US v. Zuazo

• Decision Date: 07 March 2001
• Docket Number: No. 00-1728.,00-1728.
• Citation: 243 F.3d 428
• Parties: UNITED STATES of America, Appellee, v. Gilberto Salaiza ZUAZO, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

243 F.3d 428

UNITED STATES of America, Appellee, v. Gilberto Salaiza ZUAZO, Appellant.

No. 00-1728.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2000.

Re-submitted: March 2, 2001.

Filed: March 7, 2001.

Daniel L. Gerdts, Minneapolis, MN, for appellant.

Alison E. Vander Vort and Nathan Petterson, Minnepolis, MN, for appellee.

Before WOLLMAN, Chief Judge, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

WOLLMAN, Chief Judge.

Gilberto Salaiza Zuazo appeals from the order of the district court¹ denying his motion for a new trial following his convictions for conspiracy to distribute controlled substances and aiding and abetting distribution of methamphetamine and cocaine. We affirm.

I.

On September 2, 1998, Salaiza Zuazo, a Mexican citizen, and Carlos Gomez Corro arrived in Minneapolis, Minnesota, in a Honda automobile with 5907.1 grams of cocaine and 436.8 grams of methamphetamine secreted in the gas tank, which had been modified in such a manner as to reduce its capacity and to render the gas gauge inoperative, necessitating stops every two or three hours to refuel. The two men had driven directly from Los Angeles, California, stopping only briefly at a rest area to sleep for a few hours. Upon arriving in the Minneapolis metropolitan area, Gomez Corro called Luis Andrade, whom the Minneapolis narcotics officers had under investigation as a possible drug dealer, and arranged for Salaiza Zuazo to deliver the car. A court-authorized wiretap on Andrade's phone intercepted and recorded the call. Salaiza Zuazo was arrested at the delivery point, and the drugs were ultimately discovered following a search of the car.

Eight individuals were indicted as a result of the investigation that led to Salaiza Zuazo's arrest. Six of these individuals, including Gomez Corro and Andrade, pled guilty, and the charges against one were dismissed. Salaiza Zuazo was indicted for conspiracy to distribute and to possess with intent to distribute controlled substances in violation of 21 U.S.C. sections 846 and 841(b)(1)(A), and for aiding and abetting the possession with intent to distribute cocaine and methamphetamine in violation of 21 U.S.C. sections 841(a)(1) and (b)(1) and 18 U.S.C. section 2.

Prior to Salaiza Zuazo's trial, Gomez Corro participated in two proffer sessions in conjunction with his plea. Although the government notified Salaiza Zuazo's counsel that it expected to have a cooperating co-conspirator, it neither revealed Gomez Corro's identity nor made his statements available. Andrade, the Minneapolis leader of the conspiracy, provided a letter to Salaiza Zuazo prior to his trial stating that he and Salaiza Zuazo had never met. Salaiza Zuazo's counsel attempted to interview Gomez Corro and Andrade before Salaiza Zuazo's trial and in both cases was put off by their attorneys. Neither Gomez Corro nor Andrade was called as a witness at trial.

At trial, Salaiza Zuazo testified that he had not known that the car contained drugs and that he had accompanied Gomez Corro to Minneapolis in order to drive a van back to Los Angeles for $500. The government offered no direct evidence that Salaiza Zuazo knew there were drugs in the car, but argued that he could not have been an unknowing participant because (1) the modifications to the car had effects obvious to anyone who drove it; (2) usual drug smuggling tactics include having a courier aware of the location and quantity of drugs being delivered and the choice of Salaiza Zuazo to make final delivery of the car indicated that he was that courier; (3) an intercepted conversation between Gomez Corro and Andrade gave rise to the inference that Salaiza Zuazo was a willing co-conspirator; and (4) Salaiza Zuazo's story was not credible. The government introduced police testimony in support of its theory. Under the government's theory, Salaiza Zuazo's role in the conspiracy was to reveal the location and confirm the quantity of the drugs on arrival.

Salaiza Zuazo was convicted on both counts and sentenced to 120 months' imprisonment. At the sentencing hearing, his counsel learned of Gomez Corro's statements, which were largely consistent with Salaiza Zuazo's account. Salaiza Zuazo then filed a motion for a new trial.

II.

Salaiza Zuazo contends that the district court erred in denying his motion for an evidentiary hearing and order compelling the government to produce Gomez Corro's proffer statements and for a new trial. He argues that the government was obligated to disclose Gomez Corro's statements prior to the trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that its failure to do so entitles him to a new trial or to an evidentiary hearing to determine whether a new trial is warranted, and that even if there was no Brady violation, Gomez Corro's statements constitute newly discovered evidence that entitles Salaiza Zuazo to a new trial.

A. Brady Violation

We conclude that the government's conduct did not rise to the level of a Brady violation. The government does not suppress evidence in violation of Brady by failing to disclose evidence to which the defendant had access through other channels. See United States v. Cheatham, 899 F.2d 747,752-53 (8th Cir.1990) (no Brady violation where defense counsel was aware of witness's existence and was not prevented from speaking with her). Similarly, when the government does not disclose a potential source of evidence but the evidence available from that source is cumulative of evidence already available to the defendant, it has committed no Brady violation. See United States v. Quintanilla, 25 F.3d 694, 699 (8th Cir.1994) (no Brady violation where undisclosed evidence was merely cumulative).

Having spent two days together with him during the trip from California, Salaiza Zuazo was well aware of Gomez Corro and his potential testimony. There is no suggestion that the government made any attempt to restrict Salaiza Zuazo's access to Gomez Corro. Furthermore, although Salaiza Zuazo did not discover that Gomez Corro had made statements to the government until sentencing, the underlying facts comprising the relevant evidence contained in those statements were not unknown to Salaiza Zuazo, who himself testified to the same facts. In these circumstances, we find no support for Salaiza Zuazo's contention that the government suppressed evidence in violation of Brady.²

B. Motion for New Trial

We review under an abuse of discretion standard the denial of a motion for a new trial. A defendant is entitled to a new trial based on newly discovered evidence only if he can show (1) that the evidence was not discovered until after the trial; (2) that due diligence would not have revealed the evidence; (3) that the evidence is not merely cumulative or impeaching; (4) that the evidence is material; and (5) that the evidence is such as to be likely to lead to acquittal. Lindhorst v. United States, 658 F.2d 598, 602 (8th Cir. 1981); United States v. Pope, 415 F.2d 685, 691 (8th Cir.1969). Because Salaiza Zuazo has failed to demonstrate likelihood of acquittal, we conclude that the district court did not err in...