United States v. Amen Jumah ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1931
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
A MEN E. JUMAH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:04-cr-00237-1—John W. Darrah, Judge.
A RGUED O CTOBER 7, 2009—D ECIDED A PRIL 1, 2010
Before R IPPLE, K ANNE and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Amen E. Jumah was convicted by
a jury of knowing possession of a listed chemical, knowing,
or having reasonable cause to believe, that the chemical
would be used to manufacture a controlled substance
in violation of 21 U.S.C. § 841(c)(2). The district court,
acting without the benefit of the Supreme Court’s subse-
quent decision in Dixon v. United States, 548 U.S. 1 (2006),
granted a motion for a new trial on the ground that the
2 No. 08-1931
jury had been instructed erroneously about the public
authority defense. We reversed the district court’s grant
of Mr. Jumah’s motion for new trial and remanded the
case with instructions to reinstate the jury’s verdict. See
United States v. Jumah, 493 F.3d 868, 870 (7th Cir. 2007)
(“Jumah I”). On remand, the district court considered
Mr. Jumah’s remaining grounds for a new trial. One of
those arguments was that the Government had failed to
comply with its obligations under Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150(1972). The district court denied the motion for new trial
and sentenced Mr. Jumah to 151 months’ imprisonment.
For the reasons set forth in this opinion, we affirm in
part and reverse in part the judgment of the district
court and remand with instructions for re-sentencing.
I
BACKGROUND
A.
From 2001 to 2002, Mr. Jumah worked periodically as a
confidential source (“CS”) for the Drug Enforcement
Administration (“DEA”). He assisted with undercover
investigations into pseudoephedrine trafficking in
Chicago and Los Angeles. Mr. Jumah sometimes pro-
vided information about past pseudoephedrine transac-
tions. However, Mr. Jumah usually brought to the DEA
information about a deal that was to occur in the future.
The DEA asked Mr. Jumah to sign a United States
Department of Justice confidential source agreement.
No. 08-1931 3
Under its terms, the DEA authorized him to purchase,
while undercover and at the direction of the DEA, con-
trolled substances. The agreement also required
Mr. Jumah to abide by the instructions of his controlling
DEA investigators and not to take any independent
action on behalf of the DEA. Mr. Jumah signed three
such agreements in 2001 and 2002.
On May 8, 2002, while Mr. Jumah was deactivated as a
CS, he contacted a DEA agent and informed him that a
pseudoephedrine dealer had approached him with an
offer to buy 300 cases of pseudoephedrine for $150,000.
DEA agents instructed Mr. Jumah to meet with the
dealer at a restaurant called Jimmy’s Shishkabob to
discuss the deal. While the DEA surveilled the meeting,
Mr. Jumah offered to consummate the deal at another
location, and the dealer showed that he had the neces-
sary funds to do so. When Mr. Jumah and the dealer
left the Jimmy’s Shishkabob restaurant, the DEA stopped
the car carrying the money and arrested the suspects.
The DEA paid Mr. Jumah $29,800 for the information
and assistance he provided. The DEA formally reactivated
him as a CS several days later.
In February 2004, Mr. Jumah attempted to sell Ali Qasem
pseudoephedrine for the purpose of making metham-
phetamine. Unknown to Mr. Jumah, Qasem was himself
a CS who worked with the Los Angeles, California
branch of the DEA. According to Qasem, Mr. Jumah
initiated the deal. On February 10, 2004, while Qasem
was en route to Chicago for a meeting with Mr. Jumah,
Mr. Jumah contacted a DEA agent and inquired about
4 No. 08-1931
receiving payment for prior information, unrelated to
the developing Qasem deal, that Mr. Jumah had pro-
vided. Mr. Jumah did not inform the agent of the
pending deal with Qasem.
Working with Qasem, the DEA listened to telephone
conversations between Mr. Jumah and Qasem and
surveilled meetings between them in Illinois from
February 13 to 16, 2004. During these conversations,
Mr. Jumah told Qasem that he wanted to conduct the
pseudoephedrine transaction on a Sunday or Monday
because the DEA agents would not be working on those
days. On February 16, the day that Mr. Jumah planned
to meet Qasem, Mr. Jumah called a DEA agent and
asked whether the agent was working that day but said
nothing about the pending deal with Qasem. The DEA
surveilled additional meetings between Mr. Jumah and
Qasem in Illinois on March 1 and 2, 2004. On March 2,
Mr. Jumah called a DEA agent, asked whether the
agent was working that day and said that he was going
to meet with an individual, but gave no details
about the identity of the individual or the purpose of the
meeting. The DEA agent did not inquire further about
the matter. Later that day, Mr. Jumah again called the
DEA agent and left a voicemail message stating, “he
called me back, and he is going to be in town, in Chicago
tonight . . . . And I’ll let you know what’s going on . . . if we
have to set up something for tomorrow or Thursday, uh,
we’ll see what’s going on.” Tr. at 232, 234, Jan. 26, 2006.
Mr. Jumah also stated on the voicemail message, “I am
going to meet him and see and see [sic] what’s going on,
if he’s, uh, got the cash or not.” Id. at 235.
No. 08-1931 5
Mr. Jumah met with Qasem later that day, but Mr. Jumah
did not inform the DEA agent that the meeting actually
had occurred. During that meeting, Mr. Jumah gave
Qasem 1,016 pills containing pseudoephedrine. Qasem
promptly turned the pseudoephedrine over to the DEA,
which had been conducting surveillance. The DEA then
directed Qasem to place a larger order of pseudoephed-
rine with Mr. Jumah. Mr. Jumah agreed to sell 300 boxes
of pseudoephedrine to Qasem for $165,000 later that night.
