1

The Honorable Joan N. Ericksen, United States District Judge for the District

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-1756

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Jose Angel Almendares, *

*

Defendant - Appellant. *

___________

Submitted: November 15, 2004

Filed: February 11, 2005

___________

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.

___________

MURPHY, Circuit Judge.

A jury convicted Jose Angel Almendares of aggravated bank robbery, and the

district court1

 sentenced him to 78 months. Almendares argues on appeal that the

district court erred by denying his motion to suppress DNA evidence and that it

abused its discretion by admitting evidence of a prior armed robbery and by denying

his motion for a new trial based on the government's failure to disclose evidence. We

affirm.
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I.

A masked man armed with a handgun robbed the United Prairie Bank in Round

Lake, Minnesota on the morning of June 3, 2003. He used few words and relied

mostly on gestures with his gun to direct people around the bank. One of the bank

employees, who was forced out of his office and onto his knees, testified that the

robber pressed the gun into his neck and shoulder as he knelt. The robber alternated

between threatening him and pointing his gun at the two tellers. He placed a white

plastic bag with blue lettering on the counter and directed a teller to fill the bag with

cash, and she placed over $7,800 in it. Included in the cash was $500 bait money in

the form of marked twenty dollar bills.

The robber left the bank through the front entrance. One of the employees

watched him go outside, take off his ski mask, and turn the corner, but she was unable

to see his face. The bank employees described the robber as an Hispanic man in his

twenties or early thirties, between 5'7" and 5'10" tall, weighing 175 to 190 pounds,

with a medium to dark complexion. He was wearing shorts, a gray sweatshirt, white

work gloves, and a black ski mask with three holes cut out.

Bruce Bentele was stopped at an intersection near the bank when he saw a man

come around the corner. He described him to police as Hispanic, 5'8" to 5'9" tall, of

medium build, with short dark hair and a mustache. Bentele testified at trial that the

man was carrying a white bag and had messy hair that looked like he had taken off

a stocking cap. He was about eight feet from Bentele, and he waved and asked

Bentele how the day was going as he walked quickly towards a light colored car.

While Craig Patten was stopped at the same intersection, he saw a man run

down the street with a white bag after turning the corner. Patten saw him wave to

Bentele in his pickup and run to a light blue gray car. He looked around, threw the

white bag on the front seat, got into the car, and then accelerated quickly on the way
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out of town. Patten described the man as an Hispanic male in his mid twenties, with

dark hair and a mustache.

Law enforcement officers learned that Jose Almendares had cashed a check at

the bank the morning of the robbery, and they arranged an interview with him that

evening. Jose acknowledged that he had been at the bank and that he had been

driving a gray Chevrolet Lumina which belonged to his brother Holvin. Jose

informed the officers that his own car was being repaired, and the next day an officer

discovered that Jose had paid a mechanic $1,460 in cash for repairs to his car. That

cash included $420 in bait bills from the robbery, as well as $500 in $10 bills

wrapped in rubber bands. The United Prairie Bank stores its ten dollar bills in that

way.

Officers obtained a search warrant for the place where Almendares lived with

his brothers, Alexis, Holvin, and Roger, and his cousin Alex. During the search

officers found $1,435 in cash, including three of the $20 bait bills. The bait money

was found in Jose’s room, along with two shopping bags with blue or purple lettering.

In other buildings on the property, the officers found a black ski mask and white

gloves similar to those described by witnesses to the robbery. All five Almendares

men were arrested. Subsequently officers learned that Jose Almendares had sent a

$4,500 wire transfer to Honduras the day after the robbery.

FBI Special Agent Drew Helms showed a photo lineup to Bentele the day the

five men were arrested. In the lineup were photographs of the five Almendares men

and two other Hispanics. Agent Helms arranged the seven photographs on a table

and asked Bentele if he recognized any of the men and from where. After viewing

the photographs, Bentele picked up the picture of Holvin Almendares and said "I

think this is the guy" or "It looks like this guy but I'm not sure." Helms did not

include this information in his 302 report which was turned over to Almendares
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before trial, together with a handwritten note Helms left for a sheriff's deputy stating

"No I.D.!?".

