United States v. Ervin, James

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 05-4700 & 06-1834

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JAMES E RVIN and JAY Z AMBRANA,

Defendants-Appellants.

____________

Appeals from the United States District Court

for the Northern District of Indiana, Fort Wayne Division.

No. 00 CR 28—Theresa L. Springmann, Judge.

____________

A RGUED JANUARY 14, 2008—D ECIDED S EPTEMBER 2, 2008

____________

Before P OSNER, K ANNE, and W ILLIAMS, Circuit Judges.

K ANNE, Circuit Judge. A federal grand jury charged Jay

Zambrana and James Ervin with violating numerous

provisions of federal law by participating in a drug-

trafficking conspiracy, see 18 U.S.C. §§ 2, 922(g)(1), 1951,

1956(a)(1)(A)(i), (a)(1)(B)(i), 1957; 21 U.S.C. §§ 841(a)(1),

843(b), 846, 856(a)(1), and by killing two men in further-

ance of that conspiracy, see 18 U.S.C. § 2; 21 U.S.C.

§ 848(e)(1)(A). Before trial, Zambrana sought to sever the

2 Nos. 05-4700 & 06-1834

homicide counts from the drug-conspiracy counts, see

Fed. R. Crim. P. 14(a), to no avail. A jury found Zambrana

and Ervin guilty on all counts, based largely on the ex-

tensive testimony of the two men’s co-conspirators who

agreed to testify against them in exchange for immunity

or reduced sentences. Two years later, Zambrana and

Ervin filed motions seeking a new trial, see Fed. R. Crim. P.

33(a), on the grounds that new evidence came to light

showing that (1) one of the co-conspirators who testified

against them engaged in several acts of misconduct

while detained at the city jail in Hammond, Indiana, before

trial; and (2) the government withheld the evidence of

that misconduct in derogation of Brady v. Maryland, 373

U.S. 83 (1963). The district court denied the motions.

We affirm.

I. H ISTORY

In September 1997, officers with the police department

in Lake County, Indiana, arrested Alvestia McKeller in

Merrillville, Indiana, after they recovered one kilogram

of cocaine from his car’s trunk during a traffic stop.

McKeller quickly informed the officers that he had pur-

chased the cocaine from his cousin, who had, in turn,

obtained the drugs from Zambrana. McKeller’s ad-

missions spurred a wide-scale investigation of Zambrana

by the Drug Enforcement Administration; the Internal

Revenue Service; the Bureau of Alcohol, Tobacco, Firearms,

and Explosives; and the Federal Bureau of Investiga-

tion (FBI). That investigation culminated in 2002 with the

filing of a 40-count indictment against Zambrana, Ervin,

Nos. 05-4700 & 06-1834 3

and seven others; Zambrana was a named defendant in

29 of the counts, and Ervin was named in eleven.

In general, the indictment alleged that the nine men

comprised a wide-reaching drug-trafficking ring in north-

west Indiana, and that as part of the conspiracy they

obtained and distributed marijuana, heroin, and cocaine;

extorted others; laundered money to conceal the con-

spiracy; carried and used firearms to further the conspir-

acy; and committed numerous violent acts—including

murder—to supply the conspiracy with money and drugs.

As pertinent here, the indictment claimed that Zambrana

led the drug-trafficking ring, and that Ervin—an officer

with the police department in Gary, Indiana—acted as

his muscle. As part of his leadership duties, the indict-

ment continued, Zambrana would launder the revenue

derived from the conspiracy by visiting riverboat casinos,

gambling with the drug money, and exchanging his

“winnings” for “clean” cashier’s checks from the casinos.

Finally, the indictment alleged that Zambrana, Ervin, and

two others conspired to kill Raul Hurtado and Gil Nevarez

as part of a scheme to obtain five kilograms of cocaine.

About six months before trial, Zambrana filed a motion

to sever the indictment’s homicide counts from the drug-

conspiracy counts. In his motion, Zambrana asserted that

he “wish[ed] to testify” in his own defense against the

homicide counts, but “[t]hat combining all the counts at

one trial” would prevent him from doing so if he chose

to exercise his right not to testify as to the drug-con-

spiracy counts. Moreover, Zambrana argued, trying the

homicide and drug-conspiracy counts together would

4 Nos. 05-4700 & 06-1834

prevent him from receiving a fair trial. Zambrana simulta-

neously filed a notice of affirmative defense, in which

he stated that he “may rely on [an] alibi defense” to

respond to the homicide charges. See Fed. R. Crim. P.

