Motion for

Discovery in Aid of Motion to Dismiss Based on Prosecutorial Misconduct and/or

Motion to Withdraw Plea of Guilty. In this motion, defendant‟s counsel contended he

tailored his trial strategy, cross-examination of Barger, and presentation to the jury based

on the government‟s representations she was going to plead guilty to the charges against

her in state court. At a discovery hearing on August 5, the government told the District

Court and defendant that it believed Amber Barger was going to plead guilty to the state

court charges, because Barger‟s attorney told the government she was going to plead

guilty. Motion Hr‟g Tr. 46:3-7, Aug 5, 2011. Defense counsel noted that Barger might

never have to plead guilty, to which the court responded, “Well, that‟s all a matter of

cross-examin[ation].” Id. at 48:7-20. In response to defendant‟s February 29 motions,

the government asserted it had no information regarding Barger‟s ARD application, as

admission to the program is entirely within the discretion of the district attorney.3 Barger

was accepted into the ARD program on May 23, 2012.

                                                 II.4

                                                 A.


linking her to the heroine injection was her own statement, which was proffer protected.
App. Motion Hr‟g Tr. 42:2-21, Aug. 5, 2011.
3
  Commonwealth v. Lutz, 495 A.2d 928, 931 (Pa. 1985) (explaining Pa. R. Crim. P. 175-
85).
4
  We review the district court‟s legal conclusions de novo, and review findings of fact for
clear error. United States v. Pellulo, 14 F.3d 881, 886 (3d Cir. 1994). The District Court
exercised jurisdiction over this case under U.S.C. § 3231. This Court has jurisdiction
under 18 U.S.C. § 3731. United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006).
                                             3
       In Brady v. Maryland, the Supreme Court held “the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment. . . .” 373 U.S. 83, 87 (1963). “[T]he evidence

at issue must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-

82 (1999). The prosecution has constructive possession of evidence that must be

disclosed when the evidence is known to a party acting on the government‟s behalf or its

control, where the prosecution and the agency were part of a team or engaged in a joint

effort, or where the prosecution had ready access to the evidence. United States v. Risha,

445 F.3d 298, 304 (3d Cir. 2006). The District Court found there was no suppression of

evidence because it found no evidence the government could have known at the time of

trial Barger would later be accepted into ARD.

                                                  1.

       The duty to disclose includes impeachment evidence. United States v. Bagley, 473

U.S. 667, 676 (1985). In Banks v. Dretke, the government withheld that its key witness,

the defendant‟s co-conspirator, was a paid government informant. 540 U.S. 668, 691

(2004) (finding the witness‟s “paid informant status[] qualifies as evidence advantageous

to” the defendant). The witness‟s status was impeachment evidence because it showed

the witness had a motivation to testify, and might have caused the jury to distrust the

witness‟s uncorroborated testimony. Id. at 701.



                                              4
       Evidence that the government‟s key witness could avoid incarceration through ARD

is indisputably favorable to the defense. But that is not the evidence defendant contends

was withheld in this case. The evidence allegedly suppressed was the fact Barger was

going to be accepted into the ARD program. But there is no indication the Cumberland

County DA had decided he was going to grant Barger‟s ARD application at the time of

trial or that the government could have known about that decision. The possibility of ARD

was known to defendant months before trial and appeared on the public state court docket.

As the District Court explained, defendant could have cross-examined Barger on her ARD

application and introduced the state court docket as support.

       Defendant did question Barger about her state court prosecution, and she testified

she did not know whether she was going to jail, but believed the state would consider her

cooperation in the federal case. Defendant has not accused Barger of perjury, and there is

no suggestion Barger knew she was going to be accepted into ARD at that time. The

allegedly suppressed evidence would have at most been cumulative of the favorable state

court treatment the witness was questioned on at trial.

                                                  2.

       Suppressed “evidence 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.‟” Strickler, 527 U.S. at 280 (quoting Bagley, 473 U.S. at 682). “[T]he omission

must be evaluated in the context of the entire record,” and “if the omitted evidence creates

a reasonable doubt that did not otherwise exist, constitutional error has been committed.”

United States v. Agurs, 427 U.S. 97, 112 (1976). “[M]ateriality does not require

                                              5
demonstration by a preponderance that disclosure of the suppressed evidence would have

resulted ultimately in the defendant‟s acquittal. . . .” Kyles v. Whitley, 514 U.S. 419, 434

(1995). Instead, “the question is whether „the favorable evidence could reasonably be

taken to put the whole case in such a different light as to undermine confidence in the

verdict.‟” Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435).

