United States v. Ervin, James ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4700 & 06-1834
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES E RVIN and JAY Z AMBRANA,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 00 CR 28—Theresa L. Springmann, Judge.
____________
A RGUED JANUARY 14, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. A federal grand jury charged Jay
Zambrana and James Ervin with violating numerous
provisions of federal law by participating in a drug-
trafficking conspiracy, see 18 U.S.C. §§ 2, 922(g)(1), 1951,
1956(a)(1)(A)(i), (a)(1)(B)(i), 1957; 21 U.S.C. §§ 841(a)(1),
843(b), 846, 856(a)(1), and by killing two men in further-
ance of that conspiracy, see 18 U.S.C. § 2; 21 U.S.C.
§ 848(e)(1)(A). Before trial, Zambrana sought to sever the
2 Nos. 05-4700 & 06-1834
homicide counts from the drug-conspiracy counts, see
Fed. R. Crim. P. 14(a), to no avail. A jury found Zambrana
and Ervin guilty on all counts, based largely on the ex-
tensive testimony of the two men’s co-conspirators who
agreed to testify against them in exchange for immunity
or reduced sentences. Two years later, Zambrana and
Ervin filed motions seeking a new trial, see Fed. R. Crim. P.
33(a), on the grounds that new evidence came to light
showing that (1) one of the co-conspirators who testified
against them engaged in several acts of misconduct
while detained at the city jail in Hammond, Indiana, before
trial; and (2) the government withheld the evidence of
that misconduct in derogation of Brady v. Maryland, 373
U.S. 83 (1963). The district court denied the motions.
We affirm.
I. H ISTORY
In September 1997, officers with the police department
in Lake County, Indiana, arrested Alvestia McKeller in
Merrillville, Indiana, after they recovered one kilogram
of cocaine from his car’s trunk during a traffic stop.
McKeller quickly informed the officers that he had pur-
chased the cocaine from his cousin, who had, in turn,
obtained the drugs from Zambrana. McKeller’s ad-
missions spurred a wide-scale investigation of Zambrana
by the Drug Enforcement Administration; the Internal
Revenue Service; the Bureau of Alcohol, Tobacco, Firearms,
and Explosives; and the Federal Bureau of Investiga-
tion (FBI). That investigation culminated in 2002 with the
filing of a 40-count indictment against Zambrana, Ervin,
Nos. 05-4700 & 06-1834 3
and seven others; Zambrana was a named defendant in
29 of the counts, and Ervin was named in eleven.
In general, the indictment alleged that the nine men
comprised a wide-reaching drug-trafficking ring in north-
west Indiana, and that as part of the conspiracy they
obtained and distributed marijuana, heroin, and cocaine;
extorted others; laundered money to conceal the con-
spiracy; carried and used firearms to further the conspir-
acy; and committed numerous violent acts—including
murder—to supply the conspiracy with money and drugs.
As pertinent here, the indictment claimed that Zambrana
led the drug-trafficking ring, and that Ervin—an officer
with the police department in Gary, Indiana—acted as
his muscle. As part of his leadership duties, the indict-
ment continued, Zambrana would launder the revenue
derived from the conspiracy by visiting riverboat casinos,
gambling with the drug money, and exchanging his
“winnings” for “clean” cashier’s checks from the casinos.
Finally, the indictment alleged that Zambrana, Ervin, and
two others conspired to kill Raul Hurtado and Gil Nevarez
as part of a scheme to obtain five kilograms of cocaine.
About six months before trial, Zambrana filed a motion
to sever the indictment’s homicide counts from the drug-
conspiracy counts. In his motion, Zambrana asserted that
he “wish[ed] to testify” in his own defense against the
homicide counts, but “[t]hat combining all the counts at
one trial” would prevent him from doing so if he chose
to exercise his right not to testify as to the drug-con-
spiracy counts. Moreover, Zambrana argued, trying the
homicide and drug-conspiracy counts together would
4 Nos. 05-4700 & 06-1834
prevent him from receiving a fair trial. Zambrana simulta-
neously filed a notice of affirmative defense, in which
he stated that he “may rely on [an] alibi defense” to
respond to the homicide charges. See Fed. R. Crim. P.
