                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           FEB 04, 2010
                             No. 09-11427                   JOHN LEY
                         Non-Argument Calendar            ACTING CLERK
                       ________________________

                  D. C. Docket No. 08-80103-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

SEDRICK LAWSON,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (February 4, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:
      Sedrick Lawson appeals from the district court’s denial of his motion to

continue his trial or, in the alternative, to exclude a government witness’s

testimony, as well from the district court’s denial of his motion for a new trial. On

appeal, Lawson argues that the government violated Giglio v. United States, 405

U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), his due process rights, and the

district court’s pre-trial standing discovery order by failing to disclose

impeachment information regarding a government witness until two business days

before trial. Lawson contends that he was prejudiced by this tardy disclosure

because, had the government timely provided him with this information, he would

have been able to conduct an investigation yielding additional details about the

witness’s criminal background and past work as a confidential informant (“CI”).

In addition, Lawson contends that the district court abused its discretion by failing

to adequately consider whether the government’s conduct warranted the exclusion

of witness testimony or a continuance of his trial. For the reasons set forth below,

we affirm.

                                           I.

      In August 2008, a federal grand jury charged that, on November 9, 2007,

Lawson and a codefendant, Terry Johnson, distributed crack cocaine, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In two separate counts, the grand jury



                                            2
also charged Johnson with distributing crack cocaine on November 8, 2007, and

December 14, 2007, in violation of 21 U.S.C. § 841(a)(1).

      Thereafter, on September 22, 2008, the district court entered a standing

discovery order, in which it provided that, within 14 days of the order, the

government was required to disclose the existence of any payments or promises of

immunity or lenience made to a government witness, as required by Giglio. In

addition, the court ordered that the government should also disclose any prior

convictions of any informant who would testify on the government’s behalf at trial.

      On November 26, 2008, the government sent a letter, via fax and email, to

Lawson. In its letter, the government informed Lawson that it intended to present

the testimony of a CI. The government further informed Lawson that, in

compliance with its duty under Giglio, it was disclosing that this CI had worked as

an informant in additional cases, and that the CI had been paid the following sums

for his assistance: (1) $10,000 by the FBI; (2) $29,000 by the DEA; (3) $4,830 by

the Lake Worth Police Department; and (4) $6,655 by the Boynton Beach Police

Department. In Lawson’s case, the CI had been paid $200 for each drug

transaction in which he had participated during the investigation of Johnson and

Lawson. The government averred that it did not make any promises of immunity,

leniency, preferential treatment, or any other inducements, in exchange for the CI’s



                                          3
participation in the case. The government attached a copy of the CI’s criminal

history report.

      On November 28, 2008, Lawson filed a motion in limine requesting that the

court exclude the CI’s testimony or, in the alternative, grant a 45-day continuance

of the trial date. In support of his motion, Lawson pointed out that the government

disclosed its Giglio information only two business days before his trial. He

asserted that this did not provide him with enough time to investigate the

information and effectively use it at trial. Specifically, he asserted that he needed

additional time to investigate the details of the witness’s previous offenses and past

work as a CI. The district court summarily denied this motion.

      Lawson’s trial commenced on December 2, 2008. At trial, Carlos Reinhold,

a police officer employed by the Boynton Beach Police Department, testified that

on November 8, 2007, he directed a CI, Alonzo Martin, to contact Terry Johnson in

order to set up a drug transaction. Johnson sold crack cocaine to Martin on

November 8. On November 9, Martin again contacted Johnson to set up another

drug transaction. Reinhold outfitted Martin with recording equipment so that there

would be a videotape of his transaction with Johnson.

      Reinhold further testified that, at approximately 1:00 p.m. on November 9,

Martin arrived at a house to meet with Johnson. Reinhold observed Martin’s



                                           4
actions from another location approximately 300 feet away. Several minutes after

Martin arrived at the meeting location, Reinhold observed Martin and Johnson

walk around the corner of the house and outside of his view. About five minutes

later, Reinhold observed Lawson drive down the street in a convertible with the top

down. The next time Reinhold saw Lawson, Lawson was standing in front of the

house where Martin and Johnson had met. He observed that Lawson walked

around the same corner of the house that Martin and Johnson had walked around.

As a result, Lawson was outside of Reinhold’s sight for several moments.

Thereafter, Martin left the house, and he and Reinhold met at a different location.

At this point, Martin turned over three bags of crack cocaine to Reinhold.

