                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0443p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                             X
                                       Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                              -
                                                              -
                                                              -
                                                                  No. 06-3288
              v.
                                                              ,
                                                               >
 DAVID GARNER,                                                -
                                     Defendant-Appellant. -
                                                             N
                              Appeal from the United States District Court
                             for the Northern District of Ohio at Cleveland.
                             No. 05-00392—James S. Gwin, District Judge.
                                          Argued: April 17, 2007
                                 Decided and Filed: November 7, 2007
            Before: MERRITT and GRIFFIN, Circuit Judges; LAWSON, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Edward G. Bryan, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for
Appellant. Kelly L. Galvin, ASSISTANT UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee. ON BRIEF: Edward G. Bryan, Vanessa F. Malone, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cleveland, Ohio, for Appellant. Kelly L. Galvin, Laura McMullen Ford, ASSISTANT
UNITED STATES ATTORNEYS, Cleveland, Ohio, for Appellee.
     MERRITT, J., delivered the opinion of the court, in which LAWSON, D. J., joined.
GRIFFIN, J. (pp. 10-12), delivered a separate dissenting opinion.
                                            _________________
                                                OPINION
                                            _________________
        MERRITT, Circuit Judge. David Garner appeals his conviction after a jury trial for one
count of carjacking pursuant to 18 U.S.C. § 2119(1) and one count of using a firearm during a crime
of violence in violation of 18 U.S.C. § 924(c). Specifically, Garner contends that the district court
erred in denying his motion for a new trial based on a violation of Brady v. Maryland arising from
the government’s failure timely to turn over cell phone records prior to trial. Alternatively, Garner


        *
         The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 06-3288                United States v. Garner                                              Page 2


contends that the district court erred in denying his motion for a continuance to allow him time to
investigate the information contained in the cell phone records.
        This appeal raises a possible issue of mistaken identity. Defendant was convicted of
carjacking based primarily on the testimony of (1) his codefendant, Bryce Smith, who, because he
pled guilty and did not go to trial, had motivation to lie about both his role in the carjacking and the
identity of his co-hijacker to minimize his role and possibly to exonerate his friend, Deandrew
Foster, who may have been Smith’s actual accomplice in the carjacking and (2) Shalonda Melton,
the former girlfriend of codefendant Bryce Smith. Ms. Melton maintained a close relationship with
Smith and had the motivation to lie both to help minimize the role of her ex-boyfriend, Bryce Smith,
in the carjacking and to help their friend Deandrew Foster by implicating David Garner, whom she
did not know, as the co-hijacker instead of Foster.
         A cell phone belonging to the victim was in the truck at the time it was stolen and was used
to make and receive calls by the hijacker or hijackers. Garner’s counsel did not have timely access
to the cell phone records that may well have impeached the testimony and credibility of Shalonda
Melton and cast doubt on her identification of Garner as the co-hijacker. These records were in the
government’s possession for five days before they were turned over to Garner’s counsel the morning
the trial began. Recognizing the importance of the cell phone records to identify who was in the
truck and using the stolen cell phone, Garner’s counsel requested a continuance of trial to investigate
further the outgoing and incoming calls on the stolen cell phone. The district court denied the
motion for a continuance without giving adequate reasons for why a short continuance to allow
Garner’s counsel to investigate the cell phone records was unreasonable. The cell phone records
provided strong evidence to support defendant’s theory that he had been framed by Melton, Smith
and Foster.
        For the following reasons, we reverse the judgment of the district court and remand with
instructions to conduct a new trial.
                                                   I.
        Defendant David Garner was charged along with Bryce Smith of a vehicle theft that occurred
on May 10, 2005, in violation of 18 U.S.C. § 2119 and use of a firearm during a vehicle theft in
violation of 18 U.S.C. § 924(c). Garner alone was also charged with vehicle theft in a separate
incident that occurred on June 4, 2005. The two thefts were tried together in a jury trial that began
on November 7, 2005. Garner was found not guilty of the June 4 theft, but the jury could not reach
a verdict regarding the May 10 theft and the firearm charge. On November 9, during the first trial,
Smith changed his plea to guilty. Retrial on the two remaining counts against Garner was set for
November 21, 2005, 11 days after the end of the first trial. The facts that follow come from the
testimony given at the second trial.
