United States v. Anas Salem ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2034
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NAS S ALEM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:06-cr-181-LA-3—Lynn Adelman, Judge.
A RGUED JANUARY 14, 2009—D ECIDED A UGUST 25, 2009
Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. After a hotly contested jury trial,
Anas Salem was convicted of witness intimidation, in
violation of 18 U.S.C. § 1512(b)(2)(A), and possessing a
firearm in furtherance of that offense, in violation of
18 U.S.C. § 924(c)(1)(A)(ii). On appeal, he argues that
he deserves a new trial because, until it was too late to
be useful, the government failed to turn over evidence
2 No. 08-2034
that its star witness, Carlos Lopez, was involved in a
murder for which he has never been charged. The first
hint Salem had of this potential murder charge came
moments before Salem was to be sentenced when
counsel for the government handed his lawyer a copy of
a plea agreement for Benny Martinez, a defendant in
another federal criminal case. Martinez admitted in
that plea agreement that he had gunned down rival
gang member, Adan Sotelo. But the plea agreement
also discloses that Martinez wasn’t alone during this
murder. There with him, lying in wait for Sotelo, was
Carlos Lopez.
The plea agreement identifies Lopez by name, and it
indicates that Lopez made some form of statement about
the murder. Apparently, Lopez described how he and
Martinez hid in an alley gangway waiting for Sotelo, and
when Sotelo rounded the corner, Martinez shot him to
death. Lopez and Martinez then fled the murder scene
together, finding refuge at Martinez’s grandmother’s
residence a few blocks away. But Lopez has never been
charged with any crime related to his involvement in
the Sotelo homicide. That, Salem contends, raises an
inference that Lopez curried favor with the government
in exchange for his agreeing to testify against Salem. And
the fact that evidence of the Sotelo murder was not dis-
closed to him before trial is why he believes he deserves
a new one.
The district court denied his request, though, finding
that even if the evidence had been disclosed, there was
no reasonable probability of a different verdict. But, on
No. 08-2034 3
the record before us, we conclude that decision was
premature. Lopez’s statement about the Sotelo killing
has never been turned over to Salem nor has it even
been produced to the court. This raises questions about
whether other evidence favorable to Salem might be
lurking out there and not contained in the record. But
Salem didn’t get a chance to develop that record,
because the court denied his request for an evidentiary
hearing. We conclude that was an error. So we remand
for such a hearing.
I. Background
Lopez was the alleged victim (and the government’s
principal witness) on the witness intimidation and gun
charges against Salem. At trial, Lopez testified that Salem
accused Lopez of being a snitch against the Latin Kings
street gang (which he was) 1 , and that, along with another
Latin King, Marcus Colin, Salem beat him up and threat-
ened to shoot him. Salem’s attorney went to some length
to attempt to impeach Lopez’s credibility. She ques-
tioned Lopez about the RICO, drug, and gun charges
pending against him, and she raised the inference that
1
In the fall of 2005, that investigation resulted in an indictment
charging 49 gang members, including Lopez, Salem’s brother,
Sadam, and fellow Latin King, Marcus Colin, with racketeering
and related crimes. In addition to the RICO count, Lopez was
hit with a number of drug and gun counts, some of which
carried mandatory minimums, consecutive sentences, and
statutory maximums of life in prison.
4 No. 08-2034
Lopez was currying favor with the government. Defense
counsel specifically asked Lopez if he had heard of
U.S.S.G. § 5K1.1 or knew that cooperating with the gov-
ernment was the only way out from under the mandatory
minimums he faced. He denied knowing about any
benefit for cooperation but testified that he was cooperat-
ing simply because he was a victim.
Several other witnesses, including Lopez’s mother,
corroborated parts of Lopez’s story, though no one
testified to seeing the gun or the beating. Photos, how-
ever, showed some superficial injuries to Lopez’s neck
and face, consistent with the beating he says he suf-
fered. The jury convicted Salem, and the district
court sentenced him to 144 months of imprisonment.
