U.S. v. Salem

Decision Date25 August 2009
Docket NumberNo. 08-2034.,08-2034.
CourtU.S. Court of Appeals — Seventh Circuit
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Anas SALEM, Defendant-Appellant.

Michelle L. Jacobs, Gail Joy Hoffman (argued), Jonathan H. Koenig, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Kathleen M. Quinn (argued), The Bernhoft Law Firm, Milwaukee, WI, for Defendant-Appellant.

Before CUDAHY, KANNE, and TINDER, Circuit Judges.

TINDER, 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 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 disclosed 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 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 threatened to shoot him. Salem's attorney went to some length to attempt to impeach Lopez's credibility. She questioned Lopez about the RICO, drug, and gun charges pending against him, and she raised the inference that 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 government 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 cooperating 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, however, showed some superficial injuries to Lopez's neck and face, consistent with the beating he says he suffered. 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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. Apparently, 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 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 testimony— the jury could infer that Lopez was testifying against Salem in exchange for the government not prosecuting 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 evidence 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 Sotelo homicide evidence would have been inadmissible, and in any event, would not have given rise to a reasonable probability of a different verdict. Salem appeals that decision.2

II. Discussion

Brady requires the government to disclose evidence materially favorable to the accused. Youngblood v. West Virginia, 547 U.S. 867, 869, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006); Brady, 373 U.S. at 87, 83 S.Ct. 1194. That obligation extends to evidence that tends to impeach a government witness. Youngblood, 547 U.S. at 869, 126 S.Ct. 2188; United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Failure to disclose such evidence, whether intentional or inadvertent, can entitle the accused to a new trial. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (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, 126 S.Ct. 2188.

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 undisclosed 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 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, 126 S.Ct. 2188 (quoting Strickler, 527 U.S. at 280, 119 S.Ct. 1936); see also Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (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 nondisclosure "undermine[d] confidence in the verdict." Kyles, 514 U.S. at 435, 115 S.Ct. 1555.

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 involvement 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 inadequate to decide Brady issue). From Martinez's plea agreement, it appears Lopez gave a reasonably detailed statement about the murder, and it implies that the statement 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 introduce at a trial of Martinez to prove his guilt of gang-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...

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