                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
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                                  No. 03-1166
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United States of America,               *
                                        *
            Appellee,                   *
                                        *      Appeal from the United States
      v.                                *      District Court for the
                                        *      District of North Dakota.
Twyla Esther Brown, also known          *
as Twyla Demarce,                       *
                                        *
            Appellant.

                               ________________

                               Submitted: October 22, 2003
                                   Filed: March 11, 2004
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Before BYE, HANSEN, and MELLOY, Circuit Judges.
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HANSEN, Circuit Judge.

      Twyla Brown, who was convicted of assaulting her foster child, K.D., appeals
her conviction, arguing that there was insufficient evidence to support the jury’s
verdict and that the government violated her due process rights by withholding
medical records. We affirm the judgment of the district court.1



      1
       The Honorable Rodney S. Webb, United States District Judge for the District
of North Dakota.
                               I. Facts and Background

       Brown is member of the Spirit Lake Nation and resides on its reservation in
Fort Totten, North Dakota. In September 2001, Brown became foster parent to K.D.,
a fourteen-month-old boy. On October 11, 2001, K.D. suffered serious brain injuries
as a result of shaken baby syndrome.2 Brown was ultimately charged with assaulting
K.D., in violation of 18 U.S.C. §§ 113(a)(6) and 1153 (2000).

       On the morning of October 11, 2001, Brown had an appointment at a clinic in
Devils Lake, North Dakota, to have her blood drawn. Her sister, Larina Bugg, picked
her up from her home at about 9 A.M. and drove Brown, Brown's three-year-old son,
and K.D. to the clinic. Bugg, the three-year-old, and K.D. remained in the car while
Brown went inside the clinic. Once inside, Brown saw her nephew, Stephen Brown.
When Stephen learned that Bugg was outside in her van with K.D., Stephen went
outside to the van. Stephen held and played with K.D. until Twyla Brown came back
out of the clinic. Stephen testified at trial that K.D. did not cry or fuss while Stephen
was in the van. Bugg and Brown then returned to the reservation. Bugg testified that
when they were about ten minutes away from Brown's home on the reservation, K.D.
began to cry and cried for the rest of the ride.

       Brown returned to her house between 10:30 and 10:45 A.M. At about 11:05
A.M., Brown claims that she noticed that something was wrong with K.D. She called
out to him and shook him, but he was unresponsive. Brown went to a neighbor's
house to call an ambulance. The ambulance arrived at about 11:10 A.M.




      2
        Shaken baby syndrome is a traumatic brain injury suffered by infants as a
result of severe shaking. Brown stipulated at the beginning of the trial that the injury
K.D. suffered was a result of shaken baby syndrome. (Trial Tr. Vol. I at 7.)
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       At trial, the government argued that the injury had occurred immediately or
shortly before Brown called the ambulance. The time frame is significant because
only Brown had control over the infant between the time that Bugg dropped Brown
off at Brown's home and the time that Brown called the ambulance. Brown's theory
was that the injury could have happened in the days or hours before she found K.D.
unresponsive and limp, and during that wider time frame, other people, including
Bugg, Stephen Brown, and Bugg's son, Terrence Bugg, had control over K.D.

      Vince Compeau, the responding paramedic, testified at trial that K.D. was
unconscious and was not breathing when he arrived at Brown's door. When Compeau
spoke with Brown, she told him that K.D. had been fine all morning and had been
eating in his high chair when she found him slumped over and unresponsive. He
further testified at trial that K.D. regained consciousness shortly before arriving at the
emergency room at Mercy Hospital in Devils Lake, North Dakota.

        When K.D. arrived at Mercy Hospital, he was intubated, and computer
augmented tomography scans ("CT scans") were taken. Several doctors examined
K.D. Dr. Anthony Rayer, an emergency room doctor at Mercy Hospital, testified at
trial that when K.D. arrived at the hospital at about 11:30 A.M., K.D. remained
unresponsive and comatose, or almost comatose. Dr. Rayer testified that K.D.'s
neurological exam was not normal, and he made arrangements to transfer K.D. to a
facility in Fargo that was better equipped to deal with the type of trauma that K.D.
exhibited. Dr. Rayer also testified that when he spoke to Twyla Brown, she told him
that K.D. had been fine that morning. She told Dr. Rayer that she had left her home
in order to make a phone call, and on her return, she had found K.D. unresponsive.
(Trial Tr. Vol. II at 160.)

