Petition for Writ of Certiorari — Robert Brumfield, III, Petitioner v. United States
Supreme Court briefJun 14, 2024
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Appendix A
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United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
____________
December 22, 2023
No. 22-30238
____________
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Robert Brumfield, III; Jeremy Esteves
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CR-201-5
______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
This appeal arises from a 2013 armed robbery of a Loomis armored
truck in New Orleans. One Loomis truck guard, Hector Trochez, was shot
and killed during the attack. In total, six people were indicted in connection
with the robbery and attendant conspiracy. A jury convicted Robert
Brumfield III and his cousin Jeremy Esteves for their roles in the crime.
Before sentencing, new evidence emerged regarding the credibility of
two Government witnesses. Esteves and Brumfield moved for a new trial,
alleging that the Government had suppressed the evidence in violation of
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Brady v. Maryland 1 and Giglio v. United States.2 The district court denied the
motion.
On appeal, Brumfield and Esteves challenge the district court’s denial
of their motion, contending that the evidence was material impeachment
evidence. Brumfield separately challenges the denial on the ground that the
Government failed to correct false testimony in violation of Napue v. Illinois.3
He also appeals his sentence.
In short, Brumfield is not entitled to a new trial because the new
evidence is not material in light of the entire trial record; his Napue claim fails
because he has not shown that the Government knowingly presented
materially false testimony; and his sentence was procedurally and
substantively reasonable. But we conclude that the new evidence was
material as to Esteves, so the district court must consider in the first instance
whether he has satisfied all the elements of his Brady claim.
We AFFIRM IN PART, REVERSE IN PART, and REMAND
to the district court for further consideration of Esteves’s Brady claim.
I
In December 2013, a Chevy Tahoe with heavily tinted windows pulled
up in front of a Chase Bank as an armored Loomis truck was making a
delivery. Three armed men stepped out. Loomis guard Anjene Treaudo sat
in the truck’s driver’s seat while a second guard, Hector Trochez, unloaded
the currency. The three men shot at the truck and Trochez, killing him. The
men then stole around $260,000 from the truck and sped off in the Tahoe. A
_____________________
1
373 U.S. 83, 87 (1963).
2
405 U.S. 150, 154 (1972).
3
360 U.S. 264, 269 (1959).
2
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brave eyewitness followed them. He saw two men exit the Tahoe and get into
a second getaway car—a green Honda. The Tahoe, which was stolen a week
before the robbery, was found abandoned nearby, its engine still running.
After a years-long investigation, police traced the robbery to Lilbear
George, Curtis Johnson, Jr., Chukwudi Ofomata, Esteves, and Brumfield. All
five were charged with conspiracy and other charges related to the robbery
and Trochez’s murder. Brumfield and Esteves were charged with three
counts: (1) conspiracy to obstruct commerce by robbery, in violation of 18
U.S.C. § 1951(a); (2) obstruction of commerce by robbery, in violation of 18
U.S.C. § 1951(a); and (3) using, carrying, brandishing, and discharging
firearms during and in relation to a crime of violence, causing death, in
violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (j)(1).
Brumfield and Esteves moved to sever their cases from the other
defendants who faced the death penalty. The district court granted the
motions, and Brumfield and Esteves continued to trial.
Two days into trial, Brumfield and Esteves learned that the
Government had failed to disclose two pieces of evidence: (1) phone
recordings about the Loomis robbery between an FBI informant and
cooperating witness Jamell Hurst; and (2) the FBI’s informant file on Hurst,
which contained an agreement between Assistant United States Attorney
(AUSA) McMahon and the Orleans Parish District Attorney’s Office not to
extradite Hurst in connection with a 2013 aggravated burglary warrant.
Because Hurst’s testimony is central to Brumfield’s and Esteves’s
Brady claim, we briefly recount his testimony. Hurst was one of the
Government’s main witnesses. He had been an FBI informant since at least
2014. At trial, Hurst implicated both Brumfield and Esteves in the robbery
and conspiracy. As to Brumfield’s involvement, Hurst testified that
Brumfield told him he was staking out an armored truck in preparation for a
3
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robbery and that Brumfield commented that the robbery would be easy
because the man in the truck was “big, fat, and clumsy.” Hurst also said that
he spoke with George, who told him Brumfield “was supposed to be involved
in the robbery, but that he didn’t have the character to pull it off and so he
was replaced.” Esteves, too, told Hurst that Brumfield was supposed to
participate in the robbery, but the other participants were concerned he
would “freeze up.”
As to Esteves’s involvement, Hurst testified that Esteves confessed
that he, George, Ofomata, and Johnson committed the robbery and that
Esteves was a getaway driver. Hurst told an FBI agent that in May 2014,
Esteves drove him to Esteves’s mother’s home and showed him money in a
shoebox. The FBI later found approximately $20,000, some of which was in
a shoebox in the home.
As to the benefits Hurst received for testifying, Hurst testified that the
government told him it would inform the Baton Rouge district attorney or
judge overseeing his pending sexual battery charges that he was cooperating
with the Loomis investigation. He also testified that the FBI gave him $1,200
to help buy a new phone and move back to New Orleans and that he was
interested in the $50,000 reward for the information he provided.
Brumfield and Esteves moved for a mistrial based on the newly
disclosed evidence. The district court continued trial to allow the defendants
to review the evidence. It heard argument and orally denied the motions,
holding that Brumfield and Esteves were not prejudiced by the
Government’s failure to disclose the evidence because they had a
continuance to review the evidence before cross-examining Hurst.
