UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-6562

DANIEL I. COLTON,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4348

DANIEL I. COLTON,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CR-97-377-L)

Argued: January 24, 2002

Decided: February 25, 2002

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Jonathan D. Hacker, O’MELVENY & MYERS, L.L.P.,

Washington, D.C., for Appellant. Dale Preston Kelberman, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON

BRIEF: Walter E. Dellinger, Jeremy Maltby, O’MELVENY &

MYERS, L.L.P., Washington, D.C., for Appellant. Thomas M.

DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Daniel I. Colton appeals the denial of his motion for a new trial,

which alleged that the Government withheld information that could

have been used to impeach its key witness. We affirm. 

I.

A.

In 1998, a jury found Appellant Daniel Colton guilty of conspiracy,

see 18 U.S.C.A. § 371 (West 2000), and three counts of bank fraud,

see 18 U.S.C.A. § 1344 (West 2000). Colton’s convictions arose from

transactions involving a corporation called Colton and Laskin (C&L),

which Colton co-owned with Dennis Laskin. Laskin also participated

in the schemes giving rise to Colton’s convictions; as a result, he was

charged with and pled guilty to bank fraud and concealing assets from

the Resolution Trust Corporation, see 18 U.S.C.A. § 1032 (West

2000). The proceedings against Laskin, including his sentencing, concluded before Colton was indicted. Laskin then served as a key witness against Colton. 

After Colton was convicted but before sentencing, he moved for a

new trial on the basis of newly discovered evidence. See Fed. R.

Crim. P. 33. He maintained that, prior to and during his trial, the Government was investigating a Laskin-owned company called AIS. Col2 UNITED STATES v. COLTON
ton asserted that the existence of this investigation should have been

disclosed as impeachment evidence pursuant to Brady v. Maryland,

373 U.S. 83 (1963), and its progeny. 

The district court reserved decision on this motion and entered

judgment against Colton, and Colton appealed. This court vacated

two of the three bank fraud convictions for reasons not relevant here,

but otherwise affirmed. See United States v. Colton, 231 F.3d 890,

908-10, 912 (4th Cir. 2000). 

While Colton’s appeal was pending, proceedings regarding his

Rule 33 motion continued in the district court. Ultimately, the district

court denied this motion and Colton’s accompanying request for discovery. Colton now seeks review of this order. 

B.

In order to resolve Colton’s claim, we must examine the underlying

facts in some detail. Laskin founded AIS "to enable foreign nationals

to obtain permanent residency in the United States through investments." J.A. 242. AIS and its clients sought to take advantage of a law

making immigrant visas available to foreign investors who provided

at least $500,000 to establish businesses employing 10 or more people

in the United States. See 8 U.S.C.A. § 1153(b)(5) (West 1999).

Laskin recruited several former officials from the State Department

and the Immigration and Naturalization Service (INS) to promote this

enterprise. 

According to newspaper articles furnished by Colton in support of

his Rule 33 motion, AIS came under scrutiny for two reasons. First,

for much of the 1990s, the INS allowed AIS and other companies to

obtain visas for clients who had not yet invested the minimum amount

required by § 1153(b)(5). See William Branigin, INS Probes Md.

Firm in Possible Visa Fraud, Washington Post, Jan. 8, 1999, at A3;

Walter F. Roche Jr. & Gary Cohn, INS Insiders Profit on Immigrant

Dreams, Baltimore Sun, Feb. 20, 2000, at 24A-25A. Second, there

were questions about whether AIS actually used the money it received

from clients to support job-creating businesses. See Branigin, supra;

Roche & Cohn, supra, at 26A. 

UNITED STATES v. COLTON 3
These concerns resulted in two separate probes of AIS. The first

investigation was precipitated by a qui tam suit filed in 1996 by a former AIS employee. The complaint does not appear in the record, but

a news report stated that the relator who initiated the suit alleged that

AIS not only sought visas for clients who had not made the requisite

investment but also delivered only a small proportion of its clients’

funds to needy businesses; of the remaining funds, a portion was

placed in escrow and the rest was kept by AIS as compensation for

its services.1See Roche & Cohn, supra, at 26A. 

When the qui tam action was filed, the Government opened an

investigation to determine whether to intervene. See 31 U.S.C.A.

§ 3730(b)(2) (West Supp. 2001). The investigators ultimately determined that AIS had disclosed the relevant business practices to the

INS. In addition, the relator revealed to investigators that he had very

little knowledge about AIS practices. The Government consequently

opted not to intervene. An Assistant United States Attorney advised

the INS of this decision in a letter mailed the same day that Laskin

was sentenced for his participation in schemes involving C&L. 

