The Honorable Pasco M. Bowman succeeded the Honorable Richard S. Arnold 1

as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close

of business on April 17, 1998.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1671

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas

Kenneth Edward Stuart, *

*

Appellant. *

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 Submitted: April 14, 1998

 Filed: July 31, 1998 

___________

Before McMILLIAN, BOWMAN and MURPHY, Circuit Judges. 1

___________

McMILLIAN, Circuit Judge.
The Honorable Harry F. Barnes, United States District Judge for the Western 2

District of Arkansas.

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Kenneth Edward Stuart appeals from a final judgment entered in the United

States District Court for the Western District of Arkansas upon a jury verdict finding 2

him guilty of knowingly making false and fictitious statements to a firearms dealer in

violation of 18 U.S.C. § 922(a)(6) and being a felon and knowingly possessing a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). The district court imposed

a mandatory sentence of 15 years on each count to run concurrently, 3 years supervised

release and a special assessment of $100.00. Appellant argues for reversal that the

district court erred in denying his motion for a new trial because the government

suppressed exculpatory evidence. For the reasons given herein, we affirm. 

I.

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. Jurisdiction on

appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal was timely filed

pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure. 

II.

On October 12, 1994, a licensed, federal firearms dealer sold appellant a deer

hunting rifle. To complete the transaction, appellant filled out a form required by

federal law, ATF Form No. 4473. Appellant answered “no” to the question asking

whether the purchaser had ever been convicted of a crime punishable by imprisonment

for a term exceeding one year. If the question had been answered “yes,” the dealer

could not have legally sold the purchaser a firearm. Form No. 4473 contained the

buyer’s driver’s license number and the buyer’s signature at the bottom. Expert

testimony established that the handwriting on Form No. 4473 was appellant’s

handwriting, and that the firearm sold to appellant had been transported in interstate
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commerce. The records supervisor at the Arkansas Department of Corrections (ADC)

testified that her records showed that appellant had been convicted of manslaughter,

two counts of burglary and two counts of theft of property for which he had been

sentenced to five years imprisonment. Each charge was a felony. Fred Prevo, Jr., an

inmate at ADC, testified that he purchased the rifle but that appellant made the actual

purchase and filled out the form as a favor because he had neither identification nor

money. Prevo also acknowledged reviewing a copy of his testimony before the grand

jury that defense counsel had given him. Appellant testified and denied that he had

completed Form No. 4473, but admitted to signing his name on the form. He also

testified that he had lent Prevo the money to buy the rifle.

After he was convicted, appellant filed a motion for a new trial alleging that the

government had suppressed the grand jury testimony of Cartina Manning. According

to her affidavit, which appellant attached to his motion for a new trial, Manning

testified before the grand jury that the rifle belonged to Prevo and not to appellant. The

district court denied the motion, ruling that Manning’s grand jury testimony was neither

suppressed nor material. United States v. Stuart, Crim. No. 96-4003-001, slip op. at

2 (W.D. Ark. Mar. 3, 1997) (order) (citing United States v. Sheffield, 55 F.3d 341, 343

(8th Cir. 1995)). This appeal followed.

III.

The sole issue raised in this appeal is whether the government suppressed

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963) (Brady).

Appellant argues that the failure of the government to disclose Manning’s grand jury

testimony requires a reversal because it was evidence that could have resulted in an

acquittal. This court will not disturb a denial of a motion for a new trial unless the trial

court has abused its discretion. United States v. Davis, 785 F.2d 610, 618 (8th Cir.

1986); Vasser v. Solem, 763 F.2d 975, 979 (8th Cir. 1985).
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A Brady claim can succeed, if, but only if, appellant can establish that (1) the

government suppressed evidence, (2) such evidence was favorable to the defense, and

(3) the suppressed evidence was material to the issue of guilt or punishment. United

States v. Turner, 104 F.3d 217, 220 (8th Cir. 1997). Evidence is not suppressed if the

defendant has access to the evidence prior to trial by the exercise of reasonable

diligence. United States v. White, 970 F.2d 328, 337 (7th Cir. 1992). “[R]egardless

of whether the evidence is material or even exculpatory, when information is fully

available to a defendant at the time of trial and his [or her] only reason for not obtaining

and presenting the evidence to the Court is his [or her] lack of reasonable diligence, the

defendant has no Brady claim.” United States v. Brown, 628 F.2d 471, 473 (5th Cir.

1980). Here, the government attorney, about three months prior to trial, delivered to

appellant, in response to his discovery motion, the Prevo grand jury testimony. See

Appellee’s Appendix at 2 (referring to grand jury testimony attached as Ex. A). During

an exchange between the government attorney and Prevo pertaining to the truthfulness

of Manning’s grand jury testimony, the government attorney specifically referred to

Manning’s grand jury testimony that Prevo brought the rifle to her house, and Prevo

testified that Manning’s testimony on that point was not true. Appellant knew of and

had an opportunity to request and read Manning’s complete grand jury testimony. This

he failed to do. When defendants fail to recognize the exculpatory nature of documents

to which they have access, Brady cannot be invoked to resuscitate their defense after

conviction. United States v. White, 970 F.3d at 337. Consequently, we hold that the

government did not suppress Manning’s grand jury testimony and that the district court

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

Accordingly, the judgment of the district court is affirmed.
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A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.