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                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-13068
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 0:12-cr-60088-WJZ-2



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                   versus

QUELYORY A. RIGAL,
agent of “Kelly”,

                                                             Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                 (June 25, 2018)

Before WILSON, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      Quelyory Rigal appeals her convictions for one count of conspiracy to

commit mail and wire fraud, in violation of 18 U.S.C. § 1349, three counts of wire
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fraud, in violation of 18 U.S.C. §§ 1343 and 2, and one count of mail fraud, in

violation of 18 U.S.C. §§ 1341 and 2. On appeal, she argues that the district court

erred when it denied her motion for a new trial under Rule 33 of the Federal Rules

of Criminal Procedure, based on a violation of Brady v. Maryland, 373 U.S. 83, 83

S. Ct. 1194 (1963). She claims that the government suppressed evidence that her

co-defendant, Juan Carlos Sanchez, was cooperating with the government in an

international money-laundering and drug-trafficking conspiracy.         She further

argues on appeal that the district court erred when it denied her request for

discovery of this evidence and denied her request for resentencing based on this

evidence. After careful review of the parties’ briefs and the record, we affirm the

district court’s decision.

                                         I.

      According to the indictment, Rigal and her seven co-defendants, including

Juan Carlos Sanchez, perpetrated a mortgage fraud scheme involving the sale of

units in a condominium complex in Florida. The co-defendants provided false

borrower information on the mortgage applications. After a jury trial, Rigal was

convicted in April 2013.

      In 2016, Rigal filed a motion for a new trial pursuant to Federal Rule of

Criminal Procedure 33, the Due Process Clause of the Fifth Amendment, and

based on newly discovered evidence in violation of Brady and Giglio v. United

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States, 405 U.S. 150, 92 S. Ct. 763 (1972). Rigal asserted that her counsel

discovered new evidence that Sanchez was a party in another government

prosecution involving an international drug-trafficking conspiracy. In fact,

Sanchez was party to another prosecution, but, while Rigal described him as a

confidential informant, he was actually a victim in the other crime. Rigal claimed

that the government concealed this fact from her and that this evidence would have

significantly supported her theory of defense at trial.

      Rigal issued subpoenas for the Drug Enforcement Administration (DEA)

agents involved in the drug conspiracy case, ordering them to appear at an

evidentiary hearing and to produce all documents related to Sanchez in that case.

Later, the parties filed a joint notice of withdrawal of the subpoenas, stating that

they agreed to in camera production and review of the relevant documents instead.

      A magistrate judge conducted the evidentiary hearing on Rigal’s motion for

a new trial. At the hearing, the government stated that Sanchez was a victim in the

drug-trafficking case and not an informant. Rigal’s counsel from the initial trial,

Nicholas Recoba, stated that if the government disclosed this information about

Sanchez he would have used the information to impeach the government’s

witnesses and would have hired a financial accountant to explain Sanchez’s

activities. Recoba also stated that he would have advised Rigal to testify and

prepared for trial differently. Sanchez’s counsel testified, stating that Recoba

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asked him in March 2013 if he could interview Sanchez, that he consented, and

that Recoba never conducted the interview. He further stated that he did not

believe that the drug conspiracy and the present case were related.

      The magistrate judge issued an order stating that he had reviewed the

documents submitted and found that they did not contain any information that was

material or that may be favorable to Rigal on the issues of guilt or punishment

within the scope of Brady.

      Rigal then filed a motion to compel the government to produce reports of

interviews with Sanchez. She argued that the information was relevant to solving

the motion for a new trial, that it would challenge the credibility of the witnesses,

that it would show that Rigal was not within the inner circle of the fraud scheme,

and that she was merely a pawn. She also requested a new sentencing based on the

undisclosed evidence.

      The magistrate judge conducted a second evidentiary hearing to address the

motion to compel and the motion for a new trial. The government stated that the

indictment and factual proffer for the drug conspiracy were in the public record,

that the documents regarding Sanchez’s involvement in the drug conspiracy were

immaterial and would have been inadmissible in Rigal’s trial, and that the DEA

reports were already submitted to the court for in camera review. The magistrate

judge granted the order to compel within the scope of the existing standing

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discovery order in Rigal’s case and ordered that the government continue to

operate under the obligations imposed by Brady.

