United States v. Edwards

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 3, 2006
• Docket: 04-31210
• Status: Published

Opinion

United States Court of Appeals Fifth Circuit F I L E D REVISED MARCH 30, 2006 March 1, 2006 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk __________________

04-31210 __________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

EDWIN EDWARDS

Defendant - Appellant

__________________

04-31212 __________________

ANDREW MARTIN

___________________

04-31219 ___________________

STEPHEN EDWARDS

Defendant - Appellant Appeals from the United States District Court for the Middle District of Louisiana, Baton Rouge

Before KING, BARKSDALE and PRADO, Circuit Judges.

KING, Circuit Judge:

In this consolidated appeal, appellants Edwin Edwards,

Stephen Edwards, and Andrew Martin challenge the district court’s

denial of their motions to vacate their sentences pursuant to 28

U.S.C. § 2255 and the district court’s denial of an evidentiary

hearing to determine whether the government withheld exculpatory

evidence during their criminal trial in violation of Brady v.

Maryland, 373 U.S. 83 (1963). They also appeal the district

court’s denial of their motions for leave to amend their § 2255

motions after the one-year statute of limitations had expired to

add a constitutional claim in light of United States v. Booker,

543 U.S. 220 (2005). For the reasons stated below, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Criminal Proceedings

Four-term Louisiana Governor Edwin Edwards, his son Stephen

Edwards, and his executive assistant Andrew Martin (collectively,

“Appellants”), along with several of their associates, were

indicted on thirty-four federal counts by superseding indictments

on August 4, 1999, for their roles in a number of illegal

activities designed to profit from awarding riverboat gambling

-2- licenses while Edwin Edwards was governor. The superseding

indictments alleged that Appellants had conspired in five

separate “schemes” to extort money from individuals who had

applied to the Louisiana Riverboat Gaming Commission for a

limited number of licenses to operate riverboat casinos along

Louisiana’s Gulf Coast and Lake Charles. In exchange for cash

bribes, Appellants promised to use Governor Edwards’s influence

with the Riverboat Gaming Commission to help applicants obtain

preliminary approval for the riverboat gambling licenses they

sought; for those applicants who refused to pay, Appellants

threatened to make obtaining a license impossible. Appellants

then attempted to launder the extorted money to cover up their

criminal activities. At their arraignments on August 24, 1999,

Appellants entered pleas of not guilty.

On May 9, 2000, after a four-month trial in the United

States District Court for the Middle District of Louisiana, the

jury returned its verdict. Appellants were convicted of, inter

alia, violating the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), RICO conspiracy, extortion,

conspiracy to commit extortion, wire and mail fraud, conspiracy

to commit wire and mail fraud, and conspiracy to commit money

laundering.

On January 8, 2001, Appellants were sentenced under the

United States Sentencing Guidelines. Governor Edwards was

sentenced to 120 months and Stephen Edwards was sentenced to 84

-3- months, and they were fined $250,000 and $60,000, respectively.

Andrew Martin received 68 months and a $50,000 fine. A

forfeiture order in the amount of $1.8 million was entered

against each appellant. While all three sentences were within

the Guidelines, they included enhancements for the amount of

intended loss, and Governor Edwards’s and Stephen Edwards’s

sentences also included enhancements for their roles in the

offenses.

Appellants appealed their convictions and sentences to this

court, which affirmed the district court’s judgment on August 23,

2002. United States v. Edwards, 303 F.3d 606, 647 (5th Cir.

2002). This court subsequently denied Appellants’ petition for

rehearing en banc. United States v. Edwards, 51 F. App’x 485

(5th Cir. 2002). On February 24, 2003, the Supreme Court denied

Governor and Stephen Edwards’s petition for writ of certiorari.

Edwards v. United States, 537 U.S. 1192 (2003). The Court denied

Andrew Martin’s petition for writ of certiorari on March 3, 2003.

Martin v. United States, 537 U.S. 1240 (2003).

