United States v. Mendiola ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
Nos. 95-50177,
97-50393 and 97-50407
______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES MENDIOLA; ELSA MENDIOLA; JOSE L. CRUZ
Defendants-Appellants.
Appeal from the United States District Court
for the Western District of Texas
(SA-93-CR-191)
October 21, 1997
Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:1
James and Elsa Mendiola were convicted for conspiracy to
manufacture and distribute marijuana; and, together with Jose Luis
Cruz, for possession of marijuana with intent to distribute. We
AFFIRM Nos. 95-50177 and 97-50407; DISMISS No. 97-50393.
I.
Between September 1992 and mid-1993, James Mendiola, Jerry
Wolf and Francisco Figueroa (later, a key Government witness)
1
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
engaged in an operation to grow and distribute high-quality
marijuana. It was planted initially at the Mendiola residence in
San Antonio, Texas, and then transported to, and replanted at, a
ranch owned by Wolf and Mendiola in Rocksprings, Texas. Elsa
Mendiola, the wife of James Mendiola, was involved in the operation
and arranged with her sister for distribution in the Austin, Texas,
area. Cruz worked as a laborer at the Rocksprings ranch, tending
the marijuana growing operation. Approximately 800 marijuana
plants were found growing on 24 June 1993 when search warrants were
executed at the residence and the ranch.
The Mendiolas, Cruz, and Wolf were charged with conspiracy to
manufacture marijuana with intent to distribute, in violation of 21
U.S.C. §§ 846 and 841(a)(1), and with possession of marijuana with
intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 18
U.S.C. § 2 (aiding and abetting). In mid-1994, a jury found the
Mendiolas and Wolf guilty on both charges; Cruz, on the possession,
but not the conspiracy, charge. (As discussed in our opinion in
United States v. Guerrero, Nos. 95-50140 and 97-50401, rendered the
same day as this opinion, shortly after the trial in this case,
James Mendiola was tried and convicted for conspiracy and
possession with intent to distribute other marijuana.)
In mid-1997, a new trial was denied the Mendiolas and Cruz.
II.
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Wolf dismissed his appeal. The Mendiolas and Cruz raise a
number of issues, including insufficient evidence to sustain their
convictions, evidentiary and sentencing rulings, and the denial of
a new trial. The Mendiolas also raise a double jeopardy claim;
Cruz, the denial of his severance motion. Following the mid-1994
trial, sentencing and the initial appeal (No. 95-50177) were in
1995. But, while that appeal was pending, the new trial motion was
not filed and denied until 1997. Pending that ruling, oral
argument on the initial appeal was stayed. In the interim, one
issue presented in the initial appeal was resolved, as discussed
below.
A.
The denial of Cruz’s motion to sever is reviewed only for
abuse of discretion. See Zafiro v. United States, 506 U.S. 534,
541 (1993); United States v. Arzola-Amaya, 867 F.2d 1504, 1516 (5th
Cir.), cert. denied, 493 U.S. 933 (1989). For “conspiracy cases,
the general rule is that persons indicted together should be tried
together.” United States v. Fields, 72 F.3d 1200, 1215 (5th Cir.),
cert. denied, ___ U.S. ___, 117 S. Ct. 48 (1996). “Severance is
a matter left to the sound discretion of the trial court, and a
defendant is not entitled to severance unless he can demonstrate
specific compelling prejudice that actually results in his having
received an unfair trial.” United States v. Capote-Capote, 946
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F.2d 1100, 1104 (5th Cir. 1991), cert. denied, 504 U.S. 942 (1992);
see FED. R. CRIM. P. 14.
Cruz contends that, as a result of the denial of his motion,
inadmissible hearsay statements were admitted against him. It is
difficult to determine from his brief exactly which statements he
complains of, but they are apparently the telephonic intercepts of
the co-defendants, which were admitted over his objection. He
additionally appears to contend that, in relation to the denial of
a severance and the admission of the intercepts, he was denied his
Sixth Amendment right to confront the witnesses against him.
Along this line, Cruz maintains that, aside from the
intercepts, there is little independent evidence implicating him
for possession with intent to distribute. We disagree. In any
event, a difference in the amount of evidence “is clearly
insufficient in itself to justify severance.” United States v.
Harrelson, 754 F.2d 1153, 1175 (5th Cir.), cert. denied, 474 U.S.
1034 (1985).
Cruz’s Sixth Amendment contention is also without merit.
