The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0263p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-6400
v.
,
>
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Defendant-Appellant. -
PAMELA HOLDER,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 08-00143-002—Aleta Arthur Trauger, District Judge.
Argued: April 27, 2011
Decided and Filed: September 12, 2011
Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge.*
_________________
COUNSEL
ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER’S OFFICE,
Nashville, Tennessee, for Appellant. Daniel Steven Goodman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Michael
C. Holley, Ronald C. Small, FEDERAL PUBLIC DEFENDER’S OFFICE, Nashville,
Tennessee, for Appellant. Daniel Steven Goodman, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., Peter A. Frandsen, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
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OPINION
_________________
ZATKOFF, District Judge. On April 13, 2009, Defendant Pam Holder was
convicted by a jury of two counts of bank fraud under 18 U.S.C. § 1344 and two counts
*
The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of
Michigan, sitting by designation.
1
No. 09-6400 United States v. Holder Page 2
of wire fraud under 18 U.S.C. § 1343 in the United States District Court for the Middle
District of Tennessee. Holder appeals the district court’s denial of her motion for new
trial, arguing (1) prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963),
and (2) ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668
(1984). For the reasons that follow, we AFFIRM the district court’s denial of Holder’s
motion for a new trial.
I. BACKGROUND
In June 2008, the Government charged Fred Holder and his wife, Pamela Holder
(“Holder”), with two counts of bank fraud and two counts of wire fraud. In August
2008, the Government dismissed the charges against Fred Holder due to his death,
however, the Government maintained its charges against Holder. The Government’s
charges against Holder involved her conduct in falsifying or assisting in falsifying
certain documents to obtain several loans, in conjunction with Fred Holder, to acquire
a home purchased for $1.4 million, intending to resell the home for a profit.1 The
purchase of the home involved recruiting a third-party with good financial credit, Brenda
Leeper (“Leeper”). With Leeper’s good credit score, the Holders told her that she could
make $1,000 or more per month by assisting the Holders with purchasing and selling
homes. Leeper was intended to be the nominal purchaser of the home. The fraudulent
scheme further included Team Fat Man, Inc., a corporation Fred Holder (a closing
manager at a car dealership in Tennessee) organized to manage his own team of car
salespersons at the dealership in Nashville, Tennessee.
In an effort to make Leeper appear eligible for three loans, totaling $1.8 million,2
the Holders provided Leeper with a check for $30,000 that she deposited in her personal
1
The home had been appraised at values ranging from $1.8 million to $2.2 million, and was
originally on the market for approximately $2.4 million.
2
Countrywide Home Loans loaned $1.125 million to Leeper, taking a senior lien position on the
purchased home. The Bank of Nashville loaned $500,000 to Leeper, taking a junior lien position to
Countrywide Home Loans. One month later, the home was refinanced. At this time, First Tennessee Bank
loaned $800,000 to Leeper, of which approximately $500,000 was used to pay the Bank of Nashville loan
in full. The remainder of the $800,000 passed through Leeper to the Holders. Ultimately, First Tennessee
Bank paid the balance on Countrywide Home Loans’ $1.125 million loan. As such, First Tennessee Bank
became the sole lien holder, with mortgage receivables totaling $1.8 million on the home.
No. 09-6400 United States v. Holder Page 3
bank account,3 and falsified documents so that Leeper appeared as the president of Team
Fat Man, Inc. since July 2003, earning a salary of $30,000-to-$40,000 per month.4 In
May 2005, at the closing on the home, Leeper signed mortgage documents to purchase
the home at a price of about $1.4 million. Within months, the loan went into default.5
The First Tennessee Bank foreclosed on the home and eventually resold it, resulting in
a net loss of $376,070.16.
A. PRIOR TO TRIAL
Although the Government charged Holder, the Government never charged
Leeper for her involvement in the fraudulent scheme. As trial approached, Peter
Frandsen, the lead prosecutor, notified Ronald Small, Holder’s defense counsel, that he
had promised not to prosecute Leeper for her involvement in the scheme. On February
12, 2009, the Government requested a jury instruction addressing the fact that Leeper
would testify pursuant to a guarantee that she would not be prosecuted. The requested
instruction stated in relevant part:
(1) You have heard the testimony of Brenda Leeper. You have also heard
that the government has promised that she will not be prosecuted.
