                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0178n.06

                                            No. 11-6488
                                                                                         FILED
                                                                                      Feb 15, 2013
                          UNITED STATES COURT OF APPEALS
                                                                               DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
JERMAINE HOWARD,                                  )   EASTERN DISTRICT OF TENNESSEE
                                                  )
       Defendant-Appellant.                       )



       Before: MOORE, SUTTON and DONALD, Circuit Judges.


       SUTTON, Circuit Judge. A sawed-off shotgun caught the eye of Chattanooga police officers

as they searched a home for stolen car keys, leading to the conviction of Jermaine Howard on two

gun charges. On appeal, Howard claims a federal prosecutor withheld evidence en route to the

convictions and that the district court should have ordered a competency hearing prior to sentencing.

We affirm.


                                                 I.


       Chattanooga police received a report of a stolen vehicle complete with the street where they

could find the car. It turned out that the “stolen” vehicle complaint boiled down to a payment

dispute between Howard and an acquaintance who had sold Howard the car. Unaware of the back

story, two officers responded on the assumption that they were looking for a stolen vehicle. They
No. 11-6488
United States v. Howard

found the car at Howard’s girlfriend’s home. When they approached the house, Howard came

outside. He told the officers the keys to the car were in the house but that the officers could not go

inside without his girlfriend’s permission. The officers waited until the woman returned, and she

permitted the officers to search for the keys.


          The keys were not all the officers found. A shotgun, illegally modified with a shortened

barrel, sat on top of a dresser in one of the bedrooms. In the dresser drawer were a few more items

of interest: a shotgun shell, a driver’s license application filled out in Howard’s name and mail

bearing Howard’s name at that address. In a nearby dresser, the officers found a box of shotgun

shells.


          Federal prosecutors took over and indicted Howard for possession of a firearm and

ammunition by a convicted felon, 18 U.S.C. § 922(g), and possession of an unlawful short-barreled

shotgun, 26 U.S.C. §§ 5861(d), 5845(a). A jury convicted him on both counts, and the district court

sentenced him to 103 months in prison.


                                                   II.


          Howard claims that, before trial, the prosecutor impermissibly withheld “crucial” fingerprint

test results. Appellant Br. at 3; see Brady v. Maryland, 373 U.S. 83, 87 (1963). He is right about

one thing: A miscommunication between forensic technicians and federal prosecutors led to a failure

to disclose a fingerprinting report. He is wrong about another: the report was not “crucial.”



                                                  -2-
No. 11-6488
United States v. Howard

            Before trial, Howard asked the government to disclose any fingerprint results. A forensics

case agent told the prosecutor “[t]hey were unable to locate any fingerprints.” R. 121 at 50. The

prosecutor relayed that information to Howard, saying “no fingerprint tests were done.” Id. Howard

learned at trial that this last statement was not quite true. On cross-examination—and to everyone’s

surprise—one of the investigating officers said that the gun and bullets had been fingerprinted and

that crime-scene technicians had a report of the results. During a trial break, the prosecutor obtained

a copy of the report. But this suspense-filled recess ended with a fizzle, as the report revealed that

the technicians had recovered only unidentifiable smudges on the box of shotgun shells.


            Because the prints were unidentifiable, the court ruled that the report’s late disclosure was

not prejudicial and denied Howard’s motion for a mistrial. When the trial reconvened, Howard’s

counsel cross-examined the investigating officer about the report and the fingerprints. The

government did not mention the fingerprint evidence, in truth the absence of fingerprint evidence,

at trial.


            A successful Brady claim has three components: favorable evidence, suppression and

prejudice. Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The government’s withholding of

evidence does not prejudice the defendant unless “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have been different.” Id.

at 280. Prejudice is more difficult to prove when the evidence comes to light at trial, rather than

after, because the defendant may then have a “full and adequate” opportunity to use the evidence.

United States v. Holloway, 740 F.2d 1373, 1381 (6th Cir. 1984).

                                                    -3-
No. 11-6488
United States v. Howard

       Howard has not shown prejudice. The jury heard evidence that Howard was present in the

home where police found the gun sitting on a dresser. Howard’s license application and personal

mail—sent to that address—were in the dresser drawer next to a shotgun shell. Police found an

additional box of shells in a nearby drawer, and there was no doubt who owned them. During a

Mirandized interrogation, Howard admitted to buying the shells at Wal-Mart: “It must not be illegal,

or they wouldn’t have sold them to me.” R.121 at 145. All of this showed that Howard possessed

the gun and the ammunition.


       In the face of this evidence, how would an earlier disclosure of finger smudges on the box

of shotgun shells have been “crucial” to Howard’s case? How could the evidence have exonerated

him? The unidentifiable prints were not critical. And they could not plausibly have exonerated him.

An unidentifiable print proved only a neutral point—that someone, anyone (including potentially

Howard), touched the box. At best the test results showed that the government lacked fingerprint

evidence pointing to Howard, a truth he already knew. Howard insists he was denied the opportunity

to have his own expert review the fingerprint report. But he does not tell us what good that would

have done. Howard in the end has not shown a reasonable probability that an earlier disclosure

would have altered the trial’s outcome. The Brady claim thus must fail.


       Howard next claims that the district court should have given him a competency hearing

before sentencing. A district court should grant such a hearing if there is “reasonable cause to

believe” the defendant is mentally incompetent. 18 U.S.C. § 4241(a). We review a district court’s



                                               -4-
No. 11-6488
United States v. Howard

“reasonable cause” determination for abuse of discretion. United States v. Jones, 495 F.3d 274, 277

(6th Cir. 2007).


       The district court held a hearing before trial and determined that Howard was mentally

competent despite having some history of mental illness. After trial, Howard’s counsel moved for

another competency hearing because Howard had refused to allow his counsel to see him. The

motion recounted counsel’s attempt to meet with Howard in prison and Howard’s response—a

handwritten note that said, “I am sick on meds tell him to write me.” R.112 at 1. And the prison

chaplain had followed up with a phone call to counsel, informing him that Howard was too sick to

meet in person. The district court denied the motion, reasoning that Howard’s refusal to meet with

counsel face to face did not establish incompetency.


       That was not an abuse of discretion. The district court had already held a pretrial competency

hearing and based its decision on testimony from a forensic psychologist. And it was reasonable for

the district court to conclude that Howard’s mental health after trial had not changed. Howard’s

handwritten note suggested a willingness to correspond with counsel in writing, undermining the

notion that he lacked “sufficient present ability to consult with his lawyer with a reasonable degree

of rational understanding.” United States v. Miller, 531 F.3d 340, 348 (6th Cir. 2008). Further, the

defense’s own subsequent psychological evaluation, completed prior to sentencing, resulted in a

conclusion that Howard was competent. See R.115.




                                                -5-
No. 11-6488
United States v. Howard

                                       III.


       For these reasons, we affirm.




                                       -6-
