                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0784n.06

                                        Case No. 11-6123

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                      FILED
                                                                                 Oct 15, 2014
UNITED STATES OF AMERICA,                            )                      DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE EASTERN DISTRICT OF
DWAUNE GRAVLEY,                                      )      KENTUCKY
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )


BEFORE: SILER, BATCHELDER, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. After a nine-day trial, a jury found

Dwaune Gravley guilty of all charges in a six-count indictment: (1) conspiracy to commit

murder, (2) premeditated murder, (3) criminal assault, (4) conspiracy to obstruct justice,

(5) obstruction of justice, and (6) misprision of a felony. The United States District Court for the

Eastern District of Kentucky subsequently sentenced Gravley to life imprisonment and ordered

him to pay $19,951.48 in restitution. Gravley now appeals, asserting seven claims through

counsel and three claims in a pro se supplemental brief. For the reasons that follow, we

AFFIRM the District Court’s judgment.
Case No. 11-6123
United States v. Gravley

            I.       FACTUAL BACKGROUND & PROCEDURAL HISTORY1

       A.        Shamoni Peterson’s Death.

       Big Sandy is a federal penitentiary located in Inez, Martin County, Kentucky, at which

Gravley, Darryl Milburne, and Darone Crawford were inmates and shared Cell D-240. Cell D-

240 is on the D-range of Big Sandy’s special housing unit (SHU), which is set apart by a series

of doors that must be opened from the facility’s control center. The indictment with which

Gravley later was charged alleged that a Big Sandy correctional officer (CO) came to the SHU

on November 12, 2006 to ask Gravley and Milburne if another inmate, Shamoni Peterson, could

be placed in their cell. Gravley consented, and, according to Crawford, then said to Milburne,

“We’re going to eat his food.” Crawford understood this statement to mean that Gravley and

Milburne were “going to do something to [Peterson],” “[p]hysically[.]”

       Crawford later testified that, soon after Peterson was placed in the cell, Gravley and

Milburne assaulted Peterson and killed him:

       Crawford:       [Peterson] was on the toilet reading a magazine and Milburne got
                       down and put him in a headlock.
       ...
       Lawyer:         Okay. Where was Mr. Gravley at that time?
       Crawford:       On the bunk.
       Lawyer:         Okay. What had Mr. Gravley been doing before the attack started?
       Crawford:       He was just laying there.
       Lawyer:         Okay. What was he doing prior to that?
       Crawford:       Just laying there on the bunk.
       Lawyer:         All right. Were there any phone calls made?
       Crawford:       Yea. Like he—he made a phone call. He got up and made a phone
                       call, and then he went back to the bunk.

1
 This case consists of a lengthy factual and procedural history that culminated below in a nine-
day trial, for which Gravley initially had counsel appointed to him but in which he ultimately
chose to proceed pro se. The factual summary that follows is limited and intended only to
provide context for Gravley’s claims. Additional facts material to the disposition of the claims
are provided as necessary in the analysis of each claim.

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United States v. Gravley

       Lawyer:        Okay. And then what happened after that?
       Crawford:      Milburne got down off the bunk and put the dude in a headlock.
       Lawyer:        Put who in a headlock?
       Crawford:      Peterson.
       Lawyer:        Okay. Had Mr. Peterson attacked Mr. Milburne?
       Crawford:      No.
       Lawyer:        Okay. Well, describe for the jury the attack on Mr. Peterson.
       Crawford:      Milburne grabbed him in a headlock and Gravley just came over and
                      started hitting him.
       Lawyer:        Okay. Go ahead. What happened during the attack?
       Crawford:      He hit him and picked him up and was throwing him around and
                      hitting him, slamming him around. And after—after he—after he
                      passed, he cleaned the body up and cleaned all the—all the evidence
                      and stuff up.
       Lawyer:        Okay. Well, before we get to that, let’s talk a little bit more about the
                      attack. What did you see Mr. Milburne do?
       Crawford:      He just put him in a headlock and started hitting him, like from the
                      side.
       Lawyer:        Okay. Where did you see him hit Mr. Peterson at?
       Crawford:      In the head.
       Lawyer:        Okay. Where was Mr. Peterson’s body during the assault? Was he
                      standing up? Was he laying down?
       Crawford:      Mr. Peterson was like this (indicating), he was bent over, and then
                      Gravley came and started hitting him.
       Lawyer:        Where did Mr. Gravley hit Mr. Peterson at?
       Crawford:      Like he was hitting him in the face too.
       Lawyer:        Okay. How long did the assault last?
       Crawford:      Probably, like 20 minutes.
       Lawyer:        Okay. Where were you during the assault?
       Crawford:      By the—by the shower?
       Lawyer:        Okay. Did you participate in the assault?
       Crawford:      No.
       Lawyer:        All right. Did it become apparent at some point that Mr. Peterson was
                      in a lot of trouble? I mean physically that he was hurt.
       Crawford:      He was screaming, like screaming for his life, like, like “Please stop.”
       Lawyer:        What did he say exactly?
       Crawford:      He was like his heart was hurting or something.
       Lawyer:        . . . . Did he attempt to fight back?
       Crawford:      No. He couldn’t.
       Lawyer:        Why couldn’t he?

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United States v. Gravley

          Crawford:      Because it was—it was two people on him.
          Lawyer:        Okay. What words did he say? Did he say words to Mr. Gravley or to
                         Mr. Milburne specifically?
          Crawford:      He said it to Gravley.
          Lawyer:        What did he say to Mr. Gravley?
          Crawford:      He said, “Please stop. Deuce, please stop. You’re hitting me too
                         hard,” and all that.
          Lawyer:        You said “Deuce.” Now, who is Deuce?
          ...
          Crawford:      Dwaune Gravley.[2]
          ...
          Lawyer:        All right. While Mr. Peterson is making these statements to Gravley,
                         does Gravley do anything in response?
          Crawford:      No.
          Lawyer:        Did there come a point in time that the beating stopped?
          Crawford:      Yeah.
          Lawyer:        What caused it to stop?
          Crawford:      He was—the dude, it looked like he was gone.
          Lawyer:        It what?
          Crawford:      He was dead.

          According to Crawford, Milburne then put a T-shirt in Peterson’s mouth and cupped a

hand over his face even though “it was like he was already dead already.” All the while, said

Crawford, Gravley was “standing there.”          Crawford made no attempt to assist Peterson

“[b]ecause [he] kn[e]w they probably would have did [sic] something to [him].” Afterward,

however, he helped Gravley and Milburne remove the evidence of their actions:

          Lawyer:        Okay. After the assault, what did Mr. Gravley or Mr. Milburne do?
          Crawford:      They cleaned it up.
          Lawyer:        Okay. You are going to have to tell us how that happened. What did
                         Mr. Gravley do to clean up after the assault?
          Crawford:      They just—they took some rags and stuff and cleaned him up,
                         because they knew he was gone.
          Lawyer:        When you say “they knew he was gone,” knew what? What was that?
          Crawford:      They knew he was dead.

