                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 10-1486

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

A RMANDO M OTA,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
            No. 08 CR 187—Philip P. Simon, Chief Judge.



       A RGUED M ARCH 28, 2012—D ECIDED JULY 6, 2012




 Before M ANION, S YKES, and H AMILTON, Circuit Judges.
  M ANION , Circuit Judge. A jury convicted Armando
Mota of attempting to distribute 500 grams or more of
cocaine and of possessing with the intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 21 U.S.C. § 846. At the start of his jury
trial, Mota learned that a government agent had failed
to record and relay exculpatory evidence regarding a con-
versation between the agent and Mota’s co-defendant,
2                                               No. 10-1486

Jorge Ponce, during which conversation Ponce assumed
complete responsibility for the crime and proclaimed
Mota’s innocence. On appeal, Mota argues that the
agent’s failure to record the conversation and to pass on
the information to Mota violates Brady v. Maryland, 373
U.S. 83 (1963), and that he is thus entitled to a new trial.
While the failure to transmit exculpatory evidence was
inexcusable, Mota learned of this evidence at the start
of his trial and thoroughly presented it to the jury. Also,
because Mota had the opportunity to cross-examine
the negligent agent and because Ponce testified on Mota’s
behalf, we cannot conclude that Mota was denied a
fair trial. Mota also argues that the evidence presented
by the prosecution is insufficient to sustain his convic-
tion. Considering the evidence presented by the pros-
ecution at trial which included testimony from the gov-
ernment informant who met Ponce and Mota in
order to conduct a drug deal and the audio recording
of this sting operation, we find there was sufficient evi-
dence from which a jury could find guilt beyond a rea-
sonable doubt. Therefore, we affirm the judgment of
the district court.


                             I.
  The government’s case against Mota and his co-defen-
dant Ponce began with Rafael Contreras, a government
informant working with the Drug Enforcement Adminis-
tration (DEA) and DEA Task Force Agent Robert Aponte.
Contreras knew that Ponce was involved in drug
dealing, and he conveyed this information to Agent
No. 10-1486                                            3

Aponte. Agent Aponte then told Contreras to try to
arrange a drug deal with Ponce, and Contreras did so.
On October 9, 2008, Contreras spoke with Ponce on the
telephone, and the two men set up a drug deal for the
next day at Ponce’s home in Hammond, Indiana. Ponce
explained that he had a drug source and that his
source would sell Contreras one kilogram of cocaine
for $29,000.
   The next day, Ponce telephoned Contreras and con-
firmed that the drug deal was going forward. Law en-
forcement then equipped Contreras with a hidden
audio recording device and secured a search warrant for
Ponce’s home. At some time around 1:00 p.m., Contreras
arrived at Ponce’s house, where he found Ponce, Mota,
and the cocaine. The three men conversed about the
cocaine in Spanish; in Contreras’s account of the events,
Mota did most of the talking and guaranteed the co-
caine’s quality and purity. Contreras then told Ponce
and Mota that he had to call the man who had the
money for the deal. Contreras stepped out of the house
and called the DEA agents who were waiting nearby.
The agents then came to the door of the house and
knocked, but no one answered. The agents were forced
to use a battering ram in order to breach the door, and
entered after a few minutes. They found Mota in the
kitchen and Ponce in the basement, and arrested both
men. After an hour and a half of searching, they dis-
covered the kilogram of cocaine secreted in between
the wall and the bathtub in the basement bathroom.
 When Mota was arrested, he was carrying a cell phone.
Ponce’s phone records later showed that on the night
4                                            No. 10-1486

before the drug deal, Ponce first spoke with Contreras
over the telephone and then immediately called the cell
phone Mota was carrying at the time of his arrest. Simi-
larly, the records showed that the next morning, Ponce
telephoned Contreras to confirm the deal and, two
minutes later, Ponce again called Mota.
   The government also obtained the audio recording of
the Spanish conversation among Contreras, Ponce, and
Mota during the drug deal, and prepared an English
translation of the recording. Using other recordings of
Mota’s and Ponce’s voices, the government determined
that Mota had said the word “guaranteed” three
times and “clean” twice when allegedly referring to the
cocaine. Contreras reviewed the translation, and con-
firmed the accuracy of the translation and the identity
of the speakers.
  Ponce and Mota were charged in an indictment
with attempting to distribute 500 grams or more of
cocaine and with possession with the intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 21 U.S.C. § 846. Ponce pleaded guilty to
both charges, while Mota opted for a jury trial.
  At Mota’s trial in October 2009, the prosecution’s
theory of the case was that Mota was a full participant
in the drug deal and was the dealer and source of the
cocaine. In support of its case, the prosecution called
Contreras as a witness, who gave his testimony of the
events as we have described above. The prosecution
also presented as evidence the translation of the audio
recording from the drug deal and Ponce’s cell phone
records.
No. 10-1486                                             5

