     Case: 12-30423       Document: 00512205755         Page: 1     Date Filed: 04/11/2013




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                       No. 12-30423
                                                                             FILED
                                                                            April 11, 2013

                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                  Plaintiff–Appellee,

v.

RONALD MITCHELL,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-284-1


Before JOLLY, GARZA, and OWEN, Circuit Judges.
PER CURIAM:*
       Ronald Mitchell (Mitchell) appeals his convictions for perjury and
obstruction of justice. We affirm.
       In the days following Hurricane Katrina, Mitchell, then an officer of the
New Orleans Police Department, was patrolling with another officer when
Danny Ray Brumfield (Brumfield) made an effort to flag down the police car.
During the ensuing confrontation, Mitchell shot and killed Brumfield. The
Brumfield family subsequently filed a wrongful-death lawsuit and deposed



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
     Case: 12-30423         Document: 00512205755         Page: 2    Date Filed: 04/11/2013



                                        No. 12-30423

Mitchell, who made several statements that were contradicted by other evidence,
including that he exited the car to check Brumfield’s pulse after the shooting.
       A grand jury indicted Mitchell on two counts of obstruction of an official
proceeding in violation of 18 U.S.C. § 1512(c)(2) and two counts of perjury in
violation of 18 U.S.C. § 1621. After a jury trial, the jury returned a verdict of
guilty on one count of obstruction and one of perjury, both stemming from
Mitchell’s statement that he exited the car. The district court denied Mitchell’s
motions for a judgment of acquittal and for a new trial. This appeal followed.
       Mitchell first contends that the district court erred under Brady v.
Maryland1 when it denied him a new trial or a continuance after the
Government disclosed exculpatory material five days before trial. When the
Government makes a late disclosure of Brady material, “the inquiry is whether
the defendant was prejudiced.”2 There is no prejudice if the defendant was able
“to put [the material] to effective use at trial.”3 Here, Mitchell had five days to
prepare, used the Brady material during cross-examination, and was acquitted
of the counts related to that material. Because Mitchell effectively used the
material at trial,4 he was not prejudiced, and the district court did not err in
denying the motion for a new trial. For the same reasons, the district court did
not abuse its discretion in denying Mitchell’s motion for a continuance.5



       1
        373 U.S. 83 (1963); see also Brady, 373 U.S. at 87 (“[T]he suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or punishment . . . .”).
       2
           United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985).
       3
           Id. at 1050.
       4
        See, e.g., United States v. O’Keefe, 128 F.3d 885, 898-99 (5th Cir. 1997); McKinney, 758
F.2d at 1050-51.
       5
       United States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007); see also United States v.
Hughey, 147 F.3d 423, 431-32 (5th Cir. 1998).

                                               2
     Case: 12-30423            Document: 00512205755             Page: 3   Date Filed: 04/11/2013



                                              No. 12-30423

         Likewise, there is no merit to Mitchell’s argument that the evidence was
insufficient for the jury to find his statement either false or material. Evidence
is sufficient if “when reviewed in the light most favorable to the government with
all reasonable inferences and credibility choices made in support of a conviction,
[it] allows a rational fact finder to find every element of the offense beyond a
reasonable doubt.”6            As to falsity, five Government witnesses agreed that
Mitchell did not exit the car, and the Government offered evidence
demonstrating that Mitchell’s own story was inconsistent. As to materiality, the
civil complaint requested punitive damages and alleged that Mitchell committed
willful misconduct. Thus, the statement was relevant to whether Mitchell acted
in bad faith, and it could have influenced a punitive damages award.7
         We reject Mitchell’s argument that his convictions were multiplicitous;
they were not, as “each charge requires proof of an element that the other does
not.”8 Finally, Mitchell has waived any argument that the district court erred
in denying his motion for a mistrial because he cites no authority in support of
this contention.9
                                          *        *         *
         For the foregoing reasons, we AFFIRM the judgment of the district court.


         6
        United States v. Asibor, 109 F.3d 1023, 1030 (5th Cir. 1997); see also United States v.
Grant, 683 F.3d 639, 642 (5th Cir. 2012).
         7
         United States v. Salinas, 923 F.2d 339, 340-41 (5th Cir. 1991); see also Sockwell v.
Phelps, 20 F.3d 187, 192 (5th Cir. 1994) (“Under § 1983, punitive damages may be awarded
only if the official conduct is ‘motivated by evil intent’ or demonstrates ‘reckless or callous
indifference’ . . . .” (quoting Smith v. Wade, 461 U.S. 30 (1983))).
         8
         United States v. Spurlin, 664 F.3d 954, 965 (5th Cir. 2011) (citing United States v.
Nguyen, 28 F.3d 477, 482 (5th Cir. 1994)), cert. denied, 133 S. Ct. 104 (2012). Compare 18
U.S.C. § 1512(c)(2), with id. § 1621, and United States v. Forrest, 623 F.2d 1107, 1110 (5th Cir.
1980).
         9
             FED. R. APP. P. 28(a)(9)(A); United States v. Stalnaker, 571 F.3d 428, 439-40 (5th Cir.
2009).

                                                   3
