In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2999
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M AGIN E. V ILLASENOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-CR-689—Joan B. Gottschall, Judge.
A RGUED S EPTEMBER 19, 2011 —D ECIDED D ECEMBER 23, 2011
Before EASTERBROOK, Chief Judge, and KANNE and
WILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Magin Villasenor, along with
sixteen other defendants, was charged with various crimes
arising out of a conspiracy to distribute cocaine and
marijuana across several states. A jury found Magin guilty
of sixteen out of the nineteen charged counts. He
now raises a number of issues on appeal, including chal-
lenges to the sufficiency of evidence presented at trial,
2 No. 10-2999
the decision to admit a co-conspirator’s statements into
evidence, and the district court’s refusal to grant a motion
for a new trial following the discovery that the government
suppressed evidence favorable to the defense. We find
none of these contentions meritorious, and accordingly
affirm his conviction.
I. B ACKGROUND
A plan to distribute cocaine first began in 1995 when
Marco Villasenor, Magin’s brother, met Stevie Jones
while locked up in a Missouri jail. There, the two discussed
the possibility of dealing drugs together at some point
in the future. They made good on these plans following
their release, when Marco met Jones in Texas in order
to supply him with cocaine and marijuana. Later, Marco
introduced Jones to his brother, Magin, and the two
also discussed the possibility of conducting cocaine
deals together.
These plans came to fruition in 1996, when Jones began
obtaining cocaine from Magin. The deals initially involved
quantities ranging from nine to eighteen ounces, but Jones
requested greater amounts of cocaine as time went on
and the conspiracy expanded in size and scope. By 2003,
Jones obtained two to four kilograms of cocaine at a
time from Magin, once or twice per month.
Numerous other individuals were also involved in the
cocaine distribution scheme, most of whom need not
be discussed for purposes of this appeal. One of the
relevant individuals, however, was Jones’s girlfriend,
No. 10-2999 3
Princess Coleman. Coleman assisted Jones by transporting
cocaine and money between Michigan and Texas.
Jones also introduced Magin to Robert Rider; together,
Jones and Rider would pool their money to buy cocaine
from Magin in Chicago and Texas, and then resell
the drugs.
At trial, the government introduced evidence of several
specific drug transactions. The first transaction took
place on January 10, 2003. Rider drove from Michigan to
a hotel in Willowbrook, Illinois, planning to buy
two kilograms of cocaine from Magin and to repay
him $5,000 for a debt owed by Jones. After exchanging
$45,000 for the two kilograms of cocaine, Rider drove
back to Michigan. Unbeknownst to him, Federal Bureau of
Investigation agents were conducting surveillance
outside the hotel and followed the car as it left. In Michi-
gan, state police officers stopped the car. Although
Rider attempted to flee during a high-speed chase, police
eventually apprehended him. Police recovered two kilo-
grams of cocaine from the trunk of his car, and matched
a latent fingerprint on the cocaine packaging to Magin.
Another transaction occurred on January 24, 2003, when
Jones and Coleman drove from Michigan to Chicago
in order to purchase cocaine from Magin and to
repay another debt owed by Jones. The two picked up
two kilograms of cocaine from Magin’s apartment
in exchange for $40,000. An FBI agent followed
them leaving Magin’s residence; the agent photo-
graphed the vehicle, but did not attempt to stop the car.
The next transaction discussed at trial occurred on
February 12, 2003, when Jones purchased a bus ticket from
4 No. 10-2999
Atlanta to Chicago, planning to buy cocaine from Magin
later that same day. Jones arranged for Coleman to bring
$80,000 from Michigan to the bus station in Chicago,
and used this money to buy four kilograms of cocaine
from Magin. FBI agents, surveilling Jones for much of
the evening, planned to pose as dirty cops and “rip”
the cocaine from him before he left Chicago. As Jones
was walking back to the bus station, the agents stopped
him and seized the four kilograms of cocaine, letting Jones
go afterwards.
Frustrated that his cocaine had been taken by “dirty”
cops, Jones again arranged to buy cocaine from Magin
on March 21, 2003. But intercepted telephone calls revealed
that this time Jones planned to have Coleman take
the cocaine from Magin without paying for it, in order
to make up for the stolen cocaine. Magin met with
Coleman in a hotel room in Chicago and gave her a
bag containing three kilograms of cocaine. He waited for
her to return with money, but she instead fled with
the drugs. After the deal went awry, Magin called one of
his co-conspirators and reported, “they robbed me dude.”