B. Post-Conviction Proceedings

1. Section 2255 Proceedings

On February 18, 2004, Appellants timely filed in the United

States District Court for the Middle District of Louisiana cross-

incorporated post-conviction motions to vacate their sentences

under 28 U.S.C. § 2255, alleging six separate grounds for relief

-4- and requesting an evidentiary hearing. Two of these grounds,

which are now before this court on appeal, alleged that during

Appellants’ trial the government withheld impeachment evidence

relating to two of its key witnesses, Robert Guidry and John

Brotherton, in violation of Appellants’ due process rights under

Brady, 373 U.S. 83.

a) Robert Guidry’s Plea Agreement

In their § 2255 motions, Appellants asserted that the

government violated their due process rights under Brady when it

concealed information regarding the plea agreement of Louisiana

businessman Robert Guidry, a government witness who had testified

against Appellants pursuant to a grant of immunity. Appellants

further maintained that Guidry gave false testimony concerning

the scope of his plea agreement and that the government failed to

correct it in violation of Napue v. Illinois, 360 U.S. 264, 270

(1959).

Appellants asserted that at their trial, the government

relied heavily on Guidry’s testimony to convict Appellants on

counts related to the so-called “Treasure Chest Scheme.” Guidry,

the owner of the Treasure Chest Riverboat Casino, testified that

in 1994 he had agreed to pay Appellants $100,000 per month in

exchange for a license hearing before the Riverboat Gaming

Commission. Guidry received a license and, after Governor

Edwards left office in 1996, began making the monthly cash

-5- payments of $100,000. Guidry testified that between February

1996 and April 1997 he paid a total of $1.4-$1.5 million to

Appellants.

Guidry gave this testimony in exchange for immunity from

further prosecution pursuant to a written plea agreement with the

federal government. Per the agreement, at his October 16, 1998,

arraignment, Guidry pleaded guilty to one count of conspiracy to

commit extortion related to the “Treasure Chest Scheme” in the

United States District Court for the Middle District of

Louisiana. The agreement also required that he forfeit $3

million and pay $250,000 in restitution and $250,000 in fines,

capping his total financial liability to the federal government

at $3.5 million.1 In addition, Guidry received state immunity in

an October 15, 1998, letter to Eddie Jordan, the United States

Attorney for the Eastern District of Louisiana, signed by East

Baton Rouge Parish District Attorney Doug Moreau. In this

letter, Moreau promised that he would “defer to federal

prosecution in the matter [and] grant [Guidry] immunity for

crimes he may have committed concerning the Louisiana Riverboat

Gaming Industry and specifically the Treasure Chest riverboat

casino.” Def. § 2255 Exh. tab 2. Guidry’s plea agreement

1 Under the terms of the plea agreement, Guidry was to pay the $250,000 in restitution to be distributed by the court at sentencing to parties who could show that they suffered damages as a result of Guidry’s conduct. See Def. § 2255 Exh. tab 1 at 2.

-6- specified that “the statements set forth above represent the

entire agreement with the government, any prior oral discussions

or written letters do not affect this agreement.” Def. § 2255

Exh. tab 1 at 4. The government produced Guidry’s written plea

agreement and the Moreau letter to Appellants prior to the

beginning of Appellants’ criminal trial.

On October 7, 1999, the Louisiana Attorney General, on

behalf of the state of Louisiana, filed a civil suit in state

court against Guidry. The state sought damages arising from

Guidry’s illegal dealings with Appellants, including all of the

profits resulting from Guidry’s breach of fiduciary duty and the

value of his gaming license. Shortly before the beginning of

Appellants’ criminal trial, the district court stayed the state

action against Guidry pending the outcome of Appellants’ trial.

