                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                                June 2, 2016
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 15-3202
                                                    (D.C. No. 5:11-CR-40078-JAR-1)
VIROK D. WEBB,                                                  (D. Kan.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       Virok D. Webb appeals the district court’s denial of his motion to withdraw his

plea agreement. Exercising jurisdiction under 18 U.S.C. § 1291,1 we affirm.



       *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
       1
         The Government moved to dismiss this case for lack of jurisdiction under 18
U.S.C. § 3742(c), which states defendants who enter into Rule 11 plea agreements may
challenge their sentence only in limited circumstances. Because any challenge Mr. Webb
raised to his sentence has already been dismissed under the waiver provision in his plea
agreement, we deny the Government’s motion as moot.
                                  I. BACKGROUND

      In 2011, Mr. Webb and several co-defendants were charged with (1) conspiracy to

distribute crack cocaine and (2) conspiracy to distribute powder cocaine. Mr. Webb and

one other co-defendant, Marcus Roberson, were also charged with (3) murder with intent

to prevent the victim, Crystal Fisher, from telling law enforcement about the other

charged crimes.

      On March 7, 2014, Mr. Webb pled guilty to the first count—conspiracy to

distribute crack cocaine in violation of 21 U.S.C. § 846. On February 23, 2015, Mr.

Webb moved the district court to withdraw his plea agreement, alleging the U.S.

Attorney’s Office failed to disclose information in violation of Brady v. Maryland, 373

U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). He argued the

prosecution should have disclosed, before the plea agreement, information regarding

Antonio Cooper, one of the witnesses the prosecution called in Mr. Roberson’s trial and

whom the Government intended to call in Mr. Webb’s trial.

      At Mr. Roberson’s trial, Mr. Cooper testified (1) he provided the handgun Mr.

Roberson used to murder Ms. Fisher, and (2) Mr. Webb participated with Mr. Roberson

in both a conspiracy to distribute cocaine and the murder. As part of his defense, Mr.

Roberson sought to show Mr. Cooper had committed the murder based on testimony

from defense witnesses that (1) a gold SUV was at the scene of the crime shortly after the

murder and (2) Mr. Cooper was stopped in his gold SUV not far away from the scene of

the murder three hours after it happened.




                                            -2-
       After Mr. Roberson’s trial, his counsel discovered Mr. Cooper had been a witness

to a separate murder in 2001. The account of the 2001 murder is found in an appeal of a

court martial:

       During the early morning hours of 21 January 2001, in the parking lot of a
       bar in Manhattan, Kansas, appellant [Private Jeremy Y. Ware] witnessed an
       altercation between a civilian, Anthony Mitchell, and a soldier, Private
       (PVT) Craig Newsome, and a group of PVT Newsome’s friends. An
       acquaintance of appellant’s, Antonio Cooper, was also in the parking lot
       observing the fight. Appellant looked on as PVT Newsome and his group
       of friends became aggressive and hostile and formed a “U-shape” around
       Mr. Mitchell. The tension of the situation increased when PVT Newsome
       hit Mr. Mitchell in the back with a board. Angered by the attack on Mr.
       Mitchell, appellant went to the trunk of his car and retrieved a loaded
       handgun. He tucked the gun inside his pants, pulled his shirt over it, and
       “walked over to where Antonio Cooper was standing.” At this point, the
       fight started to break up and PVT Newsome’s group had left the scene and
       were walking to their vehicles. But appellant was still angry so he removed
       his gun and handed it to Mr. Cooper “intending that [Cooper], himself,
       would resolve the situation by retaliating against the group because of their
       actions,” or that Mr. Cooper would pass the weapon to Mr. Mitchell who
       could get even with PVT Newsome. When Mr. Cooper received the gun, he
       handed it to Mr. Mitchell who went after PVT Newsome’s group as they
       tried to drive out of the parking lot. Mr. Mitchell then “fired off shots in
       retaliation for them attacking him.”

       A bullet from one of the shots fired by Mr. Mitchell struck and killed a
       soldier who was a passenger in a car in which PVT Newsome was also a
       passenger. A round from another shot fired by Mr. Mitchell wounded the
       driver of that vehicle. Private Newsome was not injured.

