author: MERRITT, Circuit Judge. SILER, Circuit Judge,

text:
    Andrew Lee THOMAS, Jr., Petitioner-Appellant, v. Bruce WESTBROOKS, Warden, Respondent-Appellee.
    No. 15-5399
    United States Court of Appeals, Sixth Circuit.
    Argued: November 2, 2016
    Decided and Filed: February 24, 2017
    Rehearing En Banc Denied April 19, 2017

      ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, Kevin Wallace, Elizabeth Cate, Mollie Richardson, WINSTON & STRAWN LLP, New York, New York, for Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. Mark A. Fulks, BAKER DONELSON BEAR-MAN CALDWELL & BERKOWTIZ, P.C., Johnson City, Tennessee, for Ami-cüs Curiae.
    Before: MERRITT, SILER, and DONALD, Circuit Judges

       Judge Gibbons recused herself from participation in this ruling. Judge Siler would grant rehearing for the reasons stated in his dissent.

   MERRITT, J., delivered the opinion of the court in which DONALD, J., joined. SILER, J. (pp. 668-69), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

In this Tennessee death penalty case, Petitioner Andrew Lee Thomas, Jr., appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254. Thomas’s primary claim on appeal is that the State violated his rights under Brady v. Maryland, 378 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it suppressed evidence that the key witness against him had been paid $750 by the Federal Bureau of Investigation prior to trial. We agree that the prosecutor had a duty to disclose this payment rather than allow the witness to commit perjury by denying its existence, and we REVERSE and REMAND the district court’s denial of the writ.

I. Background

While our decision today is based upon Thomas’s procedural rights as a criminal defendant — as opposed to the substantive charges against him — a brief summary of the underlying facts provides helpful context. On April 21, 1997, James Day, an armored truck driver in Memphis, was shot as he was moving a bag of cash into his armored truck from a Walgreens store. The shooter took the bag of cash and left in a getaway car. Day survived the shooting, but died two years later as a result of complications from his injuries. Authorities later identified Thomas as the shooter and Anthony Bond, Thomas’s friend and co-defendant, as the driver of the getaway car. For a more complete factual statement, see Tennessee v. Thomas, 158 S.W.3d 361, 373-75 (Tenn. 2005).

Thomas was convicted of offenses arising from those facts in both federal and state court. In a federal trial prior to Day’s death, Thomas was convicted of interfering with interstate commerce, carrying a firearm in relation to a crime of violence, and being a felon in possession of a firearm. The federal court sentenced him to life in prison. After Day died of complications from his injuries, the State of Tennessee charged Thomas with felony murder. A Tennessee state jury convicted Thomas and sentenced him to death. The Supreme Court of Tennessee affirmed Thomas’s conviction and death sentence on direct appeal. Id. at 383. Thomas then exhausted his post-conviction remedies under Tennessee law.

Angela Jackson, Thomas’s girlfriend at the time of the shooting, was the pivotal witness in both trials. Indeed, Jackson provided the only reliable testimony placing Thomas at the scene of the shooting. Her testimony also provided an important link between Thomas and various pieces of circumstantial evidence in the case. A more detailed account of the evidence presented at trial can be found in the district court’s opinion and order.

After the federal trial was concluded but before the state murder prosecution had commenced, the FBI paid Jackson $750 on behalf of the Safe Streets Task Force — a joint federal-state working group charged with investigating and prosecuting gang-related crime. Thomas was never notified of this payment and only discovered it years later during a hearing on his petition for habeas from his federal conviction.

When Tennessee moved to prosecute Thomas for murder, the federal authorities provided the State with relevant evidence and documentation from the federal case. The parties agree that the file contained a receipt documenting the FBI’s payment to Jackson and that knowledge of the $750 payment must be “imputed” to the State’s prosecutors. Despite the State’s concession that its prosecutors had “imputed” knowledge of the payment, they argue they should not be charged with “actual” knowledge. We discuss this argument in Section IV below.

Despite her acknowledged possession of evidence of the payment before trial, the State’s prosecutor did not inform Thomas of the payment. The prosecutor’s failure to disclose the evidence was particularly egregious in light of the State’s repeated emphasis of Jackson’s high-minded reasons for testifying — that is, that she was testifying because it was the “right thing to do.” This is all made even worse by the fact that the prosecutor failed to correct the record even after Jackson squarely denied receiving any “reward” money in exchange for her testimony against Thomas.

The relevant portion of Jackson’s direct examination went as follows:

Q: When did the FBI agents come to your house?
A: I don’t remember the date, but it was in November of ‘97.
Q: Did you ask them for your reward money?
A: No.
Q: Did you ever get any reward- money?
A: No.

On cross-examination, Ms. Jackson testified:

Q: You said you were here today to testify because it was the right thing to do. Is that correct?
A: Yes.
Q: And that’s your only motivation in testifying today. Is that right?
A: Yes, sir.
Q: You haven’t receiving [sic] a reward for any of this?
A: No.

Finally, on redirect, Jackson testified as follows:

Q: Have you collected one red cent for this?
A: No, ma’am, I have not.

After exhausting his post-conviction remedies in state court, Thomas petitioned the district court for a writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected each of his claims and denied the petition in its entirety. The district court specifically rejected Thomas’s Brady claim, reasoning that the fact of the payment was not sufficiently “material.”

This appeal followed.

II. Standard of Review

This court reviews the district court’s dismissal of a § 2254 petition de novo, but we must defer to the district court’s factual findings unless they are clearly erroneous. Jones v. Bagley, 696 F.3d 475, 482 (6th Cir. 2012). When the state court is unable or refuses to review a claim presented in a petition brought under § 2254, the highly- deferential standard prescribed in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not apply. See Henley v. Bell, 487 F.3d 379, 390 (6th Cir. 2007). Since both parties concede that the Tennessee state courts were unable to review Thomas’s Brady claim, we review the district court’s denial of those claims de novo.

III. Brady Claim

Thomas’s first argument on appeal is that the State violated his due process rights as articulated in Brady v. Maryland when the prosecution failed to inform him that Jackson had received $750 from the FBI prior to trial. We agree and hold that this claim merits issuance of the writ.

A prosecutor’s suppression of evidence violates a criminal defendant’s due process rights when the evidence is favorable to the accused and material either to guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. 1194. Brady’s rule has been interpreted to require disclosure of all material evidence even if it is only relevant for the purpose of impeaching a government witness at trial. Bell v. Bell, 512 F.3d 223, 232 (6th Cir. 2008) (citing United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).

“A successful Brady claim requires a three-part showing: (1) that the evidence in question [is] favorable; (2) that the state suppressed the relevant evidence, either purposefully or inadvertently; (3) and that the state’s actions resulted in prejudice.” Id. at 231 (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). This court finds prejudice in the Brady context whenever the suppressed evidence is “material.” See Robinson v. Mills, 592 F.3d 730, 735 (6th Cir. 2010) (equating the prejudice prong of Brady with materiality). On appeal, the State concedes that it suppressed the evidence in question and that the evidence was favorable to Thomas. Thus, the only issue remaining for decision is whether the evidence of the FBI’s payment was sufficiently material to warrant relief under Brady.

Evidence is “material” for Brady purposes when, in view of all relevant evidence, its absence deprives the defendant of a fair trial, “ ‘understood as a trial resulting in a verdict worthy of confidence.’ ” Montgomery v. Bobby, 654 F.3d 668, 678-79 (6th Cir. 2011) (en banc) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Satisfying that standard requires more than a mere “possibility” but less than proof “by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal.” Id. at 679 (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555).

Below, the district court rejected Thomas’s argument that the suppressed evidence of Jackson’s receipt of $750 from the FBI was material because “there was substantial evidence linking Thomas to the crime, other than Jackson’s testimony” and because Jackson’s testimony in both the state and federal cases was consistent. To the extent that these reasons appear to deny relief because there was sufficient evidence to support Thomas’s conviction, they mischaracterize the materiality inquiry under Brady. See id. (quoting Kyles, 514 U.S. at 434, 115 S.Ct. 1555) (‘‘Brady materiality ‘is not a sufficiency of evidence test.’ ”). The dispositive question, instead, is whether the guilty verdict entered against Thomas is worthy of confidence in the absence of the suppressed evidence. Under the circumstances, we hold that it is not.

In Robinson v. Mills, we addressed materiality in a factually similar case. In that case, the petitioner, Robinson, had been convicted in state court of first-degree murder after shooting a drug dealer in the back of the head. Robinson, 592 F.3d at 733. At trial, Robinson sought to mitigate his offense by claiming that he shot the victim in self-defense. Id. Kim Sims, an eyewitness, testified against Robinson at trial; hers was the only testimony that tended to negate Robinson’s claim of self-defense. Id. at 736. Robinson’s attorneys attempted to impeach Sims as a witness by questioning her about her history of drug addiction and significant disparities between her trial testimony and her testimony at a pretrial hearing. Id. at 734. Despite Robinson’s efforts to impeach Sims, the jury convicted him of murder. Id. at 731-32.