2
    See infra note 6 and accompanying text.

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United States v. Gravley

       Lawyer:        Okay. What did Mr. Gravley do to clean him up with a cloth?
       Crawford:      They just took some soap and rags and cleaned him up.
       Lawyer:        What part of his body did he clean?
       Crawford:      The whole body.
       Lawyer:        Okay. Did they take his clothes off or—
       Crawford:      Yeah.
       Lawyer:        --change his clothes or?
       Crawford:      Yeah.
       Lawyer:        Okay. You have to tell us about that. What did you see them do?
       Crawford:      He moved him and picked him up and put clothes on him after they
                      cleaned him up.
       Lawyer:        Okay. What did you see Mr. Milburne do?
       Crawford:      He was doing the same thing, cleaning him up.
       Lawyer:        Okay. Did you participate in cleaning him up?
       Crawford:      Yeah.
       Lawyer:        Why did you do that?
       Crawford:      Because I just did it. I just helped them because I—I just did it.
       ...
       Lawyer:        Did you have any concerns of what would happen to you if you didn’t
                      help?
       Crawford:      No. . . . I just did it. I seen them doing it. And I wanted—I wanted to
                      try—to try to get out of the cell, but I couldn’t.
       Lawyer:        What do you mean, you wanted to try to get out of the cell? Why did
                      you want to get out of the cell?
       Crawford:      Because I wasn’t taking the charge.
       Lawyer:        You were afraid you were going to get charged with assaulting Mr.
                      Peterson?
       Crawford:      Yeah.

       Crawford also testified that Milburne asked him to cut Milburne’s hands with a razor

blade. Crawford did not know where the razor blade had come from or why Milburne had made

the request, but he complied:

       Lawyer:        Where did that razorblade come from?
       Crawford:      I don’t know . . . . Milburne asked me to cut, just to cut his hand,
                      like. I didn’t know what for, because I didn’t see nothing done with
                      the razor.
       Lawyer:        Okay. And did you cut Mr. Milburne’s hands with the razorblade
                      as he asked?

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United States v. Gravley

       Crawford:      He asked me and I just—it was just a little scrape. I did it. And he
                      put it in his sock.
       Lawyer:        Mr. Milburne put it in whose sock?
       Crawford:      In Peterson’s sock.
       ...
       Lawyer:        Was there any time that the four of you were in the cell that Mr.
                      Peterson attacked either you, Mr. Milburne, or Mr. Gravley with a
                      razorblade?
       Crawford:      No.

       The following morning around 5 o’clock, Peterson was found dead in Cell D-240. A

medical examiner, Cristin Rolf, observed that Peterson had sustained several “injuries that [we]re

inflicted . . . through blunt force injury, through pressure of a blunt object placed on the body.

There were also injuries to the mouth . . . the mouth shows the most injury.” Dr. Rolf concluded

that the cause of Peterson’s death was “asphyxia, due to the inability to be able to move his chest

wall or his diaphragm to breathe. Also, the mouth area was . . . forcibly covered.”

       According to Crawford, after prison officials discovered Peterson’s body, they

immediately separated Crawford, Gravley, and Milburne and questioned Crawford:

       Lawyer:        Okay. So when the COs came around the next morning, tell us what
                      happened.
       Crawford:      They just—they came—they came to the cell. And after that, they—when
                      they opened the cell up, they just found his body and took us downstairs
                      and put us in the outside rec cages.
       Lawyer:        Put you where?
       Crawford:      The outside rec cages.
       Lawyer:        The rec cages?
       Crawford:      Yeah.
       Lawyer:        Okay. Did they separate the three of you?
       Crawford:      Yeah.
       Lawyer:        Okay. Were you questioned by correctional officers or other agents about
                      what happened to Mr. Peterson?
       Crawford:      Yeah.
       Lawyer:        Okay. Did you initially tell them what happened?
       Crawford:      Yeah. Because the way it was, it was like they was trying to put it on me.

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United States v. Gravley

       Lawyer:          Who was trying to put it on you?
       Crawford:        Them, Gravley[.]

       B.         Investigation and Indictment.

       Big Sandy’s Special Investigation Services (SIS) opened an investigation into Peterson’s

death the same day. In the course of that investigation, SIS discovered razor blades in Cell D-

240 and on Peterson’s person. SIS also discovered that Milburne had suffered lacerations on his

arms that were consistent with razor blade cuts.        Additionally, as the District Court later

explained,

       [i]n the days and weeks that followed [Peterson’s death], allegations arose of
       misconduct by Big Sandy officials in connection with the placement of Peterson
       in [Cell D-240] and the hours surrounding his death. In one fashion or another
       inmates are said to have told investigators and senior Big Sandy officials that
       prior to Peterson’s placement in Cell D-240, corrections officers knew he
       belonged to a rival gang of Gravley, Milburne, and Crawford’s and had personally
       quarreled with these inmates. One inmate, Eddie Pierre, recounted how officers
       had previously solicited his assistance in assaulting Peterson because of problems
       Peterson had caused for the officers. Pierre claimed that during the assault in cell
       D-240, a corrections officer observed the fight and smiled. Other inmates claimed
       to have alerted Big Sandy staff of the altercation in cell D-240 as it occurred and
       were ignored. Inmate Patrick Howell claims he observed a prison guard collect
       clothing and other evidence in two trash bags and remove them from the cell to be
       destroyed. Because of the foregoing, the inmates believed that officers
       intentionally placed Peterson in [Cell D-240] so that he would be assaulted and
       possibly killed.

       These allegations of misconduct led the Bureau of Prisons (BOP) After-Action Team and

the U.S. Department of Justice Office of the Inspector General (OIG) to conduct their own

investigations.

       The OIG’s investigation was led by Special Agent Patrick Schumacker and
       commenced on November 30. In the course of its investigation, OIG staff
       interviewed inmates and Big Sandy staff, including the warden. The OIG, the
       warden, SIS, and the After-Action Team reviewed prison video of SHU corridors
       from November 12 and 13 [of 2006]. The OIG ultimately concluded that Big

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United States v. Gravley

          Sandy personnel did not intentionally place Peterson in [Cell D-240] with the
          purpose of initiating a fight, ignore the fight while it was ongoing, or intentionally
          destroy evidence of the fight. It also found inmate Pierre’s allegations to be not
          credible. Nevertheless, the OIG did conclude that officers had been negligent and
          derelict in their duties and referred several potential administrative violations to
          the BOP for further action.

          A federal grand jury subsequently returned an indictment against Gravley and Milburne

for Peterson’s death, charging them with conspiracy to commit murder, in violation of 18 U.S.C.

