United States v. Cruz-Velasco, Raul

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-2382, 99-2424 & 99-2425
United States of America,
Plaintiff-Appellee,
v.
Raul Cruz-Velasco, Ramiro S. Trevino,
and Joseph L. Cuevas,
Defendants-Appellants.
Appeals from the United States District Court
for the Central District of Illinois, Urbana Division.
No. 97-CR-20037--Michael P. McCuskey, Judge.
Argued March 27, 2000--Decided August 17, 2000
Before Flaum, Chief Judge, and Posner and Williams,
Circuit Judges.
Flaum, Chief Judge. The defendants, Raul Cruz-
Velasco, Ramiro S. Trevino, and Joseph L. Cuevas,
were each convicted of one count of conspiracy to
distribute more than one kilogram of heroin in
violation of 21 U.S.C. sec. 846 and sec.
841(b)(1)(A)(i) and one count of possession of
more than one kilogram of heroin with intent to
distribute in violation of 21 U.S.C. sec.
841(a)(1) and sec. 841(b)(1)(A)(i). The
defendants now appeal, alleging various errors on
the part of the district court. For the reasons
stated herein, we affirm the defendants’
convictions and sentences.
I. Background
The conduct for which the defendants were
convicted and sentenced stems from two separate
drug transactions. Those transactions occurred
during the months of May and July of 1997.
1. The May Transaction
During May 1997, defendant Cruz-Velasco stored
approximately five kilograms of heroin behind a
bar owned by Daniel Chavez in Edinburg, Texas. At
a meeting between Chavez, defendant Cruz-Velasco,
defendant Trevino, and Polo Garza, a bartender
who worked for Chavez, defendant Trevino told
Chavez that he wanted the heroin moved to Dallas,
Texas. Garza initially agreed to transport the
drugs to Dallas, and defendant Cruz-Velasco
stated that he would assist Garza by following
him during the trip. Although defendant Trevino
then proceeded to Dallas to await Garza’s
delivery, Garza never made the trip because he
could not obtain access to a vehicle.
On May 16, 1997, defendant Trevino called
Chavez from Dallas and inquired as to why Garza
had not yet made the agreed-upon heroin delivery.
Chavez stated that he did not know Garza’s
whereabouts and explained that it was his
understanding that Garza was in Dallas.
Subsequent to this telephone conversation,
defendant Trevino visited Chavez at his bar and
informed him that defendant Cruz-Velasco would
pick up the heroin.
Shortly after defendant Cruz-Velasco picked up
the heroin from Chavez, defendant Trevino again
met with Chavez and told him that Jose Villanueva
was willing to transport the heroin to Dallas. On
May 19, 1997, defendant Trevino, defendant Cruz-
Velasco, Chavez, and Villanueva met behind
Chavez’s bar. Defendant Cruz-Velasco brought the
heroin with him to this meeting, and it was given
to Villanueva in ten small packages. Villanueva
then delivered the drugs to Dallas, arriving that
same day.
When Villanueva arrived in Dallas, he met
defendant Cruz-Velasco and defendant Trevino and
the three men proceeded to a Dallas hotel. The
next morning Villanueva gave the heroin to
defendant Cruz-Velasco, who put the drugs in a
white pickup truck and left. Villanueva was paid
approximately $2,000 for this delivery.
On May 20, 1997, defendant Cuevas, Guizar, and
Pablo Villamil flew from Chicago, Illinois to
Dallas where they met defendant Cruz-Velasco.
During this meeting, defendant Cruz-Velasco
delivered the heroin in his possession to
Villamil. Villamil then transported the heroin to
Chicago on a Greyhound bus and, upon his arrival
in Chicago, gave the heroin to an individual
named Hector Castenada. Villamil received $8,500
for his services.
2. The July Transaction
In late June or early July 1997, defendant
Trevino hired Villanueva to transport five
kilograms of heroin from McAllen, Texas to
Chicago. Villanueva received ten packages of
heroin from defendant Cruz-Velasco and was
instructed by defendant Trevino to travel to an
area approximately eighty miles outside of
Chicago. Villanueva left Texas on July 3, 1997
with the heroin hidden in his car.
When Villanueva arrived in Kankakee, Illinois on
July 4, 1997, he was instructed to go to Room 310
at the Days Inn in Kankakee. While Villanueva was
on his way to the Days Inn, he was stopped by a
Kankakee County Sheriff’s Department deputy. The
deputy searched Villanueva’s car and discovered
one kilogram of heroin in a black duffel bag.
Villanueva was arrested and taken to the Kankakee
detention center.
Because of the quantity of drugs seized from
Villanueva, the Kankakee County Sheriff’s
Department contacted the Kankakee Area
Metropolitan Enforcement Group ("KAMEG"), a task
force organized to investigate mid-to-upper level
drug dealers. Members of KAMEG interviewed
Villanueva, who informed them that there was an
additional four kilograms of heroin hidden in his
car. Villanueva also agreed to participate in a
controlled sale.
After receiving instructions on the controlled
sale, Villanueva went to Room 310 at the Days Inn
where he met defendant Trevino and defendant
Cruz-Velasco. After a brief conversation about
the drug transaction that was to take place,
Villanueva was instructed to drive to a Knights
Inn in Kankakee and wait. Members of KAMEG
followed Villanueva to the Knights Inn and gave
him further instructions on the controlled sale.
Approximately five minutes after Villanueva left
the Days Inn, members of KAMEG observed defendant
Cuevas and Hector Castenada approach Room 310.
