*1 (7th Cir.1999). The fact that man- Webb time, in its

aged, pay filing fee over

entirety that the full fee was demonstrates Walker, at his means. See

within

638 n. 5.

III. prison decision of officials

Because the days good time credit has revoke 90 evidence, Affirm support of some denying judgment of the district for a writ of habeas cor- petition

Webb’s

pus. As this case does not constitute

“civil purposes action” for 28 U.S.C. 1915(b),

§ required pay Webb appeal.

fee order to file the America,

UNITED STATES

Plaintiff-Appellee, CRUZ-VELASCO,

Raul Ramiro S. Joseph Cuevas, L.

Defendants-Appellants. 99-2382, 99-2424,

Nos. 99-2425. Appeals,

United States Court of

Seventh Circuit.

Argued March Aug.

Decided

Rehearing Rehearing En Banc denied Sept.

in No. 99-2425 *3 Houston, (argued), R.

Ralph Martinez TX, for Ramiro S. Defendant- Appellant. Genson,

Edward Marc W. Martin M. IL, Joseph L. (argued), Chicago, Cue- vas, Defendant-Appellant. FLAUM, Judge, Chief

Before WILLIAMS, Circuit POSNER Judges.

FLAUM, Judge. Chief *4 Cruz-Velasco, defendants, Ra- Raul The Cuevas, Joseph and L. miro S. con- each of one count of were convicted than one kilo- to distribute more spiracy in of 21 of heroin violation gram U.S.C. 841(b)(1)(A)® count § § and and one of kilogram of more than one possession of in violation with intent to distribute heroin 841(a)(1) § U.S.C. 841(b)(1)(A)®. ap- § The defendants now part on the alleging various errors peal, reasons For the stated court. herein, we the defendants’ convic- affirm tions and sentences. Background

I. the defendants for which The conduct stems from convicted sentenced drug transactions. Those separate two during the months occurred transactions May July of 1997. May 1. The Transaction 1997, defendant Cruz-Ve- During May five approximately kilograms lasco stored by Daniel a bar owned of heroin behind meeting At a Edinburg, Texas. Chavez Cruz-Velasco, Chavez, defendant between Garza, Trevino, and Polo a bar- defendant Cox, At- of the U.S. N. Office Richard Chavez, for defendant who tender worked Urbana, IL, Div., Stephen torney, Urbana that he wanted Trevino told Chavez (argued), Office of U.S. A. Kubiatowski Dallas, ini- Texas. Garza heroin moved U.S., IL, for Plain- Attorney, Springfield, transport drugs tially agreed to tiff-Appellee. Dallas, and Cruz-Velasco stated defendant by following assist Garza that he would Halliday (argued), E. Parker & Ronald trip. Although defendant Peoria, during IL, Raul him Halliday, Cruz-Velas- await proceeded to Dallas to co, Trevino then Defendant-Appellant. delivery, never kilograms McAllen, Garza’s Garza made the five of heroin from trip he not obtain because could access to a Texas Chicago. Villanueva received ten vehicle. packages of heroin from defendant Cruz- Velasco and was instructed 16, 1997, May

On defendant Trevino Trevino to travel to an area approximately inquired called from Dallas and Chavez eighty miles outside of Chicago. Villa- why yet had not made Garza nueva left July Texas on 1997 with the delivery. heroin agreed-upon Chavez stat- heroin hidden in his car. ed that he did not know Garza’s where- explained abouts and that it his un- Kankakee, When Villanueva arrived in derstanding was in that Garza Dallas. 4, 1997, July Illinois he was instructed telephone conversation, Subsequent to this go Days to Room 310 at the Inn in visited at Trevino Chavez Kankakee. While Villanueva was on his bar and informed him that defendant Inn, way Days to the stopped by he was pick up Cruz-Velasco would the heroin. County Kankakee Sheriffs Department Shortly after defendant Cruz-Velasco deputy. deputy searched Villanueva’s Chavez, picked up the heroin from defen- car and discovered one kilogram of heroin dant Trevino met again with Chavez and bag. a black duffel Villanueva was ar- told him willing that Jose Villanueva was rested and taken to the Kankakee deten- *5 to transport May the heroin to Dallas. On tion center. 19, 1997, defendant defendant Cruz-Velasco, Chavez, and Villanueva met Because of quantity drugs of seized behind bar. Chavez’s Cruz- Defendant Villanueva, from County Kankakee brought Velasco the heroin with him to Department Sheriffs contacted the Kan- meeting, given and it was to Villa- kakee Area Metropolitan Enforcement in nueva ten small packages. Villanueva (“KAMEG”), Group organized a task force Dallas, drugs then delivered the arriv- investigate mid-to-upper drug level day. that same dealers. Members inter- KAMEG Dallas, Villanueva, When Villanueva arrived in he viewed who informed them met defendant Cruz-Velasco and defen- there was an additional four kilo- dant Trevino and proceeded the three men grams of heroin hidden in his car. Villa- to a morning Dallas hotel. The next Villa- agreed nueva also participate in a con- gave nueva the heroin to defendant Cruz- trolled sale. Velasco, put drugs who in a white After receiving instructions on the con- pickup truck and paid left. Villanueva was sale, trolled Villanueva went to Room 310 $2,000 approximately for this delivery. Days at the Inn where he met defendant 20, 1997, May Cuevas, On defendant Trevino and defendant Cruz-Velasco. Af- Guizar, and Pablo Villamil flew from Chi- ter a brief conversation drug about the cago, Illinois to Dallas they where met transaction that was place, to take Villa- defendant During Cruz-Velasco. nueva was instructed to Knights drive to a

