In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3223

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAWN W. BLAND,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 05 CR 30050—Jeanne E. Scott, Judge.

____________

ARGUED MARCH 26, 2007—DECIDED FEBRUARY 25, 2008

____________

Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. After a jury found him guilty of

armed bank robbery and using a firearm during that

offense, Shawn Bland was sentenced to consecutive

terms of 63 and 84 months’ imprisonment. On appeal,

Bland argues he is entitled to a new trial because the

government failed to disclose potential Brady materials

until after his trial. Bland also faults the district court

for not conducting an independent in camera review of

these materials and instead simply accepting the government’s characterization of their contents. Because Bland

has not established that the government committed a

Brady violation and the district court had no independent

duty to review the putative Brady materials, we affirm.
2 No. 06-3223

I. Background

On the morning of March 24, 2005, Vania Anderson, a

teller at the National City Bank in Springfield, Illinois,

saw an African-American male walk into the bank wearing a gray hooded sweatshirt with the hood pulled tightly

around his face. The man produced a small black handgun

and announced he was robbing the place. The robber

tossed a black bag over the teller counter at Stacy Huntington, another teller. As Huntington bent down to pick

up the bag, the robber warned her not to trigger any

alarms. The robber then ordered two other bank employees, Wendy Friedrich and Linda Brown, to come out of

their offices, presumably so he could keep an eye on them.

As he had with Huntington, the robber warned them not

to set off any alarms. Once Brown was out of her office, the

robber pulled the slide of the gun back, emphasizing he

was ready to use it.

Brown, who was the bank’s office manager, told the

other employees to follow the robber’s instructions. While

the other employees held their hands up where the robber

could see them, Huntington emptied her cash drawer

into the black bag before handing it to Anderson, who

did the same with her drawer. The robber then took back

his bag, now filled with cash, and asked if there was a

vault. Brown responded that the employee with access

to the vault had not yet arrived for the day. When the

robber asked where the back exit of the bank was, Brown

said that door was locked. She explained that the keys

were in her pocket, but said she would need to lower her

hands to get them. Apparently dissatisfied with this

answer or simply not wanting to remain in the bank

any longer, the robber made his getaway through the

bank’s front door, escaping with over $4500 in cash. With

the robber gone, Brown locked the bank’s doors, and

Huntington and Anderson set off alarms. Janet Moser, a

customer sitting in her car outside the bank, sensed
No. 06-3223 3

something was amiss inside the bank and followed

the robber for a few blocks before eventually losing sight

of him. The police arrived at the bank within five minutes.

A crime technician with the Springfield Police Department lifted a partial palm print, a hand heel print, and

some fingerprints from the inside surface of the bank’s

front doors. Testimony at trial established that those

doors were cleaned nightly by housekeeping. The prints

were later identified as Bland’s. Eyewitnesses Friedrich,

Brown, and Huntington were interviewed by FBI Special

Agent Terrence Moody; Janet Moser was interviewed

by the Springfield police. A week or two later, Agent

Moody and another FBI Special Agent, Chris Pyle, presented a photo array containing Bland’s photo to Anderson, Friedrich, and Huntington. Anderson and Friedrich

identified Bland as the robber; Huntington identified a

different person.

In the meantime, three days after the robbery, Bland

was arrested for driving on a suspended license, and a

search of his car turned up a small black handgun. Bank

employees later identified the gun as similar to the one

used in the robbery. Bland was detained on state charges

in the Logan County Jail; while there, he made several

taped telephone calls in which he referred to giving his

sister $4000 to hold for him. On April 2, 2005, Springfield

Detective James Graham and Special Agent Moody

conducted a videotaped interview of Bland. Bland initially

denied having been at the bank on the day of the robbery; he later admitted being in the bank, but only to

obtain penny rolls for his mother. Bank employees said

that no one had come to the bank asking for penny rolls

on the day—or even the week—of the robbery. During the

videotaped interview, Graham used various ruses and

false statements—e.g., falsely telling Bland that the

police found marked bills in Bland’s personal belongings.

Bland was interviewed a second time on April 7, this time

by FBI Agents Moody and Pyle.
4 No. 06-3223

On June 2, 2005, a grand jury indicted Bland on one

count of armed bank robbery, 18 U.S.C. § 2113(a) and (d),

one count of carrying and using a firearm during a crime

of violence, 18 U.S.C. § 924(c)(1), and one count of possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g)

and 924(a)(2). The district court granted Bland’s motion

to sever the possession count, and a jury trial on the bank

robbery and § 924(c) counts commenced on December 5,

2005.

The basic sequence of events comprising the robbery

was uncontested at trial; the central issue was identification. Some of the eyewitness testimony on that point

was inconsistent. Anderson thought the robber had a thin

mustache, Huntington thought he had a goatee, and

Brown said he was clean-shaven. Anderson identified

Bland as the robber both in the photo lineup and in court.