During Appellants’ trial, Guidry testified that, although his

financial liability to the federal government was capped at $3.5

million, his overall financial exposure was possibly much greater

because he had “two or three lawsuits that’s [sic] pending

against all this money.” 120 R. at 214. After Appellants’ trial

and convictions, Guidry was sentenced in federal court consistent

with his plea agreement on January 17, 2001.2

2 At the sentencing hearing, the state of Louisiana sought a restitution award out of the $250,000 that Guidry had paid to the court pursuant to his plea agreement, arguing a breach of fiduciary duty theory similar to the theory of recovery articulated in Louisiana’s state court suit pending against Guidry at the time.

-7- Soon thereafter, the state of Louisiana proceeded with its

civil suit against Guidry. In support of his motion for a

preliminary injunction, Guidry’s defense attorneys argued that

the immunity provisions set forth in the Moreau letter should be

construed under Louisiana law to include immunity from state

civil suit for money damages as well as from state criminal

prosecution. At a June 26, 2003, hearing on the motion, Guidry’s

attorneys attempted to elicit testimony from the federal and

state prosecutors involved in the plea agreement to support this

civil immunity theory. The state court judge denied the

preliminary injunction on the ground that, given the testimony

from the hearing, “there was simply no meeting of the minds”

regarding an agreement to extend civil immunity to Guidry. Def.

§ 2255 Exh. tab 16 at 5.

Despite the state court’s finding, Appellants, citing newly

discovered evidence of a Brady violation, built on Guidry’s civil

immunity theory a year later during their § 2255 proceedings.

They argued that Guidry’s plea agreement went beyond the contents

of the written agreement and the Moreau letter because Guidry had

also entered into an unwritten, undisclosed deal with federal

prosecutors and the state of Louisiana immunizing Guidry from

financial liability to the state arising from crimes he may have

committed in connection with the Treasure Chest Casino.

Appellants further suggested that a federal judge approved this

separate agreement at Guidry’s 1998 arraignment in a secret, off-

-8- the-record chambers conference with Guidry, his lawyers, and the

prosecutors.

b) John Brotherton’s Book Deal

In their § 2255 motions, Governor and Stephen Edwards (“the

Edwardses”)3 also contended that the government violated their

due process rights under Brady when it failed to disclose that,

during the trial, cooperating witness John Brotherton had been

writing a book about his role in the Edwards case. The Edwardses

asserted that Brotherton, a Vice President for the Players Casino

Company who testified pursuant to a grant of immunity, was a

crucial witness in the government’s “Players Scheme” case because

he and Richard Shetler, an Edwards family friend and paid

consultant for Players, were the only two witnesses to testify to

extortion connected with the Players Casino.

The Edwardses argued that the government’s failure to

disclose that Brotherton was writing a book deprived them of

impeachment evidence concerning Brotherton’s purported financial

stake in the outcome of the trial. Moreover, the Edwardses

contended that the contents of the book revealed further

exculpatory evidence that the government had failed to disclose

in violation of Brady, including the existence of tape recordings

3 Appellant Andrew Martin was not named in the “Players Scheme” counts of the indictment and thus was not found guilty of the related racketeering counts that Brotherton’s testimony addressed.

-9- obtained from a wiretap of an undercover informant.

c) The District Court’s Ruling

The district court denied Appellants’ § 2255 motions and

their request for an evidentiary hearing on November 3, 2004.

The court found that there was no evidence that the government

had concealed the extent of Guidry’s financial immunity in

violation of Appellants’ due process rights because (1) Guidry

testified extensively on cross-examination about the terms of his

plea agreement, including the limitations on his federal

forfeiture, his understanding of his immunity deal with the state

of Louisiana, and his plea agreement’s relationship to the

pending collateral civil suits; (2) Appellants were able to

impeach Guidry effectively on the financial liability limitation

contained in his written plea agreement, and even if the

government had disclosed its purported belief that the state

lawsuit against Guidry was barred because of his financial

immunity deal, such information “would have been at best,

cumulative,” and at worst, “not material”; and (3) Appellants’

“argument that the plea agreement contained an undisclosed (and

unwritten) clause which barred the State from seeking monetary

damages from Guidry is speculative and unsupported” by the

evidence. Ruling on Petitioner’s Motion to Vacate, Set Aside, or

Correct Sentence, No. 98-165-C, at 7-9 (Nov. 3, 2004)

[hereinafter “Dist. Ct. § 2255 Ruling”]. Because the court found

-10- no evidence of an undisclosed financial immunity deal, it also

rejected Appellants’ contention that Guidry gave false testimony

at trial that the government failed to correct.