The jury convicted Esteves on all three counts. But it convicted
Brumfield only of conspiracy to commit the robbery.
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After the verdict but before sentencing, Ofomata’s counsel disclosed
to Brumfield’s and Esteves’s counsel additional evidence about benefits that
Hurst and another Government witness, Lydell Hinton, obtained for
cooperating with the Government. Brumfield and Esteves moved for a new
trial, arguing that the Government violated Brady and Giglio. The district
court denied the motion, holding that the new evidence was immaterial in
light of the entire trial record.
The same district judge sentenced all five defendants. Brumfield filed
ten objections to his presentence investigation report (PSR). The
Government opposed all of them. Most relevant here, Brumfield objected to
(1) the district court’s finding that he was the second getaway driver; (2) its
rejection of the downward adjustment for being a minor participant; and
(3) its application of the murder cross-reference for Trochez’s death. The
district court ruled on each objection in a written order, overruling the three
objections relevant to this appeal.4 The court sentenced Brumfield to 240
months’ imprisonment—the statutory maximum. Esteves received 600
months’ imprisonment—120 months for Counts 1 and 2, and 600 months for
Count 3, to be served concurrently. He does not appeal his sentence.
Brumfield and Esteves timely appealed the district court’s denial of
their motions for a new trial. Brumfield also challenges his sentence.
II
Brumfield and Esteves both challenge the district court’s denial of
their motion for a new trial. Brumfield raises two additional arguments. First,
he argues that the Government violated his due process rights by failing to
correct allegedly false witness testimony in violation of Napue v. Illinois.
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4
The district court sustained three of Brumfield’s objections relating to certain
factual information in the PSR and overruled the other seven objections.
5
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Second, he argues that his sentence is procedurally and substantively
unreasonable. We address the motions for a new trial first.
A
We first address whether the Government suppressed material
impeachment evidence in violation of Brady, entitling Brumfield and Esteves
to a new trial. “We review motions for a new trial based on an alleged Brady
violation de novo, ‘while acknowledging that we must proceed with deference
to the factual findings underlying the district court’s decision.’”5
The district court denied the motions for a new trial because the
evidence was immaterial in light of the entire trial record. We agree as to
Brumfield, but not as to Esteves.6
“To prevail on a Brady claim, ‘a defendant must show: (1) the
evidence at issue was favorable to the accused, either because it was
exculpatory or impeaching; (2) the evidence was suppressed by the
prosecution; and (3) the evidence was material.’”7 For evidence to be
material, there must be “a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
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5
United States v. Perry, 35 F.4th 293, 345 (5th Cir. 2022) (quoting United States v.
Sipe, 388 F.3d 471, 479 (5th Cir. 2004)); see also United States v. Severns, 559 F.3d 274, 278
(5th Cir. 2009).
6
The district court doubted that Brumfield and Esteves could establish that the
Government suppressed evidence of benefits or promises made to Hurst. Assuming that
they could produce sufficient evidence of suppression, the district court concluded that
such evidence would be favorable. But the court held that because the evidence was
immaterial, their claim would fail even if the first two elements of their Brady claim had
been met.
7
United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 2018) (quoting United States
v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016)); see also Giglio, 405 U.S. at 154–55 (applying
Brady to impeachment evidence).
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different.”8 “A ‘reasonable probability’ is established when the failure to
disclose the suppressed evidence ‘could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.’” 9
Brumfield and Esteves contend that the Government suppressed the
following evidence of Hurst’s benefits for cooperating10:
• Recordings of seven phone calls from Hurst to his mom
while he was in jail, in which he asked his mom to call the
FBI. Hurst said that FBI Special Agent Rayes told him that
he could get his charges dismissed and that Rayes and
AUSA McMahon told him they could get him out of
anything but murder. Hurst’s mom reported to Hurst that
Special Agent Elmer was working with the district attorney
to get him out.
• A New Orleans Police Department (NOPD) incident
report regarding Hurst’s 2013 aggravated burglary charge
that states that the victim was “one hundred percent sure”
that Hurst was the perpetrator. Hurst testified that the
charges were dismissed because the witness mistakenly
picked him in the photo lineup.
• A Brazoria County, Texas, investigation report showing
that Hurst (1) was arrested for possessing 37 stolen credit
cards and controlled substances and (2) was later indicted
for fraudulently possessing only two credit cards. At trial,
Hurst testified only to the latter.
• A Baton Rouge Police Department incident report
regarding Hurst’s 2014 arrest for battery, which stated that
an officer discovered that Hurst had an outstanding warrant
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8
United States v. Bagley, 473 U.S. 667, 682 (1985).
9
United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002) (quoting Kyles v.
Whitley, 514 U.S. 419, 435 (1995)).
10
The defendants do not challenge the evidence concerning Hinton’s benefits.
7
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for burglary issued by the NOPD. The report states that
the officer was initially advised that the NOPD wanted
Hurst booked, but that the officer was then advised by the
NOPD to release Hurst because he was an informant.
• A Louisiana Department of Public Safety and Corrections
file on Hurst, which states that Hurst had an active warrant
issued by Texas and that “Texas indicated that they were
coming to get [Hurst].” Another entry states that Special
Agent Elmer called on the same date that the Texas arrest
warrant was issued and asked to speak with Hurst’s
supervising probation officer. Another earlier entry notes
that Special Agent Elmer called in October 2014 seeking
Hurst’s contact information and stating that he was trying
to retrieve “some type of FBI issued equipment.”11
Brumfield and Esteves argue that Hurst was the only witness who
implicated them in the crimes, so the above impeachment evidence was
critical to attacking his credibility.
