     Case: 12-40926       Document: 00512149770         Page: 1     Date Filed: 02/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 20, 2013
                                     No. 12-40926
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAYFORD ELTON LEACH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-46-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A jury convicted Rayford Elton Leach, currently Texas prisoner # 416541,
of violating 18 U.S.C. § 111(a)(1) when he assaulted a Deputy United States
Marshal (the marshal) with an automobile. The district court sentenced him to
135 months in prison. After we affirmed his conviction and sentence, Leach filed
a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal
Procedure. Leach asserted that he had newly discovered evidence that he was
arrested on June 16, 2009, rather than June 8, 2009, the date he assaulted the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-40926

marshal.   He therefore argued that the marshal was not engaged in the
performance of his official duties when the assault took place. Leach’s evidence
included (1) redacted emails and a letter from the TDCJ indicating that Leach
was arrested on June 16, 2009; (2) a notation in Leach’s medical records; (3) a
Board of Pardons and Paroles report; and (4) Leach’s Freedom of Information Act
requests and the responses thereto. He also argued that the Government
suppressed the evidence regarding his arrest date in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The district court denied Leach’s motion, and
Leach appealed.
      “Upon the defendant’s motion, the [district] court may vacate any
judgment and grant a new trial if the interest of justice so requires.” FED.
R. CRIM. P. 33(a). The district court also may grant a new trial based on Brady
violations. United States v. Turner, 674 F.3d 420, 428 (5th Cir.), cert. denied,
133 S. Ct. 302 (2012). Although this court reviews the denial of a motion for a
new trial for abuse of discretion, United States v. Piazza, 647 F.3d 559, 565 & n.3
(5th Cir. 2011) (noting it is unsettled whether review is for a clear abuse of
discretion or a mere abuse of discretion), it considers alleged Brady violations de
novo. Turner, 674 F.3d at 428.
      In order to obtain a new trial, whether pursuant to Rule 33 or because of
a Brady violation, Leach must prove that his newly discovered evidence is, inter
alia, material. See Piazza, 647 F.3d at 565; United States v. Runyan, 290 F.3d
223, 245 (5th Cir. 2002). Evidence is material if there is a reasonable probability
that the result of the proceeding would have been different had the evidence
been disclosed. United States v. Bagley, 473 U.S. 667, 682 (1985).
      We stated in Leach’s direct appeal that a marshal’s duties can include the
apprehension of a suspect wanted by state authorities. Moreover, the evidence
in this case clearly shows that Leach was wanted by state authorities and that
the marshal was attempting to apprehend Leach on June 8, 2009, when Leach
struck the marshal with his vehicle. The date Leach was formally arrested is

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                                 No. 12-40926

not material because it has no bearing on the Government’s burden of proof
under § 111(a)(1). See United States v. Kelley, 850 F.2d 212, 213-14 (5th Cir.
1988); United States v. Lopez, 710 F.2d 1071, 1074-75 (5th Cir. 1983). In light
of the foregoing, the district court’s denial of Leach’s new trial motion is
AFFIRMED. The Government’s motion for summary affirmance is DENIED.
See United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th
Cir. 2006).   Because no further briefing is required, the Government’s
alternative motion for an extension of time to file a brief is also DENIED.




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