§ 1117; premeditated murder, in violation of 18 U.S.C. § 1111(a) and (b); and assault resulting in

serious bodily injury, in violation of 18 U.S.C. § 113(a)(6).           Crawford, however, was not

charged.       A superseding indictment later added charges against Gravley for conspiracy to

obstruct justice, obstruction of justice, and misprision of a felony. 3 After a nine-day trial, a jury

found Gravley guilty of all charges.4

          C.      Cameras.

          When Peterson died, there were approximately 300 video cameras at Big Sandy, located

at various points throughout the facility. As the District Court explained,

          [t]he images captured on camera are transmitted into a VICON Kollector, a
          device containing six hard-drives designed for recording the camera images. A
          Kollector’s hard-drives hold a minimum of 14 days of recorded activities before
          reaching capacity, and once filled to capacity, the Kollector overwrites the oldest
          images.[5] Thus, to preserve footage captured on the Kollectors, the footage must
          be transferred to a CD. Selecting, downloading, and recording images to a CD is
          the function of SIS officers. The process of saving footage begins with an SIS
          officer pulling up the footage from the Kollector’s hard-drive. Next, the SIS
          officer views the footage from the Kollector and determines which portions

3
 The original indictment also included charges for obstruction of justice—one of which was for
intimidating Crawford into assisting in the alleged obstruction—against Gravley and Milburne
that later were dismissed by the District Court.
4
Milburne pleaded guilty to second-degree murder and was sentenced before Gravley’s trial. At
Gravley’s trial, however, Milburne testified in Gravley’s favor.
5
    Surveillance footage is saved on Big Sandy’s hard-drive for 15-30 days.

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Case No. 11-6123
United States v. Gravley

       should be saved. The officer then transfers the selected footage to a computer
       tower located in the SIS office. From the computer tower, the footage is saved to
       a CD.

       Although the corridors of the SHU were equipped with cameras, the unit’s individual

cells were not. During discovery, Gravley requested video footage from the SHU corridors for

November 12 and 13, 2006. But, “[f]or reasons that are unclear,” the vast majority of the

footage, which would have lasted approximately nineteen hours, was not preserved. Instead,

“[o]nly 27 minutes of the footage survive[d]” and was disclosed to Gravley; the remainder was

overwritten. Accordingly, Gravley moved to dismiss the charges against him, raising allegations

of BOP wrongdoing.

       As the District Court recounted, however, “[s]everal people viewed the entire footage

[from November 12 and 13, 2006] before it was overwritten.” “Warden Suzanne Hastings,

members of the SIS, members of the After-Action Team, and Special Agent Schumacker

reviewed the footage before it was erased. Both Agent Schumacker and Warden Hastings made

time lines of the events based on the entire footage. Their time lines d[id] not corroborate

Gravley’s allegations.” Additionally, Agent Schumacker had asked the BOP to preserve any

video footage that was reviewed. Consequently, the District Court concluded, Gravley could

establish neither that the lost footage was “materially exculpatory,” United States v. Wright, 260

F.3d 568, 570-71 (6th Cir. 2001) (citing California v. Trombetta, 467 U.S. 479, 485 (1984)), or

that it had been overwritten in bad faith, id. at 571 (citing Arizona v. Youngblood, 488 U.S. 51,

57-58). The court therefore denied Gravley’s motion to dismiss.




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United States v. Gravley

       D.      Alleged Admissions.

       1.      David Johnson.

       At Gravley’s trial, David Johnson, another Big Sandy inmate and an orderly, testified that

Gravley had admitted to him in “several” conversations that Gravley and Milburne had attacked

Peterson. Johnson had met Gravley in November of 2006; according to Johnson,

       [Gravely] told me that ‘they.” He didn’t—I can’t recall if he actually mentioned
       all three of them attacked Mr. Peterson. But he did mention “they.” And I’m—I
       was assuming, or I’m assuming that “they” meant everyone that was in the cell.
       But they beat, kicked, and stomped Mr. Peterson until, I guess, a final kick to his
       throat by—by, by Mr. Gravley, and Mr. Peterson stopped moving.

Johnson also testified that both Gravley and Milburne were members of the Bloods gang and that

Gravley, who was senior to Milburne in the gang, had ordered Milburne to attack Peterson and to

take responsibility for the attack. In exchange for the attack, Milburne was to “get rank” in the

gang and to be paid as much as $60,000.00.

       About a year before Gravley’s trial, Johnson had told an investigator that he “hadn’t

heard that” Gravley or Milburne had attacked Peterson and “d[id]n’t know where [that

information] came from[.]” Johnson also told the investigator “[t]hat Mr. Gravley had nothing to

do—told [Johnson] he had nothing to do with [Peterson’s death].” At trial, however, Johnson

insisted that what he had told the investigator was false: “I was trying to protected Deuce, I’m

sorry, Mr. Gravley because of my grievance with the federal government.”6            As Johnson

explained, he had an incentive to protect Gravley:


6
 The indictment against Gravley identified him as “Dwaune [Gravley], aka Deuce,” and there
was testimony at Gravley’s trial that he referred to himself as “OG [Original Gangster] Deuce.”
(Gravley’s name originally was misspelled “Gravely.”) Johnson’s alleged “grievance with the
federal government” had to do with his having been promised support in pursuing a sentencing
reduction under Federal Rule of Criminal Procedure 35 in a previous, unrelated matter and not
having gotten it. Gravley’s motion to strike “Deuce” from the indictment was unsuccessful.

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          Lawyer:       Is there a downside, from an inmate’s standpoint, for testifying
                        against another inmate in a case of this nature?
          Johnson:      Yes. There is—there is a big downside.
          Lawyer:       And what is that?
          Johnson:      I guess the ultimate would be murder, someone killing me for
                        testifying in this trial.
          Lawyer:       Is there kind of an unwritten rule within the institutions about one
                        inmate testifying against another?
          Johnson:      Yes, there is.
          Lawyer:       And what is that?
          Johnson:      Inmates are called—are labeled snitches. But in the federal
                        system, they don’t actually call them a snitch, they call them hot,
                        h-o-t.
          Lawyer:       Okay.
          Johnson:      And if you are labeled a snitch or hot, there are consequences.

          2.     Andre Player.

          Gravley was transferred to a facility in Manchester, Kentucky, where he spoke with

another inmate, Andre Player, after Peterson’s death. Player testified that Gravley boasted about

having been the most senior member of the Bloods gang at Big Sandy, describing himself as “the

head guy,” and said that a gang-related murder had happened in his cell there. Gravley allegedly

“told [Player] that he—he made the murder happen, that he orchestrated it.” According to

Player,

          [t]here was—there was other inmates in the cell with [Gravley]. And him having
          a high rank in the gang that he was in, he had another guy in his cell commit the
          murders with—I believe he said at the time it was knives.

Player also recalled that the name of the murdered inmate was “Peterson”; that he had heard

Peterson’s name only from Gravley; and that “[t]here was another guy, who actually is the guy

that [Gravley] told me he had do the murder; I believe his name was Milburne.”




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       3.      Cory Thomas and Paul Woods.

       Manchester inmates Cory Thomas and Paul Woods testified similarly regarding

information that Gravley allegedly had told them about Peterson’s murder. According to them,

Gravley said “that Mr. Peterson had—had disrespected the Bloods by saying, ‘F the Bloods’ or

whatever.” (PageID # 2105 (Thomas); accord 2163-64 (Woods) (“Well, it started off when

[Gravley] had informed me that Peterson had said, ‘F**k’—excuse me. . . . Is it okay to say that?