At approximately 8:00 p.m. on March 2, 2004, Mr. Jumah
and Qasem met at a casino in Joliet, Illinois, to complete
the deal. The DEA observed the meeting and watched
Mr. Jumah leave the casino to pick up the pseudo-
ephedrine. When Mr. Jumah returned, purportedly with
the pseudoephedrine, the DEA arrested him and
searched his vehicle. Inside, the DEA found rock salt that
was similar in quantity and appearance to the pseudo-
ephedrine Mr. Jumah had agreed to provide Qasem.
Upon his arrest, Mr. Jumah waived his Miranda rights
and made a series of incriminating statements. He first
stated that one of the DEA agents with whom Mr. Jumah
had spoken that day had authorized him to conduct the
Qasem transaction. He further stated that the DEA agent
had given him the pseudoephedrine. Later, Mr. Jumah
retracted that statement and said that he had stolen the
pseudoephedrine from the DEA several months earlier.
B.
On March 11, 2004, a federal grand jury returned a one-
count indictment against Mr. Jumah charging him with
6 No. 08-1931
knowingly and intentionally possessing and distrib-
uting 1,016 tablets of pseudoephedrine, a List I chemical,
knowing and having reason to believe that the pseudo-
ephedrine would be used to make methamphetamine,
in violation of 21 U.S.C. § 841(c)(2).
On April 19, 2004, Mr. Jumah filed a motion for discov-
ery. The Government provided some discovery pursuant
to Federal Rule of Criminal Procedure 16. Over the next
year and a half, the trial date was continued several times
until it was scheduled finally to begin on January 23, 2006.
On November 8, 2005, Mr. Jumah substituted counsel;
the district court denied the new counsel’s request for
an additional continuance.
Mr. Jumah’s newly substituted counsel then began
issuing trial subpoenas to DEA agents.1 On January 9,
1
Specifically, on December 8, 2005, Mr. Jumah issued two trial
subpoenas to the DEA Keeper of Records. The first subpoena
requested: (1) all names of DEA agents who had contact
with Mr. Jumah; (2) the dates of those contacts; and (3) items
memorializing those contacts. The second subpoena requested:
(1) all documents related to Mr. Jumah; (2) all documents
related to Qasem becoming a CS for the DEA; (3) payments
made to Qasem by the DEA; and (4) Qasem’s criminal history.
On December 27, 2005, Mr. Jumah issued four trial subpoenas
to California DEA agents Bradley Clemmer, Ted Salamy, Efren
Lapuz and George Newland. The subpoena to Bradley Clemmer
sought: (1) the substance of Agent Clemmer’s testimony at trial;
and (2) all documents memorializing his contacts with
Mr. Jumah, including the dates, times, duration, and nature
(continued...)
No. 08-1931 7
2006, Mr. Jumah’s counsel also filed a motion for im-
mediate disclosure of favorable evidence, requesting that
the Government turn over all Brady and Giglio evidence.
On January 11, 2006, the Government filed a motion to
quash the subpoenas on the ground that the requested
documents were not required to be disclosed by the
1
(...continued)
of the contacts, as well as Mr. Jumah’s duties. The subpoena to
Ted Salamy sought: (1) the substance of Agent Salamy’s testi-
mony at trial; (2) all documents memorializing his contacts
with Qasem; (3) any statements made by Qasem about his
criminal past; (4) all documents memorializing when Qasem
became a CS for the DEA; (5) all agreements with Qasem and
confidential-source-establishment documents; and (6) payments
to Qasem. The subpoena to Efren Lapuz sought: (1) the sub-
stance of Agent Lapuz’s testimony at trial; (2) all documents
memorializing his contacts with Qasem; and (3) all documents
relating to payments made to Qasem by DEA in the investiga-
tion of Mr. Jumah. The subpoena to George Newland sought:
(1) all documents memorializing his contacts with Qasem
relating to the Jumah investigation; and (2) all payments
made to Qasem by DEA in the Jumah investigation.
On January 6, 2006, Mr. Jumah issued another trial subpoena
to FBI Agent John Diwik. The subpoena to Agent Diwik sought
Agent Diwik’s testimony at trial regarding: (1) the first date
Mr. Jumah acted as a CS for the FBI; (2) the number of investiga-
tions Mr. Jumah worked on; (3) how much Mr. Jumah was
paid for his work; (4) the method, manner and times Agent
Diwik communicated with Mr. Jumah; and (5) a list of agencies
that Mr. Jumah worked for at the direction of or on the recom-
mendation of Agent Diwik.
8 No. 08-1931
discovery rules, were irrelevant to the case or lacked
evidentiary value. R.68. The Government also stated that
it had met its obligations under Brady but that its review
for the Giglio material was still ongoing. Specifically, the
Government stated,
Jumah was a DEA [CS] in Chicago and Los An-
geles, California and an FBI [CS] in Chicago, and
Qasem was a [CS] in Riverside, California; San
Diego, California; and Chicago, Illinois. The gov-
ernment has produced all Giglio materials con-
tained in Jumah’s and Qasem’s DEA [CS] files in
Chicago and will produce by January 12, 2006 all
Giglio materials contained in Jumah’s FBI [CS] file.
The [CS] files in Los Angeles, Riverside, and San
Diego, however, have not been fully reviewed.