Notwithstanding the requested instruction and communication to defense counsel, the
Government never communicated to Leeper that she would receive any protection
against future prosecution in exchange for her testimony at trial.6 The Government also
did not notify defense counsel, despite its earlier communication with defense counsel,
3
A business affiliate of Fred Holder paid Leeper $30,000 by check under the impression that
Leeper needed that amount of liquid assets to appear eligible for a real estate loan. After several months,
Fred Holder repaid the outstanding balance.
4
Although Leeper had a good credit score, she only owned a $100,000 home with a $59,000
mortgage, and earned $10-to-$11 per hour.
5
The Holders moved into the home and were supposed to make the monthly mortgage payments.
After five or six months, the Holders were unable to make the monthly payments in full and Leeper’s
earning potential was insufficient to make the payments.
6
Rather, Leeper testified at trial without any knowledge of a nonprosecution agreement.
No. 09-6400 United States v. Holder Page 4
that Leeper would be testifying without a nonprosecution agreement or withdraw its
requested instruction before trial.7
B. AT TRIAL
In April 2009, at trial, the Government had to prove that (a) some of Holder’s
actions contributed to the fraud, and (b) she acted with the intent to defraud. In his
opening statement, defense counsel stated that he would impeach Leeper by proving she
was testifying pursuant to a promise against future prosecution:
you are going to hear [that Leeper] got a promise not to be prosecuted by
the United States Government sitting at this table right here. You get to
decide what the basis or motive is for people to come into this courtroom
and testify that something happened.
In fact, they talk about this testimony from [Leeper] about being
Fred Holder’s sister; again, balance her credibility as to against that
statement that she is getting a free pass in this case. She signed
multi-million dollar documents.
R93 at 34-35 (emphasis added).
Besides presenting several witnesses and documentary proofs, the Government called
Leeper to testify to the jury. Leeper testified to the jury regarding Holder’s involvement
in the fraudulent scheme. Following up with defense counsel’s opening statements,
when Leeper took the stand, defense counsel questioned Leeper on whether she was
testifying for the Government in exchange for a promise to not be prosecuted:
Q. At any time were you promised that you would not be prosecuted for
your involvement in this case?
A. Never.
Q. No one promised you that?
A. No one said anything like that.
***
Q. So nobody has come up to you and said you are going to be charged
with a federal offense?
7
The jury did not receive the proposed instruction at trial.
No. 09-6400 United States v. Holder Page 5
A. No one has.
***
Q. So you were not told by any agent or prosecutor that you could have
been charged with offenses?
A. No, sir, I don’t even know what wire fraud is.
Q. Yes, ma’am. And you’ve met with Mr. Frandsen before, have you
not?
A. Yes.
Q. Did Mr. Frandsen ever make any representations that he would not
prosecute you?
A. Absolutely not.
Q. Did Ms. Hill ever say to you at any time that you wouldn’t be
prosecuted for any of your involvement?
A. No. No, because I’m innocent.
Defense counsel next questioned the case agent, FBI Agent Lowanda Hill (“Hill”), about
the purported nonprosecution agreement. Hill denied its existence. On
cross-examination, Hill testified that the decision not to prosecute Leeper was made by
the U.S. Attorney’s Office, not by her. Defense counsel then asked Hill whether she was
present when the decision not to prosecute Leeper was communicated to Leeper. Hill
responded that she could not remember. At this point, the Court interrupted defense
counsel’s questioning to take a recess.
C. THE DISTRICT COURT’S INTERVENTION AT TRIAL
While in recess, the district court told the parties that defense counsel’s
examination of Hill regarding a nonprosecution agreement was confusing. The district
court ascertained by questioning the prosecutor that, although the prosecutor had
previously decided to promise not to prosecute Leeper, in fact the prosecutor did not
offer Leeper such a promise for her testimony at trial.