The day after Jose's arrest for the bank robbery, a police officer requested a

DNA sample from him as part of an investigation into an earlier robbery and sexual

assault at a Mexican variety store in Worthington, Minnesota. That crime had taken

place some seven months before, and Worthington is 12 to 15 miles from Round

Lake. After realizing that Jose did not speak English well, the officer called a

telephone interpreting service. Through the interpreter the officer told Almendares

that he was investigating a different case and that he wanted a sample of his DNA.

They then went over a consent form, line by line. Because the preprinted form was

prepared for search of a car or building, the officer wrote in "DNA sample by mouth"

and told the interpreter to tell Almendares that he wanted a sample from his mouth.

Almendares signed the consent form, and the interpreter told the officer that Jose had

said it was "okay" to take the sample. After Almendares signed the form and the

interpreter was about to end the call, the officer asked, "He told you that I can take

the sample, right?" The interpreter answered, "yes sir." The DNA evidence collected

from Jose Almendares matched the DNA left at Video Lupita, the Mexican variety

store, in October 2002, but the DNA collected from the other Almendares men did

not.

A preliminary hearing was held on June 9, 2003, four days after Bentele saw

the photo lineup. Defense counsel questioned Agent Helms about any photographic

lineups that had been conducted during the investigation of the bank robbery. Helms

testified that he had conducted such a lineup but that Bentele had not identified

anyone and had been unable to distinguish any of the men in the pictures. Jose

Almendares was indicted on July 1, 2003, for aggravated bank robbery in violation

of 18 U.S.C. § 2113 (a), (d).
2

The Honorable Jonathan Lebedoff, Chief United States Magistrate Judge for

the District of Minnesota.

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Almendares moved to suppress the DNA evidence, arguing that he had not

consented to the search and that the officer had unreasonably relied on the

interpreter's statement that he had. After a de novo review of the record, the district

court adopted the report and recommendation of the magistrate judge2

 to deny the

motion. The court found that the officer conducting the search had reasonably

believed that Almendares had consented to the search, and it concluded that the

evidence would have been inevitably discovered in any event because that officer had

been instructed to obtain a search warrant if necessary.

When a defense investigator talked to Bentele, he said that he had identified

a man in the lineup as the robber, but he was unable to say who it was he had

identified. Due to the inconsistency between Bentele's statement and Agent Helms'

testimony at the preliminary hearing, Almendares moved for an order compelling

disclosure of any Brady material, in particular "[a]ny identification of persons other

than the Defendant by witnesses to the alleged crime(s)." At the motion hearing, the

defense again questioned Agent Helms about the lineup, and Helms testified that

Bentele had not been able to recognize anyone in the photographs and had not

positively identified the robber. The court entered an order compelling disclosure of

evidence favorable to the defense, but nothing was provided to indicate Bentele had

made any type of identification. A few weeks later a defense investigator showed

Bentele the photo lineup that had been entered into evidence during the hearing, but

Bentele was unable at that time to identify which photograph he had picked out some

four months earlier.

Almendares also moved to exclude evidence of the Video Lupita crime. The

court decided to admit evidence of the prior armed robbery, but to exclude any

evidence of the sexual assault because of undue prejudice. The parties reached a
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stipulation to ensure that the jury would not learn about the sex crime, and the court

excluded evidence of the sexual assault which had produced the DNA evidence

matched with Jose Almendares. Before leaving Video Lupita, the robber had taken

the clerk into the back of the store, told her to undress, and then ejaculated on her

body. A DNA sample was taken from the victim's underwear, but at trial she testified

only that the robber had left material at the scene which had been turned over to the

police.

