Appeals from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 00 CR 28-Theresa L. Springmann, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
A federal grand jury charged Jay Zambrana and James Ervin with violating numerous provisions of federal law by participating in a drug-trafficking conspiracy, see 18 U.S.C. §§ 2, 922(g)(1), 1951, 1956(a)(1)(A)(i), (a)(1)(B)(i), 1957; 21 U.S.C. §§ 841(a)(1), 843(b), 846, 856(a)(1), and by killing two men in furtherance of that conspiracy, see 18 U.S.C. § 2; 21 U.S.C. § 848(e)(1)(A). Before trial, Zambrana sought to sever the homicide counts from the drug-conspiracy counts, see Fed. R. Crim. P. 14(a), to no avail. A jury found Zambrana and Ervin guilty on all counts, based largely on the extensive testimony of the two men's co-conspirators who agreed to testify against them in exchange for immunity or reduced sentences. Two years later, Zambrana and Ervin filed motions seeking a new trial, see Fed. R. Crim. P. 33(a), on the grounds that new evidence came to light showing that (1) one of the co-conspirators who testified against them engaged in several acts of misconduct while detained at the city jail in Hammond, Indiana, before trial; and (2) the government withheld the evidence of that misconduct in derogation of Brady v. Maryland, 373 U.S. 83 (1963). The district court denied the motions. We affirm.
In September 1997, officers with the police department in Lake County, Indiana, arrested Alvestia McKeller in Merrillville, Indiana, after they recovered one kilogram of cocaine from his car's trunk during a traffic stop. McKeller quickly informed the officers that he had pur-chased the cocaine from his cousin, who had, in turn, obtained the drugs from Zambrana. McKeller's admissions spurred a wide-scale investigation of Zambrana by the Drug Enforcement Administration; the Internal Revenue Service; the Bureau of Alcohol, Tobacco, Firearms, and Explosives; and the Federal Bureau of Investigation (FBI). That investigation culminated in 2002 with the filing of a 40-count indictment against Zambrana, Ervin, and seven others; Zambrana was a named defendant in 29 of the counts, and Ervin was named in eleven.
In general, the indictment alleged that the nine men comprised a wide-reaching drug-trafficking ring in northwest Indiana, and that as part of the conspiracy they obtained and distributed marijuana, heroin, and cocaine; extorted others; laundered money to conceal the conspiracy; carried and used firearms to further the conspiracy; and committed numerous violent acts-including murder-to supply the conspiracy with money and drugs. As pertinent here, the indictment claimed that Zambrana led the drug-trafficking ring, and that Ervin-an officer with the police department in Gary, Indiana-acted as his muscle. As part of his leadership duties, the indictment continued, Zambrana would launder the revenue derived from the conspiracy by visiting riverboat casinos, gambling with the drug money, and exchanging his "winnings" for "clean" cashier's checks from the casinos. Finally, the indictment alleged that Zambrana, Ervin, and two others conspired to kill Raul Hurtado and Gil Nevarez as part of a scheme to obtain five kilograms of cocaine.
About six months before trial, Zambrana filed a motion to sever the indictment's homicide counts from the drug-conspiracy counts. In his motion, Zambrana asserted that he "wish[ed] to testify" in his own defense against the homicide counts, but "[t]hat combining all the counts at one trial" would prevent him from doing so if he chose to exercise his right not to testify as to the drug-conspiracy counts. Moreover, Zambrana argued, trying the homicide and drug-conspiracy counts together would prevent him from receiving a fair trial. Zambrana simultaneously filed a notice of affirmative defense, in which he stated that he "may rely on [an] alibi defense" to respond to the homicide charges. See Fed. R. Crim. P. 12.1(a)(1)-(2). Zambrana contended that he "was gambling on the casino boats" during the time that the government had alleged that Hurtado's and Nevarez's murders occurred, and explained that he would "rely on records provided by the [g]overnment to establish such alibi." The district court rejected Zambrana's arguments, concluding that he neither provided "any specific testimony he intend[ed] to give" regarding the homicide counts, nor explained how a single trial on all the counts in the indictment would prevent the jury from reaching a reliable verdict. The court therefore denied his motion to sever.
The case proceeded to trial, and the government presented 57 witnesses, including five of Zambrana's and Ervin's co-conspirators who described the inner-workings of the drug-trafficking ring. As relevant to this appeal, three of Zambrana's and Ervin's cohorts-Carlos Ripoll, Denny Arreola, and Tony Clinton-explained how Zambrana and Ervin participated in the conspiracy, and described Zambrana's and Ervin's roles in the murder of Hurtado and Nevarez.
