                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4220


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ILDEFONSO MADRID FLORES, a/k/a Alfonso,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00353-MOC-DCK-1)


Argued:   March 19, 2014                  Decided:   April 7, 2014


Before DUNCAN, WYNN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Andrew Brady Banzhoff, DEVEREUX & BANZHOFF, Asheville,
North Carolina, for Appellant.     April Anita Christine, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Mythili Raman, Acting Assistant Attorney General,
Denis J. McInerney, Deputy Assistant Attorney General, Criminal
Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       After a jury trial, Ildefonso Madrid Flores was convicted

of conspiracy to possess cocaine with intent to distribute in

violation of 21 U.S.C. §§ 841(a)(1) and 846.               Flores contends

that   the   government    violated    Brady   v.   Maryland,   373   U.S.    83

(1963),      by   withholding     important       information    about       the

prosecution’s key witness.         Flores appeals the district court’s

denial of his motion for a mistrial and his motion for a new

trial on this ground.       Finding no error, we affirm.



                                       I.

       During Flores’s trial for his drug offense, the government

planned to call David Kennedy, one of Flores’s co-conspirators,

as a key witness.          Kennedy had been attending court-mandated

counseling sessions at New Beginnings Counseling Center.               At the

request of Flores’s attorney, the court issued a subpoena to New

Beginnings requiring it to turn Kennedy’s mental health records

over to the court.

       On May 7, 2012, the eve of Flores’s trial, a representative

from New Beginnings came to the courthouse to deliver Kennedy’s

subpoenaed files.         Rather than turning the files over to the

Clerk of Court, however, the representative mistakenly handed

them    to   an   Assistant     U.S.   Attorney     (“AUSA”)    who   had    no

involvement in Flores’s case.          That AUSA--who knew nothing about

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the subpoena’s instruction to turn the file over to the court--

informed the prosecutor in Flores’s case that documents relating

to    the   case   had    been       delivered.      The    prosecutor      working    on

Flores’s case, however, did not actually see the file that New

Beginnings had delivered until the morning after the trial.

       At the pretrial conference on the morning of May 8, 2012,

Flores’s attorney asked the court to conduct an in camera review

of    the   records      subpoenaed         from   New   Beginnings.        The    judge

informed Flores’s attorney that the court had not received the

records.     At this time, the prosecutor noted that New Beginnings

had delivered a package to another AUSA the night before, but

that he had not seen the package.                  This is when the parties and

the court first learned of the improper delivery of Kennedy’s

New   Beginnings      records.          The   prosecutor     tried     to   remedy    the

situation by offering the court and Flores’s lawyer what he was

physically     carrying         at    the     time--a    copy     of   Kennedy’s      New

Beginnings     file      that    he    had    obtained     from   Kennedy’s    lawyer.

Unbeknownst to the prosecutor, Flores’s attorney, or the judge,

these records were incomplete and not identical to those that

New Beginnings had improperly delivered the previous afternoon.

       The trial began immediately after this conference.                         On the

trial’s second day, Kennedy took the stand to testify.                            During

his cross-examination, Flores’s attorney impeached him at length



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with his extensive history of heavy drug use. 1                  Kennedy also

testified that he was undergoing drug counseling and treatment

for anxiety and depression.             Because the New Beginnings records

used by both parties were incomplete, however, Flores’s attorney

was unaware of additional information that could have affected

Kennedy’s credibility, including the full extent of his drug

use,       his   auditory    hallucinations,      and   that    he   had    been

hospitalized for his drug use and mental illness.

       The trial concluded on its second day, May 9, 2012, and the

jury began its deliberations.                On May 10, 2012, as the jury

continued        its   deliberations,    the   judge    held   the   post-trial

conference.        At this time, the prosecutor informed the court and

Flores’s attorney that the New Beginnings file he had offered at

the pretrial conference was incomplete.                 He then turned over

Kennedy’s complete file, which New Beginnings had misdelivered.

