In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2034

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANAS SALEM,

Defendant-Appellant.

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 2:06-cr-181-LA-3—Lynn Adelman, Judge.

ARGUED JANUARY 14, 2009—DECIDED AUGUST 25, 2009

Before CUDAHY, KANNE, and TINDER, Circuit Judges.

TINDER, Circuit Judge. After a hotly contested jury trial,

Anas Salem was convicted of witness intimidation, in

violation of 18 U.S.C. § 1512(b)(2)(A), and possessing a

firearm in furtherance of that offense, in violation of

18 U.S.C. § 924(c)(1)(A)(ii). On appeal, he argues that

he deserves a new trial because, until it was too late to

be useful, the government failed to turn over evidence
2 No. 08-2034

that its star witness, Carlos Lopez, was involved in a

murder for which he has never been charged. The first

hint Salem had of this potential murder charge came

moments before Salem was to be sentenced when

counsel for the government handed his lawyer a copy of

a plea agreement for Benny Martinez, a defendant in

another federal criminal case. Martinez admitted in

that plea agreement that he had gunned down rival

gang member, Adan Sotelo. But the plea agreement

also discloses that Martinez wasn’t alone during this

murder. There with him, lying in wait for Sotelo, was

Carlos Lopez.

The plea agreement identifies Lopez by name, and it

indicates that Lopez made some form of statement about

the murder. Apparently, Lopez described how he and

Martinez hid in an alley gangway waiting for Sotelo, and

when Sotelo rounded the corner, Martinez shot him to

death. Lopez and Martinez then fled the murder scene

together, finding refuge at Martinez’s grandmother’s

residence a few blocks away. But Lopez has never been

charged with any crime related to his involvement in

the Sotelo homicide. That, Salem contends, raises an

inference that Lopez curried favor with the government

in exchange for his agreeing to testify against Salem. And

the fact that evidence of the Sotelo murder was not disclosed to him before trial is why he believes he deserves

a new one.

The district court denied his request, though, finding

that even if the evidence had been disclosed, there was

no reasonable probability of a different verdict. But, on
No. 08-2034 3

In the fall of 2005, that investigation resulted in an indictment

1

charging 49 gang members, including Lopez, Salem’s brother,

Sadam, and fellow Latin King, Marcus Colin, with racketeering

and related crimes. In addition to the RICO count, Lopez was

hit with a number of drug and gun counts, some of which

carried mandatory minimums, consecutive sentences, and

statutory maximums of life in prison.

the record before us, we conclude that decision was

premature. Lopez’s statement about the Sotelo killing

has never been turned over to Salem nor has it even

been produced to the court. This raises questions about

whether other evidence favorable to Salem might be

lurking out there and not contained in the record. But

Salem didn’t get a chance to develop that record,

because the court denied his request for an evidentiary

hearing. We conclude that was an error. So we remand

for such a hearing.

I. Background

Lopez was the alleged victim (and the government’s

principal witness) on the witness intimidation and gun

charges against Salem. At trial, Lopez testified that Salem

accused Lopez of being a snitch against the Latin Kings

street gang (which he was) , and that, along with another 1

Latin King, Marcus Colin, Salem beat him up and threatened to shoot him. Salem’s attorney went to some length

to attempt to impeach Lopez’s credibility. She questioned Lopez about the RICO, drug, and gun charges

pending against him, and she raised the inference that
4 No. 08-2034

Lopez was currying favor with the government. Defense

counsel specifically asked Lopez if he had heard of

U.S.S.G. § 5K1.1 or knew that cooperating with the government was the only way out from under the mandatory

minimums he faced. He denied knowing about any

benefit for cooperation but testified that he was cooperating simply because he was a victim.

Several other witnesses, including Lopez’s mother,

corroborated parts of Lopez’s story, though no one

testified to seeing the gun or the beating. Photos, however, showed some superficial injuries to Lopez’s neck

and face, consistent with the beating he says he suffered. The jury convicted Salem, and the district

court sentenced him to 144 months of imprisonment.

