United States of America v. Josh Medina, a/k/a POLO, a/k/a JOHN DOE JOSH MEDINA

The Honorable Paul R. Michel, Chief Judge of the United States Court of*
Appeals for the Federal Circuit, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3441
UNITED STATES OF AMERICA
v.
JOSH MEDINA,
a/k/a POLO,
a/k/a JOHN DOE
JOSH MEDINA,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-05-cr-00688-007
District Judge: The Honorable Norma L. Shapiro
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 9, 2010
Before: AMBRO, SMITH, and MICHEL, Circuit Judges*
(Filed:March 11, 2010)

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The District Court had jurisdiction under 18 U.S.C. § 3231. We have1
jurisdiction under 28 U.S.C. § 1291.
Because we write only for the parties, we will presume knowledge of the record2
and recount the facts only briefly.
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OPINION
SMITH, Circuit Judge.
Appellant Josh Medina was convicted of several crimes in connection with a
string of robberies. He now appeals the District Court’s denial of his motion for a new
trial, Fed. R. Crim. P. 33, which was based on an alleged Brady violation, Brady v.
Maryland, 373 U.S. 83, 87 (1963). The evidence Medina accuses the government of
failing to disclose, certain statements made by his co-conspirators to the government
during the investigation, was not material because Medina was able to elicit the same
statements from the co-conspirators on cross-examination. Because the alleged Brady
violation fails, we will affirm the District Court’s denial of Medina’s motion for a new
trial.1
I.
Medina and five other individuals were charged with a string of robberies that
took place in 2004. All defendants except Medina pled guilty to some or all of the2
robberies. Medina opted to proceed to trial and the government presented evidence
against him suggesting that he drove the getaway car and acted as lookout for the robbery

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Several months later, on November 8, 2007, Medina amended his motion for a3
new trial. For purposes of this opinion, all references to Medina’s motion are references
to his amended motion.
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of a laundromat, and that his gun was used in that robbery. On July 19, 2007, a jury
convicted Medina of (1) conspiracy to commit Hobbs Act robbery, 18 U.S.C. § 1951, (2)
Hobbs Act robbery, 18 U.S.C. § 1951 and § 2, and (3) possession of a firearm in
furtherance of a crime of violence, 18 U.S.C. § 924(c) and § 2.
On July 20, 2007, Medina moved for a new trial under Rule 33 of the Federal
Rules of Criminal Procedure. He argued that the government committed a Brady3
violation by withholding statements made to investigators by two of his co-conspirators,
George Rivera and Jacqueline White, in which they denied their involvement in certain
robberies. Rivera denied involvement in the robbery of a deli and White denied
involvement in the robbery of a self-storage facility. Medina contended that these
statements had significant impeachment value against another co-conspirator, David
Roman, who testified at trial that Rivera was present at the deli robbery and that White
was present at the self-storage facility robbery.
The District Court concluded that Medina’s motion lacked merit because he was
not prejudiced by the non-disclosures. At trial, Medina repeatedly challenged the
credibility of Rivera, Roman, and White and “[h]ad the government properly disclosed
[Rivera and White’s statements] prior to trial, it [was] highly improbable that [Medina]
could have called the witnesses’ credibility into greater question.” Accordingly, the

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District Court denied Medina’s motion. Medina now appeals that denial.
II.
The sole issue to be decided in this appeal is whether the District Court correctly
denied Medina’s motion for a new trial based on an alleged Brady violation.
“Ordinarily, we review a denial of a motion for a new trial under an abuse of discretion
standard.” United States v. Joseph, 996 F.2d 36, 39 (3d Cir. 1993). “However, when a
Brady violation is alleged . . . we review the district court’s legal conclusions on a de
novo basis and its factual findings under the clearly erroneous standard.” Id.; United
States v. Pelullo, 399 F.3d 197, 202 (3d Cir. 2005); United States v. Hill, 976 F.2d 132,
134 (3d Cir. 1992); United States v. Perdomo, 929 F.2d 967, 969 (3d Cir. 1991).
To establish a violation under Brady, “a defendant must show that: (1) evidence
was suppressed; (2) the suppressed evidence was favorable to the defense; and (3) the
suppressed evidence was material either to guilt or to punishment.” Pelullo, 399 F.3d at
209 (internal quotation marks omitted). “Evidence is material if there is a reasonable
probability that, had [the evidence] been disclosed, the result of the proceeding would
have been different.” United States v. Perez, 280 F.3d 318, 348 (3d Cir. 2002), cert.
denied, 537 U.S. 859 (2002).
Even assuming that the first two requirements of a Brady violation were satisfied,
Medina has not shown that Rivera and White’s statements were material to his guilt or
punishment. See Pelullo, 399 F.3d at 209; see also Perez, 280 F.3d at 348. Medina

