            Case: 14-10343   Date Filed: 02/02/2015   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10343
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:11-cr-00356-JSM-EAJ-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

VALARIAN JAYMONN BROWN,
a.k.a. Jay,
a.k.a. Cuz,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (February 2, 2015)

Before ED CARNES, Chief Judge, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Valarian Brown, proceeding pro se, appeals the district court’s denial of his

motion for a new trial. See Fed. R. Crim. P. 33. He contends that he is entitled to

a new trial because the government suppressed evidence in violation of his due

process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

                                           I.

       Brown went to trial in December 2011 on three charges: (1) conspiracy with

intent to distribute five kilograms or more of cocaine, (2) conspiracy to possess

with intent to distribute a detectable amount of marijuana, and (3) possession with

intent to distribute 500 grams or more of cocaine. 1 Brown had been part of a long

running conspiracy that, for nearly a decade, moved large quantities of cocaine and

marijuana from Texas into Florida. His personal involvement in the conspiracy

lasted from 2003 to 2007 and from 2010 until his arrest in 2011. And a Drug

Enforcement Administration (DEA) task force had begun investigating him in

2005. As might be expected in a trial following a long investigation, the

government’s case was rather lengthy. It included testimony from four co-

conspirators and two codefendants describing the role Brown played in

orchestrating the shipment of drugs from Texas to Florida, as well as testimony

from several federal and state agents describing interceptions of the conspirators’

   1
     Count One was brought under 21 U.S.C. §§ 841(a)(l), (b)(l)(A)(ii) and 846. Count Two
was brought under 21 U.S.C. §§ 84l(a)(l), (b)(l)(C) and 846. And Count Three was brought
under 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii) and 18 U.S.C. § 2.


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drug shipments and the arrest of Brown after a controlled delivery. After a five

day trial, the jury found Brown guilty on all three counts.

      At the sentence hearing, Brown’s attorney raised an issue that the Assistant

United States Attorney (AUSA) who tried the case had brought to his attention:

The Pinellas County Sheriff’s Office (PCSO) had recently concluded an internal

investigation of its narcotics unit that implicated several of the officers who

worked on the investigation of Brown. Counsel specifically mentioned Detective

Jeffrey McConaughey, a DEA Task Force Agent. The internal investigation had

revealed that McConaughey documented a $200 payment to a confidential

informant that he never actually made, and he resigned from the PCSO shortly

after the investigation concluded. McConaughey had served as the case agent

during the 2011 portion of the investigation of Brown and his co-conspirators.

McConaughey was in the courtroom during Brown’s trial, but he did not testify.

      The AUSA explained that she had learned of the existence of the PCSO’s

investigation shortly before Brown’s trial was to begin. At that point the

investigation was still in progress, which meant that she could not learn what

McConaughey was under investigation for because the PCSO, citing state law, had

refused to disclose any details. She consulted with her office’s ethics department




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and decided not to call McConaughey as a witness.2 The district court decided that

the internal investigation information was irrelevant to the sentence hearing

because Brown had already been found guilty and had not brought a motion for a

new trial. The court sentenced Brown to life in prison.

       Brown appealed but did not raise any issue about the internal investigation.

We affirmed his convictions and his sentence. See United States v. Brown, 513 F.

App’x 830, 833 (11th Cir. 2013) (unpublished). Several months after our decision

issued, Brown filed a pro se motion in the district court seeking a new trial. See

Fed. R. Crim. P. 33. He argued that his due process rights had been violated by the

government’s failure to disclose the investigation of McConaughey and three other

officers. Those three officers were Deputies Jason Bahret and Michael

Papamichael of the PCSO, and Detective Bernard Berry of the Tampa Police

Department. 3 Deputy Bahret testified at Brown’s trial. Deputy Papamichael and

Detective Berry did not. The district court denied Brown’s motion without holding

an evidentiary hearing. This is his appeal.

   2
      Instead, the government had DEA Task Force Agent Levi Cobarras serve as the case agent
and testify at trial. Agent Cobarras had led the 2005 portion of the investigation of Brown and
his co-conspirators.
   3
     In arguing his motion to the district court, Brown referred to the last deputy as “Brian
Berry.” As the government pointed out, there was no one on its witness list with that name. It
assumed that Brown was referring to Bernard Berry, a member of the Tampa Police Department
who was on the government’s witness list but did not testify at trial. We will assume the same.
Doing so makes no difference to our analysis because Brown failed to present any evidence that
anyone named “Brian Berry” or “Bernard Berry” had been under investigation by the PCSO
before or during Brown’s trial.


