1 The Honorable Joe Billy McDade, United St ates District Judge for the District of Central Illinois, sitting by designation. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-4164

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Nebraska. Victor Jose Barraza Cazares, *
* Defendant - Appellant. *

___________ Submitted: May 16, 2006 Filed: October 11, 2006

___________ Before LOKEN, Chief Judge, MELLOY and COLLOTON, Circuit Judges.

___________ MELLOY, Circuit Judge.

Victor Jose Barraza Cazares (the “def endant”) appeals his conviction for conspiracy to distribute more than 500 gr ams of methamphetamine. We affirm the judgment of the district court. 1-2- I. Background

Sergeant Rudy Mora, a New Mexico Stat e Patrol officer, stopped a car near Albuquerque in October 2004. The defendant was riding in the front passenger seat of the car. A co-defendant, Ricardo Barr aza (“Barraza”), the owner of the car, was driving. Barraza is the defendant’s cousin. The car was registered in Nebraska under Barraza’s name.

According to Sergeant Mora, during an initial portion of the stop when Barraza and the defendant were still sitting in the car, Barraza and the defendant avoided eye contact. Barraza appeared shaky and nervous while the defendant appeared generally calm. Sergeant Mora, Barraza, and the defe ndant all spoke Spanish. Sergeant Mora asked the defendant and Barraza about thei r travel plans, and the two men gave inconsistent answers. The defendant statedthat he was traveling to Nebraska for a week of vacation. Sergeant Mora noticedthe car had an overwhelmingly fruity odor, like that associated with car air fresheners, but he could see no air freshener in the car. He decided to investigate further. He obt ained consent to searchthe vehicle from both men and instructed the men to stand apart from one another away from the vehicle.

Sergeant Mora was a canine handler. He conducted a manual search and used a dog to search the car. The dog identified the rear, driver’s side taillight area as suspicious. According to Sergeant Mora, the defendant and Barraza tried to talk to one another once during the search, and Se rgeant Mora instructed them to remain silent. Also, Barraza and the defendant l ooked interested and anxious when Sergeant Mora and the dog approached the trunk area, but looked more relaxed when the search focused on the front of the vehicle. Sergeant Mora found approximately four pounds of high purity methamphetamine in the housing of the left rear taillight. The entire search, including the dog sniff and removal of the taillight assembly, took about forty minutes. Sergeant Mora arrested the two men.-3- Although the defendant had told Sergean t Mora that he was traveling to Nebraska for a one-week vacation, the search revealed that the defendant carried no luggage and only $100 in cash. The search also revealed a black nylon bag containing clothing that belonged to Barraza. Sergean t Mora reported that the defendant looked relieved upon being arrested, did not appear surprised or angry at the discovery of the drugs, and did not make any attempt to communicate withBarraza after discovery of the drugs.

Various agents met with Barraza while the two men were in custody following the stop. One of these agents was a DEA agent who also happene d to be named Mora. DEA Agent Mora asked Barraza to complete the trip and participate in a controlled sale. Barraza expressly consented to pr oceed to his destination, Grand Island, Nebraska, and complete the intended sale.

No government agent claims to have obt ained the defendant’s express consent to participate in the controlle d sale, and the defe ndant alleges that he never expressly agreed to participate in the controlled sale . Agents and officers testified, however, that the defendant was present for DEA Ag ent Mora’s discussions with Barraza during which Agent Mora and Barraza spoke Sp anish and Agent Mora proposed and explained the controlled delivery. The testimony placed the defendant close enough to Agent Mora and Barraza to hear the disc ussions. Agents also testified that the defendant at no time refused to cooperate. Finally, agents testified that if either man had refused to cooperate, th ey would not have been ab le to conduct the controlled delivery.

Barraza called the intended buyer in Nebraska. The defendant did not participate in the call, but stood close e nough to Barraza to hear Barraza’s end of the Spanish language conversation. Agents flew Barraza and the defendant to Nebraska where both men participated in the contro lled sale of the drugs to another codefendant, Rogelio Rios Lopez (“Lopez”). Ag ents testified that the defendant did not-4- appear anxious and spoke to no one duri ng the flight. The sale took place via a vehicle switch in which the defendant and Barraza met Lop ez in a public parking area. Many officers observed the sw itch and participated in the planning and execution of the switch, including the apprehension of Lopez following the switch. The officers who observed the vehicle switch and watche d the defendant and Barraza meet Lopez did not report any reaction by Lopez to sugge st that the defendant’s presence was a surprise. From all accounts, the delivery went smoothly. There is no evidence to suggest that the defendant protested or conducted himself in a manner that suggested a lack of consent in New Me xico, during the flight to Nebraska, or before, during, or after the controlled sale in Nebraska.