12.1(a)(1)-(2). Zambrana contended that he “was

gambling on the casino boats” during the time that the

government had alleged that Hurtado’s and Nevarez’s

murders occurred, and explained that he would “rely on

records provided by the [g]overnment to establish such

alibi.” The district court rejected Zambrana’s arguments,

concluding that he neither provided “any specific testi-

mony he intend[ed] to give” regarding the homicide

counts, nor explained how a single trial on all the counts

in the indictment would prevent the jury from reaching

a reliable verdict. The court therefore denied his motion

to sever.

The case proceeded to trial, and the government pre-

sented 57 witnesses, including five of Zambrana’s and

Ervin’s co-conspirators who described the inner-workings

of the drug-trafficking ring. As relevant to this appeal,

three of Zambrana’s and Ervin’s cohorts—Carlos Ripoll,

Denny Arreola, and Tony Clinton—explained how

Zambrana and Ervin participated in the conspiracy, and

described Zambrana’s and Ervin’s roles in the murder of

Hurtado and Nevarez.

In a nutshell, Ripoll, Arreola, and Clinton together

testified that (1) Zambrana approved of Ripoll’s and

Arreola’s plan to rob Hurtado and Nevarez of their co-

caine and murder them; (2) Zambrana ordered Ervin to

coordinate and to execute the heist and killings; (3) in

Nos. 05-4700 & 06-1834 5

accordance with the plan, Ervin “arrested” Hurtado and

Nevarez during a sham traffic stop, took their cocaine, and

drove the two men to the Puerto Rican Benefica Club in

Gary; (4) at the Benefica Club, Arreola witnessed Ervin and

another co-conspirator, Gabriel Benavides, strangle

Hurtado and Nevarez; (5) Zambrana ordered Clinton

to help Ervin dispose of the bodies; (6) Clinton helped

Ervin load the bodies into the trunk of a car, followed

him in another car as they drove to the south side of

Chicago, Illinois, and watched as Ervin set the car on fire

in a secluded alley (where the Chicago Fire Department

would later find it and the two bodies it contained); and

(7) on the return trip to Gary, Ervin described in graphic

detail to Clinton how he and Benavides strangled

Hurtado and Nevarez.

Zambrana’s and Ervin’s attorneys thoroughly impeached

Ripoll’s, Arreola’s, and Clinton’s testimony. The defense

asked pointed questions to each man about how he was

originally charged with participating in the drug-traffick-

ing conspiracy, and forced the men to admit that they

agreed to testify against Zambrana and Ervin only after

the government offered them immunity from the

homicide counts or reduced sentences as to the drug-

conspiracy counts. Arreola, in particular, was questioned

further about his role in Hurtado’s and Nevarez’s robbery

and murders, and was forced to admit that he had lied

to the police when they first interviewed him about the

crime. The defense also got the three men to admit that

they had several opportunities to communicate with

each other after they had agreed to testify against

Zambrana and Ervin; Arreola similarly admitted that

6 Nos. 05-4700 & 06-1834

while he was housed in the Metropolitan Correctional

Center (“MCC”) in Chicago during trial, a guard smuggled

a cell phone to him, and that he used the phone to

make unmonitored telephone calls. The defense also

questioned Arreola about his membership in the

notorious Latin Kings street gang. And in their con-

tinuing effort to impeach Arreola, the defense called a

character witness to testify that Arreola was untrustworthy

and had a reputation for stealing, and also called an

inmate at the MCC who claimed that, while Arreola was

detained there, he had stated that Zambrana had nothing

to do with the murders. Arreola’s credibility was further

attacked in the defense’s closing arguments.

Before the jury retired to deliberate, the district court

carefully instructed it on how to weigh the evidence

regarding the many crimes alleged. Specifically, the

court informed the jury that “[e]ach count of the

[i]ndictment charge[d] each defendant named in that

count with having committed a separate offense”; stated

that the jury “must give separate consideration both to

each count and to each defendant”; and ordered the jury

to “consider each count and the evidence relating to it

separate and apart from every other count.” The jury then

entered into its deliberations, and subsequently found

Zambrana and Ervin guilty on all counts.