Shortly after the court entered the judgment, Salem
moved for a new trial under Federal Rule of Criminal
Procedure 33 based on newly discovered evidence. That
evidence, Salem argued, revealed that the government
had violated Brady v. Maryland, 373 U.S. 83 (1963). This
new evidence came in the form of a plea agreement for
another Latin King member named Benny Martinez. The
plea agreement, disclosed to Salem’s counsel after
Salem was convicted—in fact, delivered to Salem’s
counsel just minutes before sentencing—revealed that
Martinez had pleaded guilty to the homicide of a rival
gang member, Adan Sotelo. The agreement also revealed
that Lopez had been involved in Sotelo’s murder. Appar-
ently, Lopez had admitted in a statement that Martinez
and he hid in an alley waiting for Sotelo, and when
Sotelo came around the corner, Martinez gunned him
No. 08-2034 5
down, and then he and Martinez ran from the murder
scene to hide together at the residence of Martinez’s
grandmother. Lopez had also stated that Sotelo was
killed on behalf of his gang, the Latin Kings, to prevent
Sotelo, a member of a rival gang (the Spanish Cobras),
from retaliating for a Latin Kings shooting that had
taken place shortly before the murder.
Salem’s counsel requested that the government disclose
all materials implicating Lopez in Sotelo’s murder. The
government turned over several eyewitness and police
reports, but none identified the perpetrators by name.
Moreover, no report contained any statements by Lopez,
even though such statements were referenced in the
Martinez plea agreement, and the government has not,
at least to this point, disclosed whether such statements
actually exist, and if so, in what form or who has
them. Lopez, however, has never been charged with
any crime related to the Sotelo homicide.
In his Rule 33 motion for new trial, Salem alleged that
the evidence of Lopez’s involvement in the Sotelo
homicide could be used to impeach Lopez’s testi-
mony—the jury could infer that Lopez was testifying
against Salem in exchange for the government not prose-
cuting Lopez for his participation in the Sotelo homicide.
(Even if Lopez was not the triggerman, he still could
face accomplice or accessory liability.) Hence, in Salem’s
view, the government’s failure to disclose this evi-
dence before trial violated Brady.
The district court concluded otherwise and, after denying
Salem’s request for an evidentiary hearing, denied
Salem’s motion for new trial. The court held that the
6 No. 08-2034
Sotelo homicide evidence would have been inadmissible,
and in any event, would not have given rise to a rea-
sonable probability of a different verdict. Salem appeals
that decision.2
2
A brief jurisdictional note before we address Salem’s claim on
the merits. Ordinarily, when a district court denies a Rule 33
motion for new trial based on newly discovered evidence, we
require the party to file a separate notice of appeal after the
district court rules on the Rule 33 motion, even if the defendant
has already appealed his conviction. See United States v.
Harvey, 959 F.2d 1371, 1377 (7th Cir. 1992) (“When a district
court denies a motion for new trial while an appeal from the
underlying judgment is pending, a separate, timely notice of
appeal ‘is a jurisdictional predicate to appellate review’ of the
denial of the new trial motion.”); see also Johnson v. United
States, 246 F.3d 655, 658-59 (6th Cir. 2001); United States v.
Douglas, 874 F.2d 1145, 1162 (7th Cir. 1989); cf. Ammons v.
Gerlinger, 547 F.3d 724, 726 (7th Cir. 2008) (per curiam) (dis-
cussing failure to file second notice of appeal and lack of
jurisdiction in civil cases); Kitchen v. United States, 227 F.3d
1014, 1017-22 (7th Cir. 2000) (same, in ineffective-assistance-of-
counsel context). But see United States v. Thornton, 1 F.3d 149, 157-
58 (3d Cir. 1990) (holding that appellate jurisdiction of denial
of motion for new trial not contingent on second notice of
appeal); United States v. Davis, 960 F.2d 820, 824 (9th Cir. 1992)
(same); United States v. Wilson, 894 F.2d 1245, 1251-52 (11th
Cir. 1990) (same); United States v. Burns, 668 F.2d 855, 858 (5th
Cir. 1982) (same).
Salem filed only one notice of appeal and did so months
before the district court denied his motion for new trial. So
ordinarily Salem would need a second notice. However, if a
defendant files his motion for new trial based on newly dis-
(continued...)
