In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2999

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAGIN E. VILLASENOR,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03-CR-689—Joan B. Gottschall, Judge.

ARGUED SEPTEMBER 19, 2011—DECIDED DECEMBER 23, 2011

Before EASTERBROOK, Chief Judge, and KANNE and

WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Magin Villasenor, along with

sixteen other defendants, was charged with various crimes

arising out of a conspiracy to distribute cocaine and

marijuana across several states. A jury found Magin guilty

of sixteen out of the nineteen charged counts. He

now raises a number of issues on appeal, including challenges to the sufficiency of evidence presented at trial,
2 No. 10-2999

the decision to admit a co-conspirator’s statements into

evidence, and the district court’s refusal to grant a motion

for a new trial following the discovery that the government

suppressed evidence favorable to the defense. We find

none of these contentions meritorious, and accordingly

affirm his conviction.

I. BACKGROUND

A plan to distribute cocaine first began in 1995 when

Marco Villasenor, Magin’s brother, met Stevie Jones

while locked up in a Missouri jail. There, the two discussed

the possibility of dealing drugs together at some point

in the future. They made good on these plans following

their release, when Marco met Jones in Texas in order

to supply him with cocaine and marijuana. Later, Marco

introduced Jones to his brother, Magin, and the two

also discussed the possibility of conducting cocaine

deals together.

These plans came to fruition in 1996, when Jones began

obtaining cocaine from Magin. The deals initially involved

quantities ranging from nine to eighteen ounces, but Jones

requested greater amounts of cocaine as time went on

and the conspiracy expanded in size and scope. By 2003,

Jones obtained two to four kilograms of cocaine at a

time from Magin, once or twice per month.

Numerous other individuals were also involved in the

cocaine distribution scheme, most of whom need not

be discussed for purposes of this appeal. One of the

relevant individuals, however, was Jones’s girlfriend,
No. 10-2999 3

Princess Coleman. Coleman assisted Jones by transporting

cocaine and money between Michigan and Texas.

Jones also introduced Magin to Robert Rider; together,

Jones and Rider would pool their money to buy cocaine

from Magin in Chicago and Texas, and then resell

the drugs.

At trial, the government introduced evidence of several

specific drug transactions. The first transaction took

place on January 10, 2003. Rider drove from Michigan to

a hotel in Willowbrook, Illinois, planning to buy

two kilograms of cocaine from Magin and to repay

him $5,000 for a debt owed by Jones. After exchanging

$45,000 for the two kilograms of cocaine, Rider drove

back to Michigan. Unbeknownst to him, Federal Bureau of

Investigation agents were conducting surveillance

outside the hotel and followed the car as it left. In Michigan, state police officers stopped the car. Although

Rider attempted to flee during a high-speed chase, police

eventually apprehended him. Police recovered two kilograms of cocaine from the trunk of his car, and matched

a latent fingerprint on the cocaine packaging to Magin.

Another transaction occurred on January 24, 2003, when

Jones and Coleman drove from Michigan to Chicago

in order to purchase cocaine from Magin and to

repay another debt owed by Jones. The two picked up

two kilograms of cocaine from Magin’s apartment

in exchange for $40,000. An FBI agent followed

them leaving Magin’s residence; the agent photographed the vehicle, but did not attempt to stop the car.

The next transaction discussed at trial occurred on

February 12, 2003, when Jones purchased a bus ticket from
4 No. 10-2999

Atlanta to Chicago, planning to buy cocaine from Magin

later that same day. Jones arranged for Coleman to bring

$80,000 from Michigan to the bus station in Chicago,

and used this money to buy four kilograms of cocaine

from Magin. FBI agents, surveilling Jones for much of

the evening, planned to pose as dirty cops and “rip”

the cocaine from him before he left Chicago. As Jones

was walking back to the bus station, the agents stopped

him and seized the four kilograms of cocaine, letting Jones

go afterwards.

Frustrated that his cocaine had been taken by “dirty”

cops, Jones again arranged to buy cocaine from Magin

on March 21, 2003. But intercepted telephone calls revealed

that this time Jones planned to have Coleman take

the cocaine from Magin without paying for it, in order

to make up for the stolen cocaine. Magin met with

Coleman in a hotel room in Chicago and gave her a

bag containing three kilograms of cocaine. He waited for

her to return with money, but she instead fled with

the drugs. After the deal went awry, Magin called one of

his co-conspirators and reported, “they robbed me dude.”

