from the United States District Court for the Western
District of Texas
PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
previously remanded this case to the district court to
determine whether the Government suppressed certain favorable
evidence and whether any of the suppressed evidence was
material. United States v. Cessa, 861 F.3d 121, 143
(5th Cir. 2017) ("Cessa II"). On August 8,
2017, the district court concluded that none of the
suppressed evidence was material. Because we cannot say that
the district court's materiality determination was clear
error, reversal is not required. We therefore affirm.
Zetas import drugs from Colombia and export them to the
United States." Cessa II, 861 F.3d at 127.
"The Zetas engaged in a money-laundering operation that
involved purchasing quarter horses-a type of racehorse-in the
United States. The scheme was designed to conceal illegal
drug money by repeatedly buying and reselling horses to
'straw purchasers and shell companies'-a process that
generated 'clean' money, the origin of which was
difficult to trace." Id. Colorado was indicted
as part of the scheme in 2012. Id.
first trial began in April 2013. In the Government's
opening argument, it told the jury that it would hear
evidence that Colorado funneled money from the Zetas through
his company, ADT Petro Services, and then back to the Zetas
through racehorses. But even at that time, the Government
possessed evidence that may have undercut its trial theory.
Carlos Nayen, whom the Government described as the
"money man" and "the man responsible for
coordinating the purchase of horses" in the first trial,
had been interviewed nine times as part of the investigation.
At times, Nayen's statements indicated that Colorado may
not have participated in the scheme. For example, Nayen told
the Government that Colorado "only gave horses" to
the Zetas "as a gift." The prosecutor's notes
from the meeting indicate that Nayen said that Colorado gave
the horses "out of fear." But the Government did
not disclose Nayen's statements to the defense.
was not called to testify at the first trial. And the
Government severely limited written documentation of
Nayen's statements. The Assistant United States Attorneys
prosecuting Colorado were present at seven of the nine
interviews-all occurring between November 27, 2012 and
February 12, 2013. At those seven interviews, only the
prosecutors took notes. And three times, no one took notes at
all. The Government did not create official interview
memoranda, FBI Form 302s, until after Colorado was convicted
in his first trial. And within a month of Colorado's Rule
33 motion being denied, and nearly eight months after the
first interview, FBI Agent Lawson began to create official
interview memoranda for each of the meetings. Presumably
working from prosecutor notes-and where there were no notes,
from distant memory-Lawson generated 41 pages detailing
Nayen's statements at the meetings that had occurred half
a year earlier. This was not normal; the same agent, working
on the same case, and dealing with the same witness quickly
generated interview memoranda for the two meetings not
attended by the prosecutors. Likewise, interviews of other
witnesses throughout the investigation, including interviews
by Lawson, were quickly memorialized into 302s. And for his
interviews with other witnesses, Lawson noted his presence in
the 302s, but for Nayen's interviews, Lawson failed to
note that he was present.
his first conviction, Colorado still did not get access to
Nayen's statements. At his first sentencing hearing,
however, the Government called Lawson to testify. During his
testimony, Lawson referred to statements made by Nayen in the
investigation-attributing them to a confidential informant.
In response, Colorado asked to view the interview memoranda.
But, when it appeared that the court might give the documents
to the defense, the Government disclaimed any reliance on
Nayen's testimony and asked that the documents not be
point it appeared that Nayen's statements would never be
disclosed. But we reversed Colorado's first conviction
because of an instructional error. United States v.
Cessa, 785 F.3d 165, 170 (5th Cir. 2015)
("Cessa I"). And when the Government
retried Colorado it decided to call Nayen to testify.
Nonetheless, the Government did not disclose any of the 41
pages of Nayen's statements to the defense, disclosing
instead, only the formal interview memoranda-and not the
underlying notes-in camera, to the district court. Following
Nayen's direct examination, the district court ruled that
nothing contained in the 302s was favorable to the defense.
As we explained in Cessa II, the district court
should have ordered disclosure because the 302s contained
favorable exculpatory evidence. See Cessa II, 861
F.3d at 129. The Government compounded the error by saying
nothing as Nayen testified inconsistently with the 302s
during cross examination. Id. at 131-34. The jury
convicted Colorado at his second trial.
after the second conviction, the Government opposed
Colorado's effort to view the favorable statements in
Nayen's 302s. On appeal, Colorado argued that by failing
to turn over the 302s, the Government violated its
Brady obligations. To make the argument, Colorado
requested the 302s, although the defense recognized that a
protective order or redactions may have been necessary to
protect the Government's interests in the 302s. Without
explanation and without request for a protective order, the
Government opposed. We granted Colorado permission to view
with the benefit of the 302s, Colorado argued that the
district court erred in finding that the documents were not
favorable to him. We agreed, and remanded to the district
court to determine whether the information contained in the
302s was suppressed and material. Cessa II, 861 F.3d
at 143. At the district court, the Government augmented its
in-camera disclosure by providing the district court with the
prosecutor notes corresponding to the 302s, as well as
prosecutor notes from meetings with Nayen after the first
trial (for which no 302s were made). With respect to the
prosecutor notes for which no 302s were made, the district
court held that the notes constituted "non-discoverable,
attorney work-product" under the Jencks Act and declined
to consider them. For the notes the district court did
consider, it held that Nayen's statements in his
interviews were not material under Brady, and
therefore, Colorado's conviction could stand.
establish a Brady violation, a defendant must show:
(1) the evidence at issue was favorable to the accused,
either because it was exculpatory or impeaching; (2) the
evidence was suppressed by the prosecution; and (3) the
evidence was material." United States v.
Dvorin, 817 F.3d 438, 450 (5th Cir. 2016).
"Evidence is material if there is 'a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.'" United States v. Brown, 650
F.3d 581, 588 (5th Cir. 2011) (quoting United States v.
Bagley, 473 U.S. 667, 682 (1985)). '"A
reasonable probability of a different result' is one in
which the suppressed evidence 'undermines confidence in
the outcome of the trial.'" Turner v. United
States, 137 S.Ct. 1885, 1893 (2017) (quoting Kyles
v. Whitley, 514 U.S. 419, 434 (1995)).
"Consequently, the issue before us here is legally
simple but factually complex." Id. "We
must examine the trial record, 'evaluat[e]' the
withheld evidence 'in the context of the entire record,
' and determine in light of that examination ...