Both Zambrana and Ervin remained in custody awaiting

sentencing for over two years. But then in November 2005,

the United States Attorney’s Office sent a letter to

Zambrana’s and Ervin’s attorneys, stating that it had

recently learned that while Arreola was detained at the

Nos. 05-4700 & 06-1834 7

Hammond City Jail before trial, he engaged in various

incidents of misconduct with some of the jail’s personnel.

The letter stated that, among other things, Arreola had

been permitted to smoke cigarettes in the jail garage

area unsupervised, to have sexual intercourse with

female visitors, to make unmonitored telephone calls, and

to receive visits at the jail without first placing his

visitors on the jail’s visitors log. The letter also detailed

that Arreola had a “personal relationship” with a female

guard, and that other guards had thrown a birthday

party for Arreola’s girlfriend, had purchased food for

him, and had allowed visitors to give him Xanax. Never-

theless, the letter emphasized that the United States

Attorney’s Office and “the federal investigators involved

with the Jay Zambrana prosecution and trial” were not

aware of the misconduct before the trial. Instead, the

letter continued, the Office had learned of the miscon-

duct only after an investigation undertaken by the

United States Marshals and the FBI confirmed that the

misconduct had, in fact, occurred; that investigation, the

letter stated, had been completed just “recently.”

Ervin filed a motion for new trial shortly after receiving

the United States Attorney’s letter. Ervin contended that

the newly discovered evidence of Arreola’s misconduct

at the Hammond City Jail warranted a new trial so he

could use the information to impeach Arreola. Ervin also

alleged that the government had been aware of Arreola’s

misconduct before trial, and thus contravened Brady by

suppressing the evidence of that malfeasance. Ervin did

not, however, request an evidentiary hearing on his

motion, and instead went forward with sentencing. And

8 Nos. 05-4700 & 06-1834

at his sentencing hearing, Ervin accepted the govern-

ment’s representations regarding both Arreola’s miscon-

duct and its lack of knowledge of the misconduct, but

contended that the revelations nevertheless justified

a new trial.

The district court rejected Ervin’s arguments, concluding

that the evidence of Arreola’s misconduct did not war-

rant a new trial as newly discovered impeachment evi-

dence because, among other things, Arreola already had

been thoroughly impeached. Moreover, the court contin-

ued, Ervin failed to show that the government suppressed

the evidence of Arreola’s malfeasance: “There was no

evidence offered that any [federal] agency knew of the

violations taking place at the Hammond City Jail or that

it should have been known by the prosecutors.” And even

if the government had suppressed the evidence of

Arreola’s misconduct, the court continued, the sup-

pression could not have run counter to Brady because the

evidence was merely cumulative impeachment evidence.

The court thus denied Ervin’s motion and sentenced

him to life imprisonment.

Zambrana also filed a motion for new trial, mostly

echoing the newly discovered evidence and Brady argu-

ments put forward by Ervin, and further asserting that

the government withheld evidence showing that Ripoll,

Arreola, and Clinton discussed their testimony before

trial as part of a greater plan to frame Zambrana for

Hurtado’s and Nevarez’s murders. But unlike Ervin,

Zambrana requested an evidentiary hearing on his mo-

tion. The district court agreed to Zambrana’s request,

Nos. 05-4700 & 06-1834 9

continued his sentencing hearing, and determined that

it would hear evidence regarding Zambrana’s motion at

the rescheduled sentencing hearing itself.

At the hearing, Zambrana presented nine witnesses in

an attempt to show that the government knew of, and

suppressed, Arreola’s misconduct and his ability to

coordinate his testimony with Ripoll and Clinton. For

instance, Zambrana called as a witness Trinidad Cruz, an

inmate at the MCC who testified that before Zambrana’s

and Ervin’s trial, he, Arreola, and Clinton were transferred

together from the MCC to the jail in Porter County, Indi-

ana, and that during the trip Arreola and Clinton “were

all talking together.” Cruz did not state, however, that

Arreola and Clinton were “talking” about their testi-

mony. Zambrana called Ripoll, Arreola, and Clinton to

testify as well, but each man denied that they had coordi-

nated their testimony, and further stated that they had not

discussed their testimony before trial beyond the dis-

cussions to which they had already admitted at trial.

