United States v. Steven Mason

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2019 Decided March 6, 2020

No. 18-3056

UNITED STATES OF AMERICA,

APPELLEE

v.

STEVEN MASON, ALSO KNOWN AS SAM MASON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cr-00195-2)

Gregory S. Smith, appointed by the court, argued the cause

and filed the briefs for appellant.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jessie K. Liu,

U.S. Attorney, and Elizabeth Trosman and John P. Mannarino,

Assistant U.S. Attorneys.

Before: ROGERS, GRIFFITH, and KATSAS, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: A jury convicted Steven Mason

and a codefendant of conspiring to deal heroin and other drugs.

2

Mason was sentenced to five years’ imprisonment, the

statutory mandatory minimum. On appeal, Mason argues that

the government violated its constitutional obligation under

Brady v. Maryland, 373 U.S. 83 (1963), to disclose material

helpful to his defense in a timely manner. Mason also objects

to the district court’s refusal to grant him a trial separate from

that of his codefendant. And he says the district court should

have found him eligible for a reduction of his sentence under

section 5C1.2 of the Sentencing Guidelines. We reject each of

Mason’s arguments and affirm his conviction and sentence.

I

Because Mason’s arguments are highly fact-bound, we

describe discovery, the trial, and sentencing in some detail.

A

In 2016, a federal grand jury indicted Mason, Andrea

Miller, Nicholas Jones, Frank Walker, and several others for

their participation in a drug conspiracy. The government

alleged that Jones and Walker led a conspiracy that imported

drugs into the United States, then sold them to middlemen.

According to the government, Mason was one of the

middlemen and Miller received a shipment of drugs at her

home.

Although most of the conspirators pleaded guilty, Mason

and Miller did not. The government filed a new two-count

indictment against them in October 2017. The first count

charged Miller with conspiracy to import heroin and Xanax.

The second charged Mason and Miller with conspiracy to

distribute heroin, Xanax, and fentanyl. Mason sought to

separate his trial from Miller’s, but the district court denied his

motion and set their joint trial to begin in January 2018.

3

Problems arose in December 2017, when the government

made a series of disclosures that suggested that Nicholas Jones,

who was likely to appear as a key government witness, might

lie at the trial. In early March 2017, the government learned of

a rumor that a member of the conspiracy had written a letter

reporting that he planned to tell lies about Walker’s role and

that Walker had a copy of the letter. The government suspected

that Jones wrote the letter but he denied that he was the author

when asked during a March 10 interview. In May, the

government asked Jones about the letter again, this time with

the aid of a polygraph. Although he denied authorship, the

polygraph suggested he was lying.

In a June interview, the previously uncooperative Walker

gave the government the handwritten letter, which described its

author’s plan to “go down there and lie on everybody.”

According to Walker, Robert Bethea, a fellow inmate whose

nickname was “Jazz,” told Walker in February that Jones had

written the letter. Jazz gave the letter to Walker later that

month.

Neither counsel for Mason nor Miller knew any of this

until disclosed by the government on the eve of trial in

December 2017. Displeased by this late disclosure, they moved

for dismissal of the indictment, arguing that the government

had violated its Brady obligation to timely disclose material

helpful to them. Defense counsel also set out to find Jazz,

whose testimony might link Jones to the letter undermining his

credibility. They soon discovered, however, that Jazz had died

of a drug overdose in April 2017, shortly after his release from

jail.

Jazz’s death limited the letter’s value to the defense. So,

too did the “conclusive” determination of the government’s

4

handwriting expert that Jones did not write the letter, the

district court’s ruling that defense counsel could not refer to

Jones’s failed polygraph, and Walker’s refusal to testify,

invoking the protection of the Fifth Amendment.

The district court denied the Brady motion on the ground

that Mason and Miller suffered no prejudice from the belated

disclosure. The government “didn’t have an opportunity to

review the letter until June 2017, at which point Jazz had

already died,” the court found. “So the defense would not have

had an ability to interview Jazz had the government disclosed

this information in June when they should have.” Tr. of Pretrial

Hr’g (Jan. 29, 2018) at 31:22-32:1, J.A. 248-49. To allow the

defense additional time to prepare, the court continued the trial

for more than a month.

