United States v. Darryle Cooper

• Court: Court of Appeals for the Sixth Circuit
• Decided: December 17, 2024
• Docket: 24-5052
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0526n.06

Case No. 24-5052

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Dec 17, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN DARRYLE COOPER, ) DISTRICT OF KENTUCKY Defendant-Appellant. ) ) OPINION

Before: BOGGS, GIBBONS, and NALBANDIAN, Circuit Judges NALBANDIAN, Circuit Judge. Darryle Cooper was part of a drug-trafficking operation

that moved kilos of heroin across the country. Law enforcement arrested Cooper after a heroin

delivery in April 2015. A federal jury convicted him in 2018. Cooper moved for a new trial,

alleging that the prosecution did not disclose exculpatory cellphone-location data that placed him

several miles away from the heroin delivery. The trial court at first granted the motion. But then

the prosecution realized the data was in Central Time rather than Eastern Time undermining the

exculpatory nature of the suppressed data. On reconsideration, the trial court agreed with the

government and found that the evidence was in fact not material to Cooper’s guilt or innocence.

Cooper now appeals. Because we agree that the evidence was not material, we AFFIRM.

I.

The Drug Enforcement Administration (DEA) and Louisville Metro Police Task Force

officers began investigating a narcotics trafficker known as “Boonie” in November 2014. Law No. 24-5052, United States v. Cooper

enforcement had received a tip that Boonie was moving heroin from Los Angeles to Louisville.

They believed that he used several stash houses in Louisville, including a home on Commander

Drive and an apartment on Second Street. Officers searched the trash outside the Commander

Drive house and uncovered an energy bill with Cooper’s name on it. From there, they found his

phone number in a database and obtained a search warrant to receive near real-time, precise

location information from the phone company. The phone generated a “ping” every fifteen

minutes documenting its GPS location, which the phone company sent to law enforcement. The

location of the ping could be within nine feet of the phone’s actual location.

On March 31, 2015, Cooper’s phone pinged in Los Angeles. The phone then traveled to

Indianapolis and then to the Commander Drive house. On April 2, officers intercepted a call from

another suspect involved in the operation saying that drugs would be available for pickup in

Louisville the next day. Officers used cameras outside the Commander Drive house and the

Second Street apartment to follow, what the government alleges, was the drug delivery on April 2.

At 1:44 p.m., cameras showed a black Toyota Corolla rented in Cooper’s name leaving

Commander Drive. And at 1:57 p.m., cameras showed the car arriving at the Second Street

apartment. According to testimony at trial, Google Maps estimates the two residences are a 12-

minute drive apart. The camera then showed another suspect, Ronald Williams, approaching

Cooper’s rental car and removing a duffle bag from the trunk. The camera did not capture the

identity of the driver of Cooper’s rental car.

On April 3, law enforcement executed a search warrant at the Commander Drive house.

Cooper was the only person there, and no drugs were found. Instead, the officers found a safe with

roughly $276,000 in cash, an alleged drug ledger, a digital money counter, a paper shredder, a

vacuum sealer, axle grease, saran wrap, and two firearms.

2 No. 24-5052, United States v. Cooper

During the search, officers watching the cameras at the Second Street apartment saw

Williams arrive there. Hoping he had the drugs, several officers went to apprehend him. Sure

enough, the officers saw him walk out of the apartment with the same duffel bag from the day

before and put it into another car. The officers conducted a traffic stop on that car and recovered

the bag with four kilos of heroin inside. Based on this evidence, a grand jury indicted Cooper on

three counts: (1) conspiracy to possess and distribute heroin, in violation of 21 U.S.C. § 846;

(2) possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); and (3)

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A).

Prior to trial, Cooper asked the government for “detailed disclosure of the circumstances

surrounding the use of any electronic surveillance in association with this case.” R.456, Def.’s

Resp. to Ct. Order on Mot. for New Trial, p.3, PageID 2639. The government did not turn over

the ping data from the cellphone company. But it did provide the search warrant for the cellphone

data and a DEA report describing the data.