meeting, defendant Cruz-Velasco deliv- Inn in Kankakee and wait. Members of ered in possession the heroin to Villam- KAMEG followed Villanueva to the il. transported Villamil then the heroin to Knights gave Inn and him further instruc- and, Chicago Greyhound on a bus upon his tions on the controlled sale. Chicago, gave arrival in the heroin to an individual named Hector Castenada. Vil- Approximately five minutes after Villa- $8,500 lamil received for his services. Inn, Days nueva left the members of KA- MEG observed defendant Cuevas and 2. July Transaction Hector approach Castenada Room 310. In early late June or July defen- Defendant Cuevas carried a medium-sized dant Trevino hired Villanueva to transport gym bag his hand. When defendant intent to of heroin with kilogram than one Room the door of Trevino answered trial, jury all three in- After a went distribute. and Castenada defendant Cuevas on both counts. en- were convicted p.m., 2:17 law defendants approximately At side. the defendants May defendant On observed officials forcement imprisonment, Room months leave and Castenada sentenced Cruz-Velasco release, carrying anything. five-year period supervised man was Neither mandatory special assessment $200. and Castenada Cruz-Velasco Defendant addition, was fined defendant Cuevas Inn, Knights where to the proceeded then $300,000. appeal, now ar- The defendants from containing heroin baga they received that the court made various guing exchange, de- Following this Villanueva. during guilt and sentenc- errors both got Villanueva’s Cruz-Velasco fendant ing phases of trial. unaccompa- away drove car. Castenada defendant Cruz-Ve- nied. Villanueva Inn, Analysis Days II. returned to the then

lasco commented defendant Cruz-Velasco cases were consolidated The defendants’ easy. delivery had been Al- appeal. of trial and purposes both for car, defendant exiting After Villanueva’s raised each though the various issues at the to Room 310 returned Cruz-Velasco overlap, they are not identical. later, A minutes Inn. few Days each defendant’s therefore consider We Inn in a black Mer- Days Cuevas left However, to the separately. contentions by an un- followed He was cedes-Benz. adopt arguments the defendants extent minutes car. After several police marked analysis co-appellants, their made high- exited the defendant Cuevas in which to all the applies individual claims to be appeared times and way multiple appli- are to whom those issues appellants police the undercover attempting to evade cable. *6 car, following his a traffic was officer who officer by a uniformed stop was initiated Ramiro S. Trevino A. Defendant was arrested. Cuevas and defendant Agent DEA Expert Testimony 1. The of time that defendant At the same Joseph Reagan followed, deputy a sheriffs being was trial, the defendants’ During the vehicle and arrested stopped Castenada’s Joseph Agent DEA vehi- called of Upon a search Castenada’s him. testify expert as an stand to Reagan discover- to the cle, of heroin were kilograms five structure, nature, and and about Trevino witness Defendant defendant ed. opera drug trafficking arrested at the of were then characteristics Cruz-Velasco argues re- now Inn, the room Defendant Trevino and a search of tions. Days notes, cash, testimony, the district $22,510 as well as admitting in vealed pag- standard proper a number of clothing, apply of and failed to articles Cruz-Velasco, testimony as expert of ers. Defendant the admission Cuevas, Castenada in Dau Supreme and Court enunciated KAMEG, Pharmaceuticals, Inc., but none all interviewed Dow were v. Merrell bert drug 2786, in the L.Ed.2d 579, admitted involvement 125 of them 113 S.Ct. 509 U.S. suspected. (1993). they were the dis trafficking of which whether We review 469 the Daubert properly followed trict court The Trial 8. admissibility considering the framework in novo, see United testimony de expert charged a two- of The defendants (7th 1095, Hall, 1101 F.3d v. 165 one States with indictment superseding count Cir.1999), but review with intent possess conspiracy of count Reagan’s Agent to admit court’s decision of kilogram than one more to distribute discretion, see abuse of testimony for an of more possession count of and one heroin 660 Carmichael,