United States v. Ware, 2005 WL 6524258, at *1 (Army Ct. Crim. App. Mar. 10, 2005)

(unpublished).

       Although this account states Mr. Ware handed the gun to Mr. Cooper, who then

gave it to Mr. Mitchell, id. at *1, a related Kansas case does not mention Mr. Cooper, see

Mitchell v. State, 111 P.3d 198, 2005 WL 1136872 (Kan. Ct. App. May 13, 2005) (per



                                            -3-
curiam) (unpublished). In the account of the murder in Mitchell, Mr. Ware gave the

weapon directly to Mr. Mitchell. See id. at *1.

       In his motion requesting withdrawal of his plea agreement, Mr. Webb argued this

information could have been used to impeach Mr. Cooper because it showed Mr. Cooper

was dishonest when interviewed by the police in the Mitchell case. Mr. Webb also

seemed to argue this was exculpatory evidence, showing Mr. Cooper was predisposed to

commit murder.

       The district court denied the motion to withdraw, concluding this information was

not Brady material because it was (1) not in possession of the prosecution or (2) helpful

to Mr. Webb’s defense. On August 27, 2015, the district court sentenced Mr. Webb to

360 months in prison, followed by ten years of supervisory release.

       Mr. Webb appealed, contending: (1) the district court erred in denying his motion

to withdraw his guilty plea; (2) his counsel was ineffective in the negotiation of the plea;

(3) the prosecution violated Brady/Giglio in failing to disclose the information about Mr.

Cooper before the plea agreement; and (4) the district court erred in applying the

sentencing Guidelines.

       The Government moved to dismiss the first and fourth of these issues as barred by

the waiver of appellate rights in his plea agreement. We granted that motion. We also

dismissed the second issue because it should have been raised in a § 2255 motion rather

than on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.

1995) (“Ineffective assistance of counsel claims should be brought in collateral

proceedings, not on direct appeal. Such claims brought on direct appeal are


                                             -4-
presumptively dismissible, and virtually all will be dismissed.”). We then ordered Mr.

Webb’s counsel to brief the remaining (third) issue—prosecutorial misconduct relating to

the alleged Brady/Giglio violations.

       On December 9, 2015, counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), which

       authorizes counsel to request permission to withdraw where counsel
       conscientiously examines a case and determines that any appeal would be
       wholly frivolous. Under Anders, counsel must submit a brief to the client
       and the appellate court indicating any potential appealable issues based on
       the record. The client may then choose to submit arguments to the court.
       The Court must then conduct a full examination of the record to determine
       whether defendant’s claims are wholly frivolous. If the court concludes
       after such an examination that the appeal is frivolous, it may grant
       counsel’s motion to withdraw and may dismiss the appeal.

United States v. Kurtz, No. 15-2140, 2016 WL 1212066, at *2 (10th Cir. Mar. 29, 2016)

(quotations omitted).

       Mr. Webb filed a response to the Anders brief, contending his guilty plea was not

voluntary because the prosecution failed to disclose Brady material before the plea

agreement.

                                    II. DISCUSSION

                                A. Standard of Review

       “We review the district court’s denial of the motion to withdraw the guilty plea for

an abuse of discretion.” United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000).

“Whether the government was required to disclose certain evidence under Brady is a

mixed question of law and fact which we review de novo.” United States v. Fleming, 19




                                            -5-
F.3d 1325, 1330 (10th Cir. 1994). “When counsel submits an Anders brief, our review of

the record is de novo.” Kurtz, 2016 WL 1212066, at *2.

                                  B. Legal Background

1. Motion to Withdraw

       Under Federal Rule of Criminal Procedure 11(d), “A defendant may withdraw a

plea of guilty or nolo contendere . . . after the court accepts the plea, but before it imposes

sentence if: . . . the defendant can show a fair and just reason for requesting the

withdrawal.” The defendant bears the burden to show a “fair and just reason” for the

withdrawal. Siedlik, 231 F.3d at 748. Motions to withdraw should be viewed with favor

and defendants “should be given a great deal of latitude” when deciding to withdraw. Id.