Unknown to Robinson, Sims had accepted $70 from the prosecuting jurisdiction’s police department in exchange for her cooperation as a confidential informant in an. unrelated prosecution against the murder victim’s sister. Id. at 734. Sims had also served as a paid confidential informant for the police department at least seven other times. Id. Despite the state’s recognition that Sims’s substantial connection to local law enforcement required appointment of a special prosecutor, the state never informed Robinson of Sims’s status as a paid confidential informant. Id.

Reviewing Robinson’s petition for habe-as, this court held that the prosecution’s failure to inform Robinson of Sims’s receipt of payment for her services as a confidential informant warranted relief under Brady. Id. at 738. In reaching that conclusion, the panel held that the evidence was “material” because Sims’s status as a paid informant was relevant to demonstrate bias in order to “call into question Sims’[s] credibility and truthfulness.” Id. We reached that conclusion even though Sims’s services to the police were rendered in cases entirely unrelated to Robinson’s. Id.

Like Sims’s testimony in Robinson, Jackson’s testimony was pivotal to the State’s case against Thomas. Jackson provided the only credible identification placing Thomas at the scene of the crime. She provided the only testimony linking Thomas to Bond, his co-defendant, on the day of the shooting. And she provided the only testimony affirmatively attributing Thomas with responsibility for the transactions cited by the State as circumstantial evidence of his involvement in the shooting. Without Jackson’s testimony linking Thomas to the events surrounding Day’s shooting, the State would have had a very difficult time proving its case. As such, we conclude— contrary to the State’s arguments — that Jackson’s testimony was vital to the State’s case-in-chief against Thomas.

In opposition to this conclusion, the State contends that Richard Fisher’s testimony independently placed Thomas in the passenger seat of the getaway car. However, Fisher’s testimony Jacked credibility. When asked at trial whether he saw the person he observed in the passenger seat in the courtroom, Fisher first identified Anthony Bond — Thomas’s codefendant— despite the State’s theory that Bond had been the driver of the getaway car. When he was cross-examined by Bond’s attorney, Fisher was asked to take a very close look at the two defendants without his glasses. After doing so, Fisher recanted his earlier testimony that Bond had been in the passenger seat and then identified Thomas— the only other defendant — as the passenger in the getaway car. Fisher said he was “very sure” about his second identification, but a reasonable juror would likely have taken that confidence with a grain of salt.

The State further contends that independent, circumstantial evidence tying Thomas to several large expenditures and bank deposits following the shooting would have provided a sufficient basis for confidence in the verdict. This evidence tended to show that Thomas had accompanied Jackson when she purchased a pink Chevrolet with gold wheels in her own name, that he drove the vehicle off the lot, that the two stayed in a motel the night of the shooting, and that Jackson deposited a large sum of cash into a new account shortly after the shooting. However, none of that evidence overwhelmingly suggests that Thomas was the shooter; at most, it suggests that either Thomas or Jackson came into substantial wealth around the time of the shooting. Without Jackson’s testimony linking Thomas to Bond on the day of the shooting, it is much less persuasive evidence of Thomas’s guilt. As such, we reject the State’s claims that Jackson’s testimony was not important to the jury’s decision to convict Thomas.

As a criminal defendant, Thomas has the right to impeach the State’s witnesses against him on the grounds of pecuniary bias in the case. Robinson, 592 F.3d at 737 (citing Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). This right is especially important when, as here, the case “hinge[s] on the jury’s critique” of a key witness. Id. at 736. Without evidence of the FBI’s payment, Thomas had no basis upon which to impeach Jackson on the basis of her possible financial interest in the case. In Robinson, this court found that the defendant’s right to impeach the government’s witnesses had been unduly abridged when he was not informed that the key witness had received $70 in connection with an entirely unrelated case because it prevented him from demonstrating the witness’s pecuniary bias against him. Id. at 738. The facts here are even worse: The relevant payment was more than ten times larger than the payment at issue in Robinson. And, unlike the .payment in Robinson, it was made in connection with a case against the same defendant involving the exact same facts. If the suppression of evidence of the payment in Robinson rendered the verdict against the defendant fundamentally unfair, then suppression' of the payment here did as well.

The fact that the payment in Robinson was made as part of a confidential informant arrangement does not distinguish this case. While there is no allegation that Jackson formally served as a confidential informant to the FBI and the record does not disclose how the payment in question arose, counsel for the United States in the companion case to this one indicated at oral argument that a payment of this nature is “rare.” In justifying its finding of materiality, the Robinson panel noted: “Ordinary decent people are predisposed to dislike, distrust, and frequently despise criminals who ‘sell out’ and become prosecution witnesses. Jurors suspect their motives from the moment they hear about them in a case, and they frequently disregard their testimony altogether as highly untrustworthy and unreliable.” Id. at 737 (citation and internal quotation marks omitted). Jackson falls squarely within this reasoning even if she was not serving specifically as a confidential informant. Jackson clearly committed criminal acts in the aftermath of the shooting — housing a fugitive, lying on a federal firearms purchase form, and disposing of stolen assets, to name just a few. Thus, if the jury had been presented with evidence of an unusual payment to an individual who can be fairly characterized as an accessory after the fact, it might well have chosen to disregard her testimony against Thomas as untrustworthy and unreliable for the reasons discussed in Robinson.

The State also argues that the payment was immaterial because any impeachment value would have been duplicative since Jackson had already been extensively cross-examined and her motives for testifying had been undermined as a result. See id. at 736 (“[Wjhere the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.” (internal quotation marks omitted) (alteration original)). But this assertion ignores the clear lesson of Robinson that impeachment on the basis of pecuniary bias is fundamentally different than impeachment on the basis of character for dishonesty or other bad acts. Indeed, the witness in Robinson — like the witness here — had been thoroughly impeached on the basis of inconsistent testimony and past bad acts, but this court nonetheless held that evidence of her financial relationship with the prosecuting jurisdiction was “material” for Brady purposes. Id. at 736-38 (“Although Robinson attempted to demonstrate that Sims’ trial testimony differed from her testimony at the preliminary hearing, the undisclosed information was different in kind because the suppressed materials would have offered insight into why Sims’ testimony at trial differed from her testimony at the preliminary hearing.”). Since there was no evidence presented at trial that Jackson had a financial interest in the outcome of the case, this evidence cannot be properly considered “cumulative” as that term is used in Robinson. In short, the fact that Jackson had been thoroughly impeached on other grounds is no bar to a finding that evidence of her pecuniary bias against Thomas is material under Brady.

Because of the importance of Jackson’s testimony to the State’s ease against Thomas and because the jury was not presented with any other evidence of Jackson’s pecuniary bias, we find the FBI’s $750 payment to Jackson was material to the jury’s determination of Thomas’s guilt. Accordingly, we reverse the district court’s judgment and hold that the State’s suppression of the payment violated Thomas’s due process rights as articulated in Brady.

We pause to emphasize that our ruling today takes root in Thomas’s right to a fair trial. We neither review nor dispute the facts articulated by the Supreme Court of Tennessee on direct appeal. In the context of a Brady claim, the reviewing court does not ask whether there was sufficient evidence to convict the defendant without the tainted- evidence. See Kyles, 514 U.S. at 434, 115 S.Ct. 1555. Rather, we ask whether the purported Brady violation rendered the defendant’s trial fundamentally unfair. See Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936. By focusing on the fairness of the defendant’s trial, we protect his constitutional right to present a complete and full-throated defense. As the Supreme Court noted in Brady: “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” 373 U.S. at 87, 83 S.Ct. 1194.

IV. Prosecutorial Misconduct Claim

In addition to his Brady claim, Thomas also claims the State committed prosecuto-rial misconduct when it knowingly failed to correct Jackson’s false testimony about her receipt of reward money.

The Supreme Court has long held that a prosecutor violates a criminal defendant’s due process rights when she knowingly allows perjured testimony to be introduced without correction. See United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Judged against a less exacting “materiality” standard than standalone Brady claims, see Rosencrantz v. Lafler, 568 F.3d 577, 584 (6th Cir. 2009), claims of prosecutorial misconduct require an additional showing that the prosecuting attorney or one of his subordinates actually knew that the testimony was perjured at the time of trial. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (finding misconduct when the prosecuting attorney did not know of the perjury, but one of his subordinates did).

The State’s briefing seems confused about the requisite standard of knowledge applicable to claims of prosecutorial misconduct. At times, the State concedes “imputed” knowledge sufficient to support a prosecutorial misconduct claim under Gig-lio. However, at oral argument, the State seemed to say that the doctrine is a legal fiction and strongly denied that any of its prosecutors had actual knowledge that Jackson’s testimony was perjured.