Severance is proper in such cases only where a defendant’s
statement directly incriminates his or her co-defendants without
reference to other, admissible evidence. United States v.
Beaumont, 972 F.2d 91, 95 (5th Cir. 1992). The statements of the
co-defendants, which Cruz does not identify with any specificity,
did not directly incriminate Cruz without reference to other
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admissible evidence. In fact, from our review of the record, none
of the intercepts directly implicated Cruz.
Accordingly, Cruz does not demonstrate the requisite unfair
trial. Indeed, the jury found the Mendiolas guilty, but acquitted
Cruz, on the conspiracy charge, reflecting that it considered the
evidence separately as to each Appellant.
B.
The Mendiolas base their double jeopardy claim on the civil
forfeiture proceeding concerning their home, restaurant, and other
assets. As held fairly recently, an in rem civil forfeiture is not
a “punishment” subject to the Double Jeopardy Clause. United
States v. Ursery, ___ U.S. ___, 116 S. Ct. 2135, 2147 (1996).
Instead, the proceeding is “a remedial civil sanction, distinct
from potentially punitive in personam civil penalties such as
fines, and does not constitute a punishment under the Double
Jeopardy Clause.” Id. at 2142. In the light of Ursery, “[i]n rem
civil forfeitures do not constitute ‘punishment’ for purposes of
the Double Jeopardy Clause, but operate, merely to ‘confiscate
property used in violation of the law, and to require disgorgement
of the fruits of illegal conduct.’” United States v. Perez, 110
F.3d 265, 267 (5th Cir. 1997).
C.
Testimony by Diane Reyes, a friend of Elsa Mendiola’s sister,
Mari Gaona, was admitted pursuant to FED. R. EVID. 801(d)(2)(E), as
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“a statement by a co-conspirator of a party during the course and
in furtherance of the conspiracy.” For such admission, the
Government must establish by a preponderance of the evidence that
the declarant and the defendant were involved in a conspiracy and
that the statements were made during, and in furtherance of, the
conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).
In determining whether a conspiracy exists, the district court is
free to look at all evidence, including the putative hearsay
statement. Id. at 175-80.
The admission of Rule 801(d)(2)(E) evidence is reviewed for
abuse of discretion. United States v. Triplett, 922 F.2d 1174,
1181 (5th Cir.), cert. denied, 500 U.S. 945 (1991). And, even if
an abuse of discretion is found, the harmless error doctrine is
applied. United States v. Skipper, 74 F.3d 608, 612 (5th Cir.
1996). Determinations that the statements were made by a co-
conspirator and in furtherance of the conspiracy are reviewed only
for clear error. United States v. Stephens, 964 F.2d 424, 434 (5th
Cir. 1992). Needless to say, “[w]here there are two permissible
views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564,
574 (1985).
The Mendiolas contend that Reyes’ testimony about Gaona’s
statements should not have been admitted because there is no
independent evidence of a concert of action between them and Gaona.
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They further contend that there was no evidence that they entered
into a conspiracy with Gaona, and that the Government failed to
prove that Gaona was a member of the conspiracy for which they were
convicted. Cruz contends likewise that there was no independent
evidence of either a concert of action between him and Gaona, or
that Gaona was a member of a conspiracy that involved him.
Moreover, Cruz contends also that there was no evidence that he was
involved in a conspiracy with Reyes and that the statements made by
Reyes were not made in furtherance of a conspiracy involving her
and Cruz.
At trial, Appellants objected on several grounds, including
that, as an unindicted co-conspirator, the statements made by Gaona
were inadmissible. Counsel for Cruz objected on the basis that
Reyes’ testimony had nothing to do with Cruz. After lengthy
argument, the district court overruled all objections and
determined later that the Government had shown by a preponderance
of the evidence that a conspiracy existed, that the defendants
against whom the statements were offered were members of the
conspiracy, and that the statements were made in furtherance of
that conspiracy.
“Statements made by a non-testifying co-conspirator are
admissible against the defendant if there is ‘independent evidence
of a concert of action’ in which the defendant was a participant.”
United States v. Asibor, 109 F.3d 1023, 1033 (5th Cir.), cert.
