     Case: 14-31288       Document: 00513324820         Page: 1     Date Filed: 12/30/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                       No. 14-31288                       United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
UNITED STATES OF AMERICA,                                                December 30, 2015
                                                                            Lyle W. Cayce
               Plaintiff - Appellee                                              Clerk

v.

JOSE RIGOBERTO IGLESIAS,

               Defendant - Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                            USDC: No. 3:13-CR-00119


Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       At issue is whether the district court erred in denying Jose Rigoberto
Iglesias’ new-trial motion, based on a claimed violation of Brady v. Maryland,
373 U.S. 83 (1963) (addressing non-production of material evidence favorable
to defendant).       The claimed violation concerned the Government’s not
including, in the material it produced, a misdemeanor summons for a
Government witness (informant). AFFIRMED.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                 No. 14-31288
                                       I.
      In February 2014, Iglesias, and his brother, Jose Luis Argueta Iglesias
(Argueta), were charged with: conspiracy to distribute, and possession, with
the intent to distribute, 500 grams or more of methamphetamine, in violation
of 21 U.S.C. § 846 and 18 U.S.C. § 2 (count one); distribution of
methamphetamine (in varying amounts up to 500 grams), in violation of 21
U.S.C. § 841(a)(1) (counts two–seven, and nine); and possession, with intent to
distribute, 50 or more grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) (count eight). Before trial, the court granted Iglesias’ motion to
dismiss count two (distribution of a detectable amount of methamphetamine),
after finding that count was based on a transaction outside the dates of the
charged conspiracy.
      At trial, the Government presented, inter alia, testimony from FBI
Special Agents, local law enforcement, and, at issue in this appeal, confidential
informants Muniz and Honeycutt.         As discussed below, both Muniz and
Honeycutt testified they were former drug users who worked with Argueta and
Iglesias to buy and sell methamphetamine. After being approached separately
by the FBI, both agreed to participate in undercover, controlled drug
transactions.
      Muniz testified she was a former crack-cocaine dealer who met Iglesias
after purchasing methamphetamine from him on behalf of a friend.
Thereafter, from July 2011 to February 2012, Iglesias supplied Muniz with
methamphetamine, which she sold to others. She testified she often deposited
the proceeds from drug sales directly into Iglesias’ bank account. Iglesias also
introduced Muniz to Argueta and Iglesias’ nephew, who supplied her with
methamphetamine when Iglesias was out of town.
      In May 2012, Muniz was approached by the FBI and agreed to become a
confidential informant, assisting with undercover drug investigations. Muniz
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                                  No. 14-31288
testified   that,   while   serving   as       an   informant,    she   received    her
methamphetamine supply from Argueta, and continued to buy and sell the
drug until he was arrested in February 2013. The Government presented four
videotaped methamphetamine transactions between Muniz and Argueta.
      On cross-examination, Muniz admitted she was paid for serving as an
informant, but claimed she did not receive any “promises” from the FBI. Muniz
acknowledged that, while an informant, she was on probation, due to an earlier
felony conviction for food-stamp fraud. She also testified that, although she
was a former cocaine and prescription-drug user, she was no longer using drugs
and never used drugs while on probation.
      Honeycutt testified she met Iglesias in 2011, and agreed to sell
methamphetamine in order to repay a $20,000 debt owed to him by Honeycutt’s
former boyfriend.     She claimed she sold methamphetamine supplied by
Iglesias, and later by Argueta, steadily between September 2011 and
December 2012. Similar to Muniz’ testimony, Honeycutt stated she would
often deposit the proceeds of drug transactions directly into Iglesias’ bank
account, and received her methamphetamine supply from his nephew when
Iglesias was out of town. Honeycutt also used methamphetamine, for which
she was arrested in September 2012.             After being released on bond, she
continued to sell drugs supplied by Iglesias.