The latter view finds no support in the Supreme Court’s decision in Giglio. While Giglio never uses the phrase “imputed knowledge,” Black’s Law Dictionary defines it as a '“bridge” to facilitate claims “against a principal in which knowledge is a necessary element” on the basis of facts known by the principal’s agents. Doctrine of Imputed Knowledge, Black’s Law Dictionary (10th ed. 2014). Consistent with that definition, the Supreme Court in Gig-lio held that a prosecuting attorney may be charged with the actual knowledge possessed by his subordinates at the time of trial under basic principles of agency law. See Giglio, 405 U.S. at 154, 92 S.Ct. 763. The Court did not adopt a recklessness-based, “knew or should have known” standard for knowledge in the context of pros-ecutorial misconduct claims. Id. Absent actual knowledge on the part of someone in the prosecutor’s office that a witness had perjured himself, there can be no finding of intentional prosecutorial misconduct under Giglio.

The State’s unelaborated concession that the prosecuting attorney had “imputed” knowledge might be read either way on the issue of actual knowledge. Were we to reach the merits of the prosecutorial misconduct claim, we might well charge the state prosecutor with actual knowledge that Jackson’s testimony about her receipt of reward money was perjured. Given the importance of Jackson’s testimony to the State’s case and the State’s repeated questioning about her purportedly high-minded reasons for testifying, it seems that any competent prosecutor would have carefully reviewed the case file for evidence that Jackson might have been testifying for some less-than-altruistic reason in order to guard against the risk of impeachment. This seems especially true in a case like this one where the witness had already testified against the same defendant in a related federal proceeding. Had the prosecutor done so, the parties agree that she would have come across a document indicating that Jackson had received a significant payment from the FBI after the conclusion of the federal trial. Thus, were we to presume that the State’s prosecutor engaged in diligent preparation for trial, we would conclude that she knew of the payment at trial. However, we need not conclusively decide that issue here because we hold that Thomas is independently entitled to relief based upon his Brady claim.

V. Conclusion

For the foregoing reasons, we hold that Thomas’s Brady claim in this ease entitles him to relief from his Tennessee state court conviction under 28 U.S.C. § 2254. Accordingly, we pretermit our discussion of the remaining issues raised in his petition. The judgment of the district court is REVERSED and we REMAND the case to the district court with directions to issue the writ of habeas corpus unless the State affords Petitioner a new trial within a period of time to be established.

DISSENT

SILER, Circuit Judge,

dissenting.

I concur with the facts as related by the majority opinion in this case, but I respectfully dissent from the final conclusion that the Brady claim entitles the petitioner, Andrew Lee Thomas, Jr., to a writ of habeas corpus for the reasons stated herein.

First, I agree with the parties and with the majority that the Brady claim was not decided by the Tennessee state courts, so our review is de novo. I also agree with the majority that the State conceded that knowledge of the payment of $750.00 to Angela Jackson is imputed to the state prosecutors for purposes of Thomas’s claim under Brady. It is not material that the state prosecutor did not find the receipt of $750.00 to Jackson in the file, nor that the state prosecutor was told of that payment. As the majority indicates, it would seem logical that the state prosecutor would have found something in the case file about the payment, but that is not in our record before this court. Thomas has benefited from the assumption under law that the successor prosecutor has the imputed knowledge that Jackson was paid the $750.00 and did not admit it later when questioned. However, I part from the majority at this point. As the majority states, “a successful Brady claim requires a showing ... that the state’s actions resulted in prejudice.” Bell v. Bell, 512 F.3d 223, 231 (6th Cir. 2008) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Prejudice results whenever the suppressed evidence is “material.” Robinson v. Mills, 592 F.3d 730, 735 (6th Cir. 2010).

As the majority relates, evidence is material for Brady purposes vyhen, in view of all relevant evidence, its absence deprives the defendant of a fair trial, “understood as a trial resulting in a verdict worthy of confidence.” Montgomery v. Bobby, 654 F.3d 668, 678-79 (6th Cir. 2011) (en banc) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). The majority opinion depends upon our prior decision in Robinson, 592 F.3d at 738. However, in Robinson, the prosecution depended upon an informant, Sims, who had been used by the prosecution in many investigations, whereas, in the present case, Jackson was an important witness, but she was not present at the robbery or the homicide of James Day, the armored truck driver. She had never been a paid informant in other cases. Certainly, Jackson’s evidence was material, because she related the fact that Thomas came to Jackson’s apartment with a large amount of money and that Anthony Bond, the codefendant, was with him and was carrying a gun. She also related the fact that she and Thomas took Thomas’s money and bought a car and other items. Thomas also admitted to her that he shot the driver (Day) and that the money was from the robbery.

There is one significant difference in the proof in this case and the proof in Robinson. Here, Jackson gave a statement to federal agents long before either trial, describing the events on the day of the crime and her knowledge of Thomas’s involvement. Her statements in 1997 are consistent with her testimony at the federal trial in November 1998 and the state trial in 2001. Her statements were given before she ever received any money from the federal agents, because she received the $750.00 after the completion of the first trial in 1997. In Robinson, the paid witness had not given earlier consistent statements. She had testified at a preliminary hearing a year before trial, but her testimony at the preliminary hearing differed substantially from the testimony later at the trial.

Moreover, additional evidence introduced at trial placed Thomas at the crime scene. Several witnesses observed Bond and another man get into the car and drive away after the shooting. One of those witnesses, Richard Fisher, testified that he was close to the getaway car as it drove by and he was able to provide in-court identification that Thomas was the passenger in the car. As the majority points out, Fisher originally pointed to Bond as the person in the passenger seat, but as he got closer to Thomas in the courtroom, he identified Thomas as the passenger. The majority is very skeptical about that, but, had the jury believed Fisher’s statement that Thomas was the passenger in the car, it could have. found Thomas guilty, because the jury decides the credibility of the witnesses.

Other evidence at the trial corroborated Jackson’s testimony. For instance,, there was evidence about how Jackson and Thomas bought a car with cash soon after the robbery. There was also proof about Jackson’s opening a bank account and depositing a large sum of cash in it.

In addition, Jackson was thoroughly impeached during her testimony during trial. She was cross-examined on alleged inconsistent statements to law enforcement and her relationship with Thomas, including allegations by Thomas that she had been cruel to his son, suggesting a bias by Jackson against Thomas. She was also questioned about purchasing a gun for Thomas and opening a bank account with proceeds from the robbery.

I agree that under Brady, the state was required to reveal to defense counsel the payment of $750.00 to Jackson before the state trial. However, because that payment was not prejudicial under Brady, the writ of habeas corpus should not be granted. I would affirm the district court in denying the writ.

      . In a companion case to this one, Thomas also appeals the district court’s denial of ha-beas from his federal conviction arising from similar facts. One factual difference between the two cases is important: Angela Jackson's testimony about her receipt of reward money in the federal case does not appear to have been false since the payment in dispute was made after the conclusion of the federal trial. In a separate opinion also entered today, we affirm the district court's denial of the writ in that case. Thomas v. United States, No. 15-6200, 849 F.3d 669, 2017 WL 727152 (6th Cir. Feb. 24, 2017).

      . This court affirmed that conviction and sentence on direct appeal. United States v. Thomas, 29 Fed.Appx. 241 (6th Cir. 2002). The companion case to this one denies Thomas's petition for relief from his federal conviction. Thomas v. United States, 15-6200, 849 F.3d 669, 2017 WL 727152 (6th Cir. Feb. 24, 2017).

      . In an opinion also entered today, we deny Thomas’s companion petition for habeas relief from his federal conviction and sentence in its entirety. Thomas v. United States, No. 15-6200, 849 F.3d 669, 2017 WL 727152 (6th Cir. Feb. 24, 2017).


source: Caselaw Access Project

author: MERRITT, Circuit Judge.

license: Public Domain

text:
    Andrew Lee THOMAS, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-6200
    United States Court of Appeals, Sixth Circuit.
    Argued: November 2, 2016
    Decided and Filed: February 24, 2017
    Rehearing Denied April 27, 2017

      ARGUED: Kevin Wallace, WINSTON & STRAWN LLP, New York, New York, for Appellant. Tony R. Arvin, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Kevin Wallace, Elizabeth Cate, Mollie Richardson, WINSTON & STRAWN LLP, New York, New York, for Appellant. Tony R. Arvin, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
    Before: MERRITT, SILER, and DONALD, Circuit Judges.
   OPINION

MERRITT, Circuit Judge.