        Shortly after midnight on May 10, 2005, Kareem Dotson of Cleveland, Ohio, was carjacked
by two men in the driveway of the home of his girlfriend, Shalonda Melton. Dotson had arrived at
Melton’s home about 11 p.m. after she called him and asked him to come over after work. Dotson
stayed only about an hour and then Melton accompanied him to the side door of her house and she
watched him walk to his truck in the driveway. Before Dotson could unlock his truck, a masked
man ran from the back of the house and hit Dotson on the head with a gun. The attacker forced
Dotson to the ground at gunpoint and started to go through his pockets. The attacker took Dotson’s
cell phone and $10 cash.
        Melton then noticed a second person on the back porch of the house who had his shirt pulled
over his face. Melton testified that this person was also armed. Melton testified that she recognized
the second individual as her former boyfriend, Bryce Smith. Smith then held a gun on Dotson while
No. 06-3288                United States v. Garner                                              Page 3


the other attacker continued to rifle through Dotson’s pockets. At this point, Melton’s younger sister
emerged from the house and started to yell “Stinker stop! Stinker stop!” She believed the initial
attacker to be her ex-boyfriend, Deandrew Foster. Both Melton and her sister testified that they
initially thought the other person was Foster because Smith and Foster are “always together.” At
this point, Melton testified that Smith said “I can’t do this,” and walked away.
        Melton, thinking the other person was Foster, tried to take the truck keys away from him and
told him to “quit playing.” The person pulled his mask off and pointed the gun at Melton telling her
that his name was “Pel Pel” not Foster. Melton testified that she was not acquainted with Pel Pel
but only knew who he was because he was from the neighborhood. Several witnesses testified that
defendant David Garner is known as “Pel Pel” in the community. Melton gave the assailant the
truck keys and she testified that he drove away alone in Dotson’s truck. The truck was not recovered
until October 25, 2005, more than four months after the carjacking.
        Melton went into her home and called 911 on her cell phone. The call was recorded. Melton
told the 911 operator that her boyfriend had been “gunned down.” She explained at trial that what
she meant by this was that Dotson had been robbed at gun point. She initially told the operator that
she did not know the carjacker’s name, but her sister can be heard in the background saying “His
name is Pel Pel” and Melton eventually told the operator that the carjacker’s name was Pel Pel. She
never identified or mentioned the name of Bryce Smith, her former boyfriend, or in anyway
indicated that a second person had been involved.
         The victim, Kareem Dotson, also testified. After being robbed, he ran down the street, away
from Melton’s house and called 911 from a friend’s cell phone. He initially identified his attackers
to both his friend and to the 911 operator as Smith and Foster. He believed the attackers to be Smith
and Foster based on hearing Melton and her sister address the two attackers and his knowledge that
Smith and Foster were always together. Although he testified that he heard the name “Pel Pel”
during the carjacking, he did not give this name to the 911operator as one of his attackers. Dotson
testified that he did not see the face of the first attacker because the attacker had something covering
his face (J.A. at 150, 154-55), but that he did see the second attacker and identified him as Bryce
Smith. Dotson testified that he “can’t say for sure” that his first attacker was Garner. (J.A. at 156-
57) Dotson did not change his story and identify the second attacker as “Pel Pel” until after he had
spoken with Shalonda Melton later that night when she told him the attacker was “Pel Pel,” not
Deandrew Foster.
         During the first trial, Bryce Smith pled guilty and he testified for the government at Garner’s
retrial. Smith testified that his mother and brother picked him up from work on the night of the
attack and on the way home they passed Melton’s house, which is in his neighborhood. He saw a
truck with “nice-looking” rims in her driveway. Smith testified that he knew it was Dotson’s truck
because Melton had told him what kind of truck Dotson owned and he knew that Dotson and Melton
were dating. He testified that he was still friends with Melton and that she had called him twice at
work earlier that day and asked him to come over that evening.
        Smith testified that after going home briefly, he went “cruising” in a nearby housing project.
Smith said that although Foster was at his house when he arrived home, Foster did not accompany
him. Smith also testified at trial that it was a weekend night, but in fact it was a Tuesday night.
Smith testified that he encountered Garner at the projects, who was drunk and had a gun. He told
Garner he had a “lick,” which means he knew a way to make some money, usually by stealing.
Garner agreed to accompany Smith. The two men then went to Melton’s house and waited for the
owner of the truck to leave, even though Smith testified that he did not know when, or even if, the
truck’s owner would emerge from Melton’s house.