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denied, ___ U.S. ___, 1997 WL 525549 (Oct. 6, 1997). There was
ample independent, non-hearsay evidence that Appellants were
participants in the marijuana growing and distribution conspiracy
and that Gaona was involved. Our focus for this challenge is
whether the “government introduced sufficient independent evidence
of the existence of a conspiracy, in which the defendant was a co-
conspirator....” United States v. Dawson, 576 F.2d 656, 658 (5th
Cir. 1978), cert. denied, 439 U.S. 1127 (1979). The record shows
that a marijuana growing and distribution operation was run by
James Mendiola and Wolf; that Cruz cared for the marijuana at the
Rocksprings ranch; and that Elsa Mendiola was aware of the
operation and assisted in the distribution with her sister, Gaona.
Additionally, there was testimony from an FBI Agent who observed an
exchange of a package believed to be marijuana between Gaona and
Wolf. Accordingly, Appellants’ challenge regarding lack of
independent concert of action is meritless.
As noted, the Government’s burden is to establish by a
preponderance of the evidence that the declarant (Gaona) and the
defendants were involved in a conspiracy and that the statements
were made during, and in furtherance of, the conspiracy.
Bourjaily, 483 U.S. at 175. As also noted, Appellants contend
there was no evidence they entered into a conspiracy with Gaona,
and that the Government failed to prove that she was a member of
the conspiracy for which the Mendiolas were convicted. This
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contention is without merit. There was independent evidence that
Gaona was involved in a conspiracy to distribute marijuana grown by
the Mendiolas and cared for by Cruz. Reyes testified that Gaona
told her that marijuana was being grown at the Rocksprings ranch;
that marijuana had come from the Mendiolas’ residence; that
marijuana was delivered to her in Austin from the Mendiolas; and
that Wolf and she in turn sold it for $2000 per pound. There was
also testimony from another witness that Elsa Mendiola sold
marijuana to Gaona.
As noted, Cruz contends also that there was no evidence that
he was involved in a conspiracy with Reyes, and that the statements
made by Reyes were not made in furtherance of a conspiracy
involving her and Cruz. But, the focus concerning a Rule
801(d)(2)(E) admission is on the declarant, Gaona, not Reyes.
D.
The Mendiolas challenge the sufficiency of the evidence on
conspiracy and, with Cruz, on possession with intent to distribute.
For such challenges, the evidence is viewed in the light most
favorable to the verdict, accepting all credibility choices and
reasonable inferences made by the jury; and, it is sufficient if a
rational juror could have found that it established guilt beyond a
reasonable doubt. E.g., United States v. Montoya-Ortiz, 7 F.3d
1171, 1173 (5th Cir. 1993). Toward that end, “[i]t is not
necessary that the evidence exclude every reasonable hypothesis of
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innocence or be wholly inconsistent with every conclusion except
that of guilt.... A jury is free to choose among reasonable
constructions of the evidence.” Id. (quoting United States v.
Bell, 678 F.2d 547, 549 (5th Cir. 1982), aff’d, 462 U.S. 356(1983).
As noted, concerning the insufficiency claims as to both
charges, a key Government witness was Figueroa. Figueroa, who was
also a key player in the operation, engaged in a marijuana growing
and dealing relationship with James Mendiola and Wolf. He
testified that he had a drug dealing relationship with James
Mendiola; that Wolf oversaw the growing operation; that the
marijuana began growing at the Mendiola residence and was then
transferred to the Rocksprings ranch; and that Cruz was a laborer
in charge of caring for the plants. James Mendiola also showed him
marijuana that was growing. Figueroa testified also that, once the
marijuana was transferred from the residence to the ranch, James
Mendiola would go to the ranch to make sure the plants were
perfect; that Cruz lived both at the Mendiola residence and at the
Rocksprings ranch; and that Elsa Mendiola was aware of the growing
operation, because she witnessed the loading of marijuana on a
truck.
1.
“To establish a conspiracy under 21 U.S.C. § 846, the
government must prove that a conspiracy existed, that each co-
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defendant knew of the conspiracy, and that each co-defendant
voluntarily joined in it.” Montoya-Ortiz, 7 F.3d at 1173(internal quotation marks and citation omitted). The elements for
conviction under § 846 “may be proved by circumstantial evidence
and ‘[c]ircumstances altogether inconclusive, if separately
considered, may, by their number and joint operation ... be
sufficient to constitute conclusive proof.’” United States v.
Broussard, 80 F.3d 1025, 1031 (5th Cir.), cert. denied, ___ U.S.
___, 117 S. Ct. 264 (1996) (quoting United States v. Roberts, 913
F.2d 211, 218 (5th Cir. 1990), cert. denied, 500 U.S. 955 (1991)).