Kumho Tire Co. v. 526 trafficking U.S. ture of narcotics a proper is 137, 152, 1167, 143 119 S.Ct. L.Ed.2d 238 expert testimony. source of See United (1999); Corp., Takata Mancillas, Clark v. 192 F.3d 682, States 183 F.3d 704-06 Cir.1999). 750, (7th Cir.1999); 756 Navarro, United States v. (7th Cir.1996) (“Law 1245, 90 F.3d 1261 Rule Federal 702 Rules of may enforcement officers ... qualify as scientific, provides Evidence tech “[i]f experts in trafficking may narcotics nical, specialized knowledge or other will explanations offer jury.”); to the United assist the trier of fact to determine a fact 1236, Lipscomb, States v. 1239-43 expert “may testify in issue” an thereto.” (7th Cir.1994); Brown, United Supreme Fed.R.Evid. 702. The Court has (7th Cir.1993) 648, (collecting 702, in applying made clear that Rule dis cases); Foster, United States v. gatekeeping trict courts serve function 445, Cir.1991); United States v. expert testimony and must ensure that the Solis, 548, 550-51 at issue on a “both rests reliable founda It is also clear experience from his tion and is relevant to the task at hand.” Agent Reagan qualified to offer testi- Daubert, 2786; 509 U.S. at 113 S.Ct. mony general as to the of drug structure Kumho, see 526 U.S. at 119 S.Ct. organizations testimony and that his re- Although the Daubert Court identi garding drug trafficking helpful to the fied a number of factors to be considered circumstances, jury. Under these we are evaluating admissibility when expert satisfied that properly district court testing, review, testimony-including peer applied the Daubert framework in consid- rates, acceptability error within the ering the testimony Agent Reagan. De- professional community relevant —these general objections fendant Trevino’s to the factors do not establish definitive check testimony of Agent Reagan are therefore Kumho, list. See at U.S. unavailing. 1167; Daubert, S.Ct. 509 U.S. at Rather, applicability S.Ct. 2786. Defendant specific objec- Trevino’s more depends various Daubert factors on the Agent Reagan’s tion to testimony does not particular facts circumstances of each qualifications focus on his in general, but Kumho, case. See at U.S. 119 rather on what the defendant characterizes 1167; Daubert, S.Ct. 509 U.S. at testimony about nature and charac- S.Ct. 2786. *7 Hispanic teristics of drug dealers. Ac- government The argues that the district cording to defendant this kind of court properly analytical understood the testimony problematic is for two reasons. DaubeH, First, framework of and demonstrated argues defendant Trevino that applying standard, that it was proper the Agent Reagan qualified testify was not to stated, when it “I will ... agent Hispanic allow the about drug organizations because one, proceed, assuming to that he will be his relevant investigative experience did then, two, qualified expert, as an and into not center Hispanics Hispanic or on inquiry.” agree Second, relevant that We this re- areas. defendant argues Trevino flects the understanding district court’s Agent Reagan’s testimony that about His- that in order qualified, expert panic to be an drug dealers improperly introduced testimony witness’s ethnicity must be both reliable into the trial and should not have Furthermore, gov- relevant. the after been admitted prejudi- because it was too ernment proper laid a foundation for cial. recognize testimony While we that Agent Reagan’s testimony, the district about the relevant partic- characteristics of explicitly quali- indicated that he was ular groups problematic, ethnic could be fied as an expert witness and the defen- agree and we that Agent Reagan’s experi- object dants finding. failed to to that It is ence did not him qualify speak authori- well-settled that the methods and tatively particular struc- on*the characteristics of when such is upon request dant evidence trafficking organizations, drug Hispanic guilt to the material to defendant’s or inno argument as the Trevino’s cence, testimony Brady Maryland, is not see 373 U.S. Reagan’s Agent nature of (1963), record. 83 S.Ct. 10 L.Ed.2d the supported im obligation and that extends to both centered on testimony Agent Reagan’s evidence, exculpatory see peachment trafficking operations generally drug 667, 676, Bagley, 473 U.S. United States Hispanic no distinctions between he drew (1985) (cit 3375, 87 L.Ed.2d 481 105 S.Ct. drug traffickers drug traffickers and States, Giglio v. 405 U.S. United fact, In origin. race or ethnic any other (1972)). 763, 31 L.Ed.2d 104 92 S.Ct. Hispanic only reference to Reagan’s Agent case, that it government argues entire course of during the drug dealers required give defendant Trevi was not acknowledgment an testimony was his payments made no information about Hispanic investigated past in the he payments those were to Chavez because Nothing trafficking organizations. drug the instant case. More not relevant testimony indicates Agent Reagan’s about government contends that specifically, the of the evi- ethnically-based evaluation an judge as previously the district court dence, any attempt by was there nor signed to this case determined inter- Reagan or Agent unconnect payments made to Chavez were of eth- prejudicial issue ject potentially government’s investigation of ed to the testimony. Ac- nicity the witness’s into that this particular these defendants and find no error in the district cordingly, it of its ruling affirmatively relieved obli Agent Reagan as qualify court’s decision over gation disputed to turn the evidence re- testimony expert an and to admit In order to evaluate this to the defense. trafficking organizations. garding drug the somewhat argument, we must consider Impeach- Alleged Suppression The surrounding events the determina unusual ment Evidence made to Chavez payments tion that to this case. were not relevant challenges Trevino next

Defendant over to turn the failure of govern- regarding evidence concerning Daniel evidence impeachment pre- was first payments to Chavez ment’s who was an informant Chavez. Chavez agents DEA in an in camera sented case-in- during testified Baker, judge hearing Judge in Trevino’s regarding chief this case. This assigned to previously trafficking activities. drug volvement presence hearing place took outside on cross-exami Although Chavez admitted no,indication and there is counsel defense money by the paid nation he had been was discussed in the record as to what infor for his services informa- meeting or as to what during mant, payments these the records of Judge Baker. The provided tion was Defendant never tendered to the defense. *8 following that record does reflect government that these Trevino contends issued an order meeting, Judge Baker impeach to constitute payments Chavez stating that evidence government important of an ment evidence inadmissible at to payments Chavez that, demonstrating be bias witness on the court’s defendants’ trial based evidence, the cause the nature of that payments Cha- conclusion that made obligation an to inform government DEA wholly separate to a vez were related payments and to turn the defense of the accepted The district court investigation. pay regarding records those any over that the dis- Baker’s determination Judge Trevino. ments to defendant irrelevant, and the puted evidence was Judge Bak- argues now that government government obligation has potentially impeach- ruling as to this to the defen- er’s to disclose evidence favorable obligation Brady it of its idence was not material under ing evidence relieved im- Brady requested to turn the under an abuse of discretion. See United States over to the defense. peachment evidence (7th Kozinski, 795, 16 F.3d Cir. 1994). agree government with the We Brady no violation occurred here. that In circumstances where the de regarding The information evidence of the fense seeks access to confidential informa government’s payments Chavez was during discovery, rely particularly tion “we Baker and it was