      Honeycutt was approached by the FBI in March 2013, and agreed to
participate in a controlled purchase of methamphetamine from Iglesias later
that month. That transaction was the basis for count nine (distribution of 50
or more grams of methamphetamine). The purchase was videotaped, but did
not show Iglesias’ face. On cross-examination, when questioned about her
knowledge of Muniz’ drug use, Honeycutt testified, contrary to Muniz’
testimony, that she witnessed Muniz smoking crack-cocaine and using
methamphetamine, and saw Muniz use drugs while an informant.
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                                 No. 14-31288
      After the Government rested, Iglesias did not present evidence. The jury
found him guilty of counts one (conspiracy), three–seven (distribution) and
eight (possession with intent to distribute), but could not reach a verdict on
count nine (distribution of 50 grams or more of methamphetamine).
      According to Iglesias’ trial counsel, approximately three months after
trial, but prior to sentencing, he inadvertently discovered new information
concerning Muniz’ criminal history, while teaching a new employee to search
for criminal records at the Livingston Parish, Louisiana, courthouse. Results
of the search included, inter alia, a May 2013 misdemeanor summons for
marijuana use, issued by the Livingston Parish Sheriff’s Office during the time
Muniz served as an informant.
      Prior to trial, Iglesias requested “all impeachment, exculpatory evidence,
and witness criminal histories”. In response, the Government provided a “rap
sheet” for Muniz, as well as additional information on her criminal history.
The material did not include the misdemeanor summons. Therefore, after
discovering the information about Muniz’ summons, Iglesias amended his
pending new-trial motion pursuant to Federal Rule of Criminal Procedure 33.
The amendment claimed the newly-discovered evidence showed a Brady
violation. Iglesias asserted the information could have been used to impeach
Muniz’ credibility during her testimony, including to show she was untruthful
when she testified that, while serving as an informant, she had neither used
drugs nor violated her probation.
      Following a hearing, the court denied a new trial. In its order, the court
evaluated Iglesias’ claims solely under Rule 33, without discussing Brady, and
determined he “ha[d] not presented . . . any new evidence that would even
remotely suggest [he] was unjustly convicted by a jury, let alone reasons that
would warrant a new trial”. The court ruled, inter alia: the Government met
its obligation to produce all relevant discovery material concerning Muniz; and
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                                  No. 14-31288
Iglesias did not exercise due diligence when he failed to conduct a search before
trial that would have revealed Muniz’ criminal records. In addition, the court
ruled the information would only have been cumulative, as the jury was given
ample opportunity to evaluate Muniz’ credibility during her testimony,
including on cross-examination. United States v. Iglesias, No. 3:13-CR-00119-
BAJ-RLB (M.D. La. 3 Sept. 2014). In October 2014, Iglesias was sentenced,
inter alia, to 192 months’ imprisonment.
                                       II.
      Iglesias claims the court erred in denying a new trial based on the
claimed Brady violation. In that regard, he asserts: he justifiably relied on
the Government’s incomplete production of information about Muniz’ criminal
history; and, because Muniz’ credibility was the primary issue for the jury in
determining Iglesias’ guilt, the information affected the outcome of the trial
(was material).
      A claimed Brady violation is a mixed question of law and fact, generally
reviewed de novo. E.g., Bower v. Quarterman, 497 F.3d 459, 466 (5th Cir.
2007).   The review, however, “must proceed with deference to the factual
findings underlying the district court’s decision”. United States v. Brown, 650
F.3d 581, 589 (5th Cir. 2011).
      In Brady, the Supreme Court explained:         “[T]he suppression . . . of
evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution”. 373 U.S. at 87. When the basis for a new
trial is a claimed Brady violation, the defendant must demonstrate the
evidence was: (1) not disclosed by the prosecution; (2) favorable to the defense;
and (3) material. E.g., United States v. Davis, 609 F.3d 663, 696 (5th Cir. 2010).
Evidence is material “if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
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                                   No. 14-31288
different”. Id. (internal quotation marks omitted). To reverse a conviction due
to suppression of material evidence under Brady, Iglesias must show “the
favorable evidence could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict”.        E.g., Banks v.
Thaler, 583 F.3d 295, 310 (5th Cir. 2009) (emphasis and internal quotation
marks omitted).