Shortly after the court entered the judgment, Salem

moved for a new trial under Federal Rule of Criminal

Procedure 33 based on newly discovered evidence. That

evidence, Salem argued, revealed that the government

had violated Brady v. Maryland, 373 U.S. 83 (1963). This

new evidence came in the form of a plea agreement for

another Latin King member named Benny Martinez. The

plea agreement, disclosed to Salem’s counsel after

Salem was convicted—in fact, delivered to Salem’s

counsel just minutes before sentencing—revealed that

Martinez had pleaded guilty to the homicide of a rival

gang member, Adan Sotelo. The agreement also revealed

that Lopez had been involved in Sotelo’s murder. Apparently, Lopez had admitted in a statement that Martinez

and he hid in an alley waiting for Sotelo, and when

Sotelo came around the corner, Martinez gunned him
No. 08-2034 5

down, and then he and Martinez ran from the murder

scene to hide together at the residence of Martinez’s

grandmother. Lopez had also stated that Sotelo was

killed on behalf of his gang, the Latin Kings, to prevent

Sotelo, a member of a rival gang (the Spanish Cobras),

from retaliating for a Latin Kings shooting that had

taken place shortly before the murder.

Salem’s counsel requested that the government disclose

all materials implicating Lopez in Sotelo’s murder. The

government turned over several eyewitness and police

reports, but none identified the perpetrators by name.

Moreover, no report contained any statements by Lopez,

even though such statements were referenced in the

Martinez plea agreement, and the government has not,

at least to this point, disclosed whether such statements

actually exist, and if so, in what form or who has

them. Lopez, however, has never been charged with

any crime related to the Sotelo homicide. 

In his Rule 33 motion for new trial, Salem alleged that

the evidence of Lopez’s involvement in the Sotelo

homicide could be used to impeach Lopez’s testimony—the jury could infer that Lopez was testifying

against Salem in exchange for the government not prosecuting Lopez for his participation in the Sotelo homicide.

(Even if Lopez was not the triggerman, he still could

face accomplice or accessory liability.) Hence, in Salem’s

view, the government’s failure to disclose this evidence before trial violated Brady. 

The district court concluded otherwise and, after denying

Salem’s request for an evidentiary hearing, denied

Salem’s motion for new trial. The court held that the
6 No. 08-2034

A brief jurisdictional note before we address Salem’s claim on 2

the merits. Ordinarily, when a district court denies a Rule 33

motion for new trial based on newly discovered evidence, we

require the party to file a separate notice of appeal after the

district court rules on the Rule 33 motion, even if the defendant

has already appealed his conviction. See United States v.

Harvey, 959 F.2d 1371, 1377 (7th Cir. 1992) (“When a district

court denies a motion for new trial while an appeal from the

underlying judgment is pending, a separate, timely notice of

appeal ‘is a jurisdictional predicate to appellate review’ of the

denial of the new trial motion.”); see also Johnson v. United

States, 246 F.3d 655, 658-59 (6th Cir. 2001); United States v.

Douglas, 874 F.2d 1145, 1162 (7th Cir. 1989); cf. Ammons v.

Gerlinger, 547 F.3d 724, 726 (7th Cir. 2008) (per curiam) (discussing failure to file second notice of appeal and lack of

jurisdiction in civil cases); Kitchen v. United States, 227 F.3d

1014, 1017-22 (7th Cir. 2000) (same, in ineffective-assistance-ofcounsel context). But see United States v. Thornton, 1 F.3d 149, 157-

58 (3d Cir. 1990) (holding that appellate jurisdiction of denial

of motion for new trial not contingent on second notice of

appeal); United States v. Davis, 960 F.2d 820, 824 (9th Cir. 1992)

(same); United States v. Wilson, 894 F.2d 1245, 1251-52 (11th

Cir. 1990) (same); United States v. Burns, 668 F.2d 855, 858 (5th

Cir. 1982) (same). 

Salem filed only one notice of appeal and did so months

before the district court denied his motion for new trial. So

ordinarily Salem would need a second notice. However, if a

defendant files his motion for new trial based on newly dis-

(continued...)