After the Government’s decision, the relator dismissed his suit

without prejudice. At that point, according to the relator’s attorney,

none of the qui tam defendants had been served with the complaint

or otherwise informed of its contents. Furthermore, the senior vice

president of AIS at the time of the Government’s investigation

averred that he had no knowledge of any inquiry into AIS practices.

The Government’s second investigation of AIS was opened in

response to an anonymous letter that accused AIS of "‘selling’ . . .

visas through mail fraud, internet fraud and personal face to face

pitchmen." J.A. 698. The letter further alleged that the companies

supported by clients’ investments were "phony corporations that were

computer generated." Id. Although this investigation began in September 1998, the Government did not issue its first subpoena until

1Colton contends that "the allegation of wrongdoing was that Laskin

had set up false companies that did not actually employ the requisite ten

people." Br. of Defendant-Appellant at 29 n.6. Allegations of this nature

arose later, but there is no evidence that the qui tam complaint alleged

such conduct. 

4 UNITED STATES v. COLTON
October 21, 1998, two days after Laskin completed his testimony in

Colton’s trial. Ultimately, the investigation was

administratively closed. No charges have been filed or are

contemplated against AIS or any individual associated with

that company at this time. Dennis Laskin was never advised

he was personally a target or subject of the investigation. No

evidence was uncovered that Dennis Laskin personally

made any false statements or representations to the INS. 

Id. at 700. 

II.

Colton contends that the district court erred in ruling that the Government’s failure to disclose these two investigations did not violate

due process. He further asserts that the court should have reviewed

the Government’s investigatory materials in camera or allowed Colton to examine them. 

A.

A claim arising under Brady and its progeny has three elements:

"(1) the evidence at issue must be favorable to the defendant, whether

directly exculpatory or of impeachment value; (2) it must have been

suppressed by the state, whether willfully or inadvertently; and (3) it

must be material." Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 555

(4th Cir. 1999). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different." Kyles v. Whitley, 514

U.S. 419, 433-34 (1995) (internal quotation marks omitted). We hold

that none of the evidence described in Colton’s Brady complaint

meets this standard.2

2Colton asserts that the district court used the wrong standard when it

ruled that Brady does not apply to "preliminary, challenged, or speculative information." J.A. 62 (internal quotation marks omitted). Colton is

correct that evidence may be subject to disclosure under Brady even if

its reliability has not been conclusively established. If nothing else, mere

UNITED STATES v. COLTON 5
Colton offers four unpersuasive theories of materiality. The first

theory is that the investigations created a motive for Laskin to lie on

the witness stand. There is no evidence, however, that Laskin was

ever aware of the investigations or even had any suspicion that they

might be undertaken. Moreover, the burden of producing evidence on

this issue lay with Colton, not the Government.3See United States v.

Stokes, 261 F.3d 496, 502 (4th Cir. 2001), petition for cert. filed,

No. 01-7296 (U.S. Nov. 15, 2001). 

Colton’s next theory is that the undisclosed evidence suggested an

inappropriate relationship between Laskin and the prosecutor.

According to Colton, the prosecutor curtailed his investigation of AIS

in order to preserve Laskin’s credibility for Colton’s trial, "despite the

qualms of INS’ [sic] officials." Br. of Defendant-Appellant at 34. This

theory fails for several reasons. First and foremost, it is not the task

of the jury to assess the motivations of the prosecutor. Also, the

"qualms" referred to arose from the actions of the INS, not any

attempt by AIS to mislead the INS. See Roche & Cohn, supra, at 26A

(quoting an INS memorandum concluding that the INS had granted

applications that, on their face, did not comport "the letter or spirit"

of § 1153(b)(5) (internal quotation marks omitted)). Moreover, there

is nothing suspicious about the prosecutor’s decision to terminate his

allegations may be fodder for cross-examination. See United States v.

Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999). On the other hand, there is

a correlation between the materiality of exculpatory information and the

extent to which that information has been verified. See id. at 911 (noting

that prior conviction for perjury would have impaired witness’ credibility

more than perjury investigation). 

3Colton suggests that Laskin’s awareness of the first investigation can

be inferred from the parallel timelines of the investigation and Laskin’s

plea and sentencing. In particular, Colton notes that "Laskin’s prosecutor

did not formally decline intervention in the qui tam action immediately,

but waited until the very day that Laskin was sentenced." Br. of

Defendant-Appellant at 28-29. But it was not "Laskin’s prosecutor" who

opted not to intervene; it was another Assistant United States Attorney.

Also, even if the prosecutor was involved in the decision not to intervene, and even if the Office of the United States Attorney deferred a final

decision on this matter pending Laskin’s sentencing, this does not establish that Laskin was aware of the investigation. 

