                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0248n.06

                                        Case No. 18-1462

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                               May 05, 2020
UNITED STATES OF AMERICA,                           )                      DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,
                                                    )
                                                    )       ON APPEAL FROM THE UNITED
v.
                                                    )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
BRYAN SORRELL,
                                                    )       MICHIGAN
       Defendant-Appellant.                         )

____________________________________/


Before: MERRITT, SUHRHEINRICH, and SUTTON, Circuit Judges

       MERRITT, Circuit Judge. Defendant Bryan Sorrell appeals the district court’s denial of

his motion for a new trial alleging a violation under Brady v. Maryland, 373 U.S. 83 (1963), based

on newly discovered evidence. In 2015, a jury convicted Sorrell and others of various charges

related to their involvement in the Phantom Motorcycle Club based in the Detroit, Michigan, area.

Over a year later, the government discovered evidence pre-dating Sorrell’s trial from a separate

investigation regarding one of its witnesses in this case, Roger “June” Valdes. The evidence

indicated that Valdes, who was incarcerated at the time, had told other inmates that he was

misleading law enforcement in their investigation of Sorrell’s case. We agree with the district

court below that the evidence was not material to Sorrell’s trial and its absence does not undermine

our confidence in the verdict.
Case No. 18-1462, United States v. Sorrell


                                                         I.

        The Supreme Court in Strickler v. Greene, 527 U.S. 263 (1999), stated the following about

Brady claims:

        “[T]here is never a real ‘Brady’ violation unless the nondisclosure was so serious
        that there is a reasonable probability that the suppressed evidence would have
        produced a different verdict. There are three components of a true Brady violation:
        The evidence at issue must be favorable to the accused, either because it is
        exculpatory, or because it is impeaching; that evidence must have been suppressed
        by the State, either willfully or inadvertently; and prejudice must have ensued.”

Id. at 281‒82. Because there is not a reasonable probability that the evidence concerning Valdes’

misleading of law enforcement would have produced a different result in Sorrell’s trial, we hold

that Sorrell suffered no prejudice and thus affirm the district court.

        This case arises out of the Phantom Motorcycle Club’s confrontations with rival

motorcycle clubs in the Detroit, Michigan area.1 The Phantoms have a hierarchical structure,

including a national president, vice-president, enforcers, and treasurer. Each chapter also has a

president and vice-president. Sorrell was a member of the Inkster, Michigan, chapter. The Detroit

Chapter is the “mother chapter.”

        The Phantoms pride themselves on being the “baddest” motorcycle club. One way the

Phantoms establish their dominance is to take the leather vests of members of rival clubs. These

vests are known as “rags” and are important symbols in motorcycle club culture.

        In September 2013, a group of Phantoms, including Sorrell, Carl Miller (the Detroit

Chapter president at the time), Valdes, and a prospect (a prospective member), went on a mission

to steal “rags” from members of another club, the Satan’s Sidekicks. The Phantoms attacked Leon

McGee, a member of the Satan’s Sidekicks, outside another rival’s clubhouse. During the incident,



        1
          These facts are taken from our opinion affirming Sorrell’s convictions on direct appeal. See United States
v. Nicholson, 716 F. App’x 400, 403–12 (6th Cir. 2017).

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Case No. 18-1462, United States v. Sorrell


Sorrell was stabbed and shot, and McGee was also shot. This and other incidents eventually led

to the arrest of Sorrell and other Phantoms.2

       A federal grand jury charged Sorrell and other Phantoms with various charges. After a six-

week trial in March 2015, Sorrell was convicted of RICO conspiracy, 18 U.S.C. § 1962(d); Assault

with a Dangerous Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault

with a Dangerous Weapon in Aid of Racketeering, 18 § U.C.C. § 1959(a)(6); Use and Carry of a

Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c); and Conspiracy to

Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5). Sorrell was sentenced to

252 months, and we affirmed Sorrell’s convictions on direct appeal. Nicholson, 716 F. App’x at

403–412.