Petitioner Andrew Lee Thomas, Jr. appeals the district court’s order denying his habeas corpus petition under 28 U.S.C. § 2255 for relief from his federal court conviction. This case is a companion to Andrew L. Thomas v. Westbrooks, No. 15-5399, 849 F.3d 659, 2017 WL 727151 (6th Cir. Feb. 24, 2017), which addresses Thomas’s habeas petition for relief from his state court conviction and sentence of death. These cases, while addressing similar facts, are different because the state case arises primarily from a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Brady claim fails in the federal case due to the sequence of the trials. The Brady violation in the state case, that the government did. not disclose that witness Angela Jackson had received-compensation after her federal testimony, occurred after the conclusion of Thomas’s federal trial. Accordingly we AFFIRM the district court’s denial of the § 2255 motion.

I. Background

Thomas was convicted of robbing and shooting an armored car courier. On April 21, 1997, Loomis-Fargo courier James Day was shot in the back of the head by Thomas during a pick-up. Thomas grabbed the money and checks that Day had been transporting and left the scene with another suspect, later identified as Anthony Bond. After fleeing the scene in a stolen Pontiac, they abandoned that vehicle and drove off in a red Suzuki which belonged to Thomas’s girlfriend at the time, Angela Jackson. Bond was later arrested on unrelated charges. Police subsequently matched Bond’s fingerprints to a fingerprint from the stolen Pontiac. Eventually Bond confessed to the Loomis-Fargo robbery and implicated Thomas. FBI agents questioned Angela Jackson, who was then separated from Thomas. Jackson implicated Thomas in the robbery and also disclosed that he used the crime’s proceeds to buy a Mossberg 12-gauge shotgun in violation of his felon status.

During Thomas’s federal trial, the jury heard testimony from both Anthony Bond and Angela Jackson. After the federal trial concluded but before the state prosecution began, the FBI paid Jackson $750 on behalf of the Safe Streets Task Force — a joint federal-state law enforcement group charged with investigating and prosecuting gang-related crime.

On November 13, 1998, the federal jury convicted Thomas of robbery affecting commerce in violation of 18 U.S.C. § 1951 (count one), using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) (count two), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (count three). For these crimes he was sentenced as an armed career criminal to life imprisonment plus five years, to be followed by five years supervised release. On direct appeal, the Sixth Circuit affirmed. United States v. Thomas, 29 Fed.Appx. 241 (6th Cir. 2002).

In 2003 Thomas filed an 18 U.S.C. § 2255 motion for habeas corpus relief. In the amended motion Thomas puts forward multiple ineffective assistance of counsel claims, and also argues that the government violated his due process rights as articulated in Brady v. Maryland by withholding evidence of a payment to witness Angela Jackson.

II. Analysis

A. Standard of Review

This court reviews a district court’s dismissal of a § 2255 petition de novo, but will overturn a district court’s factual findings only if they are clearly erroneous. Braden v. United States, 817 F.3d 926, 929 (6th Cir. 2016). For a § 2255 motion to succeed, the petitioner must demonstrate error of constitutional magnitude which had a substantial and injurious effect or influence on the jury’s verdict. Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).

B. Ineffective Assistance of Counsel as to Count Three (Felon-in-Possession)

1. Failure to Request a Severance

Thomas argues that his trial counsel erred by not moving to sever count three, felon-in-possession of a firearm, from the robbery counts. Specifically Thomas claims that his attorney should have filed a pre-, trial motion to sever count three as improperly joined under Federal Rule of Criminal Procedure 8(a) or filed a motion to sever due to prejudicial joinder under Rule 14(a). Thomas alleges that since a pistol formed the basis of counts one and two and a shotgun formed the basis of count three, it was improper to include count three in the indictment. Eyidence was presented at trial that the shotgun forming the basis of count three was purchased with the proceeds from the robbery set forth in counts one and two, despite not being used during the robbery itself. The Government argues that count three was not misjoined, and argues alternatively that any error was harmless.

To prove deficient performance by counsel that violated the Sixth Amendment, Thomas must demonstrate that representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Huff v. United States, 734 F.3d 600, 606 (6th Cir. 2013). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of a case, Strickland, 466 U.S. at 694, 104 S.Ct. 2052, and this court must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052.

Disputes of whether the counts of an indictment are to be joined or severed are governed by Federal Rules of Criminal Procedure 8 and 14. Rule 8(a) allows the joinder of two or more offenses in the same indictment or information if the offenses charged aré “of the same or similar character,” “based on the same act or transaction,” or connected by a “common scheme or plan.” Fed. R. Crim. P. 8(a). Whether a joinder was appropriate under Rule 8(a) is determined by the allegations on the face of the indictment. United States v. Chavis, 296 F.3d 450, 456-57 (6th Cir. 2002). Once a count has been joined, a district court may grant a Rule 14 motion to sever the count if the joinder “appears to prejudice a defendant.” Fed. R. Crim. P. 14. To prevail on a request for severance the defendant must show compelling, specific, and actual prejudice. United States v. Driver, 535 F.3d 424, 427 (6th Cir. 2008).

In the present case, count three of the indictment is sufficiently related to the other counts of the indictment to warrant joinder. It is true that the purchasing of the shotgun was an event that took place three days after the armed robbery and shooting. However, the shotgun was illegally purchased with the proceeds of the armed robbery for the purpose of protecting property also bought with the same proceeds. The facts of the robbery are the facts that underlie the purchasing of the shotgun. The counts are not simply connected “in the abstract,” but are linked by time and purpose. See Chavis, 296 F.3d at 458. Moreover, the trial evidence concerning the purchase of the shotgun was obtained in the process of investigating the robbery, and comes from the same witness. Joinder is proper when the evidence of the counts is intertwined. See United States v. Hang Le-Thy Tran, 433 F.3d 472, 478 (6th Cir. 2006).

Even if count three was not sufficiently related, there is little compelling evidence that the joinder prejudiced the defendant and denied him a fair trial. A defendant is prejudiced by a joinder if the jury cannot “keep the evidence from each offense separate and [is] unable to render a fair and impartial verdict on each offense.” United States v. Rox, 692 F.2d 453, 454 (6th Cir. 1982). The purpose of Rule 8(a) is “to promote the goals of trial convenience and judicial efficiency.” United States v. Wirsing, 719 F.2d 859, 862 (6th Cir. 1983). Thomas fails to present compelling arguments that actual prejudice existed and outweighed the interests of the court. He does not articulate how a straightforward presentation of the evidence in the case would realistically confuse or prejudice a jury in issuing an impartial verdict. The arguments that “spillover evidence” from counts one and two convinced the jury to convict him of count three, and vice versa, are mere speculation, as is Thomas’s claim that his list of prior offenses from count three prejudiced the jury to change the verdict. A spillover of evidence between counts does not require severance unless there is “substantial,” “undue,” or “compelling” prejudice. United States v. Fields, 763 F.3d 443, 457 (6th Cir. 2014); see also United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992).

The district court properly determined that the trial evidence demonstrated that the robbery and shooting were committed with a pistol, rather than with the shotgun in count three. No reasonable juror could have confused which of the two weapons was used in the robbery. Prejudicial joinder is especially unlikely when the jury can adequately “compartmentalize and distinguish the evidence concerning the different offenses charged.” United States v. Cody, 498 F.3d 582, 587 (6th Cir. 2007) (quoting Chavis, 296 F.3d at 462). Moreover, the district court clarified during the reading of the indictment and jury instruction that the jury must consider each charge separately.

Joining count three to the indictment promotes the interests of trial convenience and judicial efficiency. Wirsing, 719 F.2d at 862. The “significant overlap of [ ] witnesses presented on each offense” and intertwining evidence also allow joinder here. Tran, 433 F.3d at 478. Thomas’s speculations about the influence of count three on the jury are insufficient to show a prejudicial effect from the joinder that his counsel would have been obligated to combat. As such Thomas’s counsel was not deficient in failing to request severance of the counts, since there is no reason to think it would have affected the outcome of the proceeding.

2. Failure to Request a Limiting Jury Instruction

Thomas argues that the jury instruction was not sufficient to limit prejudice resulting from the joinder of count three. The Government argues that the district court, as well as counsel for both sides, emphasized that the gun was pur-, chased after the robbery, and that the jury instruction sufficiently informed the jury to distinguish the evidence underlying the counts.

The district court jury instruction was as follows:

The defendant in this case is charged with three crimes. The number of charges is no evidence of guilt and this should not influence your decision in this ease in any way.
It is your duty to separately consider the evidence that relates to each charge and to return a separate verdict for each one.
For each charge, you must decide whether the government has presented proof beyond a reasonable doubt that the defendant is guilty of that particular charge.
Your decision on one charge, whether it is ultimately guilty or not guilty; should not influence your decision on any of the other charges.