      K.D. was transported to MeritCare Hospital in Fargo, North Dakota, where he
underwent surgery and additional CT scans were taken. Dr. Ron Miller, a
pediatrician who treated K.D. at MeritCare, testified at trial that K.D. had suffered a

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combination of injuries: subdural hematoma, massive cerebral edema, subarachnoid
bleeding, and diffuse axonal injury. Dr. Miller testified that it would have been
impossible for K.D. to have behaved normally after suffering such injuries. He
testified that the diffuse axonal injury, especially, would have been immediately
symptomatic, such that those interacting with K.D. would have immediately known
that something out of the ordinary was wrong. Dr. Miller also testified that, after
incurring such injuries, K.D. would not have been able to sleep, play, eat, cry, or
throw a tantrum like a normal, fourteen-month-old toddler. Thus, Dr. Miller opined
that K.D. had incurred the injuries after the last time that he was reported to have
been behaving normally, and likely shortly before the ambulance was called. (Trial
Tr. Vol. II at 129-31.)

       Dr. Wilbur Smith, the government's expert testified to the same combination
of injuries that Dr. Miller recounted. (Trial Tr. Vol. III at 95-97.) He further testified
that, considering the several injuries, K.D. would not have behaved normally on the
morning of October 11 if he had already incurred such injuries. Finally, Dr. Smith
also testified that the diffuse axonal injury would have been immediately
symptomatic, which means that the injury must have occurred shortly before K.D.
was found unresponsive and comatose.

       During the investigation following K.D.'s injury, Brown was questioned
numerous times about the events of October 11. Brown gave several statements to
Federal Bureau of Investigation agent Michael Wilson, and her statements about the
minutes preceding K.D.'s injury varied. In her first statement to Wilson on October
11, Brown stated that Bugg had reported that K.D. had thrown a fit while Brown was
inside the clinic, and that K.D. was crying when they left the clinic in Devil's Lake.
Brown said that when she got home, she placed K.D. on the couch, and shortly
thereafter she went to a neighbor's house to make a call about her septic system. She
also told Wilson that K.D. was crying when she left, but when she returned, he was
quiet, his eyes were open, and he was shaking. Then he went limp. She said that she

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shook him gently to try to wake him up, but he was unresponsive. She then allegedly
went back to her neighbor's to call for help. (Trial Tr. Vol. II at 194-97.)

       When Wilson interviewed Brown a second time on November 29, 2001, Brown
said that K.D. had behaved normally and did not cry on the way home from the clinic
on October 11. This time she said that K.D. was fine when she went to a neighbor's
house to use the phone (not crying, as he was in her earlier statement), and when she
returned to her home, K.D. was on the couch playing and still doing fine (not shaking,
as in her earlier statement). She said that she returned to cooking, but when she went
back to look at him, K.D. was shaking. (Trial Tr. Vol. II at 203-06.) Brown signed
and initialed this statement.

       When Wilson took a statement from Brown on July 1, 2002, she again said that
K.D. was happy and healthy on the morning of October 11, 2001. This time she also
told Wilson that when she walked out of the clinic and got in the van, K.D. was fine.
He did not cry and was awake. She said that K.D. also behaved normally and did not
cry on the way home. In this version of the story, however, Brown said that she
immediately observed K.D. shaking and not responsive when she returned from her
neighbor's house. She shook him softly, but he did not respond. In this version of
the events, when Brown went to call an ambulance,. K.D. was still shaking, not limp
as she had told Wilson on October 11, 2001. (Trial Tr. Vol. II at 216-19.) Brown
also signed and initialed this statement.

      Brown was charged in June 2002, a jury convicted her in early October 2002,
and she now brings the present appeal.

                          II. Insufficient Evidence Claim

      Brown argues that insufficient evidence supported her conviction because the
evidence presented by the government did not establish proof beyond a reasonable

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doubt that she injured K.D. We review the sufficiency of the evidence issues de
novo, and "we view the facts in the light most favorable to the verdict and resolve
conflicts in favor of the verdict; we will sustain the verdict if, based on our review,
a reasonable jury could have found the defendant guilty of the charged conduct
beyond a reasonable doubt." United States v. Espinoza, 349 F.3d 525, 528-29 (8th
Cir. 2003). We disagree with Brown, and we hold that sufficient evidence supported
her conviction. "We think it self-evident from our recounting of the evidence
presented that there was more than enough evidence from which a reasonable jury
could have determined that [Brown] was guilty beyond a reasonable doubt." Id. at
529.