B

The seven-day jury trial against Mason and Miller began

on February 26, 2018. The government presented its case

against Miller first, with testimony that showed Miller had

allowed Jones to ship drugs to her home. Before the

government began its case against Mason, the court received

the following note from Juror #1:

Your Honor, would it be possible for the government to

ask Mr. Jones, one, why did he or Mr. Walker choose

Mr. Mason’s house for drug delivery? And two, did he or

Mr. Walker have a personal relationship with Mr. Mason

or was this address picked at random?

Tr. of Jury Trial (Mar. 2, 2018) at 795:3-10, J.A. 874. The court

acknowledged that the note was “concerning,” as the

government had never suggested that Mason’s house was used

for drug delivery. “[I]t seems to me that at least one juror is

5

confused and thinks that Mr. Mason lives at [Miller’s address].

I don’t know how.” Id. at 794:12, 795:11-13, J.A. 873-74. The

court instructed the jury that its “question may be resolved

through the remainder of the evidence.” If not, the court said,

the jury should send another note “at the close of the evidence.”

Id. at 802:12-14, J.A. 881.

Shortly after the court’s instruction, the government asked

Jones whether he knew Mason’s address. Jones answered no.

Id. at 807:18-808:1, J.A. 886-87. Mason renewed his motion

for severance, this time citing the juror note as evidence of

prejudice, but the court denied the motion. No juror ever sent a

follow-up note on the subject.

The government then presented its case against Mason,

including testimony by Jones and wiretapped phone calls in

which Mason and his coconspirators discussed dealing drugs.

Concerned that Jones would deny authorship and that the

government would bolster that denial with the testimony of its

handwriting expert, defense counsel never used the letter at

trial. The jury found Mason and Miller guilty of all charges

other than those related to fentanyl, on which the court had

granted a judgment of acquittal.

C

Before sentencing, Mason sought to qualify for the

Sentencing Guidelines’ “safety valve,” which would allow him

to avoid a five-year mandatory minimum sentence if he fully

debriefed the government on his “offense of conviction and all

relevant conduct.” U.S.S.G. § 5C1.2 cmt. n.3. During the

debriefing interview, Mason was asked about his associates in

the drug trade. Mason refused to answer, saying he didn’t want

to “put someone else in the line of fire.”

6

At sentencing, the government cited Mason’s refusal to

name his drug suppliers or customers as reason to find him

ineligible for the safety valve. The district court agreed and

sentenced Mason to five years’ imprisonment.

This timely appeal of his conviction and sentence

followed. The district court had jurisdiction under 18 U.S.C.

§ 3231, and we have jurisdiction under 28 U.S.C. § 1291.

II

A

Mason argues that the government’s belated disclosure of

what it knew about the handwritten letter violated his

constitutional rights under Brady v. Maryland. He asks that we

vacate his conviction and direct the district court to dismiss the

indictment or remand for a new trial. Because the relevant facts

are uncontested, our review of Mason’s Brady claim is de novo.

See United States v. Sitzmann, 893 F.3d 811, 821 (D.C. Cir.

2018) (per curiam).

A Brady violation has three parts. “The evidence at issue

must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281-82 (1999).

Information about the letter was favorable to Mason

because it tended to impeach Jones, a government witness

against him. The government suppressed its knowledge of the

letter by postponing disclosure for months, until trial was

imminent. See United States v. Pasha, 797 F.3d 1122, 1133

(D.C. Cir. 2015). At oral argument, the government declined to

7

“defend[] the timeliness” of its disclosure and conceded that it

had “made a misjudgment as to the amount of time that the

Defense needed” to use the information disclosed. Tr. of Oral

Arg. at 25:12, 33:25-34:1. We agree. The government’s delay

was “inexcusable.” Pasha, 797 F.3d at 1133.

