     Case: 09-30004     Document: 00511520705         Page: 1     Date Filed: 06/24/2011




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

                                                                            FILED
                                                                           June 24, 2011

                                       No. 09-30004                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

JERRY CUTNO,

                                                  Defendant - Appellant



                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                            2:05–cr–00268–ILRL–SS–1


Before WIENER, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
        Jerry Cutno (“Cutno”) was convicted of conspiring to possess with the
intent to distribute an amount of cocaine, under 21 U.S.C. § 841(a), and use of
a firearm in the commission of a drug trafficking crime, which caused the death
of Paul Miller (“Miller”), under 18 U.S.C. § 924(c) and (j). Cutno appeals,
arguing that the district court erred when it denied his motion for a judgment
of acquittal and/or new trial; denied his application to reopen an evidentiary
hearing; and prematurely limited his cross examination of a police detective,

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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thereby preventing him from developing the theory of his defense. We AFFIRM.


I.      Cutno’s Motion for Judgment of Acquittal and/or New Trial
        Cutno contends that the district court improperly denied his motion for
judgment of acquittal and/or new trial. Cutno’s argument requires a discussion
of Cutno’s relationship with Kenneth White (“White”). While awaiting trial,
Cutno was housed in the Tangipahoa Parish Jail where he befriended and
confessed to White his involvement in Miller’s murder.1 White testified against
Cutno at trial, after which Cutno’s counsel impeached White through his state
court convictions for distribution of cocaine and simple robbery, and a federal
conviction for distribution of cocaine. The defense did not ask White if he had
any other convictions. On appeal, Cutno points to ten misdemeanor convictions
that he claims belong to White, the nondisclosure of which he believes constitute
Brady2 violations. Cutno argues that White’s failure to divulge his entire
criminal history constituted perjury. He contends that the Government’s failure
to disclose White’s criminal history amounts to a Brady violation. Cutno argues
that the compound of these errors entitles him to a new trial.
        This court reviews de novo a denial of a motion for a judgment of acquittal
and/or new trial based on an alleged Brady violation. United States v. Gonzales,
121 F.3d 928, 946 (5th Cir. 1997), abrogated by United States v. O’Brien, 130

        1
         Before trial, Cutno sought to suppress the confession and the district court held a Massiah
hearing. In Massiah v. United States, the Supreme Court held that a criminal defendant may not
have “used against him at his trial evidence of his own incriminating words, which federal agents
had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377
U.S. 201, 206 (1964). The district court denied Cutno’s Massiah motion and ordered the case tried
before separate juries with co-defendant Veazie. This is discussed in greater detail in Section II,
infra.
        2
         “[T]he suppression by the [Government] 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 [Government].” Brady v. Maryland, 373 U.S,
83, 87 (1963).

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S.Ct. 2169, 2180 (2010). A court may “grant a new trial . . . if the interest of
justice so requires.” FED. R. CRIM. P. 33(a). To receive a new trial, a defendant
must prove that (1) the evidence is newly discovered and was unknown to him
at the time of trial, (2) failure to detect the evidence was not due to a lack of
diligence by the defendant, (3) the evidence is not merely cumulative or
impeaching, (4) the evidence is material, and (5) the evidence introduced at a
new trial would probably produce an acquittal. United States v. Jaramillo, 42
F.3d 920, 924 (5th Cir. 1995). To establish a Brady violation, a defendant must
show that evidence was suppressed, favorable to the defendant, and material to
either guilt or punishment. United States v. Martin, 431 F.3d 846, 850 (5th Cir.
2005) (citing United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002)). The
Supreme Court counsels that “evidence is only material if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” United States v. Bagley, 473 U.S. 667,
682 (1985). “A reasonable probability is sufficient to undermine confidence in
the outcome.” Id. The materiality inquiry is done “collectively, not item by item
. . . .” Kopycinski v. Scott, 64 F.3d 223, 226 (5th Cir. 1995). Kopycinski instructs
us to consider whether the omission “puts the case in a different light so as to
undermine confidence in the jury verdict.” Id.
      The Government argues that, of the ten misdemeanor convictions cited by
Cutno, only five belong to the “Kenneth White” in question: hit and run,
aggravated assault, disturbing the peace, possession of marijuana, and
dogfighting.   The Government contests the remaining five misdemeanor
convictions as belonging to a different person with the name “Kenneth White.”
      The omitted evidence is immaterial for many            reasons.    First, the
convictions are for misdemeanors and thus unavailable as a means of
impeachment. Second, the convictions acknowledged by the Government were
not ones involving dishonesty or moral turpitude. Federal Rule of Evidence 609