The district court rejected Zambrana’s arguments with

the same reasoning that it had used to deny Ervin’s

motion: the evidence of Arreola’s misconduct did not

warrant a new trial because Arreola had already been

thoroughly impeached; there was nothing to suggest that

the government knew of or suppressed the evidence of

Arreola’s misconduct; and even if the government had

suppressed the evidence of misconduct, the suppression

would not have run afoul of Brady because the evidence

was merely cumulative impeachment evidence. The court

also determined that though Zambrana showed that

10 Nos. 05-4700 & 06-1834

Ripoll, Arreola, and Clinton had opportunities to discuss

their testimony before trial, he nevertheless failed to

point to specific evidence that “the government knew that

any conversation between [the three men] took place

other than what was disclosed.” The court accordingly

denied Zambrana’s motion for new trial, and subsequently

sentenced him to life imprisonment.

II. A NALYSIS

Zambrana and Ervin raise two arguments on appeal.

First, Zambrana argues that the district court incorrectly

denied his motion to sever the homicide counts in the

indictment from the drug-conspiracy counts. Next,

Zambrana and Ervin together challenge the district

court’s denial of their motions for new trial. We address

these arguments below.

A. The district court’s denial of Zambrana’s motion to sever

We first address the district court’s denial of Zambrana’s

motion to sever the homicide counts from the drug-con-

spiracy counts, a decision that we review for abuse of

discretion. See United States v. Rice, 520 F.3d 811, 817 (7th

Cir. 2008). Under Fed. R. Crim. P. 8(a), an indictment

may charge a defendant with two or more offenses in

separate counts if the offenses charged “are of the same

or similar character, or are based on the same act or

transaction, or are connected with or constitute parts of a

common scheme or plan.” Fed. R. Crim. P. 14(a), however,

states that if the joinder of offenses “appears to prejudice

Nos. 05-4700 & 06-1834 11

a defendant,” then the district court may order separate

trials for the different offenses. The potential sources

of prejudice are many. For instance, the joinder might

impermissibly coerce a defendant “into testifying on a

count upon which he wishes to remain silent.” United States

v. Archer, 843 F.2d 1019, 1022 (7th Cir. 1988); see also United

States v. Nettles, 476 F.3d 508, 516-17 (7th Cir. 2007). Like-

wise, the joinder may prejudice the defendant by creating

a “spill-over effect”—that is, that the jury relies on evi-

dence presented on one set of counts when reaching a

conclusion on the other set. See United States v. Dixon, 184

F.3d 643, 645-46 (7th Cir. 1999); United States v. Freland, 141

F.3d 1223, 1226-27 (7th Cir. 1998).

But whatever the source of the purported prejudice, the

defendant bears a heavy burden on appeal when arguing

that the prejudice warranted severance. It is not enough

for the defendant to show that separate trials for the

charges “ ‘may have provided him with a better opportu-

nity for acquittal.’ ” Dixon, 184 F.3d at 645 (quoting

United States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998)).

Instead, the defendant must establish that the denial of

severance actually prejudiced him by preventing the

jury from arriving at a reliable judgment as to guilt or

innocence. See id.; Alexander, 135 F.3d at 477; United

States v. Balzano, 916 F.2d 1273, 1282 (7th Cir. 1990).

Here, Zambrana argues that he was “unfairly and

materially prejudiced by the joinder of the [h]omicide

[c]harges to the [d]rug-[conspiracy] [c]harges.” Zambrana

explains that the joinder “prevented him from testifying

in his defense” against the homicide allegations. Specifi-

12 Nos. 05-4700 & 06-1834

cally, Zambrana continues, but for the joinder of the

homicide and drug-conspiracy counts, he would have

testified that on the night of Hurtado’s and Nevarez’s

murders he was gambling on riverboats, nowhere

near the two men. But because the indictment alleged

that he had gambled on riverboats to launder his drug

money, Zambrana posits that, had he opted to testify as

to his alibi, he would have necessarily implicated himself

on the money-laundering counts. Zambrana further

contends that the district court was aware that he

wished to testify as to his alibi. As he points out, he filed

a notice of an affirmative defense, in which he stated

that during the period of time that the government had

alleged that Hurtado and Nevarez were murdered, he

“was gambling on the casino boats.” Thus, Zambrana

argues, the district court incorrectly concluded that he

failed to support his motion to sever by not producing

the “specific testimony he intend[ed] to give” regarding

the homicide counts.

