                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              SEP 16 2002
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 01-4116
                                                            (D. Utah)
 DANIEL CARD,                                     (D.Ct. No. 2:99-CR-674-B-01)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, Circuit Judge, BRORBY, Senior Circuit Judge, and
MURPHY, Circuit Judge.



      A jury convicted Daniel Card on charges stemming from the armed robbery

of two credit unions. On appeal, Mr. Card presents three challenges to his

convictions: (1) the government failed to give notice of an alibi rebuttal witness;

(2) the evidence was insufficient to sustain his convictions; and (3) the

government failed to disclose evidence relevant to the credibility of a police



      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
officer who testified for the government. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we affirm.



                                  BACKGROUND

      Sara Beth Blackhurst was working at her desk when two men entered

Alpine Credit Union on October 18, 1996. The shorter of the two, later shown to

be Mr. Card, pulled out a sawed-off shotgun and aimed it at Ms. Blackhurst. The

shorter robber ordered Ms. Blackhurst to get down on the floor and stood over her

with the sawed-off shotgun pointed at her back, while the taller robber, later

alleged to be William Leon, 1 forced one of the tellers to put money from two cash

drawers into a bag. The robbers made off with $16,549.



      The credit union employees did not identify the robbers because both men

wore large hooded sweatshirts, large dark sunglasses, and bandanas over their

faces. Ms. Blackhurst thought she saw the hands of the shorter robber, and told

investigators he was Caucasian. However, after viewing the surveillance

photographs, she realized he wore gloves and she could not have seen his hands.

One of the tellers, Stephanie Bringhurst, testified she could see their foreheads


      1
         The jury did not reach a verdict on the charges against Mr. Leon stemming from
this robbery.


                                          -2-
and both robbers were Caucasian. However, the other teller working at the credit

union during the robbery testified she could not discern the shorter man’s race.



      In a separate incident, two armed, masked men entered Beehive Credit

Union on December 13, 1996. The shorter robber, later shown to be Mr. Card,

jumped over the counter into Cari Cooper’s teller station and ordered her to get

off the telephone and on the floor. Then, the taller robber moved behind the

counter and pointed the barrel of a sawed-off shotgun at Ms. Cooper’s head.



      The shorter robber held a small pistol in his left hand, when he threatened

two other tellers and a customer, forcing them to get down on the floor. Then he

ordered a teller to put money in a bag. The teller placed a dye pack from each

drawer into the bag. Very shortly after the robbers left the credit union, a

passerby found a grocery bag and money covered in red dye scattered in the road

about one-half block west of Beehive Credit Union. Of the $1,156 stolen from

the credit union, police recovered $1,146.



      Once again, the robbers could not be identified. They were covered from

head to toe, with sheets over their heads, masks covering their faces and gloves

on their hands. The shorter robber wore a green mask which the tellers described


                                         -3-
at trial. The tellers and a customer told police the shorter robber was either

African-American or Hispanic, based on his voice and the language he used.



      A grand jury indicted Daniel Card and William Leon for the armed

robberies of the two credit unions. Specifically, Mr. Card was charged with two

counts of armed credit union robbery in violation of 18 U.S.C. § 2113(a) and (d),

two counts of using and carrying a sawed-off shotgun during the robberies in

violation of 18 U.S.C. § 924(c)(1), and two counts of possession of a firearm by a

convicted felon in violation of 18 U.S.C. § 922(g)(1).



      After jury selection, the government dismissed the felon in possession

charges against Mr. Card. At trial, the government introduced the sawed-off shot

gun and a mask used in the second robbery. Mr. Card’s brother also testified Mr.

Card told him about the robberies. After the jury convicted Mr. Card on each of

the four remaining counts, the district court sentenced him to 406 months in

prison, to be followed by five years of supervised release. Mr. Card filed a timely

notice of appeal.




                                         -4-
                                   DISCUSSION

Impeachment of Alibi Witness

      In the first challenge to his convictions, Mr. Card argues the district court

erred when it did not exclude testimony and records used to impeach Mr. Card’s

alibi witness. During a motions hearing, Mr. Card requested “the fruits of any

investigation” concerning school records. The district court denied the request

and declined to “require the government to turn over everything they get as a

result of their efforts.” At trial, Mr. Card’s girlfriend, Catherine Cope, attempted

to provide an alibi for him by vouching for his whereabouts on the morning of the

first robbery. Ms. Cope testified they drove to Salt Lake City, Utah, with her

children on October 18, 1996. She testified they left their home in Orem, Utah,

“early in the morning, possibly 8:00, 8:30,” arriving at her sister’s house in Salt

Lake City around 9:00 or 9:30 a.m. The robbery took place at 9:30 a.m. During

its cross-examination, the government attacked her account of the day’s events.