On July 23, 2003, after conducting months of surveillance

on the individuals involved in the drug-distribution

scheme, FBI agents executed a search warrant at

Magin’s residence in Chicago. Magin lived with his

family in a two-bedroom upstairs apartment in a twostory building. Magin and his family were not present

while agents searched the apartment; instead, they

had been staying in Texas for about a week before

the search was conducted. During the search, agents
No. 10-2999 5

found a loaded handgun and an extra magazine underneath the mattress in the master bedroom. In the dining

room were pay stubs, tax documents, and a checkbook

for an account belonging to Magin and his wife. Magin

was later arrested and charged with conspiracy to distribute controlled substances, 21 U.S.C. § 846; distributing

a controlled substance, 21 U.S.C. § 841(a)(1); using a

communication facility in committing a felony narcotics

offense, 21 U.S.C. § 843(b); and illegally possessing a

firearm, 18 U.S.C. § 922(g)(1).

At trial, statements made by another one of Magin’s

brothers, Carlos Villasenor, were admitted into evidence

as co-conspirator statements. Carlos’s involvement in

the conspiracy appears to have begun in 2001, when

he introduced Magin to Gabriel Maldonado. Magin

and Maldonado conducted several transactions together involving multiple kilograms of cocaine in both

San Antonio and Chicago. Carlos’s role was to dictate

the price of the cocaine that Maldonado supplied to Magin,

in exchange for a fee. In one of these transactions,

Maldonado “fronted” Magin ten kilograms of cocaine.

Carlos vouched for Magin, assuring Maldonado that

Magin would pay for the drugs after their delivery

in Chicago.

Carlos also spent time moonlighting as an informant

for the Drug Enforcement Agency, using the DEA

to investigate, and thus eliminate, his rival drug dealers. Carlos’s cooperation with the DEA began as early as

1985, and continued intermittently through 2000. On April

23, 2003, FBI agents investigating Carlos’s involvement in
6 No. 10-2999

the charged conspiracy intercepted a conversation between

a DEA agent and Carlos. During the conversation, Carlos

asked the agent whether he was interested in Carlos’s

assistance in investigating Wilfredo Rodriguez, a rival drug

dealer. The agent indicated that he was, and after a lull of

three years, Carlos was once again assisting the DEA.

Later, FBI agents contacted the DEA and informed them of

the FBI’s ongoing investigation of Carlos and his involvement in the charged conspiracy to distribute cocaine.

The DEA decided to go forward with a plan to use Carlos

to investigate Rodriguez, despite the FBI’s separate investigation of Carlos’s own activities. Carlos never proffered

any information related to the charged conspiracy

to distribute cocaine; in fact, he was unaware of the

FBI’s investigation and sought to keep evidence of

his continued involvement in the drug-distribution

scheme from the DEA agents with whom he was working.

The investigation of Rodriguez, and Carlos’s assistance

to the DEA, ended with Rodriguez’s arrest in New Jersey

on June 6, 2003. Thus, Carlos assisted the DEA for a total

of approximately one and one-half months in 2003. All

of Carlos’s statements admitted into evidence during

Magin’s trial occurred in 2003, but either before or after the

one and one-half-months that Carlos assisted the DEA.

At trial, the evidence presented against Magin included

intercepted telephone conversations, surveillance photographs, and testimony from cooperating witnesses.

The evidence also included physical evidence recovered

from the bedroom of a co-defendant, Joaquin Mendez,

consisting of a firearm, a drug ledger, and a digital scale.
No. 10-2999 7

The digital scale was incorrectly labeled as Exhibit 1 instead 1

of Exhibit 3.

A chemist for the DEA, Anthony Harris, testified that

he tested the scale and found that it contained trace

amounts of cocaine. On March 3, 2006, the jury

found Magin guilty of sixteen counts charged in

the indictment. The jury found Magin not guilty of

three counts: two counts relating to the distribution

of cocaine arising out of the transaction on January 24,

2003, and one count relating to the use of a telephone

to facilitate the conspiracy arising out of the transaction

on March 21, 2003.