On July 23, 2003, after conducting months of surveillance
on the individuals involved in the drug-distribution
scheme, FBI agents executed a search warrant at
Magin’s residence in Chicago. Magin lived with his
family in a two-bedroom upstairs apartment in a two-
story building. Magin and his family were not present
while agents searched the apartment; instead, they
had been staying in Texas for about a week before
the search was conducted. During the search, agents
No. 10-2999 5
found a loaded handgun and an extra magazine under-
neath the mattress in the master bedroom. In the dining
room were pay stubs, tax documents, and a checkbook
for an account belonging to Magin and his wife. Magin
was later arrested and charged with conspiracy to distrib-
ute controlled substances, 21 U.S.C. § 846; distributing
a controlled substance, 21 U.S.C. § 841(a)(1); using a
communication facility in committing a felony narcotics
offense, 21 U.S.C. § 843(b); and illegally possessing a
firearm, 18 U.S.C. § 922(g)(1).
At trial, statements made by another one of Magin’s
brothers, Carlos Villasenor, were admitted into evidence
as co-conspirator statements. Carlos’s involvement in
the conspiracy appears to have begun in 2001, when
he introduced Magin to Gabriel Maldonado. Magin
and Maldonado conducted several transactions to-
gether involving multiple kilograms of cocaine in both
San Antonio and Chicago. Carlos’s role was to dictate
the price of the cocaine that Maldonado supplied to Magin,
in exchange for a fee. In one of these transactions,
Maldonado “fronted” Magin ten kilograms of cocaine.
Carlos vouched for Magin, assuring Maldonado that
Magin would pay for the drugs after their delivery
in Chicago.
Carlos also spent time moonlighting as an informant
for the Drug Enforcement Agency, using the DEA
to investigate, and thus eliminate, his rival drug deal-
ers. Carlos’s cooperation with the DEA began as early as
1985, and continued intermittently through 2000. On April
23, 2003, FBI agents investigating Carlos’s involvement in
6 No. 10-2999
the charged conspiracy intercepted a conversation between
a DEA agent and Carlos. During the conversation, Carlos
asked the agent whether he was interested in Carlos’s
assistance in investigating Wilfredo Rodriguez, a rival drug
dealer. The agent indicated that he was, and after a lull of
three years, Carlos was once again assisting the DEA.
Later, FBI agents contacted the DEA and informed them of
the FBI’s ongoing investigation of Carlos and his involve-
ment in the charged conspiracy to distribute cocaine.
The DEA decided to go forward with a plan to use Carlos
to investigate Rodriguez, despite the FBI’s separate investi-
gation of Carlos’s own activities. Carlos never proffered
any information related to the charged conspiracy
to distribute cocaine; in fact, he was unaware of the
FBI’s investigation and sought to keep evidence of
his continued involvement in the drug-distribution
scheme from the DEA agents with whom he was working.
The investigation of Rodriguez, and Carlos’s assistance
to the DEA, ended with Rodriguez’s arrest in New Jersey
on June 6, 2003. Thus, Carlos assisted the DEA for a total
of approximately one and one-half months in 2003. All
of Carlos’s statements admitted into evidence during
Magin’s trial occurred in 2003, but either before or after the
one and one-half-months that Carlos assisted the DEA.
At trial, the evidence presented against Magin included
intercepted telephone conversations, surveillance photo-
graphs, and testimony from cooperating witnesses.
The evidence also included physical evidence recovered
from the bedroom of a co-defendant, Joaquin Mendez,
consisting of a firearm, a drug ledger, and a digital scale.
No. 10-2999 7
A chemist for the DEA, Anthony Harris, testified that
he tested the scale and found that it contained trace
amounts of cocaine. On March 3, 2006, the jury
found Magin guilty of sixteen counts charged in
the indictment. The jury found Magin not guilty of
three counts: two counts relating to the distribution
of cocaine arising out of the transaction on January 24,
2003, and one count relating to the use of a telephone
to facilitate the conspiracy arising out of the transaction
on March 21, 2003.
In April 2007, over a year after the jury rendered
its verdict, prosecutors learned that at the time of Magin’s
trial Harris had been under investigation by the DEA
for inattention to duty. The undisclosed evidence revealed
that Harris generally failed to follow laboratory procedures
and improperly recorded information in the cases he
was assigned. In total, Harris incorrectly labeled twenty-
three exhibits throughout his tenure at the DEA, includ-
ing the digital scale that he examined for Magin’s trial. 1
He would later receive a two-day suspension for this
conduct. On April 17, 2007, the government disclosed that
Harris had been under investigation at the time of Magin’s
trial. On June 30, 2008, Magin filed a motion for a new trial
on the basis of this newly discovered evidence.