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                                         II.

      We review the district court’s denial of a motion for a new trial only for an

abuse of discretion. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir.

2005). To succeed on a motion for a new trial based on a Brady violation, a

defendant must show four things: (1) the government possessed evidence that was

favorable to him; (2) he did not possess that evidence and could not obtain it with

reasonable diligence at the time of trial; (3) the government suppressed that

evidence; and (4) if that evidence had been disclosed to him, there is a reasonable

probability that his trial’s outcome would have been different. United States v.

Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). To meet the first element, a

defendant must show that the prosecutor or someone over whom she had authority

possessed the evidence before or during the defendant’s trial. See United States v.

Naranjo, 634 F.3d 1198, 1212 (11th Cir. 2011). Mere speculation that the

evidence was in the government’s possession is not enough. See id.

      We begin with the one officer who was not a member of the PCSO,

Detective Berry. The district court found that Brown had failed to present any

evidence that Detective Berry was ever under investigation. Instead, he is a

member of the Tampa Police Department and thus would not be a target of an

internal investigation by the PCSO. The district court therefore did not abuse its




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discretion in concluding that Brown had not established a viable Brady claim based

on information regarding an investigation of Detective Berry.

      As for Brown’s Brady claims based on the two PCSO deputies, they both

suffer from the same flaw. After Brown asserted in his motion for a new trial that

the government had suppressed material evidence regarding the PCSO’s

investigations of Deputies Papamichael and Bahret, the United States reached out

to the PCSO for information about those investigations. The PCSO informed the

United States that the investigations of those two deputies did not begin until after

Brown’s trial had concluded, and the United States relayed that information to the

district court. The government neither possesses nor suppresses information under

Brady unless the information is available to the government at some time before

the conclusion of the trial. See United States v. Hansen, 262 F.3d 1217, 1234–35

(11th Cir. 2001); United States v. Elmore, 423 F.2d 775, 779 (4th Cir. 1970)

(explaining that Brady applies where “the government did not disclose exculpatory

information in its possession either before or during trial”). Brown offered no

evidence that the investigation of Deputy Papamichael or the investigation of

Deputy Bahret began before his trial had concluded. The district court determined

that Brown’s failure to provide such evidence meant that he could not meet the

possession or suppression elements of Brady for his claims based on the deputies.

That was not an abuse of discretion.


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       Finally, we address Brown’s claim based on the investigation of

McConaughey, who was under investigation at the time of trial but did not testify.

The district court determined that Brown had not satisfied the fourth Brady

element because he had not established a reasonable probability that his trial would

have had a different outcome if he had been informed about the investigation of

McConaughey. The court found that: (1) the PCSO investigation had no

impeachment value because McConaughey did not testify at trial; (2) the PCSO

investigation did not cast any doubt on the “ample evidence” of Brown’s guilt,

including the testimony from his co-conspirators and codefendants; 4 and (3) there

was no support for Brown’s assertion that none of his codefendants would have

agreed to testify if the PCSO investigation had come to light. See Wright v.

Hopper, 169 F.3d 695, 702 (11th Cir. 1999) (holding that testimony is not

“material” under Brady if it does not exculpate the defendant or impeach the

witnesses who testified against him at trial). It was not an abuse of discretion to




   4
     In his brief to this Court, Brown attached an affidavit from one of his codefendants, Bilal
Francis, attesting that McConaughey had used the promise of a sentence reduction to persuade
Francis to lie when he testified against Brown at trial. That affidavit was not filed in the district
court and is not part of the record on appeal, so we will not consider it. See United States v.
Cross, 928 F.2d 1030, 1053 (11th Cir. 1991) (“This court cannot consider a claim that rests on
factual allegations outside the record which the district court has never considered.”).


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deny Brown’s Brady claim that was based on information about the investigation

of McConaughey. 5

       AFFIRMED.




   5
      Brown also contends that the district court should have held an evidentiary hearing. He did
not file a motion with the district court seeking a hearing, so we review only for plain error. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Brown offers nothing to
show that such a hearing would have changed the outcome of his motion, so this contention fails.
See United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).


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