* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 13 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ELGIN PHILLIPS,

Defendant-Appellant. No. 97-1333 (D.C. No. 96-CR-389-S) (D. Colo.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and TACHA , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Elgin Phillips appeals his jury convictions of poss ession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and of use and carrying of a firearm in relation to a drug traffic king crime in violation of 18 U.S.C. § 924(c)(1). He contends that (1) the di strict court erred in denying his motion for a mistrial or alternatively for the excl usion of the testimony of rebuttal witnesses; (2) the prosecution’s closing argument w as improper, entitling him to a new trial; and (3) there was insufficient evidence to support his § 924(c)(1) conviction for carrying a firearm. We have jurisdi ction pursuant to 28 U.S.C. § 1291, and affirm.
Background On the afternoon of August 27, 1996, Denver police officers Sanchez and Delmonico were patrolling a north Denver neighborho od looking for suspects or witnesses to an incident in which someone shot out a window on a patrol car. In the course of their patrol, they stopped Phillips f or running a stop sign. Officer Delmonico spotted a black, soft-sided briefcase on the back seat of his car. The briefcase had a bulge which led Officer Delmonico t o believe that it might contain a weapon. After Phillips had exited the ve hicle, Officer Delmonico removed the briefcase from the car and opened it. Inside, he found a large bag of crack cocaine and a gun. During an inventory searc h of the briefcase, officers1 The district court set aside the convictions reache d in the first trial because

of the possibility that the jurors had relied on un admitted evidence in reaching their verdict. After it had retired to deliberate , the jury discovered a business card in a concealed compartment inside the briefcas e. The jury matched a telephone number on the business card with an entryon a telephone bill for the cellular phone subscribed to by Phillips’ mother. -3- also found papers relating to Phillips and his olde st daughter, Joy Phillips. Phillips was arrested and subsequently indicted forthe present offenses. The government tried Phillips twice. The district court set aside the jury’s guilty verdict after the first trial. 1 Phillips’ defense theory was the same in both trials. He admitted that the briefcase was found i n his car, but argued that it belonged to an acquaintance, Michael Tucker. Micha el Tucker died before the first trial and did not testify. On the morning of the second trial, the government served on the defense a pleading entitled “government’s witness supplement, ” which noted its intent to present a rebuttal case in the event that a defense case was presented. The pleading did not identify the rebuttal witnesses wh ich the government intended to call. During voir dire, the government sought and obtaine d an ex parte hearing at which it disclosed to the court the identities of i ts two rebuttal witnesses and their anticipated testimony. Neither witness had been ca lled during the first trial. The government indicated that it had just discovered th e rebuttal witnesses and that-4-

both of them were afraid of Phillips and of his fam ily. Although an order requiring disclosure of witnesses was in effect, th e district court ruled that the government did not have to disclose the identities of the rebuttal witnesses or the substance of their testimony to the defense until the defense case was complete. The defense put on much the same case as it had pre sented during the first trial. Phillips testified that he had given Michae l Tucker and his girlfriend, Rose Nelson, a ride in his car the morning of August 27, and dropped them off at Nelson’s mother’s house. He stated he was unaware that Michael Tucker had left the briefcase inside his car until the officers fou nd it there. He denied that he had left the paperwork involving his daughter inside th e briefcase. He asserted instead that at the time of his arrest, the paperwo rk had been strewn on the car’s back seat. Phillips also offered an innocent expla nation for the large amount of cash officers found on his person at the time of arrest. Rose Nelson testified for the defense that she had been Tucker’s girlfriend before he died; that she and Tucker had met Phillip s at a Denny’s restaurant on the morning of August 27, 1996; that Phillips gave them a ride in his car; and that Tucker was carrying a black briefcase when he left Denny’s. She further testified that she and Tucker got into an argument while Phil lips was driving them to get tickets for a concert that evening; that after the argument, Phillips drove them to her mother’s house and they exited the vehicle; andthat Tucker did not have the-5-

briefcase with him after he left the car and appear ed very agitated after Phillips drove away. After the defense rested, the government called its first rebuttal witness, Sharon Tave, Michael Tucker’ mother. Tave testifie d that on August 27, 1996, the day Phillips was arrested, Michael Tucker was w ith her in Louisiana registering for college. Before the defense had an opportunity to cross-exam ine Tave, the government handed defense counsel a report which su mmarized the testimony of its other rebuttal witness, Jendaya Robinson. The report indicated that Robinson had been Tucker’s girlfriend before he died and that Phillips had offered her money to testify to the same story that Rose Nelsonhad presented. Counsel expressed his concern to the court that if the report were true, it presented him with an ethical problem, because the report described what could be construed as criminal activity. He requested a mistrial, which the district court denied. At his request, however, the district court allowed the government to make a proffer of Robinson’s testimony outside the presence of the jury, during which defense counsel cross-examined her. Afterwar ds, defense counsel renewed his motion for mistrial and moved in the alternativ e to exclude Robinson’s testimony. The court denied both motions.-6-