The government charged Barraza, Lopez, and the defendant with conspiracy to distribute and possess with intent to distribute in excess of 500 grams of methamphetamine. In April 2005, the defe ndant’s attorney requested exculpatory evidence from the government and requestedinformation specifically regarding statements by Lopez and Barraza. The government provided Barraza’s proffer statement, but provided no in formation regarding Lopez. Barraza then pleaded guilty, was released pending sentencing, fled, and remains a fugitive.

At a pre-trial conference on June 20, 2005, the day before trial was to begin for the defendant and Lopez, Lopez stated that hedid not want to go to trial. Later that day, he pleaded guilty. The government cl aims that the defendant’s counsel was present at both of these proceedings but did not arrange to interview Lopez. The defendant does not contest th e assertion that his counsel was present when Lopez stated the intention to pleadguilty. The defendant claims, however, that his counsel was not present during the actual plea hearing that took place later in the day. The defendant’s counsel did not attempt to interview Lopez th at day or any time prior to that day.-5- The defendant’s trial began the following day. On the morning of June 21, in the hour prior to the start of the defendant ’s trial, the government interviewed Lopez. During this interview, Lopez stated that he did not know the defe ndant, had never seen the defendant prior to the controlled de livery, and did not expect Barraza to be accompanied by another person during the delivery. Shortly after hearing this statement from Lopez, the prosecutor made his opening remarks to the jury in the defendant’s trial. The prosecutor stated:

This is a case of two drug couriers and their connection. Two mopes taking methamphetamine from Phoe nix, Arizona, to Grand Island, Nebraska. The defendant, Victor Jose Barraza Cazares, was one of his couriers and his connecti on was Rogelio Rios-Lopez.
Jury selection and presentation of the Government’s case lasted two days (June 21 and 22). The defendant presented no ev idence, and the case was submitted to the jury on June 23. On June 24, after the cas e was submitted to the jury but before the jury returned its verdict, the defendant’s attorney learned from Lopez’s attorney that prosecutors had interviewed Lopez. L opez’s attorney stated that Lopez had disclaimed any prior knowledge of, or ac quaintance with, the defendant and denied knowing the defendant would be present at the sale. The de fendant’s attorney notified the court of the statement. In open court, the prosecutor admitted he had obtained the statement from Lopez, the statement was not recorded or conveyed to the defendant’s counsel, and the statement may have been exculpatory. Because the case had already been submitted to the jury, the district court made certain the issue of this potential violation of Brady v. Maryland , 373 U.S. 83 (1963), was preserved for appeal and permitted the jury to continueits deliberations. The jury then returned a verdict of guilty. The defendant moved for new trial, and, in a written opinion, the district court denied the motion.

The defendant’s counsel preserved thr ee other points of alleged error for our review. At trial, Sergeant Mo ra testified regarding the tra ffic stop, search, and arrest.-6- Over a hearsay and confrontation clause obj ection, Sergeant Mora testified that the defendant and Barraza gave inconsistent answers when asked about the purpose of their trip. Second, the defendant request ed a jury instruction that would have expressly stated that the defendant had a constitutional right to remain silent. The instruction actually given was based on Ei ghth Circuit Model Jury Instruction No. 3.05 (2005). Third, the defendant move d for a directed verdict and judgment notwithstanding the verdict, thus preser ving a claim of insufficient evidence.

