NOT RECOMMENDED FOR PUBLICATION File Name: 25a0553n.06
Case No. 24-1809
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 03, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff - Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) EASTERN DISTRICT OF MICHIGAN RICARDO ZAMORA, ) Defendant - Appellant. ) OPINION ) )
Before: SUTTON, Chief Judge; GIBBONS and WHITE, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Ricardo Zamora appeals his conviction for
conspiracy to distribute five kilograms or more of cocaine. On appeal, Zamora raises at least seven
issues. He argues that he is entitled to a new trial because (1) the district court abused its discretion
in denying his pro se motion to “disqualify” his counsel filed the day before trial; (2) the district
court erred in denying his motion for a judgment of acquittal because there was insufficient
evidence to sustain his conviction; (3) the district court erred in denying his motion for a new trial
based on allegedly false testimony elicited by the government; (4) the district court erred in
denying his motion for a new trial based on the presentation of evidence concerning his prior
criminal history; (5) the government withheld Brady evidence; (6) the district court abused its
discretion when it denied his motion for mistrial after it allegedly prejudiced the jury by referring
to Zamora as guilty during voir dire; and (7) the district court erred in admitting certain testimony
and evidence. Some of Zamora’s arguments were not properly or timely raised before the district No. 24-1809, United States v. Zamora
court. Analyzing each of his arguments under the appropriate standard of review, we affirm his
conviction.
I.
In July 2020, a grand jury indicted Ricardo Zamora, alleging conspiracy to possess with
intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841 and 846.
The indictment alleged that Zamora participated in the drug conspiracy between March 2016 and
August 2017. Zamora pled not guilty on June 4, 2021. By stipulation of both parties, trial was
rescheduled four times, from an original date in August 2021 to July 2022. Before trial, the
government filed a notice of its intent to seek a sentencing enhancement based on a prior
conviction, as required by 21 U.S.C. § 851.
On July 6, 2022, Zamora moved to replace his attorney, Elias J. Escobedo, in a pro se
“Motion to Disqualify Counsel,” describing a “breakdown in communication and relationship.”
DE 35, Mot. to Disqualify Counsel, Page ID 151, 153–54. Zamora filed the motion the night
before trial began. He alleged that Escobedo had only visited Zamora three times while preparing
for trial and that Zamora and his family had unsuccessfully tried to contact Escobedo to no avail.
Zamora further asserted that Escobedo had failed to carry out pretrial litigation and investigation,
including filing a motion to suppress, and had not allowed Escobedo to review “flash drive material
related to his case,” his grand jury transcripts, or any Jencks material. Id. at Page ID 152. And,
although Escobedo and Zamora both spoke Spanish, Zamora alleged that he could not understand
Escobedo’s explanation of the government’s plea offer and its discovery material, until “[j]ust
recently” when he “was able to find another prisoner who was able to translate his Discovery
Material[s].” Id. at Page ID 151–52.
-2- No. 24-1809, United States v. Zamora
The next day, the court addressed Zamora’s motion for new counsel before conducting voir
dire. The prospective jurors were not present. Judge Stephen J. Murphy III1 was critical of the
motion from the start and became more so as his discussion with Zamora (conducted through a
Spanish language interpreter) continued.
Judge Murphy sharply questioned Zamora regarding the author of the motion and whether
he had threatened or paid someone in prison to draft it. Judge Murphy accused Zamora of lying
about his proficiency in English. He labeled the motion a “chiste” and a waste of the court’s time.2
DE 64, Tr. Vol. 1, Page ID 775. After asking Escobedo about the allegations in the motion and
hearing Escobedo say they were false, Judge Murphy stated that Escobedo was trustworthy and
experienced and became even more irate with Zamora. Judge Murphy asked Escobedo if he agreed
that Zamora’s motion was a “chiste completamente.” Id. at Page ID 778. He then asked Zamora:
“You still think [Escobedo]’s doing a bad job. . . or would you rather rely on your chiste friend in
the lockup who you don’t know the name of? Yeah, you better bring something better if you’re
going to try this nonsense on the day before trial, I can tell you that right now.” Id. at Page ID
780.
Next, Judge Murphy instructed the government to prosecute Zamora for obstruction of
justice and stated:
We have two lies within a document filed on the docket of the United States District Court. He’s lying about who did it and who said it and what his understanding was. And after this trial is over, guilty or not guilty, I want this man prosecuted for an obstruction of justice.
1 On July 28, 2025, Judge Murphy became Chief Judge of the Eastern District of Michigan. 2 Judge Murphy asked the interpreter what the Spanish word for “joke” was and was told that it was “chiste.” DE 64, Tr. Vol. 1, Page ID 775. -3- No. 24-1809, United States v. Zamora
Id. at Page ID 781. Judge Murphy then told Zamora to tell his friends in jail “if they want to try
this nonsense, they’re going – they’re going to suffer the consequences. And you better come up
with the name of the man who wrote this for you ASAP.” Id. Zamora asked Judge Murphy, “Can
I say something?” Id. But Judge Murphy responded, “No. You have a lawyer to say something
for you.” Id. Judge Murphy denied the motion from the bench and proceeded to jury selection.
With the prospective jurors in the courtroom and while introducing the case, Judge Murphy
twice referred to Zamora as guilty. Judge Murphy stated: “what the government is going to be
attempting to prove and of which Mr. Zamora is currently presumed guilty is an agreement to deal
or distribute narcotic substances that are illegal,” and that Zamora “has a clean slate, no evidence
against him, and he’s a hundred percent guilty.” Id. at Page ID 788–89. Both times, the court
corrected itself immediately afterward, though only after being prompted by the government and
by Escobedo. Judge Murphy apologized to Zamora, his counsel, and the jurors for his “brain
freeze” and said that he would be “more specific with that as time goes on.” Id. at Page ID 789.
Escobedo orally sought a new jury and Judge Murphy took the motion under advisement as a
motion for a mistrial.3 The jury was selected, empaneled, and given preliminary instructions.
