In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1931

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AMEN E. JUMAH,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:04-cr-00237-1—John W. Darrah, Judge.

ARGUED OCTOBER 7, 2009—DECIDED APRIL 1, 2010

Before RIPPLE, KANNE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Amen E. Jumah was convicted by

a jury of knowing possession of a listed chemical, knowing,

or having reasonable cause to believe, that the chemical

would be used to manufacture a controlled substance

in violation of 21 U.S.C. § 841(c)(2). The district court,

acting without the benefit of the Supreme Court’s subsequent decision in Dixon v. United States, 548 U.S. 1 (2006),

granted a motion for a new trial on the ground that the
2 No. 08-1931

jury had been instructed erroneously about the public

authority defense. We reversed the district court’s grant

of Mr. Jumah’s motion for new trial and remanded the

case with instructions to reinstate the jury’s verdict. See

United States v. Jumah, 493 F.3d 868, 870 (7th Cir. 2007)

(“Jumah I”). On remand, the district court considered

Mr. Jumah’s remaining grounds for a new trial. One of

those arguments was that the Government had failed to

comply with its obligations under Brady v. Maryland, 373

U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150

(1972). The district court denied the motion for new trial

and sentenced Mr. Jumah to 151 months’ imprisonment.

For the reasons set forth in this opinion, we affirm in

part and reverse in part the judgment of the district

court and remand with instructions for re-sentencing. 

I

BACKGROUND

A.

From 2001 to 2002, Mr. Jumah worked periodically as a

confidential source (“CS”) for the Drug Enforcement

Administration (“DEA”). He assisted with undercover

investigations into pseudoephedrine trafficking in

Chicago and Los Angeles. Mr. Jumah sometimes provided information about past pseudoephedrine transactions. However, Mr. Jumah usually brought to the DEA

information about a deal that was to occur in the future.

The DEA asked Mr. Jumah to sign a United States

Department of Justice confidential source agreement.
No. 08-1931 3

Under its terms, the DEA authorized him to purchase,

while undercover and at the direction of the DEA, controlled substances. The agreement also required

Mr. Jumah to abide by the instructions of his controlling

DEA investigators and not to take any independent

action on behalf of the DEA. Mr. Jumah signed three

such agreements in 2001 and 2002.

On May 8, 2002, while Mr. Jumah was deactivated as a

CS, he contacted a DEA agent and informed him that a

pseudoephedrine dealer had approached him with an

offer to buy 300 cases of pseudoephedrine for $150,000.

DEA agents instructed Mr. Jumah to meet with the

dealer at a restaurant called Jimmy’s Shishkabob to

discuss the deal. While the DEA surveilled the meeting,

Mr. Jumah offered to consummate the deal at another

location, and the dealer showed that he had the necessary funds to do so. When Mr. Jumah and the dealer

left the Jimmy’s Shishkabob restaurant, the DEA stopped

the car carrying the money and arrested the suspects.

The DEA paid Mr. Jumah $29,800 for the information

and assistance he provided. The DEA formally reactivated

him as a CS several days later.

In February 2004, Mr. Jumah attempted to sell Ali Qasem

pseudoephedrine for the purpose of making methamphetamine. Unknown to Mr. Jumah, Qasem was himself

a CS who worked with the Los Angeles, California

branch of the DEA. According to Qasem, Mr. Jumah

initiated the deal. On February 10, 2004, while Qasem

was en route to Chicago for a meeting with Mr. Jumah,

Mr. Jumah contacted a DEA agent and inquired about
4 No. 08-1931

receiving payment for prior information, unrelated to

the developing Qasem deal, that Mr. Jumah had provided. Mr. Jumah did not inform the agent of the

pending deal with Qasem.

Working with Qasem, the DEA listened to telephone

conversations between Mr. Jumah and Qasem and

surveilled meetings between them in Illinois from

February 13 to 16, 2004. During these conversations,

Mr. Jumah told Qasem that he wanted to conduct the

pseudoephedrine transaction on a Sunday or Monday

because the DEA agents would not be working on those

days. On February 16, the day that Mr. Jumah planned

to meet Qasem, Mr. Jumah called a DEA agent and

asked whether the agent was working that day but said

nothing about the pending deal with Qasem. The DEA

surveilled additional meetings between Mr. Jumah and

Qasem in Illinois on March 1 and 2, 2004. On March 2,

Mr. Jumah called a DEA agent, asked whether the

agent was working that day and said that he was going

to meet with an individual, but gave no details

about the identity of the individual or the purpose of the

meeting. The DEA agent did not inquire further about

the matter. Later that day, Mr. Jumah again called the

DEA agent and left a voicemail message stating, “he

called me back, and he is going to be in town, in Chicago

tonight . . . . And I’ll let you know what’s going on . . . if we

have to set up something for tomorrow or Thursday, uh,

we’ll see what’s going on.” Tr. at 232, 234, Jan. 26, 2006.

Mr. Jumah also stated on the voicemail message, “I am

going to meet him and see and see [sic] what’s going on,

if he’s, uh, got the cash or not.” Id. at 235.
No. 08-1931 5

Mr. Jumah met with Qasem later that day, but Mr. Jumah

did not inform the DEA agent that the meeting actually

had occurred. During that meeting, Mr. Jumah gave

Qasem 1,016 pills containing pseudoephedrine. Qasem

promptly turned the pseudoephedrine over to the DEA,

which had been conducting surveillance. The DEA then

directed Qasem to place a larger order of pseudoephedrine with Mr. Jumah. Mr. Jumah agreed to sell 300 boxes

of pseudoephedrine to Qasem for $165,000 later that night.

