                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 14-3801
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                     JASON GLASS,

                                                        Appellant
                                   ________________

                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 4-11-cr-00107-002)
                      District Judge: Honorable John E. Jones, III
                                  ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   on April 30, 2015

               Before: FISHER, HARDIMAN and ROTH, Circuit Judges

                           (Opinion filed: December 23, 2015)


                                   ________________

                                       OPINION*
                                   ________________

ROTH, Circuit Judge



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Jason Glass was convicted of assault with a dangerous weapon, in violation of 18

U.S.C. § 113(a)(3), and assault resulting in serious bodily injury, in violation of 18

U.S.C. § 113(a)(6). He challenges his conviction and sentence. We will affirm both.

     I.   Background

          On May 17, 2010, Jason Glass and David Reid, inmates at the United States

Penitentiary in Lewisburg, Pennsylvania, stabbed another inmate, James Rankin, more

than forty times with sharpened pieces of Plexiglas. Glass was convicted by a jury of two

counts of assault. He appeals, alleging four errors at trial and sentencing: (1) the

Government withheld exculpatory evidence in violation of Brady v. Maryland1; (2) the

District Court improperly excluded expert testimony and (3) written statements; and (4)

the District Court failed to give meaningful consideration to required sentencing factors

under 18 U.S.C. § 3553(a). Because we write solely for the parties, we recount below

only the facts required for resolution of this appeal.

    II.   Analysis2

             1. Brady Claim

          Glass argues the government violated Brady by failing to provide the transcript of

Rankin’s deposition taken in a civil suit that Rankin filed against the Bureau of Prisons

following the assault. Over a month before Glass’s trial, Glass’s attorney asked the

government prosecutor for the transcript; several days later, the prosecutor provided

information with which Glass’s attorney could obtain the transcript. Glass’s attorney did

1
 373 U.S. 83, 87 (1963).
2
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                               2
not obtain the transcript. After trial and prior to sentencing, Glass filed motions for

production of the transcript, alleging a Brady violation, and for a new trial on the basis of

newly discovered evidence. The District Court denied both motions.

       To establish a Brady violation, a defendant must show that evidence was (1)

suppressed; (2) favorable to the defense; and (3) material to guilt or punishment.3 Where

the motion for a new trial is based on a Brady claim, we review the District Court’s

conclusions of law de novo and its findings of fact for clear error.4

       There is no Brady violation here. The government prosecutor was not aware of

Rankin’s civil suit and deposition until he received a letter from Glass’s attorney. Glass

argues that the government had constructive knowledge of Rankin’s deposition transcript,

because the U.S. Attorney’s Office handled Glass’s prosecution and Rankin’s civil case,

but Brady does not require a prosecutor to learn of information possessed by other

government actors that have no involvement in the investigation or prosecution at issue.5

Glass was not a party to Rankin’s suit, the civil division attorney was not involved in the

prosecution of Glass, and there is no indication that the civil and criminal divisions

“engaged in a joint investigation.”6 Furthermore, the government provided Glass’s

counsel with the information necessary to obtain the transcript more than a month before

Glass’s trial. The government has no Brady obligation to provide materials a defendant


3
  United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006).
4
  Id.
5
  United States v. Merlino, 349 F.3d 144, 154 (3d Cir. 2003).
6
  Risha, 445 F.3d at 304; see United States v. Pelullo, 399 F.3d 197, 218 and nn. 22-23
(3d Cir. 2005) (holding that knowledge of prosecution from some department members
may not be imputed to entire department).
                                              3
may “with any reasonable diligence . . . obtain himself.”7 Thus, the District Court did not

err in finding that no Brady violation occurred and in denying Glass’s motion for a new

trial.