On March 21, 2009, the district court denied Magin’s
motion for a new trial. The court found that the evidence
had been wrongfully suppressed, though through no bad
1
The digital scale was incorrectly labeled as Exhibit 1 instead
of Exhibit 3.
8 No. 10-2999
faith conduct on the part of the prosecutors. The sup-
pressed information was also favorable to Magin because
it could have been used to impeach Harris at trial. How-
ever, the court noted that the government subsequently
had the scale retested and the results of Harris’s tests were
confirmed. Moreover, the court found that the remainder
of the evidence against Magin was overwhelming, and thus
the undisclosed information did not undermine the results
of the trial. On this basis, Magin’s motion was denied.
II. A NALYSIS
Magin presents a number of arguments for review. First,
Magin claims that there was insufficient evidence for the
jury to conclude that he was involved in a conspiracy,
rather than merely a part of multiple buyer-seller relation-
ships. Magin also argues that there was insufficient
evidence to establish that he constructively possessed
the gun found in his Chicago apartment because he was
in Texas while the FBI conducted its search. Next,
Magin claims the district court abused its discretion
by admitting Carlos’s statements as co-conspirator admis-
sions because Carlos had been a government informant.
Finally, Magin challenges the district court’s denial of
his motion for a new trial because the government sup-
pressed favorable evidence that could have been used
to impeach Harris’s testimony. We take each of
these arguments in turn.
No. 10-2999 9
A. Challenges to the Sufficiency of the Evidence
Magin challenges the sufficiency of the evidence underly-
ing his convictions for conspiracy and gun possession. The
standard of review for sufficiency of the evidence chal-
lenges is a “nearly insurmountable hurdle.” United States
v. Taylor, 637 F.3d 812, 815 (7th Cir. 2011). “[W]e view
all the evidence and draw all reasonable inferences in
the light most favorable to the government.” United
States v. Wright, 651 F.3d 764, 770 (7th Cir. 2011)
(internal quotation marks and punctuation omitted).
A conviction will be overturned only where the record
is “devoid of evidence from which a reasonable jury
could find guilt beyond a reasonable doubt.” United
States v. Durham, 645 F.3d 883, 892 (7th Cir. 2011).
1. Conspiracy to Distribute Cocaine
Magin contends that the evidence presented at
trial demonstrated a mere buyer-seller relationship
among the co-defendants, rather than a conspiracy
to distribute cocaine. Magin acknowledges evidence
of sales and purchases of cocaine among himself, Jones
and Rider. However, he argues that without evidence of
an agreement to distribute cocaine, separate and distinct
from the sales themselves, there was insufficient evidence
to establish a conspiracy. Even if he knew that they in-
tended to resell the cocaine, Magin concludes, this knowl-
edge did not make Magin’s sales part of a conspir-
acy because he did not share in profits from subsequent
sales.
10 No. 10-2999
A drug-distribution conspiracy under 21 U.S.C. § 846
requires evidence “that the defendant knowingly
agreed —either implicitly or explicitly —with someone else
to distribute drugs.” United States v. Johnson, 592 F.3d
749, 754 (7th Cir. 2010). But when the alleged co-conspira-
tors are in a buyer-seller relationship, “we have cautioned
against conflating the underlying buy-sell agreement
with the drug-distribution agreement that is alleged to
form the basis of the charged conspiracy.” Id. Thus,
“to prove a conspiracy, the government must offer evi-
dence establishing an agreement to distribute drugs that
is distinct from evidence of the agreement to complete
the underlying drug deals.” United States v. Vallar, 635
F.3d 271, 286 (7th Cir. 2011) (internal quotation marks
omitted).
“Certain characteristics inherent in any ongoing
buyer-seller relationship will also generally suggest
the existence of a conspiracy,” and thus offer the jury
no basis to distinguish the alleged conspiracy from
the underlying buyer-seller relationship. Johnson, 592
F.3d at 754. These inherent characteristics include “sales
of large quantities of drugs, repeated and/or standardized
transactions, and a prolonged relationship between
the parties.” Id. Instead, a conspiracy may be distinguish-
ed from a nonconspiratorial buyer-seller relationship
through other evidence, including sales on credit,
an agreement to look for customers, commission
payments, evidence that one party provided advice for
the other’s business, or an agreement to warn of
future threats to each other’s business from competitors
or law enforcement. Vallar, 635 F.3d at 287.
