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1Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 94-11112
Summary Calendar
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARIO ESCOBEDO, JR.,
Defendant-Appellant.
______________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94 CR 236 1 P)
______________________________________________________
September 14, 1995
Before DAVIS, BARKSDALE and DEMOSS, Circuit Judges.
PER CURIAM:1
Following his conviction on multiple bank robbery and related
weapons offenses, Escobedo moved for a new trial on grounds that
the government failed to provide him with exculpatory Brady
evidence. We agree with the district court that even if the
evidence was Brady material, the failure of the government to
disclose the evidence was not material. We therefore affirm.

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I.
Mario Escobedo, Jr., was accused of robbing two banks, with
federally insured deposits, in east Dallas, Texas: Bank of America
on February 2, 1994, and June 10, 1994, and Comerica Bank on May
11, 1994. Escobedo was also charged with using a firearm during
each of the robberies.
The government presented a strong case against Escobedo. Four
eye witnesses to the robberies identified Escobedo's photograph in
a photographic lineup as the robber. Five witnesses, all of whom
were tellers standing one to two feet from the robber, made in-
court identifications of Escobedo as the robber and four of the
witnesses variously described the robber as having a noticeable
skin blemish. A tracking device the teller planted with the loot
from the first robbery was found very near the apartment where
Escobedo lived and where Escobedo was found at home shortly after
the first robbery. Escobedo's live-in girlfriend placed Escobedo
out of the apartment at the time of the first robbery, placed a
handgun matching a description of the one used in the robbery in
Escobedo's possession that morning and described Escobedo as
nervous or edgy. Escobedo's alibi defenses were provided by his
mother and her friend and were not particularly persuasive.
After the jury found Escobedo guilty on all counts, Escobedo
learned that Gretchen Kingsley, a witness to the February 2
robbery, had written a note describing the robber to one of the
investigating FBI agents. The note is not in the record but Ms.
Kingsley apparently described the robber as having pitted skin or

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2 The district court denied the motion on grounds that the
evidence was not material. The court stated:
Escobedo argues that had he known of Kingsley's
description of the robber, the "entire thrust of the
defense case would have been the varying description."
However, the defense was aware of the varying
descriptions given by the witness (sic) who did testify,
and this information was before the jury. Almost every
eyewitness and investigator was questioned on this point
by the defense. The Court also notes that not every
witness recalled or noticed any type of skin blemish on
the robber. These factors were thoroughly considered by
the jury in light of the other evidence presented, and
the jury found that Escobedo was the bank robber. The
fact that five instead of four witnesses described a skin
blemish on the robber is simply cumulative. The entire
thrust of the defense case was the issue of
identification, with the skin blemish descriptions being
a large component of that issue. In light of all the
evidence presented, the Court cannot find that had
Kingsley's notes been disclosed, there is a reasonable
probability that the outcome of the trial would have been
different.
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"possibly having acne-scarred skin." Although Ms. Kingsley did not
testify, Escobedo sought a new trial on grounds that prosecutors
suppressed favorable evidence which would have altered the defense
strategy.
The district court denied Escobedo's motion for a new trial.2
We agree with the district court that in light of the strong
evidence of Escobedo's guilt and the evidence of skin blemishes on
the robber already before the jury, Ms. Kingsley's testimony would
have been merely cumulative. Thus, assuming, without deciding,
that the prosecution suppressed evidence favorable to the defense,
we hold that this evidence was not material because it is highly

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unlikely that, had it been produced, it would have affected the
outcome of the trial.
AFFIRMED.

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