These files cannot be sent to Chicago and, there-
fore, must be reviewed by attorneys in those
cities. The government is working diligently to
get this review completed, but it has not at this
time been done.
R.68 at 7. The Government also requested, with
Mr. Jumah’s consent, that trial be continued to allow
completion of the Government’s Giglio search.
The next day, on January 12, 2006, the district court held
a hearing to consider these issues. The district court
denied the requested continuance. The district court stated,
“I’m amenable to anything that needs my cooperation
to see that this favorable evidence, if in fact that’s what
it is, is produced, but we are going to trial on this case
on January 23rd.” Tr. at 4, Jan. 12, 2006.
No. 08-1931 9
At the hearing, the Government assured the district
court that it had produced all materials it was obligated
to produce pursuant to Rule 16, 18 U.S.C. § 3500 and
Brady. See Tr. at 7-8, Jan. 12, 2006. However, the Govern-
ment reiterated that it needed more time to complete
its Giglio search and production. Specifically, it stated,
The [CS] files in Chicago, both Mr. Juma’s [sic] file
with the FBI and Mr. Jumah [sic] and Mr. Qasem’s
file with the DEA have been reviewed and all
Giglio materials that were within those files have
been turned over to the defense. With regard to the
files in California, a DEA attorney in California is
reviewing, is going to each of those cities and is
reviewing those files. That is currently being
undertaken.
Id. at 8-9. The district court held that the Government had
complied with its Brady obligations and directed the
Government to complete its search for any Giglio respon-
sive documents in its California offices by the following
Tuesday. Id. at 12.
The district court then took up the Government’s motion
to quash the subpoenas. Mr. Jumah maintained that he
was entitled to the entire file that the DEA kept con-
cerning him and Qasem, including all records of all
statements made by Mr. Jumah and Qasem related to
prior investigations in which they had participated.
Mr. Jumah maintained that those materials would be
probative on the issue of his state of mind during the
February 2004 incident and his course of conduct as a
DEA CS. Mr. Jumah also suggested that he needed to
10 No. 08-1931
review the files to disprove the DEA’s position that it
never had provided samples of pseudoephedrine to
Mr. Jumah for his work in any investigation. The Gov-
ernment opposed the request and maintained that
Mr. Jumah was not entitled to materials beyond those that
qualified as Rule 16, § 3500, Brady or Giglio materials
and reiterated that this material already had been pro-
duced for the most part. The Government also stated
that no documents existed concerning the distribution
of pseudoephedrine samples to Mr. Jumah because the
DEA in Chicago had confirmed that such distribution
never had occurred.
The district court granted the motion to quash all the
trial subpoenas, except the subpoena of Agent DeWitt
because Mr. Jumah intended to call him at trial. Tr. at 23-
24, Jan. 12, 2006. As to the other subpoenas, the district
court stated that Mr. Jumah was merely seeking materials
“derivative from Brady and Giglio” materials that the
Government already had produced or was in the
process of identifying and producing. Id. at 11. The
district court stated that Mr. Jumah was not entitled to
“every piece of minutia in the conduct of government
agents and people working for them in the course of an
investigation.” Id. at 19-20. However, the district court
directed that the Government contact anyone Mr. Jumah
had worked for as an informant, including the Chicago
and California DEA offices, to inquire, again, about the
existence of any documents showing that the DEA had
provided Mr. Jumah with pseudoephedrine samples. Id.
at 17-18. Finally, the district court noted that Mr. Jumah
No. 08-1931 11
had to “rely on the bonafides of the government” with
respect to its representations about the existence of any
remaining Brady and Giglio material. Id. at 16-17.
On January 17, 2006, the Government apparently sent
Mr. Jumah a letter confirming that it had completed its
search for Giglio materials in the California DEA offices
and found none. See Appellee’s Br. 17. That letter was not
made part of the record.
At a pre-trial conference on January 18, 2006, the Gov-
ernment again brought up the subpoenas issue and the
district court foreclosed further discussion of the matter.
The following colloquy occurred:
[THE GOVERNMENT]: As the court pointed out at
the last hearing, with regard to the defense’s
subpoenas, the information that was requested in
those subpoenas, as the government understood
it from the court’s ruling, was determined to be
irrelevant because in fact whether Mr. Jumah—
THE COURT: Let me say this, that the basis of my
ruling is what I said in the courtroom last week,
and both of you have taken a little bit of liberty
in characterizing to your advantage what you
believe would be, I think, a little extrapolation of
what I said. So what I said I said, and that’s on
the record last week, and those are the reasons
for my ruling.
See Tr. at 14, Jan. 18, 2006. Later in that hearing, the Gov-
ernment reminded the district court that it had directed
the Government to inquire specifically into whether any
12 No. 08-1931
federal agency had ever provided Mr. Jumah with
pseudoephedrine samples. The Government represented
that its review of Mr. Jumah’s files in Chicago and
Los Angeles produced no documents showing that
Mr. Jumah ever had been provided with pseudoephed-
rine samples. Id. at 20.
On or around January 20, 2006, during an interview with
Qasem, the Government learned for the first time that
Qasem had conducted two pseudoephedrine deals with
Mr. Jumah in 2001. The Government considered that
information to be Giglio material and disclosed it to
Mr. Jumah by fax on January 21, 2006. See Appellee’s Br. 17;
R.107 at 13. Also, on January 20, 2006, the Government
filed a motion in limine to permit the admission at trial of
evidence and arguments concerning those drug deals—i.e.,
Jumah’s prior uncharged criminal acts—as inextricably
intertwined with the charged offense. R.87. The district
court conditionally precluded the evidence without
prejudice to renewal of the motion at trial. R.136-2; see
also Appellee’s Br. 18.
