                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1728
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Gilberto Salaiza Zuazo,                  *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 20, 2000

                                   Filed: December 22, 2000
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Gilberto Salaiza Zuazo appeals from the order of the district court1 denying his
motion for a new trial following his convictions for conspiracy to distribute controlled
substances and aiding and abetting distribution of methamphetamine and cocaine. We
affirm.



      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                            I.

       On September 2, 1998, Salaiza Zuazo, a Mexican citizen, and Carlos Gomez
Corro arrived in Minneapolis, Minnesota, in a Honda automobile with 5907.1 grams
of cocaine and 436.8 grams of methamphetamine secreted in the gas tank, which had
been modified in such a manner as to reduce its capacity and to render the gas gauge
inoperative, necessitating stops every two or three hours to refuel. The two men had
driven directly from Los Angeles, California, stopping only briefly at a rest area to
sleep for a few hours. Upon arriving in the Minneapolis metropolitan area, Gomez
Corro called Luis Andrade, whom the Minneapolis narcotics officers had under
investigation as a possible drug dealer, and arranged for Salaiza Zuazo to deliver the
car. A court-authorized wiretap on Andrade’s phone intercepted and recorded the call.
Salaiza Zuazo was arrested at the delivery point, and the drugs were ultimately
discovered following a search of the car.

       Eight individuals were indicted as a result of the investigation that led to Salaiza
Zuazo’s arrest. Six of these individuals, including Gomez Corro and Andrade, pled
guilty, and the charges against one were dismissed. Salaiza Zuazo was indicted for
conspiracy to distribute and to possess with intent to distribute controlled substances
in violation of 21 U.S.C. sections 846 and 841(b)(1)(A), and for aiding and abetting the
possession with intent to distribute cocaine and methamphetamine in violation of 21
U.S.C. sections 841(a)(1) and (b)(1) and 18 U.S.C. section 2.

       Prior to Salaiza Zuazo’s trial, Gomez Corro participated in two proffer sessions
in conjunction with his plea. Although the government notified Salaiza Zuazo’s
counsel that it expected to have a cooperating co-conspirator, it neither revealed Gomez
Corro’s identity nor made his statements available. Andrade, the Minneapolis leader
of the conspiracy, provided a letter to Salaiza Zuazo prior to his trial stating that he
and Salaiza Zuazo had never met. Salaiza Zuazo’s counsel attempted to interview


                                           -2-
Gomez Corro and Andrade before Salaiza Zuazo’s trial and in both cases was put off
by their attorneys. Neither Gomez Corro nor Andrade was called as a witness at trial.

       At trial, Salaiza Zuazo testified that he had not known that the car contained
drugs and that he had accompanied Gomez Corro to Minneapolis in order to drive a
van back to Los Angeles for $500. The government offered no direct evidence that
Salaiza Zuazo knew there were drugs in the car, but argued that he could not have been
an unknowing participant because (1) the modifications to the car had effects obvious
to anyone who drove it; (2) usual drug smuggling tactics include having a courier aware
of the location and quantity of drugs being delivered and the choice of Salaiza Zuazo
to make final delivery of the car indicated that he was that courier; (3) an intercepted
conversation between Gomez Corro and Andrade gave rise to the inference that Salaiza
Zuazo was a willing co-conspirator; and (4) Salaiza Zuazo’s story was not credible.
In support of its theory, the government introduced police testimony and a one-way
plane ticket from Minneapolis to Los Angeles issued in Salaiza Zuazo’s name for the
day before his visa expired. Under the government’s theory, Salaiza Zuazo’s role in
the conspiracy was to reveal the location and confirm the quantity of the drugs on
arrival.

       Salaiza Zuazo was convicted on both counts and sentenced to 120 months’
imprisonment. At the sentencing hearing, his counsel learned of Gomez Corro’s
statements, which were largely consistent with Salaiza Zuazo’s account. Salaiza Zuazo
then filed a motion for a new trial.

                                          II.

       Salaiza Zuazo contends that the district court erred in denying his motion for an
evidentiary hearing and order compelling the government to produce Gomez Corro’s
proffer statements and for a new trial. He argues that the government was obligated
to disclose Gomez Corro’s statements prior to the trial under Brady v. Maryland, 373

                                          -3-
U.S. 83 (1963), that its failure to do so entitles him to a new trial or to an evidentiary
hearing to determine whether a new trial is warranted, and that even if there was no
Brady violation, Gomez Corro’s statements constitute newly discovered evidence that
entitles Salaiza Zuazo to a new trial.

                                  A. Brady Violation

       We conclude that the government’s conduct did not rise to the level of a Brady
violation. The government does not suppress evidence in violation of Brady by failing
to disclose evidence to which the defendant had access through other channels. See
United States v. Cheatham, 899 F.2d 747,752-53 (8th Cir. 1990) (no Brady violation
where defense counsel was aware of witness’s existence and was not prevented from
speaking with her). Similarly, when the government does not disclose a potential
source of evidence but the evidence available from that source is cumulative of
evidence already available to the defendant, it has committed no Brady violation. See
United States v. Quintanilla, 25 F.3d 694, 699 (8th Cir. 1994) (no Brady violation
where undisclosed evidence was merely cumulative).