II. Discussion

Of the four separate issues the defendant raises on appeal, three merit little discussion. Regarding the hearsay/confront ation clause issue, Sergeant Mora did not offer an out of court statement for the truth of the matter assert ed. Fed. R. Evid. 801(c) (defining hearsay). Rather, he explai ned that he noticed inconsistencies in the answers that the two occupants of the car, the defendant and Barr aza, gave during the traffic stop. Sergeant Mora’s testimony dem onstrates he believed one or both of the men lied. It does not demons trate which man he believed to have lied, nor is it an attempt to persuade the jury of the truth of the content of either man’s out-of-court statement. Sergeant Mora also explained th at these inconsistencies contributed to his decision to investigate the two occupants and the car. Accordingly, the statements were admissible to show context for the c ontinued investigation. United States v. Davis , 449 F.3d 842, 847 (8th Cir. 2006) (stating th at a statement is not hearsay if it is admitted to provide context by showi ng why police undertook an investigation).

Regarding the jury instruction issue, the instruction the district court submitted to the jury was based on Eighth Circuit M odel Jury Instruction No. 3.05 (2005), which stated there was no burden of proof on the defendant and the jury could not consider in any way or discuss the fact that the defe ndant did not testify. As mentioned, the defendant had wanted an instruction that would have specifically stated he had a constitutional right to remain silent. A lthough the defendant’s proposed instruction-7- would have been permissible, the actual in struction correctly characterized the law, adequately informed the jury of the defenda nt’s right to remain silent, and explained the impropriety of making adverse inferen ces based on that fact. B & B Hardware, Inc. v. Hargis Indus. , 252 F.3d 1010, 1012 (8th Cir. 2001).

Regarding sufficiency, a reasonable jury could find that the evidence taken as a whole established guilt beyond a reasonable doubt . First, experts testified that the quantity and purity of the methamphetamine in this case was substantial. There were approximately four pounds of methamphetami ne of 98-99% purity and a street value of over $30,000. Officers also testified re garding the nature and mechanics of drug transactions and explained that a transacti on of this scale likely would not have taken place if Barraza arrived accompanied by a co mpanion that the buyer did not expect. Second, the arresting officer testified regarding the defe ndant’s demeanor (including his relief upon being arrested and lack of anger or surprise at the discovery of the drugs), and numerous officers or agents testified regarding the defendant’s cooperation, demeanor, and failure to protest at any time prior to or during his participation in the controlled sale. Third, the arresting officer reported that Barraza’s car had an overwhelming odor. This fact tends to make it less likely that the defendant could have been unaware that contraband was present. Fourth, the defendant’s claim to be traveling to Nebraska for a one-week vacation was inconsistent with the fact that the defe ndant carried no clothing or luggage and only $100. If the jury believed that the defendant lied, it could have inferred that he was dissembling to cover an illegal scheme. Fu rther, because the car was registered in Nebraska a jury could reasonably conclude that the defendant was not telling the truth regarding his intention of making a round-trip visit to Nebraska.

The only element of the offense truly contested on appeal is the defendant’s knowledge of the conspiracy. The defenda nt argues it is impr oper to infer knowledge based on the fact that he was taken to Nebraska and involve d in the controlled delivery. He argues that hedid not consent to participate in the controlled delivery-8- and did not understand what was happening, but rather, was merely shuttled around by officers and agents while in custody following his arrest. His own actions, however, together with the officer’s observation of the successful delivery refute his claim. He was present when a Spanish-sp eaking officer presente d the plan to Barraza, and he was present when Barraza called Lop ez to arrange the delivery. While the evidence regarding the defendant’s knowledge was not so great as to ensure a conviction, it was sufficient and precludes our court from setting aside the verdict. United States v. Smith , 450 F.3d 856, 860 (8th Cir. 2006) (“We will reverse a conviction for lack of sufficient evidence only if no reasonable juror could have concluded beyond a reasonable doubt the government met its burden of proof as to each element of the offense.”).

The Brady issue merits more discussion. The government has an obligation to disclose evidence that is favorable to the accused and material to either guilt or punishment, and this duty extends to impeach ment evidence. United States v. Bagley , 473 U.S. 667, 676 (1985). To show a violation, the defendant must establish that (1) the evidence was favorable to the defendant , (2) the evidence was material to guilt, and (3) the government suppressed ev idence. United States v. Thomas , 940 F.2d 391, 392 (8th Cir. 1991). We review for abuse of discretion the district court’s denial of a new trial based on an alleged Brady violation. United States v. Almendares , 397 F.3d 653, 665 (8th Cir. 2005); United States v. Gary , 341 F.3d 829, 832 (8th Cir. 2003).