12.1(a)(1)-(2). Zambrana contended that he “was
gambling on the casino boats” during the time that the
government had alleged that Hurtado’s and Nevarez’s
murders occurred, and explained that he would “rely on
records provided by the [g]overnment to establish such
alibi.” The district court rejected Zambrana’s arguments,
concluding that he neither provided “any specific testi-
mony he intend[ed] to give” regarding the homicide
counts, nor explained how a single trial on all the counts
in the indictment would prevent the jury from reaching
a reliable verdict. The court therefore denied his motion
to sever.
The case proceeded to trial, and the government pre-
sented 57 witnesses, including five of Zambrana’s and
Ervin’s co-conspirators who described the inner-workings
of the drug-trafficking ring. As relevant to this appeal,
three of Zambrana’s and Ervin’s cohorts—Carlos Ripoll,
Denny Arreola, and Tony Clinton—explained how
Zambrana and Ervin participated in the conspiracy, and
described Zambrana’s and Ervin’s roles in the murder of
Hurtado and Nevarez.
In a nutshell, Ripoll, Arreola, and Clinton together
testified that (1) Zambrana approved of Ripoll’s and
Arreola’s plan to rob Hurtado and Nevarez of their co-
caine and murder them; (2) Zambrana ordered Ervin to
coordinate and to execute the heist and killings; (3) in
Nos. 05-4700 & 06-1834 5
accordance with the plan, Ervin “arrested” Hurtado and
Nevarez during a sham traffic stop, took their cocaine, and
drove the two men to the Puerto Rican Benefica Club in
Gary; (4) at the Benefica Club, Arreola witnessed Ervin and
another co-conspirator, Gabriel Benavides, strangle
Hurtado and Nevarez; (5) Zambrana ordered Clinton
to help Ervin dispose of the bodies; (6) Clinton helped
Ervin load the bodies into the trunk of a car, followed
him in another car as they drove to the south side of
Chicago, Illinois, and watched as Ervin set the car on fire
in a secluded alley (where the Chicago Fire Department
would later find it and the two bodies it contained); and
(7) on the return trip to Gary, Ervin described in graphic
detail to Clinton how he and Benavides strangled
Hurtado and Nevarez.
Zambrana’s and Ervin’s attorneys thoroughly impeached
Ripoll’s, Arreola’s, and Clinton’s testimony. The defense
asked pointed questions to each man about how he was
originally charged with participating in the drug-traffick-
ing conspiracy, and forced the men to admit that they
agreed to testify against Zambrana and Ervin only after
the government offered them immunity from the
homicide counts or reduced sentences as to the drug-
conspiracy counts. Arreola, in particular, was questioned
further about his role in Hurtado’s and Nevarez’s robbery
and murders, and was forced to admit that he had lied
to the police when they first interviewed him about the
crime. The defense also got the three men to admit that
they had several opportunities to communicate with
each other after they had agreed to testify against
Zambrana and Ervin; Arreola similarly admitted that
6 Nos. 05-4700 & 06-1834
while he was housed in the Metropolitan Correctional
Center (“MCC”) in Chicago during trial, a guard smuggled
a cell phone to him, and that he used the phone to
make unmonitored telephone calls. The defense also
questioned Arreola about his membership in the
notorious Latin Kings street gang. And in their con-
tinuing effort to impeach Arreola, the defense called a
character witness to testify that Arreola was untrustworthy
and had a reputation for stealing, and also called an
inmate at the MCC who claimed that, while Arreola was
detained there, he had stated that Zambrana had nothing
to do with the murders. Arreola’s credibility was further
attacked in the defense’s closing arguments.
Before the jury retired to deliberate, the district court
carefully instructed it on how to weigh the evidence
regarding the many crimes alleged. Specifically, the
court informed the jury that “[e]ach count of the
[i]ndictment charge[d] each defendant named in that
count with having committed a separate offense”; stated
that the jury “must give separate consideration both to
each count and to each defendant”; and ordered the jury
to “consider each count and the evidence relating to it
separate and apart from every other count.” The jury then
entered into its deliberations, and subsequently found
Zambrana and Ervin guilty on all counts.