6 UNITED STATES v. COLTON
investigation upon determining that the conduct challenged in the qui

tam suit (as described in news reports) was fully disclosed to the INS

and was consistent with INS policy. 

In his third and fourth theories, Colton asserts that the evidence in

question would have helped the defense to prove Laskin’s dishonest

tendencies and his predilection for using innocent associates to further

fraudulent schemes. Of course, the mere fact that Laskin was investigated reveals nothing at all about him. Instead, the allegations underlying the investigations may have had value, but only to the extent

that Colton could have used those allegations during crossexamination or introduced evidence tending to prove the allegations.

We have reviewed the materials provided in the joint appendix and

we conclude that there is no reasonable likelihood that disclosure of

the allegations against Laskin would have altered the outcome of Colton’s trial. 

In all of the materials within the joint appendix, there is only one

item that might have been useful to the defense—the statement of an

investigator that AIS clients admitted that their investments were not

being used to create real companies with at least 10 employees. See

Branigin, supra. If AIS in fact set up dummy corporations to create

the appearance of compliance with § 1153(b)(5), this would amount

to a serious fraud. Nevertheless, we perceive no Brady violation

because the record does not establish either that the Government

received its information from AIS clients before Colton’s trial ended

or that the outcome of the trial would have been affected by this evidence. As to Laskin’s character for truthfulness, this evidence that

Laskin might have been involved in a fraud involving AIS was cumulative to, and less probative than, the admission that Laskin had

already been convicted of fraud in connection with the activities of

C&L. Furthermore, such evidence would not have meaningfully reinforced Colton’s assertion at trial that Laskin had manipulated him into

participating unwittingly in fraudulent transactions involving C&L.

According to a news report, an anonymous official reported that

investigators "are ‘finding blatant fraud,’ although not with the direct

involvement of the high-powered board members listed on [AIS] brochures." Branigin, supra. This allegation does not demonstrate manipulation by Laskin; indeed, it does not mention Laskin at all.

Moreover, even if Laskin did manipulate the "high-powered" individUNITED STATES v. COLTON 7
uals associated with AIS, it does not follow that he could have done

the same to Colton, whose involvement in C&L was far more extensive than merely being "listed on . . . brochures." Thus, this evidence

would not have materially assisted Colton’s defense. We therefore

hold that the district court did not err in denying Colton’s motion for

a new trial.

B.

Colton next asserts that he was entitled to have the district court

review the Government’s files in camera to determine whether they

contained Brady evidence. He also contends that the court should

have granted him access to those files. We disagree. 

At the outset, we reject Colton’s request for direct access to the

Government’s files regarding its investigations of AIS. Colton does

not claim an absolute right to such access; instead, he asserts that it

was within the discretion of the district court to order disclosure as

a form of discovery. Assuming for purposes of decision that this is

correct, we hold that the court did not abuse its discretion. In light of

the many reasons for maintaining confidentiality in the course of

investigations, only an extraordinary showing by the defendant would

justify carte blanche access to investigatory files. No such showing

has been made here. 

Whether the district court should have reviewed the files in camera

presents a closer question. To establish the right to such review, a

defendant must make a "plausible showing" that the Government’s

files contain information that "would be both material and favorable

to his defense." Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995)

(internal quotation marks omitted). Colton asserts that his "plausible

showing" here consists of his more general demonstration that the

Government withheld exculpatory evidence, combined with the prosecutor’s admission that he did not review all the relevant files. As discussed above, however, there is no evidence that any material

information favorable to Colton was withheld during Colton’s trial.

Furthermore, the record does not support Colton’s assertion that the

prosecutor never examined the relevant files.4 Accordingly, we find

4

In the district court, a Government memorandum made the following

representation concerning the prosecutor’s inspection of investigatory

8 UNITED STATES v. COLTON
no error in the refusal of the district court to conduct an in camera

review. 

III.

For the foregoing reasons, we affirm the decision of the district

court denying Colton’s motion for a new trial.

AFFIRMED

files: 

Prior to Colton’s trial, counsel for the government requested

and obtained from the investigating agents copies of all of their

memoranda of witness interviews, investigative reports, documentary evidence, and related materials. Thus, there was no reason for government counsel to review those same materials in

the files of the FBI and IRS. 

J.A. 551. Colton construes the phrase "those same materials" to imply

that the FBI and IRS files also contained other materials. We believe,

however, that the more natural interpretation is that review of the actual

files was unnecessary because copies of everything in them had already

been delivered to the prosecutor. 

UNITED STATES v. COLTON 9