The trial testimony began with bank employees. Barbara Bosma testified that

on her way to work the morning of the robbery, she saw a charcoal gray or slate blue

Chevy Lumina driven by a man wearing a stocking cap even though the weather was

not that cold. She later saw the same man try to get into the bank lobby before it

opened at 9:00 a.m. and then go over to the walk up window which opens earlier than

the lobby. The teller at the walk up window testified that Jose Almendares was the

only window customer before the lobby opened that morning.

The prosecutor called Bentele to the stand on the second day of trial. On direct

examination he said that he had identified someone at the lineup who he thought was

the robber. Almendares moved for a mistrial, arguing that the government had

suppressed Brady material. The prosecutor responded that he had just learned that

morning that Bentele had picked a photo out of the lineup and that Agent Helms had

told him he only regards an identification as positive if it is certain. During a break

Helms then told defense counsel that Bentele had identified Holvin Almendares as

the man he thought was the robber, and this was in turn reported to the district court.

The court denied the motion for mistrial, observing that the defense had discovered

before trial that Bentele had picked out a man at the lineup and that it could have

asked Helms about it before trial.

There were also witnesses who knew the Almendares men from their work at

New Fashion Pork. Lowell Baumgarn testified that he saw Jose driving a gray
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Chevrolet Lumina about twenty minutes after the robbery, on a road where he had not

expected to see him. Baumgarn said that Jose slowed down and made a low wave,

but he did not stop to talk as he normally would have. Lowell’s father, Byron

Baumgarn, testified that he had seen Jose at work early on the morning of the bank

robbery and had seen a black ski mask hanging on a hook near him. Byron noticed

that he was wearing shorts which struck him as unusual because Jose usually wore

coveralls at work. Byron said that Almendares had asked that morning to borrow

$1,500 for car repairs and a plane ticket, pleading that he desperately needed the

money. Byron also testified that later that afternoon he saw a black stocking cap in

the open trunk of the gray Lumina, then parked near a building where Jose and his

brother Roger were working. He also said that Jose seemed shaky and nervous that

afternoon. Two other coworkers who looked at the bank surveillance photos testified

that out of the five Almendares men, Jose most closely matched the description of the

robber. The photos also show that the little finger of the robber's left glove did not

appear to be filled, and there was evidence that Jose had lost part of his left little

finger.

The victim of the Video Lupita robbery testified at trial that a man with a gun

entered the store around 8:00 a.m. on October 30, 2002. He placed a sign on the front

door that read "closed today thank you" in Spanish, locked the front door, and turned

off the lights. The man was wearing a black ski mask with three holes in it, white

gloves, sweat pants, and a gray hooded sweatshirt. He spoke Spanish and told her to

give him the money or he would shoot, to hurry up, and not to say anything or

scream. The victim described the man as 5'8" to 5'9" tall and "bulky" but not fat. He

pointed the gun towards her back and shoulder and walked her around the counter to

get the money for him, and she could feel the gun being pressed into "the back part

of [her] shoulder." The robber pointed to an orange plastic bag on the floor that she

did not think had been in the store before he entered, and together they put money and

jewelry in the bag. The court gave a limiting instruction on the use of the robbery

evidence, telling the jury it could use the evidence to help decide whether any
-8-

similarity between it and the bank robbery suggested that the same person committed

both acts. It also told the jury that "the mere fact that the defendant may have

committed a similar act in the past is not evidence that he committed such an act in

this case" and that it could not convict him simply because jurors believed he may

have committed a bad act in the past.

After a five day trial, the jury convicted Almendares of aggravated bank

robbery, in violation of 18 U.S.C. § 2113(a), (d). He moved for a new trial, arguing

that the government's failure to disclose Bentele's identification of Holvin violated

his rights under Brady v. Maryland, 373 U.S. 83, 87 (1963) (due process violated if

prosecution suppresses evidence favorable to defendant and material to guilt or

punishment). In ruling on the motion the district court observed that Almendares had

known before trial that Bentele had identified another individual and that Agent

Helms admitted during trial that Bentele had identified Holvin; Almendares therefore

had sufficient time to prepare his defense and use the evidence at trial. The court

characterized Bentele's identification of Holvin as weak and inconclusive and noted

that the government's case had not depended on Bentele's identification. The court

denied the motion for new trial and sentenced Almendares to 78 months

imprisonment. Almendares appeals.