But even a grossly belated disclosure does not violate

Brady unless the defendant suffers prejudice from the delay.

Prejudice exists only if there is “a reasonable probability

that . . . the result of the proceeding would have been different”

had the disclosure occurred earlier. Strickler, 527 U.S. at 280

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A

“‘probability’ reaches the level of ‘reasonable’ when it is high

enough to ‘undermine confidence in the verdict.’” United

States v. Johnson, 592 F.3d 164, 170 (D.C. Cir. 2010) (quoting

Kyles v. Whitley, 514 U.S. 419, 435 (1995)). “The defendant

bears the burden of showing a reasonable probability of a

different outcome.” United States v. Johnson, 519 F.3d 478,

488 (D.C. Cir. 2008).

Mason asserts three forms of prejudice from the belated

disclosure. First, he says, “earlier production of the letter would

have kept defense counsel from being hamstrung by the time

constraints that later arose in the waning weeks before trial.”

Mason Br. 35. That argument fails, because a continuance of

reasonable length negates any prejudice arising from time

constraints alone. See, e.g., United States v. Halloran, 821 F.3d

321, 341-42 (2d Cir. 2016). The district court granted Mason

such a continuance.

Mason next argues that an earlier disclosure of what the

government knew about the letter might have provided defense

counsel with promising leads. Perhaps, he says, defense

counsel would have uncovered cellmates who overheard a

conversation between Jazz and Jones about the letter had they

8

investigated the matter earlier in 2017. See Tr. of Oral Arg. at

40:7-8. Maybe Walker, had he been interviewed earlier, would

have been willing to testify as to what Jazz told him about the

letter, instead of pleading the Fifth. See id. at 6:12-7:17. Or

defense counsel might “have subpoenaed . . . and monitored

[Jazz] . . . so [that] he never died.” Id. at 12:9-13.

Maybe so. But “mere speculation is not sufficient to

sustain a Brady claim.” United States v. Horton, 756 F.3d 569,

575 (8th Cir. 2014) (internal quotation marks and citations

omitted). Hypothesizing that certain “information, had it been

disclosed to the defense, might have led [defense] counsel to

conduct additional discovery that might have led to some

additional evidence that could have been utilized” is

disfavored. Wood v. Bartholomew, 516 U.S. 1, 6 (1995) (per

curiam) (describing such reasoning as “mere speculation, in

violation of the standards” the Supreme Court has established

for Brady claims). The argument that an earlier disclosure

might have led Mason to uncover other promising leads is

simply too speculative to undermine our confidence in the

outcome of the trial.

Last, Mason argues that with an earlier disclosure he could

have “found and interviewed” Jazz, Mason Br. 35, who might

have provided statements that were “admissible as

impeachment evidence,” Reply Br. 8. We can assume, for the

sake of argument, that the government should have disclosed

its knowledge of the rumored letter in March 2017, before

Jazz’s death in April. Even so, Mason fails to show that the

defense he presented at trial differed in any meaningful way

from the defense he could have presented if he had interviewed

Jazz. If Mason’s defense would have been the same regardless,

he cannot meet his burden of showing a “reasonable probability

of a different outcome” at trial, Johnson, 519 F.3d at 488, and

his Brady claim fails.

9

Mason’s principal obstacle is the rule against hearsay. See

Gov’t Br. 29. Even assuming that an earlier disclosure would

have led to an interview with Jazz, and that such an interview

would have provided grounds to impeach Jones, Mason fails to

show how the out-of-court statements of a deceased declarant

would have helped him at trial. Such statements would have

been obvious hearsay if offered for the truth of the matter

asserted—that Jones had written the letter—and inadmissible

at trial unless subject to an enumerated hearsay exception. See

FED. R. EVID. 801, 802; see also 30B CHARLES ALAN WRIGHT

ET AL., FEDERAL PRACTICE AND PROCEDURE § 6728 (2018 ed.).