provided Judge deter heavily on the sound discretion of the trial gov Because mined to be irrelevant. judge protect rights of the accused only required ernment is to turn over re government.” well as [those of] if it is material to an quested information 273, Phillips, United States v. 854 F.2d trial, at Brady, issue at see 378 U.S. (7th Cir.1988) (“Generally, the deci 1194; v. Hartbarger, S.Ct. United States (7th Cir.1998), sions whether conduct an camera 148 F.3d the dis government trict court’s determination that the re review of in appropriate files quested evidence was irrelevant necessari cases, require whether to of ma discovery ly obligation relieved the of its therein, terials contained and in what form concerning to turn over information Cha produced such materials should be are dealings vez’s with the be committed to the sound discretion of the irrelevant cause evidence cannot be mate district judge.”). recognize While we way, rial. Put Brady another the central grant authority broad to district on inquiry appeal is whether there is a it judges,1 impossible is for us to deter probability that the disputed reasonable mine on the record as it now wheth stands would have affected the at evidence result er the district court properly exercised its trial, see Bagley, 473 U.S. at 105 S.Ct. in refusing requests discretion defense 3375; Dimas, United regarding turn over information pay Cir.1993), cannot ments to Chavez. There no is information say that there probability is reasonable in the record as to the substance of the properly that evidence found to be irrele meeting Judge between Baker and the vant jury’s would have affected the conclu agents, DEA any nor is there information question sions. The then is not whether supporting Judge Baker’s determination Brady violated its obli disputed evidence was irrelevant. gation when it refused to turn over the Judge deeming Baker’s docket order regarding information payments its irrelevant, coupled evidence with the dis Chavez had been deemed irrelevant trict rely previ court’s decision to on that Baker, by Judge but rather whether the finding, provide ous do not a sufficient district court erred in initial making its evaluating basis for the district court’s de materiality disput determination as to the deny discovery cision to defendant Trevino ed evidence. review the We court’s disputed disputed determination ev of the information. Rainone,

1. Defendant Trevino also contends that the See United States v. 1994). Cir. The trial court retains discovery district court's failure to order cross-examination, broad discretion to limit regarding government pay the information Valles, see United States v. Chavez, ments to as well as the court's refusal 1994), properly Cir. and the district court pursue to allow the defendants to a detailed *9 exercised that discretion in this case. Be cause defendant Trevino was able to ade inquiry as to the nature and source of the cross-examination, payments on violated his quately question Chavez as to the fact of the right Sixth Amendment to confront the wit government payments, the district re court’s against nesses It him. is true that defendant questioning fusal to allow more detailed on right Trevino has a to confront the witnesses subject that does not constitute a denial of him, against right rights. but that is not unlimited. defendant Trevino's Sixth Amendment

663 Under payments. records of those the our conclusion Despite however, circumstances, a suffi defendant provide these court did the district to exclude not shown that the of its decision Trevino has explanation cient to payments inquiry allow additional of the court’s refusal to records not con Chavez, Trevino has by received government payments the into evidence disputed trial, us that unfair or that vinced resulted in an Chavez Hamilton, v. States See United discovery material. to sought evidence he obtain (7th Cir.1997) 499, (citing 510 107 F.3d im- anything more than cumulative of was 97, 109- 427 Agurs, v. U.S. States United United States v. peachment evidence. See (1976)) 2392, 10, 49 L.Ed.2d 342 96 S.Ct. (7th Cir.1995) 645, 71 F.3d 653 Maloney, (“[A] dpe not arise to violation does Brady 819) Kozinski, (stating 16 F.3d at (citing that the possibility a nothing more than trial, im- justify to a new in order helped have might item undisclosed than “must be more peachment evidence .”)(cid:127) to demonstrate In order defense... impeachment”); mere cumulative United must show Trevino materiality, defendant (7th 365, Dweck, v. 913 F.2d 371 States prejudice. and an abuse of discretion both Cir.1990). has Because defendant Trevino Salerno, 108 F.3d v. United States See prejudiced that he was failed to show Cir.1997) (7th United 730, (quoting 743 failure to turn over rec- (1st 77, Alvarez, F.2d 85 v. 987 States payments regarding ords Cir.1993)) discovery violations (stating that Chavez, ruling we will not disturb to an only both trial when a new warrant the district court below. are prejudice discretion and abuse Miller, v. shown); States see also United Sentencing Issues Cir.1999). (7th 416, 421 n. 3 showing context, means a prejudice argues next Defendant Trevjno sought- of the of the' absence erroneously that because failed that the district court evidence, Trevino did not after departures on him downward based grant in a verdict resulting fair trial circumstances, ] a family age, “receive! his v. worthy United States of confidence.” family his faced because of hardship Cir.1999) (7th Asher, Although alien. defen illegal as an status 419, 434, Whitley, v. 514 U.S. (citing Kyles request down failed to such dant Trevino (1995)); 131 L.Ed.2d 115 S.Ct. sentencing departures before ward Runyon, 128 F.3d Pickens v. see may court, that this Court argues he now Cir.1997). Prejudice exists under his claims nevertheless review unduly surprised “is the defendant when Trevino Defendant error standard. plain pre adequate opportunity and lacks request that his failure alleges also defense, sub when the violation pare a or from the ineffec resulted departures these jury.” United stantially influences he trial counsel and of his tive assistance Rosa, La v. De States consider this Court should argues that appeal as well. claim on cross-examination, During Trevi find of defendant We both inquire allowed the defendants meritless. sentencing arguments to be no’s infor- as a into Chavez’s work depart not to court’s decision A district mant, that he admitted Chavez only if appeal on is reviewable downward Although de- for his services. paid been is conclusion based the district court’s that he was able Trevino admits fendant Sentencing of the interpretation legal govern- the fact of Chavez about question Ekeland, States See United Guidelines. that he he contends payments, ment (7th Cir.1999); United nature, F.3d sufficiently explore not able Poff, Cir. amounts, pay- specifically the 1991). does Trevino appeal, defendant On without access ments made to Chavez *10 664 challenge legal district court’s con should almost never brought be on direct