Zambrana’s argument is meritless. When seeking to

sever charges on the ground that he wishes to testify to

some charges but not to others, a defendant must offer “ ‘a

convincing showing that he has both important testimony

to give concerning one count and [the] strong need to

refrain from testifying on the other.’ ” Archer, 843 F.2d at

1022 (quoting Baker v. United States, 401 F.2d 958, 977 (D.C.

Cir. 1968)); see also Alexander, 135 F.3d at 477. A defendant’s

“general assertions” about the testimony he seeks to

offer will not suffice; he must proffer “specific examples

of the exculpatory testimony” that he would give but

for the joinder of the counts. Alexander, 135 F.3d at 477;

Nos. 05-4700 & 06-1834 13

see also Balzano, 916 F.2d at 1283. But in his motion to

sever, Zambrana provided no such pointed examples of

the “exculpatory testimony” he wished to provide; he

merely stated that he “wish[ed] to testify” in his own

defense against the homicide counts, but “[t]hat combining

all the counts at one trial” would prevent him from

doing so. And the fact that Zambrana submitted a notice

to present an alibi defense does not mitigate his vague

proffered justification for severance. Nowhere in the

notice did Zambrana state that he wished to testify that

he was gambling when Hurtado and Nevarez were mur-

dered. In fact, Zambrana expressly stated that he would

“rely on records provided by the [g]overnment” to estab-

lish his alibi, and not on his own testimony. In all,

Zambrana presented nothing more than “general asser-

tions” that, absent the severance, he would not be able

to testify as to the homicide charges—a showing that was

insufficient to show that severance was necessary. See

Alexander, 135 F.3d at 477; Balzano, 916 F.2d at 1283.

Zambrana also contends that severance was necessary

to avoid a prejudicial “spill-over effect” from the drug-

conspiracy counts to the homicide counts. According to

Zambrana, the government’s case against him on the

homicide counts was “weak,” and the joinder of the

homicide counts with the drug-conspiracy counts

caused him to “suffer a spill-over effect of the stronger

evidence of the [d]rug-[conspiracy] [c]harges onto the

more circumstantial and flimsy evidence supporting

the [h]omicide [c]harges.” Thus, Zambrana argues,

“[a]llowing the same jury to hear all of the evidence and

decide all of the charges together . . . created an unreason-

14 Nos. 05-4700 & 06-1834

able risk that the jury decided the [h]omicide [c]harges

based on the stronger evidence presented in support of

the [d]rug-[conspiracy] [c]harges.”

But Zambrana ignores that the district court instructed

the jury to consider each count and its related evidence

separately. Specifically, the court instructed the jury to

“consider each count and the evidence relating to it

separate and apart from every other count.” We presume

a jury “ ‘attend[s] closely [to] the particular language of the

trial court’s instructions in a criminal case,’ ” including

when the jury is “ ‘instructed to consider each count and

the relating evidence separately.’ ” United States v. Stokes,

211 F.3d 1039, 1043 (7th Cir. 2000) (quoting United States v.

Coleman, 22 F.3d 126, 135 (7th Cir. 1994), and United States

v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998)). We find

nothing in the record that would make us “ ‘suppose that

[the jury] would disregard’ ” the district court’s instruc-

tions in this case, and Zambrana points to no evidence that

reveals that the jury ignored the court’s instructions. Id.

(quoting Coleman, 22 F.3d at 135); see also United States v.

Stillo, 57 F.3d 553, 557 (7th Cir. 1995); United States v.