Defendant Cuevas carried a medium-sized gym bag
in his hand. When defendant Trevino answered the
door of Room 310, defendant Cuevas and Castenada
went inside. At approximately 2:17 p.m., law
enforcement officials observed defendant Cruz-
Velasco and Castenada leave Room 310. Neither man
was carrying anything.
Defendant Cruz-Velasco and Castenada then
proceeded to the Knights Inn, where they received
a bag containing heroin from Villanueva.
Following this exchange, defendant Cruz-Velasco
got in Villanueva’s car. Castenada drove away
unaccompanied. Villanueva and defendant Cruz-
Velasco then returned to the Days Inn, and
defendant Cruz-Velasco commented that the
delivery had been easy.
After exiting Villanueva’s car, defendant Cruz-
Velasco returned to Room 310 at the Days Inn. A
few minutes later, defendant Cuevas left the Days
Inn in a black Mercedes-Benz. He was followed by
an unmarked police car. After several minutes in
which defendant Cuevas exited the highway
multiple times and appeared to be attempting to
evade the undercover police officer who was
following his car, a traffic stop was initiated
by a uniformed officer and defendant Cuevas was
arrested.
At the same time that defendant Cuevas was
being followed, a sheriff’s deputy stopped
Castenada’s vehicle and arrested him. Upon a
search of Castenada’s vehicle, five kilograms of
heroin were discovered. Defendant Trevino and
defendant Cruz-Velasco were then arrested at the
Days Inn, and a search of the room revealed
$22,510 in cash, as well as notes, articles of
clothing, and a number of pagers. Defendant Cruz-
Velasco, defendant Cuevas, defendant Trevino, and
Castenada were all interviewed by KAMEG, but none
of them admitted involvement in the drug
trafficking of which they were suspected.
3. The Trial
The defendants were charged in a two-count
superseding indictment with one count of
conspiracy to possess with intent to distribute
more than one kilogram of heroin and one count of
possession of more than one kilogram of heroin
with intent to distribute. After a jury trial,
all three defendants were convicted on both
counts. On May 21, 1999, the defendants were
sentenced to 151 months imprisonment, a five-year
period of supervised release, and a mandatory
special assessment of $200. In addition,
defendant Cuevas was fined $300,000. The
defendants now appeal, arguing that the district
court made various errors during both the guilt
and sentencing phases of trial.
II. Analysis
The defendants’ cases were consolidated both for
purposes of trial and appeal. Although the
various issues raised by each defendant overlap,
they are not identical. We therefore consider
each defendant’s contentions separately. However,
to the extent the defendants adopt the arguments
made by their co-appellants, the analysis of the
individual claims applies to all the appellants
to whom those issues are applicable.
A. Defendant Ramiro S. Trevino
1. The Expert Testimony of DEA Agent Joseph
Reagan
During the defendants’ trial, the government
called DEA Agent Joseph Reagan to the stand to
testify as an expert witness about the nature,
structure, and characteristics of drug
trafficking operations. Defendant Trevino now
argues that in admitting this testimony, the
district court failed to apply the proper
standard for the admission of expert testimony as
enunciated by the Supreme Court in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579(1993). We review whether the district court
properly followed the Daubert framework in
considering the admissibility of expert testimony
de novo, see United States v. Hall, 165 F.3d
1095, 1101 (7th Cir. 1999), but we review the
district court’s decision to admit Agent Reagan’s
testimony for an abuse of discretion, see Kumho
Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999);
United States v. Clark, 192 F.3d 750, 756 (7th
Cir. 1999).
Rule 702 of the Federal Rules of Evidence
provides that "[i]f scientific, technical, or
other specialized knowledge will assist the trier
of fact to determine a fact in issue" an expert
"may testify thereto." Fed.R.Evid. 702. The
Supreme Court has made clear that in applying
Rule 702, district courts serve a gatekeeping
function and must ensure that the expert
testimony at issue "both rests on a reliable
foundation and is relevant to the task at hand."
Daubert, 509 U.S. at 597; see Kumho, 526 U.S. at
147. Although the Daubert Court identified a
number of factors to be considered when
evaluating the admissibility of expert testimony-
-including testing, peer review, error rates, and
acceptability within the relevant professional
community--these factors do not establish a
definitive checklist. See Kumho, 526 U.S. at 150;
Daubert, 509 U.S. at 593. Rather, the
applicability of the various Daubert factors
depends on the particular facts and circumstances
of each case. See Kumho, 526 U.S. at 150;
Daubert, 509 U.S. at 591.
The government argues that the district court
properly understood the analytical framework of
Daubert, and demonstrated that it was applying
the proper standard, when it stated, "I will
allow . . . the agent to proceed, one, assuming
that he will be qualified as an expert, and then,
two, into relevant inquiry." We agree that this
reflects the district court’s understanding that
in order to be qualified, an expert witness’s
testimony must be both reliable and relevant.
Furthermore, after the government laid a proper
foundation for Agent Reagan’s testimony, the
district court explicitly indicated that he was
qualified as an expert witness and the defendants
failed to object to that finding. It is well-
settled that the methods and structure of
narcotics trafficking is a proper source of
expert testimony. See United States v. Mancillas,
183 F.3d 682, 704-06 (7th Cir. 1999); United
States v. Navarro, 90 F.3d 1245, 1261 (7th Cir.
1996) ("Law enforcement officers . . . may
qualify as experts in narcotics trafficking and
may offer explanations to the jury."); United
States v. Lipscomb, 14 F.3d 1236, 1239-43 (7th
Cir. 1994); United States v. Brown, 7 F.3d 648,
652 (7th Cir. 1993) (collecting cases); United
States v. Foster, 939 F.2d 445, 451 (7th Cir.