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makes clear that impeachment for convictions of a crime is permissible only if
the conviction was either for a felony or for a crime in which dishonesty or false
statement is an element. Furthermore, setting aside White’s testimony for a
moment, the jury nonetheless had sufficient evidence to convict Cutno. Ashley
Williams, the girlfriend of Cutno’s co-defendant Ryan Veazie, lived in the
apartment which served as the scene of the crime. Her testimony put Cutno at
the scene, as did shell casings and blood found on Cutno’s person after police
apprehended him. A cell phone, bloodied counterfeit money, and a handgun
found close to where Cutno was apprehended also tied Cutno to the scene of the
crime without resort to White’s testimony.
      Disclosure of even the five misdemeanor convictions conceded by the
Government pales when compared to the formidable criminal record that White
did disclose at trial. White was extensively cross-examined about his prior state
and federal felony convictions, history of mental health and intelligence and, as
discussed in Section II, infra, his role as an informant for the Government.
From this, the defense had sufficiently impeached White. After a witness is
impeached, “any further impeachment of the type that the defense now desires
would merely have been cumulative.” United States v. O’Keefe, 128 F.3d 885,
897 (5th Cir. 1997). Bagley requires a reasonable probability that the omitted
evidence affects the outcome of the trial. 473 U.S. at 682. Here, the damage to
White’s credibility was already done through revelation of his other, more
serious crimes. Therefore, disclosing additional crimes would likely not have
resulted in a different verdict. Thus, the omission of White’s misdemeanor
convictions does not undermine our confidence in the verdict.
      We next examine whether the nondisclosures constituted a Brady
violation. As United States v. Agurs makes clear, Brady applies to “information
[] known to the prosecution, but unknown to the defense.” 427 U.S. 97, 103
(1976). Yet, “there are limits on the imputation of knowledge from one arm of

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the Government to prosecutors. The prosecution is deemed to have knowledge
of information readily available to it.” United States v. Webster, 392 F.3d 787,
798 n.20 (5th Cir. 2004) (internals quotations, citations, and brackets omitted).
“It is well-settled that if a member of the prosecution team has knowledge of
Brady material, such knowledge is imputed to the prosecutors.”                            Avila v.
Quarterman, 560 F.3d 299, 307 (5th Cir. 2009). Exactly who constitutes a
member of the prosecution team is done after a “case-by-case analysis of the
extent of interaction and cooperation between the two governments.” Id. at 570
(discussing the cooperation between federal and state government agencies,
versus different arms of the federal government).
       To determine whether the Government knew of White’s misdemeanor
convictions, we examine the interplay between the United States Attorney’s
office and the Clerk’s office of St. James Parish, the jurisdiction in which White
committed his misdemeanor convictions. St. James Parish took no part in the
prosecution of Cutno for Miller’s murder. The record demonstrates that the
Government’s research of White’s criminal history was done through the
National Crime Information Center (NCIC) and by checking its report and rap
sheets, which were disclosed pursuant to Brady.                            The omissions for
misdemeanors at the heart of Cutno’s argument did not appear on the NCIC rap
sheet and thus, were unknown to the Government.3 Cutno presupposes that the
Government knew White’s concession of his criminal history to be incomplete
and permitted it anyway. That is simply not the case. Thus, the district court



       3
         The Government avers that counsel for Cutno knew of White’s other convictions
independent of the NCIC rap sheet at the time of trial. If true, this presents certain problems for
Cutno. First, it undermines his argument that the Government knew and was not disclosing White’s
other convictions. Next, a colloquy at trial between the district court and Cutno’s lawyer suggests
White was not being forthright with testimony regarding his convictions and that defense counsel
knew this. It was Cutno’s choice not to question White regarding the totality of his criminal record.


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did not err when it held that the omitted evidence was immaterial to the jury’s
assessment of the evidence as a basis for denying the Rule 33 motion.
II.      The Massiah Hearing
         Cutno alleges that the district court erred when it refused to reopen the
Massiah Hearing. We review the decision to refuse to conduct or reopen a
pretrial evidentiary hearing for an abuse of discretion.                  United States v.
Harrelson, 705 F.2d 733, 737 (5th Cir. 1983). If an abuse of discretion is
discovered, it is scrutinized under the harmless error doctrine. United States v.
Clark, 577 F.3d 273, 287 (5th Cir. 2009) (citing United States v. Sanders, 343
F.3d 511, 517 (5th Cir. 2003)). In such a scenario, “[r]eversible error occurs only
when the admission of evidence substantially affects the rights of a party.” Id.
(citing United States v. Crawley, 533 F.3d 349, 353 (5th Cir. 2008)). To allege a
Massiah violation, a criminal defendant must establish that a Sixth Amendment
right to counsel attached; an individual seeking the information was a
government agent acting without the defendant’s counsel being present; and,
that the agent deliberately elicited incriminating statements from the defendant.
Henderson v. Quarterman, 460 F.3d 654, 664 (5th Cir. 2006).
         Here, Cutno asserts that White’s relationship with the Government
through his cooperation with the Bureau of Alcohol, Tobacco & Firearm (“ATF”)
in another case4 compromised his testimony in this case. The Government
argues that White contacted the prosecution only after Cutno confessed to White
his involvement in Miller’s murder, and that ATF agents thus testified truthfully
at Cutno’s hearing to suppress his confession on Massiah grounds. Therefore,
the Government asserts, the district court did not err when it found no evidence
that White was ever directed to elicit statements from Cutno or anyone from law
enforcement, and he therefore did not act as an agent for the Government.


