Government Failure to Turn Over Witness’s Changed Statement Was Not Material for Brady Purposes

US v. George: George was the passenger in a white SUV driven by his cousin, Frazier, that was stopped after police got information about a convenience store theft after which the four perpetrators left in a white SUV. A loaded magazine was found under a seat cover on George’s seat and a firearm was recovered from between his seat and the door. George was charged with being a felon in possession of a firearm and ammunition. Frazier, in statements provided in discovery, said the other two passengers were “Kate” and an unnamed man, who had both been dropped off prior to the stop. Prior to trial, Frazier changed his story and told investigators that the other two passengers were his and George’s cousins.

George learned of the change in Frazier’s testimony when he testified at trial (during which he also said he’d seen George with a firearm and that George had a reputation for carrying firearms). After Frazier was vigorously cross examined about his changed story, George called the investigating officer to testify (he had not testified during the Government’s case) and learned about Frazier’s later statement that had not been disclosed in discovery. The jury, utilizing a special verdict form, specifically convicted George of both being a felon in possession of a firearm and ammunition. The district court denied George’s post-trial motion for a mistrial and dismissal under Brady. He was sentenced to 33 months in prison.

On appeal, the Fourth Circuit affirmed George’s conviction and sentence. The court rejected the Government’s argument that Frazier’s later statement had not actually been withheld because George learned about it at trial. Instead, the court focused on whether the statement was material to the defense, ultimately concluding that it was not. The court noted that when the withheld information is useful for impeachment purposes its materiality can turn on whether the witness in question was effectively cross examined at trial, which is what happened here – “because the jury knew about the inconsistent statement and Frazier was impeached by it, we find it difficult to imagine how an earlier disclosure would have materially altered the course of the trial.”  The court also noted that even if the statement was material to the issue of George’s possession of the firearm, it was not to the issue of his possession of the ammunition, given that he was sitting on it.