3 F.3d 1015 (7th Cir. 1993), 92-2975, United States v. Dimas

Docket Nº:92-2975, 92-2976, 93-1688 and 93-1884.
Citation:3 F.3d 1015
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Peter S. DIMAS and Ramon Roman, Defendants-Appellants.
Case Date:August 18, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1015

3 F.3d 1015 (7th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Peter S. DIMAS and Ramon Roman, Defendants-Appellants.

Nos. 92-2975, 92-2976, 93-1688 and 93-1884.

United States Court of Appeals, Seventh Circuit

August 18, 1993

Argued July 8, 1993.

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Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Robert Christopher Cook (argued), Office of the U.S. Atty., Chicago, IL, for U.S.

Marvin Bloom (argued), James LaVecchia, Chicago, IL, for Peter S. Dimas.

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James LaVecchia, Bruce Cowan (argued), Chicago, IL, for Ramon Roman.

Before CUDAHY and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

PER CURIAM.

A jury convicted the defendants of various drug offenses. These consolidated appeals challenge those convictions on three grounds. Two of the grounds lack merit. However, the record is insufficient for us to review the third, which concerns the denial of a motion for a new trial, so we vacate that ruling and remand for an evidentiary hearing limited to that issue.

I.

On April 23, 1991, Peter Dimas and Ramon Roman were caught selling a kilogram of cocaine to an undercover DEA agent. They were indicted on charges of conspiracy, possession with intent to distribute, and distribution of a controlled substance, all within 1000 feet of an elementary school. 21 U.S.C. Secs. 841(a)(1), 846, 860 and 18 U.S.C. Sec. 2. Dimas was also charged with distributing a smaller amount of cocaine to the same agent a month earlier. A joint trial was scheduled and both defendants moved for a severance, arguing that their defenses were mutually antagonistic. Dimas's defense was entrapment, while Roman claimed to have been an innocent dupe who did not understand what was going on. The court denied the motions and the jury convicted on all counts.

These consolidated appeals raise three issues: (1) Should the district court have granted the defendants' motion for a new trial based on evidence withheld by the prosecution? (2) Should the district court have severed the cases and ordered separate trials? and (3) Is the government required to prove, and if so did it fail to prove, that Dimas had the intent to be within 1000 feet of a school when committing the offenses? Though we find no error on the last two points, we vacate the district court's denial of the motion for a new trial and remand for an evidentiary hearing.

II.

  1. Failure to Disclose Evidence

    Several months after their convictions Dimas and Roman both requested a new trial based on the government's failure to disclose certain evidence concerning DEA agent Wysocki, its primary witness. This evidence, they assert, was known to the prosecutors before trial and might have led to an acquittal, so they are entitled to a new trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

    The evidence in question pertains to an Assistant United States Attorney's (AUSA) allegation that agent Wysocki falsified a DEA report in an earlier case, United States v. Afutu. Specifically, the AUSA believed that Wysocki had back-dated a DEA report and included information he did not learn until later in order to justify the receipt of a heroin sample from a confidential informant. The DEA prohibits agents from receiving drug samples until a specific case has been initiated regarding such transactions, and the AUSA thought Wysocki had accepted a sample before that time and back-dated a report to cover it up. There was also concern that Wysocki's description of the sting of Afutu to the AUSA differed from his grand jury testimony. Wysocki denied any misconduct and stated that all of his actions were in line with DEA policy.

    As a result of the allegation the indictment in Afutu was voluntarily dismissed pending further review. Supervising U.S. Attorneys met with Wysocki's DEA supervisors to discuss the situation and decided to refer the matter to the Office of Professional Responsibility at either the Department of Justice or the DEA. At the time of trial the investigation was still pending.

    To prevail on a Brady claim and win a new trial, the defendants must show that the evidence was favorable to them, was suppressed by the prosecution, and was material to the case. United States v. White, 970 F.2d 328, 337 (7th Cir.1992). The evidence here was not disclosed by the prosecution and was arguably favorable to the defendants, so the main question is whether it was

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    material. Evidence is material under Brady if, had it been disclosed, there is a reasonable probability that the outcome of the trial would have been different. Pennsylvania v. Ritchie, 480 U.S. 39, 57, 107 S.Ct. 989, 1001, 94 L.Ed.2d 40 (1987); United States v. Bagley, 473 U.S. 667, 678, 685, 105 S.Ct. 3375, 3381, 3385, 87 L.Ed.2d 481 (1985). A "reasonable probability" is one sufficient to undermine confidence in the outcome. Ritchie, 480 U.S. at 57, 107 S.Ct. at 1001; Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Evidence bearing on a witness's credibility can be material when it has significant impeachment value. Bagley, 473 U.S. at 676, 105 S.Ct. at 3380; Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972).

    Dimas and Roman assert that the evidence was material because if they had known of it at the time the trial might have ended differently. They believe that they could have used that information to attack agent Wysocki's credibility, and since Wysocki was the government's key witness impeaching him could have swayed the jury to acquit. Further, Dimas contends that he could have used it to support his entrapment defense; the allegation concerned irregularities in Wysocki's dealings with a confidential informant, and Dimas was arguing that the informant in his case had unduly enticed him to commit a crime. Thus the defendants conclude that the government deprived them of a fair trial by not disclosing crucial information.

    The government argues that the evidence here was not material because it would not have been admissible at trial. "Information withheld by the prosecution is not material unless the information consists of, or would lead directly to, evidence admissible at trial for either substantive or impeachment purposes." United States v. Phillip, 948 F.2d 241, 249 (6th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1994, 118 L.Ed.2d 590 (1992); United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir.1989); United States v. Ranney, 719 F.2d 1183, 1190 (1st Cir.1983); United States v. Wigoda, 521 F.2d 1221 (7th Cir.1975). It maintains that the evidence would have been excluded under Federal Rules of Evidence 404(b) and 608(b), and...

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