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

                                                                            FILED
                                                                         January 31, 2008

                                       No. 07-40292                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

CARMEN CARLOS GARZA

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                  for the Southern District of Texas, Brownsville
                           USDC No. 1:06-CR-970-ALL


Before KING, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-appellant Carmen Carlos Garza appeals from a jury verdict
finding him guilty of assault on a federal officer. Garza argues that the district
court erred in denying: (1) his motion to dismiss for want of jurisdiction; (2) his
motion to suppress; and (3) his motion for new trial, based on an alleged Brady
violation. For the following reasons, we affirm the district court’s judgment.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-40292

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Defendant-appellant Garza was indicted on one count of forcibly
assaulting, resisting, opposing, impeding, intimidating, and interfering with
Joseph A. McGallicher, a law enforcement officer for the United States Fish and
Wildlife Service (“FWS”), while he was engaged in his official duties, in violation
of 18 U.S.C. § 111. On December 15, 2006, following a two-day trial, a jury found
Garza guilty of the offense charged, and he was sentenced to five months
confinement in a halfway house, five months home confinement, and a three
year term of supervised release, and ordered to pay a $3,000 fine and $100
special assessment fee.
      The events giving rise to Garza’s conviction center on an investigatory
traffic stop in Willacy County. On May 24, 2006, Garza was driving south on
Willacy County Road 30 (“CR 30”), an unpaved, narrow road with several deep
potholes, that runs through the Teniente Tract of the Lower Rio Grande Valley
(“El Teniente Refuge”), a federally owned national wildlife refuge. At the same
time, McGallicher was patrolling CR 30 with Charles Rhodes, also an officer for
FWS. When the officers, driving north, passed Garza’s truck, they noticed an
expired inspection sticker, and turned around to initiate a traffic stop.
      The precise actions of McGallicher and Garza during the traffic stop were
disputed at trial.     According to McGallicher’s and Rhodes’s testimony,
McGallicher walked up to the driver’s side window of Garza’s truck, identified
himself, and informed Garza that his inspection sticker was expired. He then
requested Garza’s driver’s license and proof of insurance. In response, Garza
stated, “You don’t have authority or jurisdiction to stop me, this is a county road.
I will not give you my driver’s license or insurance.” At that point, Garza placed
his truck into gear and started to pull away. McGallicher reasserted his
jurisdictional authority, ordered Garza to stop, and removed his pepper spray
from his holster, warning Garza that if he did not comply, he would be sprayed.


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                                  No. 07-40292

In response, Garza stopped the truck and yelled obscenities at the officer.
Rhodes testified that he tried to open the passenger side door, but it was locked.
While McGallicher was standing at the driver’s side window, Garza began to
accelerate the truck again, and McGallicher reached in the driver’s side window,
attempting to turn off the ignition. Garza grabbed McGallicher’s arm and
shouted, “Get out of my truck.” McGallicher ordered Garza to release him, at
which point Garza released McGallicher’s arm for a brief moment and then
grabbed his arm a second time. Throughout this exchange, Garza’s truck
continued to move forward. McGallicher was unable to free his arm from
Garza’s grip and had to sidestep along with the truck, to keep his balance and
prevent from being dragged down the road. Rhodes testified that, at that point,
he assessed the condition as a deadly force situation and unholstered his service
weapon. McGallicher then used his free arm to disperse pepper spray into
Garza’s eyes, which caused Garza to let go of McGallicher’s arm. McGallicher
was able to pull the keys from the ignition and stop the vehicle. Afterward,
McGallicher ordered Garza to exit, but he refused. McGallicher opened the
driver’s side door and observed Garza holding his face and shouting obscenities.
McGallicher again insisted that Garza exit his truck, and this time, Garza
complied and demanded the officers call the Willacy County Sheriff to their
location. While waiting for the sheriff’s department to respond, Rhodes assisted
Garza in washing his eyes out with water. In addition to McGallicher’s and
Rhodes’s testimony relaying the aforementioned events, the government
produced photographs showing the location where Garza was stopped, the tire
marks in the road made by the truck’s movements, and the distances between
those locations.
      Nonetheless, Garza testified to a different account of the investigatory stop
at trial. According to his testimony, Garza was pulled over by McGallicher and
informed of his truck’s expired inspection sticker. McGallicher asked Garza for