Sotelo homicide evidence would have been inadmissible,

and in any event, would not have given rise to a reasonable probability of a different verdict. Salem appeals

that decision.2
No. 08-2034 7

(...continued) 2

covered evidence no later than 10 days after entry of the

judgment, a second notice is not required. See Fed. R. App. P.

4(b)(3)(C) and 4(b)(3)(A)(ii); Trenkler v. United States, 268 F.3d

16, 21 & n.4 (1st Cir. 2001); cf. Ammons, 547 F.3d at 726 (explaining 10-day rule in civil cases). Salem filed his Rule 33 motion

only 7 days after the judgment was entered. Being within the 10-

day limit, Salem’s first notice of appeal gives us jurisdiction

to hear his appeal of the district court’s denial of his Rule 33

motion.

II. Discussion

Brady requires the government to disclose evidence

materially favorable to the accused. Youngblood v. West

Virginia, 547 U.S. 867, 869 (2006); Brady, 373 U.S. at 87. That

obligation extends to evidence that tends to impeach a

government witness. Youngblood, 547 U.S. at 869; United

States v. Bagley, 473 U.S. 667, 676 (1985). Failure

to disclose such evidence, whether intentional or inadvertent, can entitle the accused to a new trial. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999). The Brady obligation

applies even when the suppressed evidence is known

only to police and not to prosecutors. Youngblood, 547

U.S. at 869-70.

The evidence of the Sotelo homicide was not disclosed

prior to trial (the government does not contend that it

only learned of this matter after trial) and was arguably

favorable to Salem. So Brady’s requirement that the undisclosed evidence be materially favorable to the accused

is central to this case. The district court found the

Sotelo homicide evidence immaterial. That’s a decision
8 No. 08-2034

we review for abuse of discretion. United States v.

Palivos, 486 F.3d 250, 255 (7th Cir. 2007).

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 different.”

Youngblood, 547 U.S. at 870 (quoting Strickler, 527 U.S. at

280); see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

Of course, this means that only admissible evidence can

be material, for only admissible evidence could possibly

lead to a different verdict. United States v. Silva, 71 F.3d

667, 670 (7th Cir. 1995). To demonstrate a “reasonable

probability,” Salem must show that the government’s nondisclosure “undermine[d] confidence in the verdict.”

Kyles, 514 U.S. at 435. 

What troubles us about this case is that it appears

Salem never had a sufficient opportunity to make that

showing. Without an evidentiary hearing, we’re left

wondering what other evidence about Lopez’s involvement in the Sotelo homicide is out there. Cf. United States

v. Dimas, 3 F.3d 1015, 1018 (7th Cir. 1993) (discussing

need for evidentiary hearing where record was inadequate to decide Brady issue). From Martinez’s plea agreement, it appears Lopez gave a reasonably detailed statement about the murder, and it implies that the statement was given to law enforcement. And presumably

the federal government considers it to be reasonably

reliable—the same Office of the United States Attorney

that prosecuted Salem included a description of Lopez’s

statement in the Martinez plea agreement, asserting that

it was part of the facts that the government could introduce at a trial of Martinez to prove his guilt of gang-
No. 08-2034 9

related crimes beyond a reasonable doubt. Yet, neither

Salem nor the district court has ever seen that statement.

Should there in fact be such a statement, it could

seriously undermine Lopez’s credibility.

From the government’s (and the district court’s) perspective, though, that doesn’t matter. The evidence would

have been inadmissible and, regardless, Lopez was thoroughly impeached at trial and the other witnesses’ testimony and the injury photos corroborated his story. So,

according to the government, any way you slice it

the Sotelo homicide evidence is immaterial.

On the record as it stands now, we cannot be so categorical. Proof of bias or motive to lie is admissible impeachment evidence. United States v. Abel, 469 U.S. 45 (1984);

see also United States v. Manske, 186 F.3d 770, 777 (7th

Cir. 1999) (“[Proof of bias] is the quintessentially appropriate topic for cross-examination.” (quotation omitted)).

Indeed, exposing a witness’s motive to lie is a “core value”

of the Sixth Amendment’s Confrontation Clause. United

States v. Recendiz, 557 F.3d 511, 530 (7th Cir. 2009) (citing

United States v. Smith, 454 F.3d 707, 714 (7th Cir. 2006)).