No. 08-2034 7
II. Discussion
Brady requires the government to disclose evidence
materially favorable to the accused. Youngblood v. West
Virginia, 547 U.S. 867, 869 (2006); Brady, 373 U.S. at 87. That
obligation extends to evidence that tends to impeach a
government witness. Youngblood, 547 U.S. at 869; United
States v. Bagley, 473 U.S. 667, 676 (1985). Failure
to disclose such evidence, whether intentional or inadver-
tent, can entitle the accused to a new trial. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). The Brady obligation
applies even when the suppressed evidence is known
only to police and not to prosecutors. Youngblood, 547
U.S. at 869-70.
The evidence of the Sotelo homicide was not disclosed
prior to trial (the government does not contend that it
only learned of this matter after trial) and was arguably
favorable to Salem. So Brady’s requirement that the undis-
closed evidence be materially favorable to the accused
is central to this case. The district court found the
Sotelo homicide evidence immaterial. That’s a decision
2
(...continued)
covered evidence no later than 10 days after entry of the
judgment, a second notice is not required. See Fed. R. App. P.
4(b)(3)(C) and 4(b)(3)(A)(ii); Trenkler v. United States, 268 F.3d
16, 21 & n.4 (1st Cir. 2001); cf. Ammons, 547 F.3d at 726 (explain-
ing 10-day rule in civil cases). Salem filed his Rule 33 motion
only 7 days after the judgment was entered. Being within the 10-
day limit, Salem’s first notice of appeal gives us jurisdiction
to hear his appeal of the district court’s denial of his Rule 33
motion.
8 No. 08-2034
we review for abuse of discretion. United States v.
Palivos, 486 F.3d 250, 255 (7th Cir. 2007).
Evidence is material “if there is a ‘reasonable probability’
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.”
Youngblood, 547 U.S. at 870 (quoting Strickler, 527 U.S. at
280); see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).
Of course, this means that only admissible evidence can
be material, for only admissible evidence could possibly
lead to a different verdict. United States v. Silva, 71 F.3d
667, 670 (7th Cir. 1995). To demonstrate a “reasonable
probability,” Salem must show that the government’s non-
disclosure “undermine[d] confidence in the verdict.”
Kyles, 514 U.S. at 435.
What troubles us about this case is that it appears
Salem never had a sufficient opportunity to make that
showing. Without an evidentiary hearing, we’re left
wondering what other evidence about Lopez’s involve-
ment in the Sotelo homicide is out there. Cf. United States
v. Dimas, 3 F.3d 1015, 1018 (7th Cir. 1993) (discussing
need for evidentiary hearing where record was inade-
quate to decide Brady issue). From Martinez’s plea agree-
ment, it appears Lopez gave a reasonably detailed state-
ment about the murder, and it implies that the state-
ment was given to law enforcement. And presumably
the federal government considers it to be reasonably
reliable—the same Office of the United States Attorney
that prosecuted Salem included a description of Lopez’s
statement in the Martinez plea agreement, asserting that
it was part of the facts that the government could intro-
duce at a trial of Martinez to prove his guilt of gang-
No. 08-2034 9
related crimes beyond a reasonable doubt. Yet, neither
Salem nor the district court has ever seen that statement.
Should there in fact be such a statement, it could
seriously undermine Lopez’s credibility.
From the government’s (and the district court’s) perspec-
tive, though, that doesn’t matter. The evidence would
have been inadmissible and, regardless, Lopez was thor-
oughly impeached at trial and the other witnesses’ testi-
mony and the injury photos corroborated his story. So,
according to the government, any way you slice it
the Sotelo homicide evidence is immaterial.
On the record as it stands now, we cannot be so categori-
cal. Proof of bias or motive to lie is admissible impeach-
ment evidence. United States v. Abel, 469 U.S. 45 (1984);
see also United States v. Manske, 186 F.3d 770, 777 (7th
Cir. 1999) (“[Proof of bias] is the quintessentially appro-
priate topic for cross-examination.” (quotation omitted)).
Indeed, exposing a witness’s motive to lie is a “core value”
of the Sixth Amendment’s Confrontation Clause. United
States v. Recendiz, 557 F.3d 511, 530 (7th Cir. 2009) (citing
United States v. Smith, 454 F.3d 707, 714 (7th Cir. 2006)).