. . . He explained that Peterson had said, ‘F Bloods.’”).) In retaliation, they testified, Gravley

ordered Milburne to assault Peterson:

       Lawyer:        Did [Gravley] tell you who was also in the cell and perhaps even before
                      Mr. Peterson came into the cell?
       Thomas:        All he kept saying was his little brother. He said it was his little brother
                      that was in the cell with him.
       ...
       Lawyer:        Did he ever identify by name?
       Thomas:        Milburne.
       ...
       Lawyer:        Now, did you understand that to mean that Mr. Milburne was his true
                      younger brother?
       Thomas:        Yes. He did say that.
       Lawyer:        Well, by true younger brother, I mean with the same parents.
       Thomas:        Oh. No. I knew that it was his—his Blood brother, as far as his gang-
                      related brother.
       Lawyer:        Can you explain a little bit more of what that means, in terms of the Blood
                      gang and a little brother.
       Thomas:        It is—it is like he is the big brother and Milburne’s the little brother. So,
                      basically, he is the shot caller and if he is, you know, to pass down an
                      order, that Milburne has to follow it.
       Lawyer:        Did he tell you whether or not he, Mr. Gravley, gave the order or the shot
                      call to Mr. Milburne?
       Thomas:        Yes.
       Lawyer:        What did he say?
       Thomas:        He was just like he had gave the order. Because Mr. Milburne was going
                      to get rank with the Bloods; that’s how he earned his stripes with the
                      Bloods to become a lieutenant.

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       Lawyer:         If Milburne did what?
       Thomas:         Assaulted Peterson.
       …
       Lawyer:         Where was Mr. Peterson when Mr. Gravley gave the nod?
       Thomas:         He was sitting on top of the toilet.
       Lawyer:         And who did Mr. Gravley give the nod to?
       Thomas:         Milburne.
       Lawyer:         And once he gave that nod, did he then tell you what happened?
       Thomas:         He—they put him in a headlock and just beat him, was punching on him
                       and stuff.
       Lawyer:         Did Mr. Gravley—
       Thomas:         —stomping on him.
       Lawyer:         I’m sorry. I didn’t mean to cut you off.
       Thomas:         And stomping on him and—and punching him and just choking him and
                       stuff.
       ...
       Lawyer:         Okay. Did Mr. Gravley mention anything about a shirt, placing it
                       somewhere on—
       Thomas:         To stop Mr. Milburne from—from hearing the screaming, that Mr. Mil—I
                       mean, Mr. Peterson was screaming.
       Lawyer:         Okay.
       Thomas:         They placed a shirt in his mouth.
       Lawyer:         And to stop him from?
       Thomas:         Screaming and being heard.

(PageID # 2105-11; accord 2163-66 (Woods).) Woods also testified that Gravley told him that

Crawford, the third inmate, “participated in [the assault] by kicking [Peterson].”

       E.      Additional Witnesses.

       In motions for writs of habeas corpus ad testificandum before his trial, Gravley sought to

compel the presence of several fellow inmates, among them Otis Smith, Matthew Davis, and

Andre Bruno, to testify that they did not hear Peterson scream Gravley’s name. He also expected

Bruno to testify that there was no animus between the Bloods and the Washington, D.C.-

affiliated gang to which Peterson allegedly had belonged. Additionally, all of the witnesses were

to “testify that they were never asked by staff to take Peterson as a cell-mate.” A federal

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magistrate judge denied the motions, concluding that although the proposed testimony “might be

relevant to [Gravley’s] case,” Gravley had not demonstrated that the witnesses were “necessary

for an adequate defense” as required by Federal Rule of Criminal Procedure (Criminal Rule)

17(b). The District Court upheld the denial in ruling on Gravley’s subsequent motion for

reconsideration and also denied Gravley’s renewed motion for the writs at trial.

       F.      Sequestration.

       During trial, Player admitted that he was transported to court with Thomas and Woods.

According to Player, the trip lasted two to three minutes, during which the witnesses “discuss[ed]

why [they] were there.” Gravley sought a mistrial on that basis, asserting that the Government

had violated the District Court’s sequestration order. The District Court denied the motion,

however, explaining that “the Rule of Exclusion of Witnesses . . . . requires [only] that witnesses

are not allowed to remain in the courtroom during the testimony of other witnesses.”

       G.      Jury Instruction.

       Near the conclusion of his trial, returning to the subject of the overwritten video footage,

Gravley requested that the District Court provide the jury with the following instruction:

       If you have heard testimony about the obstruction of evidence, video evidence, if
       you believe that BOP personnel concealed evidence, you may consider this
       conduct along with all other evidence in deciding whether the Government has
       proof beyond a reasonable doubt that the—of the crimes charged.

The District Court refused to give the instruction, however, concluding as follows:

       [T]hat instruction addresses, in essence, an inference that can be drawn by the
       jury in the instance in which there is flight or concealment of evidence,
       destruction of evidence on behalf of the defendant. You have asked for that
       instruction not on behalf of the defendant but, in essence, on behalf of the Bureau
       of Prisons in this particular case. . . . This is not an instruction that would be
       appropriate to give or an appropriate inference for the jury to draw as it related to
       the BOP in this particular case. And so since you are asking for an instruction not


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United States v. Gravley

       for a defendant, not for an unindicted co-conspirator, and I am not even sure it
       would be appropriate in that particular instance, I don’t think it is appropriate to
       include and I will deny your request for that particular instruction.

       H.      Motion for Acquittal or, Alternatively, for a New Trial.

       Before he was sentenced, Gravley filed a pro se motion and two supplemental motions

for acquittal or for a new trial. He contended that, under Criminal Rule 29, the evidence at trial

was insufficient to support the jury’s verdict against him and that, alternatively, under Criminal

Rule 33, the evidence at trial “preponderate[d] heavily against the verdict.” United States v.

Roland, 233 F. App’x 476, 482 (6th Cir. 2007) (citing United States v. Ashworth, 836 F.2d 260,

266 (6th Cir. 1988)).

       At trial, one of the defenses that Gravley asserted was that he had pushed the duress

alarm inside Cell D-240 when the fight between Milburne and Peterson began. The Government

challenged this defense, presenting testimony that “a prison employee must use a key to reset the

alarm outside of [any] cell” in which a duress alarm is pushed. Agent Schumacker, who had

observed the overwritten video footage from the SHU corridors, testified that the footage “did

not show any such ‘resetting’ outside of [C]ell [D-]240.”

       For his part, Gravley pointed to Milburne’s testimony that Gravley had, in fact, pushed

the duress alarm. He also relied on testimony “that an activated duress alarm does not have to be

‘reset’ outside of the cell.” Crawford testified during trial that there was no duress button or

alarm inside Cell D-240 that an inmate could hit. According to Gravley, the inconsistency of this

testimony demonstrated the insufficiency of the Government’s proof.

       But the District Court concluded that Gravley’s challenges went to the weight, rather than

to the sufficiency, of the evidence, which it was not allowed to consider under Criminal Rule 29,

and which it did not find availing under Criminal Rule 33. According to the court, “The jury

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Case No. 11-6123
United States v. Gravley

heard both Milburne and Crawford’s testimony, and it was free to accept either the

[G]overnment’s theory regarding the duress alarm (i.e. that it exists but was not pushed) or

Gravley’s theory regarding the alarm.”