      The magistrate judge issued a report and recommendation. He

recommended that the district court deny Rigal’s motion for a new trial. He stated

that he had carefully reviewed the documents submitted by the government in

camera and had found no Brady violation. He concluded that Rigal failed to

establish that the evidence was material and that the evidence could have been

discovered by Rigal through reasonable diligence. Additionally, he stated that he

found no authority to support the grant of a new sentencing hearing in the absence

of a Brady violation. Rigal filed an objection to the magistrate judge’s findings.

The district court conducted a de novo review, overruled Rigal’s objections, and

adopted the magistrate judge’s report and recommendation.

                                         II.

                                         A.

      We review a district court’s denial of a motion for a new trial for an abuse of

discretion. United States v. Brester, 786 F.3d 1335, 1338 (11th Cir. 2015).

Likewise, we review a denial of a motion for a new trial based on a Brady violation

for an abuse of discretion. United States v. Fernandez, 136 F.3d 1434, 1438 (11th

Cir. 1998). We only find an abuse of discretion if the district court made a clear

error of judgment or applied the wrong legal standard. ML Healthcare Servs., LLC

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v. Publix Super Mkts, Inc., 881 F.3d 1293, 1297 (11th Cir. 2018). We review an

alleged Brady violation de novo. Brester, 786 F.3d at 1338.

      Federal Rule of Criminal Procedure 33 allows for the grant of new trials in

criminal cases. Fed. R. Crim. P. 33. A Rule 33 motion for a new trial based on the

discovery of new evidence is usually governed by the rules specified in United

States v. Thompson, 422 F.3d 1285, 1294 (11th Cir. 2005). However, if the motion

for a new trial is based on a Brady claim, it is governed by a different set of

guidelines. See United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002)

(setting forth standard for prevailing on a Rule 33 motion based on an alleged

Brady violation).

      To establish a Brady violation, the defendant must show that (1) the

government possessed evidence favorable to her; (2) she did not possess the

evidence and could not obtain it with reasonable diligence; (3) the government

suppressed the favorable evidence; and (4) the evidence was material. See United

States v. Hansen, 262 F.3d 1217, 1234 (11th Cir. 2001) (per curiam). For Brady

purposes, evidence is material if a reasonable probability exists that, had the

evidence been disclosed, the outcome of the proceeding would have been different.

A reasonable probability is “a probability that is sufficient to undermine

confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.

3375, 3383 (1985).

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                                          B.

      Rigal cannot prevail on her Brady claim because she failed to show that the

fact that Sanchez was involved in another criminal investigation was material

evidence that could be the basis of a Brady violation. She did not establish that

Sanchez’s involvement in another criminal act had any bearing on the proceeding

here, especially as his testimony was never heard. While impeaching evidence can

be material evidence in a Brady analysis, United States v. Newton, 44 F.3d 913,

918 (11th Cir. 1994), impeaching non-existent testimony does nothing to

undermine the confidence of the outcome of the case. Further, as Sanchez was the

victim in the other case, it is not clear that his involvement would have succeeded

in impeaching Sanchez, even if his testimony had been heard. Rigal’s counsel

claims that he would have done a more diligent job defending her by hiring a

financial accountant, had he known Sanchez was a victim in another criminal

matter. But counsel’s strategic decisions or tenacity in preparing a defense does

not bear on a Brady analysis. In essence, nothing in the record indicates that

knowledge of Sanchez’s involvement in another case would have been likely to

produce a reasonable probability that the result would have been different here.

      Moreover, the magistrate judge correctly identified the standard for

materiality of evidence under Brady in his report and recommendation. He stated

that “evidence is material only if there is a reasonable probability that, had the

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evidence been disclosed to the defense, the result of the proceedings would have

been different.” He further stated that a reasonable probability is a “probability

sufficient to undermine confidence in the outcome.”

      Rigal’s Brady argument also fails because she did not show that she could

not have discovered the fact that Sanchez was party to another federal investigation

with reasonable diligence. Rigal’s counsel readily admitted that he had discussed

interviewing Sanchez with Sanchez’s counsel and Sanchez’s counsel stated that he

consented to the interview. Further, Sanchez was listed as a potential witness by

the government. Therefore, Rigal had ample opportunity to interview him in the

course of the proceedings. Rigal, however, chose not to interview Sanchez.

Whether Rigal chose not to interview Sanchez for strategic reasons or due to a

mistake of law does not bear on whether the information was discoverable through

reasonable diligence. Had Rigal opted to interview Sanchez, she could have

discovered the information in question.