Both Zambrana and Ervin remained in custody awaiting
sentencing for over two years. But then in November 2005,
the United States Attorney’s Office sent a letter to
Zambrana’s and Ervin’s attorneys, stating that it had
recently learned that while Arreola was detained at the
Nos. 05-4700 & 06-1834 7
Hammond City Jail before trial, he engaged in various
incidents of misconduct with some of the jail’s personnel.
The letter stated that, among other things, Arreola had
been permitted to smoke cigarettes in the jail garage
area unsupervised, to have sexual intercourse with
female visitors, to make unmonitored telephone calls, and
to receive visits at the jail without first placing his
visitors on the jail’s visitors log. The letter also detailed
that Arreola had a “personal relationship” with a female
guard, and that other guards had thrown a birthday
party for Arreola’s girlfriend, had purchased food for
him, and had allowed visitors to give him Xanax. Never-
theless, the letter emphasized that the United States
Attorney’s Office and “the federal investigators involved
with the Jay Zambrana prosecution and trial” were not
aware of the misconduct before the trial. Instead, the
letter continued, the Office had learned of the miscon-
duct only after an investigation undertaken by the
United States Marshals and the FBI confirmed that the
misconduct had, in fact, occurred; that investigation, the
letter stated, had been completed just “recently.”
Ervin filed a motion for new trial shortly after receiving
the United States Attorney’s letter. Ervin contended that
the newly discovered evidence of Arreola’s misconduct
at the Hammond City Jail warranted a new trial so he
could use the information to impeach Arreola. Ervin also
alleged that the government had been aware of Arreola’s
misconduct before trial, and thus contravened Brady by
suppressing the evidence of that malfeasance. Ervin did
not, however, request an evidentiary hearing on his
motion, and instead went forward with sentencing. And
8 Nos. 05-4700 & 06-1834
at his sentencing hearing, Ervin accepted the govern-
ment’s representations regarding both Arreola’s miscon-
duct and its lack of knowledge of the misconduct, but
contended that the revelations nevertheless justified
a new trial.
The district court rejected Ervin’s arguments, concluding
that the evidence of Arreola’s misconduct did not war-
rant a new trial as newly discovered impeachment evi-
dence because, among other things, Arreola already had
been thoroughly impeached. Moreover, the court contin-
ued, Ervin failed to show that the government suppressed
the evidence of Arreola’s malfeasance: “There was no
evidence offered that any [federal] agency knew of the
violations taking place at the Hammond City Jail or that
it should have been known by the prosecutors.” And even
if the government had suppressed the evidence of
Arreola’s misconduct, the court continued, the sup-
pression could not have run counter to Brady because the
evidence was merely cumulative impeachment evidence.
The court thus denied Ervin’s motion and sentenced
him to life imprisonment.
Zambrana also filed a motion for new trial, mostly
echoing the newly discovered evidence and Brady argu-
ments put forward by Ervin, and further asserting that
the government withheld evidence showing that Ripoll,
Arreola, and Clinton discussed their testimony before
trial as part of a greater plan to frame Zambrana for
Hurtado’s and Nevarez’s murders. But unlike Ervin,
Zambrana requested an evidentiary hearing on his mo-
tion. The district court agreed to Zambrana’s request,
Nos. 05-4700 & 06-1834 9
continued his sentencing hearing, and determined that
it would hear evidence regarding Zambrana’s motion at
the rescheduled sentencing hearing itself.
At the hearing, Zambrana presented nine witnesses in
an attempt to show that the government knew of, and
suppressed, Arreola’s misconduct and his ability to
coordinate his testimony with Ripoll and Clinton. For
instance, Zambrana called as a witness Trinidad Cruz, an
inmate at the MCC who testified that before Zambrana’s
and Ervin’s trial, he, Arreola, and Clinton were transferred
together from the MCC to the jail in Porter County, Indi-
ana, and that during the trip Arreola and Clinton “were
all talking together.” Cruz did not state, however, that
Arreola and Clinton were “talking” about their testi-
mony. Zambrana called Ripoll, Arreola, and Clinton to
testify as well, but each man denied that they had coordi-
nated their testimony, and further stated that they had not
discussed their testimony before trial beyond the dis-
cussions to which they had already admitted at trial.
