United States v. Parra-Gonzalez ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3481NE
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Agustin Parra-Gonzalez, also known as *
Agustin Para-Gonzalez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 9, 1999
Filed: March 18, 1999
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Before FAGG, LAY, and WOLLMAN, Circuit Judges.
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PER CURIAM.
After his conviction for possession with the intent to distribute
methamphetamine, see 21 U.S.C. § 841(a)(1) (1994), Agustin Parra-Gonzalez filed
a motion for a new trial, claiming the Government failed to disclose material
impeachment evidence in the form of an agreement with its key witness, David Tony
Griego, and thus violated Brady v. Maryland, 373 U.S. 83 (1963). Parra-Gonzalez
alleged Griego, an illegal alien who assisted law enforcement in multiple drug-related
investigations, agreed to testify only after the Government promised not to request
Griego’s testimony in other upcoming trials and agreed not to prevent Griego’s
deportation following Parra-Gonzalez’s trial. After an evidentiary hearing, the
district court denied Parra-Gonzalez’s motion for a new trial, finding “there wasn’t
any agreement” between Griego and the Government. Parra-Gonzalez appeals, and
we affirm.
Parra-Gonzalez contends the district court abused its discretion in denying his
motion for a new trial. We disagree. To establish a Brady violation, Parra-Gonzalez
must show the Government did not disclose material evidence in its possession that
was favorable to Parra-Gonzalez. See Brady, 373 U.S. at 87 (exculpatory evidence
must be disclosed); United States v. Bagley, 473 U.S. 667, 676 (1985) (Brady
includes impeachment evidence); Giglio v. United States, 405 U.S. 150, 154-55
(1972) (Brady includes agreements to testify in exchange for benefits). Evidence 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 different. A
‘reasonable probability’ is a probability sufficient to undermine confidence in the
outcome.” Bagley, 473 U.S. at 682.
Parra-Gonzalez’s contention fails because the district court properly found
there was no agreement between Griego and the Government that had to be disclosed
within the framework of the Brady line of cases. See Reed v. United States, 106 F.3d
231, 235-36 (8th Cir. 1997); United States v. Robinson, 774 F.2d 261, 269-70 (8th
Cir. 1985); Mills v. Singletary, 63 F.3d 999, 1018 (11th Cir. 1995); Alderman v. Zant,
22 F.3d 1541, 1553-55 (11th Cir. 1994). The record shows that after Griego’s illegal
alien status was discovered, Griego was arrested and jailed pending deportation. On
the eve of Parra-Gonzalez’s trial, Griego became unwilling to testify because he
wanted to be deported immediately, but feared he would be detained in custody until
he had testified in all the criminal prosecutions in which he was involved. Once
alerted to Griego’s complaints, the prosecutor flatly refused to enter into any
agreement in exchange for Griego’s testimony. Instead, the prosecutor told Griego
only that she would “see what she c[ould] do about talking to” the Immigration and
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Naturalization Service (INS), which alone controlled the timing of Griego’s
deportation, and that she would try to ensure the United States Attorney’s office
would not request Griego’s continued detention after Parra-Gonzalez’s trial. Griego’s
attorney also testified that, believing he could successfully block any effort to keep
Griego in the country to testify in other cases, he instructed Griego to testify at Parra-
Gonzalez’s trial as a show of good faith and because he believed this would better
position Griego with the INS to negotiate immediate deportation. Although the
advice of Griego’s attorney and the prosecutor’s comments may have motivated
Griego to testify, the record supports the district court’s finding that these statements
fall short of an agreement required to be disclosed to Parra-Gonzalez. See Alderman,
22 F.3d at 1554-55.
Even assuming an agreement between the Government and Griego did exist,
a new trial is not warranted under the facts of this case. Parra-Gonzalez’s attorney
thoroughly cross-examined Griego about his illegal alien status, his criminal history,
his propensity for dishonesty, and his agreement to work as an informant in exchange
for the dismissal of pending criminal charges. Testimony relating to the alleged
agreement would merely have served as “‘an additional basis on which to impeach
a witness whose credibility ha[d] already been shown to be questionable.’” United
States v. Wong, 78 F.3d 73, 81 (2d Cir. 1996) (quoted case omitted). In addition,
Griego’s testimony was corroborated by the law enforcement agent with whom
Griego worked. Thus, it is not reasonably probable the evidence would have changed
the outcome had it been disclosed. See Bagley, 473 U.S. at 682; United States v.
Quintanilla, 25 F.3d 694, 698-99 (8th Cir. 1994). We also reject Parra-Gonzalez’s
contention that the district court abused its discretion in quashing the subpoena for
Griego at the evidentiary hearing on the motion for new trial.
We affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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