Filed: May 13, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4494 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENDALL R. JONES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:04-cr-00392-RLW-1) Submitted: March 18, 2010 Decided: May 13, 2010 Before MICHAEL, 1 MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. 1 Judge Michael was a mem
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4494 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENDALL R. JONES, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (3:04-cr-00392-RLW-1) Submitted: March 18, 2010 Decided: May 13, 2010 Before MICHAEL, 1 MOTZ, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. 1 Judge Michael was a memb..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4494
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENDALL R. JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:04-cr-00392-RLW-1)
Submitted: March 18, 2010 Decided: May 13, 2010
Before MICHAEL, 1 MOTZ, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
1
Judge Michael was a member of the original panel but did
not participate in this decision. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Brian J. Grossman, CROWGEY & GROSSMAN, Richmond, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Roderick
C. Young, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Kendall Jones was convicted of conspiracy to possess
with intent to distribute fifty grams or more of cocaine base,
two counts of possession with intent to distribute fifty grams
or more of cocaine base, and possession with intent to
distribute less than 500 grams of cocaine powder. He was
sentenced to 300 months in prison. 2 Jones now appeals,
challenging his convictions on two grounds. We affirm.
Prior to trial, Jones’ attorney filed a Motion to
Produce Information and to Continue, seeking: (1) to obtain
information about Government witness Michelle Campbell; and
(2) a continuance so that he might have time to review such
material. He stated that he had already received from the
Government and reviewed the criminal records of Campbell and
another witness in order to prepare for cross-examination.
However, counsel expressed concern about Campbell’s criminal
record in New York, which included a 1987 robbery conviction and
several bench warrants, the latest of which was issued in 1992
and vacated in 1993. Counsel believed that files related to
2
Subsequent to Jones’ sentencing, the district court
granted his 18 U.S.C. § 3582(c)(2) (2006) motion and reduced his
sentence to 240 months.
3
these New York matters might have some relevance to her
credibility.
The district court denied the motion after argument.
The court found that there was no factual or legal basis for the
relief requested. Additionally, the court observed, “Everything
stated by the defendant [in terms of what the files might
reveal] is either speculative or conclusory.”
On appeal, Jones argues that the district court
improperly denied his motion. With respect to the request for
information, the Due Process Clause requires the Government to
disclose to the defense prior to trial any exculpatory or
impeaching evidence in its possession. See Giglio v. United
States, 405 U.S. 150, 153-55 (1972); Brady v. Maryland,
373 U.S.
83, 86-88 (1963). Evidence need only be disclosed, however, if
it: (1) is favorable to the defendant; (2) was suppressed by the
Government; and (3) is material. Strickler v. Greene,
527 U.S.
263, 281-82 (1999). Undisclosed evidence is material when its
cumulative effect is such that “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Kyles v. Whitley,
514 U.S. 419, 433 (1995)
(internal citations and quotation marks omitted).
4
Mere speculation about the existence of potentially
exculpatory or impeaching evidence is insufficient to give the
defense access to materials under Brady and Giglio. United
States v. Michaels, 796 F.2d 1112, 1116 (9th Cir. 1986); United
States v. Navarro,
737 F.2d 625, 630-31 (7th Cir. 1984).
Further, Brady does not require the Government “to gather
information or conduct an investigation on the defendant’s
behalf.” United States v. Tadros,
310 F.3d 999, 1005 (7th Cir.
2002).
Here, the district court properly denied Jones’
request for information. Jones only speculated that information
in Campbell’s New York file would have produced exculpatory or
impeaching evidence. Moreover, the evidence he sought by way of
his motion was not material. There was overwhelming evidence
against Jones, including the testimony of Campbell, which was to
a great extent corroborated by Special Agent Baldwin’s
testimony. In light of this, there is not a reasonable
possibility that the outcome of the proceeding would have been
different had counsel had access to the records he sought.
We also conclude that the district court did not abuse
its discretion in denying the requested continuance. See United
States v. Williams, 445 F.3d 724, 739 (4th Cir. 2006) (stating
standard of review). The sole reason for seeking the
5
continuance was to have time to review Campbell’s New York
files. Because Jones had no right to disclosure of that
material, there was no need for the continuance.
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
6
