In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2204
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A NAS S ALEM,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 181—Lynn Adelman, Judge.
A RGUED M AY 13, 2011—D ECIDED JUNE 21, 2011
Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
T INDER, Circuit Judge. A jury convicted Anas Salem
of using a gun to intimidate a witness. 18 U.S.C. § 1512;
id. § 924(c). On the eve of Salem’s sentencing hearing,
the government produced statements placing that
witness—who was also the government’s star witness
against Salem—at the scene of a murder for which he
was never charged. Salem moved for a new trial,
arguing that this belatedly produced evidence would
2 No. 10-2204
have shown that the witness had a motive to tailor his
testimony in the government’s favor and, therefore, that
the government violated Brady v. Maryland, 373 U.S. 83
(1963), and Giglio v. United States, 405 U.S. 150 (1972), by
failing to disclose it before trial. The district court dis-
agreed and denied Salem’s motion. Salem appealed,
and we vacated the district court’s order after concluding
that the record was insufficiently developed to permit
the finding that the government’s belated disclosure of
the evidence did not run afoul of Brady and Giglio. See
United States v. Salem, 578 F.3d 682, 690 (7th Cir. 2009).
We instructed the district court to hold an evidentiary
hearing and remanded the case so it could do so. See id.
The district court followed our directives to the letter,
developing the record, holding a hearing, and making
findings concerning the belatedly disclosed evidence.
After taking these steps, it reached the same conclusion
it did the first time: there was no reasonable probability
that the outcome in Salem’s case would have been dif-
ferent if the jury had been apprised of the murder
evidence during trial. Salem appeals once more. This
time we affirm.
I.
Carlos Lopez, a member of the Milwaukee Latin Kings
street gang, began cooperating with the government in
the summer of 2005. His cooperation helped bring about
a thirty-eight count indictment against forty-nine Latin
Kings, including Salem’s brother and Lopez himself. The
September 27, 2005, indictment charged Lopez with a
No. 10-2204 3
variety of drug, gun, and RICO crimes, but he was out
on bond when Salem allegedly threatened and beat him
on November 1, 2005.
According to Lopez’s testimony at Salem’s trial, he was
out with a friend, Shane Bach, when fellow Latin Kings
Salem and Marcus Colin approached his car, accused
him of being a snitch, and threatened to shoot him.
Lopez maintained that he was not a snitch and claimed
he had “paperwork” to prove it. Salem demanded to
see the paperwork, so Lopez drove Salem, Colin, and
Bach to his house. During the car ride, Lopez testified,
he heard Salem ask Colin if he had “one in the cham-
ber,” which Lopez took to mean a bullet in a gun. When
the quartet arrived at Lopez’s house, Salem warned
Lopez that he would shoot Lopez’s mother if Lopez
did anything stupid.
Salem and Colin entered the house with Lopez, who
staged a search for the nonexistent paperwork. Salem
stayed “right behind” Lopez the whole time, following
him as he rifled through papers on his mother’s desk.
Lopez’s mother appeared, and Lopez told her, while
winking, that he was looking for his paperwork. He
continued the charade for a few minutes before asking
Salem if he could go upstairs to look in his bedroom.
Salem responded by telling Lopez that if he did not exit
the house in five seconds, Salem would shoot Lopez’s
mother. Lopez hurriedly left the house with Salem
and Colin, ignoring his mother’s warning that his
pretrial release curfew was approaching.