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                                 No. 07-40292

his driver’s license and proof of insurance, and Garza informed McGallicher that
he did not have his driver’s license because he was not carrying his wallet with
him. McGallicher made repeated requests for Garza’s license.         Garza told
McGallicher that the license was at his house, a little over a mile away, and
suggested that they both go to the house to retrieve it. McGallicher began to
move away from the driver’s door window and toward the rear of the truck.
Garza thought that McGallicher was going to follow him home to retrieve his
driver’s license, and he turned his face toward the back window of his vehicle to
look behind him. At that point, McGallicher pepper sprayed Garza. Thereafter,
Garza turned off his truck, exited it, and was subsequently assisted by Rhodes.
Garza insists that he neither touched nor dragged McGallicher, and that Rhodes
remained in the patrol car during the incident, only exiting after Garza was
pepper sprayed.
      Before trial commenced, Garza filed a motion to dismiss for want of
jurisdiction and a motion to suppress, arguing that because CR 30 did not
qualify as a “highway” under Texas law, McGallicher had no jurisdiction to stop
Garza and thus was not engaged in official FWS duties. After conducting an
evidentiary hearing, the district court denied both motions.
      After his conviction, Garza filed a motion for new trial, submitting that a
government report referred to during trial contained exculpatory and
impeaching information and was suppressed in violation of Brady. By order and
opinion on February 27, 2007, the district court denied Garza’s motion for new
trial. Thereafter, Garza filed a timely appeal.
                              II. DISCUSSION
      A. Motion to Dismiss For Want of Jurisdiction and Motion to Suppress
      We review the district court’s ruling on jurisdiction de novo. Bravo v.
Ashcroft, 241 F.3d 590, 591 (5th Cir. 2003). In reviewing a motion to suppress,
we view the evidence in the light most favorable to the prevailing party. United

                                       4
                                     No. 07-40292

States v. Bolden, 508 F.3d 204 (5th Cir. 2007) (citations omitted). Conclusions
of law are reviewed de novo and findings of fact for clear error. Id.
      Section 111(a)(1), the statute under which Garza was convicted, imposes
criminal liability upon one who assaults a federal employee “while engaged in
or on account of the performance of official duties.” 18 U.S.C. § 111(a)(1).
Congress’s purpose in enacting § 111(a)(1) was “to protect individual federal
officers by providing a federal offense triable in a federal forum to supplement
the state statutes for punishment of such attacks.” United States v. Kelley, 850
F.2d 212, 214 (5th Cir. 1988). Section 111(a)’s protection applies to “any officer
or employee of the United States or of any agency in any branch of the United
States Government (including any member of the uniformed services),” 18 U.S.C.
§ 1114, and, as such, includes FWS officers. The duties of a federal employee are
a question of federal law, but whether an assaulted federal employee is “engaged
in” official duties when he is assaulted, or whether the assault takes place “on
account of” these duties, are questions of fact properly submitted to the jury.
Kelley, 850 F.2d at 213.
      Garza argues that the district court erred in denying his motion to dismiss
for want of jurisdiction and his motion to suppress because McGallicher, as an
FWS officer, did not have federal jurisdiction to conduct the investigatory traffic
stop for an expired state inspection sticker on CR 30. Garza posits that CR 30
does not qualify as a “highway” as that term is defined in Texas Transportation
Code § 541.302(5) because the road is not publicly maintained by the county, and
there are no boundary lines.1 Therefore, Garza claims that because he never
violated the underlying state law, as he was not operating his vehicle on a
“highway” without a valid inspection sticker, see TEX. TRANSP. CODE ANN.


      1
        The Texas Transportation Code defines “highway or street” as “the width between the
boundary lines of a publicly maintained way any part of which is open to the public for
vehicular travel.” TEX. TRANSP. CODE ANN. § 541.302 (emphasis added).

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                                        No. 07-40292

§§ 542.001, 548.602, McGallicher’s actions in attempting to enforce said state
law could not have been within his scope of duty.
      The National Wildlife Refuge System is regulated under Title 50 of the
Code of Federal Regulations. Section 27.31 of that title governs FWS’s control
over vehicles traveling within a national wildlife refuge. See 50 C.F.R. § 27.31.
In particular, § 27.31(f) prohibits vehicles traveling on and through public use
lands that do not bear valid license plates and are not properly registered and
inspected in accordance with applicable state law.2 At the suppression hearing,
the government established through the uncontradicted testimony of Louis Jules
DuBois, Jr., a land surveyor for FWS, that the subject section of CR 30 running
through El Teniente Refuge is property owned by the federal government, and
that there are boundary signs within the refuge marking the property as United
States Fish and Wildlife property. In addition, Garza admitted to having an
expired state inspection sticker. Therefore, McGallicher had federal authority
and was acting within the scope of his duties when he stopped Garza’s truck, as
Garza was traveling on CR 30 through El Teniente Refuge, property owned by
the federal government, without a valid state inspection sticker. See § 27.31(f).