No. 06-3288                      United States v. Garner                                                Page 4


        FBI Special Agent Douglas Williams testified at the second trial that on Wednesday,
November 16, 2005, he received Dotson’s cell phone records for May 9 and 10, 2005. The
government had been trying for several months to obtain the records from Nextel and had issued
three subpoenas before receiving the records. The records contained a list of incoming and outgoing
phone calls for the hours immediately before and after the midnight carjacking. The records listed
only the numbers, not the name of the subscribers to the numbers. Agent Williams began to call the
numbers in an attempt to find out if subscribers to the numbers knew David Garner. He asked only
about Garner; he did not ask the people he was able to contact if they knew Bryce Smith, Deandrew
Foster, “Stinker” (Foster’s nickname) or anyone else. (J.A. at 338-44)
        The records were turned over to the defense at the start of the second trial on Monday,
November 21, 2005, five days after the government received them. Garner’s lawyer filed a motion
in limine at the start of trial concerning the phone records on the ground of the late disclosure. He
argued that if they had been provided earlier to him, he, like the government, could have learned the
names of the people associated with the numbers and possibly learned relevant information about
the identity of the person who stole the phone and used it that night. The district court tentatively
denied the motion provided that the government disclose to the defense the names of 1any people
identified as placing or receiving a call on the cell phone during the relevant time period. In accord
with the district court’s directive, the government provided counsel with several names
corresponding to numbers on the phone record and explained that it was unable to obtain names for
the remaining numbers because the information was “too old to retrieve.” One of the numbers on
the record during the relevant time period was that of Shalonda Melton’s cell phone, but her name
was not one of the names identified to Garner’s counsel before the start of the trial. The record does
not reflect that Melton ever told anyone that she had called Dotson’s cell phone and spoken with
someone after the carjacking, leaving the phone record as the only evidence of this call.
        The government introduced the phone records through Dotson so he could identify any
numbers familiar to him. Garner’s lawyer renewed his objection to admitting the records and also
requested a continuance of trial to allow him time to research the phone numbers in the records. The
objection was overruled and the motion for continuance denied. In denying the request for a
continuance, the district court stated that the government had “provided in a timely fashion what
they have. It’s just . . . they didn’t get it until late.” J.A. at 160-61. The court told the defense that
it could do whatever research it needed during the trial and that night and allowed the introduction
into evidence of one page containing the relevant time period of the multi-page phone records.
        The government introduced the phone records to show that Dotson’s stolen cell phone had
been used to call a Yolanda Gott. Ms. Gott was the roommate of Jennifer Love, a woman with
whom Garner had an “intimate” relationship, as described by Ms. Love. Ms. Love did not have a
cell phone and Garner sometimes called Gott’s cell phone to reach Love, although Love testified that
Garner also frequently called her land line phone or just stopped by her house without first calling.
The call made to Ms. Gott’s cell phone that night shows that the call lasted for 0 minutes, indicating
the call did not connect. Love testified that in addition to knowing Garner, she also knew Bryce
Smith. She testified that she did not know Deandrew Foster or anyone named “Stinker.”
         Dotson, who testified after Melton, then identified numbers in the records he knew, including
a call from Melton’s cell phone to Dotson’s cell phone while it was in the possession of the person
or persons who took the phone. The conversation lasted about three and one-half minutes. Because
Dotson testified after Melton, defense counsel was unable to cross-examine Melton about the call
and the record does not reflect to whom she spoke during those three and one-half minutes or about



        1
            Dotson had the service to his cell phone turned off within a few hours of the carjacking.
No. 06-3288                 United States v. Garner                                                Page 5


the substance of the conversation. As to the call to Yolanda Gott’s phone, Dotson testified that he
did not know Gotts or Love.
        All testimony was concluded that day leaving only closing arguments for the next morning.
During jury deliberations the jury asked for “the phone numbers of Shalonda Melton and Kareem’s
friend Greg who were called from Kareem’s cell phone . . . , and any other phone numbers whose
owner is known that was presented as evidence.” J.A. at 363. The court denied the request, telling
the jury it “need[ed] to rely upon . . . its own recollection as to what the evidence was.” The jury
entered a verdict of guilty on both counts and Garner appealed to this court.
                                                    II.