Friedrich, though confident she had correctly identified

the robber previously in the photo array, could not say

at trial that Bland was definitely the robber. Huntington,

who had picked someone else from the photo array,

positively identified Bland in court as the robber.

Bland’s girlfriend, Candice Burton, also testified at trial

to explain her activities with Bland on the day of the

crime. She said Bland accompanied her to a dental appointment in the morning but left, ostensibly to get his

car jumped. When Bland rejoined her later at his

mother’s house, she heard him tell his sister that he

wanted her to “put some money up” for him. Burton also

testified that she and Bland went shopping later that day

with Bland’s sister. Although he was unemployed, Bland

gave his sister and Burton $200 apiece, in $100 bills, to

spend. He also paid cash for clothing and Air Jordan

basketball shoes for himself. Detective Graham also

testified at trial, among other law enforcement witnesses.

He authenticated the videotape of the interview he and
No. 06-3223 5

Special Agent Moody conducted of Bland, and admitted to

using lies and other ruses during that interview.

The jury returned verdicts of guilty on both counts. On

January 19, 2006, before Bland was sentenced, a local

newspaper ran an article reporting that the Illinois

State Police were investigating allegations of misconduct

against Detective Graham involving three cases in 1999

and another in 1994. The 1994 case purportedly involved his withholding of interview reports and intimidating a witness in a murder case. Alerted to this information, the Assistant U.S. Attorney responsible for Bland’s

case sent a letter dated January 23, 2006, to the Springfield Police Department requesting the investigative

files related to Graham. The materials (eventually numbering over 4000 pages) were reviewed by the Assistant

U.S. Attorney, and on May 1, 2006, the government

filed a disclosure statement advising the district court

that the files contained no Brady material and therefore

did not warrant in camera review. The court invited a

response from Bland, but he did not respond. He did not

request to examine the materials, ask the court to

review the files in camera, or move for a new trial. The

district court then entered an order directing the government to disclose any material relating to Bland or his

case. Beyond that, however, the court said no further

action regarding the files was required, in light of “the

substantial evidence of Defendant’s guilt presented

at trial” and the fact that “other evidence corroborated

Detective Graham’s testimony.”

The government responded that none of the materials

in the Graham misconduct investigation concerned

Bland or the bank robbery for which he stood convicted.

The case then proceeded to sentencing. Bland was sentenced to a total of 147 months’ imprisonment—63 months

for the bank robbery and 84 months consecutive for
6 No. 06-3223

carrying and using a firearm during a crime of violence.

Bland appeals.

II. Discussion

Bland’s appeal asserts a violation of Brady v. Maryland,

373 U.S. 83 (1963), in connection with the government’s

posttrial disclosure of the misconduct investigation

regarding Detective Graham. Because Bland did not

claim a Brady violation or otherwise respond to the government’s disclosure in the district court, we review his

Brady claim for plain error. United States v. Barker, 467

F.3d 625, 629 (7th Cir. 2006) (citing United States v. Stott,

245 F.3d 890, 900 (7th Cir. 2001)).

Brady set forth the now familiar principle that “the

government has the affirmative duty to disclose evidence

favorable to a defendant and material either to guilt or

punishment.” United States v. Fallon, 348 F.3d 248, 251

(7th Cir. 2003). A successful Brady challenge requires

a defendant to show “(1) that the prosecution suppressed

evidence; (2) that the evidence was favorable to the

defense; and (3) that the evidence was material to an

issue at trial.” United States v. Silva, 71 F.3d 667, 670 (7th

Cir. 1995) (citing United States v. White, 970 F.2d 328, 337

(7th Cir. 1992) & United States v. Hartmann, 958 F.2d

774, 790 (7th Cir. 1992)). Evidence is material if “there

exists a ‘reasonable probability’ that its disclosure to the

defense would have changed the result of the trial.” Silva,

71 F.3d at 670 (citing Kyles v. Whitley, 514 U.S. 419, 433

(1995); United States v. Bagley, 473 U.S. 667, 682 (1985) &

United States v. Boyd, 55 F.3d 239, 245 (7th Cir. 1995)).

The prosecution has “a duty to learn of any favorable

evidence known to the others acting on the government’s

behalf in the case, including the police.” Kyles, 514 U.S. at

437. The government’s Brady obligation encompasses
No. 06-3223 7

impeachment evidence. United States v. Dabney, 498 F.3d

455, 459 (7th Cir. 2007).

