The opinion of the court was delivered by: Lynn Adelman District Judge
This matter is before me on remand from the Seventh Circuit to reconsider the denial of defendant Anas Salem's motion for a new trial. A jury convicted defendant of witness intimidation and brandishing a firearm during a crime of violence based on his abduction and assault of Carlos Lopez, a government cooperator. After trial, the government disclosed evidence pertaining to Lopez's possible involvement in the homicide of a man named Adan Sotelo. Defendant moved for a new trial based on the disclosure, but I found the evidence immaterial and likely inadmissible, and thus denied the motion. United States v. Salem, No. 06-CR-181, 2008 WL 3540471 (E.D. Wis. Aug. 13, 2008). The Seventh Circuit concluded: on the record before us, . . . that decision was premature. Lopez's statement about the Sotelo killing has never been turned over to Salem nor has it even been produced to the court. This raises questions about whether other evidence favorable to Salem might be lurking out there and not contained in the record.
But Salem didn't get a chance to develop that record, because the court denied his request for an evidentiary hearing. We conclude that was an error. So we remand for such a hearing.
On remand, I ordered the government to produce all evidence regarding Lopez's role in the Sotelo homicide, including any statements made by Lopez regarding that homicide. I then solicited briefs from the parties addressing whether this evidence was actually suppressed by the government, and whether defendant could have uncovered it with reasonable diligence; the admissibility of the evidence; and if admissible, whether there was a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. The government produced the debrief statements relevant to this issue, defendant filed a revised motion for a new trial in light of the disclosures, and I held a hearing. At the hearing, defense counsel filed under seal the debrief statements upon which she relied, and the parties agreed that all pertinent materials had been turned over. Neither side elected to call any witnesses at the hearing. The matter is therefore ready for decision.
On consideration of the arguments of counsel, the newly disclosed evidence, and the entire record in this case, I deny the motion. I first set forth the facts of the case, which I take largely from my previous decision, supplemented with the statements disclosed on remand.
The government accused defendant, along with fellow Latin King gang member Marcos Colin, of abducting Lopez, a gang associate, whom they suspected of cooperating with the government in a RICO investigation of the gang. The jury found that defendant used force or threat of force against Lopez to prevent his cooperation in the government's investigation, and that he brandished a firearm in so doing.
Prior to defendant's sentencing, the government disclosed the plea agreement of a Latin King co-defendant, Benny Martinez, which revealed to defendant for the first time that Lopez was with Martinez when Martinez murdered Sotelo, an alleged rival gang member. Defendant subsequently requested and the government provided police reports about the murder. On remand, the government produced the debrief statements of Lopez, Martinez and fellow gang member Michael Carroll regarding the Sotelo murder. In order to place this post-trial evidence in proper context and assess its materiality, I will again review the information presented to the jury at defendant's trial.
During his opening statement, the prosecutor told the jury that defendant, Colin and Lopez were members of the Latin Kings, a gang that protected its turf on the south-side of Milwaukee through violence and intimidation. (Trial Tr. at 9.) He stated that the Kings attacked rival gang members, whom they called "flakes," and intimidated witnesses and cooperators. (Tr. at 9.) On September 27, 2005, the government obtained an indictment against forty-nine Latin Kings, including Lopez and defendant's brother, Sadam Salem. (Tr. at 10; Case No. 05-CR-240 (E.D. Wis.)) The prosecutor told the jury that Lopez began cooperating pre-indictment, implicating himself and others in gang activity.*fn1 (Tr. at 10.) On November 1, 2005, defendant and Colin confronted defendant, accused him of cooperating, assaulted and threatened to kill him, but eventually let him go. Thereafter, the government relocated Lopez out of state. (Tr. at 10-18.)
In her opening statement, defense counsel stated that Lopez told different stories about what occurred during his encounter with defendant and Colin. (Tr. at 18-19.) She also stated that Lopez was cooperating with the government prior to the incident and hoping to get money to get out of town. (Tr. at 20.) She further stated that law enforcement told Lopez that they were interested in defendant, who was not included in the original Latin Kings indictment handed up earlier in 2005,*fn2 and that Lopez knew that as an informant he could get favors from the government if he told the government what it wanted to hear. (Tr. at 20.)
The government first called Shane Bach, who testified that on November 1, 2005, he and Lopez drove to a friend's house, where they encountered defendant and Colin (known to Bach as "Scetty"). Bach testified that defendant asked Lopez why he was snitching, putting the "brothers [in] jail." (Tr. at 23-24.) Either defendant or Colin made a reference to "having one in the chamber." (Tr. at 25.) Lopez offered to take defendant and Colin to his house to provide them with paperwork showing he wasn't snitching. Once they arrived at the house, Lopez, defendant and Colin entered Lopez's house, and Bach -- who had a "weird feeling" -- took off. (Tr. at 26-28.) On cross-examination, Bach admitted that he did not call the police after he left, and that defendant did not directly threaten Lopez in the car. (Tr. at 30-31.)