Before the jury returned, defense counsel further explained to the Court that
“[t]he whole reason for me bringing Ms. Leeper back [to question her about the
No. 09-6400 United States v. Holder Page 6
purported nonprosecution agreement] was because I was under the impression for quite
a while that she was given a pass. I was told that and I know Mr. Frandsen corresponded
with me about it.” The prosecutor confirmed that he had written a letter to defense
counsel before trial expressing that Leeper would not be prosecuted.8 To resolve the
irrelevant questioning of Leeper and Hill about the purported nonprosecution agreement,
defense counsel moved to withdraw his questions and strike the answers. The district
court advised defense counsel that rather than bring the jury’s attention to such
questioning, the court’s standard instruction “that whether or not anybody else is
prosecuted in this case is of no moment” would resolve defense counsel’s questioning.
Defense counsel agreed. On April 13, 2009, the jury returned a verdict finding Holder
guilty of two counts of bank fraud in violation of 18 U.S.C. § 1344 and two counts of
wire fraud in violation of 18 U.S.C. § 1343.9
D. DISTRICT COURT’S DENIAL OF HOLDER’S MOTION
On May 22, 2009, Holder filed a motion for judgment of acquittal or new trial,
raising a claim of prosecutorial misconduct. Holder argued that the prosecutor never
informed defense counsel, contrary to the prosecutor’s representations to defense
counsel, that Leeper was testifying without being offered a nonprosecution agreement,
and that the prosecutor had a duty to stop defense counsel from highlighting a
nonprosecution agreement that never existed.
The district court addressed the motion at the start of Holder’s sentencing hearing
on November 13, 2009. The district court recognized that there was a “stark
disagreement” between the lawyers as to whether the prosecutor discussed granting
“immunity” to Leeper with the defense counsel, and recognized that the actual word
“‘immunity’ was not used in the proposed jury instruction.” The district court stated:
“I think what happened here is that it was communicated to [defense counsel] that
8
The purported letter is not in the record before the Court.
9
Holder was sentenced to concurrent prison terms of one year and one day on each of the four
counts, three years of supervised release, and ordered to pay $376,070.16 in restitution to First Tennessee
Bank. Her prison terms were stayed until the outcome of this appeal.
No. 09-6400 United States v. Holder Page 7
[Leeper] was not going to be prosecuted.” The district court, however, concluded, “I
cannot find that the actual word ‘immunity’ was used by the prosecutor.” The district
court determined that in the context of the trial as a whole, the alleged error was not
devastating.
In support of that conclusion, the district court told defense counsel: “You did
not promise something you didn’t deliver. What you promised in your opening
statement was Brenda Leeper has gotten a pass. And, in fact, Brenda Leeper did get a
pass.” In denying the motion, the district court held that defense counsel’s promise in
his opening statement and his questioning of Leeper and Hill were not as important to
the jury as defense counsel perceived in hindsight. Ultimately, the district court
calculated the Guidelines range to be 30 to 37 months, imposed a sentence of one year
and one day for each count, to be served concurrently, and ordered Holder to remain on
bond pending the outcome of this appeal. On November 24, 2009, the district court
entered its judgment. Holder filed her notice of appeal the same day. Although she
appeals from her judgment of conviction, she raises no issue with her sentence or her
motion for judgment of acquittal. Pursuant to 28 U.S.C. § 1291, this Court has
jurisdiction. Thus, the issues before this Court are Holder’s (a) prosecutorial misconduct
claim and (b) ineffective-assistance-of-counsel claim.
II. ANALYSIS
A. PROSECUTORIAL MISCONDUCT
Initially, we consider whether the prosecution’s failure to disclose information
about a nonprosecution agreement violated Holder’s constitutional rights. Holder argues
that the prosecutor had an obligation to inform defense counsel that Leeper was not
granted immunity, and that the prosecutor’s suppression of such evidence renders her
trial fundamentally unfair under the due process clause of the Fifth and Fourteenth
Amendments, which this Court reviews under Brady. See Bell v. Bell, 512 F.3d 223,
233-34 (6th Cir. 2008) (en banc) (reviewing a defendant’s claim that the government
should have disclosed to the defense counsel notes of an interview with a witness that
No. 09-6400 United States v. Holder Page 8
indicated that the witness expected early parole in exchange for the testimony given at
trial under Brady); Schledwitz v. United States, 169 F.3d 1003, 1011 (6th Cir. 1999)
(reviewing a defendant’s claim that the government failed to disclose favorable evidence
to the defense counsel under Brady). The district court’s determination as to the
existence of a Brady violation is reviewed de novo, United States v. Miller, 161 F.3d
977, 987 (6th Cir. 1998), but the district court’s denial of Holder’s motion for new trial
is reviewed under an abuse of discretion standard. United States v. Jones, 399 F.3d 640,
647 (6th Cir. 2005). “‘A district court abuses its discretion when it applies an incorrect
legal standard, misapplies the correct legal standard, or relies upon clearly erroneous
findings of fact.’” United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005) (citation
omitted).