1991); United States v. Solis, 923 F.2d 548, 550-
51 (7th Cir. 1991). It is also clear from his
experience that Agent Reagan was qualified to
offer testimony as to the general structure of
drug organizations and that his testimony
regarding drug trafficking was helpful to the
jury. Under these circumstances, we are satisfied
that the district court properly applied the
Daubert framework in considering the testimony of
Agent Reagan. Defendant Trevino’s general
objections to the testimony of Agent Reagan are
therefore unavailing.
Defendant Trevino’s more specific objection to
Agent Reagan’s testimony does not focus on his
qualifications in general, but rather on what the
defendant characterizes as testimony about the
nature and characteristics of Hispanic drug
dealers. According to defendant Trevino, this
kind of testimony is problematic for two reasons.
First, defendant Trevino argues that Agent Reagan
was not qualified to testify about Hispanic drug
organizations because his relevant investigative
experience did not center on Hispanics or on
Hispanic areas. Second, defendant Trevino argues
that Agent Reagan’s testimony about Hispanic drug
dealers improperly introduced ethnicity into the
trial and should not have been admitted because
it was too prejudicial. While we recognize that
testimony about the relevant characteristics of
particular ethnic groups could be problematic,
and we agree that Agent Reagan’s experience did
not qualify him to speak authoritatively on the
particular characteristics of Hispanic drug
trafficking organizations, defendant Trevino’s
argument as to the nature of Agent Reagan’s
testimony is not supported by the record.
Agent Reagan’s testimony centered on drug
trafficking operations generally and he drew no
distinctions between Hispanic drug traffickers
and drug traffickers of any other race or ethnic
origin. In fact, Agent Reagan’s only reference to
Hispanic drug dealers during the entire course of
his testimony was an acknowledgment that in the
past he had investigated Hispanic drug
trafficking organizations. Nothing about Agent
Reagan’s testimony indicates an ethnically-based
evaluation of the evidence, nor was there any
attempt by Agent Reagan or the government to
interject the potentially prejudicial issue of
ethnicity into the witness’s testimony.
Accordingly, we find no error in the district
court’s decision to qualify Agent Reagan as an
expert and to admit his testimony regarding drug
trafficking organizations.
2. The Alleged Suppression of Impeachment
Evidence
Defendant Trevino next challenges the failure of
the government to turn over impeachment evidence
concerning Daniel Chavez. Chavez was an informant
who testified during the government’s case-in-
chief regarding defendant Trevino’s involvement
in drug trafficking activities. Although Chavez
admitted on cross-examination that he had been
paid money by the government for his services as
an informant, the records of these payments were
never tendered to the defense. Defendant Trevino
contends that these government payments to Chavez
constitute impeachment evidence of an important
government witness demonstrating bias and that,
because of the nature of that evidence, the
government had an obligation to inform the
defense of the payments and to turn over any
records regarding those payments to defendant
Trevino.
The government has an obligation to disclose
evidence favorable to the defendant upon request
when such evidence is material to the defendant’s
guilt or innocence, see Brady v. Maryland, 373
U.S. 83, 87 (1963), and that obligation extends
to both impeachment and exculpatory evidence, see
United States v. Bagley, 473 U.S. 667, 676 (1985)
(citing Giglio v. United States, 405 U.S. 150,
154 (1972)). In this case, the government argues
that it was not required to give defendant
Trevino information about the payments made to
Chavez because those payments were not relevant
to the instant case. More specifically, the
government contends that the district court judge
previously assigned to this case determined that
the payments made to Chavez were unconnected to
the government’s investigation of these
particular defendants and that this ruling
affirmatively relieved it of its obligation to
turn the disputed evidence over to the defense.
In order to evaluate this argument, we must
consider the somewhat unusual events surrounding
the determination that the payments made to
Chavez were not relevant to this case.
The evidence regarding the government’s payments
to Chavez was first presented by DEA agents in an
in camera hearing to Judge Baker, the district
judge previously assigned to this case. This
hearing took place outside the presence of
defense counsel and there is no indication in the
record as to what was discussed during this
meeting or as to what information was provided to
Judge Baker. The record does reflect that
following this meeting, Judge Baker issued an
order stating that evidence of the government’s
payments to Chavez was inadmissible at the
defendants’ trial based on the court’s conclusion
that the payments made to Chavez were related to
a wholly separate DEA investigation. The district
court accepted Judge Baker’s determination that
the disputed evidence was irrelevant, and the
government now argues that Judge Baker’s ruling
as to this potentially impeaching evidence
relieved it of its obligation under Brady to turn
the requested impeachment evidence over to the
defense.
We agree with the government that no Brady
violation occurred here. The information
regarding evidence of the government’s payments
to Chavez was provided to Judge Baker and it was
determined to be irrelevant. Because the
government is only required to turn over
requested information if it is material to an
issue at trial, see Brady, 373 U.S. at 87; United
States v. Hartbarger, 148 F.3d 777, 786 (7th Cir.
1998), the district court’s determination that
the requested evidence was irrelevant necessarily
relieved the government of its obligation to turn
over information concerning Chavez’s dealings
with the government because irrelevant evidence
cannot be material. Put another way, the central
Brady inquiry on appeal is whether there is a
reasonable probability that the disputed evidence
would have affected the result at trial, see
Bagley, 473 U.S. at 682; United States v. Dimas,
3 F.3d 1015, 1018 (7th Cir. 1993), and we cannot
say that there is a reasonable probability that
evidence properly found to be irrelevant would
have affected the jury’s conclusions. The
question then is not whether the government
violated its Brady obligation when it refused to
turn over the information regarding its payments
to Chavez that had been deemed irrelevant by
Judge Baker, but rather whether the district
court erred in making its initial materiality
determination as to the disputed evidence. We
review the district court’s determination that
the disputed evidence was not material under
Brady for an abuse of discretion. See United
States v. Kozinski, 16 F.3d 795, 818 (7th Cir.
