                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2003

USA v. Zimmerman
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3831




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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                   No. 02-3831


                         UNITED STATES OF AMERICA

                                         v.

                            SHAWN P. ZIMMERMAN,
                                         Appellant


                    Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                         (D.C. Criminal No. 01-cr-00080-14)
                    District Judge: Honorable A. Richard Caputo


                              Argued March 14, 2003

      Before: BECKER, Chief Judge*, RENDELL and AM BRO, Circuit Judges.

                               (Filed: June 16, 2003)




                                      Michael C. Kostelaba, Esq.    [ARGUED]
                                      P.O. Box 1321
                                      Wilkes-Barre, PA 18703
                                        Counsel for Appellant


_________________________

  *Judge Becker completed his term as Chief Judge on May 4, 2003.
                                           Barbara K. Whitaker, Esq. [ARGUED]
                                           Office of U.S. Attorney
                                           235 North Washington Avenue
                                           P.O. Box 309, Suite 311
                                           Scranton, PA 18501
                                             Counsel for Appellee

                                       ___________

                                OPINION OF THE COURT


RENDELL, Circuit Judge.

       Shawn Zimmerman appeals the District Court’s order denying his motion for a

new trial.1 He argues that the government’s failure to disclose a U.S. Secret Service

Agent’s interview notes constituted a material discovery violation under the Jencks Act,

18 U.S.C. § 3500 (1957), and Brady v. Maryland, 373 U.S. 83 (1963), and rendered the

trial unfair.2 Because we find that any failure to disclose was harmless, we will affirm.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we exercise

       1
         The District Court also denied Zimmerman’s motion for judgment of acquittal
due to insufficiency of the evidence, but Zimmerman does not raise this order on appeal.
       2
         Zimmerman also appeals the District Court’s denial of his request for transcripts
of his co-defendants’ proceedings under the Criminal Justice Act, 18 U.S.C. § 3006A(e).
Zimmerman argues that the Court “should have approved” the request because the
transcripts would have been helpful to cross-examination, but does not explain why the
Court’s denial was an abuse of discretion. See United States v. Roman, 121 F.3d 136,
143 (3d Cir. 1997) (“The decision to grant or deny a motion under section 3006A(e) is
one committed to the discretion of the district court, and a district court’s decision will be
disturbed on appeal only if it constitutes an abuse of discretion.”) As the transcripts
would have been cumulative of the information already available to Zimmerman, and his
co-defendants were available to be interviewed before trial, we find that the District Court
did not abuse its discretion in denying Zimmerman’s request and will therefore affirm.

                                              2
jurisdiction over the Court’s final orders pursuant to 28 U.S.C. § 1291. In reviewing the

District Court’s denial of a motion for a new trial based on a failure to disclose Jencks

Act or Brady material, we conduct a clearly erroneous review of the Court’s findings of

fact and a de novo review of the Court’s conclusions of law. United States v. Price, 13

F.3d 711, 722 (3d Cir. 1994).

       We will assume for purposes of this appeal that the interview notes requested by

Zimmerman should have been disclosed by the government, as they contained

information that was potentially exculpatory. However, we will not grant relief unless the

failure to disclose was material. United States v. Bagley, 473 U.S. 667, 675 (1985). In

determining whether the government’s failure to disclose was material, we must ask

whether there is a “reasonable probability that, had the evidence been disclosed to

[Zimmerman], the result of the proceedings would have been different. Id. at 682. Under

this standard, “[t]he question is not whether [Zimmerman] would more likely than not

have received a different verdict with the evidence, but whether in its absence he received

a fair trial.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). We are mindful that the test is

not whether, discounting the inculpatory evidence, there would still have been enough

evidence to convict, but rather whether the favorable evidence puts the case in a “such a

different light as to undermine confidence in the verdict.” Id. at 435. And, we must

consider the cumulative effect of all of the undisclosed evidence, not just the individual

pieces. Id. at 434-37.



                                              3
       The facts are well known to the parties and need not be discussed at length.

Zimmerman was convicted of credit card fraud and conspiracy to commit credit card

fraud, under 18 U.S.C. §§ 2, 371, & 1029(a)(2), for his participation in incidents at a

Staples office supply store, Choice Futons, and Fainberg & Sons furniture store involving

stolen credit card numbers. Zimmerman’s five co-conspirators, George Merrick, Carl

Hodl, Michael Hodle, Mark DeRosa, and Tracy Pierontoni, all pled guilty and testified

against Zimmerman at trial, as did victims from the Choice Futon and Fainberg & Sons

incidents. U.S. Secret Service Agent William Slavoski also testified against Zimmerman,

relying on notes he had made during interviews of co-conspirators and witnesses.

