United States v. Jernigan

492 F.3d 1050, 2007 U.S. App. LEXIS 16185, 2007 WL 1965112
Court of Appeals for the Ninth Circuit·Decided July 9, 2007·No. 05-10086·Published·Cited by 73 cases

Opinions

Opinion by Judge BETTY B. FLETCHER; Dissent by Judge BEA.

BETTY B. FLETCHER, Circuit Judge:

Defendant Rachel Jernigan was arrested on November 10, 2000, for allegedly robbing three banks. After Jernigan was placed in custody and awaiting trial, two more area banks were robbed by a woman whose description bore an uncanny physical resemblance to hers: both women were roughly five feet tall, Hispanic,1 and had acne or pock-marked complexions. Although the prosecution knew that other nearby banks had been robbed by a diminutive, Hispanic female with poor skin after Jernigan’s arrest, the prosecution failed to relay this information to defense counsel.

Proceeding without knowledge of the second alleged bank robber, Jernigan’s counsel argued at trial simply that his client was misidentified. However, the jury was not persuaded, and Jernigan was convicted of bank robbery on March 23, 2001.

While in prison Jernigan learned that a woman fitting a similar description had been arrested for robbing several banks in the area. In January 2004, Jernigan filed a motion for a new trial asserting that (1) the government violated her due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose before trial material, exculpatory evidence known to the government, and alternatively that (2) evidence discovered after trial required that Jerni-gan receive a new trial pursuant to Federal Rule of Criminal Procedure 33. The district court denied her motion in January 2005, and Jernigan appealed. After a panel of this court affirmed the district court, we voted to rehear this case en banc. We disagree with both the original panel and the district court and hold that the suppressed evidence was material to Jerni-gan’s guilt.2 The district court’s decision is hereby reversed, and we remand for a new trial.

I.

On September 20, 2000, the Bank of America branch in Gilbert, Arizona was robbed by a short, Hispanic woman with a pock-marked face. The robber posed as a bank customer. When her turn in line came, she passed a sloppy, hand-written note to Elizabeth Chlupsa, the victim bank teller, threatening to shoot if Chlupsa did not hand over all of the money in her drawer. Chlupsa complied with the demand note, and the robber fled without having said a word.

Jernigan became a suspect after a chance conversation between the FBI [1052] agent investigating the bank robbery and a postal inspector who was investigating Jer-nigan in connection with some shoplifting incidents at a local post office. During their conversation, the postal inspector noted that Jernigan fit the description of the unidentified bank robber. After reviewing photographs of Jernigan and comparing them to surveillance photographs from the September 20th robbery, the FBI agent focused his investigation on Jerni-gan. The agent created a photographic lineup that included Jernigan and showed the photos to the victim bank teller, who identified Jernigan as the woman who had robbed her. No other eyewitnesses were shown the photospread—or any other photographs of Jernigan—until five or six months later.

Police arrested Jernigan on November 10, 2000, and she has remained in custody since that time. In addition to the September 20, 2000 robbery, police also charged Jernigan with two additional bank robberies: an October 11, 2000 robbery at 906 East Baseline Road in Tempe, and an October 25, 2000 robbery at 2298 North Alma School in Chandler. Following Jer-nigan’s incarceration, but before her trial, two other bank robberies were committed—one on November 28, 2000, and another on November 30, 2000—by a person matching Jernigan’s description: a short, Hispanic woman with acne. One bank was located across the street from one of the banks allegedly robbed by Jernigan; the other bank was located approximately ten miles away.

The district court ultimately severed the charges involving the September 20th robbery from the other robberies with which she was charged. Jernigan’s trial for the September 20th robbery began on March 20, 2001. At trial, the government relied entirely on the accounts of five eyewitnesses and the bank surveillance video. The video did not provide a clean look at the bank robber’s face3 and was used primarily to bolster the eyewitnesses’ testimony. No physical evidence tied Jernigan to the robbery. Jernigan flatly denied involvement in any bank robberies and, at trial, her counsel argued that she had been misidentified by the witnesses. Counsel did not, however, suggest to the jury who might have been the robber if Jernigan were not.

The jury convicted Jernigan of both armed bank robbery and use of a firearm during an armed bank robbery. The district court sentenced her to 168 months in jail and five years of supervised release. The remaining bank robbery charges were dismissed by stipulation.

On December 11, 2001, Juanita Rodríguez-Gallegos robbed the same bank allegedly robbed by Jernigan on September 20, 2000. During that robbery the victim teller, Kathleen Golliher, placed a tracking device in the stolen money. Police stopped Rodríguez-Gallegos half an hour after the robbery and Golliher identified her as the robber.4 The police report described Rodriguez-Gallegos as a Hispanic female, 4'11" and 125 pounds, with brown eyes, black hair, and pock-marked cheeks. Police charged Rodriguez-Galle[1053] gos with the November 28, 2000, November 30, 2000, and December 11, 2001 bank robberies, and with one count of brandishing a firearm during a violent crime. She pled guilty to the firearm offense, and the remaining charges were dropped.

After learning of Rodriguez-Gallegos’s arrest from fellow inmates, Jernigan moved for a new trial. In her motion, Jernigan asserted that the government had failed to meet its Brady obligations by not disclosing the existence of a phenotypi-cally similar bank robber who had been robbing banks in the same area after Jer-nigan’s incarceration. She also argued that the district court should grant her a new trial under Rule 33 based upon the post-conviction developments involving Rodriguez Gallegos. The district court denied the motion on both grounds, and Jer-nigan appealed.

II.

In Brady v. Maryland, the Supreme Court explained, “[s]ociety wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” 373 U.S. at 87, 83 S.Ct. 1194. The Court also noted that prosecutors are charged not only with winning trials but with seeking justice. Id. at 87-88, 83 S.Ct. 1194 & n. 2. Premised on this understanding of fairness and prosecutorial responsibility, the Court held that the suppression of evidence favorable to any accused violates the due process of law, irrespective of whether the suppression is done in good faith or bad. Id. at 87, 83 S.Ct. 1194.

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United States v. Jernigan, 492 F.3d 1050, 2007 U.S. App. LEXIS 16185, 2007 WL 1965112 (9th Cir. 2007).

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