Trial was held, beginning one day early, on January 25,
2006. At trial, the Government introduced testimony
from Chicago DEA agents that Mr. Jumah was not an
active CS at the time of the deal with Qasem and that
Mr. Jumah had acted independently and without
authority from the DEA to possess and sell pseudo-
ephedrine. DEA agents testified about prior sting opera-
tions in which Mr. Jumah had participated, including the
Jimmy’s Shishkabob incident. The DEA agents explained
that under no circumstances would Mr. Jumah have been
No. 08-1931 13
allowed to sell pseudoephedrine without the DEA’s
knowledge and then benefit from information provided
therefrom. The DEA agents also described the events that
occurred on and leading up to March 2, 2004. Qasem
testified as a Government witness about the March 2004
events and stated that he had known Mr. Jumah for
approximately fourteen years. See Trial Tr. at 312, Jan. 26,
2006. On cross-examination of Qasem, Mr. Jumah’s
counsel did not explore their prior relationship in any
detail.2
Mr. Jumah’s defense was that he reasonably believed
he had authority to enter into the pseudoephedrine deal
with Qasem. Mr. Jumah read stipulations into evidence
showing that he was employed as a DEA CS from time-to-
time, that Mr. Jumah made several phone calls to the
DEA agents on and around March 1-2, 2004, and that
Mr. Jumah knew that Qasem was traveling to Illinois in
2
On cross-examination of Qasem, defense counsel began
asking about Qasem’s prior relationship with Mr. Jumah and
how long the two men had known each other. Trial Tr. at 414,
Jan. 27, 2006. The attorney for the Government objected and
stated, “I just want to notify the court that if [defense counsel is]
going to go into the fact that [Qasem] doesn’t trust [Mr. Jumah]
and why he doesn’t trust [Mr. Jumah], that’s what I intend
on asking on cross examination [sic], and I believe she’s
opened the door at this point.” Id. at 415. The district court
overruled the objection. Id. However, defense counsel moved
on to another line of questioning and did not ask Qasem
additional questions about his prior relationship with
Mr. Jumah.
14 No. 08-1931
February 2004. Mr. Jumah did not testify at trial. Nor
did he introduce evidence showing that the Govern-
ment provided him with pseudoephedrine samples.
Neither party offered evidence showing that Mr. Jumah
and Qasem previously had conducted drug deals with
each other.
On January 27, 2006, the jury convicted Mr. Jumah on
the one count of distributing 1,016 pills containing
pseudoephedrine. As we have noted earlier, the
district court granted a new trial because it believed
that the jury had been instructed erroneously on the
public authority defense. We reversed that ruling, see
Jumah I, 493 F.3d at 878-79, and, on remand, the
district court proceeded to consider Mr. Jumah’s other
proffered grounds for a new trial. Among them was the
contention that the Government had failed to disclose
documents pursuant to its obligations under Brady v.
Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United
States, 405 U.S. 150, 153 (1972). See R.101. On January 29,
2008, the district court denied the motion, ruling that
Mr. Jumah failed to show that the Government had
withheld any evidence that qualified as Brady or Giglio
material. See R.178 at 4.
On April 9, 2008, the district court sentenced Mr. Jumah
to 151 months’ imprisonment. See Tr. at 23, Apr. 9, 2008;
R.183. The district court calculated the Guidelines ac-
cording to the gross weight of the pseudoephedrine
pills, instead of the weight of the pure drugs contained
therein. No party objected to the district court’s calcula-
tions, which were in accordance with the Presentence
No. 08-1931 15
Investigation Report (“PSR”) calculations. On April 16,
2008, Mr. Jumah timely appealed.
II
DISCUSSION
A.
We first consider Mr. Jumah’s claim that his right to
due process of law as guaranteed by the Fifth Amendment
was violated by the Government’s withholding of evi-
dence. We review a district court’s decision that evidence
need not be produced under Brady or Giglio for an abuse
of discretion. See United States v. Olofson, 563 F.3d 652, 661
(7th Cir. 2009).
Mr. Jumah primarily contends that the Government
conducted an inadequate search for Brady and Giglio
material in its possession, both in Illinois and in Cali-
fornia. Mr. Jumah maintains that he was entitled to
receive his complete CS file from the DEA and FBI. He
also contends that he was entitled to receive Qasem’s
complete CS file and the DEA’s debriefings of Qasem
in connection with the investigation of Mr. Jumah. Ap-
pellant’s Br. 22, 29. Mr. Jumah believes that the CS files
would have shown that the DEA provided him with
pseudoephedrine samples in the past. He also states that
the CS files would have supported his theory that, even
when he was deactivated, he routinely would obtain
information regarding possible criminal conduct and
bring it to the attention of the DEA agents “after it ripened
into a possible sting.” See id. at 22. He believes that the
CS files would show that, prior to 2004, Mr. Jumah had
16 No. 08-1931
participated in investigations into Qasem’s narcotics
dealings and that “Qasem was a long-standing target of
Jumah’s work as a CS.” Id. at 22-23, 29.3
Mr. Jumah contends that the Government cannot avoid
its duties by asserting that relevant materials are not in
its possession. Id. at 27 (citing Crivens v. Roth, 172 F.3d 991,
996 (7th Cir. 1999)). He further contends that “[w]here
evidence is in the exclusive control of the government or
has been destroyed by the government, a defendant
may establish that the government suppressed excul-
patory evidence without specifically identifying the
allegedly suppressed evidence, if the defendant makes
some showing that evidence was suppressed.” Id. at 28
(citing United States v. Driver, 798 F.2d 248, 251 n.1 (7th
Cir. 1986)). Mr. Jumah notes that in Pennsylvania v.