1994).
In circumstances where the defense seeks access
to confidential information during discovery, "we
rely particularly heavily on the sound discretion
of the trial judge to protect the rights of the
accused as well as [those of] the government."
United States v. Phillips, 854 F.2d 273, 277 (7th
Cir. 1988) ("Generally, the decisions whether to
conduct an in camera review of government files
in appropriate cases, whether to require
discovery of materials contained therein, and in
what form such materials should be produced are
committed to the sound discretion of the district
judge."). While we recognize this broad grant of
authority to district judges,/1 it is impossible
for us to determine on the record as it now
stands whether the district court properly
exercised its discretion in refusing defense
requests to turn over information regarding the
payments to Chavez. There is no information in
the record as to the substance of the meeting
between Judge Baker and the DEA agents, nor is
there any information supporting Judge Baker’s
determination that the disputed evidence was
irrelevant. Judge Baker’s docket order deeming
the evidence irrelevant, coupled with the
district court’s decision to rely on that
previous finding, do not provide a sufficient
basis for evaluating the district court’s
decision to deny defendant Trevino discovery of
the disputed information.
Despite our conclusion that the district court
did not provide a sufficient explanation of its
decision to exclude records of the government
payments to Chavez, defendant Trevino has not
convinced us that the disputed evidence was
material. See United States v. Hamilton, 107 F.3d
499, 510 (7th Cir. 1997) (citing United States v.
Agurs, 427 U.S. 97, 109-10 (1976)) ("[A] Brady
violation does not arise due to nothing more than
a possibility that the undisclosed item might
have helped the defense . . . ."). In order to
demonstrate materiality, defendant Trevino must
show both an abuse of discretion and prejudice.
See United States v. Salerno, 108 F.3d 730, 743
(7th Cir. 1997) (quoting United States v.
Alvarez, 987 F.2d 77, 85 (1st Cir. 1993))
(stating that discovery violations warrant a new
trial only when both an abuse of discretion and
prejudice are shown); see also United States v.
Miller, 199 F.3d 416, 421 n.3 (7th Cir. 1999). In
this context, prejudice means a showing that
because of the absence of the sought-after
evidence, defendant Trevino did not "receive[ ]
a fair trial resulting in a verdict worthy of
confidence." United States v. Asher, 178 F.3d
486, 496 (7th Cir. 1999) (citing Kyles v.
Whitley, 514 U.S. 419, 434 (1995)); see Pickens
v. Runyon, 128 F.3d 1151, 1155 (7th Cir. 1997).
Prejudice exists when the defendant "is unduly
surprised and lacks an adequate opportunity to
prepare a defense, or when the violation
substantially influences the jury." United States
v. De La Rosa, 196 F.3d 712, 716 (7th Cir. 1999).
During cross-examination, the district court
allowed the defendants to inquire into Chavez’s
work as a government informant, and Chavez
admitted that he had been paid for his services.
Although defendant Trevino admits that he was
able to question Chavez about the fact of
government payments, he contends that he was not
able to explore sufficiently the nature, and
specifically the amounts, of the payments made to
Chavez without access to the records of those
payments. Under these circumstances, however,
defendant Trevino has not shown that the district
court’s refusal to allow additional inquiry into
the government payments received by Chavez
resulted in an unfair trial, or that the evidence
he sought to obtain discovery of was anything
more than cumulative impeachment evidence. See
United States v. Maloney, 71 F.3d 645, 653 (7th
Cir. 1995) (citing Kozinski, 16 F.3d at 819)
(stating that in order to justify a new trial,
impeachment evidence "must be more than mere
cumulative impeachment"); United States v. Dweck,
913 F.2d 365, 371 (7th Cir. 1990). Because
defendant Trevino has failed to show that he was
prejudiced by the government’s failure to turn
over records regarding the government payments to
Chavez, we will not disturb the ruling of the
district court below.
3. Sentencing Issues
Defendant Trevino next argues that the district
court erroneously failed to grant him downward
departures based on his age, family
circumstances, and the hardship faced by his
family because of his status as an illegal alien.
Although defendant Trevino failed to request such
downward departures before the sentencing court,
he now argues that this Court may nevertheless
review his claims under a plain error standard.
Defendant Trevino also alleges that his failure
to request these departures resulted from the
ineffective assistance of his trial counsel and
he argues that this Court should consider that
claim on appeal as well.
We find both of defendant Trevino’s sentencing
arguments to be meritless. A district court’s
decision not to depart downward is reviewable on
appeal only if the district court’s conclusion is
based on a legal interpretation of the Sentencing
Guidelines. See United States v. Ekeland, 174
F.3d 902, 905 (7th Cir. 1999); United States v.
Poff, 926 F.2d 588, 591 (7th Cir. 1991). On
appeal, defendant Trevino does not challenge the
district court’s legal conclusions, nor is there
any indication that the district court did not
believe it had the discretion to depart. Rather,
defendant Trevino challenges the district court’s
factual findings and its discretionary decision
not to depart. Such challenges are not subject to
appellate review, even in circumstances where a
motion for departure has been made before the
district court, and we therefore do not have
jurisdiction to consider defendant Trevino’s
arguments as to the district court’s failure to
depart downward. See United States v. Williams,
198 F.3d 988, 994-95 (7th Cir. 1999) ("[A]
district court’s discretionary decisions
concerning upward or downward departures are not
reviewable by this Court."); United States v.
