                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2600
                         ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                              Orlando Dones-Vargas,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Sioux Falls
                                   ____________

                             Submitted: June 13, 2019
                              Filed: August 21, 2019
                                  ____________

Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

       A jury convicted Orlando Dones-Vargas of two drug trafficking offenses, and
the district court1 sentenced him to 235 months’ imprisonment. After trial, it came
to light that the government had been unaware of payments that local police made to

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
a cooperating witness and thus had failed to disclose that information to the defense.
Dones-Vargas moved for a new trial based on the nondisclosure, but the district court
denied the motion, and Dones-Vargas appeals. We conclude that the undisclosed
payments were not material to the outcome of the proceeding, and therefore affirm
the judgment.

      A grand jury charged Dones-Vargas with one count of conspiracy to distribute
methamphetamine, and one count of possession with intent to distribute
methamphetamine. See 21 U.S.C. §§ 841(a)(1), 846. The case proceeded to trial in
January 2018.

       Margaret Ghost, the defendant’s ex-girlfriend, testified for the prosecution.
Dones-Vargas is the father of Ghost’s four children; the two had dated off and on for
six years. Ghost testified that Dones-Vargas provided her with methamphetamine on
a regular basis during that period. Ghost said that she had seen Dones-Vargas sell
methamphetamine to approximately thirty people, in quantities of up to a pound at a
time, and that she once observed Dones-Vargas possess four pounds of
methamphetamine. She also explained that Dones-Vargas hid methamphetamine in
a storage unit and a concealed compartment in one of his vehicles. According to
Ghost, Dones-Vargas used three different cell phones and wired money out of the
country on two separate occasions. On cross-examination, Ghost acknowledged,
among other things, that she was serving a sentence for three state convictions,
including one for drug possession.

       Three other witnesses testified that they conducted methamphetamine
transactions with Dones-Vargas. Law enforcement officers also presented evidence
about drugs and cash found on Dones-Vargas’s person when he was arrested. One
officer recounted a post-arrest admission by the defendant that he had distributed
methamphetamine. The jury found Dones-Vargas guilty on both counts.



                                         -2-
       After trial, Dones-Vargas’s counsel learned from Ghost that she had received
certain payments from the local police department before and after the trial. At a
hearing on the matter, a police detective testified that he first paid Ghost $100 on
November 1, 2017, for information she had provided since 2013 about more than ten
different drug traffickers, including Dones-Vargas. He paid Ghost another $150 on
November 8 for information that led to the arrest of a suspect unrelated to Dones-
Vargas. The detective said that he also arranged for a $150 deposit into Ghost’s
prison account on January 31, 2018, the day after the trial concluded, for the
provision of information unrelated to Dones-Vargas.

       Dones-Vargas moved for a new trial on the ground that the government had
violated its duty to disclose material information favorable to the defense, under the
constitutional rule of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972). The district court denied the motion, concluding that
evidence of the payments to Ghost was not material to the outcome of the trial.
Dones-Vargas appeals, and we review the district court’s conclusion de novo. United
States v. Santisteban, 501 F.3d 873, 879 (8th Cir. 2007).

       The Due Process Clause of the Fifth Amendment requires the government to
disclose to the accused favorable evidence that is material to guilt or punishment.
Brady, 373 U.S. at 87. Giglio held that disclosure of evidence affecting the
credibility of a witness falls within this rule. 405 U.S. at 154. To establish a due
process violation, a defendant must show that the evidence in question was favorable
to him, that the government suppressed the evidence, and that the evidence was
material. Santisteban, 501 F.3d at 877. Evidence is material when there is a
“reasonable probability that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34
(1995) (internal quotation omitted). There is a “reasonable probability” of a different
result when the nondisclosure “undermines confidence in the outcome of the trial.”
United States v. Bagley, 473 U.S. 667, 678 (1985).

                                          -3-
       Determining whether a failure to disclose impeachment evidence is “material”
requires consideration of the record as a whole. The relative strengths of the
prosecution’s case and the impeachment value of the undisclosed evidence bear on
whether disclosure in time for use at trial would have made a difference. On this
record, we agree with the district court that the government’s failure to disclose the
three payments to Ghost does not undermine confidence in the verdict.

       The prosecution’s case did not hinge on Ghost’s testimony. Several other
witnesses implicated Dones-Vargas in a drug trafficking conspiracy. Jose
Riveraperez testified that he purchased methamphetamine from Dones-Vargas on and
off for about six years, and that Dones-Vargas was well known as a drug dealer.
Riveraperez also recounted that he had seen Dones-Vargas with large amounts of
cash, that Dones-Vargas owned multiple vehicles, and that Dones-Vargas had wired
money out of the country. Blanca Luna-Soto and her boyfriend, Edras Chua-Lemus,
each testified that she or he had sold methamphetamine to Dones-Vargas by the
pound. An expert law enforcement officer testified that he had never seen a drug
purchaser buy a pound of methamphetamine exclusively for personal use.

       To support the substantive charge of possession with intent to distribute, as
well as the conspiracy, police officers testified that Dones-Vargas possessed 13.7
grams of 96% pure methamphetamine on his person when he was arrested. An officer
with training and experience in drug investigations explained that methamphetamine
of that purity was consistent with methamphetamine produced in large batches in
Mexico that is typically smuggled across the border and trafficked north to the local
area. The officer testified that because methamphetamine users often use a half a
gram or less at a time, the 13.7 grams found on Dones-Vargas were “much more
likely a distribution amount.” A different officer recounted Dones-Vargas’s post-
arrest admission that he sometimes gave methamphetamine to others, further
supporting the inference that Dones-Vargas intended to distribute the drugs in his
possession.

                                         -4-
      The impeachment value of the payment information was not so devastating as
to undermine the entire prosecution. Police paid Ghost a total of $250 before trial,
and $150 after the trial ended. In other cases, we have held that undisclosed
payments of $2,000 from law enforcement to a witness were not material, where there
was no evidence that the payments gave the witness an incentive to testify. Kennell
v. Dormire, 873 F.3d 637, 639-40 (8th Cir. 2017); White v. Steele, 853 F.3d 486, 491-
92 (8th Cir. 2017).

       Dones-Vargas argues that even relatively small payments can mean a lot to a
witness like Ghost who was strapped for cash. That may be true. But other than a
modest circumstantial argument based on the timing of payments made within three
months of the trial, there is little to suggest that the transactions gave Ghost an
incentive to testify against Dones-Vargas. The first payment was for information that
Ghost had provided over the course of four years about several drug dealers. The
second payment was premised on information unrelated to Dones-Vargas. The third
payment came after the trial was over, for more information unrelated to Dones-
Vargas, and there was no showing that Ghost expected this payment as a reward for
her testimony at trial.

      Nondisclosure of the relatively small payments in these circumstances, when
considered against the backdrop of a substantial prosecution case, does not undermine
confidence in the jury’s verdict. We therefore conclude that the impeachment
evidence was not material, and Dones-Vargas has not established a violation of the
Due Process Clause.

      The judgment of the district court is affirmed.
                     ______________________________




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