Ritchie, 480 U.S. 39, 58 n.15 (1987), “the Supreme Court
held that a defendant, charged with the rape and incest
of his daughter, was entitled to have the state’s Children
and Youth Services file on his daughter reviewed by the
trial court to determine whether it contained Brady infor-
3
Mr. Jumah also intimates that the district court committed
reversible error by denying the Government’s motion for a
continuance. See Appellant’s Br. 27. However this argument
is not pursued seriously in Mr. Jumah’s briefing; thus, we
treat it as waived. Also, at oral arguments, Mr. Jumah main-
tained that the district court erred by limiting the scope of the
Government’s search of its California files. We consider that
argument to be part and parcel of Mr. Jumah’s argument that his
right to due process of law was violated by the Government’s
failure to turn over all Brady and Giglio responsive materials.
No. 08-1931 17
mation.” Appellant’s Br. 30 (describing Ritchie). Finally,
Mr. Jumah contends that he particularly deserved to
receive Qasem’s file and the DEA’s debriefings of Qasem
because Qasem provided unverified testimony about
what was said in the conversations between Mr. Jumah
and Qasem. Id. at 32 (quoting United States v. Wong, 78
F.3d 73, 79 (2d Cir. 1996)).
The Government reiterates that it completed its review
of Mr. Jumah’s and Qasem’s CS files, including the Califor-
nia files, by January 17, 2006, and found no Brady or Giglio
material other than what it turned over. Appellee’s Br.
19. The Government maintains that Mr. Jumah now
speculates that additional responsive documents exist in
the CS files. Although the Government denies that such
documents exist, it further maintains that Mr. Jumah “is
not entitled to scour government files in the hopes of
finding Brady/Giglio material.” Id. (citing United States v.
Phillips, 854 F.2d 273, 277 (7th Cir. 1988)). The Govern-
ment concedes that an in camera inspection of Gov-
ernment files is sometimes appropriate, but notes that
Mr. Jumah never asked for an in camera inspection of the
records in this case. Id. at 20-21. Finally, in response to
Mr. Jumah’s argument with respect to specific documents,
the Government asserts that: (1) it never gave pseudo-
ephedrine samples to Mr. Jumah and did not withhold
any documents showing otherwise, id. at 21, 26; (2) its files
do not contain any documents showing that Mr. Jumah
and Qasem had engaged in two previous pseudo-
ephedrine deals, particularly because the Government
learned of those deals from Qasem only on the eve of trial
and alerted Mr. Jumah accordingly, id. at 23; and (3) it
18 No. 08-1931
“gave the defendant all documents related to Qasem’s
participation in the investigation of the defendant,”
including documents titled “debriefings” and those
titled “case status reports,” id. at 24.
In Brady, 373 U.S. at 87, the Supreme Court held that “the
suppression by the prosecution of evidence favorable to
an accused upon request violates due process of law
where the evidence is material either to guilt or to punish-
ment irrespective of the good faith or bad faith of the
prosecution.” The Supreme Court further held in Giglio,
405 U.S. at 153, that any material evidence which
might undermine the reliability of a government wit-
ness must be turned over to a defendant. In other words,
a new trial is required if the evidence at issue is (1) favor-
able, (2) suppressed and (3) material to the defense.
See United States v. Wilson, 237 F.3d 827, 832 (7th Cir.
2001). “[E]vidence is material only if there is a reason-
able probability that, had the evidence been disclosed to
the defense, the result of the proceedings would have
been different.” United States v. Bagley, 473 U.S. 667, 682
(1985) (Blackmun, J., concurring); Kyles v. Whitley, 514 U.S.
419, 434 (1995) (discussing the Bagley standard). “Reason-
able probability” does not mean something greater than
50% but rather “whether in . . . [the] absence [of the
evidence, the defendant] received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.”
Kyles, 514 U.S. at 434.
The defendant has the burden to establish that a Brady
or Giglio violation occurred. See Wilson, 237 F.3d at 832.
However, prosecutors “have an affirmative duty to dis-
No. 08-1931 19
close such evidence and a duty to ‘learn of any favorable
evidence known to the others acting on the govern-
ment’s behalf in the case, including the police.’ ” Crivens v.
Roth, 172 F.3d 991, 996 (7th Cir. 1999) (quoting Kyles,
514 U.S. at 432). Thus, while “[p]rosecutors may not
simply claim ignorance of Brady material,” id. at 996, a
defendant cannot demand a new trial based on “mere
speculation” or “unsupported assertion[s] that the gov-
ernment suppressed evidence,” United States v. Driver,
798 F.2d 248, 251 (7th Cir. 1986).
In light of this standard, we cannot agree with Mr. Jumah
that the Government conducted an inadequate search
for responsive Brady or Giglio material. As an initial
matter, Mr. Jumah was not entitled to receive his entire
CS file or government files concerning Qasem. See United
States v. Philips, 854 F.2d 273, 278 (7th Cir. 1988) (“[W]e
hasten to point out that Brady does not grant criminal
defendants unfettered access to government files.”).4
Rather, he was entitled to receive any documents materi-
ally favorable to him or which might undermine the
reliability of witnesses.