We have explained that “when the undisclosed evidence is merely
cumulative of other evidence in the record,” such as “when it merely
furnishes an additional basis on which to impeach a witness whose credibility
has already been shown to be questionable,” it is not material.12 Nor is
suppressed evidence material “when the testimony of the witness who might
have been impeached by the undisclosed evidence is strongly corroborated
by additional evidence supporting a guilty verdict.”13 Thus, we must consider
whether the new evidence was cumulative of the evidence heard at trial and
_____________________
11
Brumfield and Esteves also argued below that the Government suppressed
evidence concerning Hurst’s mental health, but they do not press that issue on appeal.
12
Sipe, 388 F.3d at 478, 489 (cleaned up).
13
Id. at 478.
8
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whether Hurst’s testimony was strongly corroborated by additional evidence
supporting the verdicts.
Hurst was thoroughly impeached at trial, but this doesn’t end our
inquiry because we agree with the district court that “[t]here is a significant
difference in degree and kind between the benefits Hurst testified about at
trial” and the benefits revealed by the undisclosed evidence. Hurst admitted
that he had initially lied to the FBI about several details about the robbery.
The jury heard about his criminal history, including his arrest for credit card
fraud and his cooperation with the Secret Service on that charge, and that at
one point, he had an open warrant for aggravated burglary. The jury also
heard that Hurst was currently in jail for simple burglary, criminal damage,
home invasion, aggravated assault, sexual battery of a six-year-old, and
indecent behavior with a juvenile.
As to the benefits Hurst received from cooperating with the
Government, defense counsel cross-examined Hurst on the evidence that led
to the motion for a mistrial, which revealed that Hurst was an FBI informant
and that the NOPD decided not to extradite Hurst on his outstanding
aggravated battery warrant.14 The jury also heard that Hurst was motivated
to testify because (1) he hoped the prosecution would talk to the district
attorney or judge in Baton Rouge about his cooperation, and (2) he was
interested in receiving the $50,000 reward.
_____________________
14
Special Agent Elmer testified that he did not recall whether or not Hurst had an
open warrant. But when presented with the FBI form, Elmer testified that he must have
been aware of it, and if the FBI was able to clear Hurst, he speculated that they may have
worked with the district attorney. But defense counsel did not press Special Agent Elmer
on the extradition agreement and whether Special Agent Elmer did in fact intercede on
Hurst’s behalf.
9
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Hurst testified that the Government did not intervene on his behalf
regarding his aggravated burglary warrant, but the jury did not hear about the
evidence suggesting (1) that Hurst received additional promises from the
Government or (2) that the Government may have fulfilled those promises.
As to the additional promises, the phone call recordings indicate that an FBI
agent promised to get Hurst out of any charge except murder. The recordings
and the reports also suggest that the Government may have made good on
that promise. But whether Hurst actually received help from the
Government is unclear. The district court noted that the evidence did not
“conclusively establish that the government assisted Hurst in the past, or
promised to assist him in the future,” and the Government denied
intervening in Hurst’s other charges. Even so, the Government’s promise for
leniency in exchange for Hurst’s testimony would be “more powerful”
impeachment evidence than the mere possibility of a favorable outcome.15 We
therefore conclude that the new evidence was not cumulative of the other
impeachment evidence.
We next turn to whether Hurst’s testimony was “strongly
corroborated” by other evidence that supports the guilty verdicts.16 We must
decide whether there is a reasonable probability that, if the allegedly
suppressed evidence had been disclosed, the result would have been
different. Our inquiry “is not a sufficiency of the evidence test,” however.17
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15
See Dvorin, 817 F.3d at 451.
16
See Sipe, 388 F.3d at 478; see also Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir.
2010) (“The materiality of Brady material depends almost entirely on the value of the
evidence relative to the other evidence mustered by the state.”).
17
LaCaze v. Warden, 645 F.3d 728, 737 (5th Cir. 2011); Sipe, 388 F.3d at 489
(“[T]he materiality inquiry is not just a matter of determining whether, after discounting
the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is
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Instead, we must ask whether the evidence “could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the
verdict.”18 Generally, we have found that undisclosed impeachment
evidence is material where the evidence of the defendant’s guilt was
“overwhelming.”19 Although there is overwhelming evidence against
Brumfield, who was convicted only of conspiracy, we cannot say the same for
Esteves, who was convicted on all three charges.
Start with the evidence against Brumfield. Hurst testified that
Brumfield told him that the group was staking out the armored truck and that
the robbery would be easy because the guard “was big, fat, and clumsy.” This
evidence was strongly corroborated by other evidence at trial. 20 Hinton
placed Brumfield squarely within the conspiracy. Hinton owned a rap studio
where Brumfield and the other conspirators frequented to “get off the street,
if the police was hot, [to] go in there and take a chill pill.” Hinton testified
that, after the robbery, Brumfield showed up late to a recording session after
being questioned by the FBI about the robbery. Brumfield told Hinton that
he wanted to rap about the FBI questioning him about his involvement.
Although Hinton counseled against it, he heard that Brumfield later rapped
about it anyway, but Hinton said he never heard the recording. Hinton also
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sufficient to support the jury’s conclusions.” (alteration in original) (quoting Strickler v.