The district court rejected Zambrana’s arguments with
the same reasoning that it had used to deny Ervin’s
motion: the evidence of Arreola’s misconduct did not
warrant a new trial because Arreola had already been
thoroughly impeached; there was nothing to suggest that
the government knew of or suppressed the evidence of
Arreola’s misconduct; and even if the government had
suppressed the evidence of misconduct, the suppression
would not have run afoul of Brady because the evidence
was merely cumulative impeachment evidence. The court
also determined that though Zambrana showed that
10 Nos. 05-4700 & 06-1834
Ripoll, Arreola, and Clinton had opportunities to discuss
their testimony before trial, he nevertheless failed to
point to specific evidence that “the government knew that
any conversation between [the three men] took place
other than what was disclosed.” The court accordingly
denied Zambrana’s motion for new trial, and subsequently
sentenced him to life imprisonment.
II. A NALYSIS
Zambrana and Ervin raise two arguments on appeal.
First, Zambrana argues that the district court incorrectly
denied his motion to sever the homicide counts in the
indictment from the drug-conspiracy counts. Next,
Zambrana and Ervin together challenge the district
court’s denial of their motions for new trial. We address
these arguments below.
A. The district court’s denial of Zambrana’s motion to sever
We first address the district court’s denial of Zambrana’s
motion to sever the homicide counts from the drug-con-
spiracy counts, a decision that we review for abuse of
discretion. See United States v. Rice, 520 F.3d 811, 817 (7th
Cir. 2008). Under Fed. R. Crim. P. 8(a), an indictment
may charge a defendant with two or more offenses in
separate counts if the offenses charged “are of the same
or similar character, or are based on the same act or
transaction, or are connected with or constitute parts of a
common scheme or plan.” Fed. R. Crim. P. 14(a), however,
states that if the joinder of offenses “appears to prejudice
Nos. 05-4700 & 06-1834 11
a defendant,” then the district court may order separate
trials for the different offenses. The potential sources
of prejudice are many. For instance, the joinder might
impermissibly coerce a defendant “into testifying on a
count upon which he wishes to remain silent.” United States
v. Archer, 843 F.2d 1019, 1022 (7th Cir. 1988); see also United
States v. Nettles, 476 F.3d 508, 516-17 (7th Cir. 2007). Like-
wise, the joinder may prejudice the defendant by creating
a “spill-over effect”—that is, that the jury relies on evi-
dence presented on one set of counts when reaching a
conclusion on the other set. See United States v. Dixon, 184
F.3d 643, 645-46 (7th Cir. 1999); United States v. Freland, 141
F.3d 1223, 1226-27 (7th Cir. 1998).
But whatever the source of the purported prejudice, the
defendant bears a heavy burden on appeal when arguing
that the prejudice warranted severance. It is not enough
for the defendant to show that separate trials for the
charges “ ‘may have provided him with a better opportu-
nity for acquittal.’ ” Dixon, 184 F.3d at 645 (quoting
United States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998)).
Instead, the defendant must establish that the denial of
severance actually prejudiced him by preventing the
jury from arriving at a reliable judgment as to guilt or
innocence. See id.; Alexander, 135 F.3d at 477; United
States v. Balzano, 916 F.2d 1273, 1282 (7th Cir. 1990).
Here, Zambrana argues that he was “unfairly and
materially prejudiced by the joinder of the [h]omicide
[c]harges to the [d]rug-[conspiracy] [c]harges.” Zambrana
explains that the joinder “prevented him from testifying
in his defense” against the homicide allegations. Specifi-
12 Nos. 05-4700 & 06-1834
cally, Zambrana continues, but for the joinder of the
homicide and drug-conspiracy counts, he would have
testified that on the night of Hurtado’s and Nevarez’s
murders he was gambling on riverboats, nowhere
near the two men. But because the indictment alleged
that he had gambled on riverboats to launder his drug
money, Zambrana posits that, had he opted to testify as
to his alibi, he would have necessarily implicated himself
on the money-laundering counts. Zambrana further
contends that the district court was aware that he
wished to testify as to his alibi. As he points out, he filed
a notice of an affirmative defense, in which he stated
that during the period of time that the government had
alleged that Hurtado and Nevarez were murdered, he
“was gambling on the casino boats.” Thus, Zambrana
argues, the district court incorrectly concluded that he
failed to support his motion to sever by not producing
the “specific testimony he intend[ed] to give” regarding
the homicide counts.