This court has upheld similar jury instructions about overcoming the prejudicial effect of an improper joinder. See Cody, 498 F.3d at 588; see also Chavis, 296 F.3d at 462. Misjoinder is almost always harmless if the court issues a careful limiting instruction to the jury concerning possible prejudice. Cody, 498 F.3d at 587.

Beyond speculation there is no evidence supported by the trial record that the jury was confused about the nature of the firearm counts. Thomas is unable to show a reasonable probability that the result of the trial would have been different had his counsel attempted to limit the jury instruction.

C. Ineffective Assistance of Counsel for Failure to Present Evidence that Another Individual Committed the Offense

Thomas contends that his counsel should have better investigated and presented evidence that Bobby Jackson was actually the getaway driver and Anthony Bond committed the robbery. Most of Thomas’s arguments for this strategy are plausible, but legitimate reliability and admissibility concerns prevent Thomas from demonstrating that the decision not to pursue this strategy was unreasonable or prejudiced the outcome of the case. See Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052.

Thomas puts forward multiple arguments of varying strength that the robbery was actually committed by Jackson and Bond. First, he argues that defense counsel did not sufficiently emphasize at trial that Bobby Jackson was identified as the driver of the getaway vehicle on two separate occasions by a witness to the crime, Robert Fisher. Both identifications were made to the FBI based on a photographic array several months after the incident. At trial, defense counsel called Fisher and asked him to testify to the identification he made during the investigation. But during the testimony Fisher admitted that he could not definitively identify the driver or identify him in the courtroom: “Well, I was asked can you identify anybody. I told them at the time I couldn’t definitely. I could say that one of them looked like the guy that I saw driving.”

Thomas claims that his counsel should have emphasized during Fisher’s testimony that Fisher identified the same picture in the photo array on two separate occasions, and that defense counsel should have elicited the fact from Fisher that the person in the photo was Bobby Jackson. As the district court noted, the information was cumulative to the testimony that had been presented, and the language used by Fisher when he viewed the photo array was inadmissible as hearsay. Moreover, defense counsel could not have elicited from Fisher that the name of the person he identified was Bobby Jackson, as Fisher lacked any personal knowledge of Bobby Jackson. It is unclear what additional value Robert Fisher might have been able to provide to the credibility of Thomas’s defense.

Second, Thomas claims his counsel failed to present the eyewitness testimony of Gail McDonald, and alleges that McDonald’s description in her FBI statement of one of the suspects as “heavyset” and “wearing blue jeans” does not match Thomas. But McDonald’s testimony would still have hurt Thomas. While she described one suspect as “heavyset,” she described the other suspect’s attributes fairly closely to Thomas’s appearance. It is probable that Thomas’s counsel might have found McDonald’s testimony damaging to his client and decided not to call her. Thomas also makes cursory references to “numerous eye witnesses” like McDonald that he suggests would have been helpful for the Bobby Jackson defense, all of which the district court properly identifies as unhelpful or even harmful to the defense.

Third, Thomas identifies a letter that he allegedly received from Anthony Bond as proof that counsel should have more thoroughly investigated Bobby Jackson. The letter declares that Bond and Angela Jackson lied about Thomas’s involvement in the Walgreens robbery in order to protect Bobby Jackson, because Angela Jackson and Bobby Jackson had been in a romantic relationship when Angela was seeing Thomas. The evidence below shows the letter to be a forgery written after Thomas’s federal convictions. Bond, through his post-conviction representation, has denied writing the letter. At trial the Government produced handwriting expert testimony that concluded the letter was a forgery. Even if the letter was not a forgery, “this court views with great suspicion the recantation testimony of trial witnesses in post-conviction proceedings.” Brooks v. Tennessee, 626 F.3d 878, 897 (6th Cir. 2010). While it is possible that evidence of a romantic relationship with Bobby Jackson might have drawn Angela’s credibility further into question, the district court found the testimony of witnesses to the romantic relationship ex--tremely suspect.

Finally, Thomas argues that his counsel should have introduced evidence that Bobby Jackson had committed an armored car robbery at Southbrook Mall three months after the Walgreens robbery. The district court found that these two robberies were significantly different, and that there was no real evidence linking Jackson to the Walgreens robbery. Potential evidence that inmate Stephen Briscoe claimed Jackson had admitted committing other robberies offered no connection to the Wal-greens robbery.

The claim that Thomas’s counsel should have more aggressively pursued the “Bobby Jackson” strategy is questionable at best. All of the potential evidence Thomas presents of Bobby Jackson’s involvement is riddled with reliability and admissibility issues. Thomas fails to produce compelling evidence that his counsel was deficient in not presenting more evidence of Bobby Jackson as a suspect, and he fails to demonstrate prejudice resulting from the alleged deficiency.

D. Ineffective Assistance of Counsel for Failure to Investigate Alibi

Testimony

The parties disagree as to whether this claim has been waived. In his initial brief on appeal, Thomas dedicates one footnote to the claim. Even if Thomas properly presented this claim, it is merit-less. At trial the Government effectively rebutted testimony that the alibi witness, Thomas’s girlfriend Dana Wiggins, was with Thomas at the time of the robbery by proving that Wiggins was lying. Before the trial, Thomas’s counsel interviewed Wiggins and Thomas multiple times, and warned them of the harms in presenting a false alibi defense. Thomas’s counsel also interviewed Thomas’s mother, who corroborated Wiggins’s story. The district court is correct that Thomas was entitled to a competent defense, but not a perfect one. Crehore v. United States, 127 Fed.Appx. 792, 796 (6th Cir. 2005). Thomas’s counsel was not deficient in failing to protect a client from the client’s own deceit.

E. Ineffective Assistance of Counsel for “Cumulative Errors”

Whether an attorney’s representation amounted to incompetence is a question of whether the attorney adhered to “prevailing professional norms,” and not whether it deviated from best practices or most common custom. Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). As such, “[slur-mounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371-72, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). While it is true that multiple errors by trial counsel can cumulatively result in a Sixth Amendment violation, this is not the case at hand. See Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004). Individually, each of Thomas’s Sixth Amendment claims fail, and bundling them together does not increase their merit. See id.

Thomas argues that his trial attorney committed multiple errors, which cumulatively result in a violation of his right to effective counsel. The alleged errors include those discussed above: (i) failure to move to sever Count Three; (ii) failure to request a limiting instruction; (iii) failure. to investigate and present the “Bobby Jackson” defense; and (iv) failure to sufficiently investigate the alibi testimony. Thomas then adds: (v) failure to present exculpatory evidence promised during the opening statement; and (vi) failure to object to the Government’s repeated showing of the surveillance video that had little probative value, but was highly prejudicial to Thomas.

Thomas’s arguments concerning the opening statement and the failure to object are not sufficiently supported to prove a Sixth Amendment claim. Thomas does not articulate how these actions specifically were deficient or how they specifically prejudiced the outcome of the case. Instead, they are tacked on to a list of the failed ineffective assistance of counsel arguments. A party waives issues that he adverts to in a perfunctory manner, unaccompanied by some effort at developed argumentation. United States v. Fowler, 819 F.3d 298, 309 (6th Cir. 2016). All of the cumulative errors Thomas cites are either waived or fail.

F. Brady Claim

Thomas' asserts that his due process rights were violated when federal prosecutors did not disclose that Angela Jackson had been compensated for her testimony. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. At the district court, Thomas’s Brady claim was denied in a non-final order. As the order was non-final, it was unnecessary at that time for the district court to indicate whether it granted a Certificate of Appealability (COA) for the claim. When the court determined in its final order which claims were or were not granted a COA, it did not address the Brady claim. Thomas eventually requested a COA on the issue of whether he was precluded from pursuing his Brady claim, which was granted. This court may elect to consider claims that both parties have extensively briefed. United States v. Martin, 438 F.3d 621, 628 (6th Cir. 2006). The district court’s failure to address the ap-pealability of the Brady claim appears to be an oversight. Thomas did not intend to waive his claim, nor is the Government prejudiced by allowing the claim to be presented. The COA granted by this court was proper, and the Brady claim concerning Angela Thomas’s testimony is not precluded.

Although Thomas’s remaining Brady claim is not waived, it ultimately fails on the merits. Under Brady, Thomas must show that the Government failed to share evidence favorable to the accused, and that the suppression of evidence prejudiced the defendant. Montgomery v. Bobby, 654 F.3d 668, 678 (6th Cir. 2011) (en banc). Thomas claims that the Government failed to disclose evidence that it intended to pay Angela Jackson for her federal testimony. Angela Jackson did receive $750 after Thomas’s federal trial. Brady requires the disclosure of all material evidence to the defendant even if the evidence is only relevant for the purpose of impeaching government witnesses at trial. Bell v. Bell, 512 F.3d 223, 232 (6th Cir. 2008) (en banc) (citing United States v. Bagley, 473 U.S. 667, 676-77, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). A defendant has the constitutional right to impeach a witness by showing bias. Robinson v. Mills, 592 F.3d 730, 737 (6th Cir. 2010).