II.

On appeal, Almendares argues that the district court clearly erred in its

determination that the police officer reasonably believed he had consented to the

DNA search and that that evidence would have been inevitably discovered. He also

argues that the court abused its discretion in admitting evidence of the Video Lupita

robbery and in denying his motion for a new trial.
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A.

Almendares contends that the district court clearly erred in finding that the

police officer had a reasonable belief that he had consented to the DNA search. The

officer used a consent form intended for the search of a building or vehicle rather than

a person, and Almendares argues that it was unreasonable for him to rely on a

translation over the telephone. Almendares contends that the interpreter incorrectly

interpreted the acronym "DNA" and his responses, such as interpreting "mmmhhh"

as "yes," and that the officer showed he did not believe there was consent because he

asked the interpreter after the form had been signed, "He told you I can have the

sample, right?" Almendares argues the officer unreasonably relied on the interpreter's

opinion that he had consented.

The government argues that it was objectively reasonable for the officer to

believe that Almendares had consented to the DNA swab. The government notes that

Almendares was told that the officer wanted a sample from his mouth, that after

listening to a translation he signed a form consenting to a "DNA sample by mouth,"

that the interpreter told the officer that Almendares said it was okay to take the

sample, and that Almendares opened his mouth for the swab. See United States v.

Hampton, 260 F.3d 832, 835 (8th Cir. 2001) (consent found where individual opened

the door and allowed police to enter). The government also asserts that the general

atmosphere of the search was noncoercive and that Almendares' conduct supports a

finding of reasonableness because he did not seem nervous, appeared competent, and

was not under the influence of drugs or alcohol.

We review the district court's finding of consent for clear error. United States

v. Morreno, 373 F.3d 905, 910 (8th Cir. 2004). A warrantless search does not violate

the Fourth Amendment if knowing and voluntary consent was given. United States

v. Cedano-Medina, 366 F.3d 682, 684 (8th Cir. 2004). The government bears the

burden of proving voluntary consent by a preponderance of the evidence and must
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show that on the totality of the circumstances the officer reasonably believed that the

search was consensual. Id. at 684-85; United States v. Sanchez, 156 F.3d 875, 878

(8th Cir. 1998). In examining the reasonableness of the officer's belief, we consider

the nature of the encounter and the characteristics of the consenting party, including

the party's age, intelligence and education, whether he was under the influence of

drugs or alcohol, whether he was informed of his right to withhold consent, and

whether he was aware of rights afforded criminal suspects. United States v. Chaidez,

906 F.2d 377, 380-81 (8th Cir. 1990).

In this case the translated record of the telephone call with the interpreter

indicates that she told Almendares that the officer wanted to take a sample from his

mouth and that he could withdraw his consent at any time. Almendares also said he

understood the contents of the consent form before signing it. The police officer

testified at the suppression hearing that he had not understood the Spanish exchange

between Almendares and the interpreter, but that he had no reason to think the term

"DNA" had been interpreted incorrectly. At the end of the telephone call, the officer

checked again with the interpreter to make sure that Almendares had said he could

take the sample, and the interpreter said yes. Almendares cooperated with the taking

of the sample by opening his mouth and did not object at any time. The officer also

testified that Almendares was pleasant, cheerful, and polite during the interaction.