At trial, the government relied on three core types of evidence: (1) surveillance-camera

photos from the Commander Drive house and the Second Street apartment, (2) testimony from

officers involved in the investigation who explained the phone ping data, and (3) testimony from

multiple co-defendants connected to Cooper and the drug-trafficking organization. The

government used the phone ping data to track Cooper’s travel from Los Angeles to Louisville but

not for the drug delivery itself. For that, the government used co-defendant testimony outlining

Cooper’s involvement in the deal and surveillance photos depicting Cooper’s rental car moving

between the Commander Drive house and the Second Street apartment. During cross-examination

3 No. 24-5052, United States v. Cooper

of one of the officers, Cooper’s counsel asked for the cellphone ping data.1 But Cooper’s counsel

withdrew the request the next day because the government told him it had only the raw data. So

it would appear as “sheets of numbers” that “would be indiscernible . . . in the format that [the

government had] them.” R.396, Trial Tr., p.5, PageID 2116.

The government also presented testimony from multiple co-defendants connected to

Cooper and the drug delivery. First, the jury heard from Ebony Burrus. Burrus was dating

Boonie—the ringleader of the drug-trafficking operation. She knew Cooper by the nickname

Kong and said she often saw him at the Commander Drive house. She went to the house with

Boonie so that he and Cooper could count and seal money earned from drug sales. Next, Williams

testified. He admitted dealing heroin and claimed Boonie was his supplier. He admitted that, on

the day before the search, he got four kilos of heroin from Cooper and placed it the car where the

officers found it.

Lastly, Boonie testified. His real name is Marlin Polk. He outlined Cooper’s role in the

drug operation. Cooper would get the drugs from a source and give them to Polk for further

distribution. Polk described the Commander Drive house as a safe house where he and Cooper

would count, vacuum seal, and keep money from their business. Cooper would then ensure the

money got to their suppliers. Finally, Polk testified that Cooper met him in California about a

week before DEA seized the drugs. They discussed the deal, and Cooper agreed to help transport

the drugs to Louisville.

1 It is unclear whether Cooper’s counsel asked for the tracking information for Cooper’s phone or another phone. Cooper’s phone used a 470 area code. Officers were also tracking a 909 area code not associated with Cooper. This distinction was made clear on the second day of trial. But on the first day, Cooper’s counsel seemed to ask the officer for the tracking data relating to this other, 909 number rather than Cooper’s number. The trial court found it likely that counsel was seeking the number connected to Cooper because the request followed a discussion of the person using the Commander Drive house. 4 No. 24-5052, United States v. Cooper

Cooper’s counsel sought to impeach the credibility of all three witnesses by highlighting

their plea deals with the government, in which they received lenient sentences in exchange for

their testimony against Cooper. Cooper also testified. He denied being part of the heroin operation

and claimed that no drug activity occurred at the Commander Drive house while he was renting it.

He admitted that the items seized in the house were his, except for one gun. But he claimed to use

them for reasons unrelated to drug activity. He also denied participating in the April 2 heroin

delivery. He said the rental car was his but that he neither drove to the Second Street apartment to

meet Williams nor saw the duffel bag with the heroin.

The jury convicted Cooper of all three counts and the trial court sentenced him to 180

months of imprisonment, followed by five years of supervised release. Cooper moved for post-

trial discovery to compel the government to turn over the cellphone ping data. The government

voluntarily provided the information.2

And Cooper appealed. United States v. Cooper, 838 F. App’x 976 (6th Cir. 2021). Among

other things, he raised a Brady claim, arguing that the government failed to disclose cellphone ping

data and video footage from the Second Street apartment camera. Id. at 979. This court affirmed,

finding that, although the government eventually gave Cooper this data, Cooper never moved for

a new trial and never made this evidence part of the record in the district court. Id. So we could

not evaluate the claim. Id.