      Iglesias contends the first two Brady elements are satisfied and only the
third, materiality, is at issue.   He claims Muniz’ misdemeanor marijuana
summons was significant for impeachment purposes, because it shows Muniz
lied when she testified she had not used drugs or violated her probation.
Although he concedes Muniz’ claims about her drug use were partially
impeached by Honeycutt’s testimony, Iglesias asserts Muniz’ credibility “was
not impeached to the degree it could have been had the Brady evidence been
disclosed”.
      Additionally, because the marijuana charge was pending at the time of
trial, Iglesias contends the information would have helped him show Muniz’
motive to testify untruthfully in order to secure leniency from the Government.
He further claims: because the jury was not able to reach a verdict on count
nine (which was based on a drug transaction between Iglesias and Honeycutt),
Muniz was the sole witness whose testimony supported the counts for which
he was convicted. In that regard, had her credibility been impeached, Iglesias
asserts he would not have been convicted of any charged offense. This, he
maintains, is sufficient to show the evidence was material:         a reasonable
probability the outcome of his trial would have been different.
      The Government counters that any damage to Muniz’ credibility was
already achieved by Iglesias’ cross-examination about her other, more serious
offenses.     Further, it contends Honeycutt’s testimony provided sufficient
evidence of Iglesias’ role in the overall conspiracy to support his conviction;
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                                  No. 14-31288
therefore, evidence of Muniz’ marijuana summons would not have changed the
outcome of the trial.
      For the reasons that follow, and even assuming, arguendo, Iglesias
demonstrates the first two elements under Brady, he has not shown
materiality: “a reasonable probability that, had the evidence been disclosed to
[Iglesias], the result of the proceeding would have been different”. Davis, 609
F.3d at 696. In that regard, “[s]uppressed evidence is not material when it
merely furnishes an additional basis on which to impeach a witness whose
credibility has already been shown to be questionable”. Felder v. Johnson, 180
F.3d 206, 213 (5th Cir. 1999) (quoting United States v. Amiel, 95 F.3d 135, 145
(2d Cir. 1996)); see also Thaler, 583 F.3d at 323. As noted by the district court,
Iglesias had the opportunity while cross-examining Muniz to question her,
including challenging her credibility, regarding: her use, and history of selling,
drugs; her prior felony conviction for food-stamp fraud and current probation;
her part in the charged conspiracy; and the nature of the payment she received
from the Government for serving as a confidential informant.
      Further, as stated supra, Iglesias concedes Muniz’ testimony denying
drug use was partially impeached by Honeycutt, who testified about Muniz’
use of crack-cocaine and methamphetamine. In that regard, the jury was made
aware that the truthfulness of Muniz’ testimony was in question. Iglesias’
claim that Muniz’ credibility “was not impeached to the degree it could have
been”, even if correct, is insufficient to establish materiality. Had the evidence
of the marijuana summons been disclosed, it merely would have given Iglesias
an additional basis for Muniz’ lack of credibility. See Thaler, 583 F.3d at 323.
Given all of the other evidence concerning Muniz’ criminal history, the impact
of the misdemeanor marijuana summons would have been minimal.
      Moreover, contrary to Iglesias’ contention, Muniz was not the only
witness who provided testimony regarding Iglesias’ participation in drug-
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                                  No. 14-31288
trafficking, and the conspiracy for which he was convicted.            Local law
enforcement and FBI Special Agents testified about their investigation of
Iglesias; and, as described above, Honeycutt provided testimony that was
factually similar to Muniz’. Honeycutt’s testimony provided extensive detail
about Iglesias’ involvement, including her receiving methamphetamine
directly from him, and depositing cash proceeds from drug transactions into
his bank account.
      In sum, given, inter alia, Honeycutt’s testimony, and the minimal impact
of the marijuana summons’ being cumulative impeachment evidence to
demonstrate Muniz’ lack of credibility, the additional evidence at issue falls far
short of putting the whole case in “such a different light as to undermine
confidence in the verdict”. Id. at 310 (emphasis omitted).
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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