U.S. v. Gonzalez, s. 95-2297

• Decision Date: 14 August 1996
• Docket Number: 95-2298,Nos. 95-2297,s. 95-2297
• Citation: 93 F.3d 311
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo GONZALEZ and Ricardo Ramirez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 311

93 F.3d 311

UNITED STATES of America, Plaintiff-Appellee, v. Arturo GONZALEZ and Ricardo Ramirez, Defendants-Appellants.

Nos. 95-2297, 95-2298.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1996.

Decided Aug. 14, 1996.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. ¹

Barry Rand Elden, Chief of Appeals, Alan Grossman (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for United States of America.

David D. Reyes, Gerardo Gutierrez (argued), Chicago, IL, for Arturo Gonzalez.

Joseph R. Lopez, Gerardo S. Gutierrez (argued), Chicago, IL, for Ricardo Ramirez.

Before POSNER, Chief Judge, FLAUM and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

After a six-day trial, Arturo Gonzalez and Ricardo Ramirez were convicted on the three counts with which they had been charged: conspiracy to possess with intent to distribute and to distribute heroin (21 U.S.C. § 846); possession of heroin with intent to distribute (21 U.S.C. § 841; 18 U.S.C. § 2); and using and carrying a firearm during and in relation to the commission of drug trafficking crimes (18 U.S.C. § 924(c)). The defendants' first motion for a new trial was denied. However, when the defendants filed a supplemental posttrial motion for new trial, based on newly discovered evidence concerning the confidential informant who had participated in their apprehension and testified at trial, the court granted additional discovery and required full briefing by the parties. On February 9, 1995, however, the court denied the request for new trial.

Mr. Gonzalez and Mr. Ramirez appeal the denial of their supplemental motion for new trial on the ground that the government's failure to disclose information about the confidential informant denied them due process of law. They also assert that the evidence supporting their convictions for use of a firearm during a drug transaction, under 18 U.S.C. section 924(c), is insufficient as a matter of law after Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). For the reasons that follow, we affirm in part and reverse and remand in part.

I BACKGROUND

A. Facts

1. Trial evidence

Defendant Ricardo Ramirez had known Jose Varela for fifteen years, but did not know that Varela had become a government informant. ² In October 1991, Mr. Ramirez went to Varela's home and agreed to put Varela in touch with some friends of his who sold heroin. Through November 1991, Mr. Ramirez and Varela continued discussing and planning the narcotics transfer but never brought it to fruition. During this period, Varela, operating as the agents from the Drug Enforcement Agency ("DEA") had instructed him, recorded secretly his conversations with Mr. Ramirez.

Mr. Ramirez's arrangements for a heroin sale seemed to fall in place in late November. On November 27, 1991, Mr. Ramirez handed Varela "a little piece of cloth" (Tr. III at 21) which was a twenty-six gram sample of heroin. On December 21, 1991, Varela and undercover agent Rafael Tovar, posing as Varela's buyer, met Mr. Ramirez at a McDonald's restaurant in Chicago to purchase a larger quantity of heroin. Both Tovar and Varela were wearing transmitters that recorded their conversations. Because Mr. Ramirez said he could not reach his supplier, however, the deal fell through. Tovar showed Mr. Ramirez $60,000 in cash he had brought for the purchase and told Mr. Ramirez not to call again until he actually had the heroin.

On January 30, 1992, Mr. Ramirez told Varela that he had thirteen "real good" "Mexican females" (Tr. III at 53), a reference that Varela interpreted to mean thirteen ounces of high quality heroin. The next day the three men met again at McDonald's. Again Tovar and Varela wore recording devices. While Tovar waited in the car, Varela and Mr. Ramirez arranged the meeting for the heroin purchase. Later that day, Varela and Tovar signalled Mr. Ramirez by pager. Shortly afterwards Mr. Ramirez arrived; he then took Varela to his basement apartment to show him the heroin. On their walk over to Mr. Ramirez's apartment, Varela mentioned that his buyer carried a weapon because he had been cheated in the past. Mr. Ramirez replied that he too had a firearm whenever he carried drugs or money. In that apartment, Varela met Mr. Gonzalez for the first time. Varela secretly recorded the conversations. Mr. Ramirez showed Varela one-ounce black chunks of what seemed to be heroin, individually wrapped in a plastic bag. Varela went back to McDonald's to report to Tovar that the heroin was available.