At approximately 8:00 p.m. on March 2, 2004, Mr. Jumah

and Qasem met at a casino in Joliet, Illinois, to complete

the deal. The DEA observed the meeting and watched

Mr. Jumah leave the casino to pick up the pseudoephedrine. When Mr. Jumah returned, purportedly with

the pseudoephedrine, the DEA arrested him and

searched his vehicle. Inside, the DEA found rock salt that

was similar in quantity and appearance to the pseudoephedrine Mr. Jumah had agreed to provide Qasem.

Upon his arrest, Mr. Jumah waived his Miranda rights

and made a series of incriminating statements. He first

stated that one of the DEA agents with whom Mr. Jumah

had spoken that day had authorized him to conduct the

Qasem transaction. He further stated that the DEA agent

had given him the pseudoephedrine. Later, Mr. Jumah

retracted that statement and said that he had stolen the

pseudoephedrine from the DEA several months earlier. 

B.

On March 11, 2004, a federal grand jury returned a onecount indictment against Mr. Jumah charging him with
6 No. 08-1931

Specifically, on December 8, 2005, Mr. Jumah issued two trial 1

subpoenas to the DEA Keeper of Records. The first subpoena

requested: (1) all names of DEA agents who had contact

with Mr. Jumah; (2) the dates of those contacts; and (3) items

memorializing those contacts. The second subpoena requested:

(1) all documents related to Mr. Jumah; (2) all documents

related to Qasem becoming a CS for the DEA; (3) payments

made to Qasem by the DEA; and (4) Qasem’s criminal history.

On December 27, 2005, Mr. Jumah issued four trial subpoenas

to California DEA agents Bradley Clemmer, Ted Salamy, Efren

Lapuz and George Newland. The subpoena to Bradley Clemmer

sought: (1) the substance of Agent Clemmer’s testimony at trial;

and (2) all documents memorializing his contacts with

Mr. Jumah, including the dates, times, duration, and nature

(continued...)

knowingly and intentionally possessing and distributing 1,016 tablets of pseudoephedrine, a List I chemical,

knowing and having reason to believe that the pseudoephedrine would be used to make methamphetamine,

in violation of 21 U.S.C. § 841(c)(2).

On April 19, 2004, Mr. Jumah filed a motion for discovery. The Government provided some discovery pursuant

to Federal Rule of Criminal Procedure 16. Over the next

year and a half, the trial date was continued several times

until it was scheduled finally to begin on January 23, 2006.

On November 8, 2005, Mr. Jumah substituted counsel;

the district court denied the new counsel’s request for

an additional continuance.

Mr. Jumah’s newly substituted counsel then began

issuing trial subpoenas to DEA agents. On January 9, 1
No. 08-1931 7

(...continued) 1

of the contacts, as well as Mr. Jumah’s duties. The subpoena to

Ted Salamy sought: (1) the substance of Agent Salamy’s testimony at trial; (2) all documents memorializing his contacts

with Qasem; (3) any statements made by Qasem about his

criminal past; (4) all documents memorializing when Qasem

became a CS for the DEA; (5) all agreements with Qasem and

confidential-source-establishment documents; and (6) payments

to Qasem. The subpoena to Efren Lapuz sought: (1) the substance of Agent Lapuz’s testimony at trial; (2) all documents

memorializing his contacts with Qasem; and (3) all documents

relating to payments made to Qasem by DEA in the investigation of Mr. Jumah. The subpoena to George Newland sought:

(1) all documents memorializing his contacts with Qasem

relating to the Jumah investigation; and (2) all payments

made to Qasem by DEA in the Jumah investigation.

On January 6, 2006, Mr. Jumah issued another trial subpoena

to FBI Agent John Diwik. The subpoena to Agent Diwik sought

Agent Diwik’s testimony at trial regarding: (1) the first date

Mr. Jumah acted as a CS for the FBI; (2) the number of investigations Mr. Jumah worked on; (3) how much Mr. Jumah was

paid for his work; (4) the method, manner and times Agent

Diwik communicated with Mr. Jumah; and (5) a list of agencies

that Mr. Jumah worked for at the direction of or on the recommendation of Agent Diwik.

2006, Mr. Jumah’s counsel also filed a motion for immediate disclosure of favorable evidence, requesting that

the Government turn over all Brady and Giglio evidence. 

On January 11, 2006, the Government filed a motion to

quash the subpoenas on the ground that the requested

documents were not required to be disclosed by the
8 No. 08-1931

discovery rules, were irrelevant to the case or lacked

evidentiary value. R.68. The Government also stated that

it had met its obligations under Brady but that its review

for the Giglio material was still ongoing. Specifically, the

Government stated,

Jumah was a DEA [CS] in Chicago and Los Angeles, California and an FBI [CS] in Chicago, and

Qasem was a [CS] in Riverside, California; San

Diego, California; and Chicago, Illinois. The government has produced all Giglio materials contained in Jumah’s and Qasem’s DEA [CS] files in

Chicago and will produce by January 12, 2006 all

Giglio materials contained in Jumah’s FBI [CS] file.

The [CS] files in Los Angeles, Riverside, and San

Diego, however, have not been fully reviewed.