Regarding the first requirement, th e statement by Lopez was clearly exculpatory. In fact, the prosecutor essentially admitted this point in open court when he stated that Lopez’s statement “may beexculpatory.” The government now argues that co-conspirators need not know one a nother or know of one another’s existence to be co-conspirators, and therefore the st atement did not bear upon an element of the offense. It is true that personal knowledgeof, or familiarity with, each co-conspirator is not required to show a conspir acy. United States v. Bascope-Zurita , 68 F.3d 1057,-9- 1061 (8th Cir. 1995) (“One does not have to have contact with all of the other members of a conspiracy to be held accountab le as a conspirator.”) . Nevertheless, the statement by Lopez and the question of wh ether the defendant knew Lopez are clearly relevant to the issue of the defendant’s role orparticipation in the conspiracy. The defendant knew Barraza. If th e defendant also knew Lopez it would tend to make it more likely that he was engaged in a cons piracy with the two other men. Further, Lopez’s statement is relevant and exculpat ory to the extent it tends to buttress the defendant’s claim regarding a lack of acquaintance.

Also, when assessing whether the statemen t is exculpatory, it is important to look at the government’s case to see how Lop ez’s statement fits into the trial as a whole. Here, Lopez’s statement would have tied back into the expert testimony presented by the government. The government used an expert to suggest that Lopez, and, in fact, any drug dealer, would not have gone through with the purchase if Barraza had unexpectedly shown up with a pe rson unknown to Lopez. The use of this expert shows that the government not only faile d to disclose the statement, but implied the negative of Lopez’s statement and urged the jury to infer an acquaintance between Lopez and the defendant. Lopez’s statemen t would have been a direct challenge to the expert’s testimony.

Regarding the second requirement, the assessment of materiality requires a weighing of the evidence, not merely iden tification of the non-disclosed statement as helpful or unhelpful to the defendant. “Evi dence is material ‘only if there is a reasonable probability that, had the evidence b een disclosed to the defense, the result of the proceeding would have been di fferent. A “reasonable probability” is a probability sufficient to undermine confiden ce in the outcome.’” United States v. Conroy , 424 F.3d 833, 837 (8th Cir. 2005) (quoting Bagley , 473 U.S. at 682). In other words, “Brady materiality is not evaluated by a sufficiency of evidence test.” United States v. Jones , 160 F.3d 473, 479 (8th Cir. 1998). Here, the government’s case against the defendant was strong. As such, we do not believe that an earlier2 The defendant directs our attention to the fact that, shortly after obtaining Lopez’s statement, the prosecutor made the opening remark quoted above. The remark may be interpreted to mean th at the defendant was Lopez’s contact—an assertion that enjoys no support in the recordand contradicts Lopez’s statement. The remark may also be interpreted to mean that some other person (such as the unknown person who supplied the drugs or Barraza) wa s Lopez’s contact. We mention this fact to note that we considered the prosecutor’s statement and the timing of this statement in our assessment of materiality. The distri ct court properly warned and instructed the jury not to rely upon opening statements as evidence. Accordingly, this potentially prejudicial stray comment does not alter the outcome of our Brady analysis.
-10- revelation of Lopez’s statement would havebeen sufficient to overcome the balance of the evidence and “undermin e confidence in the outcome.” 2

Regarding the third requirement, we c onsider non-disclosed evidence to have been suppressed by the government if (1) th e government failed to disclose it in time for the defendant to use it, Almendares , 397 F.3d at 664 , and (2) the evidence was otherwise unavailable to the defendant. United States v. Zuazo , 243 F.3d 428, 431 (8th Cir. 2001). Clearly the government faile d to disclose Lopez’s statement in time for the defendant to use it. We believe, however, that the evid ence was available and therefore not suppressed. Lopez pleaded guilty on June 20, and the interview where prosecutors obtained Lopez’s statement occurred on the morning of June 21. Defendant’s attorney knew Lopez was repr esented by counsel and knew that Lopez had decided to plead guilty. Defendant’s attorney could have, at any time following Lopez’s decision to plead guilty, contacted Lopez’s counsel to talk to Lopez or to discover that Lopez had talked to prosecutors.