After Varela left, Mr. Ramirez and Mr. Gonzalez emerged from the building and hid the plastic bag of heroin in a trash can across the alley. They then investigated the alley and the area in front of his house. Once Mr. Ramirez had scanned the entire area, he gave a hand signal to Mr. Gonzalez. Mr. Ramirez then walked back to the alley, retrieved the plastic bag from the garbage can, and reentered his building. DEA surveillance agents observed this countersurveillance activity.

Varela did not return to Mr. Ramirez's building alone; instead, Tovar came with him to see the heroin. When they arrived, Mr. Ramirez led them to the basement apartment and introduced Tovar to Mr. Gonzalez. On the table was a pager; the number on it was the one Tovar and Varela had called earlier that day. Mr. Gonzalez directed Tovar to a chair facing him. Mr. Ramirez then handed Tovar a small plastic bag and sat down on a couch, also facing Tovar. Tovar inspected the sample package; it contained a dark, rocklike substance that appeared to be a chunk of heroin. When Tovar asked to see the rest of the heroin, Mr. Gonzalez nodded to Mr. Ramirez. Mr. Ramirez then reached under a blanket on the couch, took out a blue bag and handed it to Tovar. Mr. Ramirez resumed his position on the couch facing Tovar. Tovar inspected the bag, which appeared to contain more heroin. He then sent Varela to get the money. After Varela left, however, Tovar activated an electronic arrest Following a six-day trial, the jury found the two defendants guilty of all counts in the indictment.

signal. DEA agents arrived and placed Mr. Ramirez and Mr. Gonzalez under arrest. In the apartment were found the pager and a loaded twelve-gauge shotgun, with the safety off, concealed under a blanket on the couch on which Mr. Ramirez had been sitting. The shotgun was pointed at the chair in which Tovar had been sitting.

2. Post-trial evidence

A week before sentencing, one of the defense attorneys received anonymously two documents--a statement by a special agent of the Bureau of Alcohol, Tobacco and Firearms, and a report by a DEA special agent--concerning confidential informant Varela's involvement in illegal activities. The government subsequently produced other undisclosed reports concerning Varela. ³

The defendants sought a new trial because the undisclosed impeachment evidence, favorable to the defense, was relevant and material to the issue of Varela's credibility as a key government witness against the defendants. ⁴ Moreover, the reports had existed before their trial began. According to the defendants, the government's failure to disclose this additional material on Varela prior to trial constituted a violation of the government's obligation to disclose impeaching evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

B. District Court Post-Trial Ruling

In its consideration of the defendants' Brady motion for a new trial, the district court examined in detail the evidence of record. R.127 at 1-13. When analyzing the information about Varela received just before sentencing, the court determined which of the documents would have been ruled admissible under Rule 608(b) of the Federal Rules of Evidence on the ground that the evidence presented in them was probative of Varela's character for truthfulness or untruthfulness. ⁵ Id. at 14-16. Of all the undisclosed material, the court noted, none was exculpatory. Its only value to the defendants was that it cast doubt on Varela's credibility. The court then noted that the informant's credibility had been undermined throughout the trial:

However, Varela's credibility was already suspect. At trial, Varela admitted he was a drug dealer. He admitted that he sold multiple-kilogram quantities of cocaine. In fact, he was unable to deny that he had dealt as much as 400 kilograms of cocaine. Varela admitted his interest in testifying for the prosecution, i.e., that for his cooperation he received a substantial reduction in jail time and hoped to receive a further reduction. He admitted that he signed a financial affidavit that contained false information. He admitted that he stole tools from his former employer. He admitted that he attempted to persuade an undercover agent to steal as much as 35 kilograms of cocaine from a drug house. He admitted that he would on occasion lie to further his drug business. In closing argument, the government admitted R.127, Memorandum Opinion and Order of February 8, 1995, at 17. The district court concluded that the newly discovered evidence, even if admitted and viewed in its entirety, would not have weakened Varela's credibility to the point that the jury probably would have acquitted the defendants--because there was independent evidence of the guilt of Mr. Gonzalez and Mr. Ramirez. "[T]he fact remains that [Varela's] testimony bearing on the guilt or innocence of the defendants was corroborated, almost completely, by the tapes and by Agent Tovar, who was present at the heroin transaction." Id. at 18.

                that Varela was a "cheater," a "liar," and a "drug dealer."   The government asked the jury to believe Varela only when his testimony was corroborated
                

The district court also considered the contention that the defendants would have been...