The Government conducted a sufficient search of its
files for documents falling into that category. As of the pre-
trial hearing on January 12, 2006, the Government repre-
sented that it had produced all Brady material in its
possession. The district court accepted the Government’s
4
At least with respect to documents concerning Qasem’s
participation in the investigation into Mr. Jumah, the Govern-
ment claims that it actually produced its entire file. See Appel-
lee’s Br. 24-25.
20 No. 08-1931
representation and reminded Mr. Jumah that, without
allegations of specific pieces of evidence that had been
withheld, he had to rely on “the bonafides of the govern-
ment.” See Tr. at 16-17, Jan. 12, 2006. At that hearing,
however, the Government indicated that it still needed
to complete a review of its California files for Giglio
material, and the district court urged the Government
to expedite the search.
Then, at the January 18 conference, the Government
assured the district court that it had completed its review
of the California files and had found no responsive docu-
ments. The record is clear that the Government com-
pleted its search of the California files. The Government
referred to its search of the California files for documents
specifically related to past instances of distribution of
pseudoephedrine to Mr. Jumah and informed the
district court that it had found none. Moreover, the
record cannot be fairly read as reflecting that the Gov-
ernment, in searching for this information in its files, was
oblivious to its broader duty to disclose any other excul-
patory or impeachment material. Indeed, throughout
its filings before the district court and this court, the
Government has maintained that it conducted a thorough
search of all its files in all offices for Brady and Giglio
material and withheld nothing.5
5
We have no need to consider the Government’s contention,
made in its brief apparently for the first time, that it sent
Mr. Jumah a letter confirming that it had completed its search
for Giglio materials in the California DEA files on January 17,
(continued...)
No. 08-1931 21
If Mr. Jumah believed that he needed access to his and
Qasem’s entire DEA files, he could have requested that
the district court undertake a review in camera of the
Government’s files. Cf. Ritchie, 480 U.S. at 58 n.15 (ex-
plaining that to obtain an in camera inspection from the
district court, the defendant must “at least make some
plausible showing” that documents in the government’s
possession contain information “both material and favor-
able to his defense” (internal quotation marks omitted)).6
5
(...continued)
2004. See Appellee’s Br. 17. This letter is not in the record, and
we base our decision only on the hearing and conference
transcripts available to us.
6
In Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987), the Supreme
Court outlined a general standard for determining when to
grant an in camera inspection of governmental documents for
Brady/Giglio responsive material. The Court explained that a
defendant “may not require the trial court to search through
[a governmental] file without first establishing a basis for his
claim that it contains material evidence.” Id. at 58 n.15; see also
id. at 57 (“ ’[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been differ-
ent.’ ” (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
Whether the defendant establishes such a basis may depend
on “the degree of specificity of [the defendant’s] request.” Id.at 58 n.15. A defendant must “at least make some plausible
showing” that the withheld material is “both material and
favorable to his defense.” Id. (internal quotation marks omitted).
“[M]ere speculation that a government file might contain
Brady material is not sufficient.” United States v. Bland, 517 F.3d
(continued...)
22 No. 08-1931
Such a review is the accepted procedure for resolving
legitimate doubt about the existence of undisclosed
material and one that balances the defendant’s important
need for access to potentially relevant material with
the Government’s valid interest in protecting confiden-
tial files and the integrity of pending investigations. See
Phillips, 854 F.2d at 278.7 Mr. Jumah did not make such
a request of the district court and appears to have
dropped the matter after the January 18, 2004 conference.
The district court certainly was not obligated to conduct
an in camera review sua sponte.
Mr. Jumah’s theory that the Government withheld
Brady and Giglio material is rendered all the more specula-
tive by the evidence before us in the record. There was
no evidence that the DEA ever provided Mr. Jumah
with pseudoephedrine samples in the past. Mr. Jumah
had ample opportunity to cross-examine the DEA agents
who testified as Government witnesses about this
matter and was unable to elicit any testimony supportive
6
(...continued)
930, 935 (7th Cir. 2008). Courts have applied this “plausible
showing” standard in cases where the Government opposed a
defendant’s request for an in camera review. See, e.g., Davis v.
Litscher, 290 F.3d 943, 947-48 (7th Cir. 2002); United States v.
Runyan, 290 F.3d 223, 245 (5th Cir. 2002); Riley v. Taylor, 277
F.3d 261, 301 (3d Cir. 2001); Love v. Johnson, 57 F.3d 1305, 1313-15
(4th Cir. 1995).
7
Of course, the district court is under no independent duty
to review government files for potential Brady material. See
Bland, 517 F.3d at 935.
No. 08-1931 23
of his position. Nor was Mr. Jumah able to establish a
pattern of obtaining information regarding criminal
conduct and bringing it to DEA agents only after it
“ripened into a possible sting.” See Appellant’s Br. 22.
Indeed, the record demonstrates that the DEA did not
permit Mr. Jumah to engage in actual pseudoephedrine
deals without its close supervision and direction. Finally,
we have no reason to believe that the Government main-
tained records about Qasem’s past that would have
been helpful to Mr. Jumah. Notably, Mr. Jumah had an
opportunity to cross-examine Qasem about their prior
relationship and failed to establish that they had had a
pattern of drug dealings in the past. See supra note 2.
We have stated that, when evidence is in the exclusive
control of the Government or has been destroyed by
the Government, a defendant may establish that the
Government suppressed exculpatory evidence without
specifically identifying the allegedly suppressed evidence.