No. 10-2999 11
Importantly, “not all credit sales can support an infer-
ence that there was an agreement to distribute.” Id. (inter-
nal quotation marks omitted). For example, evidence
that a supplier extends credit to an individual purchas-
ing small quantities of drugs for personal consumption
would not suffice to establish a conspiracy. Id. But when
a credit sale is combined “with certain characteristics
inherent in an ongoing wholesale buyer-seller relation-
ship —i.e., large quantities of drugs, repeat purchases
or some other enduring arrangement—the credit sale
becomes sufficient evidence to distinguish a conspiracy
from a nonconspiratorial buyer-seller relationship.”
Id. Thus, once the government has offered some distin-
guishing evidence, such as credit sales, the jury may
then rely on other evidence, such as the involvement of
large quantities of drugs, to “buttress an inference
that there was an agreement to distribute drugs.” Johnson,
592 F.3d at 758.
There was ample evidence to distinguish Magin’s
relationship with his co-defendants as a drug conspiracy,
rather than a mere buyer-seller relationship. Magin fronted
large quantities of cocaine to Jones, and he was also fronted
cocaine by other members of the drug-distribution
scheme. The evidence presented at trial included testi-
mony from Jones and Rider detailing various instances
when Magin fronted cocaine to Jones, in addition
to intercepted telephone calls corroborating their testi-
mony. The fronting of large quantities of drugs, combined
with evidence of repeated transactions and a prolonged
relationship between the purported members of
the conspiracy, supports an inference that there was
12 No. 10-2999
an agreement to distribute cocaine, distinct from any
underlying buy-sell relationship. We therefore find
the evidence sufficient to support the jury’s verdict.
2. Gun Possession
Magin also challenges the sufficiency of the evidence
supporting the jury’s verdict that he was a felon in illegal
possession of a firearm for purposes of 18 U.S.C.
§ 922(g)(1). A conviction on this count requires the govern-
ment to prove that Magin was “(1) a felon, (2) who
had possessed a firearm, (3) that had traveled in inter-
state commerce.” United States v. Harris, 587 F.3d 861,
866 (7th Cir. 2009). Magin claims that the evidence
was insufficient to establish the element of possession
because he was in Texas when FBI agents searched
his Chicago apartment and discovered a handgun. More-
over, he contends that an “unknown third party” let
FBI agents into his Chicago apartment. An FBI agent
testified that he entered the apartment after having
been provided with a key by an older woman present
in the lower level of the building. Magin argues that the
gun could have been placed underneath his mattress by
this person because she had access to the apartment.
To satisfy the possession requirement in 18 U.S.C.
§ 922(g)(1), the government may prove either actual
or constructive possession. United States v. Morris, 576
F.3d 661, 666 (7th Cir. 2009). “Constructive possession is
a legal fiction whereby an individual is deemed to ‘possess’
contraband items even when he does not actually have
immediate, physical control of the objects.” Id.
No. 10-2999 13
(emphasis in original). Constructive possession is present
“when a person knowingly has the power and the intent-
ion at a given time to exercise dominion and control
over an object, either directly, or through others.” United
States v. Caldwell, 423 F.3d 754, 758 (7th Cir. 2005). In
order to distinguish true possessors from mere by-
standers, the government must establish a nexus between
a defendant and the relevant item. Morris, 576 F.3d at 666.
Although Magin posits that he was unable to construc-
tively possess the firearm because he was in Texas,
his location at the time of the search is immaterial. See,
e.g., United States v. Kitchen, 57 F.3d 516, 521 (7th Cir.
1995) (defendant constructively possessed firearms
in his residence despite being incarcerated while search
warrant was executed). A nexus between a defendant
and a firearm for purposes of constructive possession can
be established by showing that the firearm was seized
from the defendant’s residence. Caldwell, 423 F.3d at 758.
The facts in the record were sufficient for the jury to
infer that Magin resided in the Chicago apartment.
The evidence establishing his residence included pay
stubs, tax documents, and a checking account book,
all bearing his name, found in the apartment. Moreover,
intercepted telephone calls indicated that he was travel-
ing to Texas merely to carry out a drug deal. The evidence
was sufficient to establish that Magin resided in
the apartment, and therefore, constructively possessed
the firearm.