Approximately 450 marijuana plants were found growing at the
Mendiolas’ residence, with over 300 plants found growing at the
Rocksprings ranch. Also, the Mendiolas were overheard in numerous
intercepted telephone calls discussing marijuana purchases and
deliveries in coded language.
James Mendiola was a leader and organizer of the grow
operation. Moreover, an undercover FBI Agent testified that James
Mendiola informed him that he grew seedless marijuana and offered
to sell it to the Agent.
In addition, as noted, Elsa Mendiola was present when a
shipment of marijuana was loaded aboard a truck; and, as also
noted, she used code in discussing drugs on the telephone, and,
sold marijuana to her sister, Gaona, for distribution in Austin
(the sister discussed in part II. C. supra).
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In sum, there was more than sufficient evidence for a
reasonable juror to find, beyond a reasonable doubt, that a
conspiracy existed, and that the Mendiolas were aware of, and
voluntarily participated in, it.
2.
Under 21 U.S.C. § 841(a)(1), the Government must prove three
elements: (1) knowing (2) possession of a controlled substance (3)
with intent to distribute it. See United States v. Brown, 29 F.3d
953, 958 (5th Cir.), cert. denied, 513 U.S. 1021 (1994). Of
course, these elements may be established by circumstantial
evidence. United States v. Cardenas, 9 F.3d 1139, 1158 (5th Cir.
1993), cert. denied, 511 U.S. 1134 (1994). For example, intent to
distribute may be inferred from the quantity, value, and quality of
the drugs involved. United States v. Casilla, 20 F.3d 600, 603
(5th Cir.), cert. denied, 513 U.S. 892 (1994); Cardenas, 9 F.3d at
1158.
Along this line, the elements for aiding and abetting a
criminal offense, in violation of 18 U.S.C. § 2, are association
with criminal activity, participation in it, and acting to help it
succeed. See United States v. Pedroza, 78 F.3d 179, 183-84 (5th
Cir. 1996); United States v. Vaden, 912 F.2d 780, 783 (5th Cir.
1990). “Association means that the defendant shared in the
criminal intent of the principal.... Participation means that the
defendant engaged in some affirmative conduct designed to aid the
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venture.... Although relevant, mere presence and association are
insufficient to sustain a conviction of aiding and abetting.”
United States v. Salazar, 66 F.3d 723, 729 (5th Cir. 1995).
Approximately 450 plants were seized at the Mendiolas’
residence; approximately 315, at the Rocksprings ranch.
Additionally, there was evidence regarding the premium price and
high quality of the seedless marijuana being grown by the
Mendiolas; that James Mendiola actively offered to sell marijuana;
that Elsa Mendiola witnessed loading marijuana shipments; that she
was engaged in a distribution scheme with her sister in Austin;
that Cruz tended and cared for the marijuana at the Rocksprings
ranch; and that he was seen at the ranch the majority of the time
(indeed, he was the only person there when the search was
conducted). There was also testimony that, when Cruz was not
working at the ranch, he lived at the Mendiola residence. And, a
money order receipt and an emergency notification card bearing
Cruz’s name and the address for the Mendiolas’ residence were found
at that residence.
The jury could reasonably find, beyond a reasonable doubt,
that the Mendiolas and Cruz possessed marijuana with intent to
distribute.
E.
A sentence will be upheld “unless it was imposed in violation
of law; imposed as a result of an incorrect application of the
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sentencing guidelines; or outside the range of the applicable
sentencing guideline and is unreasonable.” United States v.
Montoya-Ortiz, 7 F.3d 1171, 1179 (5th Cir. 1993) (quoting United
States v. Haymer, 995 F.2d 550, 552 (5th Cir. 1993)).
1.
Appellants contend that the court erred in calculating their
offense level based upon a finding that there were 771 marijuana
plants at the residence and ranch. We accept such sentencing
findings unless they are clearly erroneous. E.g., United States
v. Sotelo, 97 F.3d 782, 799 (5th Cir.), cert. denied, ___ U.S. ___,
117 S. Ct. 620 (1996); United States v. Robins, 978 F.2d 881, 889
(5th Cir. 1992); United States v. Otero, 868 F.2d 1412, 1414 (5th
Cir. 1989). And, due deference is given to the district court’s
application of the Sentencing Guidelines to those findings. Id.Robins, 978 F.2d at 889.