         Garner first argues that the government’s failure to disclose the cell phone records in a timely
manner constitutes a violation of Brady v. Maryland, 373 U.S. 83 (1963), thereby requiring a new
trial pursuant to Federal Rule of Civil Procedure 33 based on newly-discovered evidence. A district
court may grant a new trial pursuant to Rule 33 “if the interest of justice so requires.” Specifically,
Garner contends that by failing to turn over the phone records before trial, he was denied the
opportunity to put on a complete defense. He was unable to contact subscribers listed on the record
to ask if they knew Bryce Smith, Deandrew Foster, anyone named “Stinker” or any other relevant
information. The late disclosure of the records also prevented him from identifying Shalonda
Melton’s three and one-half minute phone call to the stolen cell phone, thereby denying him the
opportunity to try to impeach Melton’s testimony and question her credibility.
        Pursuant to Brady, “the suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or punishment,
irrespective of good faith or bad faith of the prosecution.” 373 U.S. at 87. Likewise, Brady also
applies to the failure to disclose evidence affecting the credibility of a witness whose “reliability . . .
may . . . be determinative of guilt or innocence.” Giglio v. United States, 405 U.S. 150 (1972).
Brady requires a showing that there is a “reasonable probability” that had the evidence been timely
disclosed to the defense the outcome would have been different. See United States v. Blood, 435
F.3d 612, 627 (6th Cir. 2006) (delay may violate Brady when the delay itself causes prejudice). If
previously undisclosed evidence is disclosed during trial, no Brady violation occurs “unless the
defendant has been prejudiced by the delay in disclosure.” United States v. Word, 806 F.2d 658, 665
(6th Cir. 1986).
        Courts consider undisclosed evidence 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.”
United States v. Bagley, 473 U.S. 667, 682 (1985). A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome. United States v. Hawkins, 969 F.2d 169, 175
(6th Cir. 1992).
        The cell phone records are material because the person or persons who attacked Kareem
Dotson and took his truck also had his cell phone, which was taken from Dotson’s pocket during the
attack. The cell phone was used to make and receive calls during the time it was out of Dotson’s
possession, presumably by the person or persons who attacked Dotson and took his truck. The
failure of the government to turn over the records within a time frame that would allow Garner’s
counsel to investigate them prejudiced defendant. The government’s characterization of the
evidence of Garner’s guilt as “overwhelming” is incorrect.
         The identifications of Garner as the perpetrator by Dotson, Smith, Melton and Melton’s sister
are all subject to question. Melton and her sister may have had personal motives to identify Garner,
a stranger to them, instead of their friends and ex-boyfriends, Bryce Smith and Deandrew Foster.
Melton also had inconsistencies and omissions in her stories, some of which are related below, that
No. 06-3288                United States v. Garner                                             Page 6


call her credibility into question. Smith, as a codefendant, may have been trying to minimize his
role by placing most of the blame on Garner; in fact, asked Melton at one point not to identify him
at all. Dotson conceded at trial that he never saw the first attacker’s face and relied primarily on
what Melton told him after the carjacking about his attacker’s identity.
        Shalonda Melton’s testimony was the primary evidence tying Garner to the crime, but when
she first spoke with the 911 operator she said she did not know who the perpetrator was. Later in
the conversation she identified the perpetrator as “Pel Pel,” but she never told the 911 operator about
her friend Bryce Smith’s involvement. Melton concedes that when she saw Bryce Smith in her yard
during the attack she presumed the other man was Deandrew Foster. Kareem Dotson testified that
he also thought his attackers were Bryce Smith and Deandrew Foster and those are the two names
he gave to the 911 dispatcher when he called from a friend’s house after the attack. He also testified
that he never saw his attacker’s face. His only knowledge that his attacker was Garner came from
Melton, who told him later that night that the attacker was “Pel Pel” after he asked “Was it Stinker?”
        Several other facts also demonstrate that the evidence against Garner is weak. The
government makes much of the fact that two phone calls were made from Dotson’s cell phone to a
Yolanda Gott after Dotson’s attacker took his cell phone. The calls are both recorded as outgoing
at 1:43 a.m.: one of the calls never connected and the other lasted only .13 minutes, making it
unlikely that anyone answered the phone. Yolanda Gott’s roommate, Jennifer Love, was a girlfriend
of Garner’s. Love did not have a cell phone and Love testified that Garner would sometimes call
her on Gott’s phone. On cross-examination, however, Love testified that she also knew Bryce
Smith.
        In addition, Agent Williams testified that the fingerprints on Dotson’s truck when it was
recovered did not match Garner’s, but the government never compared the prints to Bryce Smith or
Deandrew Foster. Agent Williams testified that based on Shalonda Melton’s testimony he believed
that only Garner was in the truck when it was stolen and he could not justify investigating anyone
else’s involvement. J.A. at 338-44. Garner had been wanted by the police before the carjacking
and, once he was identified by Melton as the attacker, it is clear that the police ceased investigating
any other suspects or probing the witnesses’ stories too deeply.