Helton, 975 F.2d 430, 434 (7th Cir. 1992).
In order to prevail on his ineffective
assistance of counsel claim,/2 defendant Trevino
must demonstrate both that his attorney’s
performance was objectively unreasonable and that
he was prejudiced by that performance. See United
States v. Partee, 31 F.3d 529, 534 (7th Cir.
1994). According to defendant Trevino, he has
made the necessary performance and prejudice
showings through proof that his trial counsel
failed to move for the applicable downward
departures without any strategic justification.
Although the appellate record clearly reflects
that defendant Trevino’s trial counsel did not
ask for the downward departures that defendant
Trevino now claims should have been requested,
the record does not reveal the circumstances
surrounding that decision or the strategic
concerns that may have motivated it. See United
States v. Johnson-Wilder, 29 F.3d 1100, 1104 (7th
Cir. 1994) (noting that ineffective assistance
claims should almost never be brought on direct
appeal because "typically the trial record will
be silent about the reasons for actions taken by
trial counsel"). Absent a showing that trial
counsel chose not to ask for an obviously
applicable departure without any justification
for his actions, we cannot conclude that his
performance was objectively unreasonable. We
therefore reject defendant Trevino’s ineffective
assistance of counsel claim.
B. Defendant Joseph L. Cuevas
The appeal of defendant Joseph L. Cuevas
focuses on the testimony of Pablo Villamil, a
rebuttal witness called by the government.
Villamil testified that he participated in a
"drug run" with defendant Cuevas, and that as
part of this venture he accompanied defendant
Cuevas and Emilio Guizar on a May 20, 1997 flight
from Chicago to Dallas. This testimony was
particularly damaging to defendant Cuevas because
Villamil was called to refute the innocent
explanation defendant Cuevas gave for that trip.
In addition, Villamil rebutted defendant Cuevas’s
statement that he and Guizar traveled alone to
Dallas on the flight in question. The government
further attempted to damage defendant Cuevas’s
credibility by introducing flight manifests
showing that, despite defendant Cuevas’s
assertion to the contrary, defendant Cuevas,
Guizar, and Villamil were all on a Vanguard
Airlines flight from Chicago to Dallas on May 20,
1997. We review the district court’s decision to
admit rebuttal testimony for an abuse of
discretion. See Spesco, Inc. v. General Elec.
Co., 719 F.2d 233, 239-40 (7th Cir. 1983).
Defendant Cuevas’s allegations of error in
regard to the testimony of Villamil focus on what
he regards as the unfair surprise created when
the government called Villamil in rebuttal after
having failed to offer him as a witness in its
case-in-chief. It is well-established, however,
that there is no constitutional right to
discovery in non-capital criminal cases and that
the prosecution has no constitutional obligation
to reveal its witnesses prior to trial. See
Weatherford v. Bursey, 429 U.S. 545, 559 (1977);
United States v. Agyemang, 876 F.2d 1264, 1270
(7th Cir. 1989). More significantly, there is no
allegation that the government failed to comply
with any discovery rule in not disclosing the
possibility that Villamil would testify as a
rebuttal witness. See, e.g., United States v.
Braxton, 877 F.2d 556, 560 (7th Cir. 1989).
Villamil’s testimony only became necessary when
defendant Cuevas denied having been accompanied
to Dallas by Villamil, and the government was
entitled to call Villamil to rebut that testimony
and to attack defendant Cuevas’s credibility. See
United States v. O’Brien, 119 F.3d 523, 530 (7th
Cir. 1997) ("Once a defendant takes the stand and
denies his criminal activity, it is proper for
the district judge to permit the Government to
offer rebuttal evidence in contradiction of that
testimony."). Because the government had no legal
duty to disclose the identity of its potential
rebuttal witnesses, and because defendant Cuevas
put his credibility at issue by testifying in his
own defense, the district court properly allowed
Villamil to testify.
Although precedent establishes that the
government was not required to disclose the
identity of Villamil as a rebuttal witness, the
government’s failure to turn over the Vanguard
Airlines passenger list is more problematic. This
case was conducted under an open discovery
policy, and the government was clearly obligated
to disclose the passenger list to the defense as
soon as it was received. The government did not
comply with this obligation, nor did it offer any
valid justification for this failure before the
district court or on appeal. These kind of
discovery violations are troubling in any
context, but particularly so when they are
committed by the government during a criminal
trial. However, it is significant that the
district court properly recognized the
government’s error and prohibited the government
from using the airline passenger list to rebut
defendant Cuevas’s testimony or to corroborate
Villamil’s testimony. District courts are
generally given discretion to fashion remedies
for discovery violations, see Fed.R.Crim.P.
16(d)(2), and we will not second-guess that
decision absent a showing that, on the particular
facts of this case, the district court abused
that discretion. See United States v. Beverly,
913 F.2d 337, 355 (7th Cir. 1990); see also
Taylor v. Illinois, 484 U.S. 400 (1988).
A new trial is warranted for a discovery
violation only if "’the remedy offered by the
district court was inadequate to provide [the
defendant] with a fair trial.’" United States v.
Jackson, 51 F.3d 646, 651 (7th Cir. 1995)
(quoting United States v. Mounts, 35 F.3d 1208,
1217 (7th Cir. 1994)). In this case, defendant
Cuevas argues that the district court’s decision
to exclude the airline passenger list, but to
permit Villamil to testify on rebuttal, was
inadequate to ensure that he was provided a fair
trial. Defendant Cueveas contends that the
government acted in bad faith and intentionally
withheld the airline passenger list in order to
conceal the possibility that Villamil might
testify and that this act of deception
fundamentally altered his trial strategy.
