United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-3481NE

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the District

* of Nebraska.

Agustin Parra-Gonzalez, also known as *

Agustin Para-Gonzalez, * [UNPUBLISHED]

*

Appellant. *

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 Submitted: March 9, 1999

Filed: March 18, 1999

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Before FAGG, LAY, and WOLLMAN, Circuit Judges.

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PER CURIAM.

After his conviction for possession with the intent to distribute

methamphetamine, see 21 U.S.C. § 841(a)(1) (1994), Agustin Parra-Gonzalez filed

a motion for a new trial, claiming the Government failed to disclose material

impeachment evidence in the form of an agreement with its key witness, David Tony

Griego, and thus violated Brady v. Maryland, 373 U.S. 83 (1963). Parra-Gonzalez

alleged Griego, an illegal alien who assisted law enforcement in multiple drug-related

investigations, agreed to testify only after the Government promised not to request

Griego’s testimony in other upcoming trials and agreed not to prevent Griego’s
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deportation following Parra-Gonzalez’s trial. After an evidentiary hearing, the

district court denied Parra-Gonzalez’s motion for a new trial, finding “there wasn’t

any agreement” between Griego and the Government. Parra-Gonzalez appeals, and

we affirm.

Parra-Gonzalez contends the district court abused its discretion in denying his

motion for a new trial. We disagree. To establish a Brady violation, Parra-Gonzalez

must show the Government did not disclose material evidence in its possession that

was favorable to Parra-Gonzalez. See Brady, 373 U.S. at 87 (exculpatory evidence

must be disclosed); United States v. Bagley, 473 U.S. 667, 676 (1985) (Brady

includes impeachment evidence); Giglio v. United States, 405 U.S. 150, 154-55

(1972) (Brady includes agreements to testify in exchange for benefits). Evidence 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. A

‘reasonable probability’ is a probability sufficient to undermine confidence in the

outcome.” Bagley, 473 U.S. at 682. 

Parra-Gonzalez’s contention fails because the district court properly found

there was no agreement between Griego and the Government that had to be disclosed

within the framework of the Brady line of cases. See Reed v. United States, 106 F.3d

231, 235-36 (8th Cir. 1997); United States v. Robinson, 774 F.2d 261, 269-70 (8th

Cir. 1985); Mills v. Singletary, 63 F.3d 999, 1018 (11th Cir. 1995); Alderman v. Zant,

22 F.3d 1541, 1553-55 (11th Cir. 1994). The record shows that after Griego’s illegal

alien status was discovered, Griego was arrested and jailed pending deportation. On

the eve of Parra-Gonzalez’s trial, Griego became unwilling to testify because he

wanted to be deported immediately, but feared he would be detained in custody until

he had testified in all the criminal prosecutions in which he was involved. Once

alerted to Griego’s complaints, the prosecutor flatly refused to enter into any

agreement in exchange for Griego’s testimony. Instead, the prosecutor told Griego

only that she would “see what she c[ould] do about talking to” the Immigration and
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Naturalization Service (INS), which alone controlled the timing of Griego’s

deportation, and that she would try to ensure the United States Attorney’s office

would not request Griego’s continued detention after Parra-Gonzalez’s trial. Griego’s

attorney also testified that, believing he could successfully block any effort to keep

Griego in the country to testify in other cases, he instructed Griego to testify at ParraGonzalez’s trial as a show of good faith and because he believed this would better

position Griego with the INS to negotiate immediate deportation. Although the

advice of Griego’s attorney and the prosecutor’s comments may have motivated

Griego to testify, the record supports the district court’s finding that these statements

fall short of an agreement required to be disclosed to Parra-Gonzalez. See Alderman,

22 F.3d at 1554-55.

Even assuming an agreement between the Government and Griego did exist,

a new trial is not warranted under the facts of this case. Parra-Gonzalez’s attorney

thoroughly cross-examined Griego about his illegal alien status, his criminal history,

his propensity for dishonesty, and his agreement to work as an informant in exchange

for the dismissal of pending criminal charges. Testimony relating to the alleged

agreement would merely have served as “‘an additional basis on which to impeach

a witness whose credibility ha[d] already been shown to be questionable.’” United

States v. Wong, 78 F.3d 73, 81 (2d Cir. 1996) (quoted case omitted). In addition,

Griego’s testimony was corroborated by the law enforcement agent with whom

Griego worked. Thus, it is not reasonably probable the evidence would have changed

the outcome had it been disclosed. See Bagley, 473 U.S. at 682; United States v.

Quintanilla, 25 F.3d 694, 698-99 (8th Cir. 1994). We also reject Parra-Gonzalez’s

contention that the district court abused its discretion in quashing the subpoena for

Griego at the evidentiary hearing on the motion for new trial. 

We affirm.
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A true copy.

Attest:

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