See Driver, 798 F.2d at 251 n.1. On the other hand, we
have also stressed that unsupported assertions that the
Government has suppressed evidence are insufficient to
make out a Brady or Giglio violation. Id. at 251; see also
United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (“A
due process standard which is satisfied by mere specula-
tion would convert Brady into a discovery device and
impose an undue burden upon the district court.” (internal
quotation marks omitted)). We must conclude, on the
record before us, that Mr. Jumah’s assertions remain
unsupported. His failure to ask for an in camera inspec-
tion of the Government’s records further counsels against
24 No. 08-1931
any relief from this court. The district court committed
no error.
B.
Mr. Jumah also contends that the district court erred
in the imposition of the sentence. We review the district
court’s application of the Sentencing Guidelines de novo
and its factual findings for clear error. See United States
v. Turner, 400 F.3d 491, 500 (7th Cir. 2005); see also
United States v. Garcia, 413 F.3d 201, 221-24 (2d Cir. 2005)
(explaining the standard of review and why the clear
error standard of review for factual findings applies even
though the ultimate issue is reasonableness). When no
objection to sentencing guidelines calculations is made
at trial, we review those calculations for plain error.
See United States v. Jaimes-Jaimes, 406 F.3d 845, 847-49
(7th Cir. 2005). Under plain-error review, the defendant
must show that (1) there was error, (2) it was plain, (3) it
affected his substantial rights and (4) the court should
exercise its discretion to correct the error because it seri-
ously affected the fairness, integrity or public reputation
of the judicial proceedings. See United States v. Olano, 507
U.S. 725, 732-35 (1993); Jaimes-Jaimes, 406 F.3d at 847-49.
1.
At trial, the parties stipulated that Mr. Jumah had
distributed approximately 1009.4 tablets of pseudo-
ephedrine; the parties also accepted a chemist’s report
weighing the tablets at approximately 247.9 grams. Trial
No. 08-1931 25
Tr. at 170-71, Jan. 25, 2006.8 In preparation for sentencing,
the probation officer prepared a PSR that calculated
Mr. Jumah’s base offense level as 32. This calculation
was pursuant to U.S.S.G. § 2D1.11(d)(6) and based on the
assumption that the total weight of the pseudoephedrine
pills was 253.9 grams.9 However, the PSR did not con-
sider the fact that the chemist’s report also calculated
the total weight of pure drug within the pills to be 60.47
grams. See Gov’t App. at 25.
The sentencing hearing was held on April 9, 2008. On
two occasions, Mr. Jumah’s counsel stated that he did not
object to the calculations in the PSR. See Tr. at 3, 7, Apr. 9,
2008. Hearing no objection, the district court accepted
the calculations and findings of the PSR. Id. at 7-8. The
district court determined that Mr. Jumah’s base offense
level was 32 and that the two-level obstruction of justice
enhancement applied, bringing Mr. Jumah’s base offense
level up to 34. Based on that level and Mr. Jumah’s crimi-
nal history category of I, the district court determined
that Mr. Jumah’s Guideline range was 151 to 188 months’
imprisonment. Id.
8
The parties now agree that the stipulation was slightly
incorrect. Based on the chemist’s report forming the basis of
the stipulation, the total gross weight of the tablets was 253.9
grams. See Gov’t App. at 25. Despite this inaccuracy in the
stipulation, no additional factual hearing is needed since
this unobjected to, documentary evidence is in the record.
9
The PSR utilized the 2007 version of the Guidelines.
26 No. 08-1931
In his sentencing memorandum and at the sentencing
hearing Mr. Jumah urged the district court to impose
a lower sentence for several reasons. Mr. Jumah asserted
that, because of his history of cooperation with the Gov-
ernment, he would suffer the risk of physical harm in
prison. He urged the district court to depart from the
Guidelines because, after serving his prison term, he
likely would be deported to Israel; he believed that he
would face a particular physical danger there because of
the presence of individuals whom he had helped prose-
cute. He also asked the district court to consider that he
would not be permitted to serve the last ten percent of
his sentence in community confinement due to his immi-
grant status. He stressed his years of cooperation with
the federal government and highlighted a letter from a
DEA agent to the district court stating that Mr. Jumah
was hardworking and “a man of his word,” who had
earned the agent’s trust. R.181, Ex. 1. Finally, Mr. Jumah
informed the district court that, during his time in prison,
he had taken educational courses offered by the prison.
The Government disputed the relevance or factual accu-
racy of some of those characteristics.
After calculating the Guidelines sentence, the district
court stated that it had considered the nature of the
offense and the fact that Mr. Jumah’s conduct “resulted or
could have resulted in the injury to other people that
were going to use these drugs that [Mr. Jumah was]
attempting to distribute.” Tr. at 21, Apr. 9, 2008. The
district court then stated that it had considered “the need
for a sentence to provide just punishment, adequate
deterrence and protection to the public . . . [and
No. 08-1931 27
Mr. Jumah’s] history and characteristics.” Id. Taking those
considerations into account, the district court stated that
“a sentence within the sentencing guideline range is
necessary.” Id. The district court then considered some
of the unique characteristics raised by Mr. Jumah.
Mr. Jumah’s assertion that he would suffer the risk of
physical harm in prison was not supported by “any
reliable information . . . [and was] contrary to [his]
recent history since coming to the attention of the
Court.” Id. Mr. Jumah’s assertion that he would be de-
ported to a place that presented a physical danger to
him was not a proper consideration in fashioning a sen-
tence and, in any event, was a problem of Mr. Jumah’s
own making because he had violated immigration laws.