When proceedings resumed the next morning, Robinsontook the stand. She testified consistently with the government’s re port. Phillips took the stand in surrebuttal, against counsel’s advice. Defense cou nsel attempted but was unable to obtain a stipulation from the government to have both sides waive closing argument. In the prosecutor’s closing argument, sh e stated several times that Phillips and his witnesses had lied and that he hadsuborned perjury. Defense counsel presented a brief closing argument which di d not address Phillips’ theory of the case.

Discussion I. Unlisted Rebuttal Witnesses Phillips argues that the district court should eith er have granted his motion for mistrial or excluded the undisclosed rebuttal w itnesses because of unfair prejudice. “We review the admission of testimony f rom an unlisted rebuttal witness for abuse of discretion.” United States v. Talk , 13 F.3d 369, 371 (10th Cir. 1993). He argues, first, that the government was under a d isclosure order requiring it to disclose its witnesses. This argument misses the mark, because after the ex parte hearing, the district court relieved the gove rnment of its obligation to disclose the rebuttal witnesses. It is that decisi on which Phillips must attack, as he does in his remaining arguments.-7-

Phillips argues that the government had a duty to d isclose the witnesses to him because the prosecutor told the court they were afraid of him. This fear, he claims, was potential impeachment material pursuant to Brady v. Maryland , 373 U.S. 83 (1963). Phillips speculates that had he kn own that the witnesses were afraid of him, and who they were, he might have bee n able to show there was “bad blood” between the witnesses and himself and thereby to impeach their testimony on the basis of bias or prejudice. Brady does not create a general constitutional right to discovery in criminal
cases. See Weatherford v. Bursey , 429 U.S. 545, 559 (1977). It only requires disclosure of favorable evidence which is material to either guilt or punishment.
See Brady , 373 U.S. at 87. Evidence is “material” when, had it been disclosed, “there [would have been] a reasonable probability o f a different result at trial.” United States v. Woodlee , 136 F.3d 1399, 1411 (10th Cir.), cert. denied , No. 97-9239, 1998 WL 289773 (U.S. Oct. 5, 1998). Phill ips’ argument is purely speculative. He fails to establish that any materi al evidence was actually withheld. We reject his Brady claim. Phillips next argues that it was unfair for the gov ernment to withhold the names of the witnesses because the prosecution had already been exposed to his defense during the first trial. He fails to show w hy the government’s advance knowledge of his defense strategy obligated it not to use undisclosed witnesses.-8-

Use of a surprise witness or unexpected evidence, w ithout more, does not violate a defendant’s constitutional rights. See Weatherford , 429 U.S. at 560. Phillips also argues that by not requiring advance disclosure, the district court deprived him of an opportunity to investigate the credibility of the rebuttal witnesses. The district court allowed Phillips’ co unsel to cross-examine Robinson outside the presence of the jury and to pr epare overnight for her testimony and for his cross-examination of Tave. P hillips contends that these steps were an insufficient substitute for a full in vestigation of the undisclosed rebuttal witnesses. Because Phillips’ counsel did not request a continuance to conduct further investigation, however, we must rej ect this argument. We conclude that the district court did not abuse its discretion in allowing the government to present the testimony of the undisclo sed rebuttal witnesses. II. Failure to grant mistrial As part of his argument concerning advance disclosu re, Phillips argues that the district court should have granted his attorney ’s motion for mistrial. His attorney made the motion after it became clear thatRobinson would testify that his client had attempted to bribe her to testify fa lsely. Analytically, this is a2 Phillips attempts to tie this claim to the distric t court’s refusal to require