Even though the government was armed with a school record signed by Ms. Cope

that showed she checked her son out of school at 11:39 a.m., October 18, 1996,

Ms. Cope denied checking her son out of school at 11:39 a.m. that day.



      The government then called the school secretary as a rebuttal witness. The

secretary authenticated and laid foundation for the school record and testified she


                                         -5-
checked Ms. Cope’s son out of school at 11:39 a.m. on October 18, 1996. By

impeaching Ms. Cope’s testimony concerning their whereabouts, the government

was able to refute Mr. Card’s alibi for the first robbery, which occurred at 9:30

a.m. on October 18, 1996.



      Mr. Card argues the government violated Federal Rule of Criminal

Procedure 12.1 by failing to give Mr. Card notice of the secretary’s testimony and

the school record. Rule 12.1(a) requires the defendant to give notice of his

intention to offer an alibi defense and the names and addresses of alibi witnesses

within ten days of a written demand from the government. United States v.

Pearson, 159 F.3d 480, 483 (10th Cir. 1998). “Rule 12.1(b) places a reciprocal

witness identification requirement on the government, requiring it to disclose

witnesses it intends to use to ... rebut the testimony of the defendant’s alibi

witnesses.” Id. The rule places a continuing duty to disclose on the parties. Id.

Under Fed. R. Crim. P. 12.1, the court “may” exclude the testimony of any

witness not disclosed in accordance with the rule. Pearson, 159 F.3d at 483. We

review the district court’s decision to allow the alibi rebuttal evidence for an

abuse of discretion. See id.; United States v. Bissonette, 164 F.3d 1143, 1145 (8th

Cir. 1999).




                                          -6-
      Mr. Card’s claim the district court committed structural constitutional error

when it ruled “the government has no duty to give notice of its alibi rebuttal

witnesses” is without merit. First, he misapprehends the district court’s ruling.

The district court merely ruled the government was not required to provide the

defense with a copy of the school record indicating Mr. Card’s girlfriend checked

her child out of school at 11:39 a.m. on the day of the first robbery. The court did

not make any ruling as to whether Mr. Card was entitled to notice of a rebuttal

witness. Second, the government did disclose the rebuttal witness. It included

the custodian of records for Alpine School District in its Notice of Alibi Rebuttal

Witnesses on December 1, 2000. Therefore, contrary to Mr. Card’s polemic,

Federal Rule of Criminal Procedure 12.1(b), requiring disclosure of witnesses, is

not implicated.



      We turn next to whether the district court improperly admitted the school

records. Rule 12.1 does not require the production of alibi rebuttal documents.

Although Fed. R. Crim P. 16 sometimes requires the voluntary production of

documents, there is no general duty to produce documents that may be offered

solely as rebuttal evidence. The Rules require disclosure of rebuttal evidence

only if the evidence is material to the preparation of a defense for the defendant.

See Fed. R. Crim. P. 16(a)(1)(C). Rebuttal evidence is only material to the


                                         -7-
defense “if it could be used to counter the government’s case or to bolster a

defense,” and is not “deemed material merely because it would have dissuaded the

defendant from proffering easily impeached testimony.” United States v. Stevens,

985 F.2d 1175, 1180 (2d Cir. 1993).



      Furthermore, Mr. Card knew the government subpoenaed the school record

to rebut his alibi and he had access to the same record. Indeed, contrary to Mr.

Card’s claim he had “no means of knowing that the alibi defense he presented was

untrue or inaccurate in any way,” Mr. Card’s girlfriend obtained a copy of the

school record the week before she testified. Based on the record before us, we

are satisfied the district court did not abuse its discretion when it admitted the

school record into evidence and Mr. Card suffered no prejudice by its admission.



Sufficiency of the Evidence

      In the second challenge to his convictions, Mr. Card argues the evidence

was insufficient to sustain the guilty verdicts. “Our standard of review is well

established. The sufficiency of the evidence to support a criminal conviction is a

question of law to be reviewed de novo. In doing so, however, we view the

evidence and all reasonable inferences therefrom in the light most favorable to the

jury verdicts.” United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir. 2002).


                                          -8-
      Mr. Card contends the evidence at trial was insufficient to support his

conviction because: 1) both robbers of Alpine Credit Union were white and Mr.

Card is African-American; 2) the shorter robber in the Beehive Credit Union

robbery was left-handed and Mr. Card is right-handed; 3) none of the witnesses

saw Mr. Card with any red dye on his person or his clothing and there was no red

dye on his shotgun; 4) the shotgun “was not exclusively tied to [Mr.] Card;” 5)

there were no prints or other forensic evidence indicating Mr. Card had ever been

in the recovered truck or used or touched any of the disguises worn by the

robbers; and 6) the government’s witnesses “suffered from well known biases,”

they were not credible and their testimony was inconsistent.



      The majority of Mr. Card’s contentions invite us to enter the province of

the jury. This we will not do. “[O]ur function as a court of review prevents us

from re-weighing the testimony and coming to a conclusion at odds with the one

reached by the jurors.” Higgins, 282 F.3d at 1275. We must uphold a conviction

if “any rational jury could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Smith, 131 F.3d 1392, 1399 (10th Cir.

1997), cert. denied, 522 U.S. 1141 (1998). We will not, as a matter of law, hold

testimony incredible unless it is unbelievable on its face, i.e., facts that were

physically impossible for the witness to observe or “events that could not have


                                          -9-
occurred under the laws of nature.” Tapia v. Tansy, 926 F.2d 1554, 1562 (10th

Cir.) (quotation marks and citations omitted), cert. denied, 502 U.S. 835 (1991).

The inconsistent testimony, biases and credibility issues were all before the jury

when it deliberated. The jury was free to accept the government witnesses’

testimony and to disbelieve Mr. Card’s “protestations of innocence.” Higgins,

282 F.3d at 1275. The apparent inconsistencies in the witness accounts of the

robberies, and the criminal background and motive to lie of some key government

witnesses, were for the jury, not this court, to resolve. Tapia, 926 F.2d at 1562;

Smith, 131 F.3d at 1399.



      Viewing the evidence in the light most favorable to the verdict, a rational

jury could conclude Mr. Card committed both robberies. The jury did not have to

embrace the assumptions advanced by Mr. Card. In light of the credit union video

tape and all the witnesses’ testimony, the jury could reasonably believe the tellers

saw the fair skin of the taller robber and mistakenly assumed both robbers were

Caucasian. The jury did not have to assume the shorter robber was left-handed

simply because he held the gun in his left-hand. And, the alleged paucity of

direct evidence of Mr. Card’s guilt is not dispositive in a sufficiency of the

evidence claim. See Smith, 131 F.3d at 1399 (holding a verdict may be based

solely on testimony of allegedly unreliable witnesses even if it is not corroborated


                                         -10-
by physical evidence).



      Our independent review of all the evidence also satisfies us the evidence

linking Mr. Card to the robberies is more than sufficient. Mr. Card’s girlfriend

presented an apparently false alibi at trial concerning his whereabouts during the

first robbery. And, an eyewitness identified the mask found behind a coffee table

in Mr. Card’s home as the one worn by the taller robber during the second

robbery. Mr. Card purchased a shotgun from VanWagon Finance two days before

the first robbery. When Mr. Card’s brother saw him with a sawed-off shotgun,

Mr. Card told his brother he purchased it from VanWagon’s. Police recovered the

shotgun from a man who testified he bought the gun from Mr. Card for $35.

Witnesses identified this sawed-off shotgun as the one used in both robberies.

Perhaps most damaging, Mr. Card’s brother testified Mr. Card told him about

both robberies, the details of which were corroborated by eyewitness testimony.



      Based on this evidence, we conclude the government presented sufficient

evidence to sustain Mr. Card’s convictions and reject his challenge to the verdict

based on the sufficiency of the evidence.




                                        -11-
Brady Material

      In the final challenge to his convictions, Mr. Card contends the government

violated Brady v. Maryland, 373 U.S. 83 (1963), and the district court erred when

it denied his motion for a new trial. Specifically, he claims the government

improperly failed to disclose evidence he could have used to impeach the

credibility of a police detective who testified for the government.