And a party may introduce extrinsic evidence to show

it. United States v. McGee, 408 F.3d 966, 981-82 (7th Cir.

2005). Under these principles, courts routinely admit

evidence suggesting a witness curried favor with the

government in exchange for his testimony as proof of bias

or motive to testify falsely. E.g., United States v. Lindemann,

85 F.3d 1232, 1243 (7th Cir. 1996) (citing Abel, 469 U.S. at

53). So though the government is correct that FED. R. EVID.

608(b) would bar Salem’s counsel from introducing

evidence of the Sotelo homicide to degrade Lopez’s
10 No. 08-2034

character, that evidence could be admissible to demonstrate Lopez’s incentive to lie to avoid a murder charge.

See Abel, 469 U.S. at 55-56 (discussing how proof of bias

differs from evidence prohibited by Rule 608(b)).

The sparse record on the Sotelo homicide seems to

have tainted the district court’s consideration of admissibility. The court held that the evidence would not have

been admissible as proof of bias, because, “There is no

evidence that Lopez has received a ‘pass’ for his involvement in the Sotelo murder based on his cooperation in

this case, which could bear on his credibility.” United

States v. Salem, No. 06-CR-181, 2008 WL 3540471, at *6

(E.D. Wis. Aug. 13, 2008). The government restates this

argument on appeal. The court was correct that the

record lacks direct evidence that Lopez was given immunity on a murder charge. But, as it stands now, the

record appears to be incomplete. And, from what Martinez’s plea agreement says about Lopez’s statements to

police, it likely is incomplete. If there’s some additional

evidence contained in law enforcement files that

suggests Lopez was involved with the murder, or that

he received a benefit for cooperating with the government, such information could prove favorable to Salem.

The plea agreement alone suggests that Lopez was a

participant in the lying-in-wait murder to protect the

Latin Kings’ interests, and not a mere witness. And even

without a note from the U.S. Attorney or the local D.A.

expressly outlining a no-charges-for-testimony quid pro

quo, such evidence could be admissible to show Lopez’s

motive to testify against Salem. However, without an

evidentiary hearing, Salem was cut short in demon-
No. 08-2034 11

strating that Lopez’s involvement in the Sotelo

homicide shows bias.

The same goes for the government’s (and the district

court’s) comparison to our decision in United States v.

Pulido, 69 F.3d 192 (7th Cir. 1995), and the argument

that the Sotelo homicide evidence would only distract

the jury and thus be inadmissible under FED. R. EVID.

403. In Pulido, the defense sought to question one of the

government’s key witnesses about his potential involvement in a triple murder to suggest that the witness’s

“uncomfortable status as a murder suspect . . . led him to

cooperate with the government.” 69 F.3d at 199. The

district court blocked that line of questioning because

the court concluded it would only distract the jury. Id. at

202. We upheld that decision, in part, because the

record lacked any evidence that the witness was

involved in the murders. Id. Police had “ruled out [the

witness] as a suspect in the murders,” the witness

was not identified as the perpetrator in two police

lineups, and a witness to the triple murder stated clearly

that the Pulido witness was not at the scene. Id. at 198.

In this case, however, the record does not support the

notion that Lopez was blameless in the Sotelo murder. In

fact, the record implies the opposite. And even though

at trial Lopez denied knowing about any benefit whatsoever he might receive for testifying, such as a lower

sentence under U.S.S.G. § 5K1.1, he was never asked

about the murder and why he hasn’t been charged. So

notwithstanding any denial of a benefit for testifying,

defense counsel was never able to raise the inference

of such a benefit for the jury. Without further develop-
12 No. 08-2034

ment of the record, we cannot determine whether the

probative value of the Sotelo homicide evidence was

substantially outweighed by the danger that such evidence

will mislead or confuse the jury. See FED. R. EVID. 403.

The government further contends that this evidence is

inadmissible because it’s cumulative of other impeachment based on Lopez’s motive to lie. This contention

dovetails into the second portion of the government’s

overall argument (accepted by the district court) that the

Sotelo homicide is immaterial for Brady purposes. From

that perspective, it’s just one more shred of impeachment evidence, of which the jury heard a great deal.