And a party may introduce extrinsic evidence to show
it. United States v. McGee, 408 F.3d 966, 981-82 (7th Cir.
2005). Under these principles, courts routinely admit
evidence suggesting a witness curried favor with the
government in exchange for his testimony as proof of bias
or motive to testify falsely. E.g., United States v. Lindemann,
85 F.3d 1232, 1243 (7th Cir. 1996) (citing Abel, 469 U.S. at
53). So though the government is correct that F ED. R. E VID.
608(b) would bar Salem’s counsel from introducing
evidence of the Sotelo homicide to degrade Lopez’s
10 No. 08-2034
character, that evidence could be admissible to demon-
strate Lopez’s incentive to lie to avoid a murder charge.
See Abel, 469 U.S. at 55-56 (discussing how proof of bias
differs from evidence prohibited by Rule 608(b)).
The sparse record on the Sotelo homicide seems to
have tainted the district court’s consideration of admissi-
bility. The court held that the evidence would not have
been admissible as proof of bias, because, “There is no
evidence that Lopez has received a ‘pass’ for his involve-
ment in the Sotelo murder based on his cooperation in
this case, which could bear on his credibility.” United
States v. Salem, No. 06-CR-181, 2008 WL 3540471, at *6
(E.D. Wis. Aug. 13, 2008). The government restates this
argument on appeal. The court was correct that the
record lacks direct evidence that Lopez was given immu-
nity on a murder charge. But, as it stands now, the
record appears to be incomplete. And, from what Marti-
nez’s plea agreement says about Lopez’s statements to
police, it likely is incomplete. If there’s some additional
evidence contained in law enforcement files that
suggests Lopez was involved with the murder, or that
he received a benefit for cooperating with the govern-
ment, such information could prove favorable to Salem.
The plea agreement alone suggests that Lopez was a
participant in the lying-in-wait murder to protect the
Latin Kings’ interests, and not a mere witness. And even
without a note from the U.S. Attorney or the local D.A.
expressly outlining a no-charges-for-testimony quid pro
quo, such evidence could be admissible to show Lopez’s
motive to testify against Salem. However, without an
evidentiary hearing, Salem was cut short in demon-
No. 08-2034 11
strating that Lopez’s involvement in the Sotelo
homicide shows bias.
The same goes for the government’s (and the district
court’s) comparison to our decision in United States v.
Pulido, 69 F.3d 192 (7th Cir. 1995), and the argument
that the Sotelo homicide evidence would only distract
the jury and thus be inadmissible under F ED. R. E VID.
403. In Pulido, the defense sought to question one of the
government’s key witnesses about his potential involve-
ment in a triple murder to suggest that the witness’s
“uncomfortable status as a murder suspect . . . led him to
cooperate with the government.” 69 F.3d at 199. The
district court blocked that line of questioning because
the court concluded it would only distract the jury. Id. at
202. We upheld that decision, in part, because the
record lacked any evidence that the witness was
involved in the murders. Id. Police had “ruled out [the
witness] as a suspect in the murders,” the witness
was not identified as the perpetrator in two police
lineups, and a witness to the triple murder stated clearly
that the Pulido witness was not at the scene. Id. at 198.
In this case, however, the record does not support the
notion that Lopez was blameless in the Sotelo murder. In
fact, the record implies the opposite. And even though
at trial Lopez denied knowing about any benefit whatso-
ever he might receive for testifying, such as a lower
sentence under U.S.S.G. § 5K1.1, he was never asked
about the murder and why he hasn’t been charged. So
notwithstanding any denial of a benefit for testifying,
defense counsel was never able to raise the inference
of such a benefit for the jury. Without further develop-
12 No. 08-2034
ment of the record, we cannot determine whether the
probative value of the Sotelo homicide evidence was
substantially outweighed by the danger that such evidence
will mislead or confuse the jury. See F ED. R. E VID. 403.
The government further contends that this evidence is
inadmissible because it’s cumulative of other impeach-
ment based on Lopez’s motive to lie. This contention
dovetails into the second portion of the government’s
overall argument (accepted by the district court) that the
Sotelo homicide is immaterial for Brady purposes. From
that perspective, it’s just one more shred of impeach-
ment evidence, of which the jury heard a great deal.