The judge and Flores’s attorney reviewed it.

       Later in the post-trial conference, the parties submitted

several motions in response to the revelation that the trial had

proceeded without Kennedy’s full mental health records.                    After


       1
       For example, during his cross-examination, Kennedy called
himself a “[v]ery heavy” drug user and admitted that he had been
fired from his previous job for drug use.    J.A. 282.   Kennedy
went on to say that he used cocaine “[a]ll day” on a daily basis
during the time that he interacted with Flores.     J.A. 283–84.
Kennedy also admitted that his drug use “[c]ertainly” resulted
in memory loss. J.A. 291.

                                         4
reviewing the contents of the New Beginnings records, Flores’s

attorney     orally    moved    for      a       mistrial    with    prejudice     and

requested a hearing to reveal possible governmental misconduct.

Flores’s attorney, in the alternative, moved for a new trial on

the ground of newly discovered evidence under Fed. R. Crim. P.

33(b)(1).     The government orally moved for a mistrial without

prejudice, which Flores’s attorney opposed.

     The    district    court       ultimately       rejected      each   motion   and

allowed the jury to reach a verdict, as “this evidence came

in . . . after the jury was out.”                 J.A. 528.       The district court

also rejected any notion that the government’s nondisclosure was

anything other than inadvertent.                 It noted that the mistake was

“not the government’s fault” because “[t]he person that screwed

up is the person that didn’t follow [the subpoena’s directions]

over there at the New Beginnings.”                J.A. 506, 508.

     The    jury   returned     a    guilty       verdict.        Flores’s   attorney

filed a written motion for a mistrial and a new trial, again

requesting     a      hearing       to       determine       if     the   prosecutor

intentionally withheld information from the defense.                      After full

briefing by both sides, the district court rejected Flores’s

motions.    Flores appeals.




                                             5
                                              II.

      We review each of the district court’s denials for abuse of

discretion.        United States v. Chong Lam, 677 F.3d 190, 203 (4th

Cir. 2012); United States v. Wallace, 515 F.3d 327, 330 (4th

Cir. 2008). 2

      Brady     requires       that      the        government      disclose       material

evidence favorable to the defendant in a criminal proceeding.

United    States     v.    McLean,      715    F.3d      129,     142    (4th    Cir.    2013)

(citing Brady, 373 U.S. at 87).                      A Brady violation occurs when

evidence favorable to the accused has been suppressed by the

state, and the defendant is prejudiced.                           Strickler v. Greene,

527   U.S.    263,    281–82      (1999).           A    Brady    violation       can    occur

“irrespective        of     the     good       faith       or     bad     faith     of     the

prosecution.”         Giglio       v.   United          States,    405    U.S.    150,     153

(1972).      However, “a defendant is not entitled to the benefit of

the Brady doctrine” when the exculpatory information “is not

only available to the defendant but also lies in a source where

a reasonable defendant would have looked.”                              United States v.

Jeffers,     570    F.3d    557,     573      (4th      Cir.    2009)    (quoting       United




      2
       Flores also appeals his sentence, claiming that he has a
constitutional right for a jury to determine drug weights used
in sentencing. Flores acknowledges that his position is not the
law in this circuit.    We recognize that he seeks to preserve
this issue for a possible future challenge.

                                               6
States v. Wilson, 901 F.2d 378, 381 (4th Cir. 1990)).               That is

indisputably the case here.

     Flores cannot benefit from Brady because Kennedy’s mental

health    records   fall   squarely    within   the   exception   set   forth

above.     Flores’s attorney had equal access to the information

sought: the very subpoena obtained by Flores’s attorney ensured

that Kennedy’s complete New Beginnings records were available to

Flores.    Therefore, we cannot say that the district court abused

its discretion in denying Flores’s motions for a mistrial and

for a new trial.



                                      III.

     For the foregoing reasons, the district court’s order is

                                                                  AFFIRMED.




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