      Johnson testified that he and Lawson had been involved in drug trafficking

together for approximately two years. Johnson bought crack cocaine from Lawson

about three to five times each week. The crack cocaine that he sold to Martin on

November 9 had been supplied to him (Johnson) by Lawson.

      During Johnson’s testimony, the government played a videotape of the drug

transaction that occurred on November 9, and Johnson explained what was

occurring on the videotape. Specifically, he explained that the video depicted

himself and Martin waiting on a crack cocaine delivery. Eventually, Lawson

walked up to the house where Martin and Johnson were standing and gave Johnson



                                          5
crack cocaine. Johnson then sold the crack cocaine to Martin.

      On cross-examination, Johnson testified that Lawson lived in the Cherry Hill

neighborhood, which was where Johnson had conducted his drug deals with

Martin. Many people walked around and visited with each other in this

neighborhood. Johnson and Lawson knew each other from seeing each other in

Cherry Hill.

      After Johnson concluded his testimony, the government announced that it

intended to call Martin as a witness. Lawson objected, referencing his earlier

motion in limine. The court ruled that it would not exclude Martin’s testimony,

reasoning that Martin played a key role in the case. The court also found that,

while it was important for the jury to know that Martin made his living by acting as

a CI, it was not appropriate for the jury to know additional details regarding

Martin’s assistance in other cases. Regarding Martin’s previous convictions, the

court determined that, under Fed.R.Evid. 609, Martin should be impeached only

with the conviction that occurred within the last ten years, and that the jury should

hear only basic information about the conviction, such as the offense name and the

date of conviction. The court emphasized that it would permit defense counsel to

cross-examine Martin regarding his compensation from the government.

      Martin subsequently testified that in late 1999, he was arrested for



                                           6
possession with intent to distribute crack cocaine, and pled guilty to the offense.

After he was released from prison in 2002, he began working as a plumber. In

2006, an employer fired him because the company discovered that he had

concealed his criminal history on his employment application. Thereafter, he

began working full-time as a CI for both state and federal agencies, and this was

how he presently made his living. From early 2007 until the time of the trial, he

had earned about $50,000 as a CI. In the present case, he earned $200 for each of

his three drug transactions with Johnson.

      Martin further testified that, on November 9, 2007, he called Johnson to

arrange a drug transaction. Martin met with Johnson at a house and, about ten

minutes later, Lawson arrived. Like Johnson, Martin reviewed the videotape of the

events on November 9. He explained that the videotape depicted him and Johnson

waiting for a crack cocaine delivery. When Lawson arrived at the house, Lawson

handed five or six packages of crack cocaine to Johnson. Thereafter, Martin

purchased three of these packages from Johnson.

      On cross-examination, Martin reiterated that he was convicted of possession

with intent to distribute crack cocaine in 1999. He reviewed the fact that, in 2006,

an employer fired him because he had omitted his criminal history from an

employment application. In November 2007, he had been working as a CI for less



                                            7
than one year. During his employment as a CI, the FBI had paid him $10,000, the

DEA had paid him $29,000, the Lake Worth Police Department had paid him

$4,830.00, and the Boynton Beach Police Department had paid him $6,655.00. He

admitted that drugs were not visible in Lawson’s hands on the video of the

November 9 transaction. Martin did not observe any money being handed to

Lawson.

      The jury found Lawson guilty of distribution of crack cocaine. Lawson filed

a post-trial motion for a judgment of acquittal under Fed.R.Crim.P. 29, or, in the

alternative, a new trial under Fed.R.Crim.P. 33. Regarding his Rule 33 motion,

Lawson argued that he was entitled to a new trial because he was prejudiced by the

government’s tardy disclosure of Giglio material only two business days before

trial. He again asserted that this tardy disclosure violated the court’s September 22

standing discovery order. In addition to reasserting his arguments that he needed

more time to investigate Martin’s criminal history and his past work as a CI,

Lawson pointed out that he did not learn that Martin was terminated due to his

omission of his criminal history on an employment application until Martin

testified on direct examination. The district court denied the motion.

                                         III.

      We review de novo a district court’s determination as to whether an error



                                          8
occurred under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.1194, 1196-97, 10

L.Ed.2d 215 (1963). United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir. 1996).

We review for abuse of discretion, however, a district court’s ruling regarding the

following motions: (1) a motion to continue a trial; (2) a motion to exclude

evidence; and (3) a motion for a new trial. United States v. Valladeres, 544 F.3d

1257, 1261 (11th Cir. 2008) (motion for continuance); United States v. Reyes

Vasquez, 905 F.2d 1497, 1499 (11th Cir. 1990) (motion to exclude evidence);

United States v. Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009) (motion for a new

trial).