These files cannot be sent to Chicago and, therefore, must be reviewed by attorneys in those

cities. The government is working diligently to

get this review completed, but it has not at this

time been done.

R.68 at 7. The Government also requested, with

Mr. Jumah’s consent, that trial be continued to allow

completion of the Government’s Giglio search.

The next day, on January 12, 2006, the district court held

a hearing to consider these issues. The district court

denied the requested continuance. The district court stated,

“I’m amenable to anything that needs my cooperation

to see that this favorable evidence, if in fact that’s what

it is, is produced, but we are going to trial on this case

on January 23rd.” Tr. at 4, Jan. 12, 2006.
No. 08-1931 9

At the hearing, the Government assured the district

court that it had produced all materials it was obligated

to produce pursuant to Rule 16, 18 U.S.C. § 3500 and

Brady. See Tr. at 7-8, Jan. 12, 2006. However, the Government reiterated that it needed more time to complete

its Giglio search and production. Specifically, it stated,

The [CS] files in Chicago, both Mr. Juma’s [sic] file

with the FBI and Mr. Jumah [sic] and Mr. Qasem’s

file with the DEA have been reviewed and all

Giglio materials that were within those files have

been turned over to the defense. With regard to the

files in California, a DEA attorney in California is

reviewing, is going to each of those cities and is

reviewing those files. That is currently being

undertaken.

Id. at 8-9. The district court held that the Government had

complied with its Brady obligations and directed the

Government to complete its search for any Giglio responsive documents in its California offices by the following

Tuesday. Id. at 12.

The district court then took up the Government’s motion

to quash the subpoenas. Mr. Jumah maintained that he

was entitled to the entire file that the DEA kept concerning him and Qasem, including all records of all

statements made by Mr. Jumah and Qasem related to

prior investigations in which they had participated.

Mr. Jumah maintained that those materials would be

probative on the issue of his state of mind during the

February 2004 incident and his course of conduct as a

DEA CS. Mr. Jumah also suggested that he needed to
10 No. 08-1931

review the files to disprove the DEA’s position that it

never had provided samples of pseudoephedrine to

Mr. Jumah for his work in any investigation. The Government opposed the request and maintained that

Mr. Jumah was not entitled to materials beyond those that

qualified as Rule 16, § 3500, Brady or Giglio materials

and reiterated that this material already had been produced for the most part. The Government also stated

that no documents existed concerning the distribution

of pseudoephedrine samples to Mr. Jumah because the

DEA in Chicago had confirmed that such distribution

never had occurred.

The district court granted the motion to quash all the

trial subpoenas, except the subpoena of Agent DeWitt

because Mr. Jumah intended to call him at trial. Tr. at 23-

24, Jan. 12, 2006. As to the other subpoenas, the district

court stated that Mr. Jumah was merely seeking materials

“derivative from Brady and Giglio” materials that the

Government already had produced or was in the

process of identifying and producing. Id. at 11. The

district court stated that Mr. Jumah was not entitled to

“every piece of minutia in the conduct of government

agents and people working for them in the course of an

investigation.” Id. at 19-20. However, the district court

directed that the Government contact anyone Mr. Jumah

had worked for as an informant, including the Chicago

and California DEA offices, to inquire, again, about the

existence of any documents showing that the DEA had

provided Mr. Jumah with pseudoephedrine samples. Id.

at 17-18. Finally, the district court noted that Mr. Jumah
No. 08-1931 11

had to “rely on the bonafides of the government” with

respect to its representations about the existence of any

remaining Brady and Giglio material. Id. at 16-17.

On January 17, 2006, the Government apparently sent

Mr. Jumah a letter confirming that it had completed its

search for Giglio materials in the California DEA offices

and found none. See Appellee’s Br. 17. That letter was not

made part of the record.

At a pre-trial conference on January 18, 2006, the Government again brought up the subpoenas issue and the

district court foreclosed further discussion of the matter.

The following colloquy occurred:

[THE GOVERNMENT]: As the court pointed out at

the last hearing, with regard to the defense’s

subpoenas, the information that was requested in

those subpoenas, as the government understood

it from the court’s ruling, was determined to be

irrelevant because in fact whether Mr. Jumah—

THE COURT: Let me say this, that the basis of my

ruling is what I said in the courtroom last week,

and both of you have taken a little bit of liberty

in characterizing to your advantage what you

believe would be, I think, a little extrapolation of

what I said. So what I said I said, and that’s on

the record last week, and those are the reasons

for my ruling.

See Tr. at 14, Jan. 18, 2006. Later in that hearing, the Government reminded the district court that it had directed

the Government to inquire specifically into whether any
12 No. 08-1931

federal agency had ever provided Mr. Jumah with

pseudoephedrine samples. The Government represented

that its review of Mr. Jumah’s files in Chicago and

Los Angeles produced no documents showing that

Mr. Jumah ever had been provided with pseudoephedrine samples. Id. at 20.

On or around January 20, 2006, during an interview with

Qasem, the Government learned for the first time that

Qasem had conducted two pseudoephedrine deals with

Mr. Jumah in 2001. The Government considered that

information to be Giglio material and disclosed it to

Mr. Jumah by fax on January 21, 2006. See Appellee’s Br. 17;

R.107 at 13. Also, on January 20, 2006, the Government

filed a motion in limine to permit the admission at trial of

evidence and arguments concerning those drug deals—i.e.,

Jumah’s prior uncharged criminal acts—as inextricably

intertwined with the charged offense. R.87. The district

court conditionally precluded the evidence without

prejudice to renewal of the motion at trial. R.136-2; see

also Appellee’s Br. 18.