Boykins, 9 F.3d 1278, 1289 (7th Cir. 1993). And because the

district court’s instructions provided “ ‘an adequate safe-

guard’ ” against “ ‘evidentiary spillover and cumulation of

evidence,’ ” Balzano, 916 F.2d at 1282 (quoting United States

v. Moya-Gomez, 860 F.2d 706, 768 (7th Cir. 1988)), we cannot

say that Zambrana was prejudiced by the district court’s

denial of his motion to sever, see United States v. Moore,

363 F.3d 631, 642 (7th Cir. 2004) (stating that limiting

instruction “adequately handled any risk of prejudice” to

Nos. 05-4700 & 06-1834 15

defendant), vacated in part by Young v. United States, 543

U.S. 1100 (2005), and Jackson v. United States, 543 U.S. 1100

(2005), in light of United States v. Booker, 543 U.S. 220 (2005).

B. The district court’s denial of Zambrana’s and Ervin’s

motions for new trial

Next, Zambrana and Ervin both challenge the district

court’s denial of their motions for new trial—a decision

that also rested within the court’s discretion. See United

States v. Palivos, 486 F.3d 250, 254 (7th Cir. 2007). Zambrana

and Ervin each assert that the district court abused that

discretion by failing to conduct an evidentiary hearing

(in Ervin’s case) and by holding an inadequate

evidentiary hearing (in Zambrana’s case) before denying

their motions for new trial. As both men put it, the dis-

trict court failed to “inform its discretion” when conclud-

ing that the evidence of Arreola’s misconduct and the

government’s alleged suppression of that evidence did not

justify a new trial, and thus its denial of their motions

should be reversed.

However, Zambrana and Ervin have waived any chal-

lenge to the manner in which the district court weighed

the evidence in support of their motions by failing to

object to the court itself regarding the way in which it

considered the evidence. See United States v. Haskins, 511

F.3d 688, 693 (7th Cir. 2007); United States v. Charles, 476

F.3d 492, 495-96 (7th Cir. 2007); United States v.

Hernandez-Rivas, 348 F.3d 595, 598 (7th Cir. 2003) (“The

general rule within the Seventh Circuit is that if a party

16 Nos. 05-4700 & 06-1834

fails to file an objection with the district court, he or she

‘waives the right to appeal all issues, both factual and

legal.’ ” (quoting United States v. Brown, 79 F.3d 1499, 1503

(7th Cir. 1996))). Even more, Ervin did not request an

evidentiary hearing on his motion, and further accepted

the government’s representations regarding Arreola’s

misconduct and the government’s lack of knowledge of

the misconduct. Similarly, the district court granted

Zambrana’s request for an evidentiary hearing, and at that

hearing he was allowed to present nine witnesses in

support of his motion. The district court never attempted

to limit the scope of the hearing, and Zambrana never

objected to the manner in which the district court held

the hearing. And because both men failed to challenge

the manner in which the district court considered the

evidence related to their motions for new trial, we will not

address the issue here. See Haskins, 511 F.3d at 693; Charles,

476 F.3d at 495-96; Hernandez-Rivas, 348 F.3d at 598.

But even if Zambrana and Ervin had preserved their

challenges as to how the district court “informed its

discretion,” the arguments would have failed. Because

their substantive arguments in support of their motions

for new trial are meritless, any purported procedural

deficiency in the manner in which the district court

weighed the evidence would have been harmless. See

United States v. Kelly, 337 F.3d 897, 901-02 (7th Cir. 2003)

(holding that district court’s failure to hold evidentiary

hearing to ascertain whether defendant breached plea

agreement was harmless when it was clear defendant

breached agreement); see also Pinholster v. Ayers, 525

F.3d 742, 764 (9th Cir. 2008) (holding that “any error the

Nos. 05-4700 & 06-1834 17

district court may have committed” at evidentiary hearing

addressing ineffective-assistance-of-counsel claim was

harmless because defendant failed to show he was preju-

diced by counsel’s alleged shortcomings); Wyoming v.

Livingston, 443 F.3d 1211, 1225-26 (10th Cir. 2006) (stating

that district court’s failure to hold evidentiary hearing on

issue of removal was harmless where evidence clearly

supported removal: “In our view, to reverse and remand

to the district court for an evidentiary hearing (on noth-

ing), as the State requests, would be a colossal waste of

time and resources”).

Specifically, the evidence of Arreola’s misconduct did

not justify a new trial as newly discovered evidence. To

obtain a new trial based on newly discovered evidence,

a defendant must show, among other things, that the

evidence in question “is material and not merely impeach-

ing or cumulative,” and that it “probably would lead to an

acquittal in the event of a new trial.” United States v.

