In the

United States Court of Appeals

For the Seventh Circuit

Nos. 00-2495, 00-2701

United States of America,

Plaintiff-Appellee,

v.

Johnelle Elem and Odell Jennings,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97-CR-765--Paul E. Plunkett, Judge.

Argued September 28, 2001--Decided October 23, 2001

 Before Flaum, Chief Judge, and Bauer and

Evans, Circuit Judges.

 Flaum, Chief Judge. Defendants Johnelle

Elem/1 and Odell Jennings (collectively

"Defendants") appeal the district court’s

denial of a motion for a new trial based

upon the government’s failure to comply

with Brady v. Maryland, 373 U.S. 83

(1963), and the Jencks Act, 18 U.S.C.

sec. 3500. Jennings and Elem also contend

that a new trial is warranted because the

prosecution improperly bolstered a

government witness’s credibility. For the

reasons stated herein, we affirm.

I. Background

 On February 5, 1998, a federal grand

jury returned a ten-count superseding

indictment charging Jennings, Elem, and

Clarence Anderson/2 with participating

in a series of five armed bank robberies.

Anderson pleaded guilty to one count of

armed bank robbery and testified before

the grand jury that returned the

superseding indictment against Jennings

and Elem. Anderson also testified for the

government at Jennings’s and Elem’s

trial.

 At trial, Anderson’s testimony described

each of the five armed bank robberies and

identified Jennings and Elem as

participants in the robberies. Moreover,

on direct examination the prosecution

asked Anderson about the lawyer provided
to him during post-arrest questioning.

The following colloquy took place between

the prosecutor and Anderson:

Q. During the day did you ask to speak

with an attorney?

A. Yes.

Q. And did the FBI allow an attorney to

come and visit you?

A. Yes.

* * *

Q. And was he a private attorney?

* * *

A. No.

Q. A private attorney that you had

retained?

A. No.

Q. So how did he come to be your attorney?

A. He’s a government attorney.

Q. Is he a Federal Defender?

A. Yes.

Q. I mean, does he work for the United

States Attorney’s Office or the defense--

A. Yes. The United States Attorney’s

Office.

Q. In the past?

A. Yes.

Q. Does he work for the U.S. Attorney’s

Office now?

A. No.

Q. So who does he work for now?

A. The government--the public defenders

[sic] office.

During the exchange, the district judge

overruled defense counsel’s relevancy

objection. Following a four-day trial, a

jury found both Jennings and Elem guilty

as charged.
 Approximately seven months after the

jury rendered its verdict, Defendants

learned that a journalist named Shane

DuBow published an article in GQ Magazine

about the bank robberies. DuBow had been

a customer in one of the banks at the

time of the robbery and interviewed

Anderson during the course of his

research for the article. The district

court expressed concern that DuBow’s

interviews may have influenced Anderson’s

trial testimony. Accordingly, the

district judge authorized Defendants to

depose both DuBow and Anderson regarding

the timing of the interviews. 

 During the DuBow and Anderson

depositions, Jennings and Elem learned

for the first time that Anderson had

testified before the grand jury that

returned the superseding indictment

against them. However, the prosecution

had never furnished Defendants with a

transcript of Anderson’s testimony.

Jennings and Elem then reviewed

Anderson’s grand jury testimony and

DuBow’s interview notes and identified

several inconsistencies with Anderson’s

trial testimony, including the following:

(1) In his direct examination at trial,

Anderson testified that he supported

himself by robbing drug dealers, whereas

he told Shane DuBow that he in fact sold

illegal drugs. DuBow’s interview notes

describe in some detail Anderson’s drugdealing activity.

(2) Anderson testified at trial that he

received a gun used in the second robbery

from an individual on the street, but he

said before the grand jury that he

received it from a friend named "Pookie."

(3) Anderson testified at trial that he

contacted Jennings to initiate the plan

to rob the first bank. In contrast,

Anderson told the grand jury that

Jennings contacted him, and he agreed to

go with Jennings.

(4) In describing the first robbery at

trial, Anderson testified that before

Defendants entered the bank, Jennings,

Anderson and a third defendant named Joe

Smith obtained sunglasses at a dollar

store. Before the grand jury, Anderson

testified that Jennings sent him and

Smith to purchase the sunglasses.
(5) Anderson provided inconsistent

descriptions regarding the location of a

third defendant immediately following the

fourth robbery. 

 Based upon this evidence, Jennings and

Elem moved the district court for a new

trial. In support of their motion,

Jennings and Elem argued that they could

have used Anderson’s grand jury testimony

and DuBow’s interview notes to impeach

Anderson at trial. Elem also argued that

the identification of Anderson’s attorney

as a former prosecutor improperly

bolstered Anderson’s credibility as

awitness.

 The district court reviewed all of the

relevant material and denied Defendants’

motion. The district court held that the

inconsistencies between Anderson’s trial

testimony and his grand jury testimony

were not material for two reasons. First,

Defendants cross-examined Anderson

onmatters far more damaging to his

credibility; and second, the evidence

corroborating Anderson’s identification

of the Defendants as his accomplices was

overwhelming. This appeal followed.