clusions, any nor appeal is there indication that because “typically the trial record the district court did it not believe had the will be silent about the reasons for actions Rather, counsel”). depart. by discretion to taken trial a Absent show Trevino challenges the district court’s fac that trial counsel chose not to ask for findings tual discretionary obviously and its an applicable departure decision without depart. not to challenges any justification actions, Such are not for his cannot subject review, appellate even cir conclude that performance objec his was cumstances a motion for departure where tively reject unreasonable. We therefore court, has been made before the district defendant Trevino’s ineffective assistance and we jurisdiction therefore do not have of counsel claim.

to consider arguments defendant Trevino’s B. Joseph Defendant L. Cuevas

as to the district depart court’s failure to downward. See United appeal The of defendant Jo (7th Williams, 988, 198 F.3d 994-95 Cir. L. seph Cuevas on testimony focuses 1999) (“[A] district discretionary court’s Villamil, of Pablo a rebuttal witness called concerning upward decisions or downward by government. Villamil testified that departures are not renewable participated he in a run” “drug with defen Court.”); Helton, United States v. Cuevas, dant part and that as of this ven (7th Cir.1992). 430, ture he accompanied defendant Cuevas 20, and Emilio Guizar on May flight In prevail order to on his inef Chicago from to Dallas. testimony This claim,2defe fective assistance of counsel particularly damaging to defendant ndantTrevino must demonstrate both that Cuevas because Villamil was called to re attorney’s performance objectively fute the innocent explanation defendant unreasonable and that prejudiced he was gave addition, for that trip. performance. See United States v. Villamil rebutted defendant Cuevas’s state Partee, (7th Cir.1994). 529, 31 F.3d ment that he and Guizar traveled alone to According to defendant he has flight Dallas in question. gov necessary made performance prej ernment attempted further to damage de showings through udice proof that his trial fendant Cuevas’s credibility by introducing counsel failed to move for the applicable flight that, showing manifests despite de departures downward any without strate fendant contrary, Cuevas’s assertion to the gic justification. Although appellate Cuevas, Guizar, and Villamil clearly record reflects that defendant Tre were all on Vanguard flight Airlines from vino’s trial counsel did not ask for Chicago May to Dallas on 1997. We departures downward that defendant Tre review the district court’s decision to admit vino now claims should request have been testimony rebuttal abuse of discre ed, the record does not reveal circum tion. Spesco, Co., See Inc. v. General Elec. surrounding stances that decision or the (7th Cir.1983). 719 F.2d 239-40 strategic may concerns that have motivat ed it. See United States v. Johnson-Wil Defendant allegations Cuevas’s of der, (7th Cir.1994) (not 29 F.3d error in Villamil regard testimony ing that ineffective assistance claims focus on he regards what as the unfair Although ineffective assistance of counsel the fact that very unlikely such claims are may part any claims be support considered as a of this find factual in the trial record appeal, consistently recognized we have and an adverse ap- determination on direct type peal judicata claim is disfavored on direct re any subsequent will be res Cooke, attack.”); view. See United States v. collateral Garrett, see also United States v. 1997) ("This Cir.1996); Cir. Court’s re Walls, luctance to consider ineffective assistance United States v. stems, course, appeal claims on direct from