Zambrana’s argument is meritless. When seeking to
sever charges on the ground that he wishes to testify to
some charges but not to others, a defendant must offer “ ‘a
convincing showing that he has both important testimony
to give concerning one count and [the] strong need to
refrain from testifying on the other.’ ” Archer, 843 F.2d at
1022 (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.
Cir. 1968)); see also Alexander, 135 F.3d at 477. A defendant’s
“general assertions” about the testimony he seeks to
offer will not suffice; he must proffer “specific examples
of the exculpatory testimony” that he would give but
for the joinder of the counts. Alexander, 135 F.3d at 477;
Nos. 05-4700 & 06-1834 13
see also Balzano, 916 F.2d at 1283. But in his motion to
sever, Zambrana provided no such pointed examples of
the “exculpatory testimony” he wished to provide; he
merely stated that he “wish[ed] to testify” in his own
defense against the homicide counts, but “[t]hat combining
all the counts at one trial” would prevent him from
doing so. And the fact that Zambrana submitted a notice
to present an alibi defense does not mitigate his vague
proffered justification for severance. Nowhere in the
notice did Zambrana state that he wished to testify that
he was gambling when Hurtado and Nevarez were mur-
dered. In fact, Zambrana expressly stated that he would
“rely on records provided by the [g]overnment” to estab-
lish his alibi, and not on his own testimony. In all,
Zambrana presented nothing more than “general asser-
tions” that, absent the severance, he would not be able
to testify as to the homicide charges—a showing that was
insufficient to show that severance was necessary. See
Alexander, 135 F.3d at 477; Balzano, 916 F.2d at 1283.
Zambrana also contends that severance was necessary
to avoid a prejudicial “spill-over effect” from the drug-
conspiracy counts to the homicide counts. According to
Zambrana, the government’s case against him on the
homicide counts was “weak,” and the joinder of the
homicide counts with the drug-conspiracy counts
caused him to “suffer a spill-over effect of the stronger
evidence of the [d]rug-[conspiracy] [c]harges onto the
more circumstantial and flimsy evidence supporting
the [h]omicide [c]harges.” Thus, Zambrana argues,
“[a]llowing the same jury to hear all of the evidence and
decide all of the charges together . . . created an unreason-
14 Nos. 05-4700 & 06-1834
able risk that the jury decided the [h]omicide [c]harges
based on the stronger evidence presented in support of
the [d]rug-[conspiracy] [c]harges.”
But Zambrana ignores that the district court instructed
the jury to consider each count and its related evidence
separately. Specifically, the court instructed the jury to
“consider each count and the evidence relating to it
separate and apart from every other count.” We presume
a jury “ ‘attend[s] closely [to] the particular language of the
trial court’s instructions in a criminal case,’ ” including
when the jury is “ ‘instructed to consider each count and
the relating evidence separately.’ ” United States v. Stokes,
211 F.3d 1039, 1043 (7th Cir. 2000) (quoting United States v.
Coleman, 22 F.3d 126, 135 (7th Cir. 1994), and United States
v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998)). We find
nothing in the record that would make us “ ‘suppose that
[the jury] would disregard’ ” the district court’s instruc-
tions in this case, and Zambrana points to no evidence that
reveals that the jury ignored the court’s instructions. Id.
(quoting Coleman, 22 F.3d at 135); see also United States v.
Stillo, 57 F.3d 553, 557 (7th Cir. 1995); United States v.