Greene, 527 U.S. 263, 290 (1999))).
18
LaCaze, 645 F.3d at 736.
19
See, e.g., Perry, 35 F.4th at 347; United States v. Davis, 609 F.3d 663, 696 (5th Cir.
2010); United States v. O’Keefe, 128 F.3d 885, 897 (5th Cir. 1997).
20
See LaCaze, 645 F.3d at 736 (“A Brady violation is more likely to occur when the
impeaching evidence would seriously undermine the testimony of a key witness on an
essential issue or there is no strong corroboration.” (emphasis added) (internal quotation
marks and citation omitted)).
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testified that Brumfield admitted that he was “waiting” in “a green Honda”
to be the getaway driver after the robbery.
Cedric Wade, who grew up with Esteves and was close friends with
Ofomata and Brumfield, was a critical witness. He testified that Brumfield
was a well-known, close associate of the other co-conspirators, known as “the
circle.” Ofomata’s ex-girlfriend testified that Brumfield and Ofomata were
so close they had “a little brother/big brother type of relationship.” Phone
records linked Brumfield to a Chase Bank employee, Thierry King,21 and
showed that Brumfield and Esteves talked the morning of the robbery.
Shortly after the robbery, the phone associated with Brumfield used a cell
phone tower that was near both the Chase Bank and Adams Street, where the
Tahoe was located after the robbery.
Brumfield primarily relies on two cases in support of his argument that
the new evidence is material. The first is Smith v. Cain.22 There, the
prosecution failed to turn over a detective’s notes that stated that the only
eyewitness expressed doubt about whether he saw the perpetrator’s face. 23
At trial, the witness had testified that he had “no doubt” about the
defendant’s identity.24 The Supreme Court held that the evidence was
material because the detective’s notes directly contradicted the witness’s
testimony, which “was the only evidence linking [the defendant] to the
crime.”25 Here, the new evidence is not as critical. To be sure, the new
evidence shows that the benefits Hurst received were greater than what he
_____________________
21
King was a person of interest in the robbery, but she was not arrested or charged.
22
565 U.S. 73 (2012).
23
Id. at 74, 76.
24
Id. at 76 (cleaned up).
25
Id.
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testified to. But as we explained above, he was impeached on other grounds,
his testimony wasn’t the only evidence connecting Brumfield to the
conspiracy, and his testimony was corroborated.
The second is Wearry v. Cain.26 There, the prosecution withheld
evidence of two witnesses’ motives to testify. The prosecution failed to
disclose that (1) the first witness had a personal vendetta against the
defendant and wanted to ensure the defendant “gets the needle cause he
jacked [him] over,”27 and (2) the second witness approached the prosecution
twice, offering to testify in exchange for a deal.28 This contradicted the
second witness’s testimony at trial that his only motive for testifying was out
of love for his sister, who was friends with the victim’s sister, a narrative the
prosecution emphasized.29 The Supreme Court held that both pieces of
evidence were material. Here, the contrast between Hurst’s testimony and
his motives as revealed by the new evidence is less stark. At trial, Hurst
admitted that he asked the Government for help. As explained above, the new
evidence just shows that there may have been additional benefits.30 And the
evidence did not reveal that Hurst had an undisclosed vendetta against
Brumfield.
Next consider the evidence against Esteves. Hurst also testified that
Esteves told him that the group staked out the robbery, but most importantly,
_____________________
26
577 U.S. 385 (2016).
27
Id. at 389.
28
Id. at 390.
29
Id. at 394.
30
Cf. LaCaze, 645 F.3d at 738 (holding that the prosecutor’s undisclosed promise
to a witness that the witness’s son would not be prosecuted put the whole case in a
“different light” where the witness said he likely would not have testified but for the
promise and that witness was the only witness testifying to a critical element of the crime).
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unlike his testimony about Brumfield, Hurst testified to Esteves’s specific
role in the robbery. He said that Esteves told him that he drove the Tahoe
and “never got out of the car.” Hurst also testified that George, too, told him
that Esteves was the driver. Finally, Hurst testified that Esteves took him to
Esteves’s mother’s house and showed him a stack of money in a shoebox but
that Esteves didn’t say where the money came from.
While some of Hurst’s testimony was corroborated, we cannot say
that it was strongly corroborated. Wade testified that Esteves was also part of
“the circle.” Wade said that on the morning of the robbery, Ofomata,
Johnson, George, and Esteves arrived at his house to pick up firearms that
Ofomata had dropped off the night before. According to Wade, Ofomata
grabbed the bag, checked its contents, and on the way out, told Wade,
“Watch the news. We going to be straight.” Wade testified that this meant
that “something is about to happen to where he’s about to get some money.”
Wade then followed Ofomata out of the house and watched him put the duffle
bag into the back of a dark gray Tahoe and get in. Wade testified that he could
see the Tahoe’s other passengers: Esteves was in the driver’s seat, George
was in the passenger seat, and Johnson was in the backseat behind George.
But he allegedly saw Esteves through the Tahoe’s windows that were so
“heavily tinted” that “the normal person” would not have been able see
through them. Historical cell site data showed that George’s phone made
calls using cell towers near Wade’s residence and then near the Chase Bank
on the day of the robbery, but the records don’t reveal whether Esteves was
near the robbery like Brumfield was.