       Having spent two days together with him during the trip from California, Salaiza
Zuazo was well aware of Gomez Corro and his potential testimony. There is no
suggestion that the government made any attempt to restrict Salaiza Zuazo’s access to
Gomez Corro. Furthermore, although Salaiza Zuazo did not discover that Gomez
Corro had made statements to the government until sentencing, the underlying facts
comprising the relevant evidence contained in those statements were not unknown to
Salaiza Zuazo, who himself testified to the same facts. In these circumstances, we find
no support for Salaiza Zuazo’s contention that the government suppressed evidence in
violation of Brady.2


      2
       Although this failure to demonstrate suppression is alone sufficient to defeat
Salaiza Zuazo’s Brady claim, we note that his claim suffers from other fatal defects as

                                           -4-
                               B. Motion for New Trial

        We review under an abuse of discretion standard the denial of a motion for a
new trial. A defendant is entitled to a new trial based on newly discovered evidence
only if he can show (1) that the evidence was not discovered until after the trial; (2) that
due diligence would not have revealed the evidence; (3) that the evidence is not merely
cumulative or impeaching; (4) that the evidence is material; and (5) that the evidence
is such as to be likely to lead to acquittal. Lindhorst v. United States, 648 F.2d 598,
602 (8th Cir. 1981); United States v. Pope, 415 F.2d 685, 691 (8th Cir 1969). Because
Salaiza Zuazo has failed to demonstrate likelihood of acquittal, we conclude that the
district court did not err in denying his motion.

       Salaiza Zuazo contends that Gomez Corro’s statements would likely lead to
acquittal because they corroborate in a number of ways his account of his innocent
involvement. The primary issue at trial was whether Salaiza Zuazo was aware of the
drugs when he made the trip to Minneapolis. Although Gomez Corro’s proffer
statements are not a part of the record on appeal, they apparently corroborate Salaiza
Zuazo’s story by confirming many of the details of Salaiza Zuazo’s testimony about the
drive; for instance, that Gomez Corro did most of the driving, that it was he who filled
the gas tank, and that the two men never discussed the presence of the drugs in the car.




well. Gomez Corro’s statements were not actually exculpatory, see United States v.
Gonzales, 90 F.3d 1363, 1369 (8th Cir. 1996) (no Brady violation where evidence was
not exculpatory), nor did they contradict the government’s theory of guilt, see United
States v. Ailport, 17 F.3d 325, 237 (8th Cir. 1994) (no Brady violation where evidence
corroborated details of defendant’s story but did not contradict government’s theory).
There has been no showing that any information contained within Gomez Corro’s
statements could not have been discovered through the exercise of due diligence. See
United States v. Jones, 160 F.3d 473, 479-80 (8th Cir. 1998); Gonzales, 90 F.3d at
1368.

                                            -5-
Gomez Corro’s account differs slightly from Salaiza Zuazo’s in a few minor details,
such as average driving speed.

       Gomez Corro’s statements apparently contained one piece of information that
may not have already been known to Salaiza Zuazo, namely, that Gomez Corro had
been in Minneapolis with the Honda shortly before the trip that resulted in Salaiza
Zuazo’s arrest. Salaiza Zuazo argues that Gomez Corro’s earlier presence in
Minneapolis calls into question the government’s theory that Salaiza Zuazo’s role was
to reveal the location of the drugs once they arrived in Minneapolis. On the other hand,
Gomez Corro’s statements indicated that Gomez Corro did not know that location and
that Salaiza Zuazo had said he would deliver the car to watch it being unloaded.
Accordingly, the statements would have done little to diminish the government’s theory
of the case and, on balance, may even have served to buttress it.

        The district court found that, “[a]fter considering the withheld evidence as a
whole, . . . even if defendant had access to [Gomez Corro’s] statements, there is no
reasonable probability that the result of the defendant’s trial would have been
different,” and concluded that, on balance, Salaiza Zuazo may have been better off
without Gomez Corro’s testimony. (Order Denying Defendant’s Motion for New Trial
at 6.) That determination is entitled to particular deference, as the district court was not
only in a superior position to evaluate the evidence as presented at trial but also had the
advantage of an in camera review of the notes taken by the government during its
proffered sessions with Gomez Corro. Accordingly, we conclude that the district court
did not abuse its discretion in denying the motion for new trial.

       Nor does Andrade’s letter to Salaiza Zuazo warrant a different result. The
district court correctly noted that, since Salaiza Zuazo received the letter indicating that
Andrade did not know him prior to the trial, there is nothing “newly discovered” about
any information contained therein.


                                            -6-
       Finally, because there were no exceptional circumstances warranting an
evidentiary hearing, the district court did not abuse its discretion by declining to
conduct an evidentiary hearing before ruling on the motion for a new trial. United
States v. Johnson, 12 F.3d 827, 834 (8th Cir. 1994).

      The judgment is affirmed.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -7-