We have upheld consent findings in similar situations where the subject did not

speak English. See e.g., Cedano-Medina, 366 F.3d at 685-87 (officer reasonably

believed that suspect consented to search of truck when he opened the door and stood

back during search even though he spoke broken English and initially appeared

confused); Sanchez, 32 F.3d at 1335-36 (consent found where one defendant

interpreted for the other, both signed a consent form and cooperated, and neither

objected). We conclude after our review of the record that the district court did not

clearly err in finding consent.
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B.

Almendares also contends that the district court abused its discretion by

admitting the Video Lupita robbery evidence under Rule 404(b) on the issue of

identity, without first having determined that there were unique similarities between

the two robberies, citing United States v. LeCompte, 99 F.3d 274, 278 (8th Cir. 1996)

(similarities must tend to prove unique modus operandi). We explained in United

States v. Carroll, 207 F.3d 465, 469 (8th Cir. 2000), that before admitting evidence

of a prior act on a theory of signature facts or modus operandi, the district court

should make a threshold determination that the evidence would permit the jury to find

that the same person committed both crimes because of their similarities. Almendares

argues that the district court did not make that finding and that the two robberies were

very different. He claims there were only a few similarities, such as use of a ski

mask, a gun, and gloves, and that they were too common to satisfy the test for modus

operandi evidence. Almendares also contends that the prejudice to him substantially

outweighed the probative value of the evidence and prevented him from receiving a

fair trial.

The government responds that the district court did not abuse its discretion in

admitting evidence of the Video Lupita robbery, given the similarities in the crimes

and the short time between them. It contends that evidence of the Video Lupita

robbery was particularly probative on the issue of identity because Jose’s trial

strategy was to show that one of his brothers had committed the bank robbery and the

brother looked like Jose. The district court also took proper steps to limit the danger

of unfair prejudice it says, and the evidence was also admissible to prove intent or

absence of mistake or accident.

The district court has broad discretion in admitting other crimes evidence.

United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987). We review its Rule 404(b)

decision for abuse of discretion and "reverse only when such evidence clearly had no
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bearing on the case and was introduced solely to prove the defendant's propensity to

commit criminal acts." United States v. Howard, 235 F.3d 366, 372 (8th Cir. 2000)

(quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998), cert. denied,

525 U.S. 1169 (1999)). Under Rule 404(b), evidence of a prior crime, though

inadmissible to show that a person acted in conformity with the prior act, may be

admissible for other purposes, such as "proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident." Fed. R.

Evid. 404(b). Such evidence is admissible if it is (1) relevant to a material issue; (2)

similar in kind and close in time to the crime charged; (3) proven by a preponderance

of the evidence; and (4) if the potential prejudice does not substantially outweigh its

probative value. Carroll, 207 F.3d at 469 n.2; Howard, 235 F.3d at 372. The district

court instructed the jury that it could consider evidence of the Video Lupita robbery

to show identity.

If the conduct underlying the prior act and the current charged offense involved

a unique set of "signature facts," then evidence of the prior act is admissible to show

that the same person committed both crimes. Carroll, 207 F.3d at 468. In order to

admit identity evidence on a signature facts or modus operandi theory, the district

court must make a threshold determination that a reasonable juror could find from

comparing the acts that the same person committed both crimes. Id. at 469. Two

factors relevant to this determination are the distinctiveness of the facts that make the

crimes unique and the distance between the crimes in space and time. Id.

In this case an Hispanic male committed both robberies, and eyewitnesses to

both crimes gave similar descriptions of his height and build. The Video Lupita

robber wore a black ski mask, a gray hooded sweatshirt, sweat pants, and white

gloves; the bank robber wore a black ski mask, a gray sweatshirt, jean shorts, and

white gloves. In both instances the robber spoke very few words, used a handgun

aggressively to direct the victims, and pushed his gun into their shoulders. The Video

Lupita robbery took place at 8:00 a.m. just after the store opened. Although the bank
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robbery occurred at 11:00 a.m., testimony showed that Almendares had cashed a

check at the bank before the lobby opened at 9:00 a.m. The bank robbery took place

seven months after the Video Lupita robbery, and the fifteen mile distance between

the robberies was small, particularly since both took place in a rural area. See United

States v. Smith, 103 F.3d 600, 603 (7th Cir. 1996) (forty mile distance between

crimes was small, especially when considered in the context of rural northwest

Wisconsin).