          “[T]he 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, irrespective of the good faith or bad faith of the prosecution.”

Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. In order to establish a Brady claim, a

defendant must show that:

          (1) the government possessed evidence favorable to the defendant,
              including impeachment evidence;
          (2) the defendant does not possess the evidence, nor could he obtain it
              himself with any reasonable diligence;
          (3) the government suppressed the favorable evidence; and
          (4) had the evidence been disclosed to the defense, a reasonable
              probability exists that the outcome of the proceedings would have
              been different.

United States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (quotation and

                                             9
alteration omitted).

      In Giglio, the Supreme Court applied Brady to hold that, where the

credibility of a witness is at issue, the government is required to disclose evidence

bearing on the witness’s credibility. 405 U.S. at 154-55, 92 S.Ct. at 766.

“Impeachment evidence should be disclosed in time to permit defense counsel to

use it effectively in cross-examining the witness.” United States v. Jordan, 316

F.3d 1215, 1253 (11th Cir. 2003). The delayed disclosure of Brady evidence

compels reversal only when the defendant demonstrates prejudice. United States v.

Beale, 921 F.2d 1412, 1426 (11th Cir. 1991). In the context of the government’s

failure to disclose impeachment evidence, a defendant is prejudiced where there is

“a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. A ‘reasonable probability’ is a

probability sufficient to undermine confidence in the outcome.” United States v.

Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). “The

mere possibility that an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does not establish

“materiality” in the constitutional sense.” United States v. Agurs, 427 U.S. 97,

109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).

      In United States v. Bueno-Sierra, we considered the defendants’ claim that



                                          10
the government violated Brady and Giglio by failing to disclose a key government

witness’s prior inconsistent statements until the seventh day of trial. 99 F.3d 375,

379-80 (11th Cir. 1996). We held that, while the government’s actions were

improper, the defendants were not prejudiced by the error because the court

recessed the trial for the remainder of the day, and the defendants were able to fully

explore the prior inconsistent statements on cross-examination. Id. In United

States v. Montes-Cardenas, we considered whether the trial court erred in denying

the defendant’s motion for a continuance, which was based on the government’s

failure to disclose an immunity agreement with a key witness, as well as the

witness’s criminal history, until the day the trial began. 746 F.2d 771, 781 (11th

Cir. 1984). We held that the defendant was not prejudiced by this error because

evidence of the witness’s immunity agreement and criminal history was presented

on direct examination and probed on cross-examination. Id. In both of these

cases, our prejudice analysis focused on whether the evidence in the government’s

possession was disclosed in enough time to be probed by the defense at trial. See,

e.g., Bueno-Sierra, 99 F.3d at 379-80; Montes-Cardenas, 746 F.2d at 781; Mejia,

82 F.3d at 1036-37.

      In addition, we have indicated that a jury need not hear extensive details

regarding a CI’s participation in other cases. See 82 F.3d at 1036-37 (11th Cir.



                                          11
1996). In Mejia, the defendants argued that the government violated Brady by

failing to disclose that the CI: (1) received more than $16,000 for his work in other

cases; (2) had been permitted to take over $10,000 outside of the country without

completing the required paperwork; and (3) had not been required to pay taxes on

the money given to him for his cooperation in the case. Id. at 1036. We held that

there was no reversible error, as the government had disclosed how much the CI

earned during his assistance in investigating the defendant, and the additional

information regarding the CI’s payments in other cases was “cumulative.” Id. at

1036-37. In addition, the information was presented to the jury during cross-

examination. Id.

      Under Fed.R.Evid. 609, a witness other than the defendant may be

impeached with a prior conviction if the crime was punishable by more than one

year of imprisonment. Fed.R.Evid. 609(a)(1). Evidence of convictions obtained

more than 10 years ago, however, is not admissible unless the court determines that

the probative value of the conviction substantially outweighs its prejudicial effect.

Fed.R.Evid. 609(b).