Cooper then went back to the district court and moved for a new trial based on newly

discovered evidence. In the motion, Cooper focused on the undisclosed ping data. He argued the

data showed he was never at the Second Street apartment on the day of the alleged heroin delivery.

2 It’s unclear why the government told Cooper’s counsel during trial that it couldn’t provide usable ping data, but then decided that it could after trial. 5 No. 24-5052, United States v. Cooper

Cooper claimed that the data showed he was roughly 6.5 to 7.5 miles from the apartment at the

time the government claimed he was there. The government responded that the evidence was not

new, not material, and unlikely to produce an acquittal.

The trial court disagreed. It found that the government violated its Brady obligations by

suppressing the ping data, the data was exculpatory, and that it was material because it proved

Cooper did not participate in the delivery. Also, the only evidence placing Cooper at the delivery

site was the testimony of the other defendants, who had bias and credibility issues. So the court

granted Cooper’s motion for a new trial.

But then the government noticed something: the ping data was in Central Time, not Eastern

Time as everyone had assumed. So the data did not place Cooper miles away from the apartment

at the time of the heroin delivery. It does not say he was anywhere at that time because the network

could not locate his phone, possibly because it was turned off. Given this new information, the

trial court reconsidered its grant of a new trial. This time, the judge denied Cooper a new trial

because the data was not material, even though the court still found the government improperly

suppressed the data, and it favored Cooper. It concluded that the abundance of evidence against

Cooper, and the likely explanation that he turned his phone off during the delivery to evade

detection, meant there was no reasonable probability that the jury would have seen the charges in

a different light if it heard about the ping data. Cooper appealed.

II.

Generally, we review a district court’s decision to deny a new trial for an abuse of

discretion. United States v. Dado, 759 F.3d 550, 559 (6th Cir. 2014). “The district court abuses

its discretion when it relies on clearly erroneous findings of fact, uses an erroneous legal standard,

or improperly applies the law.” Id. (internal quotation marks omitted). But when the new trial

6 No. 24-5052, United States v. Cooper

motion is based on a Brady violation, we review the court’s determination about the existence of

a Brady violation de novo. Id. Said differently, “we give considerable deference to the district

court’s factual findings and factual conclusions, but we review de novo the district court’s

conclusions about the legal significance of those findings.” Id.

A.

Cooper argues that he is entitled to a new trial because the government suppressed evidence

that would lead to his acquittal. In Brady v. Maryland, the Supreme Court held that the prosecution

violates a defendant’s due-process rights when it suppresses evidence favorable to the accused and

the evidence is material to either guilt or punishment. 373 U.S. 83, 87 (1963). We have since

clarified the three elements of a Brady violation: (1) the government suppressed evidence; (2) the

evidence favored the defense; and (3) the evidence was material. Dado, 759 F.3d at 559–60. The

defendant bears the burden of proving all three. Id. at 559.

Cooper argues that (1) the government suppressed the cellphone ping data from April 2,

2015, the day of the heroin delivery, (2) this data favored him because it shows a lack of support

for the government’s allegation that he participated in the delivery, and (3) the evidence is material

because it directly contradicts the testimony that he was at the Second Street apartment during the

delivery. Appellant Br. at 23–24. Even if Cooper met the first two elements of the Brady test, we

agree with the district court that Cooper’s claim fails because the evidence was not material.

The favorability requirement is distinct from materiality. Just because the prosecution

suppressed evidence favorable to the defendant does not mean that the evidence would have led

the jury to a different result. See Hughbanks v. Hudson, 2 F.4th 527, 542 (6th Cir. 2021). Rather,

evidence is material “only if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceedings would have been different.” Dado, 759 F.3d at 560

7 No. 24-5052, United States v. Cooper

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)); see also Kyles v. Whitley, 514 U.S.

419, 434 (1995) (holding that the “touchstone of materiality is a ‘reasonable probability’ of a

different result”).