In April 2007, over a year after the jury rendered

its verdict, prosecutors learned that at the time of Magin’s

trial Harris had been under investigation by the DEA

for inattention to duty. The undisclosed evidence revealed

that Harris generally failed to follow laboratory procedures

and improperly recorded information in the cases he

was assigned. In total, Harris incorrectly labeled twentythree exhibits throughout his tenure at the DEA, including the digital scale that he examined for Magin’s trial.1

He would later receive a two-day suspension for this

conduct. On April 17, 2007, the government disclosed that

Harris had been under investigation at the time of Magin’s

trial. On June 30, 2008, Magin filed a motion for a new trial

on the basis of this newly discovered evidence.

On March 21, 2009, the district court denied Magin’s

motion for a new trial. The court found that the evidence

had been wrongfully suppressed, though through no bad
8 No. 10-2999

faith conduct on the part of the prosecutors. The suppressed information was also favorable to Magin because

it could have been used to impeach Harris at trial. However, the court noted that the government subsequently

had the scale retested and the results of Harris’s tests were

confirmed. Moreover, the court found that the remainder

of the evidence against Magin was overwhelming, and thus

the undisclosed information did not undermine the results

of the trial. On this basis, Magin’s motion was denied.

II. ANALYSIS

Magin presents a number of arguments for review. First,

Magin claims that there was insufficient evidence for the

jury to conclude that he was involved in a conspiracy,

rather than merely a part of multiple buyer-seller relationships. Magin also argues that there was insufficient

evidence to establish that he constructively possessed

the gun found in his Chicago apartment because he was

in Texas while the FBI conducted its search. Next,

Magin claims the district court abused its discretion

by admitting Carlos’s statements as co-conspirator admissions because Carlos had been a government informant.

Finally, Magin challenges the district court’s denial of

his motion for a new trial because the government suppressed favorable evidence that could have been used

to impeach Harris’s testimony. We take each of

these arguments in turn.
No. 10-2999 9

A. Challenges to the Sufficiency of the Evidence

Magin challenges the sufficiency of the evidence underlying his convictions for conspiracy and gun possession. The

standard of review for sufficiency of the evidence challenges is a “nearly insurmountable hurdle.” United States

v. Taylor, 637 F.3d 812, 815 (7th Cir. 2011). “[W]e view

all the evidence and draw all reasonable inferences in

the light most favorable to the government.” United

States v. Wright, 651 F.3d 764, 770 (7th Cir. 2011)

(internal quotation marks and punctuation omitted).

A conviction will be overturned only where the record

is “devoid of evidence from which a reasonable jury

could find guilt beyond a reasonable doubt.” United

States v. Durham, 645 F.3d 883, 892 (7th Cir. 2011).

1. Conspiracy to Distribute Cocaine

Magin contends that the evidence presented at

trial demonstrated a mere buyer-seller relationship

among the co-defendants, rather than a conspiracy

to distribute cocaine. Magin acknowledges evidence

of sales and purchases of cocaine among himself, Jones

and Rider. However, he argues that without evidence of

an agreement to distribute cocaine, separate and distinct

from the sales themselves, there was insufficient evidence

to establish a conspiracy. Even if he knew that they intended to resell the cocaine, Magin concludes, this knowledge did not make Magin’s sales part of a conspiracy because he did not share in profits from subsequent

sales.
10 No. 10-2999

A drug-distribution conspiracy under 21 U.S.C. § 846

requires evidence “that the defendant knowingly

agreed—either implicitly or explicitly—with someone else

to distribute drugs.” United States v. Johnson, 592 F.3d

749, 754 (7th Cir. 2010). But when the alleged co-conspirators are in a buyer-seller relationship, “we have cautioned

against conflating the underlying buy-sell agreement

with the drug-distribution agreement that is alleged to

form the basis of the charged conspiracy.” Id. Thus,

“to prove a conspiracy, the government must offer evidence establishing an agreement to distribute drugs that

is distinct from evidence of the agreement to complete

the underlying drug deals.” United States v. Vallar, 635

F.3d 271, 286 (7th Cir. 2011) (internal quotation marks

omitted).

