     Case: 17-30431      Document: 00514357635         Page: 1    Date Filed: 02/22/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-30431
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                     February 22, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

BRIAN MANUEL GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:16-CR-209-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       A jury convicted Brian Manuel Garcia of one count of conspiring to
possess intending to distribute 50 grams or more of methamphetamine and
500 grams or more of a mixture containing methamphetamine and one count
of possessing intending to distribute 50 grams or more of methamphetamine
and 500 grams or more of a mixture containing methamphetamine. He now
appeals the district court’s denial of a continuance, arguing that evidence


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30431

disclosed to the defense for the first time on the day of trial could have been
used to impeach a witness and was exculpatory such that the court’s denial of
additional time to explore it constituted a violation of his rights under Brady
v. Maryland, 373 U.S. 83 (1963).
      We review for abuse of discretion the denial of a continuance, and to
prevail, Garcia must show that, under the totality of circumstances, he
suffered “serious prejudice.” United States v. Stanford, 805 F.3d 557, 567 (5th
Cir. 2015). We review de novo the district court’s Brady ruling. United States
v. Runyan, 290 F.3d 223, 246 (5th Cir. 2002).
      The Government’s primary witness against Garcia was Alberto Trevino,
Garcia’s codefendant, who told the jury that Garcia recruited him to
accompany Garcia in transporting methamphetamine from Texas to
Mississippi in Trevino’s car. Garcia testified in his own defense, representing
that he believed he was accompanying Trevino to find work installing
insulation on boats in the Mississippi River and that he had no knowledge that
there was methamphetamine in the car. On the first day of trial, defense
counsel learned that a witness had testified before the grand jury that
Trevino’s six-year-old son, who had accompanied Garcia and Trevino on the
drug delivery trip, had made an unprompted statement that his “father
delivers lots of boxes. He brings back lots of money. He gets more boxes and
brings back even more money.”
      The prosecution runs afoul of Brady if it suppresses or withholds
evidence that is favorable to the defense—either because it is exculpatory or it
has impeachment value—and is material to the defendant’s guilt or
punishment. Brady, 373 U.S. at 87; see United States v. Bagley, 473 U.S. 667,
676 (1985). Even if we assume that the boy’s statement, which was disclosed




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                                  No. 17-30431

before trial began, was suppressed, Garcia has not established that the
evidence was material.
      Trevino’s son’s statement that his father delivered boxes and returned
with money could suggest that Trevino was more heavily involved in the drug
trade than he acknowledged at trial. However, Trevino admitted that he had
a prior drug distribution conviction, that he sold drugs in the past and had sold
drugs in the previous year to Garcia, that he readily participated in the
delivery in this case, and that he had pleaded guilty to participating in the
drug conspiracy. The evidence showed that Trevino was experienced in the
drug trade, and, thus, additional evidence suggesting that Trevino was
involved in selling or delivering drugs would not have affected the verdict. See
Runyon, 290 F.3d at 247; see also Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.
1996) (“[W]hen the undisclosed evidence is merely cumulative of other
evidence, no Brady violation occurs.”). Moreover, Trevino was extensively
impeached. He admitted that he had a substantial criminal history, untreated
mental illnesses, and a motive to testify against Garcia in an effort to avoid a
life sentence, and he acknowledged arguing with and trying to attack Garcia
while they were incarcerated in the same facility. In this context, the vague
statements from Trevino’s young son would have had only incremental
impeachment value. See Miller v. Dretke, 431 F.3d 241, 251 (5th Cir. 2005)
(explaining that evidence that provides only incremental impeachment value
does not rise to the level of Brady materiality).
      As for the assertion that the boy’s statement tended to exculpate Garcia,
the general statement that Trevino delivered boxes and returned with money
did not directly relate to the drug delivery at issue here. Trevino’s potential
involvement in other drug transactions does not mean that Garcia was not
involved in this one, and an insinuation that Trevino delivered drugs in the



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                                 No. 17-30431

past does not undercut his testimony that he agreed to deliver drugs for Garcia.
Finally, this case turned on more than simply the testimony of Trevino. Text
messages from Trevino’s and Garcia’s phones supported Trevino’s version of
events as did testimony from a police officer regarding Garcia’s demeanor and
statements before and after his arrest.
      Garcia has not shown that the boy’s remark “could reasonably be taken
to put the whole case in such a different light as to undermine confidence in
the verdict” and thus has not established a reasonable probability that the
outcome of the trial would have been different had he known about the boy’s
statement sooner. Kyles v. Whitley, 514 U.S. 419, 435 (1995). He also has not
established that he suffered serious prejudice from the court’s denial of a
continuance. See Stanford, 805 F.3d at 567.
      Accordingly, the judgement is AFFIRMED.




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