When Colin, Salem, and Lopez got to the car, they
found that Bach was gone. Salem instructed Colin to
4 No. 10-2204
drive to Bach’s house to look for him. At some point
during the drive, Salem took Lopez’s cell phone. Colin
parked the car a few blocks from Bach’s house and he,
Lopez, and Salem approached the house on foot. Lopez
testified that when they reached a gangway leading to
the house, Salem ordered him to turn out his pockets
and open the gate on the gangway. Lopez handed
Salem the $80 he had on him but refused to open the
gate. Salem then pulled a revolver out of the front
pocket of his hooded sweatshirt. Lopez grabbed for the
gun, and a struggle ensued. Colin grabbed Salem and
punched Lopez in the head. All three men fell to the
ground; Salem pointed the gun at Lopez and threatened
to kill him. Lopez pleaded with Salem and eventually
convinced him not to shoot. Instead, Salem, Colin, and
Lopez all returned to the car and drove around some
more, looking for rival gang members on whom to take
out their frustrations. Unable to find any, they parted
ways. Before leaving, Salem told Lopez that he would
return Lopez’s money and phone when Lopez provided
the paperwork demonstrating that he was not a snitch.
Salem also reminded Lopez that snitches get killed.
Salem’s attorney took great pains to impeach Lopez
during cross-examination. She pointed out incon-
sistencies between the details of his trial testimony
and testimony he’d previously given. She emphasized the
stiff penalties Lopez faced in connection with the Latin
Kings indictment—a maximum of life imprisonment
and various mandatory minima—and grilled him about
his motives for testifying against Salem. Lopez expressly
denied familiarity with the concept of substantial assis-
No. 10-2204 5
tance, with U.S.S.G. § 5K1.1, and even with “the benefits
of becoming a cooperating witness for the Govern-
ment.” Undeterred, Salem’s attorney used leading ques-
tions to make clear to the jury that the government “and
the Government only, [could] make a motion so that . . .
mandatory minimums [would] not apply” to Lopez if
he “provide[d] testimony to help convict other peo-
ple.” She explored Lopez’s invocation of his status as a
cooperating federal witness when he was arrested by
state authorities and got him to admit that his bond was
not revoked as a result of that incident. She also got
Lopez to admit that he had permitted Colin to take the
fall for a gun the police found at Lopez’s house in
February 2005 and that a detective mentioned Salem’s
name to Lopez a few months before Lopez reported the
alleged attack.
The government attempted to rehabilitate Lopez
on redirect by asking him about his attention deficit
disorder, limited education, and noble motives for co-
operating and testifying. The government also presented
testimony from other witnesses to round out its case.
Bach testified that he heard Salem ask Lopez why he
was snitching, and that he heard either Salem or
Colin—he wasn’t sure which—ask whether there was
“one in the chamber.” Lopez’s mother corroborated
Lopez’s testimony about his “search” for paperwork at
her house. She testified that Lopez looked worried and
“look[ed] at [her] weird” while shuffling through papers
on her desk. She also testified that Salem stayed right
behind Lopez the entire time they were in her house, and
that she heard Salem say “you have five” right before
6 No. 10-2204
he, Colin, and Lopez left the house. When Lopez
returned home, she continued, she saw injuries on his
neck and face. The government showed photographs
of those injuries to the jury. The government also
called Colin, but he refused to testify.
Salem called only one witness, FBI Agent Douglas
Porrini, who had previously interviewed both Colin
and Lopez. He testified, as a defense witness, that
Colin told him that Salem orchestrated the abduction
of Lopez and that Salem was the only one who had a
gun that day. Porrini also testified that Lopez had
changed his story during one of his interviews.
During closing argument, the government asserted
that Lopez would receive no “credit” for testifying
because he was appearing as a victim, not a cooperating
witness. It also argued that the inconsistencies in
Lopez’s testimony were minor and emphasized that
Lopez was always consistent about the crucial facts.
When it was Salem’s turn, his attorney resumed her
efforts to discredit Lopez. She highlighted the incon-
sistencies in his story and asserted that it made no
sense for him to bring two threatening men to look
for nonexistent paperwork in his home, where they
could harm his family. She reminded the jury of the
lengthy sentences Lopez could face if he were convicted
on the charges pending against him, and observed
that it is “common knowledge, that cooperators get a
benefit from the Government.” She also reiterated that
because the charges were still pending, “any benefit that
he’s going to receive from the Government is yet to be
No. 10-2204 7
defined.” Salem’s attorney also offered the jury a
reason why Lopez might have fabricated the story he
told on the stand: he was late for his curfew and had to
come up with a good excuse to avoid revocation of
his bond.