      It follows that the district court, therefore, properly denied the Rule 33

motion for a new trial, as the evidence was not material and could have been

discovered through reasonable diligence. See Hansen, 262 F.3d at 1234;

Thompson, 422 F.3d at 1294. The magistrate judge’s report and recommendation

that the district court adopted correctly states that there was not a reasonable

probability that the evidence would have produced a different outcome. The report

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also states that the evidence was discoverable through reasonable diligence. Either

of these findings is sufficient to reject the motion for a new trial based on an

alleged Brady violation. Therefore, in upholding the ruling from the magistrate

judge and rejecting the Rule 33 motion, the district court did not abuse its

discretion.

                                          III.

                                          A.

      We review the denial of a discovery motion for abuse of discretion.

Moorman v. UnumProvident Corp., 464 F.3d 1260, 1264 (11th Cir. 2006). Wide

discretion is accorded to district court judges in their rulings on discovery motions,

and review on appeal is accordingly deferential. Iraola & CIA, S.A. v. Kimberly–

Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003).

      The defendant's right to the disclosure of favorable evidence under Brady

does not “create a broad, constitutionally required right of discovery.” United

States v. Jordan¸ 316 F.3d 1215, 1251 (11th Cir. 2003). Brady does not require the

government to disclose its entire file to the defense. Id. at 1251–52. “Rather,

Brady obligates the government to disclose only favorable evidence that is

‘material.’” Id. at 1252. When the parties disagree as to whether the evidence is

material under Brady, the government should submit the evidence to the court for

in camera review. Id.

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      “If the appellant intends to urge on appeal that a finding or conclusion is

unsupported by the evidence or is contrary to the evidence, the appellant must

include in the record a transcript of all evidence relevant to that finding or

conclusion.” Fed. R. App. P. 10(b)(2); see also Fernandez v. United States, 941

F.2d 1488, 1493 (11th Cir. 1991) (“[The appellant] is responsible for ensuring that

all documents buttressing [her] claims appear in the record.”).

                                           B.

      The district court did not err in denying Rigal’s discovery request. Rigal

failed to establish that the district court abused its discretion in denying her

discovery request. The evidence was properly submitted for an in camera review

because the parties disputed whether the documents were material under Brady and

both parties agreed to the in camera review. Further, Rigal failed to include the

documents that the magistrate judge reviewed in camera in the record on appeal, as

required by Rule 10(b)(2), and there is no other evidence of what information the

documents contained. Fed. R. App. P. 10(b)(2). As a result, the record does not

support Rigal’s assertion that the documents were material under Brady; a

responsibility born by the appellant. Fernandez, 941 F.2d at 1493. Thus, this

Court cannot determine whether the documents were material under Brady or if the

in camera review was conducted incorrectly. As such, we find no abuse of

discretion by the district court in denying Rigal’s discovery request.

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                                         IV.

                                          A.

      We review a district court's decision not to resentence a defendant for abuse

of discretion. United States v. Vautier, 144 F.3d 756, 759 n. 3 (11th Cir. 1998).

We recognize that, in some circumstances, a Brady violation can be the basis of a

resentencing hearing where it would not justify a new trial. See Moore v. Kemp,

809 F.2d 702, 734-35 (11th Cir. 1987) (en banc).

                                          B.

      The district court did not err in denying Rigal’s motion for resentencing. As

stated, Rigal failed to establish a Brady violation because the evidence of

Sanchez’s involvement in another criminal proceeding was discoverable through

reasonable diligence. As there is no Brady violation, there is no basis for

resentencing. Therefore, the district court did not abuse its discretion.

                                          V.

      The district court correctly decided to reject Rigal’s motion for a new trial,

discovery request, and request for resentencing. It properly found that the

knowledge that Sanchez was a victim in another federal criminal prosecution was

not material to the trial’s outcome and was discoverable through reasonable

diligence. As such, there were no grounds for granting a new trial under Brady.

Further, there was no evidence that the district court abused its discretion in

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rejecting the discovery request because Rigal did not include the documents the

magistrate judge reviewed in camera in the record on appeal, and nothing in the

record suggests that the in camera review was conducted incorrectly. Finally,

resentencing was not warranted because the evidence could have been discovered

with reasonable diligence, and thus there was no Brady violation. Accordingly, we

hold that there was no abuse of discretion and, thus, affirm the district court’s

decision.

      AFFIRMED.




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