FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                        September 15, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 19-1209
                                                 (D.C. No. 1:16-CR-00054-WJM-2)
TRAMMEL THOMAS,                                              (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, BALDOCK, and CARSON, Circuit Judges.
                   _________________________________

      A jury convicted Trammel Thomas of one count of conspiracy to defraud the

government with respect to claims, in violation of 18 U.S.C. § 286, and six counts of

aiding and abetting mail fraud, in violation of 18 U.S.C. §§ 1341 and 2. He filed a

motion for new trial based on newly discovered evidence, relying on Brady v.

Maryland, 

(1963). The district court denied the motion and sentenced

him to 120 months’ concurrent incarceration on each count, followed by three years



      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
of supervised release. Thomas appeals, challenging the denial of his new-trial

motion. We affirm.

                                  BACKGROUND

      The government indicted Thomas along with co-defendants Heather Carr,

Mercedes Diaz, and Marcelle Green. Carr, Diaz, and Green pleaded guilty. The

counts against Thomas were tried to a jury.

      The government charged that the defendants defrauded the United States

Department of Education (DOE) by filing false and fraudulent claims for federal

student aid. Their scheme took place between approximately August 2010 and

October 2012.

      The conspirators searched inmate locator websites to obtain names and dates

of birth for prison inmates. Carr then used a database at her workplace to obtain the

inmates’ social security numbers. The conspirators used the information they had

acquired to apply for federal student assistance funds in the names of the inmates by

submitting fraudulent FAFSA (Free Application for Federal Student Aid) forms. The

FAFSA forms contained materially false representations about the applicants’

identities, purported address, and intent to attend college. The conspirators then

applied for admission to schools within the Colorado Community College System

and elsewhere using the inmates’ identities. These applications listed false mailing

address information, allowing the conspirators to intercept mail sent by the schools to

the purported students.



                                           2
      Based on the false information contained on the FAFSA forms, the DOE

disbursed funds to the schools on behalf of the purported students. After deducting

the cost of tuition, the schools issued “refunds” of the remaining funds. The refunds

took the form of deposits to the purported students’ accounts, checks made payable to

them, or debit cards in their names. The conspirators arranged for the refunds to be

sent to various addresses they controlled, intercepted these refunds, and kept the

proceeds for themselves.

      Eventually, an official at Pikes Peak Community College became suspicious

when she realized that certain students were clustered at the same addresses, had

enrolled in the same classes, and had similar references and email addresses. The

college contacted DOE, which began investigating the scheme. A DOE investigator

determined that someone had applied for student loans in the names of inmates

without the inmates’ authorization. The investigator traced the false applications to

physical and internet addresses associated with the conspirators, including the home

that Thomas and Carr shared in Arizona.

      Meanwhile, in August 2012, a Tempe, Arizona police detective stopped a

white Dodge Charger after he observed it weaving within and across its lane. The

Charger was registered to Carr. Thomas was at the wheel. Thomas claimed to be

coming from his post office box in downtown Tempe. As the officer scanned the

vehicle’s interior with a flashlight, he observed a plastic bag on the back passenger

side seat. The bag contained a very thick stack of what appeared to be credit cards.



                                           3
      The officer asked Thomas to get the bag for him. At first, Thomas just looked

at the bag and the officer and did nothing. When the officer asked again, Thomas

picked up the bag, placed it onto the rear passenger side floorboard, and tucked it

underneath the front passenger seat. He then handed the officer a different, empty

Ziploc bag.

      After a second officer arrived, the officer retrieved the bag containing the

credit cards from beneath the seat. The bag contained 52 debit cards imprinted with

the names of inmates, including inmates who were ultimately identified as victims of

the aiding and abetting charges against Thomas. Thomas was arrested and searched.

Inside his wallet the officer found an additional debit card that contained the wording

“CCCS refund card,” also imprinted with the name of a prison inmate. R., Vol. 6 at

235 (internal quotation marks omitted). In addition, a laptop seized from the car

included hundreds of “hits” on community college websites and inmate names and

search results related to FAFSA application pages.

      Officers later executed a search warrant at the house shared by Carr and

Thomas. Inside the house they found torn-up pieces of paper in a toilet. These

pieces of paper contained acronyms relating to financial student aid, such as FAFSA,

and the name of at least one prison inmate from the Florida Department of

Corrections. The officers also found a broken cell phone in a closet containing men’s

clothing. Text messages found on the broken phone’s SD card implicated Thomas in

the conspiracy.



                                           4
      Green testified at Thomas’s trial and described the scheme. The government

also endorsed Carr as a trial witness. Carr’s plea agreement required her to testify,

and she flew to Denver for that purpose. But at the last minute she refused to testify.

      After Thomas was convicted, but before he was sentenced, Carr executed an

affidavit describing her pretrial interviews with the government. This affidavit

became the centerpiece of Thomas’s new trial motion.