II. Discussion

A. Anderson’s Grand Jury Testimony

 Jennings and Elem argue that the

government’s failure to deliver

Anderson’s grand jury testimony

constituted a violation of both Brady v.

Maryland and the Jencks Act. Defendants

claim that had they received Anderson’s

grand jury testimony, their crossexamination would have been more

effective and would have altered the

outcome of the trial.

 We review for abuse of discretion the

denial of a motion for new trial based

upon newly discovered evidence claimed to

violate Brady. See United States v.

Asher, 178 F.3d 486, 496 (7th Cir. 1999);

United States v. Silva, 71 F.3d 667, 670

(7th Cir. 1995). 

 1. Brady v. Maryland

 Under Brady v. Maryland, 373 U.S. 83, 87

(1963), the government has an obligation

to disclose favorable evidence that is
material to the case. The prosecution’s

duty to disclose evidence encompasses

both exculpatory and impeachment

evidence. See United States v. Bagley,

473 U.S. 667, 676 (1985). However, a

Brady violation occurs only if the

government withholds evidence that, had

it been disclosed, creates a reasonable

probability that the result of the trial

would have been different. Strickler v.

Green, 527 U.S. 263, 289-90 (1999);

United States v. Stott, 245 F.3d 890, 901

(7th Cir. 2001). The later inquiry is

subjective; "the question is not whether

the defendant would more likely than not

have received a different verdict with

the evidence, but whether in its absence

he received a fair trial, understood as a

trial resulting in a verdict worthy of

confidence." Kyles v. Whitley, 514 U.S.

419, 435 (1995); see also Strickler, 527

U.S. at 289-90.

 In this case, the inconsistencies

between Anderson’s grand jury testimony

and his trial testimony do not undermine

the legitimacy of the jury’s verdict for

several reasons. First, the main purpose

of Anderson’s testimony at trial was to

identify Jennings and Elem as his

accomplices. While Anderson may have

mistaken minor details, nothing in

Anderson’s grand jury testimony weakens

his identification of Jennings and Elem.

Second, the inconsistencies between

Anderson’s grand jury testimony and his

trial testimony would not have the effect

that they must to state a viable Brady

claim--that is, damaging Anderson’s

credibility to such an extent that the

jury would discredit his identification

of Jennings and Elem. The government

never concealed Anderson’s credibility,

but rather directly impeached him by

identifying prior felony convictions,

prior bad acts, prior inconsistent

statements, and bias and prejudice for

his deal with the government./3 Why the

jury would disbelieve Anderson after

hearing that he gave inconsistent

accounts regarding which defendant

actually purchased sunglasses prior to

one of the robberies is beyond

comprehension. 

 Faced with such trivial discrepancies,

the district court held that the

government’s failure to turn over

Anderson’s grand jury testimony did not

result in prejudice because it could have
no conceivable effect on the outcome of

the proceeding. Cf. United States v.

Nash, 29 F.3d 1195, 1202 (7th Cir. 1994)

(rejecting Brady claim where impeachment

evidence "cannot be characterized as

anything but minor" under the facts);

United States v. Montgomery, Nos. 96-

1303, 97-1313, 1997 U.S. App. LEXIS 27227

(7th Cir. October 1, 1997) (unpublished)

(while officer’s notes revealed

inconsistencies with trial testimony,

minor nature of discrepancies would not

have discredited officer’s testimony).

Thedistrict court’s holding does not

constitute an abuse of discretion. 

 2. Jencks Act

 The Jencks Act provides that "witness

statements in the possession of the

United States which relate to the subject

matter as to which the witness testifies

shall be turned over to the defendant for

examination and use." United States v.

Radix Laboratories, Inc., 963 F.2d 1034,

1039 (7th Cir. 1992). Although Anderson’s

grand jury testimony is properly

classified as Jencks Act material, see 18

U.S.C. sec. 3500 (e)(3) (including

statements "made by said witness to a

grand jury"), Defendants’ arguments must

fail for the same reasons described in

our disposition of their Brady claim.

"Although the text of the Act does not

itself require a demonstration of

prejudice, courts have held that relief

may not be granted under the Jencks Act

without such a showing." United States v.

Johnson, 200 F.3d 529, 535 (7th Cir.

2000) (collecting cases). Because neither

Jennings nor Elem suffered any prejudice,

the government’s failure to produce the

grand jury testimony does not warrant a

new trial. See id., citing United States

v. Wables, 731 F.2d 440, 448 (7th Cir.

1984).

B. DuBow’s Interview Notes

 Jennings and Elem next contend that

their "ignorance" of DuBow’s interviews

with Anderson, conducted before and

during Anderson’s preparation as a

witness, impeded their ability to

effectively cross-examine Anderson. This,

Defendants reason, resulted in a

violation of the Sixth Amendment’s

Confrontation Clause, particularly in

light of the government’s failure to turn
over Anderson’s grand jury testimony.

 The Sixth Amendment guarantees each

defendant the right to "be confronted

with the witnesses against him." U.S.