We recognize that, ordinarily, newly discovered impeachment evidence will not warrant a new trial under

Brady. See, e.g., United States v. Reyes, 542 F.3d 588, 596

(7th Cir. 2008). It’s often cumulative of other impeachment evidence presented at trial. See, e.g., United States v.

Ervin, 540 F.3d 623, 631-32 (7th Cir. 2008). But that’s not

a categorical rule. See United States v. Taglia, 922 F.2d

413, 415 (7th Cir. 1991). We’ve recognized that in some

instances, such as when the government’s case rests

“entirely on the uncorroborated testimony of a

single witness,” new impeachment evidence could be

material. Id.

True, Lopez was not the government’s only witness

and his testimony was corroborated to some extent. But

he was the government’s star witness—without him,

there simply is no case at all on these charges. No other

witness saw a gun or the beating. Nor was the other

evidence in any way overwhelming. For example,
No. 08-2034 13

Lopez’s friend, Shane Bach, testified that he was with

Lopez early on the night of the crime in question. Bach

testified that he heard Salem ask Lopez why he was

“snitching” and heard Salem or Marcus Colin ask the

other whether he had “one in the chamber,” referring to

whether a gun was loaded and ready to fire. But Bach

never saw the gun. And Bach later admitted that he

never heard Salem threaten Lopez and that they were

talking about people who they heard were cooperating

against the Latin Kings. Bach also did not witness the

alleged beating.

Lopez’s mother also corroborated part of her son’s

story—she said she saw Lopez with Salem earlier in the

evening and Lopez looked worried while he scrambled

around the house looking for “paperwork” (which Lopez

testified he told Salem was how he would prove that

he wasn’t a snitch). Lopez’s mother saw Lopez leave, and

testified that when we came back, he had injuries to his

neck and face (which the photos also confirmed). But

again, Lopez’s mother never saw a gun, nor heard any

threats or intimidation. And a mother’s desire not to see

her son behind bars might also decrease the weight of

her testimony, though we recognize that to be a jury

concern, not ours.

The only other relevant witness was an FBI Agent who

interviewed Marcus Colin, who refused to testify

after being called to the stand. But the way in which

information from Colin’s interview came into evidence

was odd. Though being called to the stand by the defense,

the agent mentioned that Colin told him that Salem had
14 No. 08-2034

a gun and had orchestrated the Lopez kidnapping.

Beyond its strange introduction, we see other reasons to

question the impact of this testimony. The government

didn’t mention it at closing arguments nor in its appellate

briefs. And the district court didn’t mention it in its

opinion either. So it’s debatable whether this testimony

reached the jury’s ears with any force.

In the end, this case came down to whether the jury

believed Lopez’s story. He was the victim. No other

witness provided a complete narrative, start to finish, of

the events that led to Salem’s charges. No one saw the

gun, heard the threats, or saw the beating. Other evidence

corroborated only bits and pieces of Lopez’s account. So

his credibility was crucial, and bottom line, was the

only real issue the jury had to decide.

Nonetheless, as the government points out, Salem’s

counsel attempted to attack Lopez’s credibility at trial

by asking him about his motive to lie. Counsel crossexamined Lopez on the RICO, drug, and gun counts

that he was facing, some of which carried a maximum

sentence of life in prison and mandatory minimums of

five and ten years. And she asked whether Lopez was

testifying in exchange for leniency—she specifically

asked whether he had heard of “substantial assistance”

and U.S.S.G. § 5K1.1. Though Lopez denied it, Salem’s

counsel tried to raise the inference of an incentive to

testify falsely to curry favor with the government. This

is essentially the same basis on which Salem would seek

to introduce the Sotelo homicide matter.

Still, on the sparse record before us, we are unconvinced that every possible piece of evidence of Lopez’s
No. 08-2034 15

participation in the Sotelo homicide must be immaterial.

This is not just evidence of another drug or gun crime.

Murder is fundamentally different from other offenses.