With respect to finding a violation under Brady, “the suppression by the
prosecution of evidence favorable to an accused upon request 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.”10 Brady, 373 U.S. at 87 (emphasis added). For Holder
to assert a successful claim under Brady, she must show three essential elements: (1) the
evidence is favorable to her; (2) the evidence was suppressed by the Government; and
(3) the suppression caused her prejudice. Banks v. Dretke, 540 U.S. 668, 691 (2004)
(quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).
We proceed directly to the issue of prejudice. To demonstrate prejudice, Holder
must show the evidence at issue is “material.” Strickler, 527 U.S. at 282. Evidence is
material “if 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) (citations omitted); see Bagley, 473 U.S. at 682; United States
v. Mullins, 22 F.3d 1365, 1371 (6th Cir. 1994). Generally, evidence that could impeach
10
Even though the record does not show whether Holder’s defense counsel requested any
information regarding the nonprosecution agreement from the prosecutor, in United States v. Bagley, 473
U.S. 667 (1985), the Supreme Court eliminated the requirement that the accused had to make a request and
reiterated its prior holding that the government has a duty to volunteer exculpatory evidence regardless of
whether it was requested. Id. at 682; see United States v. Agurs, 427 U.S. 97, 108 (1976) (finding a duty
on the part of the government to volunteer exculpatory evidence).
No. 09-6400 United States v. Holder Page 9
the credibility of a witness is “material.” Schledwitz, 169 F.3d at 1011. As such, a
written agreement, or a less formal unwritten agreement, between the prosecutor and a
witness is impeachment evidence that typically is “material” under Brady. Giglio v.
United States, 405 U.S. 150, 154-55 (1972); Bell, 512 F.3d at 233.
In arguing that Holder’s trial was prejudiced and that a reasonable probability
exists that the jury would have reached a different outcome, Holder asserts that she was
prejudiced by the prosecutor’s suppression of information about whether a
nonprosecution agreement was communicated to Leeper in two ways. First, defense
counsel—misled by the prosecutor’s proposed jury instruction and
statements—promised in his opening statement that he would impeach Leeper with proof
of a nonprosecution agreement, but defense counsel broke this promise to the jury
because there was no such agreement. Holder asserts this harmed defense counsel’s
credibility with the jury. Second, defense counsel’s questioning of Leeper and Hill
regarding the nonprosecution agreement bolstered Leeper’s testimony, which Holder
asserts was the most important witness to prove her intent to defraud (i.e., an element
that the Government had to prove to establish Holder’s guilt).
Holder relies on Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), and Harris v.
Reed, 894 F.2d 871 (7th Cir. 1990). In Anderson, the defense counsel promised to the
jury that he would call two expert witnesses—a psychiatrist and a psychologist. 858
F.2d at 17. The experts would have testified that the defendant was like a robot, acting
without any appreciation of what was happening and without any feeling, during the
alleged murder. Id. The testimony of the two experts would have likely negated the
defendant’s state of mind, meaning that he would not be found guilty of murder in the
first degree. Id. at 18-19. The defense counsel, however, never called the experts, and
the jury returned a verdict of murder in the first degree. Id. at 17. The court held that
the lack of providing such “powerful evidence” was prejudicial as a matter of law. Id.
at 19. Due to the defense counsel’s ineffective assistance, the court reversed the district
court’s judgment. Id.