Trial was held, beginning one day early, on January 25,

2006. At trial, the Government introduced testimony

from Chicago DEA agents that Mr. Jumah was not an

active CS at the time of the deal with Qasem and that

Mr. Jumah had acted independently and without

authority from the DEA to possess and sell pseudoephedrine. DEA agents testified about prior sting operations in which Mr. Jumah had participated, including the

Jimmy’s Shishkabob incident. The DEA agents explained

that under no circumstances would Mr. Jumah have been
No. 08-1931 13

On cross-examination of Qasem, defense counsel began 2

asking about Qasem’s prior relationship with Mr. Jumah and

how long the two men had known each other. Trial Tr. at 414,

Jan. 27, 2006. The attorney for the Government objected and

stated, “I just want to notify the court that if [defense counsel is]

going to go into the fact that [Qasem] doesn’t trust [Mr. Jumah]

and why he doesn’t trust [Mr. Jumah], that’s what I intend

on asking on cross examination [sic], and I believe she’s

opened the door at this point.” Id. at 415. The district court

overruled the objection. Id. However, defense counsel moved

on to another line of questioning and did not ask Qasem

additional questions about his prior relationship with

Mr. Jumah.

allowed to sell pseudoephedrine without the DEA’s

knowledge and then benefit from information provided

therefrom. The DEA agents also described the events that

occurred on and leading up to March 2, 2004. Qasem

testified as a Government witness about the March 2004

events and stated that he had known Mr. Jumah for

approximately fourteen years. See Trial Tr. at 312, Jan. 26,

2006. On cross-examination of Qasem, Mr. Jumah’s

counsel did not explore their prior relationship in any

detail.2

Mr. Jumah’s defense was that he reasonably believed

he had authority to enter into the pseudoephedrine deal

with Qasem. Mr. Jumah read stipulations into evidence

showing that he was employed as a DEA CS from time-totime, that Mr. Jumah made several phone calls to the

DEA agents on and around March 1-2, 2004, and that

Mr. Jumah knew that Qasem was traveling to Illinois in
14 No. 08-1931

February 2004. Mr. Jumah did not testify at trial. Nor

did he introduce evidence showing that the Government provided him with pseudoephedrine samples.

Neither party offered evidence showing that Mr. Jumah

and Qasem previously had conducted drug deals with

each other.

On January 27, 2006, the jury convicted Mr. Jumah on

the one count of distributing 1,016 pills containing

pseudoephedrine. As we have noted earlier, the

district court granted a new trial because it believed

that the jury had been instructed erroneously on the

public authority defense. We reversed that ruling, see

Jumah I, 493 F.3d at 878-79, and, on remand, the

district court proceeded to consider Mr. Jumah’s other

proffered grounds for a new trial. Among them was the

contention that the Government had failed to disclose

documents pursuant to its obligations under Brady v.

Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United

States, 405 U.S. 150, 153 (1972). See R.101. On January 29,

2008, the district court denied the motion, ruling that

Mr. Jumah failed to show that the Government had

withheld any evidence that qualified as Brady or Giglio

material. See R.178 at 4.

On April 9, 2008, the district court sentenced Mr. Jumah

to 151 months’ imprisonment. See Tr. at 23, Apr. 9, 2008;

R.183. The district court calculated the Guidelines according to the gross weight of the pseudoephedrine

pills, instead of the weight of the pure drugs contained

therein. No party objected to the district court’s calculations, which were in accordance with the Presentence
No. 08-1931 15

Investigation Report (“PSR”) calculations. On April 16,

2008, Mr. Jumah timely appealed.

II

DISCUSSION

A.

We first consider Mr. Jumah’s claim that his right to

due process of law as guaranteed by the Fifth Amendment

was violated by the Government’s withholding of evidence. We review a district court’s decision that evidence

need not be produced under Brady or Giglio for an abuse

of discretion. See United States v. Olofson, 563 F.3d 652, 661

(7th Cir. 2009).

Mr. Jumah primarily contends that the Government

conducted an inadequate search for Brady and Giglio

material in its possession, both in Illinois and in California. Mr. Jumah maintains that he was entitled to

receive his complete CS file from the DEA and FBI. He

also contends that he was entitled to receive Qasem’s

complete CS file and the DEA’s debriefings of Qasem

in connection with the investigation of Mr. Jumah. Appellant’s Br. 22, 29. Mr. Jumah believes that the CS files

would have shown that the DEA provided him with

pseudoephedrine samples in the past. He also states that

the CS files would have supported his theory that, even

when he was deactivated, he routinely would obtain

information regarding possible criminal conduct and

bring it to the attention of the DEA agents “after it ripened

into a possible sting.” See id. at 22. He believes that the

CS files would show that, prior to 2004, Mr. Jumah had
16 No. 08-1931

Mr. Jumah also intimates that the district court committed 3

reversible error by denying the Government’s motion for a

continuance. See Appellant’s Br. 27. However this argument

is not pursued seriously in Mr. Jumah’s briefing; thus, we

treat it as waived. Also, at oral arguments, Mr. Jumah maintained that the district court erred by limiting the scope of the

Government’s search of its California files. We consider that

argument to be part and parcel of Mr. Jumah’s argument that his

right to due process of law was violated by the Government’s

failure to turn over all Brady and Giglio responsive materials.

participated in investigations into Qasem’s narcotics

dealings and that “Qasem was a long-standing target of

Jumah’s work as a CS.” Id. at 22-23, 29.