Likewise, the district court rejected Appellants’ assertion

that the government’s failure to disclose John Brotherton’s book

deal violated Appellants’ due process rights under Brady.

Because “Brady requires that materiality be determined in light

of all evidence at trial,” the court examined the totality of the

evidence supporting the convictions for the “Players Scheme.”

Id. at 28-29. The court found that ample evidence besides

Brotherton’s testimony supported the convictions, and “[i]t is

rank speculation to conclude that, compared with this

incriminating evidence, any marginally more impeaching evidence

concerning Brotherton could have created in the jurors’ minds

reasonable doubt as to the [Appellants’] guilt.” Id. at 29.

Appellants filed notices of appeal of the district court’s

ruling and motions for a certificate of appealability (“COA”) on

November 30, 2004.

2. Appellants’ Motions to Amend Their § 2255 Motions

Appellants did not challenge the constitutionality of their

sentences in the § 2255 motions that they filed on February 18,

2004. On June 24, 2004, the United States Supreme Court handed

down Blakely v. Washington, 542 U.S. 296 (2004), striking down a

state sentencing guideline scheme that allowed sentence

-11- enhancements based on facts found by a judge and not a jury.

Anticipating that the Supreme Court might extend Blakely to the

federal Sentencing Guidelines, Appellants filed motions for leave

to amend their § 2255 motions on July 1, 2004, outside of the

§ 2255, ¶ 6, one-year limitation period. In a ruling dated

September 4, 2004, the district court denied Appellants’ motions

based solely on United States v. Pineiro, 377 F.3d 464 (5th Cir.

2004), vacated, 543 U.S. 1101 (2005), which held that Blakely did

not invalidate the federal Sentencing Guidelines. Appellants

filed notices of appeal and motions for a COA on November 30,

2004. Shortly thereafter, on January 12, 2005, the Supreme Court

handed down Booker, 543 U.S. 220, which applied Blakely to hold

the mandatory application of the federal Sentencing Guidelines

unconstitutional.

3. Certificate of Appealability

On December 13, 2004, the district court granted each

Appellant a COA pursuant to 28 U.S.C. § 2253(c)(1)(B), finding

that Appellants had demonstrated a substantial showing of the

denial of a constitutional right on the following issues:

1. Whether the [Appellants’] due process rights were violated by the government’s failure to disclose a promise to cooperating witness Robert Guidry that he would not be liable in money damages to the State of Louisiana.

2. Whether the [Appellants’] due process rights were violated by the government’s failure to correct Robert Guidry’s trial testimony that he faced financial exposure from the lawsuits pending against him and from the denial

-12- of an evidentiary hearing on this issue.

3. Whether the [Appellants’] due process rights were violated by the government’s failure to disclose exculpatory, impeachment material relating to cooperating witness John Brotherton and from the denial of an evidentiary hearing on this issue.

4. Whether the [Appellants] should be permitted to raise a constitutional claim pursuant to Blakely v. Washington.

Appellants now request that this court reverse the district

court’s judgment and vacate their convictions, or, in the

alternative, remand for an evidentiary hearing.

II. DISCUSSION

A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), our review is limited to the issues enumerated in

the COA.4 28 U.S.C. § 2253(c)(1). In reviewing a district

court’s denial of a motion to vacate sentence under § 2255, we

review questions of fact for clear error and questions of law de

novo. United States v. Chavez, 193 F.3d 375, 378 (5th Cir.