We have explained that suppressed evidence is not material when it “falls short of

mounting a plausible counter-narrative.” Hughbanks, 2 F.4th at 542. Even if suppressed evidence

may help the defense “craft a story suggesting that another person committed the crime,” it still

may not be material. Id. If the defendant “would not have been able to produce a name or

description of an alternate suspect that any undisclosed evidence could corroborate,” the evidence

is not material. Id. This is especially the case when “key parts of the suppressed evidence support

the State’s theory rather than undermine it.” Id. At bottom, if the evidence has a “relatively weak

exculpatory” effect, it will not “put the whole case in such a different light as to undermine

confidence in the verdict.” Id. (internal quotation marks omitted).

To start, Cooper asserts the data would undermine confidence in the verdict––and is

therefore material––because it “directly contradict[s]” the government’s testimony that he took

part in the April 2 heroin delivery. Appellant Br. at 24. But he relies on the incorrect premise that

the “tracking data would prove that he was not at the Second Street apartment on April 2nd during

the alleged drug deal.” Id. at 23. This might have been true if, as the district court mistakenly

believed, the data was in Eastern Time. But because the data was in Central Time that is not the

case. Cameras at the Second Street apartment showed that the heroin delivery occurred at roughly

1:57 p.m. Eastern Time. Originally, the ping data seemed to show Cooper was miles away from

the scene of the delivery at that time. But really, it showed that he was miles away from the scene

at roughly 1:57 p.m. Central Time, which is 2:57 p.m. Eastern Time. During the actual time of the

delivery, an hour earlier, the network could not locate Cooper’s phone. So there is no ping data to

8 No. 24-5052, United States v. Cooper

prove that he was either at the Second Street apartment or somewhere else. The data proves

nothing about where Cooper was during the alleged deal.

Because the data proves nothing about Cooper’s location during the deal, it does nothing

to improve the arguments he already made at trial. The data (or more precisely the lack of data)

may have allowed Cooper to craft a story suggesting that another person delivered the drugs. But

that is the exact argument Cooper already made at trial. On the stand, he admitted that the rental

car seen at the delivery site was his but claimed that he did not drive it to the Second Street

apartment to meet Williams and deliver the duffel bag with heroin. The ping data would not have

improved this argument because it says nothing about where Cooper was at the time of the delivery

and it offers no alternative of who could have been delivering the heroin. Ultimately, it “falls short

of mounting a plausible counter-narrative.” Hughbanks, 2 F.4th at 542. If anything, “key parts of

the suppressed evidence support the [government’s] theory rather than undermine it” because the

government could argue that Cooper turned his phone off to evade detection during the delivery.

See id.

The tracking data also does nothing to counter the other, significant evidence against

Cooper. Burrus and Williams testified to Cooper’s active involvement in the heroin operation and

the April 2 delivery. Polk (Boonie) also testified to Cooper’s role in the planning and execution

of the April 2 deal. Cooper hints that because Williams is the only witness to directly place him

at the scene of the delivery, and because Williams has credibility issues, the suppressed evidence

could have swayed the jury against believing Williams’s testimony. Appellant Br. at 24. But

again, the fact that Cooper’s location was unknown at the time of the delivery does little to

undermine Williams’s and the other two defendants’ testimony, particularly since much of that

testimony reflects Cooper’s larger role in the drug operation in addition to his participation in the

9 No. 24-5052, United States v. Cooper

April 2 delivery. So given the “relatively weak exculpatory nature” of the cellphone data, we do

not think it “put[s] the whole case in such a different light as to undermine confidence in the

verdict.” See Hughbanks, 2 F.4th at 542 (internal quotation marks omitted).

Because Cooper has failed to show that the suppressed evidence was material, the

prosecution did not violate Brady. And because there was no Brady violation, the district court

did not abuse its discretion in denying Cooper’s motion for a new trial.

III.

Because Cooper is not entitled to a new trial, we affirm.