  The defense’s theory of the case was that Ponce was
solely responsible for the drug deal and Mota had no
involvement—and that Mota happened to be at Ponce’s
house during the drug deal by chance because he
had been helping Ponce with some home remodeling.
Right at the start of Mota’s trial, Mota’s counsel dis-
covered important exculpatory evidence that had also
been unknown to the prosecution: five days after
Ponce’s arrest, Agent Aponte had interviewed Ponce in
jail and Ponce had taken full responsibility for the drug
deal, while stating that Mota was completely innocent
and uninvolved. During this interview, Ponce also alleg-
edly told Agent Aponte that the cocaine source was not
Mota but a man named “Teflon” who had delivered
the cocaine to Ponce’s house earlier in the day. Agent
Aponte failed to make a record of his conversation
with Ponce and failed to report the substance of the
conversation to his supervisors. Accordingly, the infor-
mation from the interview was never disclosed to Mota
or to his counsel before trial. But because Mota’s coun-
sel learned of this information at the start of the trial,
Mota’s counsel was able to cross-examine Agent Aponte
on this issue and called Ponce as the sole witness for
the defense. On the stand, Ponce acknowledged his
own guilt but insisted that Mota was coincidentally at
his house doing renovations, and that someone named
“Teflon” had earlier delivered the drugs to the house
and then departed.
  Despite Ponce’s testimony in favor of Mota’s innocence,
the jury returned a guilty verdict and Mota was later
sentenced to 63 months’ imprisonment. Mota then filed
this appeal.
6                                               No. 10-1486

                             II.
  Mota makes two arguments on appeal: (1) that Agent
Aponte’s failure to disclose his conversation with Ponce
in jail five days after Ponce’s arrest constitutes a Brady
violation entitling Mota to a new trial; and (2) that there
is insufficient evidence to support Mota’s conviction.
We consider each issue in turn.


A. Brady Violation
  Mota failed to raise a Brady violation claim before the
trial court and is making this argument for the first time
on appeal. Consequently, we review Mota’s Brady viola-
tion claim for plain error. United States v. Daniel, 576 F.3d
772, 774 (7th Cir. 2009). That means that “the alleged
Brady violation must be an obvious error that affected
[Mota’s] substantial rights and created ‘a substantial risk
of convicting an innocent person.’ ” Id. (quoting United
States v. Paladino, 401 F.3d 471, 481 (7th Cir. 2005)).
  A Brady violation occurs when the prosecution sup-
presses evidence favorable to the defense and the evi-
dence was material to an issue at trial. Id. Here, Agent
Aponte’s conversation with Ponce exculpating Mota
and identifying “Teflon” as the drug source constitutes
evidence favorable to Mota. Although the govern-
ment prosecutors themselves had no knowledge of
Agent Aponte’s interview before trial, “[p]rosecutors may
not simply claim ignorance of Brady material.” Crivens
v. Roth, 172 F.3d 991, 996 (7th Cir. 1999). Instead, prosecu-
tors have “a duty to learn of any favorable evidence
No. 10-1486                                               7

known to the others acting on the government’s behalf
in the case, including the police.” Kyles v. Whitley, 514
U.S. 419, 437 (1995). This means that a prosecutor’s
failure to disclose “evidence possessed exclusively by
those actors assisting him in investigating and trying
his case” may create a Brady violation. Fields v. Wharrie,
672 F.3d 505, 513 (7th Cir. 2012). Thus, it is certainly
inexcusable that Agent Aponte failed to record and
report the substance of his conversation with Ponce
and that the prosecution failed to learn of and notify
the defense of this evidence. It is a serious viola-
tion of the government’s duty to turn over all evidence
favorable to the accused—a duty required by our
nation’s standards of justice. See Brady, 373 U.S. at 87-88.
  But even so, “a violation of this duty, whether inten-
tional or inadvertent, entitles the defendant to a new
trial only if the failure to disclose the evidence resulted
in denial of a fair trial.” United States v. Banks, 546
F.3d 507, 509-10 (7th Cir. 2008). And this happens “only
when the suppressed evidence is material, meaning
when there is ‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of
the proceeding would have been different.’ ” Id. at 510
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
  In this case, Mota cannot demonstrate that the sup-
pression of the evidence resulted in the denial of a fair
trial. First, it is important to note that Mota learned
of Ponce’s conversation with Agent Aponte at the start
of his trial. Accordingly, Mota and his counsel were
aware of this information during the trial and were able
8                                                No. 10-1486

to present this evidence to the jury—and they did so.
During the defense’s case, Mota’s counsel called Ponce
as a witness and elicited from Ponce his testimony
claiming Mota’s innocence and Teflon’s involvement in
the drug deal; Ponce also testified that he had told
Agent Aponte this exculpatory information during an
earlier interview which Agent Aponte had failed to
record and report. Furthermore, Mota’s counsel was able
to cross-examine Agent Aponte on this issue. Because
the defense was able to present all of this evidence to
the jury for its consideration, we cannot say that
the prosecution’s failure to turn over the evidence to the
defense at an earlier time created a reasonable prob-
ability that the trial proceedings would have been dif-
ferent. See Banks, 546 F.3d at 510. And under the lower
standard for plain error review, there is even less
reason for us to conclude that the error was obvious
and created a substantial risk of convicting an innocent
person. See Daniel, 576 F.3d at 774.
   In response, Mota argues that the last-minute revela-
tion of Ponce’s exculpatory statement gave him insuf-
ficient time to conduct an investigation into Teflon’s
identity—and perhaps even to locate him—and that
this was prejudicial to his case. But we have said
that “when a defendant realizes that exculpatory evi-
dence has been withheld, the ‘appropriate course’ is
to seek a continuance if ‘more time to investigate the ex-
culpatory potential of the evidence’ is needed.” United
States v. Kimoto, 588 F.3d 464, 488 (7th Cir. 2009) (quoting
United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001)).
Here, Mota never sought a continuance from the trial.
No. 10-1486                                               9