Moreover, “a presentence report generally bears sufficient
indicia of reliability to be considered as evidence by the trial
court in making factual determinations required by the Guidelines.”
Robins, 978 F.2d at 889. And, the district court is well within
its province “to rely on a presentence report’s construction of
evidence to resolve a factual dispute, rather than relying on the
defendant’s version of the facts.” Id. (internal citations and
quotations omitted).
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The presentence report, adopted by the district court, stated
that the offense involved a total of 771 growing marijuana plants.
There was testimony from the Agents conducting the searches
regarding the number of plants seized, their stage of growth, and
their root structure. They testified further that plants were not
picked or counted unless they appeared to be viable and capable of
growth. Additionally, there was testimony from a Government expert
regarding the grow operation and the nature of the plants.
During oral argument for this appeal, counsel for James
Mendiola contended that an FBI Special Agent simply “guessed”
during sentencing at the number of plants seized at the residence.
However, the Agent testified at trial that 455 plants were seized
at that site. Based on our review of the record, we cannot say
that the plant quantity finding was clearly erroneous.
2.
Cruz contends that the district court erred by including the
plants seized at the Mendiola residence in calculating his base
offense level. But, the court had the discretion to consider
amounts that were part of a common plan or scheme to distribute.
United States v. Ponce, 917 F.2d 841, 844 (5th Cir. 1990) (per
curiam), cert. denied, 499 U.S. 940 (1991); United States v.
Sarasti, 869 F.2d 805, 806 (5th Cir. 1989). Moreover, under the
Guidelines, the court may consider as relevant conduct occurrences
which did not result in a conviction in determining the actual
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guideline range. See United States v. Taplette, 872 F.2d 101, 106
(5th Cir.), cert. denied, 493 U.S. 841 (1989). As reflected supra,
there was ample evidence to link Cruz to both the Rocksprings ranch
and the Mendiola residence. Accordingly, the court did not clearly
err by including the plants seized at the latter.
3.
While this appeal was pending, Guidelines § 2D1.1(c) was
amended by replacing the one kilogram per plant ratio with an
instruction to base the sentence upon the greater of the actual
weight of the usable marijuana, or 100 grams per plant. See
U.S.S.G. App. C, Amendment 516 (Nov. 1, 1995) (amending the notes
and commentary to U.S.S.G. § 2D1.1). This amendment may be applied
retroactively by the district court. United States v. Boe, 117
F.3d 830, 831 (5th Cir. 1997). Appellants contend, and the
Government concedes, that the amendment may affect their sentences.
A motion pursuant to 18 U.S.C. § 3582(c)(2) “permits a
district court to reduce a term of imprisonment when it is based
upon a sentencing range that has subsequently been lowered by an
amendment to the Sentencing Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing
Commission.” Boe, 117 F.3d at 831. The “district court has the
discretion to deny a section 3582(c)(2) motion, even if the
retroactive amendment has lowered the guideline range.” United
States v. Ursery, 109 F.3d 1129, 1137-38 (6th Cir. 1997).
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Consequently, our affirmance of the sentences is without prejudice
to Appellants seeking a reduction in sentence pursuant to §
3582(c)(2) and Amendment 516.
4.
Appellants maintain that the district court erred in applying
Guideline § 2D1.1(b)(1) (increase offense level by two for
possession of dangerous weapon) because the seized-firearms were
neither possessed during, nor connected to, the commission of any
offense. The increase should be given if a weapon was present,
unless it is clearly improbable that it was connected to the
offense. United States v. Sparks, 2 F.3d 574, 587 (5th Cir. 1993)
(citing § 2D1.1, comment. (n.3)), cert. denied, 510 U.S. 1056(1994). In this regard, the analysis of the term “use” of a weapon
in Bailey v. United States, ___ U.S. ___, 116 S. Ct. 501 (1995),
was limited to 18 U.S.C. § 924(c)(1); contrary to Appellants’
contention, it has no application in the present context. See
United States v. Castillo, 77 F.3d 1480, 1499 n.34 (5th Cir.),
cert. denied, ___ U.S. ___, 117 S. Ct. 180 (1996).
The evidence established that four handguns, including one
found in a briefcase used by Elsa Mendiola, and one shotgun were
found at the Mendiolas’ residence, where 455 plants were found.
Additionally, a shotgun and one rifle were found at the ranch,
where 316 plants were found.