3

Mr. Jumah contends that the Government cannot avoid

its duties by asserting that relevant materials are not in

its possession. Id. at 27 (citing Crivens v. Roth, 172 F.3d 991,

996 (7th Cir. 1999)). He further contends that “[w]here

evidence is in the exclusive control of the government or

has been destroyed by the government, a defendant

may establish that the government suppressed exculpatory evidence without specifically identifying the

allegedly suppressed evidence, if the defendant makes

some showing that evidence was suppressed.” Id. at 28

(citing United States v. Driver, 798 F.2d 248, 251 n.1 (7th

Cir. 1986)). Mr. Jumah notes that in Pennsylvania v.

Ritchie, 480 U.S. 39, 58 n.15 (1987), “the Supreme Court

held that a defendant, charged with the rape and incest

of his daughter, was entitled to have the state’s Children

and Youth Services file on his daughter reviewed by the

trial court to determine whether it contained Brady infor-
No. 08-1931 17

mation.” Appellant’s Br. 30 (describing Ritchie). Finally,

Mr. Jumah contends that he particularly deserved to

receive Qasem’s file and the DEA’s debriefings of Qasem

because Qasem provided unverified testimony about

what was said in the conversations between Mr. Jumah

and Qasem. Id. at 32 (quoting United States v. Wong, 78

F.3d 73, 79 (2d Cir. 1996)).

The Government reiterates that it completed its review

of Mr. Jumah’s and Qasem’s CS files, including the California files, by January 17, 2006, and found no Brady or Giglio

material other than what it turned over. Appellee’s Br.

19. The Government maintains that Mr. Jumah now

speculates that additional responsive documents exist in

the CS files. Although the Government denies that such

documents exist, it further maintains that Mr. Jumah “is

not entitled to scour government files in the hopes of

finding Brady/Giglio material.” Id. (citing United States v.

Phillips, 854 F.2d 273, 277 (7th Cir. 1988)). The Government concedes that an in camera inspection of Government files is sometimes appropriate, but notes that

Mr. Jumah never asked for an in camera inspection of the

records in this case. Id. at 20-21. Finally, in response to

Mr. Jumah’s argument with respect to specific documents,

the Government asserts that: (1) it never gave pseudoephedrine samples to Mr. Jumah and did not withhold

any documents showing otherwise, id. at 21, 26; (2) its files

do not contain any documents showing that Mr. Jumah

and Qasem had engaged in two previous pseudoephedrine deals, particularly because the Government

learned of those deals from Qasem only on the eve of trial

and alerted Mr. Jumah accordingly, id. at 23; and (3) it
18 No. 08-1931

“gave the defendant all documents related to Qasem’s

participation in the investigation of the defendant,”

including documents titled “debriefings” and those

titled “case status reports,” id. at 24.

In Brady, 373 U.S. at 87, the Supreme Court held that “the

suppression by the prosecution of evidence favorable to

an accused upon request violates due process of law

where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the

prosecution.” The Supreme Court further held in Giglio,

405 U.S. at 153, that any material evidence which

might undermine the reliability of a government witness must be turned over to a defendant. In other words,

a new trial is required if the evidence at issue is (1) favorable, (2) suppressed and (3) material to the defense.

See United States v. Wilson, 237 F.3d 827, 832 (7th Cir.

2001). “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to

the defense, the result of the proceedings would have

been different.” United States v. Bagley, 473 U.S. 667, 682

(1985) (Blackmun, J., concurring); Kyles v. Whitley, 514 U.S.

419, 434 (1995) (discussing the Bagley standard). “Reasonable probability” does not mean something greater than

50% but rather “whether in . . . [the] absence [of the

evidence, the defendant] received a fair trial, understood

as a trial resulting in a verdict worthy of confidence.”

Kyles, 514 U.S. at 434.

The defendant has the burden to establish that a Brady

or Giglio violation occurred. See Wilson, 237 F.3d at 832.

However, prosecutors “have an affirmative duty to dis-
No. 08-1931 19

At least with respect to documents concerning Qasem’s 4

participation in the investigation into Mr. Jumah, the Government claims that it actually produced its entire file. See Appellee’s Br. 24-25.

close such evidence and a duty to ‘learn of any favorable

evidence known to the others acting on the government’s behalf in the case, including the police.’ ” Crivens v.

Roth, 172 F.3d 991, 996 (7th Cir. 1999) (quoting Kyles,

514 U.S. at 432). Thus, while “[p]rosecutors may not

simply claim ignorance of Brady material,” id. at 996, a

defendant cannot demand a new trial based on “mere

speculation” or “unsupported assertion[s] that the government suppressed evidence,” United States v. Driver,

798 F.2d 248, 251 (7th Cir. 1986).

In light of this standard, we cannot agree with Mr. Jumah

that the Government conducted an inadequate search

for responsive Brady or Giglio material. As an initial

matter, Mr. Jumah was not entitled to receive his entire

CS file or government files concerning Qasem. See United

States v. Philips, 854 F.2d 273, 278 (7th Cir. 1988) (“[W]e

hasten to point out that Brady does not grant criminal

defendants unfettered access to government files.”).4

Rather, he was entitled to receive any documents materially favorable to him or which might undermine the

reliability of witnesses.