Moreover, under Brady, “ ‘disclosure even in mid-trial
suffices if time remains for the defendant to make
effective use of the exculpatory material.’ ” United States
v. Gray, 648 F.3d 562, 567 (7th Cir. 2011) (quoting
United States v. Higgins, 75 F.3d 332, 335 (7th Cir. 1996)).
As discussed above, Mota made effective use of the
exculpatory evidence in presenting his case to the jury,
and if his counsel needed more time, a request for a
continuance was the proper course of action. See
Higgins, 75 F.3d at 335.
  Finally, Mota also argues that he suffered prejudice
because Ponce’s and Agent Aponte’s accounts of their
conversation differed. In particular, Ponce testified that
he identified Teflon as his drug supplier during the
conversation, while Agent Aponte testified that this
identification did not happen and that he was not aware
of the name “Teflon.” Mota argues that if Agent Aponte
had prepared a written report of the conversation on
the day the conversation happened, Mota could have
used this report to impeach Agent Aponte on the
stand. Though Agent Aponte’s failure to prepare a
written report following his interview with Ponce is
indefensible, this failure does not create a Brady vio-
lation by itself. At the very least, there must be
some prejudice that makes us question the outcome of
the jury proceedings. See Banks, 546 F.3d at 509-10.
But because Mota’s counsel was able to cross-examine
Agent Aponte on the differences between his account
and that of Ponce, we find no such prejudice. Mota
cannot demonstrate that there is a Brady violation
entitling him to a new trial.
10                                            No. 10-1486

B. Sufficiency of the Evidence
  Mota’s second argument on appeal is that there
was insufficient evidence presented at trial to prove
beyond a reasonable doubt that he attempted to
distribute cocaine. The parties dispute whether Mota
challenged the sufficiency of the evidence before the
trial court, and, accordingly, whether a de novo or a
plain error standard is the proper standard of review.
We need not resolve this dispute, however, because
even under the more stringent de novo standard,
Mota’s challenge fails.
  When evaluating a defendant’s sufficiency-of-the-
evidence claim, we view the evidence “in the light
most favorable to the prosecution, making all rea-
sonable inferences in its favor, and affirm the conviction
so long as any rational trier of fact could have found
the defendant to have committed the essential elements
of the crime.” United States v. Vallar, 635 F.3d 271, 286
(7th Cir. 2011) (internal quotation omitted). “We will
overturn the jury’s verdict only if the record contains
no evidence, regardless of how it is weighed, from which
the jury could find guilt beyond a reasonable doubt.”
United States v. Fassnacht, 332 F.3d 440, 447 (7th Cir.
2003) (internal quotation omitted).
  Here, there is more than sufficient evidence from
which a rational juror could have found beyond a rea-
sonable doubt that Mota intended to distribute one kilo-
gram of cocaine at Ponce’s house, and that he attempted
to do so. First, the prosecution presented Contreras’s
testimony regarding the drug deal, complete with the
No. 10-1486                                           11

allegations that Mota participated in the negotiations
and guaranteed the quality of the cocaine. A rational
juror could have found Contreras credible and thus
believed his account of the events—and that determina-
tion alone is sufficient to support Mota’s conviction. In
addition, the audio recording and its English transcript
corroborated Contreras’s account of the events and
was more evidence that Mota participated in the drug
deal. Finally, there were Ponce’s telephone records in-
dicating that Ponce would call Mota immediately after
speaking with Contreras about the details of the drug
deal—evidence from which a rational juror could have
inferred Mota’s involvement in the crime.
  It would also be reasonable for a rational juror to
question Ponce’s version of the events. Besides Ponce’s
testimony, there was apparently no other corro-
borating evidence of Teflon’s existence, such as his
phone number in Ponce’s telephone records. Also, it
would be unusual to close a drug deal in the same room
as an innocent and uninvolved third party. And it
would be a little odd for the drug source Teflon to drop
off $29,000 worth of cocaine at Ponce’s house with an
unknown home repairman present, and leave before
completing the deal without his anticipated cash payment.
  In short, when considering the evidence in the light
most favorable to the prosecution and making all rea-
sonable inferences in its favor, there is sufficient evi-
dence from which the jury could have found beyond
a reasonable doubt that Mota was guilty of the charges
against him.
12                                       No. 10-1486

                        III.
  Because Mota cannot show that he is entitled to a
new trial due to a Brady violation and because he
cannot show that there is insufficient evidence to
support his conviction, the judgment of the district
court is A FFIRMED.




                       7-6-12