“Certain characteristics inherent in any ongoing

buyer-seller relationship will also generally suggest

the existence of a conspiracy,” and thus offer the jury

no basis to distinguish the alleged conspiracy from

the underlying buyer-seller relationship. Johnson, 592

F.3d at 754. These inherent characteristics include “sales

of large quantities of drugs, repeated and/or standardized

transactions, and a prolonged relationship between

the parties.” Id. Instead, a conspiracy may be distinguished from a nonconspiratorial buyer-seller relationship

through other evidence, including sales on credit,

an agreement to look for customers, commission

payments, evidence that one party provided advice for

the other’s business, or an agreement to warn of

future threats to each other’s business from competitors

or law enforcement. Vallar, 635 F.3d at 287.
No. 10-2999 11

Importantly, “not all credit sales can support an inference that there was an agreement to distribute.” Id. (internal quotation marks omitted). For example, evidence

that a supplier extends credit to an individual purchasing small quantities of drugs for personal consumption

would not suffice to establish a conspiracy. Id. But when

a credit sale is combined “with certain characteristics

inherent in an ongoing wholesale buyer-seller relationship—i.e., large quantities of drugs, repeat purchases

or some other enduring arrangement—the credit sale

becomes sufficient evidence to distinguish a conspiracy

from a nonconspiratorial buyer-seller relationship.”

Id. Thus, once the government has offered some distinguishing evidence, such as credit sales, the jury may

then rely on other evidence, such as the involvement of

large quantities of drugs, to “buttress an inference

that there was an agreement to distribute drugs.” Johnson,

592 F.3d at 758.

There was ample evidence to distinguish Magin’s

relationship with his co-defendants as a drug conspiracy,

rather than a mere buyer-seller relationship. Magin fronted

large quantities of cocaine to Jones, and he was also fronted

cocaine by other members of the drug-distribution

scheme. The evidence presented at trial included testimony from Jones and Rider detailing various instances

when Magin fronted cocaine to Jones, in addition

to intercepted telephone calls corroborating their testimony. The fronting of large quantities of drugs, combined

with evidence of repeated transactions and a prolonged

relationship between the purported members of

the conspiracy, supports an inference that there was
12 No. 10-2999

an agreement to distribute cocaine, distinct from any

underlying buy-sell relationship. We therefore find

the evidence sufficient to support the jury’s verdict.

2. Gun Possession

Magin also challenges the sufficiency of the evidence

supporting the jury’s verdict that he was a felon in illegal

possession of a firearm for purposes of 18 U.S.C.

§ 922(g)(1). A conviction on this count requires the government to prove that Magin was “(1) a felon, (2) who

had possessed a firearm, (3) that had traveled in interstate commerce.” United States v. Harris, 587 F.3d 861,

866 (7th Cir. 2009). Magin claims that the evidence

was insufficient to establish the element of possession

because he was in Texas when FBI agents searched

his Chicago apartment and discovered a handgun. Moreover, he contends that an “unknown third party” let

FBI agents into his Chicago apartment. An FBI agent

testified that he entered the apartment after having

been provided with a key by an older woman present

in the lower level of the building. Magin argues that the

gun could have been placed underneath his mattress by

this person because she had access to the apartment.

To satisfy the possession requirement in 18 U.S.C.

§ 922(g)(1), the government may prove either actual

or constructive possession. United States v. Morris, 576

F.3d 661, 666 (7th Cir. 2009). “Constructive possession is

a legal fiction whereby an individual is deemed to ‘possess’

contraband items even when he does not actually have

immediate, physical control of the objects.” Id.
No. 10-2999 13

(emphasis in original). Constructive possession is present

“when a person knowingly has the power and the intention at a given time to exercise dominion and control

over an object, either directly, or through others.” United

States v. Caldwell, 423 F.3d 754, 758 (7th Cir. 2005). In

order to distinguish true possessors from mere bystanders, the government must establish a nexus between

a defendant and the relevant item. Morris, 576 F.3d at 666.

Although Magin posits that he was unable to constructively possess the firearm because he was in Texas,

his location at the time of the search is immaterial. See,

e.g., United States v. Kitchen, 57 F.3d 516, 521 (7th Cir.

1995) (defendant constructively possessed firearms

in his residence despite being incarcerated while search

warrant was executed). A nexus between a defendant

and a firearm for purposes of constructive possession can

be established by showing that the firearm was seized

from the defendant’s residence. Caldwell, 423 F.3d at 758.

The facts in the record were sufficient for the jury to

infer that Magin resided in the Chicago apartment.

The evidence establishing his residence included pay

stubs, tax documents, and a checking account book,

all bearing his name, found in the apartment. Moreover,

intercepted telephone calls indicated that he was traveling to Texas merely to carry out a drug deal. The evidence

was sufficient to establish that Magin resided in

the apartment, and therefore, constructively possessed

the firearm.