Bland contends he should receive a new trial because

the government suppressed the materials relating to

Graham’s misconduct investigation that could have been

used to impeach Graham and the investigative methods

used by the Springfield Police Department. There is no

dispute that the first two elements of a Brady violation

are present here: the government admits it should have

known about and disclosed the Graham misconduct

investigation prior to trial, and also concedes its potential relevance for impeachment purposes. See Ienco v.

Angarone, 429 F.3d 680, 683 (7th Cir. 2005) (evidence

is “suppressed” within the meaning of Brady if “the

prosecution failed to disclose the evidence in time for

the defendant to make use of it, and . . . the evidence

was not otherwise available to the defendant through

the exercise of reasonable diligence”); United States v.

Baker, 453 F.3d 419, 422 (7th Cir. 2006) (“Evidence

favorable to a defendant includes . . . impeachment . . .

evidence.”). The central issue in this appeal concerns

whether the Graham misconduct files were material to

an issue at Bland’s trial. They were not.

First, even assuming the files would have undermined

Graham’s credibility, Graham’s testimony—a mere 11

pages of the trial transcript—was limited to summarizing

what was said during the videotaped interview he and

Moody conducted with Bland. The videotape itself was

the best evidence of the contents of the interview, and it

fully corroborated Graham’s summary testimony. Bland

stipulated to the accuracy of the videotape and did not

object to its admission into evidence; he never claimed

Graham coerced him into making a statement. The

statement was largely exculpatory in any event; Bland

denied being at the bank, and later said he had been

there, but only to pick up penny rolls. Graham had no

contact with any other witnesses in Bland’s case. Graham’s
8 No. 06-3223

testimony played such a small role in the trial that it

was immaterial whether the jury might have discredited

it based on evidence from the misconduct investigation.

There is nothing to suggest that the misconduct investigation encompassed Graham’s limited participation in

Bland’s case.

Moreover, the evidence of Bland’s guilt was overwhelming: (1) Bland’s palm and fingerprints were found on the

door through which the robber left the bank; (2) Bland’s

videotaped statement reveals that he changed his

story about going to the bank, and the version he settled

on was implausible in light of other evidence; (3) Bland

was found three days after the robbery in possession of

a gun witnesses identified as similar to the one used in

the robbery; (4) two tellers identified Bland in a photo

lineup and at trial; (5) Bland, who was unemployed, had

a significant amount of money to spend after the robbery;

and (6) after the robbery, Bland was overheard on several

occasions saying he had given his sister money to hold

for him. In short, it is not reasonably probable that

evidence relating to Graham’s misconduct investigation

would have changed the trial’s outcome. United States v.

Agurs, 427 U.S. 97, 109-10 (1976) (“The mere possibility

that an item of undisclosed information might have

helped the defense, or might have affected the outcome

of the trial, does not establish ‘materiality’ in the constitutional sense.”); Silva, 71 F.3d at 670.

Bland also asserts that the district court was obligated

to conduct an independent examination of the purported

Brady materials rather than rely on the government’s

representations regarding their materiality. He invites

us to fashion a rule requiring the district court to conduct an independent Brady review of the government’s

files and asks us to remand the case for an in camera

examination of Graham’s misconduct files. We decline to

do so.
No. 06-3223 9

It is well-established that the decision whether to review purported Brady materials in camera is entrusted

to the district court’s sound discretion, see United States

v. Phillips, 854 F.2d 273, 277 (7th Cir. 1988) (citing United

States v. Valona, 834 F.2d 1334, 1341 (7th Cir. 1987)

(“Generally, the decision[ ] whether to conduct an in

camera review of government files . . . [is] committed to

the sound discretion of the district judge.”)), and mere

speculation that a government file might contain Brady

material is not sufficient, United States v. Mitchell, 178

F.3d 904, 907 (7th Cir. 1999); United States v. Navarro,

737 F.2d 625, 631 (7th Cir. 1984). The district court is

under no general independent duty to review government

files for potential Brady material. Dabney, 498 F. 3d at

459; Mitchell, 178 F.3d at 908; see also United States v.

Hernandez, 31 F.3d 354, 361 (6th Cir. 1994) (absent some

indication of misconduct by the government, the district

court is not required to conduct an in camera review to

verify government’s assertions as to materiality under

Brady); but see United States v. Kiszewski, 877 F.2d 210,

216 (2d Cir. 1989) (court should not rely on the government’s representations regarding Brady materiality of

potential impeachment evidence where credibility is the

central issue in the case).

Here, the district court did not abuse its discretion in

refusing to conduct an independent in camera review of

the files relating to Graham’s misconduct investigation.

As the court noted, Bland did not request such a review,

Graham’s testimony was fully corroborated by the videotape and other evidence at trial, and the evidence of

Bland’s guilt was substantial. Accordingly, the judgment of the district court is AFFIRMED.

USCA-02-C-0072—2-25-08