The Government conducted a sufficient search of its

files for documents falling into that category. As of the pretrial hearing on January 12, 2006, the Government represented that it had produced all Brady material in its

possession. The district court accepted the Government’s
20 No. 08-1931

We have no need to consider the Government’s contention,

5

made in its brief apparently for the first time, that it sent

Mr. Jumah a letter confirming that it had completed its search

for Giglio materials in the California DEA files on January 17,

(continued...)

representation and reminded Mr. Jumah that, without

allegations of specific pieces of evidence that had been

withheld, he had to rely on “the bonafides of the government.” See Tr. at 16-17, Jan. 12, 2006. At that hearing,

however, the Government indicated that it still needed

to complete a review of its California files for Giglio

material, and the district court urged the Government

to expedite the search.

Then, at the January 18 conference, the Government

assured the district court that it had completed its review

of the California files and had found no responsive documents. The record is clear that the Government completed its search of the California files. The Government

referred to its search of the California files for documents

specifically related to past instances of distribution of

pseudoephedrine to Mr. Jumah and informed the

district court that it had found none. Moreover, the

record cannot be fairly read as reflecting that the Government, in searching for this information in its files, was

oblivious to its broader duty to disclose any other exculpatory or impeachment material. Indeed, throughout

its filings before the district court and this court, the

Government has maintained that it conducted a thorough

search of all its files in all offices for Brady and Giglio

material and withheld nothing.5
No. 08-1931 21

(...continued) 5

2004. See Appellee’s Br. 17. This letter is not in the record, and

we base our decision only on the hearing and conference

transcripts available to us.

In Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987), the Supreme 6

Court outlined a general standard for determining when to

grant an in camera inspection of governmental documents for

Brady/Giglio responsive material. The Court explained that a

defendant “may not require the trial court to search through

[a governmental] file without first establishing a basis for his

claim that it contains material evidence.” Id. at 58 n.15; see also

id. at 57 (“ ’[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’ ” (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).

Whether the defendant establishes such a basis may depend

on “the degree of specificity of [the defendant’s] request.” Id.

at 58 n.15. A defendant must “at least make some plausible

showing” that the withheld material is “both material and

favorable to his defense.” Id. (internal quotation marks omitted).

“[M]ere speculation that a government file might contain

Brady material is not sufficient.” United States v. Bland, 517 F.3d

(continued...)

If Mr. Jumah believed that he needed access to his and

Qasem’s entire DEA files, he could have requested that

the district court undertake a review in camera of the

Government’s files. Cf. Ritchie, 480 U.S. at 58 n.15 (explaining that to obtain an in camera inspection from the

district court, the defendant must “at least make some

plausible showing” that documents in the government’s

possession contain information “both material and favorable to his defense” (internal quotation marks omitted)).

6
22 No. 08-1931

(...continued) 6

930, 935 (7th Cir. 2008). Courts have applied this “plausible

showing” standard in cases where the Government opposed a

defendant’s request for an in camera review. See, e.g., Davis v.

Litscher, 290 F.3d 943, 947-48 (7th Cir. 2002); United States v.

Runyan, 290 F.3d 223, 245 (5th Cir. 2002); Riley v. Taylor, 277

F.3d 261, 301 (3d Cir. 2001); Love v. Johnson, 57 F.3d 1305, 1313-15

(4th Cir. 1995).

Of course, the district court is under no independent duty 7

to review government files for potential Brady material. See

Bland, 517 F.3d at 935.

Such a review is the accepted procedure for resolving

legitimate doubt about the existence of undisclosed

material and one that balances the defendant’s important

need for access to potentially relevant material with

the Government’s valid interest in protecting confidential files and the integrity of pending investigations. See

Phillips, 854 F.2d at 278. Mr. Jumah did not make such 7

a request of the district court and appears to have

dropped the matter after the January 18, 2004 conference.

The district court certainly was not obligated to conduct

an in camera review sua sponte. 

Mr. Jumah’s theory that the Government withheld

Brady and Giglio material is rendered all the more speculative by the evidence before us in the record. There was

no evidence that the DEA ever provided Mr. Jumah

with pseudoephedrine samples in the past. Mr. Jumah

had ample opportunity to cross-examine the DEA agents

who testified as Government witnesses about this

matter and was unable to elicit any testimony supportive
No. 08-1931 23

of his position. Nor was Mr. Jumah able to establish a

pattern of obtaining information regarding criminal

conduct and bringing it to DEA agents only after it

“ripened into a possible sting.” See Appellant’s Br. 22.

Indeed, the record demonstrates that the DEA did not

permit Mr. Jumah to engage in actual pseudoephedrine

deals without its close supervision and direction. Finally,

we have no reason to believe that the Government maintained records about Qasem’s past that would have

been helpful to Mr. Jumah. Notably, Mr. Jumah had an

opportunity to cross-examine Qasem about their prior

relationship and failed to establish that they had had a

pattern of drug dealings in the past. See supra note 2.

We have stated that, when evidence is in the exclusive

control of the Government or has been destroyed by

the Government, a defendant may establish that the

Government suppressed exculpatory evidence without

specifically identifying the allegedly suppressed evidence.