Eyewitness accounts and the Chase Bank’s surveillance footage
generally corroborates Wade’s testimony about the Tahoe’s passengers, but
there is no specific testimony about the Tahoe’s driver. Treaudo, the other
Loomis guard, witnessed the robbery from inside the Loomis truck and
testified that three men exited the vehicle. She said two men exited from the
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passenger side of the vehicle, but she did not remember whether the third
came from the driver’s seat. The other eyewitness, who watched the robbery
from his car, testified that he saw two men standing on the side of the Tahoe,
leaning over the door, and shooting at someone. He also saw a third man
running to get into the back seat immediately before the robbers made their
getaway.
Wade testified that later that day, Ofomata returned to Wade’s
residence and put money inside an air conditioning unit. Wade also testified
that Esteves told him that he was concerned that Brumfield was snitching to
the FBI about the robbery. King also had Esteves’s number in her phone;
Esteves’s number was in her top ten most contacted numbers. And finally, a
search warrant of Esteves’s mother’s house revealed $20,000, some of it in
shoeboxes. Although the information about the money came from Hurst,
Special Agent Elmer testified to a jail call he listened to between Esteves and
his girlfriend at the time, in which Esteves told her that he had money in
shoeboxes in his closet. But Loomis does not tally money by serial number,
so the only way for the Government to connect the money to the robbery is
by the bills’ denomination. And there was evidence suggesting that the
money may have been from Esteves’s employer, who paid him exclusively in
cash. Much of this evidence implicates Ofomata and the other robbers, rather
than Esteves.31
_____________________
31
See Wearry, 577 U.S. at 393 (dismissing evidence in a Brady analysis that only
“suggest[ed], at most, that someone in [the defendant’s] group of friends may have
committed the crime”).
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Although a close question, we conclude that Esteves has shown that
“the new evidence is sufficient to ‘undermine confidence in the verdict’”
and is thus material.32
In sum, we conclude that based on the evidence presented at trial, the
evidence was immaterial as to Brumfield, but not as to Esteves. Esteves,
however, has not satisfied all elements of his Brady claim to warrant a new
trial. The district court did not consider whether Government suppressed the
new evidence, so we remand to the district court to consider this prong in the
first instance.
B
We next consider Brumfield’s Napue claim. Although we ordinarily
review an order denying a new trial under Napue for abuse of discretion,33
Brumfield raises this issue for the first time on appeal. Brumfield argues that
he preserved his Napue claim because, in his motion for a new trial, he
asserted that Hurst falsely testified that he didn’t expect any benefit for
testifying and that AUSA McMahon knew that wasn’t true. But Brumfield
discussed the allegedly false statements only in the context of his Brady claim.
Thus, we review this issue for plain error.34
To establish a Napue violation, Brumfield must prove: “(1) [the
witness] testified falsely; (2) the government knew the testimony was false;
_____________________
32
Id. at 392 (quoting Smith, 565 U.S. at 75).
33
United States v. Stanford, 823 F.3d 814, 838 (5th Cir. 2016) (citing United States
v. Wall, 389 F.3d 457, 465 (5th Cir. 2004)).
34
United States v. Oti, 872 F.3d 678, 690, 696 n.13 (5th Cir. 2017). “[E]ven if we
were to determine that [Brumfield] preserved his challenge under Napue and were to
review his argument under an abuse of discretion standard of review, we would conclude
that he does not prevail under that standard.” Id. at 696 n.13.
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and (3) the testimony was material.”35 “Even assuming that the prosecution
presented (or failed to correct) false testimony, the critical factor is
materiality.”36 “The Supreme Court has ‘defined materiality in terms of a
“reasonable probability” of a different outcome,’ which ‘results when
nondisclosure places the case in a different light so as to undermine
confidence in the verdict.’”37
Brumfield asserts that the prosecution failed to correct allegedly false
testimony three times. As with Brumfield’s Brady claim, the evidence
concerns Hurst’s benefits from testifying—namely, his 2013 warrant for
aggravated burglary.
First, Brumfield argues that Special Agent Elmer falsely testified on
cross-examination that Hurst “[d]id not have an outstanding warrant” for
aggravated burglary when the FBI form registering Hurst as an informant
indicated he did in fact have an outstanding warrant. Second, Brumfield
argues that Hurst falsely testified that his burglary warrant was not pursued
because the victim mistook him as the perpetrator when the NOPD incident
report stated that the victim identified Hurst with “one hundred percent”
certainty. And finally, Brumfield says that Special Agent Elmer and Hurst
falsely testified that the FBI did not intervene on Hurst’s behalf after the
burglary warrant was issued when the new evidence revealed that the New
_____________________
35
United States v. Mason, 293 F.3d 826, 828 (5th Cir. 2002). Brumfield argues that
the Government violates Napue if it knew or should have known that a witness’s testimony
was false. In support of this standard, Brumfield cites to one unpublished opinion, in which
this court noted that it has granted a new trial when the government suppressed evidence
it should have known was false. See United States v. Jena, 590 F. App’x 324, 327 (5th Cir.
2014). But we need not address this argument because he has not proven that the testimony
presented was materially false.
36
Stanford, 823 F.3d at 839.
37
Id. (citation omitted) (quoting O’Keefe, 128 F.3d at 894).
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Orleans district attorney’s office asked that Hurst not be booked because he
was an informant.
As we explained in the Brady analysis, the new evidence regarding
Hurst’s warrant—and the testimony here—is immaterial in light of the
entire record. The jury heard testimony about Hurst’s warrant, including the
new evidence that precipitated the motion for a mistrial, and knew that New
Orleans chose not to book Hurst on the warrant. What’s more, even
assuming Elmer’s testimony was false, and not a result of mistake or faulty
memory,38 defense counsel elicited the testimony during cross-examination.