      In the affidavit, Carr stated that during a telephone interview on October 30,

2017, she had “told the government representatives . . . that [she] had had never seen

. . . Thomas fill out a FAFSA loan application nor did [she] know if he knew how to

fill out such an application.” R., Vol. 1 at 739. At this, Assistant United States

Attorney Fields allegedly “became quite upset” and accused her of changing her story

from an earlier interview.

Then, at an interview on November 6, 2017,

she denied that Thomas had threatened her or otherwise forced her to be involved in

the scheme and stated that she, Diaz, and Green were “the main participants in the

scheme.”

frustrated and began yelling at her,

threatening to “rip up [her] fucking plea agreement and send [her] to jail for a long

time.”

omitted).

      Carr described several other statements she made during her government

interviews that allegedly were not disclosed to Thomas, but which he considers

exculpatory:

      (1) The conspirators had used Michael Cox’s address as a mail drop for the

scheme. Carr told investigators that Cox had dated Diaz. At trial, the government

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identified Cox as Thomas’s cousin, implying that it was Thomas who had provided

Cox’s address for use in the conspiracy. But Thomas argued that Carr’s statement

about Cox dating Diaz suggested that it was Diaz who provided Cox’s address, not

Thomas.

      (2) Carr said she had purchased the Dodge Charger in which Thomas was

stopped with the bag of credit cards for Roderick Smith, the father of Green’s

children. She further stated Green had “continually borrowed and operated that

automobile for her own personal needs.”

Carr stated that Thomas did not “provide” the address on Radiant Drive

where he had resided, that was used in the conspiracy.

1

      (4) Carr claimed that Thomas did not participate in or knowingly benefit from

the scheme while he was incarcerated from approximately late January 2011 through

early November 2011.

      Carr’s affidavit did not recant her previous statements implicating Thomas in

the conspiracy. But Thomas complained the prosecution failed to provide him with

the “exculpatory and material” facts she now detailed.

The district court

concluded, however, that none of the allegedly undisclosed facts Thomas cited

represented a Brady violation or warranted a new trial.




      1
        In his brief, Thomas has confused Cox’s address on Rice Drive with the
Radiant Drive address. Compare Aplt. Opening Br. at 6 with R., Vol. 6 at 780.
                                          6
                                    DISCUSSION

      1. Standard of Review

      “[W]e review de novo a district court’s ruling on a Brady claim asserted in the

context of a new-trial motion,” while reviewing the district court’s factual findings

for clear error. United States v. Reese, 

, 1083 (10th Cir. 2014).

Arguments based on theories not argued in district court, however, are reviewed only

for plain error. See, e.g., United States v. Williams, 

, 1127 (10th Cir.

2019). And where the defendant has failed to make a plain-error argument on appeal,

“we ordinarily deem the issue waived . . . and decline to review [it] at all.” United

States v. Leffler, 

, 1196 (10th Cir. 2019).

      2. Brady Issues

      “A defendant who seeks a new trial . . . based on an alleged Brady violation

must show that (1) the prosecution suppressed evidence, (2) the evidence was

favorable to the defendant, and (3) the evidence was material.” United States v.

Velarde, 

, 558 (10th Cir. 2007) (internal quotation marks omitted).

“Evidence is ‘material’ under Brady only if 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.”

(internal quotation marks omitted). “In

evaluating the materiality of withheld evidence, . . . we review the cumulative impact

of the withheld evidence, its utility to the defense as well as its potentially damaging

impact on the prosecution’s case.” Simpson v. Carpenter, 

, 572

                                           7
(10th Cir. 2018) (internal quotation marks omitted), cert. denied, 

(2019); see also Kyles v. Whitley, 

, 436 (1995).

       Thomas argues the prosecution’s suppression of four pieces of material

evidence warranted a new trial: (1) Carr’s opinion that he played only a minor role in

the conspiracy; (2) Green’s use of the Dodge Charger; (3) Diaz’s relationship to Cox;

and (4) Thomas’s lack of participation in the conspiracy while incarcerated.2 Even

assuming the prosecution suppressed this information, it does not satisfy Brady’s

materiality standard.

       The charges for which Thomas was convicted did not require a showing that

he was a main participant in the crimes. Nor was Carr’s statement that Thomas was

not a major participant reasonably likely to have persuaded the jury he had not “done

anything wrong” or that he was “essentially irrelevant” to the conspiracy.

Aplt. Opening Br. at 17-18. In addition to the evidence presented at trial concerning

Thomas’s involvement in the scheme, Carr’s statements about Thomas’s extensive

participation, which she did not recant in her affidavit, decisively rebut his argument.

See, e.g., R., Vol. 1 at 735-38.