(quotations omitted). But district courts are given wide discretion in deciding to allow

withdrawal:

       Even though the general rule is that motions to withdraw guilty pleas before
       sentencing are to be freely allowed and treated with liberality, still the
       decision thereon is within the sound discretion of the trial court. Thus,
       unless it is shown that the trial court acted unjustly or unfairly, there is no
       abuse of discretion. It is within the sound discretion of the trial court to
       determine what circumstances justify granting such a motion.

Id. (quotations omitted).

       We consider the following factors in determining whether a district court abused

its discretion in denying a motion to withdraw a plea agreement:

       (1) whether the defendant has asserted his innocence; (2) whether the
       government will be prejudiced if the motion is granted; (3) whether the
       defendant has delayed in filing the motion; (4) the inconvenience to the
       court if the motion is granted; (5) the quality of the defendant’s assistance
       of counsel; (6) whether the plea was knowing and voluntary; and



                                              -6-
       (7) whether the granting of the motion would cause a waste of judicial
       resources.

Id. at 749 (quotations omitted).

2. Brady Material

       “To establish a Brady violation, the defendant must prove that the prosecution

suppressed evidence, the evidence was favorable to the defense, and the evidence was

material.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009). “[T]he

defendant must also show that the favorable evidence was in the possession or control of

the government.” Id. Further, “[t]here is no Brady violation where a defendant knew or

should have known the essential facts permitting him to take advantage of any

exculpatory information, or where the evidence is available from another source because

in such cases there is really nothing for the government to disclose.” Coe v. Bell, 161

F.3d 320, 344 (6th Cir. 1998) (quotations and alterations omitted).

       In United States v. Ruiz, the Supreme Court held “the Constitution does not

require the Government to disclose material impeachment evidence prior to entering a

plea agreement with a criminal defendant.” 536 U.S. 622, 633 (2002) (emphasis added).

The Court did not address whether the government is required to provide exculpatory

evidence known to it before a defendant enters a plea agreement, but other courts have

suggested it must. See McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003);

United States v. Persico, 164 F.3d 796, 804-05 (2d Cir. 1999).




                                            -7-
                                      C. Analysis

       We agree with the district court that the prosecution did not possess the

information about Mr. Cooper before the plea agreement. We therefore affirm the district

court’s denial of Mr. Webb’s motion to withdraw based on Brady/Giglio, even if we

assume the information was exculpatory.

       The account of Mr. Cooper’s involvement in the 2001 murder was contained in an

appeal from the court martial of Mr. Ware. Nothing in the record indicates the

prosecution, before Mr. Webb pled guilty, had possession of information or otherwise

knew about the court martial case and therefore about any involvement Mr. Cooper may

have had in it.

       Mr. Webb did not raise any argument in district court that knowledge of the court

martial could be imputed to the prosecution because the U.S. Army is part of the

executive branch. Even if he had, the U.S. Attorney’s Office is not required to disclose

information it is unaware of and that is in the possession of a separate federal agency not

involved in the prosecution or investigation of the present case. See United States v.

Morris, 80 F.3d 1151, 1169 (7th Cir. 1996) (explaining that Seventh Circuit progeny of

Brady imposes no duty on the prosecution “to learn of information possessed by other

government agencies that have no involvement in the investigation or prosecution at

issue”); United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (explaining Brady

requires disclosures by the “‘prosecution team’ which includes both investigative and

prosecutorial personnel”) (quoting United States v. Antone, 603 F.2d 566, 569 (5th Cir.

1979)); United States v. Meros, 866 F.2d 1304, 1309 (11th Cir. 1989) (“A prosecutor has


                                             -8-
no duty to undertake a fishing expedition in other jurisdictions in an effort to find

potentially impeaching evidence every time a criminal defendant makes a Brady request

for information regarding a government witness.”).

       Having “conduct[ed] a full examination of the record,” we do not detect any other

possible bases for reversing the district court’s order. Kurtz, 2016 WL 1212066, at *2

(quotations omitted). We conclude Mr. Webb’s appeal is “wholly frivolous.” Id.

(quotations omitted). We therefore grant counsel’s motion to withdraw and dismiss this

appeal. As noted above, we also deny the Government’s motion to dismiss as moot.


                                               ENTERED FOR THE COURT,



                                               Scott M. Matheson, Jr.
                                               Circuit Judge




                                              -9-