      Because a claim that the government violated Giglio is also a claim that the

government violated a defendant’s right to due process, and Lawson argues that the

government violated his right to due process for the same reasons that it violated


                                          12
Giglio, we simultaneously address Lawson’s arguments regarding Giglio and his

due process rights. Here, even assuming that the government violated Giglio by

delaying its disclosure of impeachment evidence, the error does not warrant

reversal because there is no reasonable probability that, had the information been

disclosed in a timely manner, Lawson would have been acquitted.          Evidence

concerning Martin’s criminal history and status as a full-time CI was explored on

both direct and cross-examination. He testified regarding the amount of money he

earned as a CI, as well as the amount of the payments he received for his

participation in Lawson’s case.    The fact that Martin had been fired from a

previous job for concealing his criminal history on a job application was discussed

on both direct and cross-examination. While Lawson generally argues that he was

prejudiced because the government’s late disclosure prevented him from

discovering additional details with which to impeach Martin’s credibility, our

prejudice analysis has never included the consideration of whether the defendant’s

investigation of the government’s impeachment evidence could have led to the

discovery of additional impeachment evidence not in the government’s possession.

      Moreover, even if Lawson had been able to conduct an investigation based

on the government’s Giglio disclosure, it is unclear how additional details

regarding Martin’s criminal history and work as a CI would have aided Lawson in


                                        13
his defense.    Under Fed.R.Evid. 609(b), only Martin’s 1999 drug trafficking

conviction was admissible for purposes of impeachment.                In addition, any

additional details regarding Martin’s past work as a CI properly would have been

excluded as cumulative and irrelevant. Furthermore, there is no indication that

details regarding Martin’s criminal history and work as a CI would have added

anything to the attack made on his credibility.

      For the foregoing reasons, Lawson was not prejudiced by the government’s

tardy disclosure of Giglio information, and this conduct also did not violate his

right to due process. Accordingly, the district court did not abuse its discretion in

denying Lawson’s motions to continue his trial, exclude witness testimony, and

hold a new trial on this basis.

                                           IV.

      We review for abuse of discretion a district court’s refusal to impose a

sanction for a discovery violation. United States v. Roe, 670 F.2d 956, 966 (11th

Cir. 1982).

      The government’s failure to comply with a standing discovery order does

not constitute reversible error unless it resulted in substantial prejudice to the

defendant. United States v. Camargo-Rivera, 57 F.3d 993, 998 (11th Cir. 1995).

“Substantial prejudice exists when a defendant is unduly surprised and lacks an

                                           14
adequate opportunity to prepare a defense, or if the mistake substantially influences

the jury.” Id. at 998-99. We have held that a defendant was substantially

prejudiced where the previously undisclosed testimony of a government witnesses

eradicated the defendant’s theory of the case. Id. at 998-99. Generally, a

defendant is not prejudiced by a discovery violation where there is substantial

evidence that otherwise implicates them in the offense. See Bueno-Sierra, 99 F.3d

at 378, 380.

      Here, Lawson was not prejudiced by the government’s failure to comply

with the court’s September 22 standing discovery order. Even if Lawson had been

able to use the government’s Giglio disclosure to discover additional impeachment

evidence against Martin, there was still substantial evidence that corroborated

Martin’s testimony and was probative of Lawson’s guilt. Johnson testified

consistently with Martin that Lawson met with them at a house on November 9 and

gave crack cocaine to Johnson. In addition, he testified that he regularly bought

crack cocaine from Lawson. While drugs were not visible in Lawson’s hands on

the government’s videotape, both Johnson and Martin testified that this tape

depicted Lawson meeting with them to deliver drugs. Finally, while Reinhold did

not witness the November 9 drug transaction, he testified that he saw Lawson at

the house where Johnson and Martin met to complete their drug transaction. In


                                         15
light of this inculpatory evidence, as well as the fact that Martin’s testimony was

corroborated by Johnson, the government’s discovery violation did not prejudice

Lawson. Moreover, there is no indication that the government’s untimely

disclosure resulted in the eradication of Lawson’s “mere presence” defense.

Because Lawson was not prejudiced by the government’s discovery violation, the

district court did not abuse its discretion in denying his motions to exclude

testimony, continue his trial, and to hold a new trial on this basis.

      Finally, Lawson’s argument that the district court abused its discretion by

failing to adequately consider whether the government’s conduct warranted the

exclusion of Martin’s testimony or a continuance of the trial also lacks merit. At

trial, the court listened to the parties’ arguments regarding this issue, and provided

numerous reasons supporting its decision to deny Lawson’s motion to exclude the

testimony or continue the trial. Because the court provided adequate reasoning for

its decision to deny Lawson’s requests, his argument that the court abused its

discretion in this regard lacks merit.

      AFFIRMED.




                                           16