      2
          Section 27.31 provides:

               Travel in or use of any motorized or other vehicles . . . is
               prohibited on national wildlife refuges except on designated
               routes of travel, as indicated by the appropriate traffic control
               signs or signals . . . and subject to the following requirements and
               limitations:

               ....

               (f) The operation of a vehicle which does not bear valid license
               plates and is not properly certified, registered, or inspected in
               accordance with applicable State laws is prohibited.

      50 C.F.R. § 27.31(f).

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                                        No. 07-40292

       Garza’s argument is based on the mistaken assumption that McGallicher
was attempting to enforce a traffic law of the state made applicable to the
wildlife refuge area under 50 C.F.R. § 27.31(a). However, that provision only
applies when no other regulation covers the situation,3 which is not the case
here. Consequently, his jurisdictional argument must fail. Furthermore, as his
motion to suppress was predicated on the same jurisdictional theory, we need
not reach that issue. The district court properly denied both motions.
       B. Motion for New Trial Based on Brady Violation
       Garza argues that the district court erroneously denied his motion for a
new trial based on the alleged failure of the government to turn over exculpatory
and impeaching evidence as required by Brady v. Maryland, 373 U.S. 83 (1963).
While the standard of review for a motion for a new trial is typically abuse of
discretion, if the reason for the motion is an alleged Brady violation, then we
review the district court’s determination de novo. United States v. Martin, 431
F.3d 846, 850 (5th Cir. 2005).
      “We review Brady determinations using a three part test under which a
defendant must show that: (1) evidence was suppressed; (2) the suppressed
evidence was favorable to the defense; and (3) the suppressed evidence was
material to either guilt or punishment.” Id. (citations and internal quotation
omitted); see Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Favorable evidence
includes that which is exculpatory and that which could impeach a prosecution
witness. United States v. Bagley, 473 U.S. 667, 676–77 (1985). 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.”



       3
         Section 27.31(a) provides that “[u]nless specifically covered by the general and special
regulations set forth in this chapter, the laws and regulations of the State within whose exterior
boundaries a national wildlife refuge or portion thereof is located shall govern traffic and the
operation and use of vehicles.” 50 C.F.R. § 27.31(a) (emphasis added).

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                                   No. 07-40292

Kyles v. Whitley, 514 U.S. 419, 433 (1995) (citation and internal quotation
omitted). “A ‘reasonable probability of a different result’ is shown when the
suppression ‘undermines confidence in the outcome of the trial.’” Graves v.
Dretke, 442 F.3d 334, 340 (5th Cir. 2006) (quoting Kyles, 514 U.S. at 434). The
materiality test is not a test of the sufficiency of the evidence and harmless error
review does not apply. Id. (citing Kyles, 514 U.S. at 435). The final aspect of
materiality to be stressed “is its definition in terms of suppressed evidence
considered collectively, not item by item.” Kyles, 514 U.S. at 436.
        Garza claims that he was denied due process of law because the
government suppressed an investigation report written by McGallicher, which
contained Brady material. The report chronicled the events that form the basis
of the indictment and McGallicher’s actions following the incident. Specifically,
Garza contends that the following portions of the report contain material,
exculpatory and impeaching evidence:
            Charges:
            I called Assistant United States Attorney Terra Bay and
            informed her of the situation. I asked if I could arrest
            Garza on Federal Assault on a Federal Officer charges
            (18 USC 111) and she told me, “no.” She informed me
            that I could have Willacy County Sheriff’s Deputies
            arrest him for resisting detention or resisting arrest, but
            that would be up to them. She informed me that if they
            would not arrest, then I would have to write him tickets
            for violations and send him home.

            Based on AUSA Bay’s advice, I talked to Willacy County
            Chief Deputy D. Martinez and was informed by him that
            the County District Attorney would not take the case.

            ....

            On-Going Investigation:
            I contacted Assistant United States Attorney Terra Bay
            on May 25th and we spoke about the case. During the
            conversation, AUSA Bay informed me that she did not

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                                       No. 07-40292

              know that Garza had actually driven his truck
              approximately 45 feet while holding onto my arm. She
              informed me she was under the impression that I had
              stopped him before he began to drive away.

