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                                                                                 [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-15311
                              ________________________

                     D.C. Docket No. 8:12-cr-00337-RAL-TGW-1

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

J. PATRICK BRESTER,

                                                                      Defendant-Appellant.
                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                      (May 20, 2015)


Before TJOFLAT, WILLIAM PRYOR, and BALDOCK, ∗ Circuit Judges.

WILLIAM PRYOR, Circuit Judge:




∗
 Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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      This appeal requires us to decide whether the government’s failure to inform

J. Patrick Brester of an aspect of its plea agreements with three of his co-

conspirators in a mortgage fraud scheme violated his rights under Brady v.

Maryland, 

, 

(1963). Brester, Matthew Landsman,

Joshua Unger, and Michael Chadwick conspired to charge lenders fraudulent

“management fees” when they purchased and immediately re-sold apartment units.

Landsman, Unger, and Chadwick each pleaded guilty to a single count of

conspiracy to commit wire fraud and agreed to testify against Brester. The

government provided Brester with copies of his co-conspirators’ plea agreements,

but it failed to inform him that it had separately agreed to recommend a loss

amount under the advisory guidelines based only on the fraudulent transactions

identified at the time of the plea agreements. The government offered Brester a

plea agreement with a sentencing recommendation based on the same loss amount,

but he rejected it. At trial, Brester thoroughly cross-examined Landsman, Unger,

and Chadwick about several favorable terms of their plea agreements. Afterward, a

jury convicted Brester of one count of conspiracy to commit wire fraud and three

counts of wire fraud. Because Brester was not prejudiced by the failure to disclose

the co-conspirators’ agreements about the loss amount, we affirm.




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                                I. BACKGROUND

      In 2006, Brester, Landsman, Unger, and Chadwick conspired to charge

lenders fraudulent “management fees” when they purchased and immediately re-

sold apartment units. Brester purchased nine apartments in Sarasota, Florida, and

immediately re-sold them to Chadwick. When Chadwick applied for mortgage

loans from SunTrust Bank and Fifth Third Bank, Brester charged the banks

“management fees” for services he never performed. Although Chadwick and

Landsman used some of the cash from the “management fees” to make mortgage

payments, Chadwick later declared bankruptcy and all nine units went into

foreclosure.

      In August 2012, a grand jury indicted Brester for conspiracy to commit wire

fraud affecting a financial institution, 18 U.S.C. §§ 1343, 1349, and nine counts of

wire fraud, 

Before Brester’s indictment, Landsman, Unger, and

Chadwick each pleaded guilty to single counts of conspiracy to commit wire fraud.

The government offered Brester a plea agreement with the same loss amount as his

co-conspirators, but he rejected it.

      Landsman, Unger, and Chadwick testified at Brester’s trial. They admitted

that they had been convicted of conspiring to commit wire fraud and had agreed to

cooperate with the government in exchange for plea agreements. A jury convicted




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Brester of conspiracy to commit wire fraud and three counts of wire fraud, but it

found him not guilty of the other six counts of wire fraud.

      At sentencing, the government argued that the loss amount attributed to

Brester should include several uncharged transactions it had discovered after

Landsman, Unger, and Chadwick pleaded guilty. The government also revealed

that it had agreed to recommend a loss amount for the co-conspirators based only

on the fraudulent transactions it had identified at the time of their plea agreements.

Brester’s counsel denied that he had been informed of this aspect of the co-

conspirators’ plea agreements. The prosecutor conceded that although she offered

Brester a plea agreement limited to the same fraudulent transactions and provided

Brester with a copy of his co-conspirators’ plea agreements, she had not informed

him of the agreement to limit the co-conspirators’ loss amount. The court

sentenced Brester to a six-year prison term for each of his convictions, with all

terms to run concurrently, and it ordered restitution in the amount of $1,266,156.

      After Brester filed a notice of appeal, he filed a motion to dismiss his

convictions, or, alternatively, for a new trial and an evidentiary hearing. He

contended that the government violated Brady, 

, 

, and

Giglio v. United States, 

, 

(1972), when it failed to

inform him that it had agreed to limit his co-conspirators’ loss amount. The district

court denied the motion. The district court concluded that because Brester’s appeal

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was pending before this Court, it lacked jurisdiction to consider Brester’s motion to

the extent that it sought dismissal of his counts of conviction. The district court

also ruled that to the extent that Brester’s motion sought a new trial, it did not

specify whether it relied on “newly discovered evidence,” Fed. R. Crim. P.

33(b)(1), or “[o]ther [g]rounds,” Fed. R. Crim. P. 33(b)(2). If Brester relied on

“[o]ther [g]rounds,” the district court concluded, his motion was untimely because

he had not filed it within 14 days of the verdict. 