We recognize that, ordinarily, newly discovered im-
peachment evidence will not warrant a new trial under
Brady. See, e.g., United States v. Reyes, 542 F.3d 588, 596
(7th Cir. 2008). It’s often cumulative of other impeach-
ment evidence presented at trial. See, e.g., United States v.
Ervin, 540 F.3d 623, 631-32 (7th Cir. 2008). But that’s not
a categorical rule. See United States v. Taglia, 922 F.2d
413, 415 (7th Cir. 1991). We’ve recognized that in some
instances, such as when the government’s case rests
“entirely on the uncorroborated testimony of a
single witness,” new impeachment evidence could be
material. Id.
True, Lopez was not the government’s only witness
and his testimony was corroborated to some extent. But
he was the government’s star witness—without him,
there simply is no case at all on these charges. No other
witness saw a gun or the beating. Nor was the other
evidence in any way overwhelming. For example,
No. 08-2034 13
Lopez’s friend, Shane Bach, testified that he was with
Lopez early on the night of the crime in question. Bach
testified that he heard Salem ask Lopez why he was
“snitching” and heard Salem or Marcus Colin ask the
other whether he had “one in the chamber,” referring to
whether a gun was loaded and ready to fire. But Bach
never saw the gun. And Bach later admitted that he
never heard Salem threaten Lopez and that they were
talking about people who they heard were cooperating
against the Latin Kings. Bach also did not witness the
alleged beating.
Lopez’s mother also corroborated part of her son’s
story—she said she saw Lopez with Salem earlier in the
evening and Lopez looked worried while he scrambled
around the house looking for “paperwork” (which Lopez
testified he told Salem was how he would prove that
he wasn’t a snitch). Lopez’s mother saw Lopez leave, and
testified that when we came back, he had injuries to his
neck and face (which the photos also confirmed). But
again, Lopez’s mother never saw a gun, nor heard any
threats or intimidation. And a mother’s desire not to see
her son behind bars might also decrease the weight of
her testimony, though we recognize that to be a jury
concern, not ours.
The only other relevant witness was an FBI Agent who
interviewed Marcus Colin, who refused to testify
after being called to the stand. But the way in which
information from Colin’s interview came into evidence
was odd. Though being called to the stand by the defense,
the agent mentioned that Colin told him that Salem had
14 No. 08-2034
a gun and had orchestrated the Lopez kidnapping.
Beyond its strange introduction, we see other reasons to
question the impact of this testimony. The government
didn’t mention it at closing arguments nor in its appellate
briefs. And the district court didn’t mention it in its
opinion either. So it’s debatable whether this testimony
reached the jury’s ears with any force.
In the end, this case came down to whether the jury
believed Lopez’s story. He was the victim. No other
witness provided a complete narrative, start to finish, of
the events that led to Salem’s charges. No one saw the
gun, heard the threats, or saw the beating. Other evidence
corroborated only bits and pieces of Lopez’s account. So
his credibility was crucial, and bottom line, was the
only real issue the jury had to decide.
Nonetheless, as the government points out, Salem’s
counsel attempted to attack Lopez’s credibility at trial
by asking him about his motive to lie. Counsel cross-
examined Lopez on the RICO, drug, and gun counts
that he was facing, some of which carried a maximum
sentence of life in prison and mandatory minimums of
five and ten years. And she asked whether Lopez was
testifying in exchange for leniency—she specifically
asked whether he had heard of “substantial assistance”
and U.S.S.G. § 5K1.1. Though Lopez denied it, Salem’s
counsel tried to raise the inference of an incentive to
testify falsely to curry favor with the government. This
is essentially the same basis on which Salem would seek
to introduce the Sotelo homicide matter.
Still, on the sparse record before us, we are uncon-
vinced that every possible piece of evidence of Lopez’s
No. 08-2034 15
participation in the Sotelo homicide must be immaterial.
This is not just evidence of another drug or gun crime.
Murder is fundamentally different from other offenses.
As the Supreme Court recently acknowledged, “there is
a distinction between intentional first-degree murder
on the one hand and nonhomicide crimes against individ-
ual persons, even including child rape, on the other.”