We have held that “when the defense elicits the alleged perjury on crossexamination, no material falsehood has occurred because the government has
not itself knowingly presented false testimony.”39
Thus, Brumfield has failed to demonstrate a Napue violation.
C
Finally, we consider Brumfield’s challenge to the legality of his
sentence. In reviewing Brumfield’s sentence, we are “limited to determining
whether [it is] ‘reasonable.’”40 Our review is bifurcated.41 “First, [we] must
_____________________
38
Special Agent Elmer testified that he thought the form was incorrect, could not
recall anything about the warrant, and believed there was no warrant. Cf. Stanford, 823 F.3d
at 841 (“In sum, although the falsehoods that Stanford alleges are based on apparent
evidentiary inconsistencies, it is questionable whether one could describe the
inconsistencies as false, let alone material.”).
39
O’Keefe, 128 F.3d at 894; see also United States v. Fields, 761 F.3d 443, 477 (5th
Cir. 2014) (“Here, the falsehood also occurred during cross-examination. As a result, the
testimony is not material.”).
40
United States v. Rhine, 637 F.3d 525, 527 (5th Cir. 2011) (quoting Gall v. United
States, 552 U.S. 38, 46 (2007)).
41
United States v. Rodriguez, 523 F.3d 519, 524–25 (5th Cir. 2008) (citing Gall, 552
U.S. at 51).
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ensure that the district court committed no significant procedural error.”42
If there is no procedural error, we review the sentence’s substantive
reasonableness for abuse of discretion.43
1
First,
procedural
reasonableness.
Procedural
reasonableness
“requires that the district court calculate the Guidelines range, consider the
[18 U.S.C.] § 3553(a) factors, and explain the sentencing decision.”44 When,
as here, the sentencing objections are preserved, we review “the district
court’s interpretation or application of the sentencing guidelines de novo, and
its factual findings for clear error.”45 “A finding of fact is not clearly
erroneous ‘[a]s long as it is plausible in light of the record read as a whole.’”46
Brumfield argues that the district court made four procedural errors
in calculating his sentence: (1) finding that he was the second getaway driver
without supporting evidence; (2) applying the murder cross-reference for
Trochez’s death, even though his death was not reasonably foreseeable;
(3) failing to apply the minor-participant downward variance when Brumfield
was only peripheral to the crime; and (4) using acquitted conduct to enhance
his sentence. We address each in turn.
_____________________
42
Id. at 525.
43
Id.
44
Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51); United States v. Douglas,
957 F.3d 602, 606 (5th Cir. 2020) (“[A] district court commits ‘significant procedural
error’ when it ‘fail[s] to calculate (or improperly calculate[es]) the Guidelines range.’”
(second and third alterations in original) (quoting Gall, 552 U.S. at 51)).
45
United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 2018) (citation omitted).
46
United States v. Betancourt, 422 F.3d 240, 245 (5th Cir. 2005) (alteration in
original) (quoting United States v. Morris, 46 F.3d 410, 419 (5th Cir. 1995)).
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a
Brumfield offers two reasons why the district court erred in finding he
was the second getaway driver. First, he argues that the district court ignored
his factual arguments in violation of Federal Rule of Criminal
Procedure 32(i)(3)(B). And second, he argues that this finding was not
supported by a preponderance of the evidence.
Under Rule 32, the district court “must—for any disputed portion of
the presentence report . . .—rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect sentencing, or because
the court will not consider the matter in sentencing.”47 We have “rejected
the proposition that a court must make a catechismic regurgitation of each
fact determined.”48 Rather, we have explained that “the district court [may]
make implicit findings by adopting the PSR.”49 Rule 32 is satisfied if “the
findings in the PSR are so clear that the reviewing court is not left to ‘secondguess’ the basis for the sentencing decision.”50
Here, the district court issued a detailed written order explaining the
reasons for overruling each of the challenged objections. It explained the
specific evidence that supported the finding that Brumfield was the getaway
driver, including testimony from Hinton and Hurst, factual basis statements
from George and Ofomata, and the fact that the PSR was corroborated by
witness testimony, cell phone records, and statements by Brumfield’s
coconspirators.
_____________________
47
Fed. R. Crim. P. 32(i)(3)(B).
48
United States v. Ramirez-Gonzalez, 840 F.3d 240, 246 (5th Cir. 2016) (internal
quotation marks and citation omitted).
49
Id.
50
Id. (quoting United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994)).
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Brumfield also argues that the district court’s finding is unsupported
by a preponderance of the evidence because (1) the eyewitness testified that
one of the robbers got into the driver’s seat of the Honda, and (2) the
evidence showed that Brumfield and Esteves were calling each other, which
means they could not have been in the Honda together. Neither proves that
the district court’s finding is clearly erroneous.
“[T]he district court need only determine its factual findings at
sentencing by a preponderance of the relevant and sufficiently reliable
evidence.”51 As to the eyewitness’s testimony, Brumfield misstates the
record. On cross-examination, the eyewitness testified that one of the coconspirators got in the car on the “driver’s side.” When asked whether the
individual was getting into the driver’s seat, the witness responded, “One of
those doors, yes, sir, on the street side of the car.” But he said that he did not
look long enough to see if anyone was sitting inside the vehicle waiting.
Consequently, the district court’s conclusion that Brumfield was the driver
is not inconsistent with eyewitness testimony.