        Brown's theory was that there were others who had control over K.D., and who
could have inflicted the injuries. However, Larina Bugg, her fourteen-year old son
Terrence Bugg, and Stephen Brown all testified that they did not injure K.D. The jury
was free to believe their testimony and to find no merit in Brown’s assertion that one
of her relatives harmed the baby. The government also presented evidence of the
conflicting accounts given by Brown, and that evidence may well have affected her
credibility in the jury’s eyes. Furthermore, Dr. Miller and Dr. Smith testified that they
believed the injuries were inflicted shortly before the 911 call at 11:05 A.M. While
Brown's expert did testify that he did not think that it was reasonable to restrict the
onset of the injuries to a specific time frame, he nevertheless admitted that it was
possible that the injury occurred between 10:30 and 11:05, as the government argued.
(Trial. Tr. Vol. III at 58, 60.) The jury was free to credit each expert’s opinion
accordingly. After a careful review, we conclude that there was sufficient evidence
for the jury to find beyond a reasonable doubt that K.D. was injured shortly before the
paramedics were called to the scene, and that Brown was the only person who had
control over him at that time.




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                                III. Brady Violation.
      Brown argues that the government violated Brady v. Maryland, 373 U.S. 83
(1963), when it withheld from the defense certain CT scans taken at MeritCare
Hospital before K.D.'s operation. Brady holds that "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, irrespective of the
good faith or bad faith of the prosecution." Id. at 87. It appears doubtful that Brown
properly presented this argument to the district court, thus preserving it for appellate
review.3 However, assuming that Brown preserved her argument, we hold that
Brown has failed to set out a Brady violation.


      "To prove a Brady violation, a defendant must show that the prosecution
suppressed the evidence, the evidence was favorable to the accused, and the evidence
was material to the issue of guilt or punishment." United States v. Duke, 50 F.3d 571,


      3
        Brown made a motion for a new trial based on Federal Rule of Criminal
Procedure 33 but did not make a Brady allegation in that motion. In fact, the only
thing that Brown says about a missing CT scan in that motion is that "Defendant's
[sic] also argues that the missing CT scans may have been necessary to providing
proper medical examination of the case at bar. Furthermore the CT scan's [sic] that
were made available were only done so after the trial had begun." (Dist. Ct. R. at
118.) From those lines, the district court was apparently to infer that there were
additional CT scans that were not made available to the defense. The inferred
allegation was not likely sufficient to submit a Brady claim to the district court. See
United States v. Keltner, 147 F.3d 662, 673 (8th Cir.) ("[The defendant] did not state
the issue as being whether the government violated the principles set forth in Brady.
Defendants failed to obtain a ruling on this issue by the District Court. The Brady
issue has not been preserved for appellate review.") (internal citation omitted), cert.
denied, 525 U.S. 1032 (1998).




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577 (8th Cir.), cert. denied, 516 U.S. 885 (1995). "Evidence is 'material' for the
purpose of the rule in Brady 'only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceedings would have been
different.'" Id. (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In this
case, Brown does not allege the facts necessary to prove a Brady violation.


       Brown does not allege that any CT scan was suppressed by the prosecution or
that the government had in its possession a CT scan that was not turned over to the
defense. To the extent she complains about the late delivery of the CT scans from
Mercy, it is clear from the record that these scans were not in the possession or
control of the government before trial, and that the government turned them over to
the defense as soon as the government received them. Instead, Brown appears to
argue that there was another CT scan that may have helped her case. She does not
allege what this CT scan might have shown or even that it definitely exists. Brown's
belief does not establish that any such CT scan contained exculpatory or
impeachment evidence, see United States v. Wadlington, 233 F.3d 1067, 1076 (8th
Cir. 2000), cert. denied, 534 U.S. 1023 (2001), or, if any scan did exist, that it was
suppressed by the prosecution, see United States v. Van Brocklin, 115 F.3d 587, 595
(8th Cir. 1997), cert. denied, 523 U.S. 1122 (1998). Her speculation is not enough.
We have held that the "[m]ere speculation that materials may contain exculpatory
evidence is not . . . sufficient to sustain a Brady claim." Id. at 594.

       For the reasons stated, we affirm Brown's conviction and the judgment of
the district court.
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