Boykins, 9 F.3d 1278, 1289 (7th Cir. 1993). And because the
district court’s instructions provided “ ‘an adequate safe-
guard’ ” against “ ‘evidentiary spillover and cumulation of
evidence,’ ” Balzano, 916 F.2d at 1282 (quoting United States
v. Moya-Gomez, 860 F.2d 706, 768 (7th Cir. 1988)), we cannot
say that Zambrana was prejudiced by the district court’s
denial of his motion to sever, see United States v. Moore,
363 F.3d 631, 642 (7th Cir. 2004) (stating that limiting
instruction “adequately handled any risk of prejudice” to
Nos. 05-4700 & 06-1834 15
defendant), vacated in part by Young v. United States, 543
U.S. 1100 (2005), and Jackson v. United States, 543 U.S. 1100
(2005), in light of United States v. Booker, 543 U.S. 220 (2005).
B. The district court’s denial of Zambrana’s and Ervin’s
motions for new trial
Next, Zambrana and Ervin both challenge the district
court’s denial of their motions for new trial—a decision
that also rested within the court’s discretion. See United
States v. Palivos, 486 F.3d 250, 254 (7th Cir. 2007). Zambrana
and Ervin each assert that the district court abused that
discretion by failing to conduct an evidentiary hearing
(in Ervin’s case) and by holding an inadequate
evidentiary hearing (in Zambrana’s case) before denying
their motions for new trial. As both men put it, the dis-
trict court failed to “inform its discretion” when conclud-
ing that the evidence of Arreola’s misconduct and the
government’s alleged suppression of that evidence did not
justify a new trial, and thus its denial of their motions
should be reversed.
However, Zambrana and Ervin have waived any chal-
lenge to the manner in which the district court weighed
the evidence in support of their motions by failing to
object to the court itself regarding the way in which it
considered the evidence. See United States v. Haskins, 511
F.3d 688, 693 (7th Cir. 2007); United States v. Charles, 476
F.3d 492, 495-96 (7th Cir. 2007); United States v.
Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003) (“The
general rule within the Seventh Circuit is that if a party
16 Nos. 05-4700 & 06-1834
fails to file an objection with the district court, he or she
‘waives the right to appeal all issues, both factual and
legal.’ ” (quoting United States v. Brown, 79 F.3d 1499, 1503
(7th Cir. 1996))). Even more, Ervin did not request an
evidentiary hearing on his motion, and further accepted
the government’s representations regarding Arreola’s
misconduct and the government’s lack of knowledge of
the misconduct. Similarly, the district court granted
Zambrana’s request for an evidentiary hearing, and at that
hearing he was allowed to present nine witnesses in
support of his motion. The district court never attempted
to limit the scope of the hearing, and Zambrana never
objected to the manner in which the district court held
the hearing. And because both men failed to challenge
the manner in which the district court considered the
evidence related to their motions for new trial, we will not
address the issue here. See Haskins, 511 F.3d at 693; Charles,
476 F.3d at 495-96; Hernandez-Rivas, 348 F.3d at 598.
But even if Zambrana and Ervin had preserved their
challenges as to how the district court “informed its
discretion,” the arguments would have failed. Because
their substantive arguments in support of their motions
for new trial are meritless, any purported procedural
deficiency in the manner in which the district court
weighed the evidence would have been harmless. See
United States v. Kelly, 337 F.3d 897, 901-02 (7th Cir. 2003)
(holding that district court’s failure to hold evidentiary
hearing to ascertain whether defendant breached plea
agreement was harmless when it was clear defendant
breached agreement); see also Pinholster v. Ayers, 525
F.3d 742, 764 (9th Cir. 2008) (holding that “any error the
Nos. 05-4700 & 06-1834 17
district court may have committed” at evidentiary hearing
addressing ineffective-assistance-of-counsel claim was
harmless because defendant failed to show he was preju-
diced by counsel’s alleged shortcomings); Wyoming v.
Livingston, 443 F.3d 1211, 1225-26 (10th Cir. 2006) (stating
that district court’s failure to hold evidentiary hearing on
issue of removal was harmless where evidence clearly
supported removal: “In our view, to reverse and remand
to the district court for an evidentiary hearing (on noth-
ing), as the State requests, would be a colossal waste of
time and resources”).
Specifically, the evidence of Arreola’s misconduct did
not justify a new trial as newly discovered evidence. To
obtain a new trial based on newly discovered evidence,
a defendant must show, among other things, that the
evidence in question “is material and not merely impeach-
ing or cumulative,” and that it “probably would lead to an
acquittal in the event of a new trial.” United States v.