Finally, the district court stated that it thought that “the
fact that [Mr. Jumah] will not be permitted to serve the
last ten percent of [his] sentence with some kind of com-
munity confinement . . . supports a sentence at the low
end of the guidelines.” Id. at 22. Therefore, the district
court sentenced Mr. Jumah to 151 months’ imprisonment.
Id. at 22-23.
On April 21, 2008, Mr. Jumah filed a pro se Federal Rule
of Criminal Procedure 35 motion for correction of a sen-
tence resulting from an arithmetical, technical, or other
clear error. R.190.10 On August 26, 2008, the district court
10
Initially, the Rule 35 motion did not specifically reference the
difference between the weight of the total tablets and the
weight of the pure drugs within them. See R.190. However,
(continued...)
28 No. 08-1931
dismissed the motion for lack of subject matter jurisdic-
tion. R.216.
2.
Mr. Jumah now submits that the district court com-
mitted two reversible errors during sentencing. First,
Mr. Jumah contends that the district court relied on the
wrong weight of the pseudoephedrine when calculating
his base offense level; instead of using the amount of
total weight of the pseudoephedrine tablets, the district
court should have used the weight of pure drug within
the tablets pursuant to U.S.S.G. § 2D1.11, note (C). See
United States v. Goodhue, 486 F.3d 52, 59 (1st Cir. 2007).
Mr. Jumah contends that he objected to the district
court’s calculations in his Rule 35 motion. Second,
Mr. Jumah contends that the district court gave no mean-
ingful consideration to the § 3553(a) factors, including
those specifically raised by Mr. Jumah in his sentencing
memorandum and at his sentencing hearing.
The Government contends that Mr. Jumah’s Rule 35
motion was improper and untimely, and thus his first
10
(...continued)
Mr. Jumah, through appointed counsel, supplemented the
motion on August 11, 2008, and thereby disputed the district
court’s calculation of the Guidelines based on the weight of
the pseudoephedrine tablets. See R.212. In that supplemental
memorandum, Mr. Jumah also stated that he had mailed
his original Rule 35 motion “within the prescribed time limit.”
Id. at 1 n.2.
No. 08-1931 29
objection was not preserved. Nevertheless, the Govern-
ment admits that the district court committed plain
error by basing its Guidelines calculations on the gross
weight of the tablets, instead of the weight of the drugs
within them. The Government opposes Mr. Jumah’s
second contention and maintains that the district court
adequately considered the § 3553(a) factors, as well as
the unique factors Mr. Jumah raised in his sentencing
memorandum and at the sentencing hearing.
a.
We begin by noting that both parties now agree that
it was plain error for the district court to use the gross
weight of the pseudoephedrine tablets in calculating
Mr. Jumah’s sentence. Compare Appellee’s Br. 30, with
Appellant’s Reply Br. 2. We agree. The Guidelines
require district courts to calculate the base offense level
using the weight of the recovered pseudoephedrine
contained in the tablets, not the weight of the entire
tablet. See U.S.S.G. § 2D1.11, note (C). Thus, there was
plain error in the calculations. The error affected
Mr. Jumah’s substantial rights because, had the district
court calculated the base offense level using the weight of
the pure drugs, Mr. Jumah would have been entitled to
the base offense level of 28 and, with the addition of
the two-level enhancement, a total offense level of 30.
With a total offense level of 30 and criminal history cate-
gory of I, Mr. Jumah’s Guideline range should have been
97 to 121 months’ imprisonment, rather than the 151 to
188 months’ imprisonment range calculated by the
30 No. 08-1931
district court. We shall exercise our discretion and
remand this case to the district court for resentencing
because, as both parties agree, the error seriously
affected the fairness and integrity of the judicial pro-
ceedings before the district court.
b.
Our examination of the record convinces us that the
district court did not err otherwise with respect to its
calculations or its statement of reasons. The district court
explicitly stated that it had considered the § 3553(a)
factors during the sentencing hearing. It also considered
Mr. Jumah’s history and personal characteristics. See Tr.
at 21, Apr. 9, 2008. Although the district court did not
state specifically that it had considered Mr. Jumah’s
history of cooperation with federal authorities, the DEA
agent’s letter or Mr. Jumah’s completion of educational
courses while in prison, we believe the record sufficiently
indicates that the district court took these factors into
consideration in fashioning its sentence. See United States
v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008) (holding
that the district court need not make factual findings as
to each of the sentencing factors but the record must
show that the court considered them); United States v.
Dale, 498 F.3d 604, 611-12 (7th Cir. 2007) (same). Indeed,
its consideration of the pertinent factors appears compre-
hensive and thoughtful. In light of the district court’s
explicit consideration of several of Mr. Jumah’s charac-
teristics and its statement that it had considered
Mr. Jumah’s “history and characteristics,” the district
No. 08-1931 31
court’s statement of reasons was adequate. See Tr. at 21,
Apr. 9, 2008.
Conclusion
For the reasons stated in this opinion, we affirm in part
and reverse in part the judgment of the district court and
remand this case to the district court for re-sentencing. The
district court shall recalculate the Guidelines based on
the weight of the pure drugs within the pseudoephedrine
tablets and impose a sentence accordingly. No other
aspect of the sentence is subject to further action.
A FFIRMED in part;
R EVERSED and R EMANDED in part
with INSTRUCTIONS
4-1-10