Const., amend. VI. The Supreme Court has

said that "a criminal defendant states a

violation of the Confrontation Clause by

showing that he was prohibited from

engaging in otherwise appropriate

cross-examination designed to show a

prototypical form of bias on the part of

the witness." Delaware v. Van Arsdall,

475 U.S. 673, 680 (1986). Confrontation

Clause violations most often arise when

the district court limits crossexamination to areas that impede the

defendant’s ability to question the

witness. See United States v. Jackson, 51

F.3d 646, 651 (7th Cir. 1995); United

States v. Nelson, 39 F.3d 705, 708 (7th

Cir. 1994). The concern in such cases is

that a defendant have sufficient leeway

to establish "a reasonably complete

picture of the witness," particularly

when the witness’s credibility is at

stake. United States v. Saunders, 166

F.3d 907, 919 (7th Cir. 1999), citing

United States v. Laboy-Delgado, 84 F.3d

22, 28 (1st Cir. 1996).

 In this case, nothing that occurred

during Defendants’ trial remotely

approaches a Confrontation Clause

violation. The government is not required

to relinquish material it does not

possess, of which it was not aware, or

over which it had no control. What

Defendants have failed to do (and what

they cannot do) is identify any action,

either by the prosecution or the trial

court, that prevented them from obtaining

DuBow’s interview notes and using those

notes during Anderson’s crossexamination. Because the disputed

material was equally available to both

parties, Defendants’ inability to obtain

DuBow’s interview notes does not warrant

a new trial. 

C. Questions Regarding Anderson’s

Attorney

 Finally, Jennings and Elem maintain that

the government intentionally bolstered

Anderson’s credibility at trial by asking

several questions regarding whether a

former federal prosecutor represented

Anderson. According to Jennings and Elem,

this bolstering rose to a level that war
rants a new trial. 

 It is true that the government may not

"vouch" for the credibility of government

witnesses. United States v. Cornett, 232

F.3d 570, 575 (7th Cir. 2000). To assess

the impact of a prosecutor’s remarks on

the trial, this circuit engages in a twostep process. First, we consider the

statements in isolation. United States v.

Renteria, 106 F.3d 765, 766 (7th Cir.

1997). If the remarks seem improper, we

then evaluate them "in the context of the

entire record and ask whether they denied

the defendant a fair trial." Cornett, 232

F.3d at 575; Renteria, 106 F.3d at 767.

In Renteria, this court acknowledged that

improper vouching generally falls into

two categories. The first occurs when a

prosecutor expresses her belief in the

credibility of a particular witness; the

second when a prosecutor implies facts

not before the jury that lend a witness

credibility. Id. at 766. 

 In this case, the first is absent

because the prosecutor said nothing that

directly bolstered Anderson’s

credibility. Nor did the government imply

facts tending to lend Anderson

credibility. While the question regarding

Anderson’s counsel was perhaps improper,

it fails to rise to the level of

reversible error. In each of the cases

where this court has found improper

vouching, a direct and cognizable

linkexisted between prosecutorial

comments and the witness’s credibility.

See, e.g., Cornett, 232 F.3d at 575-76

(vouching occurred where prosecutor

commented on occupational integrity of

police officers); United States v.

Johnson-Dix, 54 F.3d 1295, 1304-05 (7th

Cir. 1995) (improper to state that police

officer had no reason to risk career by

lying). See also United States v. Berry,

627 F.2d 193, 198 (9th Cir. 1980)

(prosecutor’s argument that government

had kept itswitnesses separated to ensure

the truthfulness of their testimony was

improper). In contrast, the questions in

this case do not necessarily lead to the

inference that Anderson is credible.

 Furthermore, even if the prosecution

intended the jury to draw an inference

regarding Anderson’s credibility, we find

that the risk to Defendants’ "substantial

rights" was slight, and any error that

occurred was harmless. Cornett, 232 F.3d
at 576; United States v. Keskey, 863 F.2d

474, 480 (7th Cir. 1988). As noted above,

both the prosecution and defense counsel

did an adequate job of impeaching

Anderson’s credibility. The fact that a

former federal prosecutor represented

Anderson surely did not tip the scales in

favor of credibility. As a result, the

district court’s decision to deny

Defendants’ motion for a new trial was

not an abuse of discretion.

III. Conclusion

 Jennings and Elem failed to establish

that the government’s misconduct caused

them any prejudice at trial. Nor have

they demonstrated that any government

action deprived them of the right to

cross-examine the prosecution’s

witnesses. Accordingly, the decision of

the district court is AFFIRMED.

FOOTNOTES

/1 Throughout the proceedings below, Elem was alternately referred to as "Johnelle" and "Johnell."

The proper spelling, based upon all relevant

briefs and the government’s indictment, is

"Johnelle."

/2 The indictment charged additional defendants not

relevant to this appeal.

/3 Defense counsel’s cross-examination was equally

damaging to Anderson’s credibility. Anderson

admitted lying to government investigators about

his name, the number of people who were involved

in the series of bank robberies, his brother’s

alleged lack of involvement in the robberies, the

kind of weapon used in the second robbery, and

the fate of a vehicle used in the second robbery.