      First, Garza maintains that the Willacy County District Attorney’s denial
of prosecution is exculpatory evidence, and that had defense counsel been aware
of McGallicher’s report, he would have subpoenaed Willacy County sheriff’s
department personnel “to confirm that they had declined to prosecute [ ] Garza.”
Second, Garza argues that the report establishes that McGallicher relayed
inconsistent narratives of the incident to Bay, the prosecuting attorney, and thus
it is exculpatory and impeaching evidence. Garza’s counsel avers that had he
been furnished the report prior to the first day of trial, he would have “filed a
motion to disqualify [prosecutor] Bay because of her status as a fact witness who
heard prior inconsistent statements” made by McGallicher and “planned a
thorough attack upon McGallicher’s prior inconsistent statements about what
happened on May 24, 2006.”
      In the district court’s opinion and order denying the motion for new trial,
it determined that McGallicher’s report represented discretionary choices
whether to bring charges against Garza and did “not tend to establish [Garza’s]
innocence.”     Therefore, the district court found that the report was not
exculpatory. Also, the district court pointed out that because a close examination
of the report and McGallicher’s trial testimony revealed that the two were not
incompatible, any alleged inconsistency was neither exculpatory nor impeaching
evidence. The district court then proceeded to conclude that McGallicher’s report
was also immaterial, and that it had not been suppressed.4


       4
         The district court determined that, at best, the report would only give rise to the
inference that McGallicher’s initial account to Bay was incomplete or misunderstood. And,
since the report was disclosed to Garza on the day McGallicher testified at trial, the district
court found it had not been suppressed. See Lawrence v. Lensing, 42 F.3d 255, 257 (5th Cir.
1994) (holding that evidence having impeachment value was not suppressed within the

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                                      No. 07-40292

      Reviewing the district court’s determination de novo, we conclude that even
assuming (without deciding) that portions of McGallicher’s report were
suppressed and favorable to Garza, the district court’s denial of the motion for
new trial was appropriate because the alleged Brady evidence in the report was
not material to Garza’s guilt. As mentioned above, the report states that Bay
initially had a different understanding of the facts of the incident, and that
Willacy County authorities declined to prosecute Garza. Even if the report had
been used by Garza to develop an alternate strategy for cross-examining
McGallicher and had prompted him to question Bay and a Willacy County
official,5 the absence of the report does not undermine confidence in the jury’s
verdict. At best, the report may have called into question what McGallicher
initially told Bay. Nevertheless, we are not persuaded that the course of the trial
would have been altered had the report been disclosed, considering that:
(1)   Rhodes    presented     testimony      corroborating     McGallicher’s      account;
(2) photographs of the incident site consistent with both officers’ accounts were
presented; (3) additional wildlife refuge personnel testified about encounters they
had with Garza in which he behaved aggressively regarding the government’s
control of the refuge lands; and (4) close inspection of the report and
McGallicher’s testimony reveals the two are likely compatible.6 Moreover, the


meaning of Brady because it was disclosed by the prosecution at trial).
       5
         Although, the district court determined that evidence of state or federal charging
decisions was inadmissible, and Garza does not appeal these evidentiary rulings.
       6
        The report states that, based on her initial conversation with McGallicher, Bay “did
not know that Garza had actually driven his truck 45 feet while holding onto [McGallicher’s]
arm” and she understood that “[McGallicher] had stopped [Garza] before he began to drive
away.” As the district court found, this portion is not inconsistent with McGallicher’s
testimony, because at trial he stated that Garza stopped the first time he was ordered, but
then drove away a second time. Instead, these statements present an incomplete
understanding of the incident from Bay’s point of view. Had Garza called Bay to testify as a
fact witness, she would have explained, as she did to the district court, that her
misunderstanding of McGallicher’s narrative was the result of being distracted while

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                                       No. 07-40292

fact that Willacy County authorities refrained from prosecuting Garza does not
undermine the jury’s verdict in light of the fact that Garza was convicted under
a federal statute for assaulting a federal officer.7 Thus, we are not convinced that
there is reasonable probability that the result of the trial would have been
different if the report had been disclosed to Garza prior to trial. See Strickler,
527 U.S. at 289. Because the evidence fails at the materiality prong of the Brady
test, the district court’s denial of the motion for new trial was not erroneous.
                                  III. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment.




discussing the incident with McGallicher over the telephone and not the result of McGallicher’s
misstatements.
       7
         We are benefitted by defense counsel’s disclosure as to what his strategy would have
been, had he known the information ahead of time. Specifically, he states that he merely
would have confirmed that the Willacy County authorities refused prosecution. We are not free
to speculate what other unspecified additional evidence consistent with the defense may have
been discovered had the information about the refusal to prosecute been disclosed. See Wood
v. Bartholomew, 516 U.S. 1, 6 (determining that “mere speculation” that disclosure would have
spurred defense counsel to additional investigation does not make that evidence material).


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