The jury convicted Salem after deliberating for about
an hour.
II.
On the day of Salem’s sentencing, the government
disclosed to him a plea agreement it had entered with
one of his co-defendants, Benny Martinez. Martinez had
pleaded guilty to racketeering, with predicate acts in-
cluding the December 9, 2004, murder of rival gang
member Adan Sotelo. The agreement contained state-
ments about the Sotelo homicide attributed to both Marti-
nez and Lopez, the victim and star witness in Salem’s
case. According to the plea agreement, Lopez told police
that he and Martinez ambushed Sotelo in an alley
because they wanted to prevent him from retaliating
against the Latin Kings for an earlier shooting. Lopez
further reported that Martinez shot Sotelo several times,
killing him, before fleeing the scene and hiding with Lopez.
After his sentencing hearing, Salem requested and
received from the government police reports and prelimi-
nary witness statements relating to the Sotelo murder.
These documents did not contain the statements that
the Martinez plea agreement attributed to Lopez.
8 No. 10-2204
Salem moved for a new trial pursuant to Rule 33 of the
Federal Rules of Criminal Procedure. He argued that
he should have the opportunity to use the evidence of
Lopez’s involvement in the Sotelo homicide to impeach
Lopez. The district court found that even if Salem were
afforded that opportunity, the result of the trial would
be the same. It therefore denied Salem’s motion. Salem
appealed, and we expressed concern that the district
court ruled on the motion before requiring the govern-
ment to disclose the statement from Lopez that had
been reported in Martinez’s plea agreement. We vacated
the order denying Salem’s motion and remanded so
the district court could reconsider the motion on a
fully developed record.
On remand, the district court ordered the government
to produce all evidence regarding Lopez’s role in the
Sotelo homicide. The government turned over debriefing
statements from Martinez, Lopez, and another Latin
King, Michael Carroll. According to Lopez’s statement,
which the government had since September 2, 2005,
he was in a car with Martinez, Carlos Avila, and driver
Carroll on December 9, 2004, when they saw some rival
gang members in an alley. The rivals gave chase, but
the Latin Kings were able to escape to a nearby house
where some fellow Latin Kings were doing roofing
work. They told the roofers about their encounter with
the rival gang members, and one of the roofers
handed Martinez a black 9mm pistol, referred to as
“China.” Lopez then got back in the car with Avila,
Carroll, and the now-armed Martinez and returned to
the rivals’ neighborhood. Avila and Carroll remained in
No. 10-2204 9
the car while Lopez and Martinez took “China” to the
alley where they had spotted the rivals. Martinez fired
eight or nine shots into the alley, hitting and killing
Sotelo in the process. He and Lopez then fled to the car,
which Avila floored to Lopez’s house. They parked the
car in Lopez’s backyard to conceal it and hung out at
Lopez’s house for about two hours. Martinez left by
himself with “China.”
The statement the government obtained from Carroll
is virtually identical to Lopez’s. The statement from
Martinez, which was taken more than a year after
Carroll’s and Lopez’s and nearly two years after the
Sotelo murder, differs somewhat. According to
Martinez, Lopez cocked the gun and handed it to him
right before Martinez began shooting the rivals, who
Martinez stated were walking toward them. Martinez
also reported that he left Lopez’s house with everyone
else and left “China” there.
