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.
The opinion of the court was delivered by: Ripple, Circuit Judge.
Before RIPPLE, KANNE and SYKES, Circuit Judges.
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 subsequent decision in Dixon v. United States, 548 U.S. 1 (2006), granted a motion for a new trial on the ground that the 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.
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 provided information about past pseudoephedrine transactions. 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.
Under its terms, the DEA authorized him to purchase, while undercover and at the direction of the DEA, controlled 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 necessary 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 methamphetamine. 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 receiving payment for prior information, unrelated to the developing Qasem deal, that Mr. Jumah had provided. 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.
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 pseudoephedrine 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.
On March 11, 2004, a federal grand jury returned a one-count indictment against Mr. Jumah charging him with knowingly and intentionally possessing and distributing 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 discovery. 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.*fn1 On January 9, 2006, Mr. Jumah's counsel also filed a motion for immediate 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 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 Angeles, California and an FBI [CS] in Chicago, and Qasem was a [CS] in Riverside, California; San Diego, California; and Chicago, Illinois. The government has produced all Giglio materials contained 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 ...