665 These kind of discov- appeal. or on court government the created when surprise context, troubling any in are having ery violations after rebuttal in Villamil called they when are commit- particularly so but in its case a witness him as to offer failed during a criminal government ted the well-established, however, It is in-chief. However, that the significant it is trial. dis right to there is no constitutional that gov- the properly recognized court district and criminal cases non-capital covery prohibited govern- the error and ernment’s no constitutional has prosecution the that list using passenger the airline ment from prior to its witnesses to reveal obligation testimony or Cuevas’s to rebut defendant Bursey, 429 U.S. v. See trial. Weatherford testimony. Dis- to corroborate Villamil’s 837, L.Ed.2d 30 559, 51 545, 97 S.Ct. generally given discretion trict courts are Agyemang, 876 (1977); v. United States discovery for viola- remedies to fashion Cir.1989). (7th sig More 1264, 1270 F.2d 16(d)(2), tions, and see Fed.R.Crim.P. the allegation is no that nificantly, there that absent second-guess will not decision any dis with comply failed to government that, facts of particular on the a showing disclosing possibility the in not covery rule case, that the district court abused testify as a rebuttal would Villamil that Beverly, v. States discretion. See United See, v. Brax e.g., United States witness. (7th Cir.1990); 337, see also Vil- ton, Illinois, 484 U.S. 108 S.Ct. Taylor v. necessary only testimony became lamil’s (1988). 646, 98 L.Ed.2d 798 having denied defendant Cuevas when Villamil, to Dallas accompanied been a trial for A new is warranted call entitled to was government the remedy only if “‘the discovery violation testimony to that to rebut Villamil was inade by the district court offered credibility. See Cuevas’s defendant attack fair with a provide defendant] quate [the ” O'Brien, 119 F.3d v. States United Jackson, 51 F.3d v. trial.’ States United Cir.1997) (“Once a defendant (7th Cir.1995) United (quoting his criminal denies the stand and takes Mounts, States judge district for the activity, proper it is Cir.1994)). case, Cuevas In this to offer rebuttal the permit Government decision the district court’s argues that of that in contradiction testimo evidence list, but passenger exclude the airline no government had Because the ny.”). rebuttal, testify was Villamil permit identity of its the duty to disclose legal provided that he inadequate to ensure witnesses, and because potential rebuttal contends fair Defendant Cuevas trial. credibility at his put Cuevas faith and acted in bad that the government defense, the by testifying in his own issue passen the airline intentionally withheld allowed Villamil properly court district possibility the to conceal ger list in order testify. act testify that this might that Villamil trial fundamentally altered his deception precedent estab Although argues also strategy. Defendant re that was not lishes grant erred not court district identity of Villamil to disclose quired so for a continuance request witness, a rebuttal for the adequately prepare could more he Vanguard Airlines turn over failure to surprise testimony of this witness. This problematic. is more passenger list discussed, we do previously have As we open under discov was conducted case abused court clearly not believe and the ery policy, management of in its to its discretion passenger list obligated to disclose ex- issues are discovery issues when those it was as soon as received. defense The district isolation. amined in comply with government did to call justifi properly any permitted valid nor did it offer obligation, witness, district court and the Villamil as this failure before cation Salerno, remedy discov- United exercised its discretion (7th Cir.1997) by excluding the airline ery passen- abuses (quoting United States v. *12 ger list that was not tendered to the de- (1st Cir.1993)). Alvarez, 85 fense. Because neither of these decisions In the showing absence of a more concrete when examined separate- constitute error that of the airline passenger disclosure list ly, claim on a defendant Cuevas’s relies impacted would have defendant Cuevas’s link between the failure of the strategy, trial or some evidence that the provide passenger airline to the list government acted in faith in bad withhold- when the detriment he suffered Villamil information, say that cannot that called as a witness to rebuttal attack the district court abused its discretion in credibility. According his to defendant choosing remedy government’s to the dis- Cuevas, properly had he received the air- covery through violation exclusion of the government, line from the passenger list undisclosed evidence. possibility he would have known of the testify that Villamil would be called to In arguments addition to his con strategy would have altered his trial ac- cerning the district court’s failure to ade cordingly (presumably by testifying quately remedy discovery the violation by admitting presence himself or Villamil’s government, committed the the May flight).3 on Under this Cuevas also contends that the district theory, only adequate remedy for the court grant erred when it to him refused a government’s failure to disclose the exis- continuance to for prepare Villamil’s testi tence airline passenger of the list would mony. agree While we that have been to exclude both the list itself court grant had the discretion to testimony and the of rebuttal Villamil. continuance, Cuevas a see United States v. Although we our reiterate concern about Co., United Ins. Pacific government’s turn failure to over the (7th Cir.1970) (“[A]n application for a con defense, passenger airline list to the we do tinuance is addressed to the sound discre not believe that the district court erred in ”), tion of the trial court .... we do not remedy fashioning for that violation. that believe defendant Cuevas has demon passenger list would have shown that that a strated continuance was mandated aware passen- by the of circumstances this case or that gers May flight Dallas, on the court district abused its discretion in it given any but would not have Cuevas refusing grant one. See United States prepared indication Villamil was $94,000.00 Currency, in United States testify that accompanied he Cuevas