After obtaining these statements, Salem filed a revised
motion for new trial. The district court ordered briefing
from both sides and held a hearing to address the mo-
tion. Salem argued that the evidence implicating
Lopez in the Sotelo homicide was admissible and would
have been favorable to him because “[i]t would have
tended to show Lopez’s understanding that he received
special treatment in a pass from prosecution for his
involvement in a homicide—even in the absence of an
explicit agreement between himself and the govern-
ment. It would have revealed a reason for Lopez
feeling indebted to the prosecution and obliged to
10 No. 10-2204
assist and please the government by providing informa-
tion about Salem, in whom he knew law enforcement
was interested.” Salem acknowledged that he had the
opportunity to expose Lopez’s biases, but contended
that the new evidence better “reflected Lopez’s motive
to lie and to curry favor with the government.”
The government argued that the Sotelo evidence
was inadmissible extrinsic evidence of bad behavior
that was at best cumulative of the other impeachment
evidence. To support this argument, the government
noted that the Sotelo incident was similar to the predicate
acts of conspiracy to commit murder and attempted
murder with which Lopez had already been charged.
The government reiterated several times that Lopez
was neither promised nor in fact received consideration
for his testimony against Salem. It also contended that
Lopez’s testimony was corroborated by other evidence,
and challenged our earlier opinion’s allusions to the
death penalty. See Salem, 578 F.3d at 689.
The district court concluded that the Sotelo evidence
was not “material” as required by Brady and Giglio and
denied Salem’s motion for new trial. See, e.g., United
States v. Jumah, 599 F.3d 799, 808 (7th Cir. 2010) (explaining
that a new trial is required if the government fails to
disclose evidence that is “(1) favorable, (2) suppressed, and
(3) material to the defense”). The district court reasoned
that because the Sotelo evidence “does not meaning-
fully differ from the evidence available to the defense
at the time of trial,” and the case against Salem was
strong, questioning Lopez about the Sotelo murder
No. 10-2204 11
would have been unlikely to change the outcome of the
case. The district court also found that there was no
evidence that the government gave Lopez a “pass” on
the Sotelo murder in exchange for testimony against
Salem, either before or after he took the stand.
III.
Salem contends that the district court abused its dis-
cretion in denying his motion. See United States v. Palivos,
486 F.3d 250, 255 (7th Cir. 2007). He maintains that the
Sotelo evidence is unlike the other impeachment evi-
dence he had at his disposal during trial and would
therefore add much toward his efforts to undermine
Lopez’s indispensable and uncorroborated testimony.
He also argues that the district court incorrectly empha-
sized the lack of an express agreement between Lopez
and the government, concluded that the Sotelo charging
decision had been made before Lopez reported the in-
timidation incident, and relied on the government’s
assertion that Lopez was charged (or not charged) in
accordance with its general policies.
Though these arguments are facially distinct, they are
fundamentally interwoven inasmuch as they attack the
district court’s bottom line: that the Sotelo evidence
was not material. We therefore direct our attention to
the overarching issue of materiality, addressing Salem’s
subsidiary arguments as part of our broader discussion.
Evidence is material for Brady/Giglio purposes “ ‘if
there is a reasonable probability that, had the evidence
12 No. 10-2204
been disclosed to the defense, the result of the pro-
ceeding would have been different.’ ” Youngblood v. West
Virginia, 547 U.S. 867, 870 (2006) (quoting Strickler v.
Greene, 527 U.S. 263, 280 (1999)). This does not mean that
a defendant must show by a preponderance of the
evidence that disclosure of the evidence would have
resulted in his acquittal. Kyles v. Whitley, 514 U.S. 419, 434
(1995). He must show only that the evidence “could
reasonably be taken to put the whole case in a different
light as to undermine confidence in the verdict.” Id. at
435. This is nevertheless a difficult bar to clear because
of the high degree of deference we accord to the district
court’s determination. See Palivos, 486 F.3d at 255 (“We
review for abuse of discretion the denial of a motion
for new trial based upon newly discovered evidence
claimed to violate Brady.”).