Neither does Magin’s assertion that an older woman had

access to his apartment render the evidence insufficient to
14 No. 10-2999

support the verdict. Constructive possession may be

sole or joint. United States v. Hampton, 585 F.3d 1033, 1041

(7th Cir. 2009). The fact that a third party may have

had access to the apartment, and therefore the

firearm, does not negate the inference that Magin

had access to the firearm as well. Kitchen, 57 F.3d at 521.

Moreover, the jury was within its rights to conclude

that the firearm was under the exclusive control of Magin,

a large-scale drug dealer, rather than equate speculation with reasonable doubt and indulge in the unsupported inference that this “unknown” older woman

ever even came into the apartment, let alone hid a firearm

underneath Magin’s mattress. There was no evidence in

the record to support this latter scenario, but an abundance

of evidence to support the former. The evidence

was sufficient to support the jury’s verdict.

B. Co-Conspirator Statements

Magin next challenges the district court’s decision

to admit statements made by his brother, Carlos, during

inter cepted telephone conver sations as coconspirator statements under Federal Rule of Evidence

801(d)(2)(E). We review the district court’s decision to

admit non-hearsay co-conspirator statements for an

abuse of discretion. United States v. Cruz-Rea, 626 F.3d

929, 937 (7th Cir. 2010). A statement made by a member

of a conspiracy is admissible pursuant to Rule 801(d)(2)(E)

if the government proves by a preponderance of

the evidence that a conspiracy existed, the defendant

and the declarant were members of the conspiracy, and
No. 10-2999 15

the statement was made during and in furtherance of

the conspiracy. Id. A government informant’s statements

are not admissible under this rule because he cannot be

a conspirator. United States v. Schalk, 515 F.3d 768, 775

(7th Cir. 2008).

The district court held that Carlos’s statements

were admissible, despite his previous status as a DEA

informant, because he was acting as a co-conspirator

and furthering the goals of the conspiracy when he

made the statements. The court found that he was not

acting as a government informant because the DEA’s

investigation was unrelated and Carlos was unaware

that the FBI was investigating the charged conspiracy.

As the district judge stated, “he had a different hat on”

when the statements were made; that of conspirator,

rather than informant.

Magin argues that none of Carlos’s statements should

have been admitted because he was a government informant and therefore could not have acted in furtherance

of the conspiracy. According to Magin, it is unimportant

that the DEA’s investigation was unrelated to the conspiracy at issue, or that the statements were made outside

of the one and one-half months that Carlos actively assisted the DEA. Rather, once he became an informant,

Carlos no longer shared a common aim with the conspiracy

because any information learned during the course of

the conspiracy could later be used to cut a deal with

the government. As counsel for Magin put it, “Once you

become an informant, you’re an informant forever.”

We reject this argument. Carlos worked with the DEA for

various stretches of time prior to 2000, and again during
16 No. 10-2999

the DEA’s investigation of Rodriguez from April 25, 2003,

through June 6, 2003. All of the statements admitted

into evidence occurred in 2003 either before April 25 or

after June 6, outside the period of Carlos’s cooperation

with the DEA, and thus were properly admitted. Although

there may be cases where it is difficult to discern when

an individual ceases to be a government informant, this

is not one of them. Carlos had not spoken to the DEA for

at least three years prior to his conversation with an

agent about Rodriguez, and Carlos’s cooperation clearly

ended when the DEA arrested Rodriguez. An individual

does not become a government informant “forever” by

cooperating with the government. See United States

v. Mangual-Garcia, 505 F.3d 1, 8-9 (1st Cir. 2007) (not

plain error for district court to admit co-conspirator’s

statements under Rule 801(d)(2)(E) because he was a coconspirator when the statements were made, despite

having been a government informant both before and

after the statements were made).

Were we to adopt Magin’s position, the results would

be absurd. Carlos worked as a government informant

during the 1980’s. According to Magin’s argument, this

earlier cooperation alone would be sufficient to have

prevented Carlos from acting in furtherance of an unrelated conspiracy over a decade later because he could

potentially cut a deal with the government using information he learned during the course of the conspiracy.

Such an argument ignores the fact that Carlos aided

the conspiracy, not because he sought to assist the government, but because he sought to help Magin acquire large

quantities of cocaine so that it could then be distributed.
No. 10-2999 17

Carlos was a co-conspirator acting in furtherance of

the conspiracy both before and after he assisted the DEA.