Mason says that any of three hearsay exceptions would

have allowed the court to admit Jazz’s hypothetical statements:

the exception for dying declarations, the exception for

statements against interest, and the residual exception. See

Reply Br. 8. We disagree. The exception for dying declarations

does not apply because Jazz’s statements would have had

nothing to do with the “cause or circumstances” of his death.

FED. R. EVID. 804(b)(2). The exception for statements against

interest is unavailing as well. Mason offers no argument why

statements naming Jones as the letter’s author would have been

“so contrary to [Jazz’s] proprietary or pecuniary interest or had

so great a tendency . . . to expose [Jazz] to civil or criminal

liability,” id. 804(b)(3)(A), that they should qualify under that

exception.

The residual exception fares no better. We apply this

“extremely narrow” exception “sparingly,” “only in the most

exceptional circumstances,” and only if the out-of-court

statement is both “very important and very reliable.” United

States v. Slatten, 865 F.3d 767, 807 (D.C. Cir. 2017) (per

curiam) (internal quotation marks and citations omitted). We

can grant that a statement by Jazz impeaching Jones might have

10

been “very important” to Mason’s defense, but it would have

been of doubtful reliability. Mason argues that the requisite

“indicia of reliability” would come from the statements of

others that Jazz had told them Jones wrote the letter. Tr. of Oral

Arg. at 12:16-24; 39:18-23. But we doubt that more hearsay

from Jazz would provide the “sufficient guarantees of

trustworthiness” the residual exception requires. FED. R. EVID.

807(a)(1). And in any event, the government could undermine

any showing of reliability with the handwriting expert’s

“conclusive” determination that Jones didn’t write the letter. *

Of course, defense counsel might have relied on Jazz’s

statements to question Jones during cross-examination. See,

e.g., United States v. Whitmore, 359 F.3d 609, 621-22 (D.C.

Cir. 2004). But we doubt such a tack would have been effective

here. Defense counsel could have cross-examined Jones using

their knowledge of the letter, but they declined. Moreover, the

use of additional statements from Jazz to impeach Jones was

unlikely to have improved the cross much, as Jones could deny

authorship all the same. And defense counsel feared the

government would bolster that denial with its “conclusive”

handwriting analysis. See Mason Br. 12, 36. Given the

circumstances of this case, we see no “reasonable probability

of a different outcome,” Johnson, 519 F.3d at 488, from such

an exchange.

We hold that Mason has failed to demonstrate prejudice

from the government’s belated disclosure and that his Brady

*

In the alternative, Mason argues that even if the interview yielded

no admissible evidence it might have revealed the identity of Jazz’s

“uncle,” a “potential additional (living) witness to these matters”

who was mentioned, but never named, in the handwritten letter.

Reply Br. 8-9. Again, the possibility that additional information

about an unknown person might have helped Mason’s defense is

simply too speculative to undermine our confidence in the verdict.

11

claim thus fails. That holding is consistent with our decision in

United States v. Pasha, 797 F.3d 1122 (D.C. Cir. 2015), in

which the government waited eight months to disclose that an

eyewitness had made statements favorable to the defense. By

the time defense counsel interviewed the eyewitness, he said

his memory had faded; he was no longer useful to the defense.

We held that one of the defendants, against whom the evidence

was particularly weak, was prejudiced by the belated disclosure

and thus had a valid Brady claim.

Pasha differs from Mason’s case. For one, the defendant

in Pasha demonstrated how an earlier interview with the

eyewitness would have helped her. Had she taken “a sworn

statement from [the eyewitness] when his memory was fresh,”

at trial the eyewitness might have read that statement into

evidence as a recorded recollection. Reply Brief for Appellant

Daaiyah Pasha at 20, Pasha, 797 F.3d 1122 (No. 13-3024),

2015 WL 831935; FED. R. EVID. 803(5). That option was

unavailable to Mason because Jazz could not testify under any

circumstances. Further, the government’s case against the

defendant who prevailed on her Brady claim in Pasha was not

strong. See 797 F.3d at 1137 (describing the “weak evidence”

that the defendant participated in the crime). Mason’s

incriminating wiretapped statements, through which the jury

heard Mason himself make several thinly veiled references to

dealing drugs, distinguish this case from Pasha. See Mason Br.