Defendant Cuevas also argues that the district
court erred in not granting his request for a
continuance so that he could more adequately
prepare for the testimony of this surprise
witness.
As we have previously discussed, we do not
believe that the district court abused its
discretion in its management of the discovery
issues when those issues are examined in
isolation. The district court properly permitted
the government to call Villamil as a witness, and
the district court exercised its discretion to
remedy discovery abuses by excluding the airline
passenger list that was not tendered to the
defense. Because neither of these decisions
constitute error when examined separately,
defendant Cuevas’s claim relies on a link between
the failure of the defense to provide the airline
passenger list and the detriment he suffered when
Villamil was called as a rebuttal witness to
attack his credibility. According to defendant
Cuevas, had he properly received the airline
passenger list from the government, he would have
known of the possibility that Villamil would be
called to testify and would have altered his
trial strategy accordingly (presumably by not
testifying himself or by admitting Villamil’s
presence on the May 20, 1997 flight)./3 Under
this theory, the only adequate remedy for the
government’s failure to disclose the existence of
the airline passenger list would have been to
exclude both the list itself and the rebuttal
testimony of Villamil.
Although we reiterate our concern about the
government’s failure to turn over the airline
passenger list to the defense, we do not believe
that the district court erred in fashioning a
remedy for that violation. The passenger list
would have shown that the government was aware of
the passengers on the May 20, 1997 flight to
Dallas, but it would not have given Cuevas any
indication that Villamil was prepared to testify
that he accompanied Cuevas to Dallas. The notion
that mere possession of the airline passenger
list would have led to the conclusion that
Villamil would be called to testify and that this
realization would have altered Cuevas’s trial
strategy is too speculative to demonstrate that
the district court should have excluded
Villamil’s testimony or that defendant Cuevas was
prejudiced by the government’s actions. See
United States v. Salerno, 108 F.3d 730, 748 (7th
Cir. 1997) (quoting United States v. Alvarez, 987
F.2d 77, 85 (1st Cir. 1993)). In the absence of
a more concrete showing that disclosure of the
airline passenger list would have impacted
defendant Cuevas’s trial strategy, or some
evidence that the government acted in bad faith
in withholding that information, we cannot say
that the district court abused its discretion in
choosing to remedy the government’s discovery
violation through exclusion of the undisclosed
evidence.
In addition to his arguments concerning the
district court’s failure to adequately remedy the
discovery violation committed by the government,
defendant Cuevas also contends that the district
court erred when it refused to grant him a
continuance to prepare for Villamil’s testimony.
While we agree that the district court had the
discretion to grant defendant Cuevas a
continuance, see United States v. United Pacific
Ins. Co., 427 F.2d 366, 373 (7th Cir. 1970)
("[A]n application for a continuance is addressed
to the sound discretion of the trial court . . .
."), we do not believe that defendant Cuevas has
demonstrated that a continuance was mandated by
the circumstances of this case or that the
district court abused its discretion in refusing
to grant one. See United States v. $94,000.00 in
United States Currency, 2 F.3d 778, 787 (7th Cir.
1992) ("We review the trial court’s denial of a
continuance for abuse of discretion."). We base
this conclusion primarily on defendant Cuevas’s
failure to show that a continuance was necessary
in order for him to prepare for Villamil’s
testimony and on his inability to demonstrate
that the government’s actions in calling Villamil
as a rebuttal witness prejudiced his defense. See
United States v. Avery, 208 F.3d 597, 602 (7th
Cir. 2000).
Before Villamil was allowed to testify, the
district court ensured that defendant Cuevas was
able to interview him, and the record reflects
that defendant Cuevas had ample opportunity at
trial to cross-examine Villamil on both his
credibility and his motive for testifying.
Although defendant Cuevas now says that had he
known of the possibility that Villamil would be
called to testify he would have sought additional
information in preparation for that testimony--
including taking pictures of the Vanguard
airlines ticket counter in Chicago, investigating
the airline’s boarding and ticketing procedures,
taking pictures at the Dallas airport,
investigating rental car procedures in Dallas,
investigating bus routes from Dallas to Chicago,
ascertaining whether there was a record of a bus
ticket for Villamil, and investigating Villamil’s
employment--defendant Cuevas does not indicate
how this additional information would have aided
his cross-examination of Villamil. Moreover, much
of the further investigation sought by defendant
Cuevas involved places and events already known
and relevant to the defense’s case even before
Villamil became involved. Against this backdrop,
we cannot conclude that the district court abused
its discretion in refusing defendant Cuevas’s
request for a continuance. See Pfeil v. Rogers,
757 F.2d 850, 856 (7th Cir. 1985) ("Absent an
abuse of discretion, the trial court’s
determination of whether a continuance is
justified will not be interfered with by an
appellate court.").
C. Defendant Raul Cruz-Velasco
Defendant Raul Cruz-Velasco alleges that the
district court erred in allowing the government
to present a revised written transcript of a
tape-recorded conversation between defendant
Cruz-Velasco and government informant Jose
Villanueva. The original transcript of this
conversation was turned over to the defense well
in advance of trial as part of discovery, but on
the eve of trial the government provided the
defense with a revised version of that
transcript. Although the government contends that
the revised transcript only contained
translations of portions previously thought
inaudible, defendant Cruz-Velasco argues that the
modifications made to the transcript were
significantly prejudicial to his defense and
justify overturning his conviction. According to
defendant Cruz-Velasco, the government’s delay in
providing up-to-date transcripts should have
resulted in a prohibition on the use at trial of
the newly-provided transcripts.