The timing of the payment to Angela Jackson, which took place after the federal trial but before the state trial, causes Thomas’s federal Brady claim to fail. U.S. Marshal Scott Sanders, who was part of the Safe Streets Task Force, submitted an affidavit that Angela Jackson had not been informed ahead of time that she would be compensated for her cooperation or that she was at risk of facing prosecution for assisting Thomas. While Sanders previously stated during an evidentiary hearing conducted by the district court that he believed Angela Jackson was informed during the investigation that she might have potential criminal liability, he also stated that no one suggested to Jackson that she would be subject to arrest. Sanders subsequently stated that investigators did not anticipate, plan, or discuss with Angela Jackson a payment to be made to her after the federal trial.

Thomas is unable to present evidence that Angela Jackson had knowledge before her federal testimony that she would receive the money, or that she made a deal to testify in lieu of being prosecuted. Thomas argues that the circumstance of her not being prosecuted gives rise to the presumption that a “deal” was made with Jackson before the trial. But this inference alone is insufficient basis for a Brady claim. See Jefferson v. United States, 730 F.3d 537, 552 (6th Cir. 2013); Matthews v. Ishee, 486 F.3d 883, 895 (6th Cir. 2007) (explaining that an inference that the prosecution must have made a pre-trial deal with a witness in exchange for testimony is itself insufficient basis for a Brady claim). Nor does the fact that a witness was later compensated for her testimony give rise to a sufficient presumption for a Brady claim. Bell, 512 F.3d at 234. If the Government had the ability or obligation to disclose to Thomas the eventual compensation, it is plausible that the withholding of evidence might have affected the outcome of the case. But during the federal trial the Government had no obligation to disclose to the defendant whether it was considering the eventual payment to Jackson.

Finally, Thomas appeals the district court’s denial of his request for additional discovery on the Brady claim. Here again the district court did not abuse its discretion, as the movant was unable to show good cause for more discovery. See Williams v. Bagley, 380 F.3d 932, 974 (6th Cir. 2004). Rule 6(a) of the Rules Governing § 2255 Proceedings allows the district court to enable further discovery in a ha-beas proceeding where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief. Harris v. Nelson, 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969); Cornell v. United States, 472 Fed.Appx. 352, 354 (6th Cir. 2012). Thomas’s request for discovery fails for much the same reason that his Brady claim fails on the merits. Beyond mere speculation, Thomas provides no evidence that the Government withheld evidence that it was obligated to disclose. Bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the government to respond to discovery or to require an evidentiary hearing. Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001).

Accordingly the district court’s denial of the writ is AFFIRMED.

      . After Thomas’s federal court conviction, the armored car courier died as a result of his injuries suffered during the robbery. In 2005, Thomas was convicted in Tennessee state court for felony murder and sentenced to death. Tennessee v. Thomas, 158 S.W.3d 361, 417 (Tenn. 2005). The district court dismissed his habeas motion for relief from his state convictions. This court addresses his appeal of that decision in the companion case, and grants the petition. Thomas v. Westbrooks, No. 15-5399, 849 F.3d 659, 2017 WL 727151 (6th Cir. Feb. 24, 2017).

      . The Government requested that this court hear the Brady claim on the merits in the interest of judicial economy.

      . While Thomas's Brady claim as to Angela Jackson's testimony is not waived, Thomas has waived the Brady claim argued at the district court that the Government did not disclose evidence of eyewitness Gail McDonald failing to identify Thomas in a photo array. As that argument is not presented in Thomas's brief, it is waived.


author: HAMILTON, Circuit Judge.

text:
    Joyce WHITAKER, Plaintiff-Appellant, v. WISCONSIN DEPARTMENT OF HEALTH SERVICES, Defendant-Appellee.
    No. 16-1807
    United States Court of Appeals, Seventh Circuit.
    Argued November 29, 2016
    Decided February 27, 2017

      James A. Walcheske, Attorney, Wal-cheske & Luzi, LLC, Brookfield, WI, for Plaintiff-Appellant.
    Jennifer L. Vandermeuse, Attorney, Office of the Attorney General, Madison, WI, for Defendant-Appellee.
    Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge.

Plaintiff Joyce Whitaker worked for the Wisconsin Department of Health Services. The Department fired Whitaker when she did not return to work after exhausting her unpaid statutory and contractual medical leave. Whitaker sued, claiming that the Department failed to accommodate her disability and terminated her employment in violation of the Rehabilitation Act. The district court granted summary judgment in favor of the Department on several grounds. We agree with the district court that Whitaker failed to establish that she was an “otherwise qualified” employee, as required by the Rehabilitation Act, and we affirm the grant of summary judgment.

I. Factual and Procedural Background

A. Employment History and Disability Accommodation

On appeal from a grant of summary judgment, we accept as true the evidence offered by the non-moving party, and we draw all reasonable inferences in that party’s favor. Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009). Plaintiff Joyce Whitaker first started working for Milwaukee County in 2001. She initially worked as a corrections officer, but after suffering a back injury in 2005, she transitioned to other positions with the County. She ultimately became an economic support specialist in the Income Maintenance Program, which manages Milwaukee’s applications for public assistance. Whitaker’s responsibilities included processing applications for benefits, answering phone calls, and general case management.

In 2009, the Wisconsin legislature directed the Wisconsin Department of Health Services to assume administration of Milwaukee County’s public assistance program. 2009 Wis. Act. 15, § 22, codified at Wis. Stat. § 49.825. Whitaker continued in her position, where she worked on behalf of the County but was under the supervision of the Department of Health Services. The Department had authority to make employment decisions regarding Whitaker, Wis. Stat. § 49.825(3)(b)(l), and it made the termination decision that she challenges in this suit.

The Department was aware of Whitaker’s disability at least as early as 2009. On December 8, 2009, Whitaker filed a disability form seeking an accommodation for her chronic back pain. She requested permission to stand and stretch for five minutes once every thirty minutes during the workday. The Department .approved her request.

B. Consecutive Leaves of Absence

In the summer of 2010, Whitaker took the first of several consecutive leaves of absence. She never returned to work before she was fired in November 2010. During those months, Whitaker requested and received a number of extensions until she had exhausted several types of leave that were available to her. At times she made clear that she was requesting leave due to her disability. At other times it was less clear why she requested leave. The events unfolded as follows.

On August 27, 2010, Whitaker requested two weeks of continuous leave under the Family and Medical Leave Act (FMLA) due to her “recurrent back pain.” The Department approved her request and set her return date for September 10, 2010. Then, on September 8, Whitaker requested additional FMLA leave until December 27, 2010 to take care of a family member and because of her medical condition. The Department authorized leave through October 18, 2010, but informed Whitaker that her FMLA leave for the year would be exhausted at that point. The Department advised Whitaker that she could, however, request an unpaid leave of absence for up to 80 more days under section 2.24 of her contract: “Leaves of absence without pay' [not] exceeding 30 calendar days may be granted for good reason to any employee with the approval of their [sic] department head or designee.... Request for such leaves shall be made by the employee as far as possible in advance of the date on which such leave is to begin.” The Department also explained the process for requesting that leave.

On October 18, Whitaker submitted a request for contractual leave without pay through December 28, 2010. This time her request said that she sought leave to “take care of [her] ill father” and due to her “own personal illness.” It did not mention her back condition specifically. The Department approved her contractual leave until November 5, 2010, but noted that it “will not be granting any additional extensions of this leave” and Whitaker was “expected to return to work on Monday, November 8, 2010.” (Emphasis in original.) The Department warned Whitaker that if she failed to return to work, it would begin the termination process.

Whitaker did not return to work on November 8. She did, however, submit two additional notes from her doctor. One, dated November 3, 2010, said only “medical leave of absence until 11/17/10.” The second was dated November 12, 2010 and said only “medical leave of absence until 12/17/10.” Neither note provided any detail on Whitaker’s condition, her course of treatment, or the likelihood of her recovery.

C. Termination and Lawsuit

On November 15, 2010, the Department notified Whitaker that it was considering terminating her employment due to her failure to return to work. It scheduled a meeting with her for November 18 to “discuss this pending action and provide any documentation you wish to submit for consideration.” Whitaker attended the November 18 meeting with a union representative. She indicated that she still could not return to work. The Department then terminated her employment on November 30, and Whitaker sued.

Whitaker’s legal claims have gone through several iterations. On appeal, she argues that the Department of Health Services violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by rejecting what she calls her request for an accommodation of “finite, unpaid leave” and instead terminating her employment.