       Valdes, who was incarcerated at the time of trial, served as a cooperating witness in this

case and provided substantial testimony at trial. In December 2016, the case agent, Special Agent

Marsh, was given a Report of Investigation dated March 2014. The Report was written by officers

who were on the same task force as Agent Marsh, but was from a separate investigation.

An Assistant United States Attorney involved in the prosecution received an email regarding the

report shortly thereafter. The Report indicated that a Source of Information, an inmate with

Valdes, stated that Valdes told other inmates that he was misleading law enforcement in their

investigation of this case. The Report stated, in relevant part:

       [The Source] stated that there is a Vicelord [sic] gang member named JUNE.
       [The Source] stated that JUNE is currently in custody in Milan Federal Prison.
       JUNE has been bragging to several of the inmates that he has been misleading
       police by cooperating and telling the police that somebody else was responsible for
       the homicide he is being charged with. According to JUNE, he actually did fire
       shots the night of the incident. The victim was shot over a motorcycle club jacket.




       2
           For a more detailed factual background, see Nicholson, 716 F. App’x at 403–12.

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Case No. 18-1462, United States v. Sorrell


         On September 1, 2017, Sorrell filed a motion for a new trial pursuant to Federal Rule of

Criminal Procedure 33 alleging that the government’s failure to disclose the Report violated his

rights under Brady v. Maryland, 373 U.S. 83 (1963) The district court denied his motion.

                                                         II.

         When a motion for a new trial alleges a Brady violation, we review the district court’s

denial of the motion under an abuse of discretion standard, but we review the determination of the

existence of a Brady claim de novo. United States v. Dado, 759 F.3d 550, 559 (6th Cir. 2014).

We thus give considerable deference to the district court’s factual findings and conclusions, but

review de novo the district court’s conclusions about the legal significance of those findings. Id.3

         The parties do not dispute that Sorrell satisfies the first two requirements of the three-part

test from Strickler, mentioned above. Like most alleged Brady violations, the parties dispute the

third requirement, whether the nondisclosure of that evidence prejudiced Sorrell’s trial. See

Strickler, 527 U.S. at 281‒82. In determining if prejudice occurred for Brady purposes, “[t]he

question is not whether the defendant would more likely than not have received a different verdict

with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting

in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). The standard

requires a showing of more than a “reasonable possibility” of a different result, Strickler, 527 U.S.

at 291, but “does not require demonstration by a preponderance that disclosure of the suppressed

evidence would have resulted ultimately in the defendant’s acquittal.” Kyles, 514 U.S. at 434.




         3
           The government argues that Sorrell forfeited his arguments for the counts concerning the conduct related
to the motorcycle club the Hell Lovers, (Counts 1 and 8 of the Third Superseding Indictment), and that, at most, we
should apply the plain error standard to those claims. We do not address this issue because, under either standard, we
do not find that Sorrell suffered prejudice.

                                                        -4-
Case No. 18-1462, United States v. Sorrell


       Sorrell maintains that the Report contradicted Valdes’ testimony about the McGee

shooting, and would have questioned the thoroughness of the government’s investigation and

diminished Valdes’ credibility.

       Valdes’ trial testimony is largely consistent with Sorrell’s own words in a recorded

conversation with Miller. Valdes testified at trial that he, Miller, Sorrell, and the Prospect drove

to the Soul Devils’ clubhouse, and that others, including Sorrell, were armed, as was typical for a

mission like this. They waited in the parking lot for about an hour until McGee exited the

clubhouse with his wife, Antoinette. Valdes stated that Sorrell identified McGee as a Satan’s

Sidekick, and Valdes approached McGee at his SUV while he was opening the passenger’s side

door for Antoinette. Valdes punched McGee, who was not impacted by Valdes’ punch. Sorrell

then ran over to assist Valdes, and McGee punched Sorrell about three times, and on the third time,

Sorrell fell over. The Prospect and Miller then rushed McGee, who directed Antoinette to get her

pistol out from her purse and let the Phantoms “have it.” Valdes then ran behind the vehicle while

McGee partially entered the driver’s side door. Once Valdes was on the passenger’s side of the

vehicle, he looked inside the vehicle and saw Sorrell pointing a gun inside the vehicle and fire

shots. Valdes said he then shot his gun once in the air before it jammed. By the time Valdes tried

to shoot his gun once more, everyone had fled the scene.