Although this issue again raises general
problems regarding the ability of defendant Cruz-
Velasco to react to evidence turned over late in
the discovery process, our concerns in that
regard are alleviated upon an examination of the
circumstances surrounding the revised transcript.
The delay in turning over the modified
translations was not due to the fault of the
government, but rather to the inability of the
government to review the accuracy of the original
transcript with the relevant witnesses until
shortly before trial. Apart from the transcript
itself, the defense was provided a copy of the
actual tape-recorded conversation and had ample
opportunity to seek its own translation.
Furthermore, upon hearing that the government
provided new transcripts near the start of trial,
the district court gave defendant Cruz-Velasco
the opportunity to cross-examine the government’s
expert witness on the modifications to the
transcript and informed defendant Cruz-Velasco
that he would be permitted to call his own expert
challenging the government’s version of the
translated conversation. When a defendant is
given both the time and the opportunity to
address any problems created by a new transcript
and to present an alternate version, the district
court’s refusal to exclude the new translation is
not an abuse of discretion. See United States v.
Zambrana, 864 F.2d 494, 497-98 (7th Cir. 1988)
("’Because the [defendant] had ample opportunity
to either challenge specific portions of the
government’s transcript or to prepare an
alternate version,’ he cannot now complain on
appeal when he failed to pursue those avenues at
trial.") (quoting United States v. Zambrana, 841
F.2d 1320, 1335 (7th Cir. 1988)); United States
v. Llinas, 603 F.2d 506 (5th Cir. 1979).
III. Conclusion
Having reviewed the issues arising from the
defendants’ convictions and sentences and finding
no reversible error, we AFFIRM the decisions of the
district court.
/1 Defendant Trevino also contends that the district
court’s failure to order discovery on the
information regarding government payments to
Chavez, as well as the court’s refusal to allow
the defendants to pursue a detailed inquiry as to
the nature and source of the payments on cross-
examination, violated his Sixth Amendment right
to confront the witnesses against him. It is true
that defendant Trevino has a right to confront
the witnesses against him, but that right is not
unlimited. See United States v. Rainone, 32 F.3d
1203, 1207 (7th Cir. 1994). The trial court
retains broad discretion to limit cross-
examination, see United States v. Valles, 41 F.3d
355, 359 (7th Cir. 1994), and the district court
properly exercised that discretion in this case.
Because defendant Trevino was able to adequately
question Chavez as to the fact of the government
payments, the district court’s refusal to allow
more detailed questioning on that subject does
not constitute a denial of defendant Trevino’s
Sixth Amendment rights.
/2 Although ineffective assistance of counsel claims
may be considered as a part of this appeal, we
have consistently recognized that this type of
claim is disfavored on direct review. See United
States v. Cooke, 110 F.3d 1288, 1299 (7th Cir.
1997) ("This Court’s reluctance to consider
ineffective assistance claims on direct appeal
stems, of course, from the fact that such claims
are very unlikely to find any factual support in
the trial record and an adverse determination on
direct appeal will be res judicata in any
subsequent collateral attack."); see also United
States v. Garrett, 90 F.3d 210, 214 (7th Cir.
1996); United States v. Walls, 80 F.3d 238, 243
(7th Cir. 1996).
/3 Defendant Cuevas attempts to establish that the
district court’s remedy for the government’s
discovery violation was inadequate by linking the
government’s failure to disclose the airline
passenger list to the detriment defendant Cuevas
suffered when Villamil was permitted to testify
as a rebuttal witness. In this regard, it is
significant to note that the government’s
nondisclosure of the airline passenger list and
the government’s decision to call Villamil as a
rebuttal witness were argued as separate and
distinct issues before the district court. It is
only on appeal that defendant Cuevas connects
these issues in an attempt to demonstrate
prejudice.
Williams, Circuit Judge, dissenting in part. I
dissent from the majority opinion in two
respects.
First, unlike my colleagues, I do not believe
that the district court adequately remedied the
government’s discovery violation. I agree that
the district court has the discretion to
determine the appropriate sanction for a Federal
Rule of Criminal Procedure 16/1 violation and
that this court will not disturb the district
court’s ruling absent a showing of unremedied
prejudice. "A defendant is prejudiced under Rule
16 only when he is unduly surprised and lacks an
adequate opportunity to prepare a defense, or
when the violation substantially influences the
jury." United States v. De La Rosa, 196 F.3d 712,
716 (7th Cir. 1999).
The question here is whether the loss of a
potential defense strategy as the result of a
discovery violation creates enough prejudice to
require a new trial. This is an issue of first
impression for our circuit. In a similar case
from the Eleventh Circuit, the defendant
challenged his conviction on the ground that the
district court admitted into evidence a tape
recording of the defendant on rebuttal even
though the government had failed to turn over the
tape during pretrial discovery. See United States
v. Noe, 821 F.2d 604, 607 (11th Cir. 1987). In
response, the government suggested that it could
withhold discoverable inculpatory evidence until
the defendant asserted a defense strategy based
on the apparent nonexistence of that evidence,
thus foreclosing other, possibly viable, defense
strategies. See id. at 608. The Eleventh Circuit
refused to adopt the government’s suggestion
because "it would encourage precisely the ’trial
by ambush’ that the Federal Rules of Criminal
Procedure were designed to prevent." Id.Consequently, the Noe court granted the defendant
a new trial. See id. at 609.