Neither does Magin’s assertion that an older woman had
access to his apartment render the evidence insufficient to
14 No. 10-2999
support the verdict. Constructive possession may be
sole or joint. United States v. Hampton, 585 F.3d 1033, 1041
(7th Cir. 2009). The fact that a third party may have
had access to the apartment, and therefore the
firearm, does not negate the inference that Magin
had access to the firearm as well. Kitchen, 57 F.3d at 521.
Moreover, the jury was within its rights to conclude
that the firearm was under the exclusive control of Magin,
a large-scale drug dealer, rather than equate specu-
lation with reasonable doubt and indulge in the unsup-
ported inference that this “unknown” older woman
ever even came into the apartment, let alone hid a firearm
underneath Magin’s mattress. There was no evidence in
the record to support this latter scenario, but an abundance
of evidence to support the former. The evidence
was sufficient to support the jury’s verdict.
B. Co-Conspirator Statements
Magin next challenges the district court’s decision
to admit statements made by his brother, Carlos, during
intercepted telephone conversations as co-
conspirator statements under Federal Rule of Evidence
801(d)(2)(E). We review the district court’s decision to
admit non-hearsay co-conspirator statements for an
abuse of discretion. United States v. Cruz-Rea, 626 F.3d
929, 937 (7th Cir. 2010). A statement made by a member
of a conspiracy is admissible pursuant to Rule 801(d)(2)(E)
if the government proves by a preponderance of
the evidence that a conspiracy existed, the defendant
and the declarant were members of the conspiracy, and
No. 10-2999 15
the statement was made during and in furtherance of
the conspiracy. Id. A government informant’s statements
are not admissible under this rule because he cannot be
a conspirator. United States v. Schalk, 515 F.3d 768, 775
(7th Cir. 2008).
The district court held that Carlos’s statements
were admissible, despite his previous status as a DEA
informant, because he was acting as a co-conspirator
and furthering the goals of the conspiracy when he
made the statements. The court found that he was not
acting as a government informant because the DEA’s
investigation was unrelated and Carlos was unaware
that the FBI was investigating the charged conspiracy.
As the district judge stated, “he had a different hat on”
when the statements were made; that of conspirator,
rather than informant.
Magin argues that none of Carlos’s statements should
have been admitted because he was a government infor-
mant and therefore could not have acted in furtherance
of the conspiracy. According to Magin, it is unimportant
that the DEA’s investigation was unrelated to the conspir-
acy at issue, or that the statements were made outside
of the one and one-half months that Carlos actively as-
sisted the DEA. Rather, once he became an informant,
Carlos no longer shared a common aim with the conspiracy
because any information learned during the course of
the conspiracy could later be used to cut a deal with
the government. As counsel for Magin put it, “Once you
become an informant, you’re an informant forever.”
We reject this argument. Carlos worked with the DEA for
various stretches of time prior to 2000, and again during
16 No. 10-2999
the DEA’s investigation of Rodriguez from April 25, 2003,
through June 6, 2003. All of the statements admitted
into evidence occurred in 2003 either before April 25 or
after June 6, outside the period of Carlos’s cooperation
with the DEA, and thus were properly admitted. Although
there may be cases where it is difficult to discern when
an individual ceases to be a government informant, this
is not one of them. Carlos had not spoken to the DEA for
at least three years prior to his conversation with an
agent about Rodriguez, and Carlos’s cooperation clearly
ended when the DEA arrested Rodriguez. An individual
does not become a government informant “forever” by
cooperating with the government. See United States
v. Mangual-Garcia, 505 F.3d 1, 8-9 (1st Cir. 2007) (not
plain error for district court to admit co-conspirator’s
statements under Rule 801(d)(2)(E) because he was a co-
conspirator when the statements were made, despite
having been a government informant both before and
after the statements were made).
Were we to adopt Magin’s position, the results would
be absurd. Carlos worked as a government informant
during the 1980’s. According to Magin’s argument, this
earlier cooperation alone would be sufficient to have
prevented Carlos from acting in furtherance of an unre-
lated conspiracy over a decade later because he could
potentially cut a deal with the government using informa-
tion he learned during the course of the conspiracy.
Such an argument ignores the fact that Carlos aided
the conspiracy, not because he sought to assist the govern-
ment, but because he sought to help Magin acquire large
quantities of cocaine so that it could then be distributed.