       A couple days later, the Phantoms had a meeting to discuss the event. When Valdes arrived

about mid-way through the meeting, Antonio Johnson, the Phantom’s leader, was blaming Miller

for the failed mission, as the Phantoms did not collect any “rags” and Sorrell got injured, and

Miller was blaming Valdes. Valdes stated that, to ease the tension, he told others that he shot

McGee in the face. At trial, Valdes said that was not true. Valdes stated that he told others he shot

McGee because if he didn’t, “something was going to happen to [him] there.”



                                                -5-
Case No. 18-1462, United States v. Sorrell


        In recorded conversations with Miller, Sorrell told largely the same story. Sorrell stated

that McGee was unaffected by Valdes’ punch, so he went to assist Valdes, and McGee stabbed

Sorrell when he and Valdes were fighting with McGee. Sorrell said to Miller that he grabbed a

gun, and that he knew he had a gun in his hand. Sorrell stated, “I’m the one who shot him”,

referring to McGee, and that he heard another shot. Miller told Sorrell that Valdes was saying that

Valdes was the one that shot McGee. Sorrell responded, “[Valdes] probably shot him too. But I

know I shot [him].” Later in the conversation, Sorrell stated, “I probably did shoot him in the

face[.]” There was also an exchange between Miller and Sorrell about Sorrell giving Miller a gun

after the incident. Thus, Valdes’ testimony was “consistently corroborated at trial” by Sorrell’s

own admissions, and the government’s case did not rely exclusively on Valdes’ testimony such

that evidence casting doubt on Valdes’ credibility would undermine our confidence in the verdict.

See Dado, 759 F.3d at 562.

        Sorrell also contends that the Report would have influenced the jury’s thinking on other

counts4 because the Report would have diminished Valdes’ credibility and questioned the

thoroughness of the entire investigation. The Report was part of a separate investigation, and

among the many witnesses who testified during the six-week trial, the Report could have hardly

questioned the thoroughness of the investigation. The cases on which Sorrell relies for this

argument, as he points out, all involve the failure to disclose evidence relating to potential alternate

suspects. See Juniper v. Zook, 876 F.3d 551, 570‒71 (4th Cir. 2017); Dennis v. Sec’y, Penn. Dep’t

of Corr., 834 F.3d 263, 302, 312 (3d Cir. 2016); Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).

And, as Sorrell concedes, that is absent here.



        4
           These other counts are Conspiracy to Commit Murder in Aid of Racketeering, Count 8 in the Third
Superseding Indictment, and RICO Conspiracy, Count 1 in the Third Superseding Indictment. This conduct relates
to the Phantoms’ confrontations with another club, the Hell Lovers.

                                                    -6-
Case No. 18-1462, United States v. Sorrell


       Additionally, Valdes’ credibility was questioned on several grounds, including that he was

previously dishonest with law enforcement. At trial, Valdes told the jury that he was formerly a

Latin King, was a convicted felon, and sold cocaine after completing parole. Valdes also admitted

that he had conversations with law enforcement in October 2013 and January 2014, and that he

was not truthful in the October conversations. He said that he began to be truthful because of his

cooperation agreement with the government, and that the government, as part of the agreement,

promised to recommend a reduced sentence from 150–187 months to 75–78 months.

       The district court also instructed the jury to take Valdes’ testimony with caution. The court

told the jury that Valdes had entered a cooperation agreement under which Valdes may receive a

reduced sentence in exchange for his cooperation, and that the jury should consider if his testimony

was influenced by the government’s promise of a reduced sentence. In addition, the court

instructed the jury to consider that Valdes was involved in some of the same crimes as Sorrell and

the other defendants. Thus, the district court observed Valdes’ “testimony and form[ed] a sense

of his credibility (or lack thereof)” and instructed the jury to consider his testimony with caution.

See United States v. Heriot, 496 F.3d 601, 606 (6th Cir. 2007).

       In light of all of the above, we cannot say that the absence of the Report undermines our

confidence in the verdict. We affirm the district court.




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