The defendant argues that Lopez’ s statement was “unavailable” for Brady purposes because counsel should not beexpected to investigate a case while trying the case and because a translator would have been necessary to permit defendant’s attorney to talk to Lopez. The defendant al so argues that it was not clear where Lopez was being held. These argumen ts are not without me rit. In fact, we-11- agree that, in general, the ques tion of “availability” under the Brady test should not depend on counsel’s ability to conduct an ongoi ng investigation after a trial starts.

Here, however, the nature of the inform ation contained in Lopez’s statement and the possession of that information by Lopez’s attorney make this case unusual. Lopez stated that he had not previously met the defendant and did not expect the defendant at the transaction. If Lopez truly did not know the de fendant, the defendant would have already known this fact. A ccordingly, all that was unknown to the defendant and his attorney was the fact of Lopez’s statement, not the content of that statement. Further, the f act that prosecutors had inte rviewed Lopez could have easily been discovered with a simp le phone call to Lopez’s attorney. As such, an ongoing investigation during trial was not required to reveal the evidence. Given the unusual nature of the statement at issue and the availability of Lopez’s attorney, who demonstrated his willingness to disclose the statement, we cannot say that the district court abused its discretion when it deniedthe motion for a new trial based on Brady

. Notwithstanding the result in this case, we believe it is important to note that, when the government obtains an exculpatory statement and fails to disclose that statement, the government proceeds at its own risk and places any resulting conviction in jeopardy. Here, we can see no justification for the failure to disclose, and although we ultimately find no abuse of discretion in the denial of the motion for a new trial, our opinion should not be read to suggest that the government acted properly in this

case.
We affirm the judgment of the district court.

COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.

I concur in the court’s opinion regarding the admission of Sergeant Mora’s testimony, the sufficiency of th e evidence, and the jury instructions. I also agree that-12- Victor Jose Barraza-Cazares was not entitle d to a new trial based on an alleged violation of the government’s obligations under Brady v. Maryland , 373 U.S. 83 (1963), to disclose information favorable to the accused that is material to the defense and not otherwise available. If, as Rogelio Rios-Lopez to ld law enforcement officers, he did not know Barraza-Cazares before the c ontrolled drug transaction, then this fact obviously was known to Barraza-Cazares, and the government had no constitutional duty to disclose it to him. United States v. Zuazo , 243 F.3d 428, 431 (8th Cir. 2001); United States v. Wilson , 787 F.2d 375, 389 (8th Cir. 1986). That Rios-Lopez made a statement recounting this fact is not material. The hearsay statement was not admissible at trial, and Barraza-Cazares alr eady knew the substance of the information if it was true.

I decline to join the court’s statement at the conclusion of its opinion that the government had “no justification” for failing to disclose information that was either known to the defendant or immaterial, and its suggestion that the government acted improperly. As the court itself explai ns, the government’s constitutional duty to disclose exculpatory information is limit ed to information that is unknown to the defendant and material to the defense. Ante , at 8-10; see also Kyles v. Whitley , 514 U.S. 419, 437 (1995); United States v. Coppa , 267 F.3d 132, 140-46 (2d Cir. 2001). There is a difference of opinion about whethe r ethical rules adopted in various States do or should impose on prosecutors a duty to disclose broader than what is required by the Due Process Clause, compare , e.g. , In the Matter of Attorney C , 47 P.3d 1167, 1170-71 (Colo. 2002) (reading Colorado Rule of Professional Conduct 3.8(d) consistent with Brady and “declin[ing] to impose inconsistent obligations upon prosecutors attempting to comply with both procedural rules and rules of professional conduct”) with Kyles , 514 U.S. at 437 (stating that standards recommended by American Bar Association call for more di sclosures than required by the Due Process Clause), but the court does not invoke such rules or purport to apply the ethical standards of any State to support its criticism of the prosecution in this case. Cf . NE Gen. R. 1.7(b) (declining specifically to adopt particular codes of professional-13- responsibility or codes of ethics promulgated by others to govern practice in the United States District Court).

Under the constitutional standard discu ssed by the court, it is analytically inconsistent to say that the governme nt complied with its obligations under Brady , and breached no constitutional duty to disclose, but at the same time to suggest that the prosecution had no justification for failing to disclose and did not act properly. I would refrain from including additional commentary that is not supported by the constitutional authorities on which the court relies.

______________________________