Kennedy v. Louisiana, 128 S. Ct. 2641, 2660 (2008). All
other crimes against individuals “cannot be compared to
murder in their ‘severity and irrevocability.’ ” Id. (citing
Coker v. Georgia, 433 U.S. 584, 598 (1977)). Indeed, first-
degree murder holds a unique position in our society’s
notion of criminality. That first-degree murder is the
only crime against the person that commands the death
penalty, the Justices have observed, “is an expression of
the community’s belief that certain crimes are them-
selves so grievous an affront to humanity that the only
adequate response may be the penalty of death.” Gregg v.
Georgia, 428 U.S. 153, 184 (1976). So to say that there is
no reasonable probability that the jury could reach a
different result, even if the evidence showed that the
government’s star witness was never charged for his
direct involvement in a violent gang murder, ignores the
differences between the drug and gun crimes about
which Lopez was questioned and first-degree homicide.
Not only does society view murder differently than
other crimes, but so might Lopez, which could show an
enhanced incentive to lie. For impeachment purposes, a
criminal defendant on trial is entitled to reveal to the
jury not only what benefits a witness is receiving, but
also what he perceives he may receive. As we just
16 No. 08-2034
noted, murder puts a different kind of penalty in play.
Though murder is not generally a federal offense, and
Wisconsin does not have the death penalty (Wisconsin’s
stiffest sentence is life without parole, see W IS. S TAT.
§§ 940.01(1); 939.50(3)(a); 973.014(1g)), Lopez faced
charges under RICO for his gang-related activities.
Murder committed “for the purpose of . . . maintaining or
increasing position in an enterprise engaged in racketeer-
ing activity” is punishable by death. 18 U.S.C. § 1959(a)(1).
So although Salem’s counsel made the jury aware of
Lopez’s possible life sentences, the jury never heard
about a possible sentence of death. (And it did not
hear about the potential effect of a Wisconsin murder
sentence of life without parole.) If agreeing to testify
meant the difference between life and death, the jury
might have inferred that Lopez had an even more power-
ful incentive to take the stand and testify favorably for
the government. In this sense, though impeaching, evi-
dence of the Sotelo murder might not be cumulative
of other impeachment evidence.3 On this record, though,
we cannot come to a firm conclusion on this important
question.
To be sure, we are not granting Salem a new trial. But
we are not affirming the denial of one either. Without a
3
Moreover, Lopez across the board denied any knowledge
of any benefit for testifying. Of course, the jury was free not to
believe him. But his not admitting to even being aware of
“substantial assistance” or U.S.S.G. § 5K1.1 diminishes the
value of the impeachment evidence by some measure, however
slight.
No. 08-2034 17
fuller record, we cannot sufficiently review whether the
Sotelo homicide evidence was material. The record indi-
cates that at least some evidence, that of a statement
of Lopez himself and the conditions under which he
made it, is still unrevealed. With that in mind, we recall
our opinion in United States v. Dimas, which reflects
precisely the rationale for our decision in this case:
Though we recognize the experienced district
judge’s familiarity with all aspects of this case, the
somewhat sparse record leaves us with serious
questions about what impact the Brady material
might have had on the jury. Because of these linger-
ing doubts we feel compelled to vacate the order
denying a new trial and remand for the limited
purpose of allowing the district court to hold an
evidentiary hearing on this issue.
Dimas, 3 F.3d at 1018 (citing Barkauskas v. Lane, 878 F.2d
1031, 1034 (7th Cir. 1989)). On remand, the court must
first satisfy itself that all the evidence of Lopez’s role in
the Sotelo homicide has been turned over. Then the court
should consider whether the evidence was actually sup-
pressed by the prosecution and whether Salem could
have uncovered it with reasonable diligence. Id. at 1018-19.
Next, the court should reexamine the admissibility of
that evidence. Id. at 1019. Finally, should the court con-
clude the evidence would be admissible, the court
should examine whether there is a reasonable probability
that the outcome in Salem’s case would change. Id.
18 No. 08-2034
III. Conclusion
We V ACATE the denial of Salem’s motion for a new
trial and R EMAND for an evidentiary hearing consistent
with this opinion.
8-25-09