As the Supreme Court recently acknowledged, “there is

a distinction between intentional first-degree murder

on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other.”

Kennedy v. Louisiana, 128 S. Ct. 2641, 2660 (2008). All

other crimes against individuals “cannot be compared to

murder in their ‘severity and irrevocability.’ ” Id. (citing

Coker v. Georgia, 433 U.S. 584, 598 (1977)). Indeed, firstdegree murder holds a unique position in our society’s

notion of criminality. That first-degree murder is the

only crime against the person that commands the death

penalty, the Justices have observed, “is an expression of

the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only

adequate response may be the penalty of death.” Gregg v.

Georgia, 428 U.S. 153, 184 (1976). So to say that there is

no reasonable probability that the jury could reach a

different result, even if the evidence showed that the

government’s star witness was never charged for his

direct involvement in a violent gang murder, ignores the

differences between the drug and gun crimes about

which Lopez was questioned and first-degree homicide.

Not only does society view murder differently than

other crimes, but so might Lopez, which could show an

enhanced incentive to lie. For impeachment purposes, a

criminal defendant on trial is entitled to reveal to the

jury not only what benefits a witness is receiving, but

also what he perceives he may receive. As we just
16 No. 08-2034

Moreover, Lopez across the board denied any knowledge

3

of any benefit for testifying. Of course, the jury was free not to

believe him. But his not admitting to even being aware of

“substantial assistance” or U.S.S.G. § 5K1.1 diminishes the

value of the impeachment evidence by some measure, however

slight.

noted, murder puts a different kind of penalty in play.

Though murder is not generally a federal offense, and

Wisconsin does not have the death penalty (Wisconsin’s

stiffest sentence is life without parole, see WIS. STAT.

§§ 940.01(1); 939.50(3)(a); 973.014(1g)), Lopez faced

charges under RICO for his gang-related activities.

Murder committed “for the purpose of . . . maintaining or

increasing position in an enterprise engaged in racketeering activity” is punishable by death. 18 U.S.C. § 1959(a)(1).

So although Salem’s counsel made the jury aware of

Lopez’s possible life sentences, the jury never heard

about a possible sentence of death. (And it did not

hear about the potential effect of a Wisconsin murder

sentence of life without parole.) If agreeing to testify

meant the difference between life and death, the jury

might have inferred that Lopez had an even more powerful incentive to take the stand and testify favorably for

the government. In this sense, though impeaching, evidence of the Sotelo murder might not be cumulative

of other impeachment evidence. On this record, though, 3

we cannot come to a firm conclusion on this important

question.

To be sure, we are not granting Salem a new trial. But

we are not affirming the denial of one either. Without a
No. 08-2034 17

fuller record, we cannot sufficiently review whether the

Sotelo homicide evidence was material. The record indicates that at least some evidence, that of a statement

of Lopez himself and the conditions under which he

made it, is still unrevealed. With that in mind, we recall

our opinion in United States v. Dimas, which reflects

precisely the rationale for our decision in this case:

Though we recognize the experienced district

judge’s familiarity with all aspects of this case, the

somewhat sparse record leaves us with serious

questions about what impact the Brady material

might have had on the jury. Because of these lingering doubts we feel compelled to vacate the order

denying a new trial and remand for the limited

purpose of allowing the district court to hold an

evidentiary hearing on this issue.

Dimas, 3 F.3d at 1018 (citing Barkauskas v. Lane, 878 F.2d

1031, 1034 (7th Cir. 1989)). On remand, the court must

first satisfy itself that all the evidence of Lopez’s role in

the Sotelo homicide has been turned over. Then the court

should consider whether the evidence was actually suppressed by the prosecution and whether Salem could

have uncovered it with reasonable diligence. Id. at 1018-19.

Next, the court should reexamine the admissibility of

that evidence. Id. at 1019. Finally, should the court conclude the evidence would be admissible, the court

should examine whether there is a reasonable probability

that the outcome in Salem’s case would change. Id.
18 No. 08-2034

III. Conclusion

We VACATE the denial of Salem’s motion for a new

trial and REMAND for an evidentiary hearing consistent

with this opinion.

8-25-09