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White testified as follows:4
Q: Well, the Government has agreed to withdraw the
charges for the Philadelphia Self-Storage, is that right?
A: Which they should cause I didn’t do it.
On cross-examination by Medina’s counsel, Roman testified as follows:5
Q: And the Philly Self Storage, that was when Jacqueline
White drove you and Evil to that place to rob and that
was the day it was raining, correct?
A: Correct.
On cross-examination by Medina’s counsel, Rivera testified that he was not6
involved in the deli robbery:
Q: The June 28th, 2004, robbery of Emerald Deli, you
[were] charged with that, correct?
A: Yes.
Q: Okay. And, in fact, you took part in that, correct?
A: No.
On direct examination by the government, Roman contradicted Rivera’s testimony:
Q: Could you continue to explain what took place [during
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argues that the contradictions between Rivera and White’s statements to the government
and Roman’s testimony could have been used to show that one or more of these
witnesses lied. This exact point, though, was made at trial.
On cross-examination by Medina’s counsel, White denied involvement in the self-
storage facility robbery. Roman, however, testified that White was involved in that4
robbery. The same was true for Rivera—Roman claimed Rivera was involved in the5
deli robbery, Rivera claimed he was not. During closing, Medina’s counsel attacked the6

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the deli robbery]?
A: This time my friend, we use his car this time. George
Rivera. We call him Gono. I called him up, because we
needed a driver. This time I went into the business with
Eville Vargas to rob them and he drove the van.
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credibility of all three witnesses. He pointed out that Rivera and Roman’s testimonies
conflicted:
George Rivera. They’ve charged him with participating in the
robbery of the Emerald Deli[.] And now you see a consistent
pattern here of who’s willing to lie on the stand. I said, well,
Mr. Rivera, didn’t you commit that with Evil Vargas and David
Roman? He had the audacity to tell you no. Well, both can’t be
true, because Roman’s saying he committed it with [Rivera.]
He also asserted that White’s testimony regarding the self-storage facility showed that
either White or Roman were lying:
Jackie [White] is charged with robbing the Philly Self Storage.
I asked her, I said, you robbed Philadelphia Self Storage with
David Roman and Evil Vargas. I didn’t. I didn’t. Not me, that
case is still under investigation. Well, didn’t David Roman say
that, oh, it was Jackie [White] who robbed that with me? So,
[the government’s] witness that [it] wants you to trust beyond
a reasonable doubt, we know either Roman’s lying or she’s
lying. I don’t know what story is true, but the fact that there is
more than one story is a reasonable doubt.
Based on the record, we cannot say that the disclosure of Rivera and White’s
statements to the government would have changed the result of the proceeding because
Medina elicited similar statements from the two witnesses at trial. See Perez, 280 F.3d at
348. Medina was able to point out the inconsistencies between Rivera and White’s

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Medina’s argument that the non-disclosure of Rivera and White’s statements to7
the government prevented him from challenging the credibility of the government’s
prosecution fails for the same reason. Medina successfully questioned the government’s
prosecution at trial by challenging each co-conspirator’s testimony and pointing out that
some of the co-conspirators benefitted in their plea agreements by cooperating with the
government. For example, during closing, Medina’s counsel said:
I asked Agent Majarowitz, I said, is it fair to say, Agent
Majarowitz, that all the information that they used to identify
people who were involved in these robberies came from -- and
they said he was the -- one of the first people in -- came from
your interviews with Jackie [White]? That’s correct. What if
there’s misinformation than what’s given? What if David
Roman and someone else aren’t telling the truth? David Roman
is not telling the truth, because I don’t know which truth you’re
supposed to believe, did George Rivera help him or didn’t he?
Did Jackie Wright help him or didn’t s[he]? Because she said
she didn’t and he says she did. Is he involved or wasn’t he?
Medina’s whole strategy at trial was to undermine witness credibility, which, in effect,
questioned the credibility of the government’s prosecution.
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testimonies denying involvement in certain robberies and Roman’s testimony stating that
the two were involved in those robberies without the statements Rivera and White made
to the government. The jury was informed of those inconsistencies repeatedly by
Medina’s counsel, yet still convicted Medina. “[T]he government ma[de] [the] Brady
evidence available during the course of [the] trial in such a way that [Medina] [wa]s able
effectively to use it[.]” United States v. Johnson, 816 F.2d 918, 924 (3d Cir. 1987).
Thus, “due process [wa]s not violated and Brady [wa]s not contravened.” Id. Medina
used the inconsistencies between the co-conspirators’ testimonies to suggest that at least
one of them was lying. The jury was simply not persuaded by that argument.7

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III.
Even assuming that Rivera and White’s statements were improperly suppressed by
the government, Medina has failed to show that there was a reasonable probability that
the result of the proceeding would have been different had those statements been
disclosed. Therefore, we will affirm the District Court’s denial of Medina’s motion for a
new trial.

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