Hodges, 315 F.3d 794, 801 (7th Cir. 2003). And yet the

evidence of Arreola’s misconduct is both impeaching and

cumulative. The evidence did not show, as Zambrana

contended before the district court, that Arreola took

advantage of his unmonitored telephone calls and visits

in jail to discuss with Ripoll and Clinton how to testify.

The most that the evidence shows in that regard is that

Arreola could have made an unmonitored telephone call to

contact Ripoll or Clinton somehow, and that the three

men had opportunities to discuss their testimony while

they were detained together, such as when Arreola and

Clinton were being transferred from the MCC with Cruz.

But there is no evidence that suggests that the three

18 Nos. 05-4700 & 06-1834

men actually coordinated their testimony. To the contrary,

at the evidentiary hearing on Zambrana’s motion, Ripoll,

Arreola, and Clinton each testified that they did not

discuss their trial testimony beyond the discussions that

they had already described at trial.

If anything, then, the evidence of Arreola’s miscon-

duct would have been relevant to show that he was an

untrustworthy, criminal-minded, and manipulative

individual who had the propensity for deception and a

willingness to break the law. But at trial, Zambrana and

Ervin thoroughly impeached Arreola as to his drug-

trafficking past, his gang affiliation, his role in Hurtado’s

and Nevarez’s murders, the lies he previously told to the

police investigating the murders, and his misconduct at

the MCC. Both men even called character witnesses to

impugn Arreola’s credibility further.

It therefore is unlikely that more evidence describing

Arreola’s criminal nature—that is, his misconduct at the

Hammond City Jail—could sway a new jury to such an

extent as to lead it to acquit Zambrana or Ervin. This

is particularly so when Arreola was not the only witness

to testify that Zambrana and Ervin had helped scheme to

rob and to murder Hurtado and Nevarez. See United States

v. DePriest, 6 F.3d 1201, 1217 (7th Cir. 1993) (relying on

United States v. Taglia, 922 F.2d 413, 415 (7th Cir. 1991), to

determine that newly discovered impeachment evidence

did not warrant new trial because conviction was not

“premised on the demonstrably dubious testimony of a

single witness”).

Nos. 05-4700 & 06-1834 19

And because the proof of Arreola’s misconduct was

merely cumulative impeachment evidence, Zambrana’s

and Ervin’s Brady claims necessarily fail. Brady does not

extend to “[e]vidence that impeaches an already thor-

oughly impeached witness.” United States v. Kozinski, 16

F.3d 795, 819 (7th Cir. 1994); see also United States v. Bailey,

510 F.3d 726, 736 (7th Cir. 2007). Although Brady pro-

hibits the government from suppressing evidence that

could be used to impeach a government witness, see United

States v. Bagley, 473 U.S. 667, 676-77 (1985); Giglio v. United

States, 405 U.S. 150, 154 (1972); United States v. Dabney, 498

F.3d 455, 459 (7th Cir. 2007), the evidence must be for

“ ‘more than cumulative impeachment,’ ” Kozinski, 16 F.3d

at 819 (quoting United States v. Dweck, 913 F.2d 365, 371 (7th

Cir. 1990)); see also Bailey, 510 F.3d at 736; United States

v. Senn, 129 F.3d 886, 893 (7th Cir. 1997) (“Because the

defendants did impeach [the witness] on a number of

issues, they can’t really make a convincing argument

that additional impeachment had a reasonable probabil-

ity of changing the outcome of the trial.”). And because

Arreola was thoroughly impeached at trial, even if the

government had suppressed the evidence of Arreola’s

misconduct at the Hammond City Jail (which, given the

government’s explanations, we do not believe to be the

case), Zambrana’s and Ervin’s Brady claims would still

fail. See Bailey, 510 F.3d at 736; Kozinski, 16 F.3d at 819. We

thus cannot fault the district court for denying Zambrana’s

and Ervin’s motions for new trial.

20 Nos. 05-4700 & 06-1834

III. C ONCLUSION

We A FFIRM the district court’s denial of Zambrana’s

motion to sever, as well as the district court’s denials of

Zambrana’s and Ervin’s motions for new trial.

9-2-08