        Due to the relative weakness of the identification of Garner and the government’s heavy
reliance on the testimony of Melton to convict Garner, Melton’s credibility was paramount. The
importance of the denial of an opportunity to impeach this witness cannot be overstated. Had
Garner been able to impeach Melton’s testimony by demonstrating that she made a three and one-
half minute call to Dotson’s cell phone after the carjacking, the verdict may have been different.
Melton testified that she never talked to Garner after the carjacking, yet the phone records
demonstrate that she placed a three and one-half minute call to Dotson’s phone after the carjacking,
so she either talked to Garner or to someone else who had Dotson’s phone. She never mentioned
this phone call in any of her recitations of the events of that evening. Had Garner’s counsel been
given time to investigate the records, he may have been able to impeach Melton’s credibility by
demonstrating the discrepancy between her testimony and the evidence of the call in the phone
records or perhaps even argued that the evidence was exculpatory by suggesting that it was Bryce
Smith she was actually talking to that night and not Garner because Garner was never in the truck
and was not involved in the carjacking.
        The district court also found that because the prosecution did not get the records until just
before trial they could not have been turned over earlier. Although the prosecution may not have
received the phone records until shortly before the start of trial, the records were in the possession
of law enforcement investigators since the previous Wednesday, five days before the start of trial.
This possession is imputed to the prosecution regardless of whether it had actual possession of the
records. The government used those five days to check the phone numbers to try to make
No. 06-3288                United States v. Garner                                              Page 7


connections to Garner and concedes that it took “an extensive amount of time” to check the phone
numbers in the records. The defense should have been afforded at least the same amount of time
to conduct its own investigation, particularly because the FBI investigator concedes that he only
asked about connections to David Garner – he did not ask any questions about connections to Bryce
Smith, Deandrew Foster or any other individuals. J.A. at 158-61. When asked about this, he
testified that he couldn’t justify asking about anyone else because there was no evidence to support
that it was anyone but Garner alone in the truck. J.A. at 338.
        The government also points out that during his testimony, Kareem Dotson identified
Shalonda Melton’s cell phone number on the log. However, Dotson testified after Melton, so the
only way to question Melton would be to request that the court recall her so Garner’s counsel could
ask about the call. However, Garner’s counsel may have been reluctant to recall the government’s
key witness and ask crucial questions relating to his client’s case without the ability to do his own
investigation first. As he explained to the court, he should not be prejudiced by the government’s
violation of the discovery order for failure timely to turn over the records; he was entitled to conduct
his own investigation into the records and should not be forced to rely solely on the government’s
one-sided investigation.
        The government also states that Shalonda Melton’s cell phone number had been revealed
during the first trial so Garner’s counsel should have recognized it in the phone records, despite the
fact that it was buried on a log of multiple pages with many other numbers. The government also
argued that Melton’s number was in the record from the first trial and therefore should have been
accessible to Garner’s counsel during the second trial. However, Garner’s counsel had not yet
received the transcript from the first trial, despite putting in an expedited order with hopes of
receiving it before the second trial. Given that the issue of the cell phone records was not present
in the first trial and Garner’s counsel had no other way of knowing at the time that Melton had
spoken with the person who had Dotson’s cell that night, he would have had no reason to record or
recall Melton’s cell phone number from the first trial.
        By failing to turn over the records sooner, Garner did not receive a fair trial. Defendant’s
theory at trial was that Bryce Smith and Deandrew Foster committed the crime together and Garner
was not involved in any way. The defense argued that Smith and Shalonda Melton, who had been
romantically involved previously, lied about the events to protect Smith and Foster, who used to date
Melton’s sister. The defense also implied that Shalonda Melton may have set up Kareem Dotson
to be robbed by calling Smith earlier in the day and telling him that Dotson would be at her house
that evening and leaving around midnight. This theory has some support in that Melton talked to
Smith by phone earlier in the day of the carjacking and apparently talked to Smith by phone after
the carjacking as well, despite the fact that the two were no longer dating. She also called Dotson
around 11 p.m. to invite him to her house only to tell him to leave an hour after he arrived.