          Gravley also contended that, because it allowed Milburne to plead guilty to the second-

degree murder of Peterson,7 the Government was judicially estopped from charging him with

Peterson’s murder.      Gravley also asserted that he was entitled to a new trial because the

Government withheld the information that Woods previously had lied to a grand jury in

Tennessee about an unrelated matter. As the District Court explained, however, “Milburne’s

plea agreement d[id] not exclude the possibility that he was assisted by Gravley or ordered by

Gravley to commit the murder.” The court also concluded that Woods’s perjury, while useful as

impeachment evidence, was not likely material nor likely to have produced Gravley’s acquittal

because other witnesses corroborated Woods’s testimony and because the Government had

offered other evidence of Gravley’s guilt. See United States v. White, 861 F.2d 994, 997-98 (6th

Cir. 1998). Accordingly, the District Court denied Gravley’s motion.

          The District Court subsequently sentenced Gravley to life imprisonment, ordered him to

pay $19,951.48 in restitution, and entered a final judgment on September 13, 2011. Gravley

timely appealed.

                                        II.    ANALYSIS

          Gravley raises seven claims on appeal through counsel in his principal brief and three

claims in a supplemental pro se brief. We resolve each claim against Gravley as follows:




7
    See supra note 4 and accompanying text.

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Case No. 11-6123
United States v. Gravley

       A.      Claims Through Counsel.

       Writs of Habeas Corpus Ad Testificandum: Gravley’s first claim on appeal is that the

District Court committed reversible error in denying his motions to compel the presence and

testimony of Smith, Davis, and Bruno. His first disagreement with the Government in this

regard is about the applicable standard of review: Gravley contends that this Court should review

the claim de novo, and the Government asserts that the proper standard is abuse of discretion.

       In denying Gravley’s motion, the District Court relied on Criminal Rule 17(b). This rule

provides that if a defendant shows (1) an inability to pay a witness’s fees and (2) “the necessity

of the witness’s presence for an adequate defense,” a district court must issue a subpoena for that

witness. Fed. R. Crim. P. 17(b). The rule also provides that the process costs and witness fees

for such witnesses will be provided just as they are for the Government’s witnesses. Id. The

District Court concluded that the proposed testimony of Smith, Davis, and Bruno, while possibly

relevant, was not necessary to Gravley’s adequate defense.

       Gravley, who filed his motions pro se, does not assert that he was able to pay witness fees

for Smith, Davis, or Bruno; additionally, Fleming v. Metrish, 556 F.3d 520 (6th Cir. 2009), on

which Gravley relies, makes no mention of Criminal Rule 17(b). Gravley construes his claim

broadly as asserting the denial of his constitutional right to present a defense, to which Fleming

provides that the de novo standard of review applies. 556 F.3d at 533. Fleming, however, was a

habeas case in which a state court had refused to consider certain of the defendant’s claims. Id.

Here, by contrast, Gravley merely asserts that the District Court would not allow him to compel

the presence of certain witnesses, on the Government’s dole, in support of his claims—witnesses

whose testimony, in the District Court’s judgment, was not necessary to Gravley’s adequate

defense. Accordingly, we hold that the authorities on which the Government relies, which deal


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United States v. Gravley

expressly with Criminal Rule 17(b)—see, e.g., United States v. Sprouse, 472 F.2d 1167, 1168

(6th Cir. 1973) (“The trial court’s denial of this [Criminal Rule 17(b)] motion was not an abuse

of its discretion, and will not be disturbed on appeal.” (citation omitted)); United States v.

Rigdon, 459 F.2d 379, 380 (6th Cir. 1972) (“In th[e] determination [of whether the presence of

the witness is necessary to an adequate defense of his case], the District Court is vested with a

wide discretion[.]” (citing Welsh v. United States, 404 F.2d 414 (5th Cir. 1968)))—provide the

applicable standard of review: abuse of discretion.

       Relying on United States v. Barker, 553 F.2d 1013, 1020 (6th Cir. 1977), Gravley

counters that, even under Criminal Rule 17(b), a district court must compel the presence of

witnesses whose proposed testimony is relevant unless a request for that testimony is “otherwise

frivolous.” But Barker stated that a witness’s testimony must be both “material and useful,” in

addition to being relevant, to satisfy the showing of necessity that Criminal Rule 17(b) requires.

553 F.2d at 1020 (citing United States v. Greene, 497 F.2d 1068, 1079 (7th Cir. 1974)). The

District Court’s denial of Gravley’s motion for reconsideration and renewed motion to subpoena

Smith, Davis, and Bruno forecloses such a finding here.

       As to Smith and Davis, the District Court expressly noted that it “d[id]n’t think they

w[ould], either one, substantially further the resolution of the case.” And, as to Bruno, the court

explained that Gravley had “articulate[d] a point that would be fair to make and would . . .

survive a challenge on . . . relevancy . . .but [would not be] necessary to [Gravley’s] adequate

defense[.]” Gravley contends that Bruno would have undercut the Government’s theory that

Gravley had a gang-related motive by testifying to the lack of gang activity at Big Sandy. But it

is difficult to see how such testimony about general relations between the various factions at Big

Sandy, if relevant, would have been material or useful given the specific testimony of multiple


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United States v. Gravley

witnesses—among them Johnson, Player, Woods, and Thomas—that the assault on Peterson was

gang-related.   Woods and Thomas, for example, both testified that Peterson’s derogatory

comment about the Bloods gave rise to animus between him and Gravley. Johnson and Thomas,

inmates in different facilities, both testified that Milburne would “get rank” within the Bloods for

assaulting Peterson.

       Similarly, testimony that neither Smith, Davis, nor Bruno heard Peterson scream

Gravley’s name could just as easily mean that Milburne was successful in keeping him from

being heard—as Thomas testified he sought to do—as that Peterson never screamed Gravley’s

name in the first place. Such testimony also would be inconsistent with the testimony of

Crawford—who, unlike Smith, Davis, and Bruno, was in Cell D-240—that Peterson both

screamed and pleaded with Gravley to stop hitting him. Gravley also contends that Smith,

Davis, and Bruno’s testimony that they were not asked to house Peterson in their cells would

have bolstered his theory that BOP personnel deliberately placed Peterson in Cell D-240. But as

the District Court explained in denying Gravley’s motion to dismiss the indictment against him,

such evidence, “while certainly inculpatory of the BOP, is not automatically exculpatory as to

Gravely.” “The most the alleged evidence [would] show[ ], described most pejoratively, is that

officials at the BOP are also guilty of conspiring to murder Peterson.”

       Finally, Gravley contends that “[c]ost is not a factor” that the District Court should have

considered in determining the necessity of Smith’s, Davis’s, or Bruno’s testimony. He refers,

here, to the District Court’s observation that “in the particular case of Mr. Matthew Davis,

extraordinary cost would be associated [with granting Gravley’s motion] because it would

require Mr. Davis . . . to be flown here from an out-of-state location.” But neither in his

principal brief, his supplemental pro se brief, nor his reply brief does Gravley cite any authority


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United States v. Gravley

for the proposition that this reasoning was inappropriate, contending only that “the ‘expense’

consideration finds no basis in the Criminal Rule itself.” As the Government points out, this

court expressly stated in Rigdon that courts “may consider the expense to the government and

more particularly the danger to the public inherent in transporting inmates over [such] distances.”

