USA v. Robert Earl Winston

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APRIL 2, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 07-14633
Non-Argument Calendar
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D. C. Docket No. 06-00067-CR-T-27-MSS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT EARL WINSTON,
a.k.a. Pumpkin,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 2, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:

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Robert Earl Winston appeals his convictions for (1) aiding and abetting
another who murdered Haines City Police Officer Chistopher Todd Horner with
the intent to prevent Officer Horner from communicating to law enforcement or a
judge information related to the commission of a federal offense, in violation of 18
U.S.C. §§ 1512(a)(1)(C) and (a)(3)(A), 1111, and 2; and (2) aiding and abetting
another who knowingly used and carried a firearm during and in relation to a crime
of violence, and, in the course thereof, murdered Officer Horner, in violation of 18
U.S.C. §§ 924(c)(1)(A) and (j)(1), 1111, and 2. Winston raises two arguments on
appeal, which we address in turn.
I.
Winston first contends the Government violated Brady v. Maryland, 83 S.
Ct. 1194 (1963), when it failed to disclose a tacit agreement in which the
Government agreed to seek a reduction to a witness’s sentence in exchange for his
testimony. We review de novo a district court’s conclusion that there was no
Brady violation. United States v. Mejia, 82 F.3d 1032, 1036 (11th Cir.1996).
Under Brady, “the prosecution is required to disclose to the defense
evidence favorable to the accused if the evidence is material to guilt or
punishment.” United States v. Starrett, 55 F.3d 1525, 1555 (11th Cir. 1995). “The
United States Supreme Court has held that ‘[i]mpeachment evidence, . . . as well as
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exculpatory evidence, falls within the Brady rule.’” Starrett, 55 F.3d at 1555
(alteration in original) (quoting United States v. Bagley, 105 S. Ct. 3375, 3380,
(1985)). Thus, “[t]he government has a duty to disclose evidence of any
understanding or agreement as to prosecution of a key government witness.”
Brown v. Wainwright, 785 F.2d 1457, 1464 (11th Cir. 1986). The reason for such
disclosure is “to ensure that the jury knows the facts that might motivate a witness
in giving testimony.” Id. at 1465 (quotation omitted).
Winston has failed to demonstrate the existence of an agreement, tacit or
otherwise, between the Government and its witness that was not disclosed to the
jury before or during Winston’s trial. Although the witness ultimately received
favorable treatment from the Government, “it is not the case that, if the
government chooses to provide assistance to a witness following a trial, a court
must necessarily infer a preexisting deal subject to disclosure under Brady.” Bell
v. Bell, 512 F.3d 223, 234 (6th Cir. 2008). Because Winston has failed to show the
Government suppressed an agreement with the witness, he cannot establish a
Brady violation.
II.
Winston next asserts the district court erred by allowing a medical examiner
to testify based on the forensic reports of another examiner in violation of the Sixth
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Amendment and the Supreme Court’s intervening decision in Melendez-Diaz v.
Massachusetts, 129 S. Ct. 2527 (2009). When the defendant fails to object to an
alleged violation of the Confrontation Clause at trial, we review the alleged
violation only for plain error. United States v. Brazel, 102 F.3d 1120, 1141 (11th
Cir. 1997). We review for plain error even when the “error arises only because of
a later Supreme Court decision.” United States v. Fern, 155 F.3d 1318, 1327 (11th
Cir. 1998). In order for an error to be plain, it must be “clear under current law,”
United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000) (quotation
omitted), though “it is enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson v. United States, 117 S. Ct. 1544, 1549 (1997). “[W]here
neither the Supreme Court nor this Court has ever resolved an issue, and other
circuits are split on it, there can be no plain error in regard to that issue.”
Aguillard, 217 F.3d at 1321.
The Confrontation Clause of the Sixth Amendment provides a defendant in a
criminal trial with the right to confront and cross-examine the witnesses against
him. U.S. Const. amend. VI. In Crawford v. Washington, the Supreme Court held
that a defendant’s Sixth Amendment right of confrontation is violated by the
admission of testimonial statements of a witness who was not subject to
cross-examination at trial, unless the witness was unavailable to testify and the
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defendant had a prior opportunity for cross-examination. 124 S. Ct. 1354, 1374,
(2004). While Winston’s appeal was pending, the Supreme Court held in
Melendez-Diaz that reports admitted at trial regarding the results of certain forensic
analyses constituted testimonial statements. 129 S. Ct. at 2531–32. The Court
concluded the Confrontation Clause applied because the forensic reports were
made under oath for the purpose of establishing a fact and “under circumstances
which would lead an objective witness reasonably to believe that [they] would be
available for use at a later trial.” Id. (quoting Crawford, 124 S. Ct. at 1354).
Although Melendez-Diaz discusses when a forensic opinion may be admitted
into evidence, neither it nor any opinion of this Court addresses whether an expert
witness’s testimony that is based on a forensic opinion prepared by a non-testifying
expert, in addition to other evidence, violates a defendant’s right to confrontation.
We have held that, pursuant to Federal Rule of Evidence 703, an expert witness
may base his testimony on inadmissible information so long as such information is
“regularly relied upon by experts in his field.” See United States v. Steed, 548 F.3d
961, 975 (11th Cir. 2008). As the Seventh Circuit stated in United States v.
Turner, 591 F.3d 928, 934 (7th Cir. 2010), “Melendez-Diaz did not do away with
Federal Rule of Evidence 703.”
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The Supreme Court’s decision in Melendez-Diaz did not address the facts
that may form the basis of expert testimony, and therefore that decision neither
controls the instant case nor demonstrates plain error.
III.
The district court did not err by finding Winston failed to establish a Brady
violation when he identified no evidence of an agreement between the Government
and its witness that was not disclosed to the jury. Further, the district court did not
plainly err by admitting the testimony of an expert witness who relied in part on
another expert’s forensic report. Accordingly, we affirm Winston’s conviction.
AFFIRMED.
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