       It is undisputed that Thomas was caught driving the Charger with a bag of

student debit cards and a laptop used in the fraud scheme. In addition, Carr stated

that on the night of the traffic stop Thomas retrieved the laptop and the debit cards

       2
         To the extent Thomas makes passing reference to other statements in Carr’s
affidavit, he fails to develop a Brady argument concerning these statements and we
will not construct such an argument for him. See Bronson v. Swensen, 

, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments
that are not raised, or are inadequately presented, in an appellant’s opening brief.”).
                                           8
from a girlfriend’s house. See

Thomas’s attempts to hide the debit cards

from law enforcement during the stop strongly suggest his knowledge of their illicit

nature. And he had a debit card with an inmate’s name in his wallet.

      Even if the jury might have concluded that Diaz rather than Thomas provided

Cox’s address for the scheme, this would not have disproved Thomas’s participation

in the scheme. Among other things, debit cards mailed to Cox’s address were found

in Thomas’s possession. See R., Vol. 6 at 780.

      Finally, the government provided evidence that Thomas intentionally aided

and abetted the fraud before he went to jail. The evidence does not show that

Thomas withdrew from the conspiracy during his time in jail. And he was caught

with the debit cards and laptop after he was released from jail.

      In sum, our assessment of the cumulative impact of the allegedly withheld

evidence in light of the entire record does not persuade us that there is a reasonable

probability that had the evidence been disclosed to the defense the result of the

proceeding would have been different. Given the evidence presented at trial and

Carr’s own statements about Thomas’s participation, the cited evidence was not

material. The district court properly denied Thomas’s motion for a new trial based

on Brady.

      3. Additional Issues Reviewed Under Plain-Error Standard

      The government argues Thomas failed to raise two additional appellate

arguments in district court and those arguments are therefore waived. Thomas claims

that (1) the government intimidated Carr, resulting in a either a Brady violation or a

                                           9
due process violation that prejudiced him per se; and (2) he should have received an

evidentiary hearing on this “intimidation” claim.3

      Although both Carr’s affidavit and the new-trial motion mentioned the

prosecutor’s alleged intimidation, Thomas did not argue that the intimidating conduct

violated Brady or his due process rights, that it was per se prejudicial, or that the

issue deserved an evidentiary hearing. See R., Vol. 1 at 728-32. His argument

therefore represents a new theory raised on appeal. Thomas does argue that

plain-error review does not apply to his evidentiary-hearing argument because a

request for a hearing was inherent in his request for a new trial. But we disagree.

Cf., e.g., United States v. Piper, 

, 1269 n.8 (10th Cir. 2016) (rejecting

defendant’s argument that “raising a fact dispute [was] tantamount to requesting a

hearing” and could thus circumvent plain-error review). We thus agree with the

government that Thomas failed to preserve these issues for our review.

      Thomas has not requested plain-error review of these waived issues in his

opening brief. We could therefore simply refuse to address them. See 

. But in response to the government’s waiver argument he has

argued for plain-error review in his reply brief. We have discretion to address his

arguments under the plain-error standard. See

Even if we exercise

our discretion, however, Thomas has not demonstrated plain error.



      3
        Thomas sprinkles his brief with suggestions that he should have received an
evidentiary hearing on other issues as well. These occasional references to an
evidentiary hearing are insufficient to develop an argument for our appellate review.
                                           10
       To satisfy the plain-error test, a defendant must show (1) an error that (2) is

plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings. See 

. Thomas

has failed to show that the prosecution’s failure to disclose the prosecutor’s alleged

intimidation of Carr, or the district court’s failure to hold an evidentiary hearing on

this claim, affected his substantial rights.

       First, he fails to satisfy Brady’s materiality requirement, even if the effect of

the evidence of intimidation is considered cumulatively with his other alleged Brady

evidence. Carr’s statements contained a significant number of facts inculpating

Thomas, and she did not recant these facts even when she arguably could have done

so in her affidavit. Nor does Thomas’s other assertion, that he could have used the

prosecutor’s alleged intimidation of Carr during interviews to cast a shadow across

the government’s case, suggest the likelihood of a different result at trial.

       The prosecutor’s alleged menacing also did not represent intimidation of a

defense witness, as Thomas argues, citing United States v. Schlei, 

,

991-92 (11th Cir. 1997). There is no evidence that the government attempted to

intimidate Carr into refusing to testify as a defense witness. In fact, the government

listed Carr as a trial witness, and Thomas did not. Compare R., Vol. 1 at 327 with

And although Thomas notes that under an agreement with the government he

could have called Carr as a witness, and seems to suggest that he could have

“flipped” her to be a favorable witness for him, her unrecanted statements suggest

otherwise.

                                               11
       Given the facial lack of merit of his “government intimidation” claim, Thomas

also fails to show that an evidentiary hearing would have made any difference

concerning that claim. His evidentiary hearing argument therefore also fails to

satisfy the plain-error test.

                                   CONCLUSION

       The district court’s judgment is affirmed.

                                            Entered for the Court



                                            Bobby R. Baldock
                                            Circuit Judge




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