       In Kyles the Court found a witness‟s prior description of the killer was material

because “the value of two of [the state‟s key] witnesses would have been substantially

reduced or destroyed.” Kyles, 514 U.S. at 441 (noting the witness “would have had

trouble explaining how he could have described [the defendant], 6–feet tall and thin, as a

man more than half a foot shorter with a medium build”). The Court concluded

“„fairness‟ cannot be stretched to the point of calling this a fair trial.” Id. at 454. Where

the only witness linking the defendant to the crime falsely testified about an immunity

agreement the government failed to disclose, the suppressed evidence was material.

Giglio v. United States, 405 U.S. 150, 154-55 (1972). The Court found the witness‟s

credibility was “an important issue in the case, and evidence of any understanding or

agreement as to a future prosecution would be relevant to his credibility and the jury was

entitled to know of it.” Id. at 155.

       Evidence of the victim‟s criminal record was not material in Agurs, even though it

supported defendant‟s argument the victim had violent propensities and she acted in self

defense. 427 U.S. at 114. The Court found that the victim‟s “prior record did not

contradict any evidence offered by the prosecutor, and was largely cumulative of the

evidence” showing “he was a violence-prone person.” Id. at 100, 114. “[S]ince after

                                              6
considering it in the context of the entire record” the evidence did not cast doubt on the

verdict, “the prosecutor‟s failure to tender Sewell‟s record to the defense did not deprive

respondent of a fair trial.” Id.

       Here, defendant‟s counsel questioned Barger on both her federal immunity and

state court prosecution to impeach her testimony. Unlike the witness in Giglio, Barger

truthfully testified about her immunity. Barger told the jury she expected to receive more

favorable treatment in state court based on her testimony, and said she did not know

whether she was going to go to jail. The possibility of ARD was part of the favorable

treatment and was cumulative, just as the victim‟s criminal background was cumulative

of the other evidence showing his violent propensities in Agurs. Defendant has not

shown this evidence would probably have changed the outcome. Unlike the witness‟s

contradictory statements in Kyles, the possibility of being accepted into ARD would not

have “substantially reduced or destroyed” Barger‟s credibility. 514 U.S. at 441. Barger

was already impeached for her motivation in testifying, including her expectation that her

cooperation would lead to a reduced state court penalty. Moreover, defendant knew

Barger had applied for ARD and chose to not question her about it. Accordingly, the

ARD evidence does not “put the whole case in such a different light” to show a

“reasonable probability of a different result.”5 Strickler, 527 U.S. at 290-91.


5
  The result here is a guilty plea. Presuming defendant can withdraw a guilty plea based
on a Brady violation, defendant has failed to show misconduct by state agents. See Brady
v. United States, 397 U.S. 742, 757 (1970) (“A defendant is not entitled to withdraw his
plea merely because he discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State‟s case . . . . absent misrepresentation or other
impermissible conduct by state agents. . . .”). Furthermore, defendant has failed to show
                                             7
                                                    B.

        “A defendant shall be given credit toward the service of a term of imprisonment

for any time he has spent in official detention prior to the date the sentence

commences. . . .” 18 U.S.C. § 3585(b). The Supreme Court held “ a defendant suffers

„detention‟ only when committed to the custody of the Attorney General; a defendant

admitted to bail on restrictive conditions, as respondent was, is „released.‟” Reno v.

Koray, 515 U.S. 50, 57 (1995). In Koray the defendant was required to be confined in a

community treatment center as a condition of bail. Id. at 53. The Court found this

confinement could not be credited for time served because “credit for time spent in

„official detention‟ under § 3585(b) is available only to those defendants who were

detained in a „penal or correctional facility. . . .‟” Id. at 58.6

       Defendant was confined to home detention and required to submit to drug tests as

condition of his bail. Although he was confined at home, he was not detained in a penal

or correctional facility. Indeed, he was not detained in any facility, unlike the defendant

in Koray who was confined to a treatment center. Since defendant was not subject to

official detention prior to sentencing, his home detention as a condition of bail cannot be

credited as time served.




the alleged misconduct induced his decision to plead guilty. Id. at 755; see also Ferrara
v. United States, 456 F.3d 278, 291 (1st Cir. 2006) (explaining a defendant must show the
misconduct was material to his choice to plead guilty).
6
  To the extent defendant argues he was entitled to more notice that his home
confinement would not be credited as time served, he cites no case law to support that
proposition, and, in fact, the opposite appears to be true. See Cucciniello v. Keller, 137
F.3d 721, 725 (2d Cir. 1998) (“[T]here is no constitutional requirement that [defendant]
                                                8
                                               III.

      For the foregoing reasons, the District Court order denying defendant‟s motion to

withdraw plea of guilty and motion for discovery in aid of motion to dismiss based on

prosecutorial misconduct is affirmed.




had to be notified that home confinement would not be credited against a subsequent
sentence . . . .”).
                                           9