Salem first attempts, as he must, to distinguish the
impeachment evidence he had at his disposal during
trial from the Sotelo evidence. See Salem, 578 F.3d at 688
(“[O]rdinarily, newly discovered impeachment evi-
dence will not warrant a new trial under Brady. It’s
often cumulative of other impeachment evidence
presented at trial.” (citation omitted)). He argues that
the evidence of Lopez’s cooperation with respect to the
Latin Kings indictment was “unimpressive” in light of
the absence of a signed proffer letter, which gave Lopez
the ability to “deny any awareness of the ramifications
of being a government informant that are typically docu-
mented by the parties.” In Salem’s view, the Sotelo evi-
dence would have been much more effective in
“establish[ing] Lopez’s position of being beholden to the
No. 10-2204 13
government and pressured to please the prosecution in
Salem’s case.” He also contrasts the “heinous” nature of
murder with the less harmful RICO, drug, and gun
crimes with which Lopez was charged, and further con-
tends that the U.S. Attorney’s policy of not seeking the
death penalty in murder cases arising in the Eastern Dis-
trict of Wisconsin is irrelevant to Lopez’s potential bias
because there is no evidence that Lopez knew about it.
These arguments cut to the heart of the materiality
inquiry. For if the Sotelo evidence does not amount to
“more than cumulative impeachment” evidence, United
States v. Ervin, 540 F.3d 623, 632 (7th Cir. 2008) (quotation
omitted), Salem “can’t really make a convincing argu-
ment that additional impeachment had a reasonable
probability of changing the outcome of the trial,” United
States v. Senn, 129 F.3d 886, 893 (7th Cir. 1997). The
district court concluded that the Sotelo evidence was not
significantly different from the other evidence used to
impeach Lopez, which included charges of predicate
racketeering acts including conspiracy to commit
murder, attempted murder, and drug trafficking, and
standalone acts of drug possession, distribution, and the
use of firearms in furtherance of those drug endeavors.
We do not see this as an abuse of the district court’s
discretion.
Salem’s attorney thoroughly cross-examined Lopez
about the barrage of criminal charges he faced, including
“a drug conspiracy involving 5 kilograms or more of
cocaine, and 50 grams or more of crack cocaine,” distribu-
tion of “a controlled substance involving at least 5 grams
14 No. 10-2204
of crack cocaine,” possession with intent to distribute
crack cocaine, and the knowing possession of a firearm
in furtherance of a drug trafficking crime, specifically “a
12-gauge Winchester shotgun, and Taurus .22 caliber
pistol.” She emphasized that Lopez faced life in prison
as a result of the RICO charge.
Not only did Salem’s attorney have the opportunity
to inform the jury of the nature of the charges Lopez
faced, she also let the jury know that Lopez was
potentially “facing an awful lot of time if [he goes] down
on any of these charges,” and that he was a “cooperating
witness for the Government,” who could see to it
that “these mandatory minimums will not apply to
[him] if [he is] convicted.” She also exposed Lopez’s
past willingness to exploit his status as a cooperator. As
the district court colorfully put it during the hearing
on remand, Salem’s attorney made sure the jury knew
Lopez was “in bed with the Government.” If Salem
wanted to expose Lopez as someone willing to lie to
evade harsh punishment, the evidence available at the
time of trial made that possible. Questions about
another instance of criminal conduct would not have
made much difference to Lopez’s already fragile credi-
bility. See Senn, 129 F.3d at 893 (“The jury knew [the
witness] had a lot of warts, and a few more, we think,
would not have made any difference.”). The district
court’s conclusion that adding more icing to the impeach-
ment cake would not improve the likelihood that the
jury would swallow it was reasonable. Cf. Ervin, 540
F.3d at 632.
No. 10-2204 15
Salem disagrees. He contends that the Sotelo evidence
would have revealed a deeper symbiotic relationship
between Lopez and the government because Lopez was
never charged in connection with the Sotelo murder.