The district court granted summary judgment in favor of the Department. First, the court found that Whitaker failed to provide evidence that she could perform the essential functions of her position, either with or without an accommodation. Second, the court found that Whitaker had admitted that she was not terminated “solely by reason of her ... disability,” as required by the Rehabilitation-Act. Finally, the court found that Whitaker’s accommodation request “amounted to an open-ended leave request,” which was not reasonable and would have imposed an undue burden on the Department.

II. Analysis

A. Standard of Review

We review de novo the district court’s grant of summary judgment; Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 336 (7th Cir. 2012). Except for its “solely by reason of’ standard, the Rehabilitation Act “incorporates the standards applicable to Title I of the [Americans with Disabilities Act].” Brumfield v. City of Chicago, 735 F.3d 619, 630 (7th Cir. 2013). To prevail on her Rehabilitation Act claim, Whitaker must show that: “(1) she is disabled within the meaning of the statute; (2) that she was otherwise qualified for the job in question; (3) that she was discharged or the subject of other adverse action solely because of her disability; and (4) the employment program of which her job was a part received federal financial assistance.” Felix v. Wisconsin Dep’t of Transportation, 828 F.3d 560, 568 (7th Cir. 2016).

To avoid a motion for summary judgment challenging each element, Whitaker must present evidence that, if believed by a trier of fact, would establish each of these elements. Kotwica v. Rose Packing Co., 637 F.3d 744, 748 (7th Cir. 2011). It is undisputed that Whitaker is disabled within the meaning of the statute and that the Department receives federal funds. However, Whitaker failed to present evidence that would allow a trier of fact to find that she was an “otherwise qualified” employee. An employee is “otherwise qualified” when she is capable of performing the “essential functions” of the job with or without a reasonable accommodation. Brumfield, 735 F.3d at 631. Since Whitaker failed to establish that she could perform the essential functions of her job, her Rehabilitation Act claim fails. We need not address the Department’s argument that Whitaker never made a proper accommodation request in the first place, nor the district court’s conclusion that her request was not reasonable.

B. “Otherwise Qualified’’Employee

For purposes of the Americans with Disabilities Act and the Rehabilitation Act, regular attendance is an essential function of many jobs. See, e.g., Basden v. Professional Transportation, Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“An employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance.”), citing EEOC v. Yellow Freight System, Inc., 253 F.3d 943, 948-49 (7th Cir. 2001); Jovanovic v. In-Sink-Erator Division of Emerson Elec. Co., 201 F.3d 894, 899-900 (7th Cir. 2000) (“Common sense dictates that regular attendance is usually an essential function in most every employment setting; if one is not present, he is usually unable to perform his job.”).

While there may be exceptions to this general rule, the record shows there was no exception in this case: Whitaker’s economic support specialist position required regular attendance. The position’s responsibilities included answering phone calls, attending in-person meetings with clients, using the Department’s internal computer system, and other tasks that required attendance. Whitaker does not provide any evidence that attendance was not an essential function of the job.

Whitaker argues instead that even if attendance was an essential function, the district court erred by analyzing her qualification only without accommodation, rather than also with a reasonable accommodation. This is simply not the case. The district court did consider whether Whitaker was capable of performing the essential functions of her job either with or without a reasonable accommodation. Whitaker did-not meet this standard without an accommodation because she failed to attend work, and attendance was an essential function of the job. She did not meet this standard with an accommodation because, as the district court discussed, she did not offer sufficient evidence to establish this element.

Whitaker did not offer any evidence regarding the effectiveness of her course of treatment or the medical likelihood of her recovery. The only medical documents she supplied were two terse doctor notes. One stated “medical leave of absence until 11/17/10” and the other stated “medical leave of absence until 12/17/10.” These notes did not explain whether Whitaker was even receiving treatment, let alone the likely effectiveness of the treatment. We have found doctor notes were insufficient to support a reasonable accommodation even if they were more informative than these. See, e.g., Weigel v. Target Stores, 122 F.3d 461, 469 (7th Cir. 1997) (affidavit from plaintiffs psychiatrist saying “there was a good chance” that she would be able to return to work was “too conclusory and uninformative” to support conclusion that accommodation would enable plaintiff to attend work regularly). The doctor notes here were even less informative.

Given this shortcoming, Whitaker argues that her declaration provides sufficient evidence that she could perform the essential functions of her job if given an accommodation — that is, that she could attend work on a regular basis if given additional leave. In her September 2015 declaration, Whitaker stated that she received cortisone injections and physical therapy during her leave in the fall of 2010. She also said: “I provided [the Department] with an anticipated return to work date of December 28, 2010 that I would have actually been able to return by if Defendant had extended my medical leave.”

It is true that “self-serving affidavits can indeed be a legitimate method of introducing facts on summary judgment.” Widmar v. Sun Chemical Corp., 772 F.3d 457, 459-60 (7th Cir. 2014). Moreover, we have taken pains to reject “the misconception that evidence presented in a ‘self-serving’ affidavit is never sufficient to thwart a summary judgment motion.” Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003); see also Hill v. Tangherlini, 724 F.3d 965, 967 (7th Cir. 2013) (“Deposition testimony, affidavits, responses to interrogatories, and other written statements by their nature are self-serving. As we have repeatedly emphasized over the past decade, the term ‘self-serving’ must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment.”) (citation omitted).

Nonetheless, Whitaker’s declaration is insufficient to avoid summary judgment. Her declaration does not provide sufficient evidence to allow a trier of fact to find that, if the Department had given her additional unpaid leave, she likely would have been able to return to work on a regular basis. While Whitaker said that she was receiving treatment, she did not explain the effectiveness of this treatment or the medical likelihood that it would enable her to return to work regularly.. Again, we have found claims with even more medical evidence insufficient. See, e.g., Basden, 714 F.3d at 1038 (plaintiff provided “evidence that medication improved her condition; that she had hoped for enough improvement to return to work regularly after leave; and that she subsequently had brief employment that was interrupted by a two-week absence caused by her condition;” that “evidence was insufficient to support a factual finding that [plaintiff] was able to come to work regularly at the time of her termination, or that her regular attendance could have been expected following the leave she sought or with any other accommodation”).

The insufficiency of Whitaker’s declaration is compounded by the record, which shows that she had repeatedly requested additional medical leave when her leave was about to expire. See, e.g., Amadio v. Ford Motor Co., 238 F.3d 919, 928-29 (7th Cir. 2001) (in light of employee’s attendance record, “the extension of [employee’s] already lengthy leave by one more week would have been a futile concession, not a reasonable accommodation”).

Since Whitaker failed to establish that she was an “otherwise qualified” employee, we need not address whether she properly requested an accommodation, or whether her accommodation request was reasonable. The district court’s grant of summary judgment for the Wisconsin Department of Health Services is

AFFIRMED.

      . Whitaker filed an earlier lawsuit alleging a violation of the Americans with Disabilities Act and naming both Milwaukee County and the Wisconsin Department of Health Services as deféndants. The Department was dismissed on sovereign immunity grounds, and the district court granted the County’s motion for summary judgment because the adverse employment actions were taken by the Department, not the County. We affirmed. Whitaker v. Milwaukee County, 772 F.3d 802 (7th Cir. 2014). On August 20, 2013, Whitaker filed this new suit against the Department under the Rehabilitation Act. The district court denied the Department’s motion to dismiss on claim preclusion grounds but granted its motion for summary judgment, which Whitaker now challenges.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Martez DICKSON, Defendant-Appellant.
    No. 16-1039
    United States Court of Appeals, Seventh Circuit.
    Argued November 16, 2016
    Decided February 27, 2017
    Rehearing and Rehearing En Banc Denied March 23, 2017

      Talia Bucci, Assistant U.S. Attorney, Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.
    Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.
    Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
   PER CURIAM.

Martez Dickson appeals his conviction for being a felon in possession of a gun. 18 U.S.C. § 922(g)(1). He argues that the district court erred by denying his motion to suppress evidence and by imposing vague conditions of supervised release. We find no error in the court’s evidentiary ruling but agree with Dickson that two of his conditions of supervision are problematic. Consequently, we affirm in part, vacate in part, and remand for a limited resentenc-ing hearing.

In May 2014, three police officers in Rockford, Illinois, responded to a report that two individuals were asleep in a parked car in a McDonald’s drive-thru. One of the officers opened the driver’s-side door and tried to wake the slumbering driver, who was later identified as Dickson. Once Dickson finally stirred, another officer observed a handgun lodged in the center console of the front seat. That officer lunged through the passenger’s-side door and recovered the gun. Dickson was then arrested on various charges, including unlawful use of a weapon by a felon, 720 ILCS 5/24-l.l(a). An inventory search of the car uncovered small amounts of heroin and marijuana.

The matter was referred to federal authorities, and Dickson was charged with being a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). Dickson then moved to suppress the gun and drugs, arguing that the police had no lawful basis for searching him or the car.