Zimmerman’s counsel requested copies of these notes and was given part, but not all, of

the Agent’s reports. After Zimmerman was convicted, he moved for a new trial on the

basis that the notes he was not given were material and resulted in an unfair trial. The

District Court reviewed the entirety of Agent Slavoski’s reports in camera and

determined that any error in their non-disclosure was harmless.

       Zimmerman appealed, requesting that he be given copies of the reports in order to

argue that the information contained therein was material. At oral argument, we ordered

that Zimmerman’s counsel be given access in camera to all of Agent Slavoski’s reports

and requested supplemental briefing on whether any error was harmless. Having

reviewed the Agent’s notes and considered the supplemental briefing, we agree with the

District Court that any error here was harmless.



                                             4
       Zimmerman’s argument that the reports were material rests in large part upon an

absence in Agent Slavoski’s notes of any mention of Zimmerman in relation to each of

the incidents. He argues that the notes taken during an interview of Mark DeRosa, during

which DeRosa discussed the Staples incident, mention the other co-conspirators but do

not mention him, and that DeRosa did not mention Zimmerman in relation to the Choice

Futon incident or the Fainberg & Sons incident. He also notes that there is no mention of

Tracy Pierontoni’s photo identification of Zimmerman. Finally, he argues that Agent

Slavoski’s notes do not mention the fraudulently procured furniture he later testified to

having seen at Zimmerman’s house.

       We find this line of argument unavailing. The evidence at trial that Zimmerman

participated in each of the incidents was overwhelming. The co-conspirators testified

unequivocally and in detail to Zimmerman’s role in each of the incidents, which

testimony was corroborated by the victims. In light of the evidence against Zimmerman,

DeRosa’s failure to mention him during the interview with Slavoski does not seriously

undermine the fairness of the trial, nor does Slavoski’s failure to mention the furniture he

later testified to having seen at Zimmerman’s house. And, although Slavoski’s report

does not indicate Pierontoni’s positive identification of Zimmerman, this absence does

not necessarily undermine Slavoski’s testimony that she had done so, but could just as

easily indicate a failure on Slavoski’s part to make notation in his report.

       Zimmerman also suggests that the government’s failure to disclose that Agent



                                              5
Slavoski interviewed two Staples employees, who were not called to testify, prejudiced

him because the employees described having seen two men buying the fraudulently

procured computers, whose descriptions did not match Zimmerman. This argument is

also without merit, as the fact that the two employees noticed two men who did not look

like Zimmerman does not undermine our confidence in the jury’s finding that

Zimmerman was also participating.

       Finally, Zimmerman argues that there is a material discrepancy between Merrick’s

testimony at trial that Zimmerman arranged the sale of a computer from the Staples

incident to a third party and Agent Slavoski’s notes taken during DeRosa’s interview

indicating that Mike Hodle was the one who arranged the sale. This notation was

potentially powerful, he argues, because his defense to the Staples incident was that he

was simply present in the store but did not participate in the crime, and Merrick’s

testimony that he arranged the sale of the computer provided the only evidence of any

motive for his participation.

       Although we are troubled by the government’s failure to turn over the notes that

revealed this discrepancy when there was no excuse for it not to do so, we find that the

error was harmless. Even were we to entirely credit DeRosa’s reported statement that it

was Hodle, not Zimmerman, who arranged the sale, this evidence does not put the case in

such a different light that it undermines our confidence in the verdict. Merrick, Carl

Hodl, Mike Hodle, and DeRosa all testified in detail about Zimmerman’s role in the



                                             6
Staples incident. Zimmerman has not contended that he did not accompany these

individuals, but only that he was not a participant in the conspiracy. Given the

cumulative evidence of Zimmerman’s participation in the entire event, the discrepancy

regarding whether it was he or someone else who actually sold the computer to a third

party does not render the trial unfair.

       For the foregoing reasons, we will affirm the order of the District Court denying

Zimmerman a new trial.

_________________________




                                             7
TO THE CLERK OF COURT:

    Please file the foregoing not precedential opinion.




                                                 /s/ Marjorie O. Rendell
                                              Circuit Judge




                                          8