No. 10-2999 17
Carlos was a co-conspirator acting in furtherance of
the conspiracy both before and after he assisted the DEA.
We need not decide whether Carlos’s statements could
have been admitted if they had been made while he
was still assisting the DEA in its unrelated investigation,
because that is not the case before us. None of the admitted
statements occurred while Carlos was cooperating with
the government, and therefore the district court did not
abuse its discretion.
C. Brady Evidence
Finally, Magin asks us to review the district court’s
denial of his motion for a new trial because the government
failed to disclose evidence that would have enabled him
to impeach Harris, the DEA’s chemist, in violation of
Brady v. Maryland, 373 U.S. 83 (1963). We review the
district court’s denial of the motion for an abuse of discre-
tion, viewing the evidence in the light most favorable to
the prevailing party. United States v. Lewis, 567 F.3d 322,
328 (7th Cir. 2009).
Brady set forth the principle that “the government has the
affirmative duty to disclose evidence favorable to a defen-
dant and material either to guilt or punishment.”
United States v. Bland, 517 F.3d 930, 933-34 (7th Cir. 2008).
The government’s duty to disclose evidence favorable
to the defense under Brady includes impeachment evi-
dence. United States v. Wilson, 481 F.3d 475, 480 (7th
Cir. 2007). To win a new trial based on a Brady violation,
Magin must establish that (1) the prosecution suppressed
18 No. 10-2999
evidence, (2) the evidence was favorable to the defense,
and (3) the evidence was material to an issue at trial.
Bland, 517 F.3d at 934. The district court found that the first
two elements were met, but held that the evidence sup-
pressed was immaterial.
Suppressed evidence is not material unless there is a
“reasonable probability that the suppressed evidence
would have produced a different verdict.” Harris v.
Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007). A probability of
a different result may be met by “showing that the favor-
able evidence could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.” Bielanski v. Cnty. of Kane,
550 F.3d 632, 644 (7th Cir. 2008) (quoting Kyles v. Whitley,
514 U.S. 419, 435 (1995)).
Magin argues that the evidence is material because
Harris’s tests found cocaine residue on a digital scale, one
of the only pieces of physical evidence admitted at trial.
Had the suppressed evidence been available, it could
have been used to impeach Harris’s testimony and under-
mine the test results. Magin asserts that this particular
jury reviewed the evidence with “a fine-toothed comb” for
each count, rather than passively concluding he was
guilty, evident by its vote for acquittal on three of
the charged counts. Magin maintains that the impeach-
ment evidence would have diminished the overall strength
of the prosecution’s case and, given how rigorously
the jury considered the evidence, there stands a reasonable
probability that the jury would have reached a different
verdict.
No. 10-2999 19
Magin’s argument is unpersuasive. Although it is true
that the jury may have gone over each piece of evidence
with “a fine-toothed comb,” the district court concluded
that there was overwhelming evidence against Magin
irrespective of Harris’s testimony. Indeed, the district
judge found that “the government’s case would have been
almost as strong without any chemist’s testimony.”
Agents found drug ledgers and a handgun, in addition to
the scale, in the apartment of co-defendant Mendez. The
evidence against Magin included taped conversations
with other defendants concerning drug transactions,
seizures of cocaine in connection with these drug-related
conversations, Magin’s fingerprints on cocaine packaging,
surveillance evidence, and the testimony of several cooper-
ating members of the conspiracy. The district court did
not abuse its discretion in concluding that the strength of
the remaining evidence rendered the suppressed evidence
immaterial.2 See United States v. Agurs, 427 U.S. 97, 109-
10 (1976) (“The mere possibility that an item of undisclosed
2
The significance of the suppressed impeachment evidence is
itself questionable because the government retested the scale
and the presence of cocaine residue was confirmed. Had
the impeachment evidence been made available to the defense
at trial, the government presumably would have just had
another chemist testify as to the presence of cocaine residue.
See United States v. Banks, 546 F.3d 507, 511 (7th Cir. 2008)
(“Perhaps, every time either the Government or a defendant
wants a new trial based on a problem with an expert witness,
there should first be a hearing to see if an alternate expert might
have been produced by the affected side who would have said
the same thing as the tainted expert.”).
20 No. 10-2999
information might have helped the defense, or might have
affected the outcome of the trial, does not establish ‘materi-
ality’ in the constitutional sense.”).
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the conviction
of Magin E. Villasenor.
12-23-11