1999). Claims that the government violated Brady v. Maryland are

mixed questions of law and fact that we review de novo. United

States v. Hughes, 230 F.3d 815, 819 (5th Cir. 2000); Felder v.

Johnson, 180 F.3d 206, 211 (5th Cir. 1999). We review for abuse

of discretion a district court’s denial of an evidentiary

4 AEDPA applies because Appellants filed their § 2255 motions on February 18, 2004, well after AEDPA’s effective date of April 24, 1996. See United States v. Williamson, 183 F.3d 458, 461 n.2 (5th Cir. 1999).

-13- hearing, which we will grant only “[i]f the [Appellants]

produce[] independent indicia of the likely merit of [their]

allegations.” United States v. Cervantes, 132 F.3d 1106, 1110

(5th Cir. 1998); see also United States v. Auten, 632 F.2d 478,

480 (5th Cir. 1980) (noting that mere conclusory allegations are

not sufficient to support a request for an evidentiary hearing).

A district court’s denial of a motion to amend a § 2255 motion is

also subject to review for abuse of discretion. United States v.

Saenz, 282 F.3d 354, 356 (5th Cir. 2002).

B. Analysis

1. The Alleged Brady Violations

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.”

373 U.S. at 87. The Supreme Court subsequently extended this

principle to impeachment evidence, holding that “[w]hen the

‘reliability of a given witness may well be determinative of

guilt or innocence,’ nondisclosure of evidence affecting

credibility falls within this general rule.” Giglio v. United

States, 405 U.S. 150, 154 (1972) (quoting Napue, 360 U.S. at

269); see also United States v. Bagley, 473 U.S. 667, 676-77

(1985) (rejecting any distinction between exculpatory and

impeachment evidence for Brady purposes). To establish a Brady

-14- violation, Appellants must prove that (1) the prosecution

suppressed evidence; (2) the evidence was favorable to the

defendant because it was either exculpatory or impeaching; and

(3) the evidence was material. United States v. Sipe, 388 F.3d

471, 477 (5th Cir. 2004); see also Strickler v. Greene, 527 U.S.

263, 281-82 (1999); Kyles v. Whitley, 514 U.S. 419, 433-38

(1995).

Appellants allege that the government violated Brady with

regard to cooperating witness Robert Guidry because (1) in

addition to a grant of immunity from state prosecution, Guidry’s

plea deal included a secret, unwritten promise of immunity from

any future civil suit for damages that the state of Louisiana

might bring against him; (2) the deal was confected without

Appellants’ knowledge by federal prosecutors, the Baton Rouge

district attorney’s office, and Guidry’s defense lawyers and then

secretly approved by a federal judge; and (3) the government

failed to disclose the deal to Appellants prior to trial,

depriving them of valuable impeachment evidence.