      After the trial, but before sentencing, the prosecutors notified defense

counsel that a Provo city police detective and a defendant “testified discrepantly”

at a suppression hearing in another case. The judge in the unrelated case found

the defendant’s version of the events during an interview was more consistent

with the extrinsic evidence than the detective’s version and granted the

defendant’s motion to suppress evidence.



      Mr. Card filed a motion to set aside the jury verdict and for a new trial,

arguing he would have moved to suppress all evidence obtained by the detective

and would have aggressively challenged the detective’s credibility if he had been

aware of the detective’s “perjured testimony” in the other case. After a hearing,

the district court denied the motion.




                                        -12-
      Mr. Card claims “[t]he Brady doctrine and due process of law entitle him to

a new trial wherein he can use [the evidence undermining the detective’s

credibility] in his defense.” Brady v. Maryland held “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 to punishment.” Brady, 373 U.S.

at 87. “When the ‘reliability of a given witness may well be determinative of

guilt or innocence,’ nondisclosure of evidence affecting credibility falls within

this general rule.” Giglio v. United States, 405 U.S. 150, 154 (1972) (quoting

Napue v. Illinois, 360 U.S. 264, 269 (1959)). To establish a violation under

Brady and Giglio, the defendant must demonstrate “(1) the prosecution

suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the

evidence was material.” United States v. Combs, 267 F.3d 1167, 1172 (10th Cir.

2001). We review the district court’s denial of a motion for a new trial based on

allegations of a Brady violation de novo. Id.



      The government concedes it suppressed evidence in this case. 2 However,

the parties disagree on whether the evidence was favorable to Mr. Card and



      2
          The government recognizes neither bad faith nor culpability is required and
knowledge of evidence on the part of one Assistant United States Attorney is imputed to
the entire office.


                                          -13-
whether the evidence was material. According to Mr. Card, “under Brady, [Mr.

Card] is entitled to reversal, because there is a reasonable probability that the

jurors would have acquitted or failed to reach a verdict in [Mr. Card]’s case, had

they known of the government’s key investigator’s past violation of the

Constitution, dishonesty under oath, and lack of professional integrity.” On the

other hand, the government argues “absent any suggestion that [the detective]

committed perjury,” a different trial court’s decision to grant a motion to suppress

evidence obtained by the detective does not bear on the detective’s credibility and

therefore is not “impeachment evidence subject to disclosure under Giglio.”



      We will first consider whether the evidence was favorable to Mr. Card.

Impeachment evidence is favorable to an accused if it may make the difference

between conviction and acquittal. United States v. Bagley, 473 U.S. 667, 676

(1985). The Brady claimant must demonstrate a reasonable probability the

evidence suppressed would have changed the outcome of the proceeding. Id.

Perjury requires intentionally false testimony United States v. Dunnigan, 507 U.S.

87, 94 (1993).



      The district court aptly noted Mr. Card was making “quite a leap” to argue

the detective committed perjury or lied. A court may discount witness testimony


                                         -14-
even though the witness was not dishonest or intentionally misleading if, for

example, the falsity was “a result of confusion, mistake, or faulty memory.” Id.

The district court concluded Mr. Card did “not establish[] that the alleged

misconduct of [the detective] was of the level as suggested, namely perjury or

some kind of intentional wrongdoing.” 3 (Vol. XII at 22.)



       After a careful review of the record, we agree with the district court. Mr.

Card did not prove the detective committed perjury or any intentional

wrongdoing. Therefore, Mr. Card failed to prove the evidence concerning the

detective was impeachment evidence at all. It did not bear on the credibility or

reliability of the detective’s testimony in Mr. Card’s case and therefore was not

“favorable to” him. See Combs, 267 F.3d at 1172. As such, Mr. Card did not

prove a Brady violation.



       We need not reach the materiality issue because Mr. Card did not prove the

impeachment evidence was favorable to his defense. The district court did not err

when it denied Mr. Card’s motion for a new trial based on the evidence


       3
         In what appears to be an abundance of caution and charity, the district court
delayed its final ruling, allowing Mr. Card to present additional briefing on the issue and
affording him the opportunity to request an evidentiary hearing. Counsel failed to submit
additional briefing or to request an evidentiary hearing.


                                           -15-
concerning the detective.



                              CONCLUSION

      Therefore, we AFFIRM Mr. Card’s conviction and sentence.



                                   Entered by the Court:

                                   WADE BRORBY
                                   United States Circuit Judge




                                    -16-