        That a reasonable probability existed that the outcome of the trial might have been different
had Garner been able to investigate the cell phone records before trial is demonstrated by the fact
that the jury sent out a question during deliberations asking about Shalonda Melton’s cell phone
number. This request shows that the jury recognized the importance of the cell phone records to
Garner’s guilt case. Had Garner’s counsel had the information in a timely manner, Garner’s defense
could have been more complete and the credibility of Shalonda Melton, the key government witness,
likely diminished.
                                                  III.
        Alternatively, even if the late disclosure of the cell phone records does not amount to a Brady
violation, the denial of the request for a continuance to enable Garner’s counsel to conduct the
necessary investigation into the records was an abuse of discretion warranting a new trial. We
No. 06-3288                United States v. Garner                                             Page 8


review denial of a motion for a continuance for abuse of discretion. Ungar v. Sarafite, 376 U.S. 575,
589 (1964); United States v. Crossley, 224 F.3d 847, 854 (6th Cir. 2000). To demonstrate reversible
error, the defendant must show that the denial resulted in actual prejudice to his defense. Actual
prejudice can be shown if the continuance “would have made relevant witnesses available or added
something to the defense.” See, e.g., United States v. King, 127 F.3d 483, 487 (6th Cir. 1997)
(emphasis added); United States v. Frost, 914 F.2d 756, 765 (6th Cir. 1990) (citing United States
v. Wirsing, 719 F.2d 859, 866 (6th Cir. 1983)).
         As the Supreme Court instructs, “[t]here are no mechanical tests for deciding when a denial
of a continuance is so arbitrary as to violate due process. The answer must be found in the
circumstances present in every case, particularly in the reasons presented to the trial judge at the
time the request is denied.” Ungar, 376 U.S. at 588-91. The question before the district court judge,
and the question that now faces us, was whether admission of the cell phone records by the
government without giving Garner adequate time to review the same records might have so affected
the defensive ability of Garner’s counsel as to necessitate a continuance to enable additional
preparation and ensure a fair trial. A reasonable time for adequate preparation of the accused’s
defense is the first essential of trial fairness, Ungar, 376 U.S. at 588-91; United States v. Ploeger,
428 F.2d 1204, 1205-06 (6th Cir. 1970), and “a myopic insistence upon expeditiousness in the face
of a justifiable request for delay can render the right to defend with counsel an empty formality.”
Ungar, 376 U.S. at 589.
        At trial, the district court erroneously found that “defense counsel had adequate time to
investigate each of the numbers . . . and could have discovered that one of the numbers belonged
to Melton through numerous sources,” including web-based cell phone directories. FBI Agent
Williams had the records for five days and was able to identify only some of the subscribers during
that time; it is difficult to see how a defense lawyer with a trial starting immediately would have
time properly to investigate the records without neglecting the trial. Garner’s counsel did have an
investigator start to look at the records right away, but one day was not enough time for the
investigator to identify and call the numbers on the log. In an argument that actually bolsters
Garner’s point in this regard, the government attorney countered that the reason the government did
not know the subscribers to all the numbers was because the “subscriber information [is] too old to
retrieve.” She went on to explain how difficult it was for Agent Williams to obtain the information
from the cell phone company and that is why the information was received so late. If even the FBI
could not get the subscriber information timely and easily, it is difficult to see why the trial judge
ruled that Garner’s attorney should be able to get the information within a day.
        This ruling did not adequately consider the time pressures faced by counsel during a one-day
trial: we see no way Garner’s counsel could have given his full attention to the trial and investigated
the phone records at the same time. Furthermore, contrary to the district court’s recommendation
to Garner’s counsel that he use a web-based cell phone directory, we know of no accurate web-based
cell phone directories that are easily accessible to the public – the only way counsel could have
adequately investigated the records was through old-fashioned foot work and calling of each of the
numbers on the log.
        Due to the importance of the phone records, Garner’s counsel was entitled to time to
investigate the records. A short continuance – perhaps only of a week – would have been adequate.
Garner’s counsel argues that had he had access to the phone records for the five days that Agent
Williams had them without disclosing them, he would have investigated other potential connections
between individuals listed on the phone records and Smith, Foster and Melton. For the same reasons
discussed in more detail above, Garner was prejudiced by the failure to obtain a continuance to allow
more time to fully investigate the cell phone records and put on a complete defense, including the
possible impeachment of a key witness.