Our review of the record reveals no factual support for this

improbable scenario; instead, the record affirmatively

contradicts Appellants’ arguments. To support their theory,

Appellants rely primarily on the transcript of a 2003 state court

hearing on Guidry’s request for a preliminary injunction of the

-15- state lawsuit filed against him. Appellants maintain that the

testimony that Guidry’s attorneys elicited from federal and state

prosecutors who were parties to the Guidry plea negotiations

indicates that there was indeed a hidden promise limiting

Guidry’s state financial liability. To the contrary, the record

reflects that even Guidry’s attorneys--who Appellants claim

negotiated the alleged deal with the state and federal

prosecutors--never argued or attempted to insinuate during

questioning that Guidry had agreed to a secret deal that included

civil immunity. Rather, they merely argued that the state

immunity provisions set forth in the Moreau letter should be

construed under Louisiana law to include immunity from the state

civil suit.5 The theory alleging an unwritten side deal was

5 Guidry’s attorneys did not argue the existence of a hidden deal in their January 31, 2003, Memorandum in Support of Request for Preliminary Injunction: Unquestionably, the State could not prosecute Guidry criminally under the immunity granted to him. The question here is whether the immunity agreement bars the state from prosecuting this so-called civil lawsuit on the basis of his immunized information and testimony. We submit firstly that the State is barred from using the immunized information and testimony under Louisiana immunity law, and alternatively, it is barred because the lawsuit in reality is an attempt to obtain restitution, a criminal penalty, under the guise of a civil claim. Allowing this suit to proceed on the basis of the immunized information and testimony would result in an erroneous interpretation of Louisiana’s immunity law and an improper application of federal and state principles of criminal restitution. Def. § 2255 Exh. tab 11 at 4. Likewise, Guidry’s attorneys did not assert that their client had agreed to such a deal in an affidavit submitted in support of their motion for a preliminary injunction. The most

-16- articulated for the very first time in Appellants’ § 2255

motions, six years after Guidry entered into his written plea

agreement and more than one year after Guidry’s state court

preliminary injunction hearing.

Moreover, at least two of the attorneys who allegedly

concocted the secret plea agreement--East Baton Rouge Parish

District Attorney Doug Moreau and Assistant United States

Attorney Fred Harper--testified under oath at the hearing that no

mutual understanding or provision limiting Guidry’s state

financial liability ever existed. Indeed, at the time that

Moreau extended state immunity “for crimes [Guidry] may have

committed” in return for Guidry’s cooperation with federal

authorities, the state civil lawsuit against Guidry had not been

filed, and it is clear from the record that none of the actors

involved even contemplated that the state would pursue such a

lawsuit. According to Moreau, “I had never even thought about

[civil immunity] before this lawsuit. . . . I did not contemplate

the use immunity or transactional immunity in regard to civil

proceedings. That . . . never crossed my mind. . . . I didn’t

even know of such a concept as civil immunity.” Def. § 2255 Exh.

they alleged was that Guidry “still refused to enter a plea and cooperate with the government unless he could be assured that the State of Louisiana would defer its interest in the case to the federal government and would agree to limit its financial recovery to the amount specified in the federal proceeding.” Even this statement stops short of alleging the actual existence of an agreement limiting Guidry’s state financial exposure. Def. § 2255 Exh. tab 12 at 2.

-17- tab 15 at 42-44. Likewise, Harper testified that side agreements

outside the scope of the written plea agreement would have been

prohibited and that no one involved had anticipated that the

state of Louisiana would subsequently bring a civil suit against

Guidry:

[N]ever, in my experience, have I ever had a situation where unbeknownst to me at the time this plea agreement was entered into, and I believe at the time Mr. Guidry pled guilty, . . . the state of Louisiana, or anybody else for that matter, sued a cooperating defendant in a criminal case. . . . Never, in any case in the 28 years I’ve been doing this, have I ever seen the state sue a cooperating defendant civilly. . . . [T]he thought of a civil action brought by the state of Louisiana against this cooperating defendant never entered anybody’s mind.

Id. at 67-68.6

Finally, Appellants contend that a federal judge colluded

with the federal prosecutors and Guidry’s attorneys to approve

the alleged civil immunity agreement at Guidry’s arraignment in

an in camera, “secret proceeding.” Appellants offer no support

for this serious allegation other than pointing to a short, off-

the-record chambers conference between the judge and the

attorneys that happened during Guidry’s arraignment and

speculating that something illicit occurred during the recess.

6 Resting its decision on this testimony, the state court ultimately denied Guidry’s motion for a preliminary injunction, stating, “[c]onsidering the testimony of the witnesses at the hearing, it is clear that there was simply no meeting of the minds regarding any civil liability of Mr. Guidry. . . . The court reads [the Moreau letter’s] granting of immunity to apply to criminal culpability only and not to any civil matters.” Def. § 2255 Exh. tab 16 at 5.

-18- This contention is wholly without merit, particularly because

this same judge later rejected the argument that the federal plea

agreement necessarily limited Guidry’s financial liability to the

state during the restitution portion of Guidry’s sentencing. See

Def. § 2255 Exh. tab 10 at 18-19.