459 F.2d at 379. Further, in this case, a consideration of cost was secondary to the District

Court’s determination that the testimony of neither Smith, Davis, nor Bruno was necessary to

Gravley’s adequate defense.

       We therefore conclude that the District Court did not abuse its “wide discretion” in

denying Gravley’s motions. Id. at 380.

       Judicial Estoppel:      Gravley’s second claim on appeal asserts that because the

Government allowed Milburne to plead guilty to the second-degree murder of Peterson, it was

judicially estopped from prosecuting Gravley for Peterson’s murder. According to Gravley,

“[n]o party disputes that Milburne killed Peterson by strangling him. The only contested issue

[i]s whether the killing was ordered by Gravley, or whether Milburne acted alone.” Thus,

Gravley contends, “[t]he factual basis of Milburne’s plea agreement was inconsistent with the

theory of prosecution against Gravley.” Both Gravley and the Government agree that we review

this claim, which Gravley asserts as a denial of Due Process, de novo.8 See, e.g., United States v.

Lawrence, 735 F.3d 385, 405 (6th Cir. 2013) (citing, inter alia, United States v. Jones, 641 F.3d

706, 713 (6th Cir. 2011)) (explaining that constitutional challenges are reviewed de novo).
8
 Whether the use of inconsistent theories of prosecution amounts to a denial of Due Process has
not been settled. See Bradshaw v. Stumpf, 545 U.S. 175, 187 (2005), rev’g Stumpf v. Mitchell,
367 F.3d 594 (6th Cir. 2004). The Supreme Court has stated, however, that a denial of Due
Process is possible on such a basis, id., and this court continues to recognize that possibility, see
Coley v. Bagley, 706 F.3d 741 (6th Cir. 2013). For purposes of analyzing this claim, we assume
without deciding that the use of inconsistent theories of prosecution amounts to a denial of Due
Process.

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United States v. Gravley

          As the District Court concluded, however, that Milburne pleaded guilty to murdering

Peterson does not mean that he was not assisted by Gravley or ordered by Gravley to do it. And

as the Government points out, “[Milburne’s] plea agreement does not state that [he] acted

alone[.]” The plea agreement therefore does not reflect any inconsistency that “exist[s] at the

core of the prosecutor’s cases against defendants for the same crime,” Smith v. Groose, 205 F.3d

1045, 1052 (8th Cir. 2000), or that is “inherently factually contradictory,” ibid. In his reply brief,

Gravley also contends that allowing Milburne to plead guilty to second-degree murder while

prosecuting Gravley for premeditated murder and conspiracy to commit murder is inconsistent.

But, again, he offers no authority for this proposition, and, as the District Court observed in

denying this claim, “when the [G]overnment submits a proposed plea agreement that ‘drops’

previously filed charges, it is not admitting that those ‘dropped’ charges were baseless.”

          We hold that, assuming he adequately has stated a Due Process claim,9 Gravley has not

been denied Due Process.

          Destruction of SHU Video Footage: Gravley’s third and seventh claims on appeal both

concern the BOP’s failure to preserve the bulk of nineteen hours of video footage from the SHU

corridors on November 12 and 13, 2006. In the third claim, Gravley submits that the District

Court committed reversible error when it declined to provide a jury instruction on concealment

or destruction of evidence. This court reviews that claim for abuse of discretion. United States

v. Henderson, 307 F. App’x 970, 978 (6th Cir. 2009) (quoting King v. Ford Motor Co., 209 F.3d

886, 897 (6th Cir. 2000)). A district court abuses its discretion when it refuses to give a

requested jury instruction (1) that is legally correct, (2) that is not otherwise substantially




9
    See supra note 8 and accompanying text.

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Case No. 11-6123
United States v. Gravley

covered by the instructions actually given to the jury, and (3) whose absence substantially

impairs the defendant’s defense. Id.

       Here, Gravley contends that the jury instruction that he requested satisfies all three

requirements. Yet again, however, he offers no supporting authority. As the District Court

observed, the instruction was designed for use against defendants who have destroyed or

concealed evidence, and not by defendants who are alleging the destruction or concealment of

evidence. Accordingly, there is some question as to whether the requested instruction ever could

be a correct statement of law under the circumstances of a case such as this one. Additionally,

the District Court concluded that Gravley could establish neither that the lost footage was

“materially exculpatory,” Wright, 260 F.3d at 570-71 (citing Trombetta, 467 U.S. at 485), nor

that it had been overwritten in bad faith, id. at 571 (citing Youngblood, 488 U.S. at 57-58). Thus,

even assuming that the instruction was a correct statement of law and not covered by the other

instructions with which the jury was charged, see Henderson, 307 F. App’x at 978, the District

Court’s refusal to give it likely did not impair Gravley’s defense.

       The District Court denied Gravley’s motion to dismiss the indictment against him, the

allegations of which his seventh claim on appeal renews, for similar reasons. This court reviews

the denial of Gravley’s motion to dismiss de novo, United States v. Jobson, 102 F.3d 214, 217

(6th Cir. 1996) (citing United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993)), and reviews

the District Court’s determination that Gravley did not demonstrate bad faith on the part of the

BOP for clear error, United States v. Branch, 537 F.3d 582, 590 (6th Cir. 2008) (citing United

States v. Cody, 498 F.3d 582, 589 (6th Cir. 2007)). We conclude that the District Court did not

err in denying Gravley’s motion to dismiss for the reasons stated in the District Court’s opinion.

Gravley can demonstrate neither that the missing footage was “materially exculpatory,” under


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Case No. 11-6123
United States v. Gravley

Trombetta, 467 U.S. at 485, nor that it was overwritten in bad faith, under Youngblood, 488 U.S.

at 57-58. And, given the timelines of the video footage produced by Agent Schumacker and

Warden Hastings and other available evidence, even if Gravley had demonstrated bad faith he

would not have been able to show “that he [could not] obtain comparable evidence by other

reasonably available means.” Branch, 537 F.3d at 590 (citing Wright, 260 F.3d at 571).

       Consequently, the District Court properly exercised its discretion in refusing to give the

jury instruction that Gravley requested and did not err in denying Gravley’s motion to dismiss.

       Closing Arguments: Gravley’s fourth claim on appeal asserts an issue that he did not

raise below—misconduct during the Government’s closing argument. Accordingly, we may

consider the claim forfeited. See, e.g., United States v. Rodriguez, 544 F. App’x 630, 633 (6th

Cir. 2013) (citing Poss v. Morris, 260 F.3d 654, 663 (6th Cir. 2001)) (“Appellate review is, of

necessity, limited to issues addressed by the court below.”)           In the interest of being

comprehensive, however, we briefly address it. Gravley and the Government agree, again, on

the standard of review that applies to such a claim: plain error. See United States v. Henry,

545 F.3d 367, 376 (6th Cir. 2008) (citing United States v. Emuegbunam, 268 F.3d 377, 406 (6th

Cir. 2001)). This standard requires Gravley to demonstrate an obvious error that prejudiced his

substantial rights and “seriously affected the fairness, integrity, or public reputation of the

judicial proceedings.” Ibid.

