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USA v. Tony Warren, 05-2791.  Tony Warren was convicted of various charges related to a fraudulent check scheme. What makes Warren’s convictions unusual is his insistence that the fraud was authorized by the United States Secret Service. Warren stipulated that he sent several altered checks purportedly made out to “A&B Electrical” to an individual named Robert Studnicka, who cashed them and kept a portion of the proceeds for himself. Police caught Studnicka, who cooperated and implicated Warren in the scheme. 

Studnicka pleaded guilty, but Warren went to trial, claiming that his behavior was authorized because he was a confidential informant for the United States Secret Service. The jury apparently disbelieved Warren’s public authority defense, and convicted him on all counts. 

In a factually complex appeal, Warren claims that the government violated his right to a fair trial by  withholding  exculpatory evidence (Brady Violation) relating to his status as a confidential informant .

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,” id. at 87. In order to demonstrate a Brady violation, Warren must make three showings: (1) that the evidence is favorable to him because it is exculpatory or impeaching; (2) that the prosecution suppressed the evidence, either willfully or inadvertently; and (3) that “prejudice . . . ensued.”

To start, the 7th Circuit  reviews the district court’s denial of a motion for a new trial premised on alleged Brady violations for abuse of discretion.  The 7th Circuit finds that as the district court recognized, Warren is simply unable to point to any specific evidence, exculpatory or otherwise, withheld by the government. Without that, his Brady claim fails to get off the ground.

Further, the 7th Circuit finds that Warren can’t show actual prejudice for the Brady violation due to the late disclosure by the government of some discovery.

In short, the 7th Circuit holds, late disclosure does not itself constitute a Brady violation. See United States v. O’Hara, 301 F.3d 563, 569 (7th Cir. 2002). Here, Warren used all of the information the government did provide and built a defense around his claim that he was a confidential informant.

As such, the 7th Circuit finds that the district court thus did not abuse its discretion by denying his motion for a new trial premised on a Brady violation for documentation related to his status as a confidential informant.

USA v. Keefer Jones, 04-2447.  After a jury trial, Keefer Jones was found guilty of possession with intent to distribute five or more grams of cocaine base (“crack”). See 21 U.S.C. § 841(a)(1) & (b)(1)(B). The district court sentenced Mr. Jones to 262 months’ imprisonment and eight years’ supervised release and ordered him to pay a $100 special assessment.

Jones’ primary complaint is the denial of his 2nd motion to continue his trial date.  Jones filed a second motion for a continuance of his trial requesting additional time to obtain a handwriting analysis of the statement allegedly penned by Mr. Jones. 

The 7th Circuit finds that to prevail, Jones must show an abuse of discretion and actual prejudice in the denial of his motion to continue.   In evaluating a request for a continuance, a district court should weigh a number of factors, including the following non-exhaustive list:  1) the amount of time available for preparation; 2) the likelihood of prejudice from denial of the continuance; 3) the defendant’s role in shortening the effective preparation time; 4) the degree of complexity of the case; 5) the availability of discovery from the prosecution; 6) the likelihood a continuance would satisfy the movant’s needs; and 7) the inconvenience and burden to the district court and its pending case load. United States v. Vincent, 416 F.3d 593, 598 (7th Cir. 2005).

The district court took the view that it was not obliged to grant another continuance to accommodate defense counsel’s tardiness in reviewing discovery materials that had been available to him. Indeed, the 7th Circuit has held that the denial of a continuance to consult with an expert regarding government evidence was not an abuse of discretion when defense counsel had failed to review the discovery in a timely manner. See United States v. Baum, 435 F.2d 1197, 1202 (7th Cir. 1971).Although Jones contends that the misunderstanding regarding who actually wrote the statement was inadvertent, such negligence does not excuse him from failing to review the statement in a timely manner to determine both the scrivener and the signer.

Furthermore, the 7th Circuit held that Jones has not demonstrated that he suffered any prejudice from the denial of his motion to continue. Since Jones had not yet hired the handwriting expert witness and obtained an analysis, the 7th Circuit is not assured that the handwriting expert would have testified that the statement was not written by Mr. Jones.

Moreover, the 7th Circuit finds that any prejudice to Mr. Jones was minimized by his counsel’s examination of Government witnesses.

As such, the 7th Circuit finds that the distict court did not abuse it’s discretion in denying his motion to continue.

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