We need not decide whether Carlos’s statements could

have been admitted if they had been made while he

was still assisting the DEA in its unrelated investigation,

because that is not the case before us. None of the admitted

statements occurred while Carlos was cooperating with

the government, and therefore the district court did not

abuse its discretion.

C. Brady Evidence

Finally, Magin asks us to review the district court’s

denial of his motion for a new trial because the government

failed to disclose evidence that would have enabled him

to impeach Harris, the DEA’s chemist, in violation of

Brady v. Maryland, 373 U.S. 83 (1963). We review the

district court’s denial of the motion for an abuse of discretion, viewing the evidence in the light most favorable to

the prevailing party. United States v. Lewis, 567 F.3d 322,

328 (7th Cir. 2009).

Brady set forth the principle that “the government has the

affirmative duty to disclose evidence favorable to a defendant and material either to guilt or punishment.”

United States v. Bland, 517 F.3d 930, 933-34 (7th Cir. 2008).

The government’s duty to disclose evidence favorable

to the defense under Brady includes impeachment evidence. United States v. Wilson, 481 F.3d 475, 480 (7th

Cir. 2007). To win a new trial based on a Brady violation,

Magin must establish that (1) the prosecution suppressed
18 No. 10-2999

evidence, (2) the evidence was favorable to the defense,

and (3) the evidence was material to an issue at trial.

Bland, 517 F.3d at 934. The district court found that the first

two elements were met, but held that the evidence suppressed was immaterial.

Suppressed evidence is not material unless there is a

“reasonable probability that the suppressed evidence

would have produced a different verdict.” Harris v.

Kuba, 486 F.3d 1010, 1014 (7th Cir. 2007). A probability of

a different result may be met by “showing that the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine

confidence in the verdict.” Bielanski v. Cnty. of Kane,

550 F.3d 632, 644 (7th Cir. 2008) (quoting Kyles v. Whitley,

514 U.S. 419, 435 (1995)).

Magin argues that the evidence is material because

Harris’s tests found cocaine residue on a digital scale, one

of the only pieces of physical evidence admitted at trial.

Had the suppressed evidence been available, it could

have been used to impeach Harris’s testimony and undermine the test results. Magin asserts that this particular

jury reviewed the evidence with “a fine-toothed comb” for

each count, rather than passively concluding he was

guilty, evident by its vote for acquittal on three of

the charged counts. Magin maintains that the impeachment evidence would have diminished the overall strength

of the prosecution’s case and, given how rigorously

the jury considered the evidence, there stands a reasonable

probability that the jury would have reached a different

verdict.
No. 10-2999 19

The significance of the suppressed impeachment evidence is 2

itself questionable because the government retested the scale

and the presence of cocaine residue was confirmed. Had

the impeachment evidence been made available to the defense

at trial, the government presumably would have just had

another chemist testify as to the presence of cocaine residue.

See United States v. Banks, 546 F.3d 507, 511 (7th Cir. 2008)

(“Perhaps, every time either the Government or a defendant

wants a new trial based on a problem with an expert witness,

there should first be a hearing to see if an alternate expert might

have been produced by the affected side who would have said

the same thing as the tainted expert.”).

Magin’s argument is unpersuasive. Although it is true

that the jury may have gone over each piece of evidence

with “a fine-toothed comb,” the district court concluded

that there was overwhelming evidence against Magin

irrespective of Harris’s testimony. Indeed, the district

judge found that “the government’s case would have been

almost as strong without any chemist’s testimony.”

Agents found drug ledgers and a handgun, in addition to

the scale, in the apartment of co-defendant Mendez. The

evidence against Magin included taped conversations

with other defendants concerning drug transactions,

seizures of cocaine in connection with these drug-related

conversations, Magin’s fingerprints on cocaine packaging,

surveillance evidence, and the testimony of several cooperating members of the conspiracy. The district court did

not abuse its discretion in concluding that the strength of

the remaining evidence rendered the suppressed evidence

immaterial. See United States v. Agurs, 427 U.S. 97, 109- 2

10 (1976) (“The mere possibility that an item of undisclosed
20 No. 10-2999

information might have helped the defense, or might have

affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the conviction

of Magin E. Villasenor.

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