     16-595
     United States v. Singletary

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of March, two thousand seventeen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                              Circuit Judges,
 9                LEWIS A. KAPLAN,*
10                              District Judge.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               16-595
17
18       LAVERNE SINGLETARY,
19                Defendant-Appellant.
20
21       - - - - - - - - - - - - - - - - - - - -X
22
23


                *
               Judge Lewis A. Kaplan, of the United States District
         Court for the Southern District of New York, sitting by
         designation.
                                                  1
 1   FOR APPELLANT:             JON P. GETZ, Muldoon, Getz, &
 2                              Reston, Rochester, New York.
 3
 4   FOR APPELLEE:              JOSEPH J. KARASZEWSKI, for James
 5                              P. Kennedy, Jr., Acting United
 6                              States Attorney for the Western
 7                              District of New York.
 8
 9       Appeal from a judgment of the United States District

10   Court for the Western District of New York (Geraci, Ch.J.).

11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the judgment of the district court be

13   AFFIRMED.

14       Laverne Singletary appeals from the judgment of the

15   United States District Court for the Western District of New

16   York (Geraci, C.J.) denying his motion for a new trial after

17   a jury convicted him of being a felon in possession of a

18   firearm and of simple possession of marijuana.   We assume

19   the parties’ familiarity with the underlying facts, the

20   procedural history, and the issues presented for review.     We

21   affirm because Singletary received the potentially

22   exculpatory impeachment material with enough time to

23   effectively use it at trial.

24       Amy Pfeffer of the Rochester Police Department and

25   Robert Masucci of the Monroe County Office of Probation

26   stopped Singletary on October 6, 2012.   After Singletary

27   bolted, the officers caught up to him and found several bags



                                    2
 1   of marijuana in Singletary’s pocket and a handgun he

 2   discarded on the sidewalk.    Masucci processed the firearm

 3   and the marijuana at the police station, but wrote on the

 4   evidence labels that Pfeffer collected the items and sealed

 5   the bags.    Masucci testified that he used Pfeffer’s name as

 6   a convenience: because Masucci was an officer in the Monroe

 7   County Office of Probation, his name was not in the

 8   Rochester Police Department’s system.

 9       Singletary moved for a new trial after conviction on

10   the basis of Brady v. Maryland, 373 U.S. 83 (1963): he

11   argued that he did not learn of the mislabeled evidence bags

12   early enough.     The district judge denied the motion.

13   Singletary learned that Masucci had filled out the evidence

14   labels when Masucci testified to that effect on the first

15   day of trial.     Singletary’s attorney cross-examined Masucci,

16   but did not seek a continuance after his direct.1

17           “The basic rule of Brady is that the Government has a

18   constitutional duty to disclose favorable evidence to the

19   accused where such evidence is ‘material’ either to guilt or

20   to punishment.”    United States v. Coppa, 267 F.3d 132, 139

21   (2d Cir. 2001).    That rule encompasses evidence that can be


         1
           Masucci was the key government witness because
     Pfeffer did not testify during the trial–-she resigned from
     the police department before the trial, and signaled that
     she would take the Fifth Amendment if asked to testify.
                                     3
 1   used to impeach a government witness.   Id. (citing Giglio v.

 2   United States, 405 U.S. 150, 154 (1972)).    But the

 3   constitution requires only that the government disclose such

 4   evidence “in time for its effective use at trial,” id. at

 5   142, and effective use can be made even when evidence is

 6   disclosed for the first time during trial.    See Leka v.

 7   Portuondo, 257 F.3d 89, 100 (2d Cir. 2001).

 8       Masucci’s misstatements about the evidence bags may

 9   well have been material for impeachment, and Singletary

10   certainly seemed to treat them as such: the defense

11   aggressively cross-examined Masucci about the incorrectly

12   labeled evidence bags, forced him to admit that the evidence

13   bag labels were “lies,” called a witness from the Rochester

14   Police Department who testified that what Masucci did was

15   “forgery,” and argued about the incorrect labels in his

16   closing statement.   Singletary has failed to offer any

17   concrete examples of how he could have used the information

18   more effectively at trial if he had learned of it earlier.

19   He suffered no prejudice from the timing of the disclosure,

20   and there was therefore no Brady violation.    Coppa, 267 F.3d

21   at 140-42.   His ill-defined claim of prosecutorial

22   misconduct fails for the same reason.




                                   4
1       For the foregoing reasons, and finding no merit in

2   Singletary’s other arguments, we hereby AFFIRM the judgment

3   of the district court.

4
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8




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