See Driver, 798 F.2d at 251 n.1. On the other hand, we

have also stressed that unsupported assertions that the

Government has suppressed evidence are insufficient to

make out a Brady or Giglio violation. Id. at 251; see also

United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (“A

due process standard which is satisfied by mere speculation would convert Brady into a discovery device and

impose an undue burden upon the district court.” (internal

quotation marks omitted)). We must conclude, on the

record before us, that Mr. Jumah’s assertions remain

unsupported. His failure to ask for an in camera inspection of the Government’s records further counsels against
24 No. 08-1931

any relief from this court. The district court committed

no error.

B.

Mr. Jumah also contends that the district court erred

in the imposition of the sentence. We review the district

court’s application of the Sentencing Guidelines de novo

and its factual findings for clear error. See United States

v. Turner, 400 F.3d 491, 500 (7th Cir. 2005); see also

United States v. Garcia, 413 F.3d 201, 221-24 (2d Cir. 2005)

(explaining the standard of review and why the clear

error standard of review for factual findings applies even

though the ultimate issue is reasonableness). When no

objection to sentencing guidelines calculations is made

at trial, we review those calculations for plain error.

See United States v. Jaimes-Jaimes, 406 F.3d 845, 847-49

(7th Cir. 2005). Under plain-error review, the defendant

must show that (1) there was error, (2) it was plain, (3) it

affected his substantial rights and (4) the court should

exercise its discretion to correct the error because it seriously affected the fairness, integrity or public reputation

of the judicial proceedings. See United States v. Olano, 507

U.S. 725, 732-35 (1993); Jaimes-Jaimes, 406 F.3d at 847-49.

1.

At trial, the parties stipulated that Mr. Jumah had

distributed approximately 1009.4 tablets of pseudoephedrine; the parties also accepted a chemist’s report

weighing the tablets at approximately 247.9 grams. Trial
No. 08-1931 25

The parties now agree that the stipulation was slightly 8

incorrect. Based on the chemist’s report forming the basis of

the stipulation, the total gross weight of the tablets was 253.9

grams. See Gov’t App. at 25. Despite this inaccuracy in the

stipulation, no additional factual hearing is needed since

this unobjected to, documentary evidence is in the record.

The PSR utilized the 2007 version of the Guidelines. 9

Tr. at 170-71, Jan. 25, 2006. In preparation for sentencing, 8

the probation officer prepared a PSR that calculated

Mr. Jumah’s base offense level as 32. This calculation

was pursuant to U.S.S.G. § 2D1.11(d)(6) and based on the

assumption that the total weight of the pseudoephedrine

pills was 253.9 grams. However, the PSR did not con- 9

sider the fact that the chemist’s report also calculated

the total weight of pure drug within the pills to be 60.47

grams. See Gov’t App. at 25.

The sentencing hearing was held on April 9, 2008. On

two occasions, Mr. Jumah’s counsel stated that he did not

object to the calculations in the PSR. See Tr. at 3, 7, Apr. 9,

2008. Hearing no objection, the district court accepted

the calculations and findings of the PSR. Id. at 7-8. The

district court determined that Mr. Jumah’s base offense

level was 32 and that the two-level obstruction of justice

enhancement applied, bringing Mr. Jumah’s base offense

level up to 34. Based on that level and Mr. Jumah’s criminal history category of I, the district court determined

that Mr. Jumah’s Guideline range was 151 to 188 months’

imprisonment. Id.
26 No. 08-1931

In his sentencing memorandum and at the sentencing

hearing Mr. Jumah urged the district court to impose

a lower sentence for several reasons. Mr. Jumah asserted

that, because of his history of cooperation with the Government, he would suffer the risk of physical harm in

prison. He urged the district court to depart from the

Guidelines because, after serving his prison term, he

likely would be deported to Israel; he believed that he

would face a particular physical danger there because of

the presence of individuals whom he had helped prosecute. He also asked the district court to consider that he

would not be permitted to serve the last ten percent of

his sentence in community confinement due to his immigrant status. He stressed his years of cooperation with

the federal government and highlighted a letter from a

DEA agent to the district court stating that Mr. Jumah

was hardworking and “a man of his word,” who had

earned the agent’s trust. R.181, Ex. 1. Finally, Mr. Jumah

informed the district court that, during his time in prison,

he had taken educational courses offered by the prison.

The Government disputed the relevance or factual accuracy of some of those characteristics.

After calculating the Guidelines sentence, the district

court stated that it had considered the nature of the

offense and the fact that Mr. Jumah’s conduct “resulted or

could have resulted in the injury to other people that

were going to use these drugs that [Mr. Jumah was]

attempting to distribute.” Tr. at 21, Apr. 9, 2008. The

district court then stated that it had considered “the need

for a sentence to provide just punishment, adequate

deterrence and protection to the public . . . [and
No. 08-1931 27

Initially, the Rule 35 motion did not specifically reference the 10

difference between the weight of the total tablets and the

weight of the pure drugs within them. See R.190. However,

(continued...)

Mr. Jumah’s] history and characteristics.” Id. Taking those

considerations into account, the district court stated that

“a sentence within the sentencing guideline range is

necessary.” Id. The district court then considered some

of the unique characteristics raised by Mr. Jumah.