Brumfield’s second argument fares no better. The eyewitness testified
that only two robbers got into the second getaway car, although he could not
identify them. The cell phone records showed that a phone associated with
Brumfield used a cell phone tower near the Chase Bank and Adams Street,
where the second getaway car was waiting. So the district court’s finding that
Brumfield was driving the Honda was “plausible in light of the record read
as a whole.”52
_____________________
51
Betancourt, 422 F.3d at 247 (citation omitted).
52
See id. at 245.
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Accordingly, the district court did not clearly err in finding that
Brumfield was the second getaway driver.
b
Brumfield next argues that the district court erred in applying the
murder cross-reference under § 2B3.1 of the Guidelines because Trochez’s
murder was not foreseeable from his involvement. Brumfield argues that his
conduct was outside the scope of what led to Trochez’s murder because (1) at
most Brumfield took part in the surveillance of the truck the week before the
robbery, and (2) he withdrew from the conspiracy when he was “kicked
out.”
Under § 2B3.1, the murder cross-reference applies “[i]f a victim was
killed under circumstances that would constitute murder under 18 U.S.C.
§ 1111.”53 “Co-conspirator liability under § 1B1.3 does not automatically
arise because of participation in a conspiracy.”54 Rather, “[f]or sentencing
purposes, a defendant can be liable for conduct that is (1) ‘within the scope
of the jointly undertaken criminal activity,’ (2) ‘in furtherance of that
criminal activity,’ and (3) ‘reasonably foreseeable in connection with that
criminal activity.’”55 “‘Jointly undertaken criminal activity’ is defined as ‘a
criminal plan, scheme, endeavor, or enterprise undertaken by the defendant
in concert with others, whether or not charged as a conspiracy.’”56 Whether
_____________________
53
U.S.S.G. § 2B3.1.
54
United States v. Morrow, 177 F.3d 272, 302 (5th Cir. 1999).
55
United States v. Gonzales, 841 F.3d 339, 359 (5th Cir. 2016) (quoting U.S.S.G.
§ 1B1.3(a)(1)(B)).
56
Morrow, 177 F.3d at 302.
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an action was “reasonably foreseeable” or “in furtherance” of a “jointly
undertaken criminal activity” is a fact question.57
The district court did not err in applying the murder cross-reference.
Brumfield agreed to jointly undertake the armed robbery of the Loomis truck.
The nature of a bank robbery demands the reasonable foreseeability that a
weapon would be used during the crime.58 Indeed, bank robbery “is, by its
nature, a violent crime.”59
The district court also grounded application of the murder crossreference in an example in the Guidelines that mirrors Brumfield’s
participation:
Defendant C is the getaway driver in an armed bank robbery in
which $15,000 is taken and a teller is assaulted and injured.
Defendant C is accountable for the money taken under
subsection (a)(1)(A) because he aided and abetted the act of
taking the money (the taking of money was the specific
objective of the offense he joined). Defendant C is accountable
for the injury to the teller under subsection (a)(1)(B) because
the assault on the teller was within the scope and in furtherance
of the jointly undertaken criminal activity (the robbery), and
was reasonably foreseeable in connection with that criminal
activity (given the nature of the offense).60
Replace “armed bank robbery” for “armored truck robbery” and
“assaulted” for “killed” and you have this case.
_____________________
57
Id.
58
United States v. Burton, 126 F.3d 666, 679 (5th Cir. 1997).
59
United States v. Jordan, 945 F.3d 245, 264 (5th Cir. 2019).
60
U.S.S.G. § 1B1.3 cmt. 4(B)(i).
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That Brumfield was “kicked out” of the conspiracy is irrelevant.
What matters is that he did not withdraw. To constitute a withdrawal,
Brumfield must have committed an “affirmative act to defeat, disavow or
discourage the conspiracy.”61 He “must show that he has committed
affirmative acts inconsistent with the object of the conspiracy that [were]
communicated in a manner reasonably calculated to reach conspirators.” 62
He has not done so.
Thus, the district court did not err in applying the cross-reference.
c
Brumfield next argues that the district court erred in declining to apply
a two-level minor-participant reduction under § 3B1.2(b). He contends that
he was a minor participant because he was kicked out of the conspiracy,
didn’t receive any robbery proceeds, and wasn’t heavily involved in the
planning stages. “Whether [Brumfield] was a minor or minimal participant
is a factual determination” we review for clear error.63
Section 3B1.2(b) of the Guidelines allows the court to apply a twolevel sentence reduction if the defendant “was a minor participant in any
criminal activity.”64 “[A] ‘minor participant’ is someone who is less culpable
than most participants but more culpable than a minimal participant.” 65 “A
‘minimal participant’ is someone who lacks knowledge or understanding
_____________________
61
United States v. Romans, 823 F.3d 299, 320 (5th Cir. 2016).
62
United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).
63
United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) f(citation
omitted); see also Jordan, 945 F.3d at 264 (“[W]e also review the district court’s decision
not to apply a sentencing reduction de novo on the law, but for clear error on the facts.”).
64
U.S.S.G. § 3B1.2(b).
65
United States v. Broussard, 882 F.3d 104, 111 (5th Cir. 2018).