Hodges, 315 F.3d 794, 801 (7th Cir. 2003). And yet the
evidence of Arreola’s misconduct is both impeaching and
cumulative. The evidence did not show, as Zambrana
contended before the district court, that Arreola took
advantage of his unmonitored telephone calls and visits
in jail to discuss with Ripoll and Clinton how to testify.
The most that the evidence shows in that regard is that
Arreola could have made an unmonitored telephone call to
contact Ripoll or Clinton somehow, and that the three
men had opportunities to discuss their testimony while
they were detained together, such as when Arreola and
Clinton were being transferred from the MCC with Cruz.
But there is no evidence that suggests that the three
18 Nos. 05-4700 & 06-1834
men actually coordinated their testimony. To the contrary,
at the evidentiary hearing on Zambrana’s motion, Ripoll,
Arreola, and Clinton each testified that they did not
discuss their trial testimony beyond the discussions that
they had already described at trial.
If anything, then, the evidence of Arreola’s miscon-
duct would have been relevant to show that he was an
untrustworthy, criminal-minded, and manipulative
individual who had the propensity for deception and a
willingness to break the law. But at trial, Zambrana and
Ervin thoroughly impeached Arreola as to his drug-
trafficking past, his gang affiliation, his role in Hurtado’s
and Nevarez’s murders, the lies he previously told to the
police investigating the murders, and his misconduct at
the MCC. Both men even called character witnesses to
impugn Arreola’s credibility further.
It therefore is unlikely that more evidence describing
Arreola’s criminal nature—that is, his misconduct at the
Hammond City Jail—could sway a new jury to such an
extent as to lead it to acquit Zambrana or Ervin. This
is particularly so when Arreola was not the only witness
to testify that Zambrana and Ervin had helped scheme to
rob and to murder Hurtado and Nevarez. See United States
v. DePriest, 6 F.3d 1201, 1217 (7th Cir. 1993) (relying on
United States v. Taglia, 922 F.2d 413, 415 (7th Cir. 1991), to
determine that newly discovered impeachment evidence
did not warrant new trial because conviction was not
“premised on the demonstrably dubious testimony of a
single witness”).
Nos. 05-4700 & 06-1834 19
And because the proof of Arreola’s misconduct was
merely cumulative impeachment evidence, Zambrana’s
and Ervin’s Brady claims necessarily fail. Brady does not
extend to “[e]vidence that impeaches an already thor-
oughly impeached witness.” United States v. Kozinski, 16
F.3d 795, 819 (7th Cir. 1994); see also United States v. Bailey,
510 F.3d 726, 736 (7th Cir. 2007). Although Brady pro-
hibits the government from suppressing evidence that
could be used to impeach a government witness, see United
States v. Bagley, 473 U.S. 667, 676-77 (1985); Giglio v. United
States, 405 U.S. 150, 154 (1972); United States v. Dabney, 498
F.3d 455, 459 (7th Cir. 2007), the evidence must be for
“ ‘more than cumulative impeachment,’ ” Kozinski, 16 F.3d
at 819 (quoting United States v. Dweck, 913 F.2d 365, 371 (7th
Cir. 1990)); see also Bailey, 510 F.3d at 736; United States
v. Senn, 129 F.3d 886, 893 (7th Cir. 1997) (“Because the
defendants did impeach [the witness] on a number of
issues, they can’t really make a convincing argument
that additional impeachment had a reasonable probabil-
ity of changing the outcome of the trial.”). And because
Arreola was thoroughly impeached at trial, even if the
government had suppressed the evidence of Arreola’s
misconduct at the Hammond City Jail (which, given the
government’s explanations, we do not believe to be the
case), Zambrana’s and Ervin’s Brady claims would still
fail. See Bailey, 510 F.3d at 736; Kozinski, 16 F.3d at 819. We
thus cannot fault the district court for denying Zambrana’s
and Ervin’s motions for new trial.
20 Nos. 05-4700 & 06-1834
III. C ONCLUSION
We A FFIRM the district court’s denial of Zambrana’s
motion to sever, as well as the district court’s denials of
Zambrana’s and Ervin’s motions for new trial.
9-2-08