We are satisfied that the district court applied the correct standard in admitting

the prior crimes evidence. The district court applied the Rule 404(b) factors and

found that the robberies were similar and close enough in time to be relevant on the

issue of identity. As we noted in Carroll, the threshold question of whether a

reasonable juror could conclude that the same person committed both crimes is

essentially no different from the inquiry in the first two parts of the general Rule

404(b) test. Carroll, 207 F.3d at 469 n.2. 

The district court also gave a limiting instruction to the jury telling it that the

evidence could not be used to show that Almendares would be more likely to have

committed the bank robbery if he had committed a robbery in the past. The use of

such an instruction decreases the danger that unfair prejudice will result from

admission of the evidence. United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987).

The district court was also careful to keep the jury from learning about the sexual

assault at Video Lupita to prevent unfair prejudice to Almendares. Deference is due

its judgment in balancing the probative value of evidence against its prejudicial

effect. Id. We conclude that the district court did not abuse its discretion in admitting

evidence of the Video Lupita robbery.
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C.

Almendares argues that the government's failure to disclose Bentele's

identification before trial impaired his pretrial investigation and forced him to change

his strategy in the middle of trial and that the district court failed to consider the

effect the nondisclosure had on his defense. Before learning that Bentele had

identified Holvin, the defense strategy was to show that any one of the other

Almendares men could have robbed the bank. They looked alike, and Jose could

argue the reason he had the bait bills was that the others turned over their money for

him to pay their expenses. If he had known about Bentele's identification he says, his

defense would have focused on an investigation of Holvin and would have

approached the cross examination of Bentele differently. Almendares argues that he

was unable to use the late disclosure effectively because even though he was able to

refocus his defense on Holvin, he still had to mention his other relatives as promised

in his opening. The respective heights, weights, builds, and facial features of Holvin

and Jose became especially important, and the defense had to rely on pictures and

witness testimony about Holvin since he had meanwhile been deported to Honduras.

It claims that it would have sought a material witness warrant to stop his deportation

if it had known about Bentele's identification earlier.

Almendares complains that Helms gave false and misleading testimony at the

preliminary and motion hearings, that the government violated a court disclosure

order, and that confidence in the verdict was undermined as a result. Since the jury

deliberated for two days and twice sent notes to the judge asking what to do if it could

not reach a unanimous decision, this was a close case he contends. He argues the

government should not be permitted to disclose evidence at the last minute and that

failure to find a Brady violation here would create an intercircuit conflict with Grant

v. Alldredge, 498 F.2d 376 (2d Cir. 1974) (Brady violation when identification not
3

Almendares also suggests that his due process rights were violated even if

there were no Brady violation, citing United States v. Gonzales, 90 F.3d 1363, 1369

n.3 (8th Cir. 1996), and Nassar v. Sissel, 792 F.2d 119, 122 (8th Cir. 1986). Due

process is generally satisfied if evidence is disclosed in time for the defense to take

advantage of it, Nassar, 792 F.2d at 121, and that was the case here.

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disclosed prior to trial and evidence would have led to other information that could

have produced reasonable doubt).3

The government argues that there was no Brady violation because Almendares

knew before trial that Bentele had identified someone, learned at trial that he had

identified Holvin, used that evidence at trial, and its disclosure did not affect the trial

outcome. In its opening statement the defense said that any of the other Almendares

men, including Holvin, could have committed the robbery and that "it was Holvin that

was really the one who needed the money." The government notes that Helms was

extensively crossexamined during its case, that he was recalled by the defense in its

case to testify about the lineup, and the fact that Bentele had identified Holvin was

used repeatedly at trial by the defense. The defense introduced several photographs

of Holvin and questioned witnesses about his physical description and his need for

money and also presented evidence that any of the other Almendares could have

committed the robbery. The government contends that even if the pretrial

nondisclosure were a Brady violation, the error would be harmless given the strong

evidence of Jose's guilt.

