UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CASE NO. 2:00-CR-28-TS

)

JAY ZAMBRANA )

OPINION AND ORDER

This matter is before the Court on the Defendant’s Second Motion for a New Trial, filed on

December 30, 2005. The Court heard argument and testimony on the Motion March 22–23, 2006,

and denied the Motion on March 23, stating a written opinion would follow. 

Evidence was disclosed by the government in a letter dated November 28, 2005, that prior

to the Defendant’s trial, a witness in the case, Denny Arreola, was housed at Hammond City Jail and

was given special treatment. Also, there is evidence that, while housed at the Metropolitan

Correctional Center (MCC) in Chicago, Arreola was discovered to have a cell phone. The Defendant

argues the conduct of the Hammond City Jail is attributable to the government, the government was

aware of Arreola’s misconduct at Hammond and the MCC, and that the government committed a

Brady violation by suppressing these facts. The Defendant argues that another co-defendant,

Alvestia McKeller was allowed to use drugs while at Hammond Jail and that he gave false testimony

regarding his drug use. Finally, the Defendant argues that the Defendant’s co-defendants had

numerous opportunities to plan their testimony prior to the trial. The Court finds no new trial is

necessary.

A. Brady Standard

The Defendant has the burden to show the government violated Brady and that a new trial

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is necessary. United States v. Wilson, 237 F.3d 827, 832 (7th Cir. 2001). A Brady violation exists

when the evidence at issue is 1) favorable to the defendant; 2) suppressed; and 3) material to the

defense. Id. at 832 (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). “Impeachment evidence as

well as exculpatory evidence falls within this rule.” United States v. Souffront, 338 F.3d 809, 819

(7th Cir. 2003) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)). Evidence is not

suppressed unless the government prosecutors or an agency or branch that takes part in investigating

or prosecuting the matter has knowledge of the evidence. Id.; United States v. Morris, 80 F.3d 1151,

1169 (7th Cir. 1996) (stating that there is no “duty on the prosecutor’s office to learn of information

possessed by other government agencies that have no involvement in the investigation or

prosecution at issue”). The test for materiality is whether in the absence of the suppressed evidence

the Defendant received a fair trial, “understood as a trial resulting in a verdict worthy of

confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). A verdict is not worthy of confidence if

there is a “reasonable probability” the admission of the suppressed evidence would have resulted

in a different verdict. Id. “A ‘reasonable probability’ of a different result is accordingly shown when

the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’” Id.

B. Arreola’s Conduct at the MCC 

At the March 23 hearing, Vincent Balbo, one of the investigating officers, testified that he

was aware that Arreola had been caught with a cell phone while at the MCC in Chicago. Arreola

cooperated with the investigation of the MCC and received a sentence reduction in return. The

Defendant obtained no information regarding what numbers or persons Arreola contacted while at

the MCC. The government’s failure to inform the Defendant of Arreola’s cell phone use is not a

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Brady violation because having this evidence would not have made a different result reasonably

probable. 

There is no evidence Arreola obtained the cell phone from the government or was allowed

to use it as a special privilege. Insufficient supervision by jail staff appears to be the reason Arreola

was able to obtain and use a cell phone. If the Defendant hoped to portray Arreola as a shady

character because he violated MCC rules, this would have been redundant to all of Arreola’s other

bad acts of which the jury was aware. The jury knew that Arreola was involved in drug trafficking

and homicide along with the Defendant. That he cooperated in the internal investigation at the MCC

may have helped him in the eyes of the jury. Arreola’s violation of MCC rules by obtaining a

telephone would have made little difference in this respect. 

C. Conversations Among Co-Defendants

The Defendant argues that Arreola’s cell phone possession bolsters the Defendant’s

argument that Arreola and other co-defendants, including Tony Clinton and Carlos Ripoll, set up

the Defendant for the homicide charge. The Defendant argued and presented evidence at the hearing

that Arreola, Clinton, and Ripoll had opportunities to discuss their testimony prior to trial and that

these discussions were not made known to the Defendant. However, there is no evidence that the

government knew that any conversation between Arreola, Clinton, and Ripoll took place other than

what was disclosed.

The Defendant’s evidence that these other conversations took place is not convincing. There

is no evidence Arreola used his cell phone to talk to anybody related to the case. Arreola said that

he used his phone privileges to talk to his family and girlfriends. At most, the Defendant has shown

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the possibility that Arreola might have used his cell phone to talk to unknown persons about the

case.

Unrelated to the cell phone, evidence of other conversations was presented. Trinidad Cruz

testified that he was in a van with Arreola, Clinton, and McKeller, and that they discussed their

testimony against the Defendant. However Clinton and Arreola dispute this and Marshals were in

the van during this alleged conversation. The Court does not find Cruz’s testimony to be credible.

Cruz is a jailhouse acquaintance of the Defendant and there is little evidence supporting his

testimony. Jesse Colon testified that Arreola told him that he had talked to his co-defendants and

they all agreed to testify against the Defendant. However, Colon was a witness for the Defendant

at trial and could have testified about this conversation then. That his testimony was not brought up

until now detracts from his credibility. Also, all of the alleged, undisclosed conversations between

Arreola, Clinton, and Ripoll, were denied by them, or stated to have not involved any of the specific

facts of the case. 