to Dal- (7th Cir.1992) (“We F.3d review possession las. The notion that mere the trial court’s denial of continuance for passenger the airline list would have led to discretion.”). abuse We base this con the conclusion that Villamil would be called primarily clusion on defendant Cuevas’s testify and that would realization failure to show that a continuance was have trial strategy altered Cuevas’s is too necessary in prepare order for him to for speculative to demonstrate that the district testimony Villamil’s and on his inability should have excluded testi- Villamil’s mony preju- government’s or that defendant Cuevas was demonstrate that the actions diced the government’s calling actions. See Villamil as a rebuttal witness attempts government's 3. Defendant pas- Cuevas to establish that nondisclosure of airline remedy govern- court's senger government's list and the decision to discovery inadequate by ment's linking violation was call Villamil as a rebuttal witness were ar- failure to disclose gued separate and distinct issues before the passenger the airline list to the detriment only appeal district court. It is that defen- defendant Cuevas suffered when Villamil was dant Cuevas connects these issues in an at- permitted testify as a rebuttal witness. tempt prejudice. to demonstrate regard, significant it is to note that the govern- of trial the ery, but on the eve his defense. See United prejudiced the defense with a revised provided ment Avery, Although transcript. version of testify, was allowed to Before Villamil government contends that the revised that defendant ensured the district court transcript only contained translations him, and the to interview was able inaudible, portions previously thought de- that defendant Cuevas record reflects argues fendant Cruz-Velasco at trial ample opportunity cross-examine transcript modifications made to the and his credibility on both Villamil prejudicial to his significantly defense *13 testifying. Although defendant motive for justify overturning his conviction. Ac- the says had he known of now Cruz-Velasco, the cording to defendant would be called to that Villamil possibility delay in government’s providing up-to- additional testify sought he would have in transcripts should have resulted date testi- in for preparation information on the use at trial of the. new- prohibition of the taking pictures mony-including transcripts. ly-provided in ticket counter Chica- Vanguard airlines boarding and the airline’s go, investigating Although again this issue raises at the taking pictures ticketing procedures, ability problems regarding the of general pro- investigating rental ear airport, Dallas to react to evi defendant Cruz-Velasco Dallas, investigating in bus routes cedures discovery in turned over late the dence ascertaining Chicago, to from Dallas are regard our concerns in that process, a record of a bus ticket whether there was of the cir upon an examination alleviated Villamil, investigating Villamil’s surrounding the revised tran cumstances Cuevas does employment over delay turning —defendant in the mod script. this additional information indicate how due to the fault ified translations was not of have aided his cross-examination would rather to the ina government, of the but Moreover, much of the further Villamil. the bility to review of the sought by defendant Cuevas investigation transcript the accuracy original of the with known already places involved and events shortly tri until before relevant witnesses defense’s case even and relevant to the itself, the transcript from the Apart al. Against involved. Villamil became before the actual copy of provided defense was backdrop, we cannot conclude ample and had tape-recorded conversation its refus- district court abused discretion its own translation. opportunity seek a con- request for ing defendant Cuevas’s Furthermore, gov hearing that the upon F.2d Rogers, v. tinuance. See transcripts Pfeil new near provided ernment (“Absent Cir.1985) an abuse trial, gave defen district court start of discretion, the trial court’s determina- of opportunity dant Cruz-Velasco justified a continuance is tion of whether expert government’s cross-examine the appellate interfered with will not be tran the modifications witness on court.”). Cruz-Velas and informed defendant script to call his permitted be co that he would Defendant Raul Cruz-Velasco C. challenging expert own conversation. of the translated al version Raul Cruz-Velasco Defendant given the time a defendant is both in allow When that the district court erred leges any prob to address opportunity and the present a revised transcript and by a new con lems created tape-recorded of a transcript written version, the district an alternate present defendant Cruz-Velasco versation between the new transla refusal to exclude court’s informant Jose Villa See an abuse discretion. con tion is not transcript original nueva. The Zambrana, over to the defense United was turned versation Cir.1988) (“ [de- ‘Because the 497-98 part trial as of discov- well advance of opportunity ample suggested to either that it could fendant] withhold discover- specific portions challenge govern inculpatory able evidence until the defen- or transcript prepare ment’s an alter strategy dant asserted a defense on based version,’ complain nate he cannot now apparent nonexistence of that evi- appeal pursue when he failed to those ave dence, other, foreclosing possibly thus via- trial.”) (quoting nues at United States v. ble, strategies. defense See id. at 608. Zambrana, Cir. The Eleventh Circuit refused to adopt the 1988)); Llinas, United States government’s suggestion “it because would (5th Cir.1979). encourage precisely the ‘trial ambush’ that the Federal Rules of Criminal Proce- III. Conclusion designed dure were prevent.” Id. Con- Having reviewed the arising issues from sequently, the Noe court granted the de- the defendants’ convictions and sentences fendant a new trial. at See id. error, and finding no reversible we Affirm bar, the case at the government decisions district court. *14 claims that a defendant simply does not WILLIAMS, Judge, Circuit dissenting right have the to lie impu- under oath with part. majority I dissent from the nity government on the belief that the will opinion in respects. two prove not be able to otherwise because he