No. 09-6400 United States v. Holder Page 10
Further, in Harris, defense counsel promised in his opening statements that two
witnesses would testify to seeing a person different than the defendant fleeing from the
scene. 894 F.2d at 873-74, 878. From this testimony, the defense counsel told the jury
that they would have a basis for finding the defendant innocent. Id. Because the defense
counsel believed the prosecutor’s evidence introduced at trial was weak, he never called
the two witnesses. Id. at 878. The court held that the omission of the witnesses was
prejudicial because the “jury likely concluded that counsel could not live up [to] the
claims made in the opening.” Id. at 879. In finding prejudice, the court reversed the
district court’s denial of the defendant’s writ of habeas corpus, and remanded the case
to the district court with directions to grant the defendant’s writ of habeas corpus and
retry the defendant. Id.
To the extent that Brady applies to the issue before us, Holder fails to show that
the evidence is “material,” meaning that, even if it had been disclosed to defense
counsel, a reasonable probability exists that the jury would have reached a different
outcome. Kyles, 514 U.S. at 433. Defense counsel’s opening statements only
mischaracterized the reason why Leeper was not being prosecuted, which ultimately
went to Leeper’s credibility, but had no bearing on whether Leeper’s testimony would
have been heard by the jury. Holder argues that the cross-examination bolstered
Leeper’s testimony, but she never asserts that the testimony from Leeper would have
been inadmissible or not presented to the jury had the alleged favorable evidence been
disclosed. In this regard, the jury would have heard Leeper’s testimony about Holder’s
involvement in the fraudulent scheme anyway. To the extent that Leeper’s testimony
was bolstered and defense counsel’s credibility was weakened, the district court also
instructed the jury “that whether anyone else should be prosecuted and convicted for
these crimes is not a proper matter . . . to consider.” R97 at 102, 115.
With respect to Holder’s cited legal authority, she fails to show that defense
counsel’s promise that Leeper was testifying pursuant to a nonprosecution agreement is
similar to the promises made by the defense attorneys in Anderson and Harris. Neither
Anderson nor Harris involved promises to the jury regarding the credibility of a
No. 09-6400 United States v. Holder Page 11
testifying witness, and the alleged favorable evidence in this case is not the type of
“powerful evidence” the court found in Anderson.
Moreover, in assessing the significance of the evidence withheld, we note that
the prosecutor did not rely solely on Leeper’s testimony to prove that Holder had the
requisite intent to defraud. The prosecutor also introduced other witnesses and
documentary evidence to the jury from which they could infer Holder’s intent. The jury
heard Michael Thayer, a loan broker who submitted loan applications with several banks
for the Holders and Leeper. He testified that during the loan application and closing
process, he communicated by e-mail and fax with Holder concerning the loan
applications, which contained the false information. The prosecutor also presented a
quitclaim deed signed by Leeper and dated July 1, 2005, which transferred the home
from Leeper to Holder for the sum of one dollar. Further, attorney Norman Rollins
testified that in early 2005, Holder visited his office and asked him to prepare new
corporate minutes for Team Fat Man, Inc. The new corporate minutes, signed by
Holder, expressed that Leeper was the new president of the company, which was false.11
Rollins also drafted a generic letter that accompanied the new corporate minutes, stating
that Leeper was the president of Team Fat Man, Inc. The Rollins letter and new
corporate minutes were important because, as Thayer testified before the jury, he relied
on them in preparing the loan applications since the two documents supported Leeper’s
fraudulent monthly income of $30,000.
The jury also heard Selesa Beeler, First Tennessee Bank mortgage lender, who
testified that Leeper’s purported tax statements, which verified her fraudulent income
of $30,000 per month, were faxed by Holder. Beeler further stated that Holder did not
correct Fred Holder when he introduced Leeper as his sister at the closing of the home,
and that the excess cash from the loans was disbursed through cashier’s checks obtained
by Leeper, which included a cashier’s check payable to Holder in the amount of $50,000.
Therefore, given the other evidence presented to the jury, we find no reasonable
11
The falsified corporate minutes indicate that a joint special meeting occurred, in which Leeper
was appointed to serve as president of Team Fat Man, Inc. The minutes are signed by Fred Holder, in his
capacity as a director and a shareholder, and Holder, in her capacity as a director.
