U.S. v. Dimas, s. 92-2975

• Citation: 3 F.3d 1015
• Decision Date: 18 August 1993
• Docket Number: 93-1688 and 93-1884,Nos. 92-2975,92-2976,s. 92-2975
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter S. DIMAS and Ramon Roman, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1015

3 F.3d 1015

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.

Argued July 8, 1993.

Decided Aug. 18, 1993.

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.

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.

A. 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 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 therefore could not have affected the trial's result. The district court agreed with the government, denying the defendants' motion for a new trial without holding a hearing. It found that the evidence would be irrelevant for any substantive purpose other than to show that Wysocki had a propensity for falsifying reports, and thus was inadmissible under Rule 404(b). Also, even if the evidence could be admitted for impeachment on cross-examination under Rule 608(b), Wysocki would have denied the allegation, and the defendants could not have contradicted his answer with extrinsic evidence. United States v. Abel, 469 U.S. 45, 55, 105 S.Ct. 465, 470, 83 L.Ed.2d 450 (1984). And even if extrinsic evidence had been allowed, the court found that there was still ample proof to convict, so any such evidence would not have changed the result.

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 lingering 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. Cf. Barkauskas v. Lane, 878 F.2d 1031, 1034 (7th Cir.1989) (remanding for evidentiary hearing where record was inadequate to decide Brady issue). While the court may direct the hearing toward any matters it deems relevant, it should make a concerted effort to address the questions set forth below. After the hearing the court should make written findings and conclusions and enter its ruling on the motion for new trial.

A preliminary question for the court to consider is whether the evidence here was actually suppressed by the prosecution. Though the prosecutors admit that they did not disclose it, and do not argue that they did not know of it before trial, ¹ there is still the question whether the defendants might have obtained the evidence themselves with reasonable diligence. If they could, then the evidence was not "suppressed" under Brady and they would have no claim. White, 970 F.2d at 337. On the other hand, it may be that they could not have obtained the information or discovered its existence, in which case the fact that the government did not disclose it is enough. See United States v. Douglas, 874 F.2d 1145, 1162 n. 30 (7th Cir.1989) (the good or bad faith of the government in not disclosing evidence is irrelevant; it is the character of the evidence that matters, not the character of the prosecutor).

Next, and most important, the court must determine whether and to what extent evidence of the accusation itself or evidence relating to the accusation would be admissible at trial. In other words, the court must decide what evidence would technically be admissible and what portion of that evidence it would allow in under the discretion granted it by Rule 608(b). ² The logical starting point would be to find out what questions the defendants would ask of Wysocki and decide how far the court would let that line of questioning go. For example, could the examining attorney only ask whether an allegation had been made, or could he also inquire into the nature of the allegation, who made it and when, and the current status and details of any...