Our review of the record leaves us with the firm conviction

that there was no clandestine, collateral plea agreement

protecting Guidry from state financial liability. Appellants’

contentions are speculative and find no support in Guidry’s plea

agreement, the Moreau immunity letter, the transcripts of

proceedings from the state’s lawsuit against Guidry, or the

record on appeal.7 Because “[t]he prosecution has no duty to

turn over to the defense evidence that does not exist,” we reject

Appellants’ Brady claims with respect to Robert Guidry.8 Brogdon

v. Blackburn, 790 F.2d 1164, 1168 (5th Cir. 1986) (per curiam);

7 For the same reasons, the district court did not abuse its discretion when it denied Appellants’ request for an evidentiary hearing. Appellants have failed to provide “independent indicia” of the likely merits of their allegations and instead rely on speculation based on a misreading of the record, which is insufficient to warrant an evidentiary hearing. See Cervantes, 132 F.3d at 1110; Auten, 632 F.2d at 480 (“[C]onclusory assertions do not support the request for an evidentiary hearing.”). 8 Accordingly, we need not address the materiality vel non of the allegedly suppressed evidence. Likewise, because the record reveals neither that a civil immunity agreement concerning Guidry existed, nor that the government was aware that Guidry might have believed that such a deal existed, we need not address Appellants’ related claim that the government violated their due process rights in violation of Napue, 360 U.S. 264, by failing to correct Guidry’s allegedly false testimony.

-19- see also United States v. Rivera Rangel, 396 F.3d 476, 486 n.11

(1st Cir. 2005) (reversing the district court’s grant of a new

trial based on an alleged Brady violation resulting from the

suppression of a cooperating witness’s plea agreement, noting

that “the district court’s finding that [the witness] entered

into a plea agreement was entirely at odds with the only

evidence--which was in the form of sworn statements--that had

been offered on the subject, and as a result, it was

unjustified”); Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002)

(addressing a prisoner’s claim that the government suppressed the

existence of a cooperating witness’s plea agreement and holding,

“Todd cannot prove an agreement existed. . . . Without an

agreement, no evidence was suppressed, and the state’s conduct,

not disclosing something it did not have, cannot be considered a

Brady violation”).

The Edwardses also contend that the government violated

their Brady rights by failing to disclose: (1) that cooperating

witness John Brotherton was writing a book during their trial;

(2) Brotherton’s allegation in the book that the government

secretly recorded a meeting between Brotherton and government

informant Patrick Graham, which the government subsequently

failed to disclose to the Edwardses; and (3) a fabricated

memorandum that Brotherton claims he prepared at one point to

-20- secure a job with a tribal casino, which he also discusses in his

book.

Even if the government had known that Brotherton was writing

a book and had failed to provide the Edwardses with this

information--and it is unclear from the record whether this was

even the case9--the Edwardses’ claim fails because the evidence

was not material for Brady purposes. “‘[E]vidence is material

only if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would

have been different.’” Rector v. Johnson, 120 F.3d 551, 562 (5th

Cir. 1997) (quoting Bagley, 473 U.S. at 682 (1985)).

Specifically, we must determine whether the allegedly suppressed

evidence, considered collectively and in light of all of the

evidence at trial, could reasonably be taken to put the entire

case in a different light so as to “‘undermine[] confidence in

the outcome of the trial.’” Kyles, 514 U.S. at 434 (quoting

9 The Edwardses’ assertions that the government even knew of Brotherton’s book deal are largely speculative. The Edwardses cite the book’s preface, in which Brotherton congratulates the government on its successful prosecution of Governor Edwards, for the proposition that “the prosecutors were apparently aware of” both the existence and the contents of Brotherton’s book. Edwards Br. at 46 (emphasis added). Moreover, to support their claim, the Edwardses merely assert that “the government has not denied” knowledge of this evidence. Id. at 50. This argument ignores that the Edwardses, as the parties alleging a Brady violation, have the burden of establishing all three prongs of the Brady test. See, e.g., Sipe, 388 F.3d at 477 (“To establish a Brady violation, a defendant must make three showings . . . .”) (emphasis added).