In a nutshell, Ripoll, Arreola, and Clinton together testified that (1) Zambrana approved of Ripoll's and Arreola's plan to rob Hurtado and Nevarez of their co-caine and murder them; (2) Zambrana ordered Ervin to coordinate and to execute the heist and killings; (3) in accordance with the plan, Ervin "arrested" Hurtado and Nevarez during a sham traffic stop, took their cocaine, and drove the two men to the Puerto Rican Benefica Club in Gary; (4) at the Benefica Club, Arreola witnessed Ervin and another co-conspirator, Gabriel Benavides, strangle Hurtado and Nevarez; (5) Zambrana ordered Clinton to help Ervin dispose of the bodies; (6) Clinton helped Ervin load the bodies into the trunk of a car, followed him in another car as they drove to the south side of Chicago, Illinois, and watched as Ervin set the car on fire in a secluded alley (where the Chicago Fire Department would later find it and the two bodies it contained); and (7) on the return trip to Gary, Ervin described in graphic detail to Clinton how he and Benavides strangled Hurtado and Nevarez.
Zambrana's and Ervin's attorneys thoroughly impeached Ripoll's, Arreola's, and Clinton's testimony. The defense asked pointed questions to each man about how he was originally charged with participating in the drug-trafficking conspiracy, and forced the men to admit that they agreed to testify against Zambrana and Ervin only after the government offered them immunity from the homicide counts or reduced sentences as to the drug-conspiracy counts. Arreola, in particular, was questioned further about his role in Hurtado's and Nevarez's robbery and murders, and was forced to admit that he had lied to the police when they first interviewed him about the crime. The defense also got the three men to admit that they had several opportunities to communicate with each other after they had agreed to testify against Zambrana and Ervin; Arreola similarly admitted that while he was housed in the Metropolitan Correctional Center ("MCC") in Chicago during trial, a guard smuggled a cell phone to him, and that he used the phone to make unmonitored telephone calls. The defense also questioned Arreola about his membership in the notorious Latin Kings street gang. And in their continuing effort to impeach Arreola, the defense called a character witness to testify that Arreola was untrustworthy and had a reputation for stealing, and also called an inmate at the MCC who claimed that, while Arreola was detained there, he had stated that Zambrana had nothing to do with the murders. Arreola's credibility was further attacked in the defense's closing arguments.
Before the jury retired to deliberate, the district court carefully instructed it on how to weigh the evidence regarding the many crimes alleged. Specifically, the court informed the jury that "[e]ach count of the [i]ndictment charge[d] each defendant named in that count with having committed a separate offense"; stated that the jury "must give separate consideration both to each count and to each defendant"; and ordered the jury to "consider each count and the evidence relating to it separate and apart from every other count." The jury then entered into its deliberations, and subsequently found Zambrana and Ervin guilty on all counts.
Both Zambrana and Ervin remained in custody awaiting sentencing for over two years. But then in November 2005, the United States Attorney's Office sent a letter to Zambrana's and Ervin's attorneys, stating that it had recently learned that while Arreola was detained at the Hammond City Jail before trial, he engaged in various incidents of misconduct with some of the jail's personnel. The letter stated that, among other things, Arreola had been permitted to smoke cigarettes in the jail garage area unsupervised, to have sexual intercourse with female visitors, to make unmonitored telephone calls, and to receive visits at the jail without first placing his visitors on the jail's visitors log. The letter also detailed that Arreola had a "personal relationship" with a female guard, and that other guards had thrown a birthday party for Arreola's girlfriend, had purchased food for him, and had allowed visitors to give him Xanax. Nevertheless, the letter emphasized that the United States Attorney's Office and "the federal investigators involved with the Jay Zambrana prosecution and trial" were not aware of the misconduct before the trial. Instead, the letter continued, the Office had learned of the miscon-duct only after an investigation undertaken by the United States Marshals and the FBI confirmed that the misconduct had, in fact, occurred; that investigation, the letter stated, had been completed just "recently."
Ervin filed a motion for new trial shortly after receiving the United States Attorney's letter. Ervin contended that the newly discovered evidence of Arreola's misconduct at the Hammond City Jail warranted a new trial so he could use the information to impeach Arreola. Ervin also alleged that the government had been aware of Arreola's misconduct before trial, and thus contravened Brady by suppressing the evidence of that malfeasance. Ervin did not, however, request an evidentiary hearing on his motion, and instead went forward with sentencing. And at his sentencing hearing, Ervin accepted the govern-ment's ...