During the six-day trial, the jury heard from several of Zamora’s co-conspirators: Myrna
Taboada, Thomas Soulliere, and Oscar Gomez-Medina. In 2016, Taboada pled guilty to
conspiring to distribute cocaine and heroin. She testified that Zamora had given her instructions
to pick up money for him in May 2016, that Zamora and others had used her garage to unload
money and drugs from Texas-Michigan car trips in May to July 2016, that she was present for an
3 Judge Murphy construed the motion for a new jury as a “well grounded and well taken” motion for a mistrial. DE 64, Tr. Vol. 1, Page ID 794. On July 15, during trial, he issued a written order denying the motion for a mistrial and provided further reasoning for his denial of the motion to substitute counsel. -4- No. 24-1809, United States v. Zamora
unloading of drugs and money in her garage in the presence of Zamora, and that Zamora once
watched for police while a semi-truck unloaded concealed cocaine in a warehouse. Taboada also
identified Zamora’s voice in an audio recording concerning the quality of his drugs and how the
identity of his drugs could be verified. Soulliere testified that he had been arrested in Texas while
driving several kilograms of cocaine for Zamora. He further testified that he first met Zamora in
the fall of 2015, and then, months later, met again and discussed transporting drugs from Texas.
Soulliere agreed to transport drugs for Zamora and took multiple trips in 2016 in different cars. In
October 2016, Soulliere was arrested during one of his trips. And Gomez-Medina testified that he
and Zamora had spoken about “bringing cocaine from Texas,” about how the cocaine was wrapped
and delivered, and described the operations of the conspiracy at a higher level, with kilograms of
cocaine flowing weekly. DE 69, Tr. Vol. 5, Page ID 1430, 1433–35. Gomez-Medina described
traveling with Zamora to “look at a place” for the semi-truck delivery. Id. at Page ID 1447.
Gomez-Medina also identified one of the speakers on the recording as Zamora.
The government also presented testimony from federal agents and camera footage. The
agents’ testimony was based on video, telephone, and GPS surveillance. For instance, FBI Agent
Eli Bowers testified that investigators had set up pole cameras outside Zamora’s residence and
Taboada’s residence, and that they had used GPS data from a rental car company to link a rented
Volkswagen to Zamora before it was driven to Texas. Agent Bowers’s testimony described
Zamora’s girlfriend, Vicky Roldan, as a “close associate” in the conspiracy, who coordinated with
drivers, including Audrey Noel and Jessica Williams, to bring packages of cocaine hidden in rental
cars from Texas to Detroit, and wired them money. DE 66, Tr. Vol. 2, Page ID 981–83, 988–91,
1013–15. DEA Special Agent Stacey Slater testified that she was present at the investigation when
Noel and Williams were stopped at a checkpoint in Texas and cocaine was found in their Jeep, and
-5- No. 24-1809, United States v. Zamora
Agent Slater testified that Williams had texted Roldan that she was “taking one for the team”
shortly before her arrest. Id. at Page ID 951, 1067; DE 67, Tr. Vol. 3, Page ID 1111–12.
Zamora did not testify in his own defense. Escobedo moved for a directed verdict of
acquittal at the end of the government’s case. The court denied it orally and in a written order.
The jury convicted Zamora of conspiracy to possess with the intent to distribute cocaine
under 21 U.S.C. §§ 841 and 846. It also found that his prior conviction had resulted in a term of
imprisonment of more than 12 months, from which he was released within 15 years of the
beginning of the conspiracy. Zamora timely renewed his prior motion for a judgment of acquittal
and moved for a new trial. The district court denied both motions.
After the verdict, the parties agreed to reschedule sentencing three times. Then, five days
before the agreed-on sentencing date in June 2023, Escobedo moved to withdraw from his
representation of Zamora and asked the court to appoint new counsel. Escobedo noted that Zamora
had asked him to file motions alleging prosecutorial misconduct, which Escobedo deemed
frivolous, and noted that there was a breakdown in the attorney-client relationship. The court
granted this motion and appointed Zamora a federal public defender in June 2023.
Months later, in December 2023, Zamora filed a “supplemental” motion for a new trial.
Judge Murphy sua sponte recused himself, and Judge Linda V. Parker was assigned to this case.
Two days later, Judge Parker denied the supplemental motion as untimely. 4 Sentencing was reset,
and in September 2024, Judge Parker sentenced Zamora to 180 months incarceration, followed by
ten years of supervised release. Zamora timely appealed to our court.
4 Zamora does not appeal the denial of this motion for a new trial as untimely. -6- No. 24-1809, United States v. Zamora
II.
Zamora makes seven arguments on appeal. The government addresses the issues in a
different order and also responds to Zamora’s ineffective assistance of counsel arguments, which
he did not raise in his statement of issues. We follow Zamora’s organization of the issues, with
some resulting repetition and cross-reference, and address the ineffective assistance of counsel
argument at the end.
As an initial matter, most of Zamora’s arguments on appeal were made for the first time in
the “supplemental” motion for a new trial that he filed over a year and half after trial.5 The relevant
federal rule of criminal procedure provides that a new trial may be provided upon the defendant’s
motion “if the interest of justice so requires.” Fed. R. Crim P. 33(a). Rule 33 also provides,
however, that such a motion must be filed within 14 days of the jury’s verdict, unless based on
newly discovered evidence. Id. at (b)(2). The verdict was issued on July 19, 2022. Zamora made
a timely motion for a new trial within 14 days, which was denied. The second motion for a new
trial was not filed until a year and a half later, on December 27, 2023, and it did not reference any
newly discovered evidence that could have supported filing outside the 14-day window.
We read Rule 33 “‘in conjunction with Federal Rule of Criminal Procedure 45,’ which
allows district courts to revive and extend an expired deadline ‘if the party failed to act because of
excusable neglect.’” United States v. Watts, No. 21-5302, 2022 WL 706603, at *8 (6th Cir. Mar.