       Here, Gravley complains that the Government improperly told the jury in closing

arguments that Gravley’s statement to Milburne, “We’re going to eat his food,” meant, “It is time

to attack.” He also contends that the Government improperly appealed to the passions of the jury

when it told them that the inmates who testified would be labeled “snitch[es]” and that they

would have “a walking death penalty” when they returned to their facilities. Finally, Gravley


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United States v. Gravley

asserts that the Government improperly inflamed the passions of the jury by emphasizing the

brutality of Peterson’s death when it directed them to photographs of Peterson that had been

admitted in evidence because of their “clinical nature.” None of these allegations reflects an

obvious error, much less any prejudice to Gravley’s substantial rights or adverse effect on the

integrity of the judicial proceedings against him.

         This court recognizes prosecutorial misconduct only when two circumstances have been

established: (1) challenged remarks by the prosecutor were improper; and (2) the remarks were

so flagrant as to require reversal. Henry, 545 F.3d at 376. In determining flagrancy, we consider

whether a remark misled the jury or prejudiced the defendant; whether such remarks were

extensive; whether such remarks deliberately were placed before the jury; and the overall impact

of the remarks on the strength of the case against the defendant. Id.

         As to the first challenged statement here, Crawford expressly testified that he understood

“We’re going to eat his food” to mean that Gravley and Milburne were “going to do something

to [Peterson],” “[p]hysically.”    No read of that testimony communicates an understanding

contrary to the Government’s representation that an attack on Peterson was imminent. The

second statement also is borne out by the record. As David Johnson expressly testified, murder

is an understood consequence of testifying against another inmate and being labeled a “snitch” or

“hot.”    As for Gravley’s complaint about the Government’s commentary regarding the

photographs of Peterson, he mounts no meaningful challenge to the photographs or their “clinical

nature,” on the basis of which they were admitted into evidence.

         Under our precedent, prosecutors enjoy “wide latitude . . . during closing argument,”

Henry, 545 F.3d at 377, and they may “argue the record, highlight the inconsistencies or

inadequacies of the defense, and forcefully assert reasonable inferences from the evidence,”


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Case No. 11-6123
United States v. Gravley

Bates v. Bell, 402 F.3d 635, 646 (6th Cir. 2005). Against this standard, and in tandem with the

limited review that plain error inquiry affords, we hold that the challenged statements do not

amount to prosecutorial misconduct, and the District Court did not err in permitting them.

       Woods’s Perjury: Gravley’s fifth claim on appeal asserts the basis on which he sought a

new trial before the District Court—Woods’s prior perjury before a grand jury in Tennessee.

Gravley and the Government agree that this court reviews the denial of a motion for new trial

under Criminal Rule 33 for abuse of discretion. See United States v. White, 492 F.3d 380, 408

(6th Cir. 2007) (citing, inter alia, United States v. Frost, 125 F.3d 346, 382 (6th Cir. 1997)). For

the reasons expressed in the District Court’s denial of Gravley’s motion, we conclude that the

court did not abuse its discretion. Woods’s perjury, while useful as impeachment evidence, was

not likely material nor likely to have produced Gravley’s acquittal for at least two reasons:

(1) other witnesses corroborated Woods’s testimony; and (2) the Government offered other

evidence of Gravley’s guilt.

       Sequestration Order: Gravley’s sixth claim on appeal renews his motion for a mistrial

on the basis of a purported violation of the District Court’s sequestration order, which the

District Court denied. Gravley and the Government agree that our review of that denial is for

abuse of discretion. See United States v. Martin, 516 F. App’x 433, 448 (6th Cir. 2013) (citing,

inter alia, United States v. Rugiero, 20 F.3d 1387, 1392 (6th Cir. 1994)); United States v. Atisha,

804 F.2d 920, 926 (6th Cir. 1986) (citing United States v. Faulkenbery, 472 F.2d 879, 882 (9th

Cir. 1973)). Federal Rule of Evidence 615 requires a court to “order witnesses excluded [from

the courtroom] so that they may not hear other witnesses’ testimony” on request by a party. As

Player admitted on the witness stand, he traveled to court with Woods and Thomas for two to




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Case No. 11-6123
United States v. Gravley

three minutes, and the three witnesses “discuss[ed] why [they] were there.”            Accordingly,

Gravley contends, the District Court abused its discretion in refusing to grant a mistrial.

       As Gravley concedes, however, this court “is yet to take a position” “regarding whether

Rule 615 extends beyond the courtroom.” Martin, 516 F. App’x at 448. Accordingly, the

District Court’s conclusion that the rule “requires [only] that witnesses are not allowed to remain

in the courtroom during the testimony of other witnesses” cannot have been an abuse of

discretion. Even an express violation of a sequestration order “does not automatically bar a

witness’[s] testimony.” Id. (quoting United States v. Gibson, 675 F.2d 825, 835-36 (6th Cir.

1982)). And even an express violation would require a showing “that the Government consented

to or had knowledge of the witnesses’ coordination of testimony” and that the defendant was

prejudiced thereby, neither of which Gravley has made. Id. Accordingly, on the record before

the court in this case, we conclude that the District Court did not abuse its discretion in denying

Gravley’s motion for a mistrial.

       B.      Pro Se Claims.

       In addition to his principal and reply briefs, Gravley has filed a pro se supplemental brief,

as he did many times before the District Court, that asserts three additional claims. As a

preliminary matter, this court “do[es] not ordinarily consider pro se claims brought by a

defendant represented by counsel on appeal[.]” United States v. Jenkins, 229 F. App’x 362, 370

(6th Cir. 2005). The District Court acknowledged a similar rule, but, “out of an abundance of

caution,” considered Gravley’s pro se factual assertions and omitted only his pro se legal

arguments.    Gravley’s repeated pro se claims thus already have received more than due

consideration. Again, however, in the interest of comprehensiveness, we briefly address them.




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United States v. Gravley

       Failure to correct false testimony by Woods and Crawford: Gravley’s first pro se claim

on appeal asserts that he was denied his Due Process right to a fair trial because the Government

failed to correct false testimony by Woods and Crawford. We review this claim, which Gravley

asserts as a denial of Due Process, de novo. See Lawrence, 735 F.3d at 405 (citing, inter alia,

Jones, 641 F.3d at 713 (explaining that constitutional challenges are reviewed de novo)). To

establish a Due-Process violation, Gravley must establish (1) the actual falsity of the testimony,

(2) the prosecution’s knowledge of the falsity, and (3) the materiality of the testimony. See

United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989) (citing United States v. O’Dell,

805 F.2d 637, 641 (6th Cir. 1986)).

       Gravley relies on two excerpts from Woods’s testimony, having to do with (1) Woods’s

testimony before the grand jury in Tennessee and (2) Woods’s representation that he was serving

a life sentence for “[j]uror conspiracy” instead of “conspiracy to distribute cocaine.” On both

scores, Gravley’s claim fails because even if he can establish the testimony’s falsity and the

Government’s knowledge of the falsity, the testimony was not material.