Therefore, he argues, Lopez’s bias would have been
highlighted more strongly if the jury had heard about
the Sotelo murder in addition to the other evidence of
his potential bias. But Salem has not demonstrated how
the Sotelo evidence would make the inference of bias
any more likely. Lopez expressly disclaimed familiarity
with the concept of “substantial assistance” and other
benefits available to government cooperators; nothing
in the Sotelo evidence indicates that testimony would
now be changed. Nor does the absence of a signed
proffer letter, which Salem explored at trial. And to the
extent that the government’s charging decision in the
Sotelo case may not have been finalized—the parties
dispute this point—Salem underscored at trial Lopez’s
suspicious willingness to cooperate with the govern-
ment “without knowing what he is accused of,” as well
as the “yet to be defined” nature of the benefits he
could receive from the government.
Salem accurately observes that we emphasized the
singular nature of first-degree murder in our earlier
opinion in this case. See Salem, 578 F.3d at 689. He relies
on that discussion to argue that the jury might infer
from the Sotelo evidence that Lopez believed he was
avoiding the death penalty by testifying against Salem.
Salem has presented nothing in support of this theory
aside from speculation that someone with Lopez’s
limited education might assume that the death penalty
16 No. 10-2204
would be on the table for the Sotelo murder. He
contends that the record does not indicate that Lopez
was aware of the U.S. Attorney’s policies to charge
only triggermen with murder and to refrain from
seeking the death penalty because Wisconsin has
outlawed it, but he ignores the record’s equal silence as
to whether Lopez thought that “agreeing to testify
meant the difference between life and death.” Id. Salem
took no steps to plumb Lopez’s understanding at the
hearing on remand. And the record reveals that the
jury knew that Lopez already faced life in prison, which
certainly gave the twenty-year-old a powerful motive
to help the government as best he could. We high-
lighted the possibility of the death penalty in dictum in
our earlier opinion to underscore the importance of
allowing Salem to develop a full record on the matter of
the Sotelo homicide, not to guarantee him an other-
wise unwarranted new trial.
Salem is likewise correct that Lopez’s understanding
of an informal tit-for-tat arrangement could be enough
to show bias, even without evidence of an actual agree-
ment between him and the government. See Salem, 578
F.3d at 687; see also United States v. Martin, 618 F.3d 705,
728 (7th Cir. 2010). The district court concluded that
the record, which lacks evidence of an express agree-
ment, also did not demonstrate that Lopez had an under-
standing that testifying against Salem would help him
avoid murder or aiding and abetting charges. Salem
disputes that conclusion, pointing to Lopez’s testimony
that a state detective mentioned Salem’s name to Lopez
in June or July 2005 as part of the state’s efforts to
No. 10-2204 17
identify members of the Latin Kings. That testimony,
Salem claims, shows that Lopez knew he could stay on
the government’s good side—and avoid prosecution
for the Sotelo murder—by making up a story and helping
it take down Salem. The district court thought such
an inference was too tenuous to have a material impact
on Lopez’s credibility, particularly in light of the ex-
tensive charges pending against him notwithstanding
his cooperation and the potential for bias associated
with his desire to face less time on those charges. This
was not an unreasonable conclusion, given Lopez’s con-
fusion about the mention of Salem’s name and Salem’s
failure to draw attention to this potential source of
bias during closing argument.
IV.
Salem has not demonstrated a reasonable possibility
that the outcome of his trial would have been different if
he had been able to impeach Lopez with the Sotelo evi-
dence in addition to the other evidence of bias. To be
sure, Lopez’s credibility was crucial to the government’s
case. See Salem, 578 F.3d at 688. But Salem has not
shown that the Sotelo evidence would be more effective
at impugning Lopez’s credibility than the previously
available impeachment evidence. Salem raised the infer-
ence that Lopez had a strong motive to curry favor with
the government and took great pains to paint him as
an unreliable, biased witness. The district court did not
abuse its discretion in concluding that evidence of addi-
tional possible sources of pro-government bias would
18 No. 10-2204
have been largely cumulative of Salem’s impeachment
efforts and therefore was immaterial for the purposes
of Brady.
A FFIRMED.
6-21-11