9, 2022) (quoting United States v. Munoz, 605 F.3d 359, 367 (6th Cir. 2010)). But in Watts, when
5 The initial timely motion for acquittal re-raised Zamora’s sufficiency of the evidence (credibility of witnesses) and presumption of guilt arguments, which had been made orally. The timely motion for a new trial raised arguments concerning witness credibility and argued for different jury instructions, specifically that Taboada’s testimony should have resulted in a pattern jury instruction regarding an addict-informant and that the other collaborating witnesses’ testimony was not corroborated. See infra Section II(C). Zamora’s remaining arguments were raised for the first time in the untimely, second “supplemental” motion for a new trial. -7- No. 24-1809, United States v. Zamora
analyzing a district court’s denial of an explicit request to allow an untimely filing, this court
pointed out that, in deciding whether to grant such relief, district courts are to consider four factors,
one of which is the reason for the delay. Id. at *8–9. Because Zamora provides no reason for the
delay in filing his renewed motion for a new trial, we consider the arguments made in his untimely
motion as not made at all in the district court (and thus, subject only to review for plain error)
unless also properly made earlier in the proceedings. See United States v. Sittenfeld, 128 F.4th
752, 778 (6th Cir. 2025).
III.
A.
We begin with the trial judge’s decision to deny Zamora’s motion to disqualify or substitute
trial counsel. The Sixth Amendment trial right includes the “right to adequate representation and
a right to choose one’s own counsel.” Daniels v. Lafler, 501 F.3d 735, 738 (6th Cir. 2007). The
right to choose one’s counsel, however, does not apply to an indigent defendant who obtains the
assistance of court-appointed counsel. Id. at 739–740. To be sure, the right to adequate
representation, along with the Due Process Clauses, independently prevents prejudicial
interference with indigent defendants’ counsel. Id. at 740. But as to substitution itself, we have
held that “an indigent defendant has no right to have a particular attorney represent him and
therefore must demonstrate good cause to warrant substitution of counsel.” United States v. Iles,
906 F.2d 1122, 1130 (6th Cir. 1990) (citation modified).
In this case, both parties advance their arguments under the standard set out in United States
v. Mack, 258 F.3d 548 (6th Cir. 2001). Under that standard, a court analyzes a district court’s
denial of a motion to withdraw or substitute counsel for an abuse of discretion by considering four
factors:
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(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense, and (4) the balancing of these factors with the public’s interest in the prompt and efficient administration of justice.
Id. at 556. We address each factor in turn.
1.
This court has considered a motion filed one and a half months before trial to weigh against
the defendant on the timeliness factor. United States v. Chambers, 441 F.3d 438, 447 (6th Cir.
2006); see also United States v. Wells, 55 F.4th 1086, 1091 (6th Cir. 2022). And a motion for new
counsel is untimely when the court finds that a defendant, after a lengthy pretrial representation,
waits until just before trial to file. Chambers, 441 F.3d at 447. Further, when the motion is made
so last-minute that a continuance of trial would almost certainly be required, “the trial judge’s
actions are entitled to extraordinary deference.” United States v. Vasquez, 560 F.3d 461, 467 (6th
Cir. 2009) (quotation omitted). Zamora’s motion for new counsel was filed the day before trial,
after he had allegedly struggled to communicate with Escobedo for over a year since his attorney
had been appointed. Although this factor weighs strongly against Zamora, it “is not, by itself,
justification for denial of good cause.” United States v. Jennings, 83 F.3d 145, 148 (6th Cir. 1996)
(Jennings II).
2.
We next consider the “adequacy” of the district court’s inquiry into Zamora’s motion to
disqualify counsel. United States v. Powell, 847 F.3d 760, 778 (6th Cir. 2017). The district judge’s
analysis here was less than fulsome: he began by calling the motion a “waste of time.” DE 64, Tr.
Vol. 1, Page ID 771. But his questioning, while critical or even hostile, was aimed at a real issue:
uncovering who had written the motion for Zamora. The trial judge asked how he could take a
-9- No. 24-1809, United States v. Zamora
motion “seriously” when Zamora would not provide any information about who had written it. Id.
at Page ID 773–75. After criticizing Zamora for relying on someone with no legal training, the
district judge moved to the substantive allegations, saying to Zamora’s counsel: “Mr. Escobedo,
as far as I’m concerned, this motion is a complete joke. However, it states that you did not meet
with your client sufficiently.” Id. at Page ID 776. Escobedo responded that Zamora’s allegations
about the lack of communication were false, he was very proficient in Spanish, that he was being
forthright with Zamora about the strength of the government’s case, and that, contrary to Zamora’s
claims, Zamora had in fact received the flash drive of discovery material. After hearing
Escobedo’s side of the story, the district court did not allow Zamora to speak, requiring him to
speak through his attorney.
This inquiry falls short of that seen in other cases where we have found that the defendant
was “allowed . . . adequate opportunity to explain his concerns.” See Chambers, 441 F.3d at 447.
To be sure, the district court’s reluctance to give serious credit to a motion written or translated by
an anonymous party is not improper considered alone.6 And the trial judge asked Zamora’s
counsel for an explanation of the allegations in the motion. But the district court’s refusal to
question Zamora about the substance of his allegations or allow him a chance to respond to
Escobedo’s statements diverges from the cases in which we have upheld a denial of a motion to
6 When evidentiary documents are translated, courts often require a certification of accuracy and language proficiency from the translator. See Acosta v. Peregrino, No. 3:17-cv-01381, 2020 WL 5995049, at *3 (M.D. Tenn. Oct. 9, 2020) (noting that courts in other circuits require translated witness testimony to be “authenticated” and “an accurate translation done by a competent translator”) (citing Jack v. Trans World Airlines, Inc., 854 F. Supp. 654, 659 (N.D. Cal. 1994)). This motion did not include any such certification, and when questioned Zamora did not provide any information about the translation except that it had been done in prison. Of course, pro se filings are to be construed liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007). And the allegations in the motion did not need to be held to the standard of positive evidence. But we do not think it was categorically improper to give less weight to the motion in these circumstances. - 10 - No. 24-1809, United States v. Zamora
change counsel. See Vasquez, 560 F.3d at 467; United States v. Marrero, 651 F.3d 453, 465 (6th
Cir. 2011); United States v. Price, 761 F. App’x 568, 572–73 (6th Cir. 2019).
In United States v. Liggins, we stated that “where the district court is tasked with
considering a defendant’s request for new counsel, and determining whether it is necessary and
appropriate to release the present defense counsel from his obligation . . . the district court should
hear from the defendant.” 76 F.4th 500, 507–08 (6th Cir. 2023). In this instance, the district
court’s back and forth with Zamora ended after it decided that he was lying about the motion’s
author. Once the district court came to this conclusion, the court cut Zamora off and asked to
speak with his attorney. As for the attorney, the court discussed the motion for a time and ended
the conversation once Escobedo said that Zamora had lied. At this point, the court instructed the
government to prosecute Zamora for obstruction of justice. Zamora then asked if he could “say
something?” DE 64, Tr. Vol. 1, Page ID 781. The court rejected his request, stating that Zamora
had “a lawyer to say something for” him. Id. Considered in conjunction with the judge’s animosity
toward the motion, this factor weighs in Zamora’s favor. This was not an in-depth inquiry—rather,
it seems the district court did not take the motion seriously from the beginning.
3.
Because the relationship between defendant and counsel is essential to adequate
representation, the conflict between the attorney and client is its own factor. This factor weighs
against the defendant, however, unless the extent or nature of the conflict evinces “a total lack of
communication preventing an adequate defense.” Vasquez, 560 F.3d at 467–68 (quoting United
States v. Mooneyham, 473 F.3d 280, 292 (6th Cir. 2007)).
Zamora’s substantive complaints were that Escobedo had not met with him, had not
provided him information, had not investigated his case, and had attempted to coerce him into
- 11 - No. 24-1809, United States v. Zamora
pleading guilty. Escobedo disagreed with this assessment, stating that he had been in contact with
his client, that Zamora had the relevant flash drive material, and that the real communication issue
was that Zamora did not “like” Escobedo’s assessment of the amount and strength of evidence
against Zamora. DE 64, Tr. Vol. 1, Page ID 776–77. The district judge decided not to credit the
allegations in Zamora’s motion (in part because Zamora did not provide information about who
had prepared it) and relied instead on his prior experience with Escobedo to credit Escobedo’s
account. And, of course, as the government points out, Escobedo was able to participate actively
in Zamora’s defense. We hold that the district court did not abuse its discretion in determining
that there had not been a complete breakdown in communication between Escobedo and Zamora
at that time.7
4.
The final Mack factor is a balance of the previous factors with the public’s interest in the
timely administration of justice. In some overlap with analysis of the timeliness factor, a court
here considers the burden on the judicial system resulting from a potential substitution of counsel.
Vasquez, 560 F.3d at 468. Here, the trial court found that the government had carried out extensive
logistical preparations for trial (including the disclosure of information about confidential
7 We note that Escobedo moved after trial to withdraw, based in part on Zamora’s demanding “additional post-trial motions that defense counsel has a fundamental disagreement with or finds imprudent. That is, Zamora has made allegations of prosecutorial misconduct at trial that defense counsel believes are frivolous and without any merit or evidentiary support.” DE 59, Mot. to Withdraw, Page ID 645. The district court granted this motion before Zamora’s sentencing. And the motion and the order both reference Zamora’s pretrial motion. But because Zamora and Escobedo’s disagreements about trial strategy occurred post-trial, that Escobedo ultimately withdrew does not weigh on whether the trial court abused its discretion in denying Zamora’s pre- trial substitution motion. - 12 - No. 24-1809, United States v. Zamora
witnesses) and that, because of the jury schedule in the district, a potential continuance could delay
the trial up to a year. This factor weighs against Zamora.
We acknowledge that in a prior case in the same posture, this court remanded for an
evidentiary hearing, directing a district judge to conduct a further inquiry into the relationship
between defendants and counsel. See United States v. Jennings, 945 F.2d 129, 132 (6th Cir. 1991)
(Jennings I) (stating that if the proffered reasons for the motion constituted good cause, new
counsel and a new trial would be required). But the facts here fall short of those in Jennings I.
There, the district court required the parties to submit letters regarding their dissatisfaction with
counsel but never explicitly ruled on the motions and did not enter those letters into the record.
945 F.2d at 132. Because the district court undertook more of an inquiry than what took place in
Jennings I, we conclude its analysis was not an abuse of discretion requiring remand on these
grounds alone.
We thus hold that while district courts should generally engage in more inquiry than the
district court did here, the denial of a last-minute motion contradicted by the movant’s attorney
and prepared by an anonymous party was not an abuse of discretion.8
B.
Zamora’s second argument on appeal is that the district court should have granted his
motion for a judgment of acquittal at the close of the government’s case. He argues that the
government’s cooperating witnesses—Taboada, Soulliere, and Gomez-Medina—lacked
credibility. This argument mistakes the relevant standard. When a defendant moves for a
judgment of acquittal after the government’s case, the court is required to view the evidence that
8 We also analyze the district judge’s statements at this hearing in our discussion of Zamora’s sixth argument on appeal. See infra Section III(F). - 13 - No. 24-1809, United States v. Zamora
has been presented “in the light most favorable to the prosecution” and determine whether “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vance, 956 F.3d 846, 853 (6th Cir. 2020) (quotation omitted). And it is
well settled that, in this posture, it is not appropriate for a court to determine whether particular
witnesses are credible. Id.
Zamora was charged with conspiracy to possess with the intent to distribute five kilograms
or more of cocaine, in violation of 21 U.S.C. §§ 841 and 846. To convict, the government was
required to prove beyond a reasonable doubt “(1) an agreement to violate drug laws; (2) knowledge
and intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Hamm,
952 F.3d 728, 736 (6th Cir. 2020) (quotation omitted). In this case, the three collaborating
witnesses testified that they had been in a conspiracy to traffic cocaine with Zamora. Soulliere
testified that he had an “agreement” with Zamora to “drive a vehicle to the border, pick up cocaine
and drive it back.” DE 68, Tr. Vol. 4, Page ID 1291–92. Taboada testified that she had transported
money for Zamora, and that he had been “pretty much using my house as a stash house or the
garage as a stash.” DE 67, Tr. Vol. 3, Page ID 1202, 1204. And Gomez-Medina testified that he
picked up kilos of cocaine from Zamora at “a house he had on McGraw.” DE 69, Tr. Vol. 5, Page
ID 1435. In ruling on Zamora’s motion for a judgment of acquittal, the district court viewed this
evidence in the light most favorable to the government. Vance, 956 F.3d at 853. Zamora’s core
argument here is merely a challenge to witness credibility packaged as an insufficiency of the
evidence claim. Consistent with our precedent, the district court faithfully declined to substitute
its judgment regarding witness credibility and, instead, cabined its analysis to whether a reasonable
trier of fact could find guilt beyond a reasonable doubt based on the government’s evidence. The
district court did not err in denying Zamora’s motion for a judgment of acquittal.
- 14 - No. 24-1809, United States v. Zamora
We also note that under this section of his brief on appeal, Zamora argues that the district
court should have used a model jury instruction that cautioned the jury regarding the weight of
Taboada’s testimony because of her status as a drug addict. This argument was also presented in
Zamora’s motion for a new trial after the jury’s verdict. But the parties jointly stipulated to jury
instructions.
We consider this an invited error, since Zamora contributed to it (without intentionally
relinquishing his right) by stipulating to the jury instructions. United States v. Carter, 89 F.4th
565, 568 (6th Cir. 2023). And we will only review invited errors to “prevent manifest injustice.”
Id. at 570. But Zamora’s counsel used the substance of the instruction to impeach Taboada’s
testimony during cross-examination. See United States v. Talley, 164 F.3d 989, 997 (6th Cir. 1999)
(holding that the jury was “clearly able to assess [the witness’s] credibility at trial” after counsel
for defendant attacked witness’s credibility during cross-examination). On cross-examination,
Escobedo also highlighted Taboada’s cooperation with the government, her past lies, and her
substance abuse issues. Therefore, the district court’s failure to provide alternative instructions
sua sponte did not result in manifest injustice.
C.
Zamora next argues that the district court should have granted a new trial based on false
testimony by Gomez-Medina, who testified that he was dealing cocaine for Zamora while Zamora
was in prison from 2010 to 2013. The government counters that this testimony was not material
and, at best inconsistent, which does not warrant a new trial. The government is correct.
On direct examination, Gomez-Medina testified that he was in the “business” of “bringing
cocaine from Texas” with Zamora in 2010 and 2011. DE 69, Tr. Vol 5, Page ID 1430–31. Then,
Gomez-Medina testified, Zamora “went away for like four or five years” before resuming contact
- 15 - No. 24-1809, United States v. Zamora
in 2015. Id. at Page ID 1431. Around Christmas 2015, he testified, they began working together
again, and the conduct continued into 2016. Id. at Page ID 1433–35. Zamora argues that he was
in prison between 2010 to 2013 and could not have been working with Gomez-Medina during that
period.
A defendant’s due process rights are violated when the government deliberately deceives
a court and a jury by knowingly presenting perjured testimony. Monea v. United States, 914 F.3d
414, 421 (6th Cir. 2019). But to prevail on this claim, a defendant must show “that the Government
knowingly presented false testimony that materially affected the proceeding.” Id. And even where
such testimony is properly objected to (it was not here), the error may still be harmless. See
Rosencrantz v. Lafler, 568 F.3d 577, 588–89 (6th Cir. 2009).
Zamora’s argument fails for three reasons. First, he accurately states the standard, but his
only argument as to why the statements would be material is that the government “alleged Mr.
Zamora continuously conducted business with numerous people over the span of years, drug
trafficking.” CA6 R. 17, Appellant Br. at 35. But other testimony—namely that of Soulliere and
Taboada—also established Zamora’s role in the conspiracy, and he does not argue why the
inaccurate dates would be material, which is his burden. United States v. Coe, 161 F.3d 320, 344–
45 (6th Cir. 1998). In other words, Gomez-Medina’s inaccurate testimony that Zamora was in a
drug conspiracy years before the indicted conduct began is not per se material. Zamora needed to
at least make an argument connecting the falsity to his conviction.
Second, on cross-examination, Escobedo made use of the inconsistency, impeaching
Gomez-Medina with his testimony that he was transporting cocaine for Zamora during years in
which Zamora was in prison. And indeed, the cross-examination had an effect. Gomez-Medina
changed his position when confronted, stating that “[b]efore [Zamora] was in jail he was dealing
- 16 - No. 24-1809, United States v. Zamora
with me before. After he got out of the jail he contact[ed] me back again.” DE 69, Tr. Vol. 5,
Page ID 1522. Gomez-Medina also disclaimed exact knowledge: “I don’t even know. I’m not
here to lie.” Id. at 1522–23. We have considered allegedly false testimony less pernicious when
it is met with prompt and forceful cross-examination that brings inconsistencies to the jury’s
attention. See United States v. Ward, 190 F.3d 483, 491 (6th Cir. 1999).
Third and finally, Zamora needs to show that the testimony was more than a “mere
inconsistenc[y].” Coe, 161 F.3d at 343 (quotation omitted). In context, Gomez-Medina gave the
incorrect dates at first, but then later recharacterized his testimony as a period of working with
Zamora, a delay while Zamora was in prison, and then a resumption of contact after Zamora was
released. This argument does not merit a new trial.
D.
Zamora also argues on appeal that the procedure that was used to establish his prior
conviction tainted the jury by exposing it to prejudicial information irrelevant to his guilt in the
present case.
In addition to the drug conspiracy count alleged in the indictment, the government also
sought to establish that Zamora qualified for a sentencing enhancement under 21 U.S.C.
§ 841(b)(1)(A) and (C), which provides for an increased sentencing range if a violation is
committed “after a prior conviction for a serious drug felony or serious violent felony has become
final” and “after a prior conviction for a felony drug offense has become final.” The increased
sentences are also subject to 21 U.S.C. § 802(58), which requires that, if the prior conviction is for
a serious drug felony, the defendant must have served a term of imprisonment of over a year, and
that the instant offense occurred within 15 years of release. Here, the government charged that
Zamora had a Michigan drug conviction in 2010 for possession with intent to deliver a kilogram
- 17 - No. 24-1809, United States v. Zamora
or more of cocaine, and that he was paroled in September of 2013, within 15 years of the
commencement of the offense with which he was charged.
In turn, 21 U.S.C. § 851 prescribes procedures for establishing prior convictions by means
of a hearing without a jury present. But Zamora and the government agreed upon the methodology
that was followed—one that would blend judicial and jury fact finding. Specifically, they agreed
that the judge would find, as a matter of law, that a prior conviction occurred and that it qualified
for the enhancement.9 They further agreed that the jury would find, as part of its verdict, the length
of imprisonment and whether the date of release was within 15 years of the commencement of the
offense charged. This procedure was adopted because Zamora did not wish to stipulate to any
matters regarding his prior conviction or sentence, and the parties wished to leave the factual issues
of the length of confinement and the time of release for the jury. Zamora thus agreed that the jury
would hear at least some evidence so that it could find the timing of his prior conviction.
Zamora argues on appeal that this procedure violated his rights and describes in detail a
bifurcated procedure adopted by Judge Mark A. Goldsmith of the Eastern District of Michigan.
Judge Goldsmith’s procedure, as Zamora describes, waited until the jury had convicted the
defendant of the present offense before presenting it with the prior sentence information for the
factfinding relevant to the enhancement. Zamora argues that “[t]his procedure could very well
have been followed” in his case. CA6 R. 17, Appellant Br., at 31. But even if true, it does not
follow that merely because he might have preferred this procedure, any other procedure constitutes
reversible error. Here, the government even contemplated waiting to present the prior conviction
data to the jury until “after their initial verdict on the drug conviction.” DE 66, Tr. Vol. 2, Page
ID 1084. Yet Escobedo agreed to the procedure used, and Zamora did not challenge it until his
9 Escobedo explicitly preserved an objection to this latter legal determination. - 18 - No. 24-1809, United States v. Zamora
untimely second post-trial motion for a new trial. We decline to exercise our discretion to review
this invited error. See Carter, 89 F.4th at 570.
Of course, the prior conviction was discussed at trial: in cross-examining Gomez-Medina,
Escobedo had to allude to Zamora’s time in prison. See supra Section II(C). This could have been
grounds for an instruction requiring the jury not to consider that information for any other purpose
than the dates of Zamora’s sentence. But the distinct character of the prior conviction exhibits was
highlighted to the jury by the district court. See DE 70, Tr. Vol. 6, Page ID 1595 (“[T]wo exhibits
in front of [the jury] are special exhibits for a very limited purpose, Exhibit 50 and 51.”); DE 85-
1, Ex. 50–51, Page ID 2019–24; DE 41, Verdict Form, Page ID 259. Zamora concedes that
Escobedo failed to object to the jury instructions. Thus, any defect is subject to plain error review.
E.E.O.C. v. New Breed Logistics, 783 F.3d 1057, 1076 (6th Cir. 2015). And we have previously
held that the lack of a limiting instruction regarding the permissible purpose for which a jury may
consider criminal history is not plain error. Bronzino v. Dunn, 558 F. App’x 613, 618 (6th Cir.
2014). We similarly hold here that the failure to instruct the jury as to the permissible evidentiary
use of this information was not plain error.
E.
Zamora next argues on appeal that exculpatory or impeachment evidence regarding
Gomez-Medina was not provided and that this represents a violation of Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). We review Brady claims de
novo. United States v. Tavera, 719 F.3d 705, 710 (6th Cir. 2013). To establish a Brady violation:
The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.
- 19 - No. 24-1809, United States v. Zamora
United States v. Paulus, 952 F.3d 717, 724 (6th Cir. 2020) (quoting Strickler v. Greene, 527 U.S.
263, 281–82 (1999)). The government has an obligation to independently act and turn over Brady
material, because it is required by “[f]undamental guarantees of due process” and because of the
enormous asymmetry in information and investigative resources between prosecution and defense.
Tavera, 719 F.3d at 710, 712. While the defendant thus does not need to request any information
to trigger the Brady obligation, he must still indicate what exculpatory evidence was withheld to
establish a Brady violation occurred. See United States v. Thompson, 758 F. App’x 398, 404 (6th
Cir. 2018).
Zamora’s most specific argument under his Brady claim is that the government made a
representation that it would not call a particular confidential source but subsequently called
Gomez-Medina to testify about an encounter in Detroit’s Patton Park. Zamora concludes that
Gomez-Medina must be that confidential source because his ultimate trial testimony was identical
to the confidential source’s report. Zamora claims that “[b]y presenting the testimony of both
Gomez-Medina and Special Agent Gavin at trial, the government did not disclose exculpatory
evidence, resulting in a Brady violation.” CA6 R. 17, Appellant Br., at 40. This argument is
difficult to parse as a Brady claim. The closest Zamora gets to saying what evidence was actually
withheld is arguing that “the evidence is material and was in fact requested by Defendant.” Id. at
41. But what evidence does he mean? The government contends that Escobedo “had all the Rule
16 and Jencks materials for the testifying witnesses.” CA6 R. 23, Appellee Br., at 60. It could,
however, conceivably be relevant if Gomez-Medina was the confidential informant that the
government represented to Zamora would not be testifying. This is because no matter how much
material on Gomez-Medina the government disclosed, Escobedo might not have realized he was
- 20 - No. 24-1809, United States v. Zamora
the Patton Park informant and therefore might not have been able to prepare to cross-examine
Gomez-Medina about that meeting.
There are two problems with this argument. First, the prosecution asked Gomez-Medina
about the Patton Park meeting during trial—in other words, the information was disclosed.
“Generally, the Brady doctrine does not apply to a delayed disclosure of evidence that is favorable
to the defendant, but only to a total failure to disclose such evidence.” United States v. Stamper,
91 F. App’x 445, 451 (6th Cir. 2004). Zamora argues that if he had known ahead of time that
Gomez-Medina would be testifying about this meeting, he would have had the “opportunity to
properly prepare or confront” Gomez-Medina and “verify his alibi.” CA6 R. 17, Appellant Br., at
41. But the materiality element of a Brady claim “does not pertain” to effective trial preparation,
or even delay in the disclosure of exculpatory evidence until trial, unless the delay itself is
prejudicial. Stamper, 91 F. App’x at 450 n.1, 451–52. And Zamora does not specifically argue
prejudice beyond trial preparation.
Second, Zamora’s allegations are vaguer than the specific evidence more typically
concerned in Brady and Giglio cases. See, e.g., Paulus, 952 F.3d at 725 (“The government
concedes that the Shields Letter had ‘potential exculpatory value’ . . . .”); Strickler v. Greene, 527
U.S. 263, 273 (1999) (“notes taken by Detective Claytor during his interviews with Stoltzfus, and
letters written by Stoltzfus to Claytor”). A successful Brady claim requires a more specific claim
about what exculpatory evidence was withheld and the prejudice that followed from the
withholding or delay.
Zamora’s argument could also be viewed as a claim that the government violated its
discovery obligations. But Zamora still does not state with specificity any material evidence that
could have aided his defense beyond the fact that the government presented testimony from
- 21 - No. 24-1809, United States v. Zamora
Gomez-Medina and Special Agent Gavin. And Escobedo stated that he had no objection when the
government told the court that they had provided him “all the” relevant Jencks and other required
materials. DE 67, Tr. Vol. 3, Page ID 1141–42. Further, Escobedo cross-examined Gomez-
Medina about his grand jury testimony, which was material he must have obtained through
discovery as evidenced by his reading of it to Gomez-Medina during trial. On appeal, Zamora
does not contend with the fact that Escobedo believed he had received all the discovery and Jencks
material to which he was entitled. Zamora’s claim therefore fails, regardless of whether it is
construed as a Brady, Giglio, or discovery claim.
F.
Sixth, Zamora argues that the “totality of the circumstances” of the trial judge’s statements
“justifies a new trial.” CA6 R. 17, Appellant Br., at 44. Specifically, Zamora argues that the
court’s statements in front of the venire—before the jury had been empaneled—“irreparably
taint[ed] the jury” and, combined with the trial court’s “other statements” from when he sought to
substitute Escobedo before trial, violated his presumption of innocence. Id. at 43–44. The
government argues that the only remedy Escobedo sought at the time—a new venire, since no
juror had been selected yet—is not supported by our caselaw. Judge Murphy’s relevant comments
can be divided into two categories: first, his remarks to Zamora criticizing his last-minute motion
to substitute counsel, and, second, the two times in close succession when the court (in the presence
of the venire) described Zamora as “guilty.”
We emphasize that Judge Murphy’s conduct was hostile. The most egregious of his
comments was likely his directive to the government to prosecute Zamora for obstruction of
justice.10 But his anger over Zamora’s obtaining the assistance of another prisoner to seek
10 No such prosecution of Zamora ever occurred. - 22 - No. 24-1809, United States v. Zamora
appointment of another attorney is also hard to understand. Such filings are not uncommon, and
are hardly an occasion for an emotional and hostile response. This sort of outburst is correctly
labeled inappropriate judicial behavior.
In any event, Zamora argues only that the totality of the circumstances justified a new trial
because Judge Murphy’s comments violated his presumption of innocence. His support for this
totality of the circumstances argument, however, comes from cases covering the presumption of
innocence generally and from Court of Appeals for the Armed Forces cases regarding “implied
bias” in the composition of a court-martial. While we granted a new trial in Liggins, we did so
because Judge Murphy (the same judge as here) had abused his discretion in denying a motion for
recusal. 76 F.4th at 509.11 Zamora does not argue on appeal that Judge Murphy should have
recused himself or that his failure to recuse merits a new trial.12
In contrast, Escobedo almost immediately moved for a mistrial after the trial judge twice
mistakenly stated before the jury that Zamora was presumed guilty. But the trial judge promptly
apologized to Zamora, made a correction, and otherwise formulated the presumption of innocence
correctly. Although we find Judge Murphy’s comments to Zamora criticizing his last-minute
motion to substitute counsel to be highly inappropriate, he made those comments outside the jury’s
11 In Liggins, Judge Murphy berated a defendant after he made a last-minute request before trial to substitute counsel. 76 F.4th at 503–05. There, Judge Murphy stated that he was “tired of this case” and “tired of this defendant” giving him the “runaround”—he then denied Liggins the opportunity to speak instead of his lawyer, threatened to have him “hauled out of [court],” and, most significantly to the Sixth Circuit, stated that Liggins “look[ed] like a criminal to [him]” and was doing “what criminals do.” Id. at 503. Here, Judge Murphy doubted Zamora’s statements about his English fluency, called him a liar and his filing a “chiste” (“joke” in Spanish), and called for his prosecution. But in Liggins, unlike here, the defendant sought a new trial on appeal on the grounds that the trial judge should have recused himself. 76 F.4th at 505. 12 We note that Judge Murphy recused himself at a later point in the case and did not sentence Zamora. - 23 - No. 24-1809, United States v. Zamora
presence, and they therefore did not impact the jury’s impartiality. See United States v.
Worthington, 698 F.2d 820, 827 (6th Cir. 1983); see also Sandstrom v. Montana, 442 U.S. 510,
524 (1979) (explaining that the presumption of innocence requires the trier of fact to avoid adverse
prejudgments against the defendant). And while the court’s improper statements about the
presumption of innocence are like those that bolstered our recusal holding in Liggins,13 these
immediately corrected statements do not rise to the level of tainting the jury in a way that requires
a mistrial.
We review the denial of a motion for a mistrial for an abuse of discretion. United States v.
Robinson, 99 F.4th 344, 360 (6th Cir. 2024).14 We more typically consider the propriety of a
mistrial in the context of witness testimony that could have prejudiced the jury and undermined
the “fundamental fairness” of the trial, analyzing under multiple factors how the testimony was
elicited and how prejudicial it could have been—and whether a curative instruction was promptly
issued. See Zuern v. Tate, 336 F.3d 478, 486 (6th Cir. 2003). But a prompt and corrective
instruction to the jury ameliorates potential prejudice in this context. For example, we have held
that when a judge’s comments about cumulative evidence or repetitious testimony in front of the
jury may have given the jury the unwarranted impression that a party had carried its burden of
proof, a curative instruction to the jury to disregard the instruction dispels prejudice. United States
v. Godinez, 114 F.3d 583, 585–86 (6th Cir. 1997). This is especially true when the evidence
against the defendant is “very substantial.” Id. at 586. At least one other circuit has approved the
13 Our reasoning in Liggins was “bolster[ed]” by the fact that in denying Liggins’s motion for recusal, the judge had misstated the presumption of innocence—just as he did here shortly after denying Zamora’s motion for substitution of counsel from the bench. 76 F.4th at 508 n.2. 14 Because the implied bias standard comes from the military’s Manual for Courts-Martial, R.C.M. 912(f)(1)(N), we find Zamora’s argument inapposite and disregard his proffered military court cases. - 24 - No. 24-1809, United States v. Zamora
denial of a mistrial when confronted with arguably prejudicial statements by a judge. See United
States v. Johnson, 540 F.2d 954, 959–60 (8th Cir. 1976) (finding trial judge’s substantive response
to a defense objection did not require mistrial where “strong cautionary instruction” was used in
charge to jury).
Here, Judge Murphy immediately said “Oh, that was in error . . . I made a mistake. The
defendant is presumed not guilty and innocent of all these charges.” DE 64, Tr. Vol. 1, Page ID
789. He misspoke again, and immediately apologized. Id. And soon after, he issued a written
order denying the motion for a mistrial, labeling his comments as inadvertent misstatements and
highlighting his immediate apology, instructions to the jury, and corrected formulation afterward.
Although the comments were made right as the judge was introducing the case, they were also
several days removed from the ultimate deliberation and occurred before either party had begun
presenting its case. And the jury instructions correctly stated that a defendant accused of
committing a crime is presumed innocent. We therefore conclude that the denial of a mistrial
based on Judge Murphy’s comments was not an abuse of discretion.
G.
Seventh, Zamora argues that the introduction of an audio recording and its authentication
by Taboada and Gomez-Medina was speculation, and that the prosecution did not establish
sufficient foundation for its admission. During the testimony of both witnesses, the prosecution
played an audio recorded conversation, Government’s Exhibit 27. The recording was made by a
DEA informant wearing a wire to a meeting inside a car. The conversation discussed drug sales
and quality; both Taboada and Gomez-Medina identified one of the voices captured as Zamora’s.
Zamora argues that the prosecution tried to draw too much from this recording: the portions
of the audio recording to which the prosecutor drew the jury’s attention at closing as setting out
- 25 - No. 24-1809, United States v. Zamora
“exactly how in detail [Zamora] is guilty of this conspiracy” were not specifically authenticated as
Zamora’s voice, because the authentications concerned different parts of the conversation. CA6
R. 17, Appellant Br., at 47–48 (quoting DE 70, Tr. Vol. 6, Page ID 1613).
But Zamora stipulated to the admissibility of the exhibit. This would bar review on appeal
under the doctrine of invited error. See United States v. Macias, 387 F.3d 509, 521 (6th Cir. 2004).
And even if we consider his challenge to the government’s more particular uses of excerpts of the
tape to be separate and distinct, Zamora did not object while Taboada and Gomez-Medina were
listening to the exhibit or when the prosecutor mentioned it at closing. It is well-settled that
“[w]hen a defendant neglects to mount an objection to evidence at trial, he is precluded from
arguing on appeal that its admission was flawed unless its allowance constituted plain error.”
United States v. Carney, 387 F.3d 436, 453 (6th Cir. 2004). So even if it had been wrong to admit
this recording, Zamora would still have to succeed on plain error review. See Fed. R. Crim. P.
52(b). And he does not cite a case for any of the challenges he advances to this exhibit. Rule 901
provides that a witness can offer an opinion identifying a recorded voice “based on hearing the
voice at any time under circumstances that connect it with the alleged speaker.” Fed. R. Evid.
901(b)(5). Both Taboada and Gomez-Medina testified that they had dealings with Zamora before
they identified his voice. Thus, the district court’s admission of the audio recording was not plain
error.
H.
Finally, as the government points out, Zamora makes ineffective assistance of counsel
arguments in his brief without explicitly raising this claim as part of his statement of the issues.
He argues that certain decisions by Escobedo, like failing to object to the jury instructions, failing
to adequately cross-examine Gomez-Medina and Agent Gavin, failing to sufficiently explain the
- 26 - No. 24-1809, United States v. Zamora
§ 851 procedure to Zamora, and failing to contest the value of the audio recording, all amount to
ineffective assistance of counsel.
Indeed, multiple issues on appeal involve potentially damaging stipulations and failures to
object. But we consider an ineffective assistance of counsel argument on direct appeal only where
the record is already developed and complete enough to do so. United States v. Ferguson, 669
F.3d 756, 762 (6th Cir. 2012). The current record does not support a conclusion that any of the
alleged errors constitute constitutionally ineffective assistance of counsel per se.15 We do not take
a position on whether these decisions represent ineffective assistance of counsel without a more
developed record illuminating whether counsel could have been motivated by trial strategy or other
realities. Id. at 763; see also United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006)
(“Absent evidence specifically addressing counsel’s performance, we cannot determine whether
his actions reflected a reasoned trial strategy.”).
In this case, both the district judge and defendant’s counsel have changed since trial—but
this means, if anything, that the record is incomplete as to this issue. If Zamora wishes to pursue
an ineffective assistance of counsel claim, he should raise this claim in a later collateral proceeding
under 28 U.S.C. § 2255. See Lopez-Medina, 461 F.3d at 737. We will not address the issue of
ineffective assistance of counsel in this direct appeal.
IV.
For the foregoing reasons, we affirm Zamora’s conviction.
15 Cf. United States v. Carthorne, 878 F.3d 458, 465–66 (4th Cir. 2017) (noting the interplay of plain error and ineffective assistance standards). - 27 -