       During Gravley’s trial, the Government asked Woods whether he ever had “testified

against anyone in the past.” Gravley asserts that Woods’s response, “No, sir,” was false because

of Woods’s prior grand jury testimony in Tennessee. As the Government points out, however,

“[a] grand jury proceeding is not an adversary hearing,” United States v. Calandra, 414 U.S.

338, 343 (1974). Accordingly, there is some question as to whether Woods’s representation that

he never had testified against anyone was false, and, if so, whether the Government knowingly

presented it as such. Assuming arguendo that the testimony was false, however, and crediting

Gravley’s accusation that the Government was aware of the falsity, Gravley’s claim still fails.

As the District Court explained when it denied Gravely’s motion for a new trial, any


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Case No. 11-6123
United States v. Gravley

impeachment of Woods would have been of limited value because other witnesses corroborated

Woods’s testimony and because the Government offered other evidence of Gravley’s guilt.

Accordingly, Woods’s testimony, true or false, was not material.

       As to the second excerpt, Gravley himself was not misled by Woods’s representation that

Woods was serving a life sentence for “[j]uror conspiracy” rather than “conspiracy to distribute

cocaine,” as was correct. Gravley later explained to the jury that Woods “got a life sentence for

drug transportation, drug—drug something, some involvement with drugs. A life sentence. That

was not a little bit.” Accordingly, even if we again assume arguendo the satisfaction of first two

elements that Gravley must establish, he cannot demonstrate materiality.

       Regarding Crawford’s testimony, Gravley contends that Crawford’s representation that

he “initially t[old] [prison officials] what happened [to Peterson],” was false because he did not

make a statement to the officers who first interviewed him. Gravley attaches to his supplemental

brief, as support for this claim, documentation of Crawford’s interview with an SIS Lieutenant,

“B. Feldt,” at approximately 1:50 PM on November 13, 2006. According to this documentation,

“Inmate Crawford refused to make any statement and did not wish to communicate in any form

to either [B. Feldt] or [FBI] Agent [Steve] Spahn.”

       Assuming the truth of this documentation, the falsity of Crawford’s statements, and the

Government’s knowledge of the latter’s falsity, Gravley still cannot demonstrate materiality for

an important reason: Crawford’s testimony already had been impeached by the testimony of

other witnesses.   Both Johnson and Woods, for example, represented that Crawford had

participated in the assault on Peterson. (Compare, e.g., PageID # 2068 (Johnson), and PageID #

2164 (Woods), with PageID # 1919 (Lawyer: “Did you participate in the assault?” Crawford:

“No.”).) “‘[W]here the undisclosed evidence merely furnishes an additional basis on which to


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Case No. 11-6123
United States v. Gravley

challenge a witness whose credibility has already been shown to be questionable . . . the

undisclosed evidence may be cumulative, and hence not material.’” Byrd v. Collins, 209 F.3d

486, 518 (6th Cir. 2000) (quoting United States v. Avellino, 136 F.3d 249, 257 (2d Cir. 1998)).

       Accordingly, Gravley’s first pro se claim fails.

       Sufficiency of the Evidence: Gravley’s second pro se claim on appeal renews the

allegations of his motion for acquittal under Criminal Rule 29. “In considering insufficiency of

the evidence claims following a guilty verdict,” this court determines whether, “‘after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” United States v. Rosin,

664 F.3d 1052, 1058 (6th Cir. 2012) (emphasis in original) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)).      Consequently, the Government receives “‘the benefit of all

inferences which can reasonably be drawn from the evidence[.]’” Id. (quoting United States v.

Adamo, 742 F.2d 927, 932 (6th Cir. 1984)).

       In denying Gravley’s motion, the District Court concluded that Gravley’s challenges

went to the weight, rather than to the sufficiency, of the evidence, which it was not allowed to

consider under Criminal Rule 29. Additionally, the District Court concluded, “[t]he jury heard

both Milburne and Crawford’s testimony, and it was free to accept either the [G]overnment’s

theory regarding the duress alarm (i.e. that it exists but was not pushed) or Gravley’s theory

regarding the alarm.” The jury chose the Government’s theory with respect to the duress alarm

and the remainder of Gravley’s defenses, and there is record evidence to support that choice.

Accordingly, we hold that the evidence was sufficient to support the charges against Gravley.

       Prosecutorial Vindictiveness: Gravley’s final pro se claim on appeal asserts that the

Government obtained the superseding indictment against Gravley vindictively.             Gravely,


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United States v. Gravley

originally accompanied by counsel, met with the Government in January of 2011 to discuss a

possible plea agreement.     At that meeting, a prosecutor allegedly told Gravley that the

Government would seek a superseding indictment with additional counts against him if he did

not plead guilty.    Gravley rejected the proposed agreement and moved to dismiss the

subsequently obtained superseding indictment for prosecutorial vindictiveness. 10 The District

Court rejected the motion in a minute entry.       This court reviews that denial for abuse of

discretion, United States v. Ladeau, 734 F.3d 561, 565 (6th Cir. 2013), which exists when a

district court “‘relies on erroneous findings of fact, applies the wrong legal standard, misapplies

the correct legal standard when reaching a conclusion, or makes a clear error of judgment,’” id.

at 565-66 (quoting Schlaud v. Snyder, 717 F.3d 451, 457 (6th Cir. 2013)).

       Prosecutors have “‘broad discretion’” in deciding whom to prosecute and which charges

to bring. Id. at 566 (quoting Bragan v. Poindexter, 249 F.3d 476, 481 (6th Cir. 2001)). As this

court explained in Ladeau,

       Because plea bargaining offers a mutuality of advantage to defendants and
       prosecutors, and because the prosecution’s ability to threaten a reluctant
       defendant with heightened charges is a necessary feature of a robust plea
       bargaining process, increased charges resulting from a breakdown of the plea
       bargaining process are not deemed vindictive, regardless of the fact that the
       prosecutor’s goal is to persuade the defendant to forgo his constitutional right to
       stand trial.

Id. at 569 (internal citations and quotation marks omitted). Accordingly, so long as the

Government engages a defendant in “the give-and-take” compromise though which he can



10
  This was a separate motion from Gravley’s earlier motion to dismiss the superseding
indictment, filed by counsel, due to the Government’s failure to disclose the overwritten video
footage from November 12 and 13, 2006, from the cameras in the SHU corridor. (See PageID #
174.)

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Case No. 11-6123
United States v. Gravley

negotiate a benefit, it does not violate the defendant’s constitutional rights.       Id. (quoting

Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978)).

       Here, fully crediting Gravley’s allegations, the Government engaged Gravley in the type

of “give-and-take” that Ladeau and Bordenkircher envision. He did not like his options, the two

parted ways, and the Government made good on its promise to seek additional charges. Such an

exchange is a “necessary feature of a robust plea bargaining process.” Accordingly, we hold that

the District Court did not abuse its discretion in denying Gravley’s motion to dismiss.

                                     III.   CONCLUSION

       For these reasons, we AFFIRM the District Court’s judgment.




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