Brester relied on “newly

discovered evidence,” Fed. R. Crim. P. 33(b)(1), that evidence was “merely

impeaching or cumulative,” and “probably would not produce a different result at a

new trial.” We directed the parties to submit supplemental briefs to address

whether we have jurisdiction to review the denial of Brester’s motion.

                          II. STANDARDS OF REVIEW

      We review an alleged Brady violation de novo. United States v. Schlei, 

, 989 (11th Cir. 1997). We review for abuse of discretion the denial of a

motion for a new trial. United States v. Vallejo, 

, 1163 (11th Cir.

2002).

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that we have

jurisdiction to review the denial of Brester’s motion. Second, we explain that

Brester failed to establish a reasonable probability that the outcome of his trial

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would have been different had the government disclosed its agreements with his

co-conspirators.

        A. We Have Jurisdiction to Review the Denial of Brester’s Motion.

      As a threshold matter, we must consider whether we have jurisdiction to

review the denial of Brester’s post-appeal motion despite his failure to file a

separate notice of appeal from the denial of that motion. Federal Rule of Appellate

Procedure 3(c) provides that a notice of appeal must “designate the judgment,

order, or part thereof being appealed,” Fed. R. App. P. 3(c)(1)(B), and the Supreme

Court has explained that this requirement is jurisdictional. Smith v. Barry, 

, 248, 

, 682 (1992).

      We have previously exercised jurisdiction in this kind of circumstance. In

United States v. Wilson, two of the appellants filed motions for a new trial in the

district court after they filed their notices of appeal. 

, 1251 (11th Cir.

1990). “We recognize[d] that it is clearly the better practice to perfect a separate

appeal from the denial of a motion for a new trial….” 

followed an

earlier precedent of the former Fifth Circuit, United States v. Burns, 

(5th Cir. 1982), and reviewed the denial of the motions “[b]ecause the government

was not prejudiced…by [the appellants’] failure to file a separate notice of appeal”

from the denial of the motions. 

. In this appeal too, the

parties have briefed the issue as if Brester appeals the denial of his motion. Based

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on our binding precedent in Wilson, we have jurisdiction over this appeal. See

United States v. Hogan, 

, 1369 (11th Cir. 1993) (“[I]t is the firmly

established rule of this Circuit that each succeeding panel is bound by the holding

of the first panel to address an issue of law, unless and until that holding is

overruled en banc, or by the Supreme Court.”).

       B. The District Court Did Not Err When It Denied Brester’s Motion.

      To establish a Brady violation, Brester had to prove that the prosecution

withheld favorable evidence and that he was prejudiced as a result. Strickler v.

Greene, 

, 281–82, 

, 1948 (1999). And to establish

prejudice, Brester had to prove that there is “a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different. A ‘reasonable probability’ is a probability sufficient to undermine

confidence in the outcome.” United States v. Bagley, 

, 682, 

, 3383 (1985). “The mere possibility that an item of undisclosed information

might have helped the defense, or might have affected the outcome of the trial,”

does not establish prejudice. United States v. Agurs, 

, 109–10, 

, 2400 (1976).

      Even if the government should have disclosed its agreements with Brester’s

co-conspirators about their loss amount, Brester failed to establish a reasonable

probability that the outcome of his trial would have been different. The undisclosed

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information about the co-conspirators’ loss amount was cumulative of other

impeachment evidence. Landsman, Unger, and Chadwick admitted that they had

been convicted of conspiring to commit wire fraud and had agreed to cooperate

with the government in exchange for plea agreements. Chadwick and Unger

testified that they were ordered to pay restitution jointly and severally with the

other co-conspirators. Unger acknowledged on cross-examination that his plea

agreement provided “a huge incentive” for him to testify against Brester. And

Chadwick admitted that he would benefit if Brester was required to pay part of the

restitution he owed jointly and severally with Unger and Landsman. The jury

learned of the motivations for the co-conspirators’ testimony, and we have

repeatedly held that the failure to disclose “merely cumulative” impeachment

evidence does not establish prejudice. Aldridge v. Dugger, 

, 1326

(11th Cir. 1991). See also Kelley v. Sec’y for Dep’t of Corr., 

, 1361

(11th Cir. 2004); United States v. Valera, 

, 927–28 (11th Cir. 1988).

That the agreement to limit the co-conspirators’ loss amount potentially reduced

their advisory guideline ranges for sentencing by two levels would not have

appreciably altered the mix of the impeachment evidence presented to the jury.

Brester has not established that there is a reasonable probability that the outcome

of his trial would have been different had the jury learned of the promise about the

loss amount.

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                       IV. CONCLUSION

We AFFIRM Brester’s convictions.




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