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about the scope or structure of the enterprise.”66 This determination “is
based on the totality of the circumstances” and “is heavily dependent upon
the facts of the particular case.”67
In determining whether a defendant’s participation was “minor,” the
Guidelines instruct courts to consider: (1) the defendant’s understanding of
the “scope and structure of the criminal activity”; (2) the defendant’s
“participat[ion] in planning or organizing the criminal activity”; (3) the
defendant’s “decision-making authority or influence[]”; (4) “the nature and
extent of the defendant’s participation in the commission of the criminal
activity, including the acts the defendant performed and the responsibility
and discretion the defendant had in performing those acts”; and (5) “the
degree to which the defendant stood to benefit from the criminal activity.”68
The district court made findings on all but the third factor. Based on
the totality of the circumstances, the court could have reasonably concluded
that Brumfield understood the scope of the criminal activity. He understood
that the “armored car guards would not relinquish proceeds of the robbery
to his co-defendants in response to a ‘please’ and a ‘thank you,’” and that he
was being replaced due to concerns he would “freeze up” in the face of the
likely violence. The evidence also supports a finding that Brumfield took part
in planning and organizing the robbery; that Brumfield’s participation as the
second getaway driver facilitated the robbery by helping his co-conspirators
avoid apprehension; and that he stood to benefit financially from the robbery.
_____________________
66
Id.
67
U.S.S.G. § 3B1.2 cmt. 3(C).
68
Id.
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That Brumfield did not have decision-making authority does not change this
analysis.69
The district court did not clearly err in determining that Brumfield
was not a minor participant. A reduction based on Brumfield’s role in the
robbery was unwarranted.
d
Finally, Brumfield argues that the district court erred in relying on
acquitted conduct. But he concedes that this argument is foreclosed under
United States v. Watts.70 That concession is correct.71 Accordingly, the
district court did not err in relying on acquitted conduct.
2
We
now
turn
to
substantive
reasonableness.
Substantive
reasonableness “depends on ‘the totality of the circumstances, including the
extent of any variance from the Guidelines range.’”72 The district court
sentenced Brumfield to a sentence within the Guidelines, so his sentence is
_____________________
69
See Jordan, 945 F.3d at 265 (“As [the defendant] notes, the Government did not
provide evidence that [he] had decision-making authority. But, even without such
evidence, the other three factors support the district court’s finding that [he] was not a
minimal or minor participant.”).
70
519 U.S. 148 (1997).
71
Id. at 157 (holding that “a jury’s verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the acquitted charge, so long as that
conduct has been proved by a preponderance of the evidence”); see also United States v.
Gaspar-Felipe, 4 F.4th 330, 343 n.11 (5th Cir. 2021) (“[The defendant’s] argument that the
Constitution bars considering acquitted conduct during sentencing is foreclosed by
Supreme Court precedent. And we have repeatedly rejected his follow-up argument that
Watts is no longer good law.” (citation omitted)).
72
Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51).
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presumptively reasonable.73 Brumfield can rebut the presumption only by
“demonstrat[ing] that the sentence does not account for a factor that should
receive significant weight, gives significant weight to an irrelevant or
improper factor, or represents a clear error of judgment in balancing
sentencing factors.”74
Brumfield argues that the district court erred in sentencing him to the
statutory maximum because the court did not consider Brumfield’s
“peripheral” role in the conspiracy, gave too much weight to Brumfield’s
comment before the robbery that Trochez was “a big, fat, clumsy guy,” and
improperly weighed the sentencing factors by sentencing Brumfield to a
sentence that was twice Esteves’s for the same count. None have merit.
First, as explained above, the district court did not err in rejecting
Brumfield’s argument that he was a minor participant in the conspiracy. His
argument fares no better here. Second, the district court did not unduly rely
on Brumfield’s comment about Trochez before the robbery. Rather, it
mentioned the comment as one of the many reasons it did not believe that
Brumfield was remorseful. True, Brumfield was sentenced to more time than
Esteves on the conspiracy count; Esteves received 120 months and Brumfield
received 240. But in total, Esteves was sentenced to 600 months (for all three
counts), while Brumfield was sentenced to 240 months. Disagreement with
how the district court weighed the various sentencing factors cannot rebut a
presumption of unreasonableness.75
_____________________
73
Gaspar-Felipe, 4 F.4th at 344.
74
United States v. Willis, 76 F.4th 467, 477 (5th Cir. 2023) (quoting United States
v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017)).
75
See United States v. Camero-Renobato, 670 F.3d 633, 636 (5th Cir. 2012).
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Brumfield has not rebutted the presumption that his sentence was
reasonable. We find no error.
III
In sum, Brumfield is not entitled to a new trial. Brumfield’s Brady
claim fails because the new evidence was not material as to him. His Napue
claim fails because he has not shown that the Government presented
materially false testimony. And his challenge to his sentence fails because the
district court did not procedurally or substantively err in sentencing him.
But Esteves’s claim warrants further consideration. We conclude that
the undisclosed evidence was material as to him, so the district court must
consider whether he has satisfied the other elements of his claim.
We therefore AFFIRM IN PART, REVERSE IN PART, and
REMAND to the district court for further consideration of Esteves’s Brady
claim.
28
Appendix B
Case: 22-30238
Document: 261-1
Page: 1
Date Filed: 02/20/2024
United States Court of Appeals
for the Fifth Circuit
No. 22-30238
United States of America,
Plaintiff—Appellee,
versus
Robert Brumfield, III,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CR-201-5
ON PETITION FOR REHEARING
Before Clement, Elrod, and Willett, Circuit Judges.
Per Curiam:
IT IS ORDERED that the petition for panel rehearing is DENIED.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.