The government states in addition that the prosecution had not known that

Bentele had identified anyone at the lineup until he was crossexamined at trial and

until Helms revealed that he had picked out Holvin’s picture. It also explains that

Helms previously testified that Bentele had not recognized anyone at the lineup

because he had interpreted the questions to ask whether Bentele had made a positive

identification and Helms did not believe he had.
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To establish a Brady violation, a defendant must show that the government

suppressed exculpatory evidence that was material either to guilt or to punishment.

United States v. Ryan, 153 F.3d 708, 711 (8th Cir. 1998). Evidence is material under

Brady "'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) (quoting United States v. Bagley, 473 U.S.

667, 682 (1985) (opinion of Blackmun, J.)). The critical question, however, is

whether the defendant received a trial resulting in a verdict worthy of confidence.

Kyles, 514 U.S. at 434. We review the district court's denial of a new trial motion

based on a Brady claim for abuse of discretion. United States v. Gary, 341 F.3d 829,

832 (8th Cir. 2003).

We do not approve of any government agent avoiding a forthright disclosure

of relevant information. Even if Agent Helms interpreted Bentele's identification at

the lineup to be tentative or unsure, it should have been disclosed. Failure to disclose

such information could lead to a reversal and remand for a new trial if it seriously

affected the defendants' rights. Bagley, 473 U.S. at 675-76. Although a defendant's

Brady rights are violated if he discovers information after trial "which had been

known to the prosecution but unknown to the defense," Nassar v. Sissel, 792 F.2d

119, 121 (8th Cir. 1986), the same is not true if the evidence is discovered during

trial. United States v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996). Under the rule

in our circuit Brady does not require pretrial disclosure, and due process is satisfied

if the information is furnished before it is too late for the defendant to use it at trial.

Nassar, 792 F.2d at 121.

Here, Almendares was able to use the information at trial, the jury was aware

that Bentele had identified Holvin, defense counsel chose not to recall Bentele to the

stand, and Helms was crossexamined regarding Bentele's identification and his own

testimony. Pictures of Holvin and his need for money were introduced into evidence,

and defense counsel argued in closing that Bentele's identification of Holvin created
-17-

a reasonable doubt as to Jose’s guilt. The prosecutor was not involved in suppressing

the evidence, and it was disclosed in time to be used effectively at trial.

There was also strong evidence pointing to Jose’s guilt. He met the description

of the robber, and his missing finger was consistent with the bank surveillance picture

showing the robber's gloved left hand. Officers found bait bills in Jose's room, he

used bait money to pay a mechanic, he was seen by a bank employee wearing a

stocking cap in the car on the morning of the robbery, and a stocking cap was later

seen in the trunk of the car he had driven. His coworkers testified about his unusual

behavior that day, the presence of a ski mask near him at work, and his expressed

need for money. The DNA evidence indicated that Jose had committed a similar

morning robbery seven months earlier, where a gun had also been pressed against the

victim and used to direct activity, the proceeds had been gathered in a plastic bag, and

the robber spoke no English. We conclude that the result of the trial would not have

been different if Bentele's identification had been disclosed earlier, Kyles, 514 U.S.

at 433-34, and that the district court did not abuse its discretion in denying the motion

for a new trial.

III.

The district court did not clearly err in finding that the officer reasonably

believed that Almendares had consented to the DNA search, and it did not abuse its

discretion in admitting evidence of the Video Lupita robbery. The district court also

did not abuse its discretion by denying the motion for a new trial because Almendares

was able to use the Bentele identification evidence at trial and there was other strong

evidence pointing to his guilt. We therefore affirm the judgment.

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