22 (acknowledging that these wiretaps were “obviously the

Government’s strongest evidence against” him).

B

Mason objects to the district court’s denial of his motions

for misjoinder and severance. The purpose of both motions is

the same: to separate a defendant’s trial from his codefendant’s.

Because severance, unlike misjoinder, can require a court to

12

consider events that occurred at trial, we review the denial of a

severance motion for abuse of discretion and the denial of a

misjoinder motion de novo. See United States v. Bikundi, 926

F.3d 761, 781 (D.C. Cir. 2019) (per curiam); United States v.

Bostick, 791 F.3d 127, 145 (D.C. Cir. 2015).

1

In his pretrial motion for misjoinder, Mason argued that

the indictment improperly joined his trial with that of his

codefendant Andrea Miller. He and Miller “were merely two

small spokes in a larger drug conspiracy,” he says, who did not

conspire “together” at all. Mason Br. 38.

We have a “broad policy favoring initial joinder.” United

States v. Perry, 731 F.2d 985, 991 (D.C. Cir. 1984). Under

Federal Rule of Criminal Procedure 8(b), an indictment “may

charge 2 or more defendants if they are alleged to have

participated in the same act or transaction, or in the same series

of acts or transactions, constituting an offense or offenses.” Our

Rule 8 “[j]oinder analysis ‘does not take into account the

evidence presented at trial,’ but rather ‘focuses solely on the

indictment and pre-trial submissions.’” Bostick, 791 F.3d at

145 (quoting United States v. Gooch, 665 F.3d 1318, 1334

(D.C. Cir. 2012)).

The indictment’s allegation that Mason and Miller

conspired to distribute drugs made joinder of their trials proper.

“The mere allegation of a conspiracy presumptively satisfies

Rule 8(b), since the allegation implies that the defendants

named have engaged in the same series of acts or transactions

constituting an offense.” United States v. Friedman, 854 F.2d

535, 561 (2d Cir. 1988) (quoting United States v. Castellano,

610 F. Supp. 1359, 1396 (S.D.N.Y. 1985)). We have frequently

held that participation in the same charged conspiracy justifies

13

joinder. See, e.g., United States v. McGill, 815 F.3d 846, 905

(D.C. Cir. 2016); United States v. Spriggs, 102 F.3d 1245,

1255-56 (D.C. Cir. 1996).

We reject Mason’s argument that the indictment falsely

alleged that he and Miller conspired “together.” The allegation

that the two “did knowingly and willfully combine, conspire,

confederate and agree together” and with others to distribute

heroin and other drugs, Indictment (Oct. 17, 2017) at 2, J.A.

24, is nothing more than an allegation that Mason and Miller

participated in the same conspiracy, which they did. We also

reject Mason’s argument that “the prosecution’s own

statements made at trial later plainly revealed” that Mason and

Miller’s “‘acts and transactions’ did not overlap at all.” Mason

Br. 39. “If the indictment establishes proper joinder under Rule

8(b), trial evidence cannot render joinder impermissible and is

thus irrelevant to our inquiry.” United States v. Moore, 651

F.3d 30, 69 (D.C. Cir. 2011) (per curiam), aff’d sub nom. Smith

v. United States, 568 U.S. 106 (2013).

2

Under Federal Rule of Criminal Procedure 14(a), a district

court may sever codefendants’ trials if joinder “appears to

prejudice a defendant.” Mason says severance was required for

two reasons: the “generalized prejudice” he faced from a joint

trial with Miller and the “specific prejudice” that arose from

the “confusion” demonstrated by the note from Juror #1.

Mason Br. 40.

We disagree. We recognize that in some joint trials, the

risk of prejudice to one coconspirator is so great that Rule 14(a)

requires severance even where joinder was proper. For

instance, severance may be appropriate when coconspirators

are accused of “grossly disparate crimes,” United States v.