The government next called Colin, and he admitted being in jail for his role in Lopez's kidnaping. (Tr. at 35.) However, he refused to testify further, even if granted immunity. Without objection from the government, I held the issue of contempt in abeyance and continued the trial. (Tr. at 34-61; 174-82.) An FBI agent later called by the defense recounted Colin's statement to law enforcement, in which Colin said that defendant orchestrated the Lopez kidnaping, that he (Colin) agreed with the police version of what happened there, and that defendant had the gun. (Tr. at 195-96.)*fn3
The government next called Lopez, who testified that he was under indictment as part of a Latin Kings RICO prosecution, and that he was cooperating with the government. (Tr. at 66-67.) Lopez testified that on November 1, 2005, he and Bach drove to the home of an individual named Jose, where they encountered defendant and Colin. (Tr. at 68-69.) Lopez stated that defendant and Colin asked, "why did [you] do this." (Tr. at 69.) Lopez started to put the car in gear, but defendant threatened to shoot him in the face. (Tr. at 69.) Defendant and Colin got in the back of the car, and defendant asked Colin if he had "one in the chamber." (Tr. at 70.) Defendant accused Lopez of snitching and stated that "all the brothers [i.e., Latin Kings] are locked up." (Tr. at 71.) Lopez claimed that he had paperwork at his house showing he wasn't cooperating, and defendant said he wanted to see it. (Tr. at 71-72.) Once they arrived at Lopez's house, defendant warned Lopez not to do anything stupid or he would shoot Lopez's mother. (Tr. at 72.)
Lopez, Colin and defendant entered the house and encountered Lopez's mother. Lopez asked his mother where his paperwork was and winked at her to try to tell her something was wrong. (Tr. at 73-74.) Lopez could not find any paperwork -- there was nothing to find -- and defendant ordered him back out of the house. Lopez's mother followed and told Lopez that he had a curfew and had to stay inside, but Lopez testified that he left because he was afraid of what defendant would do if he did not comply. (Tr. at 75-76.)
Once the three got back outside, they noticed that Bach was gone. Defendant told Colin to drive, Lopez to get in the front passenger seat, and he (defendant) got into the rear passenger seat behind Lopez. (Tr. at 77.) Defendant told Lopez to direct them to Bach's house, defendant complied, and the three proceeded to Bach's neighborhood, parking a block away from the house. (Tr. at 78.) The three men exited the car and started walking toward Bach's house through a gangway. Defendant ordered Lopez to open a gate on the gangway, but Lopez refused. Defendant then ordered Lopez to turn out his pockets, and Lopez turned over $80.*fn4 Defendant again ordered Lopez to open the gate, and when he refused defendant produced a gun from the pocket of his hooded sweatshirt. (Tr. at 79-81.) Defendant looked to the left and the right, and Lopez believed defendant was about to shoot him so he grabbed for the gun. The two struggled for the gun, but Colin hit Lopez in the back of the head and Lopez fell to the ground. Defendant got on top of Lopez and said, "I should kill you right now." (Tr. at 82-83.) Lopez asked defendant and Colin why they were doing this, reminding them that his family used to feed them. (Tr. at 83.)
Defendant told Lopez to get up, and they returned to the car, where defendant instructed Lopez to drive to the "2-1 hood," where defendant said he wanted to shoot some flakes. (Tr. at 84-86.) Finding no rivals, the three continued to drive around, and defendant stated that he would return Lopez's things once Lopez provided his paperwork. (Tr. at 86.) Lopez testified that he and his family stayed in a hotel that night because they were afraid to go home. (Tr. at 88.)
Lopez stated that he expected no credit in his own case based on his testimony against defendant. Rather, he said that he testified because he was a crime victim. (Tr. at 90.)
On cross-examination, Lopez admitted that he faced significant penalties in his indictment, up to life in prison on a RICO charge*fn5 and a minimum of ten years up to life on a drug charge, along with various other charges. (Tr. at 94-96.) He further admitted that he decided to cooperate with the government but stated that he did not understand how substantial assistance could affect his potential sentence. (Tr. at 97-98.) He further admitted that Colin falsely claimed responsibility for a gun found at his house on another occasion, which he allowed Colin to do. (Tr. at 99.)
Defense counsel also cross-examined Lopez on his prior statements and contacts with law enforcement. (Tr. at 105.) Lopez admitted that he previously gave different versions of who was driving on November 1, 2005, and that he once said that defendant took his phone while they were on the gangway rather than in the car. (Tr. at 109-110.) Lopez also admitted that he was arrested in West Milwaukee for drinking and damaging property while on bond in his federal case, that he told the arresting officers that he was a cooperating federal witness, and that his bond was not revoked based on his conduct. (Tr. at 118-20.) Finally, he admitted that an agent advised him that law enforcement was interested in defendant in 2005 (before defendant's indictment in 2006), ...