No. 06-3288                United States v. Garner                                            Page 9


        Here, we are left with the firm conviction that a continuance would not have been
burdensome on the government or the trial court while it would have provided the defendant with
an opportunity to prepare an adequate defense against the government’s entire case against him –the
arguably suspect testimony of Smith and Melton. The cell phone records could have been reviewed
and an important defense theory possibly bolstered had a short continuance been granted. Under
the circumstances it was an abuse of discretion not to do so.
                                          CONCLUSION
        It is clear that the police investigation was conducted in a manner to support what the police
believed – that David Garner was the primary attacker in this carjacking. This belief arose based
almost solely on Shalonda Melton’s identification of Garner as the attacker, despite her possible
motive to protect two friends well known to her – her former boyfriend, Bryce Smith, and her
sister’s former boyfriend, Deandrew Foster. Given the initial uncertainty of the identity of the
attacker by all the witnesses, combined with Melton’s possible motivation to protect two friends at
the expense of someone unknown to her, the opportunity to fully investigate the phone records may
have provided counsel valuable evidence to exonerate his client or to at least raise a reasonable
doubt as to his guilt.
      For the foregoing reasons, the judgment of the district court is reversed and the case
remanded for a new trial.
No. 06-3288                     United States v. Garner                                                        Page 10


                                                 _______________
                                                    DISSENT
                                                 _______________
         GRIFFIN, Circuit Judge, dissenting. I respectfully dissent.
        Contrary to the majority’s characterization, the evidence that defendant Garner was the
carjacker was not “weak,” but overwhelming. Specifically, the proofs included: (1) co-defendant
Bryce Smith’s testimony that he and Garner committed the carjacking; (2) Shalonda Melton’s
eyewitness identification of defendant as the carjacker; (3) Kareem Dotson’s and Melton’s testimony
that the carjacker identified himself as “Pel Pel”; (4) the testimony of several witnesses that
defendant is known commonly in the community as “Pel Pel”; and (5) the cell phone record that
the carjacker called a roommate of Garner’s girlfriend.
        Also, the majority erroneously concludes that “[b]ecause Dotson testified after Melton,
defense counsel was unable to cross-examine Melton about the call . . . .” Although Dotson testified
after Melton, defense counsel was free to recall Melton to testify during defendant’s case. See e.g.
United States v. Schnapp, 322 F.3d 564, 572 (8th Cir. 2003), and United States v. Orlando-Figueroa,
229 F.3d 33, 46-47 (1st Cir. 2000). Defense counsel could have recalled Melton and made a motion
to limit the scope of her testimony on recall, but chose to do neither. On appeal, Garner does not
claim ineffective assistance of counsel.
        My colleagues hold that a Brady v. Maryland, 376 U.S. 83 (1963), violation occurred
because the police possessed the cell phone records for five days before they were given to defense
counsel, and had they been timely1disclosed, a “reasonable probability” existed that the jury would
have rendered a different verdict. I disagree with both conclusions. First, I view the disclosure
within five days to be timely. On this issue, I agree with the ruling of the district judge:
         Dealing first with the issue of timeliness, the prosecution could have disclosed the
         phone records to defense counsel at a slightly earlier date. However, the delay was
         not egregious, as the government itself did not obtain the phone records until five
         days before the second trial. Moreover, the government maintains that it was
         unaware of any potential evidentiary value, let alone any exculpatory value, that the
         records may have held until the day before the trial was to commence. When it did
         determine that the records provided relevant evidence, the government provided
         copies of the phone log to the defense.
It is noteworthy that the majority cites no authority that a five-day delay in providing records under
similar circumstances amounts to a Brady violation. Cf. United States v. Bencs, 28 F.3d 555, 561
(6th Cir. 1994) (“Brady generally does not apply to delayed disclosure of exculpatory information,
but only to a complete failure to disclose.”). “Delay only violates Brady when the delay itself causes
prejudice.” Bencs, 28 F.3d at 561 (quoting United States v. Patrick, 965 F.2d 1390, 1400 (6th Cir.
1992), vacated and remanded on other grounds 113 S. Ct. 1378 (1993)).




         1
           It is unclear whether the majority reviews the Brady issue de novo or for an abuse of discretion. See United
States v. Heriot, 496 F.3d 601 (6th Cir. 2007), and the cases cited therein, on the conflicting standards of review. Under
either standard, I would hold that the trial court did not commit error requiring reversal.
No. 06-3288                United States v. Garner                                           Page 11


       On the issue of prejudice, I also agree with the trial judge:
       Evidence is considered material only if there is a “reasonable probability that, had
       the evidence been disclosed to the defense,” the outcome would have been different.