        4
            United States v. Benjamin, No. 03-274, 2011 WL 288777 (E.D. La. January 26, 2011).

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       Cutno cannot demonstrate that the failure to reopen the hearing
substantially affected his rights, such that they affected the outcome of the
proceedings. First, contrary to Cutno’s assertions, the information that he
supposes as newly discovered was, in fact, stale. White freely admitted (at the
Massiah hearing) that he was cooperating in another case within the Eastern
District of Louisiana, and he made that admission again at trial. Next, Cutno
alleges that an envelope was sent by White to two ATF agents regarding his
cooperation in another case. Cutno argues that this demonstrates perjury by
two ATF agents when they testified that White was not an informant for them
and did not contact them.5 Yet, the Government does not contest the fact that
White reached out to the federal government. His doing so was the predicate to
his transfer to Tangipahoa Jail from federal custody. This was known to the
district court at the Massiah hearing and again divulged during trial. The
district court found no evidence to demonstrate that White was acting at the
Government’s behest at the time that Cutno made his confession to White.
White testified that he and Cutno formed a friendship at which point Cutno
confessed to Miller’s murder. Taken together, this defeats Cutno’s argument
that White was acting as a Government agent. Because Cutno cannot prove
that White was a Government agent, we conclude that his Massiah complaint
fails and the district court did not err in regard to this issue.
III.   Cutno’s Confrontation Clause Complaint
       Cutno’s theory of defense supposes that Veazie killed Miller because
Veazie believed Miller was romantically involved with Williams. Cutno argues
that he should have been allowed to cross-examine Detective Ronald Ruiz as to



       5
         ATF agent Michael Eberhardt testified he first became familiar with White after being
contacted by the prosecuting attorney in this case. ATF agent Jennifer Doreck testified that
she first heard of White from Eberhardt when Eberhardt asked her to escort White to a
meeting. Both testified that White had never been an informant for the ATF

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this theory and should have been allowed to introduce affirmative evidence of
Veazie’s prior drug dealing and his prior conspiracy to murder someone thought
to be interfering in Veazie’s personal relationships. Review of a limitation of
cross examination is for abuse of discretion. United States v. Davis, 393 F.3d
540, 548 (5th Cir. 2004) (citation omitted). A defendant’s right to cross examine
witnesses against him is a constitutional right secured by the Confrontation
Clause of the Sixth Amendment. Id. (citation omitted) A judge’s discretionary
authority to limit the scope of cross-examination comes into play only after the
defendant has been permitted, as a matter of right, sufficient cross-examination
to satisfy the Sixth Amendment. Id. (citations omitted). The Confrontation
Clause is satisfied where defense counsel has been allowed to expose the jury to
facts from which the jury could appropriately draw inferences relating to the
reliability of the witness. United States v. Restivo, 8 F.3d at 274, 278 (5th Cir.
1993).    To demonstrate reversible error, a defendant must show that the
limitation was clearly prejudicial. Id.
        Here, Cutno has not shown that, but for the limitation, the jury would
have had a significantly different perception of the Ruiz’s credibility. United
States v. Maceo, 947 F.2d 1191, 1200 (5th Cir. 1991). First, the district court
considered the theory advanced by Cutno and dismissed it as speculative.
Moreover, it was duplicative, as the district court indicated that “[Cutno’s
Counsel] already brought out that [Ruiz] initially investigated [Veazie’s alleged
earlier transgression].” The district court referenced an in camera meeting and
reiterated the difficulty the it had in seeing the relevance, both temporally (the
prior incident was five years before Miller’s murder and eight years before
Cutno’s trial) and as it related to any of the individuals involved in the instant
case.
        Thus, because we find Cutno’s rights under the Sixth Amendment were
not violated, we need not determine if the alleged error was harmless beyond a

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reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)
(noting that the correct inquiry for an improper denial of a defendant’s
opportunity to impeach a witness is subject to a harmless-error analysis).
                                  CONCLUSION
      Because we find no reversible error, we AFFIRM the judgment of the
district court in all respects.




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