disclosure of witnesses. His argument on this point is unconvincing, however. -9- separate claim from Phillips’ claim about disclosure of witnesses, 2 and so we analyze it separately. We must first narrow Phillips’ claim to matters that may be considered in this appeal. In making his argument about the mistrial, Phillips argues that his attorney should have remained a vigorous advocate f or Phillips’ theory of the case after the motion for mistrial was denied. We are n ot concerned here, however, with what Phillips’ counsel did after the motion fo r mistrial was denied. If Phillips’ attorney pursued an improper strategy as the result of the denial of his motion for mistrial, that may be grounds for a clai m of ineffective assistance of counsel, but such a claim should be brought on coll ateral proceedings rather than in this direct appeal. See United States v. Galloway , 56 F.3d 1239, 1240 (10th Cir. 1995). The real issue presented is whether the revelation that Phillips and his witness may have offered perjured testimony entitle d Phillips to a mistrial. The answer clearly is no. Where a defendant “put[s] in to evidence the testimony of which he now complains” and “ill-advisedly cho[oses ] to present evidence which [is] subject to devastating impeachment,” he “must accept the consequences of the3 He complains of the following remarks by the prosec utor: (1) “Rose

Nelson owed [Tucker and his mother] a big favor, an d she paid them back because she got on that stand and she lied to you,” R. Vol. 15 at 324-25; (2) “[D]efendant got up on the stand, and he told y ou Michael Tucker left the drugs in that car, and that, ladies and gentlemen, was a lie. It was a flat out, baldfaced lie,” id. at 326; (3) “What went on here, ladies and gentlem en, was perjury, (continued...) -10- evidence he offers.” See United States v. Funt , 896 F.2d 1288, 1296 (11th Cir. 1990). A similar analysis would apply even if counsel had been certain the evidence was perjurious. The additional fact that defense counsel faces an ethical dilemma where he knows his client has presented per jured testimony is not grounds for a mistrial. Faced with perjured testim ony, defense counsel is responsible for taking “reasonable remedial measure s,” Colo. R. of Prof’l Conduct 3.3(a)(4), such as seeking to withdraw fromrepresentation or, as counsel did in this case, refusing to present the defense theory in closing argument. Phillips fails to substantiate his argument that th e proper remedy for the ethical dilemmas posed here was a mistrial. “It would be aperversion of adversary process to permit a party to obtain a mistrial based on his own evidence.” Funt , 896 F.2d at 1297 n.7. III. Improper Argument by Prosecutor Phillips next argues that the prosecutor in closing argument improperly attacked the credibility of defense witnesses, 3 and vouched for the credibility of3 (...continued)

with a clear attempt to buy witnesses, to buy a def ense and to suborn perjury. That’s what Elgin Phillips did in this courtroom,” id. at 326-27; (4) “Ladies and gentlemen, I submit to you that the entire defense case was a disgrace . . . . [With the exception of witness Bobby Fox the defense witn esses] lied to you from start to finish, a made-up, bought-for-$10,000 story,” id. at 327.

4 Phillips complains of the prosecutor’s statement that prosecution witness Sharon Tave “has no motive to lie to you. She’s te lling you the truth,” R. Vol. 15 at 325-26. -11- the government’s own witnesses. 4 Since counsel did not object when these comments were made, we review them for plain error. See United States v. Nichols , 21 F.3d 1016, 1018 (10th Cir. 1994). We will rev erse a conviction for plain error only in circumstances where a miscarria ge of justice would otherwise result. See id. Although the prosecutor’s comments here were improper, see id. , we cannot say that they rise to the level of plain error. Co nflicting testimony about Phillips’ story required the jury to conclude that someone was lying. Taken in context, the comment concerning Tave’s credibility underscores her lack of motivation to lie. The prosecutor immediately foll owed the comment by exhorting the jury to examine the evidence rather t han simply taking Tave at her word. See R. Vol. 15 at 326. Moreover, it does not appear that the prosecutor ma de the comments to distract or mislead the jury. The evidence againstPhillips was overwhelming. The district court instructed the jury that arguments of counsel were not evidence-12-

in the case, and that they were the sole judges of the credibility of witnesses. Under these circumstances, we cannot say that the r emarks affected the outcome of his trial. See United States v. Moore , 11 F.3d 475, 482 (4th Cir. 1993). IV. Conviction for “Carrying” a Firearm In his final issue, Phillips contends that the evid ence is insufficient to sustain his conviction for “carrying” a firearm dur ing and in relation to a drug trafficking crime, pursuant to 18 U.S.C. § 924(c)(1 ). He argues that he did not “carry” a firearm because the gun involved was located inside a briefcase in the back seat of his car. This argument is foreclosed by the Supreme Court’s recent decision in Muscarello v. United States , 118 S. Ct. 1911, 1919 (1998), in which the Supreme Court defined “carrying” for purposes o f § 924(c)(1) broadly enough to encompass Phillips’ conduct in this case. The judgment of the United States District Court fo r the District of Colorado is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge