In the
United States Court of Appeals For the Seventh Circuit
No. 08-1931
U NITED STATES OF A MERICA, Plaintiff-Appellee, v.
A MEN E. JUMAH, Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:04-cr-00237-1—John W. Darrah, Judge.
A RGUED O CTOBER 7, 2009—D ECIDED A PRIL 1, 2010
Before R IPPLE, K ANNE and SYKES, Circuit Judges. R IPPLE, Circuit Judge. Amen E. Jumah was convicted by a jury of knowing possession of a listed chemical, knowing, or having reasonable cause to believe, that the chemical would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841(c)(2). The district court, acting without the benefit of the Supreme Court’s subse- quent decision in Dixon v. United States, 548 U.S. 1 (2006), granted a motion for a new trial on the ground that the 2 No. 08-1931
jury had been instructed erroneously about the public authority defense. We reversed the district court’s grant of Mr. Jumah’s motion for new trial and remanded the case with instructions to reinstate the jury’s verdict. See United States v. Jumah, 493 F.3d 868, 870 (7th Cir. 2007) (“Jumah I”). On remand, the district court considered Mr. Jumah’s remaining grounds for a new trial. One of those arguments was that the Government had failed to comply with its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). The district court denied the motion for new trial and sentenced Mr. Jumah to 151 months’ imprisonment. For the reasons set forth in this opinion, we affirm in part and reverse in part the judgment of the district court and remand with instructions for re-sentencing.
I BACKGROUND A. From 2001 to 2002, Mr. Jumah worked periodically as a confidential source (“CS”) for the Drug Enforcement Administration (“DEA”). He assisted with undercover investigations into pseudoephedrine trafficking in Chicago and Los Angeles. Mr. Jumah sometimes pro- vided information about past pseudoephedrine transac- tions. However, Mr. Jumah usually brought to the DEA information about a deal that was to occur in the future. The DEA asked Mr. Jumah to sign a United States Department of Justice confidential source agreement. No. 08-1931 3
Under its terms, the DEA authorized him to purchase, while undercover and at the direction of the DEA, con- trolled substances. The agreement also required Mr. Jumah to abide by the instructions of his controlling DEA investigators and not to take any independent action on behalf of the DEA. Mr. Jumah signed three such agreements in 2001 and 2002. On May 8, 2002, while Mr. Jumah was deactivated as a CS, he contacted a DEA agent and informed him that a pseudoephedrine dealer had approached him with an offer to buy 300 cases of pseudoephedrine for $150,000. DEA agents instructed Mr. Jumah to meet with the dealer at a restaurant called Jimmy’s Shishkabob to discuss the deal. While the DEA surveilled the meeting, Mr. Jumah offered to consummate the deal at another location, and the dealer showed that he had the neces- sary funds to do so. When Mr. Jumah and the dealer left the Jimmy’s Shishkabob restaurant, the DEA stopped the car carrying the money and arrested the suspects. The DEA paid Mr. Jumah $29,800 for the information and assistance he provided. The DEA formally reactivated him as a CS several days later. In February 2004, Mr. Jumah attempted to sell Ali Qasem pseudoephedrine for the purpose of making metham- phetamine. Unknown to Mr. Jumah, Qasem was himself a CS who worked with the Los Angeles, California branch of the DEA. According to Qasem, Mr. Jumah initiated the deal. On February 10, 2004, while Qasem was en route to Chicago for a meeting with Mr. Jumah, Mr. Jumah contacted a DEA agent and inquired about 4 No. 08-1931
receiving payment for prior information, unrelated to the developing Qasem deal, that Mr. Jumah had pro- vided. Mr. Jumah did not inform the agent of the pending deal with Qasem. Working with Qasem, the DEA listened to telephone conversations between Mr. Jumah and Qasem and surveilled meetings between them in Illinois from February 13 to 16, 2004. During these conversations, Mr. Jumah told Qasem that he wanted to conduct the pseudoephedrine transaction on a Sunday or Monday because the DEA agents would not be working on those days. On February 16, the day that Mr. Jumah planned to meet Qasem, Mr. Jumah called a DEA agent and asked whether the agent was working that day but said nothing about the pending deal with Qasem. The DEA surveilled additional meetings between Mr. Jumah and Qasem in Illinois on March 1 and 2, 2004. On March 2, Mr. Jumah called a DEA agent, asked whether the agent was working that day and said that he was going to meet with an individual, but gave no details about the identity of the individual or the purpose of the meeting. The DEA agent did not inquire further about the matter. Later that day, Mr. Jumah again called the DEA agent and left a voicemail message stating, “he called me back, and he is going to be in town, in Chicago tonight . . . . And I’ll let you know what’s going on . . . if we have to set up something for tomorrow or Thursday, uh, we’ll see what’s going on.” Tr. at 232, 234, Jan. 26, 2006. Mr. Jumah also stated on the voicemail message, “I am going to meet him and see and see [sic] what’s going on, if he’s, uh, got the cash or not.” Id. at 235. No. 08-1931 5
Mr. Jumah met with Qasem later that day, but Mr. Jumah did not inform the DEA agent that the meeting actually had occurred. During that meeting, Mr. Jumah gave Qasem 1,016 pills containing pseudoephedrine. Qasem promptly turned the pseudoephedrine over to the DEA, which had been conducting surveillance. The DEA then directed Qasem to place a larger order of pseudoephed- rine with Mr. Jumah. Mr. Jumah agreed to sell 300 boxes of pseudoephedrine to Qasem for $165,000 later that night. At approximately 8:00 p.m. on March 2, 2004, Mr. Jumah and Qasem met at a casino in Joliet, Illinois, to complete the deal. The DEA observed the meeting and watched Mr. Jumah leave the casino to pick up the pseudo- ephedrine. When Mr. Jumah returned, purportedly with the pseudoephedrine, the DEA arrested him and searched his vehicle. Inside, the DEA found rock salt that was similar in quantity and appearance to the pseudo- ephedrine Mr. Jumah had agreed to provide Qasem. Upon his arrest, Mr. Jumah waived his Miranda rights and made a series of incriminating statements. He first stated that one of the DEA agents with whom Mr. Jumah had spoken that day had authorized him to conduct the Qasem transaction. He further stated that the DEA agent had given him the pseudoephedrine. Later, Mr. Jumah retracted that statement and said that he had stolen the pseudoephedrine from the DEA several months earlier.
B. On March 11, 2004, a federal grand jury returned a one- count indictment against Mr. Jumah charging him with 6 No. 08-1931
knowingly and intentionally possessing and distrib- uting 1,016 tablets of pseudoephedrine, a List I chemical, knowing and having reason to believe that the pseudo- ephedrine would be used to make methamphetamine, in violation of 21 U.S.C. § 841(c)(2). On April 19, 2004, Mr. Jumah filed a motion for discov- ery. The Government provided some discovery pursuant to Federal Rule of Criminal Procedure 16. Over the next year and a half, the trial date was continued several times until it was scheduled finally to begin on January 23, 2006. On November 8, 2005, Mr. Jumah substituted counsel; the district court denied the new counsel’s request for an additional continuance. Mr. Jumah’s newly substituted counsel then began issuing trial subpoenas to DEA agents.1 On January 9,
1 Specifically, on December 8, 2005, Mr. Jumah issued two trial subpoenas to the DEA Keeper of Records. The first subpoena requested: (1) all names of DEA agents who had contact with Mr. Jumah; (2) the dates of those contacts; and (3) items memorializing those contacts. The second subpoena requested: (1) all documents related to Mr. Jumah; (2) all documents related to Qasem becoming a CS for the DEA; (3) payments made to Qasem by the DEA; and (4) Qasem’s criminal history. On December 27, 2005, Mr. Jumah issued four trial subpoenas to California DEA agents Bradley Clemmer, Ted Salamy, Efren Lapuz and George Newland. The subpoena to Bradley Clemmer sought: (1) the substance of Agent Clemmer’s testimony at trial; and (2) all documents memorializing his contacts with Mr. Jumah, including the dates, times, duration, and nature (continued...) No. 08-1931 7
2006, Mr. Jumah’s counsel also filed a motion for im- mediate disclosure of favorable evidence, requesting that the Government turn over all Brady and Giglio evidence. On January 11, 2006, the Government filed a motion to quash the subpoenas on the ground that the requested documents were not required to be disclosed by the
1 (...continued) of the contacts, as well as Mr. Jumah’s duties. The subpoena to Ted Salamy sought: (1) the substance of Agent Salamy’s testi- mony at trial; (2) all documents memorializing his contacts with Qasem; (3) any statements made by Qasem about his criminal past; (4) all documents memorializing when Qasem became a CS for the DEA; (5) all agreements with Qasem and confidential-source-establishment documents; and (6) payments to Qasem. The subpoena to Efren Lapuz sought: (1) the sub- stance of Agent Lapuz’s testimony at trial; (2) all documents memorializing his contacts with Qasem; and (3) all documents relating to payments made to Qasem by DEA in the investiga- tion of Mr. Jumah. The subpoena to George Newland sought: (1) all documents memorializing his contacts with Qasem relating to the Jumah investigation; and (2) all payments made to Qasem by DEA in the Jumah investigation. On January 6, 2006, Mr. Jumah issued another trial subpoena to FBI Agent John Diwik. The subpoena to Agent Diwik sought Agent Diwik’s testimony at trial regarding: (1) the first date Mr. Jumah acted as a CS for the FBI; (2) the number of investiga- tions Mr. Jumah worked on; (3) how much Mr. Jumah was paid for his work; (4) the method, manner and times Agent Diwik communicated with Mr. Jumah; and (5) a list of agencies that Mr. Jumah worked for at the direction of or on the recom- mendation of Agent Diwik. 8 No. 08-1931
discovery rules, were irrelevant to the case or lacked evidentiary value. R.68. The Government also stated that it had met its obligations under Brady but that its review for the Giglio material was still ongoing. Specifically, the Government stated, Jumah was a DEA [CS] in Chicago and Los An- geles, California and an FBI [CS] in Chicago, and Qasem was a [CS] in Riverside, California; San Diego, California; and Chicago, Illinois. The gov- ernment has produced all Giglio materials con- tained in Jumah’s and Qasem’s DEA [CS] files in Chicago and will produce by January 12, 2006 all Giglio materials contained in Jumah’s FBI [CS] file. The [CS] files in Los Angeles, Riverside, and San Diego, however, have not been fully reviewed. These files cannot be sent to Chicago and, there- fore, must be reviewed by attorneys in those cities. The government is working diligently to get this review completed, but it has not at this time been done. R.68 at 7. The Government also requested, with Mr. Jumah’s consent, that trial be continued to allow completion of the Government’s Giglio search. The next day, on January 12, 2006, the district court held a hearing to consider these issues. The district court denied the requested continuance. The district court stated, “I’m amenable to anything that needs my cooperation to see that this favorable evidence, if in fact that’s what it is, is produced, but we are going to trial on this case on January 23rd.” Tr. at 4, Jan. 12, 2006. No. 08-1931 9
At the hearing, the Government assured the district court that it had produced all materials it was obligated to produce pursuant to Rule 16, 18 U.S.C. § 3500 and Brady. See Tr. at 7-8, Jan. 12, 2006. However, the Govern- ment reiterated that it needed more time to complete its Giglio search and production. Specifically, it stated, The [CS] files in Chicago, both Mr. Juma’s [sic] file with the FBI and Mr. Jumah [sic] and Mr. Qasem’s file with the DEA have been reviewed and all Giglio materials that were within those files have been turned over to the defense. With regard to the files in California, a DEA attorney in California is reviewing, is going to each of those cities and is reviewing those files. That is currently being undertaken. Id. at 8-9. The district court held that the Government had complied with its Brady obligations and directed the Government to complete its search for any Giglio respon- sive documents in its California offices by the following Tuesday. Id. at 12. The district court then took up the Government’s motion to quash the subpoenas. Mr. Jumah maintained that he was entitled to the entire file that the DEA kept con- cerning him and Qasem, including all records of all statements made by Mr. Jumah and Qasem related to prior investigations in which they had participated. Mr. Jumah maintained that those materials would be probative on the issue of his state of mind during the February 2004 incident and his course of conduct as a DEA CS. Mr. Jumah also suggested that he needed to 10 No. 08-1931
review the files to disprove the DEA’s position that it never had provided samples of pseudoephedrine to Mr. Jumah for his work in any investigation. The Gov- ernment opposed the request and maintained that Mr. Jumah was not entitled to materials beyond those that qualified as Rule 16, § 3500, Brady or Giglio materials and reiterated that this material already had been pro- duced for the most part. The Government also stated that no documents existed concerning the distribution of pseudoephedrine samples to Mr. Jumah because the DEA in Chicago had confirmed that such distribution never had occurred. The district court granted the motion to quash all the trial subpoenas, except the subpoena of Agent DeWitt because Mr. Jumah intended to call him at trial. Tr. at 23- 24, Jan. 12, 2006. As to the other subpoenas, the district court stated that Mr. Jumah was merely seeking materials “derivative from Brady and Giglio” materials that the Government already had produced or was in the process of identifying and producing. Id. at 11. The district court stated that Mr. Jumah was not entitled to “every piece of minutia in the conduct of government agents and people working for them in the course of an investigation.” Id. at 19-20. However, the district court directed that the Government contact anyone Mr. Jumah had worked for as an informant, including the Chicago and California DEA offices, to inquire, again, about the existence of any documents showing that the DEA had provided Mr. Jumah with pseudoephedrine samples. Id. at 17-18. Finally, the district court noted that Mr. Jumah No. 08-1931 11
had to “rely on the bonafides of the government” with respect to its representations about the existence of any remaining Brady and Giglio material. Id. at 16-17. On January 17, 2006, the Government apparently sent Mr. Jumah a letter confirming that it had completed its search for Giglio materials in the California DEA offices and found none. See Appellee’s Br. 17. That letter was not made part of the record. At a pre-trial conference on January 18, 2006, the Gov- ernment again brought up the subpoenas issue and the district court foreclosed further discussion of the matter. The following colloquy occurred: [THE GOVERNMENT]: As the court pointed out at the last hearing, with regard to the defense’s subpoenas, the information that was requested in those subpoenas, as the government understood it from the court’s ruling, was determined to be irrelevant because in fact whether Mr. Jumah— THE COURT: Let me say this, that the basis of my ruling is what I said in the courtroom last week, and both of you have taken a little bit of liberty in characterizing to your advantage what you believe would be, I think, a little extrapolation of what I said. So what I said I said, and that’s on the record last week, and those are the reasons for my ruling. See Tr. at 14, Jan. 18, 2006. Later in that hearing, the Gov- ernment reminded the district court that it had directed the Government to inquire specifically into whether any 12 No. 08-1931
federal agency had ever provided Mr. Jumah with pseudoephedrine samples. The Government represented that its review of Mr. Jumah’s files in Chicago and Los Angeles produced no documents showing that Mr. Jumah ever had been provided with pseudoephed- rine samples. Id. at 20. On or around January 20, 2006, during an interview with Qasem, the Government learned for the first time that Qasem had conducted two pseudoephedrine deals with Mr. Jumah in 2001. The Government considered that information to be Giglio material and disclosed it to Mr. Jumah by fax on January 21, 2006. See Appellee’s Br. 17; R.107 at 13. Also, on January 20, 2006, the Government filed a motion in limine to permit the admission at trial of evidence and arguments concerning those drug deals—i.e., Jumah’s prior uncharged criminal acts—as inextricably intertwined with the charged offense. R.87. The district court conditionally precluded the evidence without prejudice to renewal of the motion at trial. R.136-2; see also Appellee’s Br. 18. Trial was held, beginning one day early, on January 25, 2006. At trial, the Government introduced testimony from Chicago DEA agents that Mr. Jumah was not an active CS at the time of the deal with Qasem and that Mr. Jumah had acted independently and without authority from the DEA to possess and sell pseudo- ephedrine. DEA agents testified about prior sting opera- tions in which Mr. Jumah had participated, including the Jimmy’s Shishkabob incident. The DEA agents explained that under no circumstances would Mr. Jumah have been No. 08-1931 13
allowed to sell pseudoephedrine without the DEA’s knowledge and then benefit from information provided therefrom. The DEA agents also described the events that occurred on and leading up to March 2, 2004. Qasem testified as a Government witness about the March 2004 events and stated that he had known Mr. Jumah for approximately fourteen years. See Trial Tr. at 312, Jan. 26, 2006. On cross-examination of Qasem, Mr. Jumah’s counsel did not explore their prior relationship in any detail.2 Mr. Jumah’s defense was that he reasonably believed he had authority to enter into the pseudoephedrine deal with Qasem. Mr. Jumah read stipulations into evidence showing that he was employed as a DEA CS from time-to- time, that Mr. Jumah made several phone calls to the DEA agents on and around March 1-2, 2004, and that Mr. Jumah knew that Qasem was traveling to Illinois in
2 On cross-examination of Qasem, defense counsel began asking about Qasem’s prior relationship with Mr. Jumah and how long the two men had known each other. Trial Tr. at 414, Jan. 27, 2006. The attorney for the Government objected and stated, “I just want to notify the court that if [defense counsel is] going to go into the fact that [Qasem] doesn’t trust [Mr. Jumah] and why he doesn’t trust [Mr. Jumah], that’s what I intend on asking on cross examination [sic], and I believe she’s opened the door at this point.” Id. at 415. The district court overruled the objection. Id. However, defense counsel moved on to another line of questioning and did not ask Qasem additional questions about his prior relationship with Mr. Jumah. 14 No. 08-1931
February 2004. Mr. Jumah did not testify at trial. Nor did he introduce evidence showing that the Govern- ment provided him with pseudoephedrine samples. Neither party offered evidence showing that Mr. Jumah and Qasem previously had conducted drug deals with each other. On January 27, 2006, the jury convicted Mr. Jumah on the one count of distributing 1,016 pills containing pseudoephedrine. As we have noted earlier, the district court granted a new trial because it believed that the jury had been instructed erroneously on the public authority defense. We reversed that ruling, see Jumah I, 493 F.3d at 878-79, and, on remand, the district court proceeded to consider Mr. Jumah’s other proffered grounds for a new trial. Among them was the contention that the Government had failed to disclose documents pursuant to its obligations under Brady v. Maryland, 373 U.S. 83, 87 (1963), and Giglio v. United States, 405 U.S. 150, 153 (1972). See R.101. On January 29, 2008, the district court denied the motion, ruling that Mr. Jumah failed to show that the Government had withheld any evidence that qualified as Brady or Giglio material. See R.178 at 4. On April 9, 2008, the district court sentenced Mr. Jumah to 151 months’ imprisonment. See Tr. at 23, Apr. 9, 2008; R.183. The district court calculated the Guidelines ac- cording to the gross weight of the pseudoephedrine pills, instead of the weight of the pure drugs contained therein. No party objected to the district court’s calcula- tions, which were in accordance with the Presentence No. 08-1931 15
Investigation Report (“PSR”) calculations. On April 16, 2008, Mr. Jumah timely appealed.
II DISCUSSION A. We first consider Mr. Jumah’s claim that his right to due process of law as guaranteed by the Fifth Amendment was violated by the Government’s withholding of evi- dence. We review a district court’s decision that evidence need not be produced under Brady or Giglio for an abuse of discretion. See United States v. Olofson, 563 F.3d 652, 661 (7th Cir. 2009). Mr. Jumah primarily contends that the Government conducted an inadequate search for Brady and Giglio material in its possession, both in Illinois and in Cali- fornia. Mr. Jumah maintains that he was entitled to receive his complete CS file from the DEA and FBI. He also contends that he was entitled to receive Qasem’s complete CS file and the DEA’s debriefings of Qasem in connection with the investigation of Mr. Jumah. Ap- pellant’s Br. 22, 29. Mr. Jumah believes that the CS files would have shown that the DEA provided him with pseudoephedrine samples in the past. He also states that the CS files would have supported his theory that, even when he was deactivated, he routinely would obtain information regarding possible criminal conduct and bring it to the attention of the DEA agents “after it ripened into a possible sting.” See id. at 22. He believes that the CS files would show that, prior to 2004, Mr. Jumah had 16 No. 08-1931
participated in investigations into Qasem’s narcotics dealings and that “Qasem was a long-standing target of Jumah’s work as a CS.” Id. at 22-23, 29.3 Mr. Jumah contends that the Government cannot avoid its duties by asserting that relevant materials are not in its possession. Id. at 27 (citing Crivens v. Roth, 172 F.3d 991, 996 (7th Cir. 1999)). He further contends that “[w]here evidence is in the exclusive control of the government or has been destroyed by the government, a defendant may establish that the government suppressed excul- patory evidence without specifically identifying the allegedly suppressed evidence, if the defendant makes some showing that evidence was suppressed.” Id. at 28 (citing United States v. Driver, 798 F.2d 248, 251 n.1 (7th Cir. 1986)). Mr. Jumah notes that in Pennsylvania v. Ritchie, 480 U.S. 39, 58 n.15 (1987), “the Supreme Court held that a defendant, charged with the rape and incest of his daughter, was entitled to have the state’s Children and Youth Services file on his daughter reviewed by the trial court to determine whether it contained Brady infor-
3 Mr. Jumah also intimates that the district court committed reversible error by denying the Government’s motion for a continuance. See Appellant’s Br. 27. However this argument is not pursued seriously in Mr. Jumah’s briefing; thus, we treat it as waived. Also, at oral arguments, Mr. Jumah main- tained that the district court erred by limiting the scope of the Government’s search of its California files. We consider that argument to be part and parcel of Mr. Jumah’s argument that his right to due process of law was violated by the Government’s failure to turn over all Brady and Giglio responsive materials. No. 08-1931 17
mation.” Appellant’s Br. 30 (describing Ritchie). Finally, Mr. Jumah contends that he particularly deserved to receive Qasem’s file and the DEA’s debriefings of Qasem because Qasem provided unverified testimony about what was said in the conversations between Mr. Jumah and Qasem. Id. at 32 (quoting United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)). The Government reiterates that it completed its review of Mr. Jumah’s and Qasem’s CS files, including the Califor- nia files, by January 17, 2006, and found no Brady or Giglio material other than what it turned over. Appellee’s Br. 19. The Government maintains that Mr. Jumah now speculates that additional responsive documents exist in the CS files. Although the Government denies that such documents exist, it further maintains that Mr. Jumah “is not entitled to scour government files in the hopes of finding Brady/Giglio material.” Id. (citing United States v. Phillips, 854 F.2d 273, 277 (7th Cir. 1988)). The Govern- ment concedes that an in camera inspection of Gov- ernment files is sometimes appropriate, but notes that Mr. Jumah never asked for an in camera inspection of the records in this case. Id. at 20-21. Finally, in response to Mr. Jumah’s argument with respect to specific documents, the Government asserts that: (1) it never gave pseudo- ephedrine samples to Mr. Jumah and did not withhold any documents showing otherwise, id. at 21, 26; (2) its files do not contain any documents showing that Mr. Jumah and Qasem had engaged in two previous pseudo- ephedrine deals, particularly because the Government learned of those deals from Qasem only on the eve of trial and alerted Mr. Jumah accordingly, id. at 23; and (3) it 18 No. 08-1931
“gave the defendant all documents related to Qasem’s participation in the investigation of the defendant,” including documents titled “debriefings” and those titled “case status reports,” id. at 24. In Brady, 373 U.S. at 87, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process of law where the evidence is material either to guilt or to punish- ment irrespective of the good faith or bad faith of the prosecution.” The Supreme Court further held in Giglio, 405 U.S. at 153, that any material evidence which might undermine the reliability of a government wit- ness must be turned over to a defendant. In other words, a new trial is required if the evidence at issue is (1) favor- able, (2) suppressed and (3) material to the defense. See United States v. Wilson, 237 F.3d 827, 832 (7th Cir. 2001). “[E]vidence is material only if there is a reason- able probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985) (Blackmun, J., concurring); Kyles v. Whitley, 514 U.S. 419, 434 (1995) (discussing the Bagley standard). “Reason- able probability” does not mean something greater than 50% but rather “whether in . . . [the] absence [of the evidence, the defendant] received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. The defendant has the burden to establish that a Brady or Giglio violation occurred. See Wilson, 237 F.3d at 832. However, prosecutors “have an affirmative duty to dis- No. 08-1931 19
close such evidence and a duty to ‘learn of any favorable evidence known to the others acting on the govern- ment’s behalf in the case, including the police.’ ” Crivens v. Roth, 172 F.3d 991, 996 (7th Cir. 1999) (quoting Kyles, 514 U.S. at 432). Thus, while “[p]rosecutors may not simply claim ignorance of Brady material,” id. at 996, a defendant cannot demand a new trial based on “mere speculation” or “unsupported assertion[s] that the gov- ernment suppressed evidence,” United States v. Driver, 798 F.2d 248, 251 (7th Cir. 1986). In light of this standard, we cannot agree with Mr. Jumah that the Government conducted an inadequate search for responsive Brady or Giglio material. As an initial matter, Mr. Jumah was not entitled to receive his entire CS file or government files concerning Qasem. See United States v. Philips, 854 F.2d 273, 278 (7th Cir. 1988) (“[W]e hasten to point out that Brady does not grant criminal defendants unfettered access to government files.”).4 Rather, he was entitled to receive any documents materi- ally favorable to him or which might undermine the reliability of witnesses. The Government conducted a sufficient search of its files for documents falling into that category. As of the pre- trial hearing on January 12, 2006, the Government repre- sented that it had produced all Brady material in its possession. The district court accepted the Government’s
4 At least with respect to documents concerning Qasem’s participation in the investigation into Mr. Jumah, the Govern- ment claims that it actually produced its entire file. See Appel- lee’s Br. 24-25. 20 No. 08-1931
representation and reminded Mr. Jumah that, without allegations of specific pieces of evidence that had been withheld, he had to rely on “the bonafides of the govern- ment.” See Tr. at 16-17, Jan. 12, 2006. At that hearing, however, the Government indicated that it still needed to complete a review of its California files for Giglio material, and the district court urged the Government to expedite the search. Then, at the January 18 conference, the Government assured the district court that it had completed its review of the California files and had found no responsive docu- ments. The record is clear that the Government com- pleted its search of the California files. The Government referred to its search of the California files for documents specifically related to past instances of distribution of pseudoephedrine to Mr. Jumah and informed the district court that it had found none. Moreover, the record cannot be fairly read as reflecting that the Gov- ernment, in searching for this information in its files, was oblivious to its broader duty to disclose any other excul- patory or impeachment material. Indeed, throughout its filings before the district court and this court, the Government has maintained that it conducted a thorough search of all its files in all offices for Brady and Giglio material and withheld nothing.5
5 We have no need to consider the Government’s contention, made in its brief apparently for the first time, that it sent Mr. Jumah a letter confirming that it had completed its search for Giglio materials in the California DEA files on January 17, (continued...) No. 08-1931 21
If Mr. Jumah believed that he needed access to his and Qasem’s entire DEA files, he could have requested that the district court undertake a review in camera of the Government’s files. Cf. Ritchie, 480 U.S. at 58 n.15 (ex- plaining that to obtain an in camera inspection from the district court, the defendant must “at least make some plausible showing” that documents in the government’s possession contain information “both material and favor- able to his defense” (internal quotation marks omitted)).6
5 (...continued) 2004. See Appellee’s Br. 17. This letter is not in the record, and we base our decision only on the hearing and conference transcripts available to us. 6 In Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987), the Supreme Court outlined a general standard for determining when to grant an in camera inspection of governmental documents for Brady/Giglio responsive material. The Court explained that a defendant “may not require the trial court to search through [a governmental] file without first establishing a basis for his claim that it contains material evidence.” Id. at 58 n.15; see also id. at 57 (“ ’[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been differ- ent.’ ” (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Whether the defendant establishes such a basis may depend on “the degree of specificity of [the defendant’s] request.” Id. at 58 n.15. A defendant must “at least make some plausible showing” that the withheld material is “both material and favorable to his defense.” Id. (internal quotation marks omitted). “[M]ere speculation that a government file might contain Brady material is not sufficient.” United States v. Bland, 517 F.3d (continued...) 22 No. 08-1931
Such a review is the accepted procedure for resolving legitimate doubt about the existence of undisclosed material and one that balances the defendant’s important need for access to potentially relevant material with the Government’s valid interest in protecting confiden- tial files and the integrity of pending investigations. See Phillips, 854 F.2d at 278.7 Mr. Jumah did not make such a request of the district court and appears to have dropped the matter after the January 18, 2004 conference. The district court certainly was not obligated to conduct an in camera review sua sponte. Mr. Jumah’s theory that the Government withheld Brady and Giglio material is rendered all the more specula- tive by the evidence before us in the record. There was no evidence that the DEA ever provided Mr. Jumah with pseudoephedrine samples in the past. Mr. Jumah had ample opportunity to cross-examine the DEA agents who testified as Government witnesses about this matter and was unable to elicit any testimony supportive
6 (...continued) 930, 935 (7th Cir. 2008). Courts have applied this “plausible showing” standard in cases where the Government opposed a defendant’s request for an in camera review. See, e.g., Davis v. Litscher, 290 F.3d 943, 947-48 (7th Cir. 2002); United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002); Riley v. Taylor, 277 F.3d 261, 301 (3d Cir. 2001); Love v. Johnson, 57 F.3d 1305, 1313-15 (4th Cir. 1995). 7 Of course, the district court is under no independent duty to review government files for potential Brady material. See Bland, 517 F.3d at 935. No. 08-1931 23
of his position. Nor was Mr. Jumah able to establish a pattern of obtaining information regarding criminal conduct and bringing it to DEA agents only after it “ripened into a possible sting.” See Appellant’s Br. 22. Indeed, the record demonstrates that the DEA did not permit Mr. Jumah to engage in actual pseudoephedrine deals without its close supervision and direction. Finally, we have no reason to believe that the Government main- tained records about Qasem’s past that would have been helpful to Mr. Jumah. Notably, Mr. Jumah had an opportunity to cross-examine Qasem about their prior relationship and failed to establish that they had had a pattern of drug dealings in the past. See supra note 2. We have stated that, when evidence is in the exclusive control of the Government or has been destroyed by the Government, a defendant may establish that the Government suppressed exculpatory evidence without specifically identifying the allegedly suppressed evidence. See Driver, 798 F.2d at 251 n.1. On the other hand, we have also stressed that unsupported assertions that the Government has suppressed evidence are insufficient to make out a Brady or Giglio violation. Id. at 251; see also United States v. Andrus, 775 F.2d 825, 843 (7th Cir. 1985) (“A due process standard which is satisfied by mere specula- tion would convert Brady into a discovery device and impose an undue burden upon the district court.” (internal quotation marks omitted)). We must conclude, on the record before us, that Mr. Jumah’s assertions remain unsupported. His failure to ask for an in camera inspec- tion of the Government’s records further counsels against 24 No. 08-1931
any relief from this court. The district court committed no error.
B. Mr. Jumah also contends that the district court erred in the imposition of the sentence. We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. See United States v. Turner, 400 F.3d 491, 500 (7th Cir. 2005); see also United States v. Garcia, 413 F.3d 201, 221-24 (2d Cir. 2005) (explaining the standard of review and why the clear error standard of review for factual findings applies even though the ultimate issue is reasonableness). When no objection to sentencing guidelines calculations is made at trial, we review those calculations for plain error. See United States v. Jaimes-Jaimes, 406 F.3d 845, 847-49 (7th Cir. 2005). Under plain-error review, the defendant must show that (1) there was error, (2) it was plain, (3) it affected his substantial rights and (4) the court should exercise its discretion to correct the error because it seri- ously affected the fairness, integrity or public reputation of the judicial proceedings. See United States v. Olano, 507 U.S. 725, 732-35 (1993); Jaimes-Jaimes, 406 F.3d at 847-49.
1. At trial, the parties stipulated that Mr. Jumah had distributed approximately 1009.4 tablets of pseudo- ephedrine; the parties also accepted a chemist’s report weighing the tablets at approximately 247.9 grams. Trial No. 08-1931 25
Tr. at 170-71, Jan. 25, 2006.8 In preparation for sentencing, the probation officer prepared a PSR that calculated Mr. Jumah’s base offense level as 32. This calculation was pursuant to U.S.S.G. § 2D1.11(d)(6) and based on the assumption that the total weight of the pseudoephedrine pills was 253.9 grams.9 However, the PSR did not con- sider the fact that the chemist’s report also calculated the total weight of pure drug within the pills to be 60.47 grams. See Gov’t App. at 25. The sentencing hearing was held on April 9, 2008. On two occasions, Mr. Jumah’s counsel stated that he did not object to the calculations in the PSR. See Tr. at 3, 7, Apr. 9, 2008. Hearing no objection, the district court accepted the calculations and findings of the PSR. Id. at 7-8. The district court determined that Mr. Jumah’s base offense level was 32 and that the two-level obstruction of justice enhancement applied, bringing Mr. Jumah’s base offense level up to 34. Based on that level and Mr. Jumah’s crimi- nal history category of I, the district court determined that Mr. Jumah’s Guideline range was 151 to 188 months’ imprisonment. Id.
8 The parties now agree that the stipulation was slightly incorrect. Based on the chemist’s report forming the basis of the stipulation, the total gross weight of the tablets was 253.9 grams. See Gov’t App. at 25. Despite this inaccuracy in the stipulation, no additional factual hearing is needed since this unobjected to, documentary evidence is in the record. 9 The PSR utilized the 2007 version of the Guidelines. 26 No. 08-1931
In his sentencing memorandum and at the sentencing hearing Mr. Jumah urged the district court to impose a lower sentence for several reasons. Mr. Jumah asserted that, because of his history of cooperation with the Gov- ernment, he would suffer the risk of physical harm in prison. He urged the district court to depart from the Guidelines because, after serving his prison term, he likely would be deported to Israel; he believed that he would face a particular physical danger there because of the presence of individuals whom he had helped prose- cute. He also asked the district court to consider that he would not be permitted to serve the last ten percent of his sentence in community confinement due to his immi- grant status. He stressed his years of cooperation with the federal government and highlighted a letter from a DEA agent to the district court stating that Mr. Jumah was hardworking and “a man of his word,” who had earned the agent’s trust. R.181, Ex. 1. Finally, Mr. Jumah informed the district court that, during his time in prison, he had taken educational courses offered by the prison. The Government disputed the relevance or factual accu- racy of some of those characteristics. After calculating the Guidelines sentence, the district court stated that it had considered the nature of the offense and the fact that Mr. Jumah’s conduct “resulted or could have resulted in the injury to other people that were going to use these drugs that [Mr. Jumah was] attempting to distribute.” Tr. at 21, Apr. 9, 2008. The district court then stated that it had considered “the need for a sentence to provide just punishment, adequate deterrence and protection to the public . . . [and No. 08-1931 27
Mr. Jumah’s] history and characteristics.” Id. Taking those considerations into account, the district court stated that “a sentence within the sentencing guideline range is necessary.” Id. The district court then considered some of the unique characteristics raised by Mr. Jumah. Mr. Jumah’s assertion that he would suffer the risk of physical harm in prison was not supported by “any reliable information . . . [and was] contrary to [his] recent history since coming to the attention of the Court.” Id. Mr. Jumah’s assertion that he would be de- ported to a place that presented a physical danger to him was not a proper consideration in fashioning a sen- tence and, in any event, was a problem of Mr. Jumah’s own making because he had violated immigration laws. Finally, the district court stated that it thought that “the fact that [Mr. Jumah] will not be permitted to serve the last ten percent of [his] sentence with some kind of com- munity confinement . . . supports a sentence at the low end of the guidelines.” Id. at 22. Therefore, the district court sentenced Mr. Jumah to 151 months’ imprisonment. Id. at 22-23. On April 21, 2008, Mr. Jumah filed a pro se Federal Rule of Criminal Procedure 35 motion for correction of a sen- tence resulting from an arithmetical, technical, or other clear error. R.190.10 On August 26, 2008, the district court
10 Initially, the Rule 35 motion did not specifically reference the difference between the weight of the total tablets and the weight of the pure drugs within them. See R.190. However, (continued...) 28 No. 08-1931
dismissed the motion for lack of subject matter jurisdic- tion. R.216.
2. Mr. Jumah now submits that the district court com- mitted two reversible errors during sentencing. First, Mr. Jumah contends that the district court relied on the wrong weight of the pseudoephedrine when calculating his base offense level; instead of using the amount of total weight of the pseudoephedrine tablets, the district court should have used the weight of pure drug within the tablets pursuant to U.S.S.G. § 2D1.11, note (C). See United States v. Goodhue, 486 F.3d 52, 59 (1st Cir. 2007). Mr. Jumah contends that he objected to the district court’s calculations in his Rule 35 motion. Second, Mr. Jumah contends that the district court gave no mean- ingful consideration to the § 3553(a) factors, including those specifically raised by Mr. Jumah in his sentencing memorandum and at his sentencing hearing. The Government contends that Mr. Jumah’s Rule 35 motion was improper and untimely, and thus his first
10 (...continued) Mr. Jumah, through appointed counsel, supplemented the motion on August 11, 2008, and thereby disputed the district court’s calculation of the Guidelines based on the weight of the pseudoephedrine tablets. See R.212. In that supplemental memorandum, Mr. Jumah also stated that he had mailed his original Rule 35 motion “within the prescribed time limit.” Id. at 1 n.2. No. 08-1931 29
objection was not preserved. Nevertheless, the Govern- ment admits that the district court committed plain error by basing its Guidelines calculations on the gross weight of the tablets, instead of the weight of the drugs within them. The Government opposes Mr. Jumah’s second contention and maintains that the district court adequately considered the § 3553(a) factors, as well as the unique factors Mr. Jumah raised in his sentencing memorandum and at the sentencing hearing.
a. We begin by noting that both parties now agree that it was plain error for the district court to use the gross weight of the pseudoephedrine tablets in calculating Mr. Jumah’s sentence. Compare Appellee’s Br. 30, with Appellant’s Reply Br. 2. We agree. The Guidelines require district courts to calculate the base offense level using the weight of the recovered pseudoephedrine contained in the tablets, not the weight of the entire tablet. See U.S.S.G. § 2D1.11, note (C). Thus, there was plain error in the calculations. The error affected Mr. Jumah’s substantial rights because, had the district court calculated the base offense level using the weight of the pure drugs, Mr. Jumah would have been entitled to the base offense level of 28 and, with the addition of the two-level enhancement, a total offense level of 30. With a total offense level of 30 and criminal history cate- gory of I, Mr. Jumah’s Guideline range should have been 97 to 121 months’ imprisonment, rather than the 151 to 188 months’ imprisonment range calculated by the 30 No. 08-1931
district court. We shall exercise our discretion and remand this case to the district court for resentencing because, as both parties agree, the error seriously affected the fairness and integrity of the judicial pro- ceedings before the district court.
b. Our examination of the record convinces us that the district court did not err otherwise with respect to its calculations or its statement of reasons. The district court explicitly stated that it had considered the § 3553(a) factors during the sentencing hearing. It also considered Mr. Jumah’s history and personal characteristics. See Tr. at 21, Apr. 9, 2008. Although the district court did not state specifically that it had considered Mr. Jumah’s history of cooperation with federal authorities, the DEA agent’s letter or Mr. Jumah’s completion of educational courses while in prison, we believe the record sufficiently indicates that the district court took these factors into consideration in fashioning its sentence. See United States v. Martinez, 520 F.3d 749, 752-53 (7th Cir. 2008) (holding that the district court need not make factual findings as to each of the sentencing factors but the record must show that the court considered them); United States v. Dale, 498 F.3d 604, 611-12 (7th Cir. 2007) (same). Indeed, its consideration of the pertinent factors appears compre- hensive and thoughtful. In light of the district court’s explicit consideration of several of Mr. Jumah’s charac- teristics and its statement that it had considered Mr. Jumah’s “history and characteristics,” the district No. 08-1931 31
court’s statement of reasons was adequate. See Tr. at 21, Apr. 9, 2008.
Conclusion For the reasons stated in this opinion, we affirm in part and reverse in part the judgment of the district court and remand this case to the district court for re-sentencing. The district court shall recalculate the Guidelines based on the weight of the pure drugs within the pseudoephedrine tablets and impose a sentence accordingly. No other aspect of the sentence is subject to further action. A FFIRMED in part; R EVERSED and R EMANDED in part with INSTRUCTIONS
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