Mr. Jumah’s assertion that he would suffer the risk of

physical harm in prison was not supported by “any

reliable information . . . [and was] contrary to [his]

recent history since coming to the attention of the

Court.” Id. Mr. Jumah’s assertion that he would be deported to a place that presented a physical danger to

him was not a proper consideration in fashioning a sentence and, in any event, was a problem of Mr. Jumah’s

own making because he had violated immigration laws.

Finally, the district court stated that it thought that “the

fact that [Mr. Jumah] will not be permitted to serve the

last ten percent of [his] sentence with some kind of community confinement . . . supports a sentence at the low

end of the guidelines.” Id. at 22. Therefore, the district

court sentenced Mr. Jumah to 151 months’ imprisonment.

Id. at 22-23.

On April 21, 2008, Mr. Jumah filed a pro se Federal Rule

of Criminal Procedure 35 motion for correction of a sentence resulting from an arithmetical, technical, or other

clear error. R.190. On August 26, 2008, the district court 10
28 No. 08-1931

(...continued) 10

Mr. Jumah, through appointed counsel, supplemented the

motion on August 11, 2008, and thereby disputed the district

court’s calculation of the Guidelines based on the weight of

the pseudoephedrine tablets. See R.212. In that supplemental

memorandum, Mr. Jumah also stated that he had mailed

his original Rule 35 motion “within the prescribed time limit.”

Id. at 1 n.2.

dismissed the motion for lack of subject matter jurisdiction. R.216.

2.

Mr. Jumah now submits that the district court committed two reversible errors during sentencing. First,

Mr. Jumah contends that the district court relied on the

wrong weight of the pseudoephedrine when calculating

his base offense level; instead of using the amount of

total weight of the pseudoephedrine tablets, the district

court should have used the weight of pure drug within

the tablets pursuant to U.S.S.G. § 2D1.11, note (C). See

United States v. Goodhue, 486 F.3d 52, 59 (1st Cir. 2007).

Mr. Jumah contends that he objected to the district

court’s calculations in his Rule 35 motion. Second,

Mr. Jumah contends that the district court gave no meaningful consideration to the § 3553(a) factors, including

those specifically raised by Mr. Jumah in his sentencing

memorandum and at his sentencing hearing.

The Government contends that Mr. Jumah’s Rule 35

motion was improper and untimely, and thus his first
No. 08-1931 29

objection was not preserved. Nevertheless, the Government admits that the district court committed plain

error by basing its Guidelines calculations on the gross

weight of the tablets, instead of the weight of the drugs

within them. The Government opposes Mr. Jumah’s

second contention and maintains that the district court

adequately considered the § 3553(a) factors, as well as

the unique factors Mr. Jumah raised in his sentencing

memorandum and at the sentencing hearing.

a.

We begin by noting that both parties now agree that

it was plain error for the district court to use the gross

weight of the pseudoephedrine tablets in calculating

Mr. Jumah’s sentence. Compare Appellee’s Br. 30, with

Appellant’s Reply Br. 2. We agree. The Guidelines

require district courts to calculate the base offense level

using the weight of the recovered pseudoephedrine

contained in the tablets, not the weight of the entire

tablet. See U.S.S.G. § 2D1.11, note (C). Thus, there was

plain error in the calculations. The error affected

Mr. Jumah’s substantial rights because, had the district

court calculated the base offense level using the weight of

the pure drugs, Mr. Jumah would have been entitled to

the base offense level of 28 and, with the addition of

the two-level enhancement, a total offense level of 30.

With a total offense level of 30 and criminal history category of I, Mr. Jumah’s Guideline range should have been

97 to 121 months’ imprisonment, rather than the 151 to

188 months’ imprisonment range calculated by the
30 No. 08-1931

district court. We shall exercise our discretion and

remand this case to the district court for resentencing

because, as both parties agree, the error seriously

affected the fairness and integrity of the judicial proceedings before the district court.

b.

Our examination of the record convinces us that the

district court did not err otherwise with respect to its

calculations or its statement of reasons. The district court

explicitly stated that it had considered the § 3553(a)

factors during the sentencing hearing. It also considered

Mr. Jumah’s history and personal characteristics. See Tr.

at 21, Apr. 9, 2008. Although the district court did not

state specifically that it had considered Mr. Jumah’s

history of cooperation with federal authorities, the DEA

agent’s letter or Mr. Jumah’s completion of educational

courses while in prison, we believe the record sufficiently

indicates that the district court took these factors into

consideration in fashioning its sentence. See United States

v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008) (holding

that the district court need not make factual findings as

to each of the sentencing factors but the record must

show that the court considered them); United States v.

Dale, 498 F.3d 604, 611-12 (7th Cir. 2007) (same). Indeed,

its consideration of the pertinent factors appears comprehensive and thoughtful. In light of the district court’s

explicit consideration of several of Mr. Jumah’s characteristics and its statement that it had considered

Mr. Jumah’s “history and characteristics,” the district
No. 08-1931 31

court’s statement of reasons was adequate. See Tr. at 21,

Apr. 9, 2008.

Conclusion

For the reasons stated in this opinion, we affirm in part

and reverse in part the judgment of the district court and

remand this case to the district court for re-sentencing. The

district court shall recalculate the Guidelines based on

the weight of the pure drugs within the pseudoephedrine

tablets and impose a sentence accordingly. No other

aspect of the sentence is subject to further action.

AFFIRMED in part;

REVERSED and REMANDED in part

with INSTRUCTIONS

4-1-10