In the case at bar, the government claims that
a defendant simply does not have the right to lie
under oath with impunity on the belief that the
government will not be able to prove otherwise
because he has not been given prior notice of a
rebuttal witness’ identity. The government,
however, misses the point. The issue here is
about a fair trial, not Cuevas’s credibility. The
Noe court addressed a similar argument.
The government’s appeals to "justice" to uphold
Noe’s guilty verdicts are misplaced. Although Noe
certainly does not have the right to "fabricate"
an alibi story, the Federal Rules of Criminal
Procedure provide him a right . . . to devise a
defense strategy on the basis of the evidence
disclosed. . . . Had the government . . .
complied fully with Noe’s discovery request . .
., it would not now be before this court invoking
vague notions of justice. Likewise, had Noe been
aware of the tape recordings prior to trial, his
counsel "might well have advised [him] not to
take the stand." United States v. Padrone, 406
F.2d 560, 561 (2d Cir. 1969). The government,
however, failed to comply with Noe’s discovery
request and did not disclose the tape recording
until after Noe had developed and implemented his
trial strategy. Consequently, the government
cannot now claim that the discovery violation was
harmless.
Id. (emphasis added).
In our case, the district court’s sanctions
were insufficient in my view. A new trial is
warranted when the failure to disclose "is so
serious a detriment to the preparation for trial
and the defense of serious criminal charges [and]
where it is apparent, as here, that [the
defendant’s] defense strategy may have been
determined by the failure to comply." Padrone,
406 F.2d at 561. The government does not provide
any valid reasons for not disclosing the airline
report and appears to have acted in bad faith.
Moreover, Cuevas’s trial strategy was
significantly prejudiced by the "ambush." See
United States v. Camargo-Vergara, 57 F.3d 993,
998-99 (11th Cir. 1995) (finding that the
government substantially prejudiced the
defendant’s case by its failure to disclose a
portion of the defendant’s statement until after
trial started because defendant had already
prepared and committed himself to a trial
strategy).
While the majority urges us to look at the
airline manifest and Villamil’s testimony in
isolation, I do not believe that we can. The
government apparently learned of Villamil’s
identity through the subpoenaed manifest.
Consequently, he would not have been a rebuttal
witness without the government’s review of that
manifest. Because the government’s rebuttal case
was built upon knowledge gained from those
records, the banned records were "just as
effective as if [they] had been introduced in
evidence." United States v. Rodriguez, 799 F.2d
649, 654 (11th Cir. 1986). Villamil’s testimony
was especially damning. He was the only "inside"
government witness to claim that he met and dealt
with Cuevas during the alleged conspiracy.
If the government had timely turned over the
airline flight manifest or ticket records--the
government received these documents on the first
day of trial, Cuevas may have exercised his
constitutional right not to testify. At a
minimum, Cuevas should have had an opportunity to
properly investigate and prepare a cross-
examination strategy.
I also dissent from my colleagues’ conclusion
regarding the suppression of impeachment evidence
concerning Daniel Chavez. I do agree that the
government did not commit a Brady violation and
that the central question here is whether the
district court erred in making its initial
materiality determination as to the disputed
evidence. I am, however, troubled by the unusual
events surrounding the determination that the
payments made to Chavez were not relevant to this
case.
Ordinarily, we rely on the sound discretion of
the district judge whether to conduct an in
camera review of government files. See United
States v. Phillips, 854 F.2d 273, 277 (7th Cir.
1988). Here we cannot, however, determine on the
record whether the district court properly
exercised its discretion. Unlike the situation in
Phillips, no record or transcript was prepared of
the ex parte in camera hearing between the
district judge and the government officials./2
Furthermore, all we have is the district judge’s
conclusory opinion that the payments made to
Chavez were related to a separate investigation.
A jury is entitled to know all the details of a
witness’ relationship to the government. See
United States v. Muscarella, 585 F.2d 242, 248
(7th Cir. 1978); cf. United States v. Boyd, 55
F.3d 239, 245-46 (7th Cir. 1995) (ruling that
testimony in exchange for special favors to a
witness by the government or favorable treatment
in the criminal justice system should be
disclosed as impeachment evidence). This
information includes the informant’s relationship
with the government outside of the particular
case at issue. See United States v. Williams, 954
F.2d 668, 671-72 (11th Cir. 1992). "The jury has
the right to know what may be motivating a
witness, especially a government paid, regularly
employed, informant-witness." Id. at 672.
There may indeed be some unique circumstances
where a district court within its discretion
excludes some of this evidence as irrelevant.
However, the district judge should, at the very
least, provide the appellate court with a record-
-even if sealed--to review. By not establishing
a record, the district court effectively
nullifies appellate review. See United States v.
Southard, 700 F.2d 1, 11 (1st Cir. 1983).
Consequently, I believe that the court below
abused its discretion.
My colleagues conclude that the defendants were
not prejudiced because the error, if any, was
harmless. Chavez admitted on cross-examination
that he was a paid government informant.
Therefore, the majority finds that any other
evidence of payments would have been merely
cumulative. Because the record is incomplete,
however, I do not believe that we can make that
determination. Furthermore, Chavez was an
important government witness who detailed drug
deals and other illegal activities among the co-
conspirators. His testimony may very well have
been effectively impeached if the jury knew his
complete relationship to the prosecution.
Therefore, I respectfully dissent on these two
issues.
/1 Fed. R. Crim. P. 16(a)(1)(C) requires discovery
of certain documents, including those that are
"material to the preparation of the defendant’s
defense."
/2 In Phillips, the appellate court was able to
review the entire file that the district court
had viewed in camera. 854 F.2d at 277.