The district court held a hearing on the motion to suppress evidence. The government first introduced a rental-car agreement showing that the car had been rented to a woman named Tyota Keeylen. The rental agreement did not list Dickson as' an authorized driver, but the parties stipulated that Keeylen would testify that she told Dickson he could drive the car. The government also introduced records showing that Dickson’s driver’s license was suspended at the time of his arrest.

At the evidentiary hearing, two of the three officers involved in Dickson’s arrest testified. Officer Anthony Curran testified that around 6:30 a.m. on a Saturday morning they received a call about two individuals asleep in a car in a McDonald’s drive-thru. Upon arriving at the restaurant, Cur-ran saw that the car was running, that Dickson and a female passenger were sitting motionless inside, and that there was a bottle of vodka in the front seat’s center console. Suspecting that Dickson was drunk, Curran opened the front driver’s-side door, removed the keys from the ignition, and placed the keys on top of the car. Curran explained that he did this for safety reasons: he was squeezed in a three-foot space between the car and the building, and he feared he would be crushed if the car started to move.

After Curran took the keys from the ignition, he tried to wake Dickson by yelling at him. Dickson did not respond, so Curran started shaking him. About thirty seconds later, Dickson finally woke up. Curran ordered him to get out of the car, but Dickson responded by trying to shift the car into drive. Nothing happened, of course, because Curran already had removed the keys from the ignition.

Meanwhile, one of the other officers yelled out a police code for a gun and dove through the front passenger’s-side door, over the female passenger, pushing Dickson partially out of the car toward Curran. Curran, spotting the handgun lodged between the driver’s seat and the center console, pulled Dickson out of the car while the other officers recovered the gun. Cur-ran then cuffed Dickson, searched him, and placed him in a squad car. Further investigation revealed that the gun was loaded and that Dickson did not have a Firearm Owner’s Identification Card. The officers arrested Dickson and impounded the car,- and an inventory search uncovered heroin and marijuana.

One of the other two officers also testified at the evidentiary hearing, mostly repeating what Curran had said about the events leading to Dickson’s arrest. Dickson presented no evidence in rebuttal.

The district court denied Dickson’s motion to suppress evidence of the gun and drugs. First, it found the government’s witnesses credible. The court next concluded that Dickson lacked standing to challenge the search of the car because Dickson — as an unlicensed, unauthorized driver of a rental car — did not have a reasonable expectation of privacy in the car. The court also concluded that the officers acted reasonably in confronting Dickson, seizing the gun when it came into plain view, and arresting him once they learned that his possession of the gun was unlawful. And once Dickson had been lawfully arrested, the court reasoned, the police also were entitled to impound and conduct an inventory search of the car.

The case then proceeded to trial. The three officers testified about the events that occurred after they found Dickson asleep in the drive-thru. Keeylen, who had not been present during Dickson’s arrest, said that she rented the car to travel Saturday but let Dickson borrow it Friday night to get something to eat. The female passenger who had been sleeping in the car testified that Dickson agreed to give her a ride home after a party and that she had not seen the gun until the police recovered it. Dickson again presented no evidence in rebuttal.

The jury found Dickson guilty of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court then classified Dickson as an armed career criminal, 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4,. and sentenced him to 235 months’ imprisonment.

Dickson objected to several supervised-release conditions that the district court imposed, but only two of those conditions are relevant to this appeal. The first required that he “remain within the jurisdiction where the defendant is being supervised, unless granted permission to leave by the court or a probation officer.” Dickson objected to this condition on the basis that “jurisdiction” is vague. Dickson also objected to a condition requiring him to “notify, as directed by the Probation Officer, third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and ... permit the Probation Officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.” Both Dickson and the government objected to this condition because it would require him to determine independently when notification was required. The district court overruled the objections.

In May 2016, about five months after Dickson was sentenced, the judge who sentenced him, Judge Reinhard, issued a standing order modifying previously imposed conditions of supervised release for “defendants ... sentenced but not yet on supervised release.” Standing Order, https://goo.gl/9oY10k (visited February 3, 2017). Among the conditions modified by the standing order were the two to which Dickson previously had objected.

On appeal Dickson first argues that the district court erred in denying his motion to suppress evidence of the gun and drugs because the police did not discover that evidence until after Dickson had been unlawfully seized. We review de novo a district court’s denial of a motion to suppress but analyze its underlying factual findings for clear error. United States v. Whitaker, 820 F.3d 849, 852 (7th Cir. 2016).

As an initial matter, it is unclear why Dickson challenges the denial of his motion to suppress the drug evidence discovered during the inventory search of the car. As the government notes, no' evidence of the drugs was introduced at trial. Dickson says in his reply brief that suppressing the drugs “ensures they won’t be the basis of any related prosecution.” But since the drugs do not bear on this case, we need not decide whether the drug evidence — as opposed to evidence of the gun — should have been suppressed.

The parties vigorously debate whether Dickson had any reasonable expectation of privacy such that he has standing even to challenge any unlawful search of the car. See United States v. Sanford, 806 F.3d 954, 958 (7th Cir. 2015) (questioning whether to revisit United States v. Haywood, 324 F.3d 514, 515-16 (7th Cir. 2003), in which we concluded that unlicensed, authorized driver of rental car lacked reasonable expectation of privacy). But that debate is not germane to this appeal — regardless of whether Dickson had any reasonable expectation of privacy in the car he surely can challenge any search that resulted from an unlawful seizure of his person. See Sanford, 806 F.3d at 958-59.

The government has not argued that the police officers had probable cause to arrest Dickson for drunk driving when they approached the car, arguing instead that they had reasonable suspicion to detain Dickson under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See Matz v. Klotka, 769 F.3d 517, 522 (7th Cir. 2014). As Curran approached the car, he observed a bottle of vodka and saw that Dickson had passed out behind the wheel. Dickson all but concedes that it was reasonable in these circumstances for Curran to investigate him for drunk driving (and for having an open bottle of vodka) and to remove the keys from the ignition to ensure officer safety.

Dickson instead focuses on a peculiar Fourth Amendment argument: because any safety concerns were “fully abated” when Curran removed the keys from the ignition, Dickson says, Curran unlawfully seized him by “entering the car to shake Mr. Dickson awake for questioning.” But Curran tried to shake Dickson awake only after “yelling” at him failed to do so, and it is hard to see how Curran’s actions could be considered unreasonable under the circumstances. See United States v. Maher, 454 F.3d 13, 19 n.7 (1st Cir. 2006) (“Just because [a defendant] was so soundly asleep (or unconscious) that [an officer] had to shake his arm to wake him up does not mean he was ‘seized’ within the meaning of the Fourth Amendment.”).

Moreover, even if the evidence from the car were unlawfully obtáined, it would be admissible under the inevitable discovery doctrine. See United States v. Cartwright, 630 F.3d 610, 613 (7th Cir. 2010). Curran reasonably ordered Dickson out of the car so he could investigate Dickson for possibly driving drunk or having an open container of alcohol. Smith v. Ball State Univ., 295 F.3d 763, 770 (7th Cir. 2002). Had Dickson complied with Cur-ran’s order instead of trying to drive away, the gun would have been visible to the officers once Dickson got out of the driver’s seat. Similarly, if Curran had time to interrogate Dickson before the other officer spotted the gun, he would have quickly discovered that Dickson did not have a valid driver’s license or the rental company’s authorization to drive the car. And if Curran had contacted the rental company, he likely would have been asked to impound the vehicle, at which time the gun and drugs would have been inevitably discovered. See Sanford, 806 F.3d at 959.

Turning to Dickson’s supervised release, we agree .with the parties that the conditions requiring him to remain in the “jurisdiction” and notify third parties of unspecified “risks” are impermissibly vague. United States v. Ortiz, 817 F.3d 553, 555 (7th Cir. 2016) (finding vague a condition requiring defendant to remain within jurisdiction of supervision unless granted permission to leave); United States v. Bickart, 825 F.3d 832, 841-42 (7th Cir. 2016) (same with third-party notification requirement).

The question remains, however, how we should remedy these problematic conditions. The government asserts that remand is unnecessary because Judge Reinhard’s standing order already has clarified any ambiguity in the conditions. Yet Dickson may end up serving his supervised release in another judicial district, so potential confusion can be averted by ensuring that the modified conditions are incorporated into a new judgment. On the other hand, we reject Dickson’s suggestion that we should remand for a full resentencing hearing. As we explained in United States v. Anglin, 846 F.3d 954, 971 (7th Cir. 2017), “[w]e do not think it plausible that orally pronouncing the conditions and slightly modifying some of them would induce the district judge to reconfigure other aspects of the sentence, particularly the imprisonment term.”

Accordingly, we AFFIRM in part, VACATE in part, and REMAND for the limited purpose of amending the conditions of supervision.