            2. Preclusion of Proffered Expert Testimony

         Glass argues the District Court erred in preventing Mark Bezy, a retired federal

prison warden, from providing expert testimony regarding Glass’s mental state in support

of his justification defense. Although Bezy was not present during the incident and had

never worked at the Lewisburg penitentiary, Glass contends Bezy would have testified

that Glass felt he had no choice but to participate in the assault because prison gangs,

which Glass perceived protected him, expected Glass to do so.8 We review the District

Court’s evidentiary ruling for abuse of discretion.9 Since an expert in a criminal case

“must not state an opinion about whether the defendant did or did not have a mental state

or condition that constitutes an element of the crime charged or of a defense,”10 Bezy’s

testimony regarding Glass’s mental state was inadmissible and the District Court did not

abuse its discretion in excluding Bezy’s testimony.

            3. Exclusion of Written Statements

         Glass contends the District Court improperly excluded two letters purportedly

written by Reid. The first, signed “Richie 44,” states “I stabbed some lame 45 times”



7
  United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (internal quotation marks
omitted).
8
  See United States v. Taylor, 686 F.3d 182, 186 (3d Cir. 2012).
9
  United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001).
10
   Fed. R. Evid. 704(b).
                                              4
without reference to Rankin, Glass, or the time or place of the incident.11 The second,

signed “RR,” states that the author “will write a statement saying too [sic] my knowledge

you were not armed with a knife,” and “if you did not help me I would have got you for

leaving me hanging!”12 The letters were hearsay because they were out-of-court

statements offered for the truth of the matters asserted therein.13 Although Glass

contends the first letter was admissible as a statement by Reid against his penal interest,14

Glass waived the argument by failing to make an offer of proof.15 Moreover, even if

exclusion was in error, the error is harmless.16 No hearsay exception applied to the

second letter, and thus it was inadmissible and the District Court did not abuse its

discretion in excluding it.

          4. Sentencing

       Finally, Glass argues the District Court erred in imposing an 84-month term of

imprisonment. We review the District Court’s sentencing decision for abuse of discretion

and any factual findings on which the decision is based for clear error.17 A sentence must

be substantively reasonable and imposed in a procedurally fair way.18 We insist, as part

of our procedural review, that the District Court produce “a record sufficient to

11
   A. 1191-1193.
12
   Id. at 1196-1200.
13
   “‘Hearsay’ means a statement that: [sic] (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to prove the
truth of the matter asserted in the statement.” Fed. R. Evid. 801(c).
14
   Fed. R. Evid. 804(b)(3)(B).
15
   Fed. R. Evid. 103(a)(2); Ne. Women’s Ctr., Inc. v. McMonagle, 868 F.2d 1342, 1352-
53 (3d Cir. 1989); Huff v. White Motor Corp., 609 F.2d 286, 290 and n. 2 (7th Cir. 1979).
16
   28 U.S.C. § 2111; United States v. Long, 574 F.2d 761, 765 (3d Cir. 1978).
17
   United States v. Blackmon, 557 F.3d 113, 118 (3d Cir. 2009).
18
   United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
                                              5
demonstrate its rational and meaningful consideration” of the 18 U.S.C. § 3553(a)

factors.19 The record shows the District Court explicitly accepted the jury verdict, noted

Glass’s participation in the assault, and acknowledged Reid’s sentence as a reflection of

his acceptance of responsibility. The District Court meaningfully considered Glass’s

arguments regarding § 3553(a) factors.

       Glass also argues that the District Court substantively erred by failing to give

adequate weight to the § 3553(a) factors. The District Court was informed by Glass’s

“very lengthy criminal history,” record of prison misconduct, participation in an assault

in which the victim was “stabbed over 40 times[,]”20 and acquittal of the knife charge.

Absent any significant procedural error, we must defer to the District Court’s

determination that the § 3553(a) factors, on a whole, justify the sentence.21 In light of the

District Court’s findings and its grant of a downward variance from the Sentencing

Guidelines range, the sentence was reasonable and the District Court did not abuse its

discretion.

III.   Conclusion

       Accordingly, for the reasons set forth above, we will affirm the District Court’s

judgments of conviction and sentence.




19
   United States v. Flores-Mejia, 759 F.3d 253, 265 (3d Cir. 2014) (en banc).
20
   A. 1182-83.
21
   United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc) (citing Gall v.
United States, 552 U.S. 38, 51 (2007)).
                                              6