-21- Bagley, 473 U.S. at 678); see also Duncan v. Cain, 278 F.3d 537,

539 (5th Cir. 2002).

The Edwardses speculate that the fact that Brotherton was

writing a book and the book’s contents would have been

sufficiently impeaching to undermine confidence in the jury

verdict; however, taken in context, this evidence would have had

at best only a marginal impact on the government’s case against

the Edwardses. Brotherton was not the only witness to testify

against the Edwardses regarding the “Players Scheme,” nor was he

the most important. The trial record reflects that Richard

Shetler, another Players employee and long-time Edwards family

friend, provided extensive, damning testimony about the

Edwardses’ dealings with the casino. The government further

bolstered this testimonial evidence with copious exhibit evidence

and inculpatory taped conversations.

Given the amount of incriminating evidence other than

Brotherton’s testimony that the government presented, the

allegedly suppressed impeachment evidence is simply too

insignificant to undermine confidence in the jury’s verdict. See

Kopcynski v. Scott, 64 F.3d 223, 226-27 (5th Cir. 1995)

(rejecting a habeas petitioner’s Brady claim where the suppressed

impeachment evidence was immaterial in light of the other,

corroborated testimony and physical evidence supporting

petitioner’s conviction); see also Pippin v. Dretke, 434 F.3d

782, 789 n.7 (5th Cir. 2005) (“A claim that is largely

-22- speculative with respect to the effect of the allegedly

exculpatory evidence on the jury’s ultimate determination of

guilt or innocence cannot support a Brady violation.”). We thus

reject the Edwardses’ Brady claim with respect to John

Brotherton.10

2. Appellants’ Booker Claims

Finally, Appellants argue that the district court erred in

denying their motions for leave to amend their § 2255 motions in

light of Booker, 543 U.S. 220, and Blakely, 542 U.S. 296.

Although they acknowledge that they did not challenge the

constitutionality of their sentences on direct appeal or in their

initial § 2255 motions, Appellants argue that, in the wake of

10 Although, in the alternative, the Edwardses urge us to grant an evidentiary hearing to explore their theory further, we decline to do so. Due to the speculative and conclusory nature of the Edwardses’ allegations with respect to both the suppression and materiality Brady prongs, such a hearing would serve as nothing more than a fishing expedition. See Cervantes, 132 F.3d at 1110 (noting that an evidentiary hearing is warranted only “[i]f the [Appellants] produce[] independent indicia of the likely merit of [their] allegations”); Auten, 632 F.2d at 480 (denying an evidentiary hearing because the conclusory allegations set forth were not sufficient to support a request for an evidentiary hearing). We have also denied evidentiary hearings to explore similarly unsupported claims in state habeas proceedings under § 2254, applying the same standard. See Hughes v. Johnson, 191 F.3d 607, 629 (5th Cir. 1999) (denying an evidentiary hearing to investigate a “purely speculative” Brady claim); Johnson v. Scott, 68 F.3d 106, 112 (5th Cir. 1995) (“The [habeas] petitioner must set forth specific allegations of fact, not mere conclusory allegations.”); Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir. 1989) (“The court need not blindly accept speculative and inconcrete claims as the basis upon which to order a hearing.”) (internal quotation marks and citation omitted).

-23- Booker and Blakely, they should now be allowed to amend their

§ 2255 motions to add a collateral constitutional challenge to

their sentences.

This argument is foreclosed before this court by United

States v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005), and In re

Elwood, 408 F.3d 211, 212-13 (5th Cir. 2005) (per curiam), both

of which hold that the Blakely/Booker line of cases does not

apply retroactively to cases on collateral review. Appellants

correctly conceded in oral argument that this precedent

forecloses relief before this court. They raise this issue only

to preserve it for possible Supreme Court review, and we decline

to consider it further.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

-24-