No. 09-6400 United States v. Holder Page 12
probability that the prosecutor’s failure to inform defense counsel that Leeper was not
testifying pursuant to a nonprosecution agreement places Holder’s case in such a
different light as to undermine confidence in the jury verdict. Kyles, 514 U.S. at 435,
453.12 Finding that there is no Brady violation, we conclude that the district court
properly denied Holder’s motion for judgment of acquittal or new trial. The district
court did not err when it determined that any confusion caused by defense counsel’s
opening statements and questioning of Leeper and Hill about a nonprosecution
agreement to the jury had a minor effect, if any, on the jury’s guilty verdicts.
Our holding, however, should not be construed as suggesting that we condone
the prosecutor’s lack of candor with the defense counsel. The prosecutor’s demeanor
was unprofessional and lacked the impartiality we expect of a United States prosecuting
attorney. In our view, the prosecutor should have been more forthright with defense
counsel when it was apparent during the defense counsel’s opening statements, and
certainly during the defense counsel’s cross-examination of Leeper and Hill, that he was
acting in reliance on a purported nonprosecution agreement. We note such misconduct
is certainly of the type to warrant review by Tennessee’s United States Attorney’s
Office. Notwithstanding the prosecutor’s lack of candor with defense counsel, we find
that the district court did not abuse its discretion in denying Holder’s motion for
judgment of acquittal or new trial.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
We now consider Holder’s ineffective-assistance-of-counsel claim. On direct
appeal, if the record is sufficient, this Court reviews the merits of an ineffective-
assistance-of-counsel claim. United States v. Johnson, 581 F.3d 320, 328 (6th Cir.
2009). This Court makes its own review of the record and any factual findings made by
the district court. See United States v. Jones, 489 F.3d 243, 255 (6th Cir. 2007). An
ineffective-assistance-of-counsel claim consists of two components. First, Holder must
prove counsel performed deficiently. Strickland, 466 U.S. at 686-87. Counsel’s
12
Even though she had not received a promise against future prosecution, as the district court
concluded, she did receive a free pass, which defense counsel highlighted to the jury.
No. 09-6400 United States v. Holder Page 13
deficient performance may be caused by the Government when it “interferes” in a
defense counsel’s ability to make “independent decisions about how to conduct the
defense.” Id. Second, Holder must prove that the deficient performance so prejudiced
her defense as to render her trial unfair and the result unreliable. Id. To demonstrate
prejudice, Holder must show that counsel’s alleged errors were so serious that, but for
those errors, there is a reasonable probability that the outcome of the proceeding would
have been different. Id. at 694. A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” Id. The defendant must satisfy both
components to succeed under Strickland, but this Court may review them in the order
it deems appropriate. Id. at 698.
Holder asserts similar arguments in her claim for ineffective assistance of counsel
as she asserts under Brady. In reviewing her ineffective-assistance-of-counsel claim, the
standard is the functional equivalent to the standard for reviewing Holder’s claim under
Brady.13 Like her arguments under Brady, Holder asserts that defense counsel’s
unfulfilled promise to the jury and his questioning of Leeper and Hill regarding the
nonprosecution agreement prejudiced Holder, and that the outcome would have been
different if the prosecutor had not misled defense counsel. However, in subsection II.A,
supra, we have already reviewed the record and determined that Holder is unable to
show that a reasonable probability exists that a different outcome would have resulted
had the prosecutor disclosed to defense counsel that a nonprosecution agreement did not
exist. Therefore, for the same reasons, Holder is unable to show that defense counsel’s
alleged errors caused her prejudice. Accordingly, Holder’s claim for ineffective-
assistance-of-counsel is denied.
13
Under Strickland, to find prejudice, the defendant must show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. In comparison, under Brady, evidence is “material” if “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different.” Kyles, 514 U.S. at 433 (citations omitted).
No. 09-6400 United States v. Holder Page 14
III. CONCLUSION
For the reasons above, we AFFIRM the district court’s denial of Holder’s Motion
for Judgment of Acquittal or a New Trial and DENY Holder’s ineffective-assistance-of-
counsel claim.