       Zuern v. Tate, 336 F.3d 478, 484 (6th Cir. 2003). The defendant is not necessarily
       required to show that the introduction of the evidence in question would have led to
       a different verdict. Rather, the appropriate inquiry is whether in the absence of the
       evidence the defendant “received a fair trial, understood as a trial resulting in a
       verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). In the
       instant case, the Court must answer this question in the affirmative.
       Defense counsel, who was also trial counsel, has now possessed the cell phone records for
over twenty-two months. However, no newly discovered evidence was cited to the trial court or to
us on appeal that would affect the outcome of a new trial. Absent some showing of prejudice or
evidence that the verdict was not worthy of confidence, no error requiring reversal occurred in the
disclosure of the cell phone records. Kyles, 514 U.S. at 434.
        Next, we review the denial of a motion for a continuance for an abuse of discretion. United
States v. Crossley, 224 F.3d 847, 854 (6th Cir. 2000). As the Supreme Court stated in Morris v.
Slappy, 461 U.S. 1, 11 (1982):
       Trial judges necessarily require a great deal of latitude in scheduling trials. Not the
       least of their problems is that of assembling the witnesses, lawyers, and jurors at the
       same place at the same time, and this burden counsels against continuances except
       for compelling reasons. Consequently, broad discretion must be granted trial courts
       on matters of continuances. . . .
        Although I might have granted defendant’s motion for a continuance, I cannot conclude that
the trial judge abused his discretion in refusing to do so. At oral argument, defense counsel
conceded that his investigator was available to assist him in evaluating the cell phone records. Thus,
even if defense counsel was preoccupied in the trial of this case, his investigator was not and had
over twenty-four hours to investigate the records. Before the conclusion of the trial, had defendant
thought that the time to investigate the records was inadequate, a second motion for a continuance
could have been filed. It was not.
      Regarding the efforts of the defense investigator to track the persons to whom calls were
made or received, the trial judge made the following findings:
       [D]efense counsel had adequate time to investigate each of the numbers that
       appeared on the record for the relevant time period, and could have discovered that
       one of those numbers belonged to Melton through numerous sources. For example,
       defense counsel could have interviewed witnesses about their possible knowledge
       of the numbers or consulted a web-based telephone directory. While Garner claims
       that Defense Investigator Gambetta conducted an investigation into the numbers for
       which the prosecution provided identification information, he gives no indication of
       the investigator’s attempts to identify the holders of the remaining numbers. More
       importantly, Defendant Garner fails to show that the investigator was unable, or
       lacked the capability, to identify Melton’s number.
       Moreover, defense counsel was aware from Melton’s testimony in the first trial that, on the
night of the carjacking, she spoke to co-defendant Smith, who asked her not to press charges. A
reasonable inference known to defense counsel, but never asked, is that the record of the call
between Melton and Dotson’s cell phone was this phone conversation between Melton and co-
No. 06-3288                United States v. Garner                                            Page 12


defendant Smith. If an uncertainty exists on this factual issue, it arises from defense counsel’s
strategic decision not to ask the question.
         For these reasons, defendant has failed to sustain his burden of establishing that the trial
judge abused his discretion in denying the motion for a continuance. Moreover, absent a showing
of prejudice, error, if any, in refusing to grant the motion is harmless error. FED. R. CRIM. P. 52(a);
Williams v. Stewart, 441 F.3d 1030, 1057 (9th Cir. 2006) (finding that district court did not abuse
its discretion in denying motion for continuance where petitioner did “not demonstrate[] that he
suffered prejudice as a result of the failure to grant the continuance”); HC Gun & Knife Shows, Inc.
v. City of Houston, 201 F.3d 544, 550 (5th Cir. 2000) (noting that appellate court “will not substitute
[its] judgment concerning the necessity of a continuance for that of the district court, unless the
complaining party demonstrates that it was prejudiced by the denial”) (internal quotations and
citation omitted); Ahern v. Scholz, 85 F.3d 774, 792 (1st Cir. 1996) (holding that “even if” the
district court abused its discretion in denying appellant’s motion for a continuance, “the error was
harmless”); see also United States v. Tinson, 23 F.3d 1010 (6th Cir. 1994) (holding that “any error
in [district court’s] granting the continuance was harmless”).
       I would affirm and respectfully dissent. In my view, the reversal of defendant’s convictions
and remand for a new trial is an unwarranted futile exercise and a waste of valuable judicial
resources.