At most, the Defendant has shown several opportunities for the co-defendants to talk to each

other, such as when they were housed near each other at the MCC or the medical unit at the Lake

County Jail. However, the proximity of the co-defendants to each other does not appear to have been

kept a secret from the Defendant and could have been inquired into at trial. Also, that Arreola,

Clinton, and Ripoll might have had opportunities to talk to each other about cooperating against the

Defendant would not have made a different outcome reasonably probable. The jury already knew

Arreola, Clinton, and Ripoll were cooperating with the government against the Defendant and had

received benefits for doing so. The jury knew they had a motive to lie, that is, by testifying against

the Defendant for the homicide, homicide charges were not brought against them. That they might

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have had an opportunity to talk to each other before trial adds little, if anything, to what the jury

already knew about the co-defendants’ possible motivations to testify untruthfully. 

D. Arreola’s Conduct at Hammond Jail

Arreola testified about the many benefits he received while at Hammond Jail before the trial.

He became a “trustee,” or a prisoner who helps fix and clean things and is given extra privileges.

He had access to phones. He was able to obtain marijuana and Xanax. He had sex with female

visitors. He was able to smoke and receive pizza deliveries outside of the jail building. There was

no evidence offered that any investigation or prosecution agency involved in this case knew of the

violations taking place at the Hammond City Jail until well after the trial was over. Nor was there

any evidence that Hammond City Jail took any role in investigating or prosecuting the Defendant.

Hammond City Jail was contracted to house Arreola and other defendants, and that was the extent

of the Jail’s involvement in the case. These benefits were not all allowed by the jail, but were

obtained by Arreola by abusing his trustee position and lax or corrupt jail supervision. The

Defendant argues the prosecution should have known of Arreola’s special treatment because they

knew he was able to obtain a cell phone at the MCC. However, the Court does not believe that

because jail supervision was lax or corrupt at one jail, and a prisoner is moved to a new jail, that the

government should know that the prisoner will be able to obtain improper benefits at the second jail

as well. 

Also, the Court is not convinced the evidence regarding Arreola’s special treatment at

Hammond Jail would be material under Brady, could it be shown that the government suppressed

the evidence. Even if the government knew of Arreola’s Hammond Jail misconduct, there is no

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evidence they were the source of it. Arreola credibly testified that his special treatment was related

to his desire to make his jail stay more pleasurable and his abuse of his role as a trustee, and that it

had nothing to do with his cooperation with the government. Also, Arreola was already subject to

hours of cross-examination. The jury heard that Arreola was testifying in return for a plea agreement

wherein the government agreed not to proceed against Arreola for his involvement in the homicide.

The additional impeachment value of Arreola’s jail conduct is slight taken in the context of

Arreola’s plea agreement and the other credibility problems already raised by the Defendant. Arreola

had already been “so thoroughly impeached that additional impeachment evidence would have made

no difference.” Wilson, 237 F.3d at 833. 

The Defendant cites United States v. Boyd, 55 F.3d 239 (7th Cir. 1995), in support of his

argument. Boyd is easily distinguished. In that case, the Seventh Circuit upheld a district court

judge’s use of his discretion to grant a new trial where the prosecutors gave beneficial treatment to

cooperating witnesses, and the prosecutors did not inform the defendants of that treatment. Also, the

Boyd prosecutors knowingly used false testimony. There is no evidence the prosecution in this case

knew of any of the benefits given Arreola at Hammond Jail or knowingly used false testimony. The

Defendant rightly argues that Boyd was not concerned with punishing the prosecutors for bad

behavior, but focused on whether disclosure of the bad behavior would have made a difference at

trial. In Boyd, there appeared to be a quid pro quo, in that the prosecutors gave the co-defendants

benefits in the form of access to women and drugs in return for testimony at trial. The impeachment

value of the misconduct in Boyd was substantial. Here, the prosecutors did not know of the

Hammond Jail violations, and were not the source of any of Arreola’s benefits. The impeachment

value of Arreola’s misconduct is much less, and in the Court’s view, would have not made any

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difference in the result of the case. 

E. Alvestia McKeller’s Testimony

The Defendant claims the government used false testimony when Alvestia McKeller testified

at trial that he did not use drugs during incarceration because McKeller actually did use drugs during

this time. There is no evidence of McKeller’s drug use other than Arreola’s testimony that he heard

from others that McKeller did. Arreola did not see it himself. Even if McKeller did lie about his drug

use, there is no evidence the government knew of this. Also, if it is true that McKeller lied about

using drugs while in jail, had the Defendant known of this, the additional impact of the Defendant’s

impeachment would have been slight. McKeller, like Arreola, had been thoroughly impeached on

the benefits of his plea agreement and past criminal doings. McKeller’s testimony at trial was also

substantially corroborated by other evidence, including video, wire, and phone recordings. 

F. Newly Discovered Evidence

There being no Brady violation, the evidence regarding Arreola’s special treatment, cell

phone usage, or possible contact with other co-defendants does not warrant a new trial as newly

discovered evidence. Generally, newly discovered impeachment evidence does not warrant a new

trial, unless the “conviction was [] premised on the demonstrably dubious testimony of a single

witness.” United States v. DePriest, 6 F.3d 1201, 1217 (7th Cir. 1993). In this case, the testimony

of three co-defendants and evidence of phone calls connected the Defendant to the homicides. Also,

none of the new evidence presented has convinced the Court that any of the co-defendants’

testimony is demonstrably dubious.

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For these reasons, the Defendant’s motion for a new trial [DE 1476] is DENIED.

SO ORDERED on March 30, 2006.

 /s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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