First, my unlike colleagues, I do not has not given prior been notice aof rebut- believe that the adequately district court tal identity. government, witness’ The government’s discovery remedied the vio- however, point. misses the The issue here agree lation. I that the has trial, is about a fair not Cuevas’s credibili- the discretion to determine the appropri- ty. The Noe court addressed a similar ate sanction for a Federal Rule of Criminal argument. Procedure 161violation and that this court The appeals “justice” will not disturb the district court’s ruling uphold guilty Noe’s verdicts are mis- showing a prejudice. absent unremedied placed. Although certainly Noe does “A prejudiced defendant is under Rule 16 right not have the to “fabricate” an alibi only when unduly surprised he is and lacks story, the Federal Rules of Criminal an adequate opportunity prepare a de- provide right Procedure him a ... fense, or when substantially the violation strategy devise a defense on the basis of jury.” influences the United States v. De the evidence disclosed.... Had the Rosa, (7th Cir.1999). La government ... complied fully with question The here is whether the loss of ..., discovery Noe’s request it would potential a defense strategy as the result not now be invoking before this court of a discovery violation enough creates vague justice. Likewise, notions of had prejudice require a new trial. This is Noe tape been aware of the recordings impression issue of first for our circuit. trial, prior to “might counsel well In a similar case from the Eleventh Cir- have advised not [him] take the cuit, the challenged his convic- Padrone, stand.” United States tion on the ground that the district court (2d Cir.1969). gov- The admitted tape into evidence a recording of ernment, however, comply failed to with the defendant though on rebuttal even Noe’s discovery request and did not government dis- had failed to turn over the tape close the tape during pretrial discovery. recording until after Noe See Unit- Noe, ed developed implemented his trial response, government strategy. Consequently, the govern- 16(a)(1)(C) requires 1. Fed.R.Crim.P. preparation discov- are "material to of the defen- documents, ery including of certain those that dant’s defense.” received these government records —the that the discov- now cannot claim merit trial, day of on the first Cuevas harmless. documents ery violation right his constitutional may have exercised added). (emphasis Id. minimum, At a testify. not to sanctions ease, court’s In our opportunity proper- have had an should A trial my new view. insufficient a ly investigate prepare cross-exami- failure to disclose when is warranted strategy. nation prepara to the a detriment so serious “is of serious the defense trial and tion for con- my colleagues’ from I also dissent appar it is charges where [and] criminal im- suppression regarding clusion here, defense ent, defendant’s] that [the concerning Daniel evidence peachment by the determined may have strategy been agree I that the Chavez. do Padrone, 406 F.2d at comply.” failure to Brady violation and did not commit provide does not is whether question the central here disclosing the any valid reasons for initial making erred in its district court acted in to have report and appears airline disput- materiality as to the determination Moreover, trial strate Cuevas’s faith. bad however, am, I troubled ed evidence. by the prejudiced gy significantly surrounding the deter- the unusual events States v. Camar See United “ambush.” payments made to Cha- mination that the 993, 998-99 Cir. go-Vergara, to this case. vez were not relevant 1995) sub (finding rely the sound discre- Ordinarily, we defendant’s case prejudiced the stantially whether to con- the district judge tion of portion its failure to disclose *15 government review of duct an in camera trial until after statement defendant’s 854 Phillips, States v. files. See United already had started because 273, Here we F.2d 277 to a trial himself and committed prepared however, cannot, on the record determine strategy). properly exer- the district court whether to look at urges us majority the While the situation discretion. Unlike cised its testimo Villamil’s the airline manifest and transcript was in no record or Phillips, isolation, not believe that in I ny do parte camera hear- the ex prepared of learned government apparently can. the judge and the district between subpoe the identity through of Villamil’s Furthermore, all government officials.2 he would Consequently, naed manifest. judge’s conclusory we have is the without witness have been a rebuttal not made to Chavez payments the opinion that of that manifest. government’s review investigation. separate to a were related case rebuttal Because the from knowledge gained upon was built all the details to know juryA is entitled records, records the banned those govern- relationship to the aof witness’ [they] if had been “just as effective Muscarella, as v. United States ment. See States v. in evidence.” United introduced (7th Cir.1978); Unit- cf. Cir. Rodriguez, 799 F.2d 239, 245-46 Boyd, ed States 1986). testimony especially Villamil’s Cir.1995) testimony in ex- (ruling only gov “inside” He was damning. a favors to witness change special met and that he to claim ernment witness treatment or favorable con during alleged dealt with system be dis- justice should the criminal spiracy. evidence). This impeachment closed informant’s rela- information includes turned timely If the outside tionship with or ticket flight manifest the airline over at 277. in camera. had viewed court was able to Phillips, appellate that the district the entire file review case at issue. See United particular Williams, States v. F.2d 671-72 America, UNITED STATES of (11th Cir.1992). jury right “The has Plaintiff-Appellee, witness, may motivating know what be a especially government paid, regularly EVANS, Marcus O. Defendant- employed, informant-witness.” Id. at 672. Appellant. may There cir- unique indeed be some No. 99-1187. cumstances where a district court within its discretion excludes some this evi- Appeals, United States Court of However, dence as irrelevant. Seventh Circuit. should, least, judge very at the provide the July Submitted appellate court with a record-even if By establishing sealed—to review. Decided Aug. record, effectively the district court nulli- review. See United States v. appellate fies

Southard, (1st Cir.1983).

Consequently, I believe that the court be-

low abused its discretion.

My colleagues conclude that the defen- prejudiced

dants were not because the er-

ror, any, if harmless. Chavez admit-

ted on cross-examination that he awas Therefore,

paid government informant. majority any finds other evidence payments merely would have been cu-

mulative. Because the record is incom- however,

plete, I do not believe that we

can make that determination. Further-

more, important Chavez was an govern-

ment drug witness who detailed deals and illegal among

other activities the cocon-

spirators. testimony may very His well

have effectively impeached jury been- if complete

knew his relationship pros- to the

ecution.

Therefore, respectfully I dissent on

these two issues.