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The sentencing enhancement “for weapon possession reflects the
increased danger of violence when drug traffickers possess
weapons.” U.S.S.G. § 2D1.1, comment (n.3). Moreover, “the mere
presence of [a] gun, loaded or not, can escalate the danger.”
United States v. Mitchell, 31 F.3d 271, 277 (5th Cir.), cert.
denied, 513 U.S. 977 (1994). The evidence clearly established the
presence of the weapons at the marijuana growing operations. The
finding that the weapons were “connected” to the offenses was not
clearly erroneous; restated, it was not clearly improbable that
they were connected to the offense.
F.
While their convictions and sentences were on appeal,
Appellants obtained information relating to Moises Perez, an FBI
informant and witness, and relating to a Special Agent, who also
testified. The Government dismissed charges in an unrelated case
in which Perez was to be a witness because they allegedly had lost
confidence in him.
The information revealed that Perez had entered a plea of no
contest to the offense of organized crime in Texas state court,
which was never given to Appellants prior to trial and that,
consequently, Perez may have testified falsely at their trial.
Additionally, information that the Special Agent had been
investigated by the FBI’s Office of Professional Responsibility was
never revealed.
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As a result, Appellants moved for a new trial; the motion was
denied without a hearing.2 (The Government submitted to the
district court for in camera inspection the materials relating to
the investigations of the Special Agent.)
Impeachment evidence, which is primarily at issue here, is
covered by the disclosure requirements of Brady v. Maryland, 373
U.S. 83 (1963). See Wilson v. Whitley, 28 F.3d 433, 435 (5th Cir.
1994), cert. denied, 513 U.S. 1091 (1995) (citing United States v.
Bagley, 473 U.S. 667, 676 (1985)). The Court has held: “When the
‘reliability of a given witness may well be determinative of guilt
or innocence,’ nondisclosure of evidence affecting credibility
falls within [Brady’s] general rule.” Giglio v. United States, 405
U.S. 150, 154 (1972) (quoting Napue v. Illinois, 360 U.S. 264, 269
(1959)). Brady rulings are reviewed de novo. United States v.
Green, 46 F.3d 461, 464 (5th Cir.), cert. denied, 515 U.S. 1167(1995).
2
Pursuant to FED. R. APP. P. 4(b), Cruz’s appeal from the
new trial denial (No. 97-50393) was untimely. On remand, the
district court determined that the untimely filing was not due to
excusable neglect. See FED. R. APP. P. 4(b) (“upon showing of
excusable neglect the district court may ... extend the time for
filing a notice of appeal.”). We review an excusable neglect
determination for abuse of discretion. See United States v. Clark,
51 F.3d 42, 43 n.5 (5th Cir. 1995). We cannot say that the court
abused its discretion when it determined that Cruz’s attorney’s
failure to properly read Rule 4(b) constituted inexcusable neglect.
Accordingly, Cruz’s appeal in No. 97-50393 is DISMISSED.
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Brady violations require reversal only if there is a
“reasonable probability” that the outcome of the trial would have
been different had the evidence been disclosed. See Bagley, 473
U.S. at 682. Such “reasonable probability” is established only
when the failure to disclose “could reasonably be taken to put the
whole case in such a different light as to undermine confidence in
the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
The challenge at hand focuses on withheld impeachment evidence
regarding Perez and the Special Agent. “In assessing the
materiality of undisclosed impeachment evidence, ‘we must consider
the nature of the impeachment evidence improperly withheld and the
additional evidence of the defendant’s guilt independent of the
disputed testimony.’” Wilson v. Whitley, 28 F.3d 433, 439 (5th Cir.
1994) (quoting United States v. Weintraub, 871 F.2d 1257, 1262 (5th
Cir. 1989)) cert. denied, 513 U.S. 1091 (1995). There is
overwhelming evidence of the Mendiolas’ guilt, independent of the
evidence in issue that could be obtained from Perez or the Special
Agent. Consequently, there is no Brady violation; a new trial was
properly denied. (In connection with his new trial motion, James
Mendiola sought the disqualification of the Assistant United States
Attorney who tried the case. Obviously, there being no error
regarding the new trial denial, we do not reach this issue.)
III.
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For the foregoing reasons, Cruz’s appeal from the new trial
denial (No. 97-50393) is DISMISSED; the Mendiolas’ appeal from such
denial (No. 97-50407) is AFFIRMED; and the convictions and
sentences (No. 97-50177) are AFFIRMED, without prejudice to
Appellants moving for a reduction in sentence.
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