14

Sampol, 636 F.2d 621, 645 (D.C. Cir. 1980) (per curiam), or

when there is great “disproportion in the evidence,” United

States v. Mardian, 546 F.2d 973, 980 (D.C. Cir. 1976) (en

banc).

This is not one of those cases. Mason and Miller were

jointly charged with conspiracy to distribute drugs. Miller

alone was charged with conspiracy to import drugs. Those are

not grossly disparate crimes. See Sampol, 636 F.2d at 647

(requiring severance where defendant was accused of making

false declarations and misprision of felony and codefendants

were accused of “crimes of conspiracy to assassinate and

murder”). Nor was there such disproportion in the evidence that

severance was warranted. The government presented evidence

of international drug trafficking during its case against Miller.

But much of the same might have been introduced at a trial

against Mason alone to prove he had conspired to distribute a

significant quantity of heroin. See McGill, 815 F.3d at 947;

United States v. Law, 528 F.3d 888, 906 (D.C. Cir. 2008).

Nor did the district court abuse its discretion in denying

Mason’s motion for severance after it received the juror note.

Over the course of the trial, the district court and the

government took appropriate steps to make sure that the

confusion revealed in the note was addressed. The government

presented its cases against Miller and Mason separately. After

receiving the note, the district court issued an appropriate

instruction and the government promptly elicited testimony to

dispel the juror’s confusion. At the close of the trial, the district

court instructed the jury that it was required to consider the

evidence separately against each defendant. See Tr. of Jury

Trial (Mar. 6, 2018) at 1326:1-5, 1336:5-14, J.A. 1405, 1415.

Those steps sufficed to dispel any confusion about the different

roles of Mason and Miller in the conspiracy.

15

Mason argues that “there can be no assurance that the

spillover prejudice that we clearly know Juror #1 harbored . . .

was in fact later purged” and that “[n]othing whatsoever

reveals that Juror #1 did not vote to convict based at least in

part on this mistaken understanding of the evidence.” Mason

Br. 42. That may be true. But Mason misunderstands the scope

of our review. We do not ask whether we are certain no juror

voted to convict based on a mistaken understanding of the

evidence, a fact neither we nor the district court could know.

We ask only whether the district court abused its discretion in

denying his motions for severance. It did not.

C

Last, Mason challenges the district court’s finding that he

is ineligible for the safety valve provision of the Sentencing

Guidelines. Under that provision, certain defendants who

“truthfully provide[] to the Government all information and

evidence” they possess concerning their “offense of conviction

and all relevant conduct” may be sentenced without regard to a

mandatory minimum. U.S.S.G. § 5C1.2(a)(5) & cmt. n.3. At

sentencing, the government objected to Mason’s refusal to

name his other drug suppliers and the customers who

purchased drugs from him. Mason argues the government and

the district court expected him to provide more information

than the safety valve requires. Because the breadth of the safety

valve is a legal, not factual, question, we review the district

court’s finding de novo. See United States v. Vega, 826 F.3d

514, 538 (D.C. Cir. 2016) (per curiam).

As part of his blanket refusal to “put someone else in the

line of fire,” Mason refused to name the persons to whom he

sold the drugs he obtained from Jones and Walker. According

to the government, those customers would have been

“significant mid-level dealers, purchasing 20 to 50 grams of

16

heroin, worth thousands of dollars, at a time.” Gov’t Br. 61.

Their names constituted “information” concerning “the offense

of conviction and all relevant conduct” that Mason was

obligated to provide. See United States v. Wrenn, 66 F.3d 1, 3

(1st Cir. 1995) (affirming a finding of safety valve ineligibility

for a drug-dealing defendant who refused to name his

customers). Refusing to disclose the names of his customers

disqualified Mason from taking advantage of the safety valve.

III

For the foregoing reasons, we affirm Mason’s conviction

and sentence.

So ordered.