Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-2008

USA v. Reyeros
Precedential or Non-Precedential: Precedential

Docket No. 06-1485




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                             PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


            No. 06-1485


  UNITED STATES OF AMERICA

                 v.

        JORGE REYEROS,

                                 Appellant
      (D.C. No. 00-cr-00822-1)



            No. 06-1486


  UNITED STATES OF AMERICA

                 v.

         JUAN REYEROS,

                                 Appellant
      (D.C. No. 00-cr-00822-2)
       On Appeal from the United States District Court
                 for the District of New Jersey
        District Judge: Honorable William G. Bassler


                   Argued: April 17, 2008

 Before: SLOVITER, JORDAN, and ALARCON*, Circuit
                     Judges.

                    (Filed: July 31, 2008)



Peter Goldberger [ARGUED]
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276

Paul D. Petruzzi
100 N. Biscayne Blvd., Suite 1100
Miami, FL 33132



   *Honorable Arthur L. Alarcon, Senior Judge, United
States Court of Appeals for the Ninth Circuit, sitting by
designation.



                               2
Neil M. Schuster
555 Northeast 15th Street, Suite 2C
Miami, FL 33132

      Counsel for Appellant Jorge Reyeros

Neil M. Schuster [ARGUED]
555 Northeast 15th Street, Suite 2C
Miami, FL 33132

      Counsel for Appellant Juan Reyeros

George S. Leone
Caroline A. Sadlowski [ARGUED}
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07120

      Counsel for Appellee USA



                 OPINION OF THE COURT


JORDAN, Circuit Judge.

      A jury convicted Jorge Reyeros and his brother, Juan
Reyeros, of offenses related to a conspiracy to import cocaine




                              3
into the United States.1 On appeal, each brother challenges
his conviction and Juan additionally challenges his sentence.
Although both raise a number of issues on appeal, we focus
primarily on, first, Jorge’s contention that the evidence was
insufficient to establish beyond a reasonable doubt that he
knew that the purpose of the conspiracy was to import cocaine
and, second, the brothers’ shared contention that they were
improperly denied access to certain documents in the
possession of the Colombian government, in violation of
Brady v. Maryland, 

(1963) and the Jencks Act,
18 U.S.C. § 3500. For the reasons set forth below, we will
affirm.

I.       Background

       On August 20, 2004, a federal grand jury sitting in the
District of New Jersey returned a second superseding
indictment (the “Indictment”) against Jorge, Juan, Hernan
Uribe, and Rafael Garravito-Garcia. During the time period
charged in the Indictment, Jorge was employed as an
inspector for the United States Customs Service2 (“Customs”)


     1
  For convenience, we will refer to the brothers by their first
names.
     2
  In 2003, after the events at issue here, the United States
Customs Service was divided into the Bureau of Customs and
Border Protection and the Bureau of Immigration and
Customs Enforcement, both of which are part of the
Department of Homeland Security. Reorganization Plan
Modification for the Department of Homeland Security, H.R.
                               4
in New Jersey. Counts 1 through 4 of the Indictment named
only Jorge and charged him, in Count 1, with conspiracy to
import cocaine, in violation of 21 U.S.C. § 963, and, in
Counts 2 through 4, with exceeding authorized access to a
Customs computer, in violation of 18 U.S.C.
§§ 1030(a)(2)(B), (c)(2)(B) and 2. Specifically, the
Indictment alleged that, in 1997, Jorge conspired with
unnamed co-conspirators to import into the United States
cocaine concealed in cargo containers. It also alleged that
Jorge had, on multiple occasions in 1997, unlawfully accessed
a Customs computer database, obtained information
identifying containers designated for inspection by Customs,
and provided that information to his co-conspirators in
furtherance of the conspiracy.

       Count 5 of the Indictment charged Jorge, Juan, Uribe,
and Garravito-Garcia with a separate conspiracy to import
cocaine, in violation of 21 U.S.C. § 963, while Count 6
charged them with exceeding authorized access to a Customs
computer and aiding and abetting exceeding authorized
access, in violation of 18 U.S.C. §§ 1030(a)(2)(B), (c)(2)(B)
and 2.3 The allegations of Count 5 are that, in 1999, Jorge,
Juan, Uribe, and Garravito-Garcia agreed to import cocaine
into the United States from Ecuador, concealed in cargo
containers filled with produce bound for Port Elizabeth, New


Doc. No. 108-32 (2003).
  3
    The defendants were also charged with having attempted
to exceed authorized access, but it appears that aspect of the
charge was not a focus at trial.
                               5
Jersey. Count 6 describes how, in furtherance of that
conspiracy, Jorge unlawfully accessed a Customs computer
database in 1999 to research a company his co-conspirators
had identified as a potential recipient of the smuggled
cocaine.

       The trial against Jorge and Juan began in October
2004. At some point, Juan moved for severance;4 however,
his request was denied by the District Court. Thus, at trial the
government presented evidence of the 1997 conspiracy and
associated charges set forth in Counts 1 through 4 of the
Indictment, which named only Jorge as a defendant, and it
also presented evidence of the 1999 conspiracy and
unauthorized access charges set forth in Counts 5 and 6 of the
Indictment, which named both Jorge and Juan along with
Uribe and Garravito-Garcia.

       Uribe testified at trial on behalf of the government.
When the trial began, Uribe was in a Colombian prison,
where he was serving a sentence for drug trafficking and
conspiracy. He was, however, extradited to the United States
during the trial and immediately entered into a plea agreement
pursuant to which he agreed to cooperate with the
government.5 At trial, Uribe testified that he became involved


  4
  It is not clear from the record when Juan first made that
motion.
  5
   The charges against Garravito-Garcia, the fourth defendant
named in the Indictment, were dismissed without prejudice on
January 18, 2007, apparently because the government has
                               6
in the 1999 conspiracy when Juan asked him for help
identifying an American company through which 400 to 500
kilograms of cocaine could be imported into the United
States. Uribe stated that Juan told him that Jorge was a
Customs inspector and could use that position to ensure
containers containing drugs could enter the United States
without being inspected.

       Uribe described how he sought the help of Garravito-
Garcia to find an American company suitable to receive the
smuggled cocaine. Garravito-Garcia, in turn, contacted an
American acquaintance, James Lagrotteria, for assistance.
Unbeknownst to the conspirators, however, Lagrotteria was
an informant for Customs and the United States Drug
Enforcement Administration (“DEA”).

        Garravito-Garcia introduced Uribe to Lagrotteria in
Colombia in March 1999 and the three men met to discuss
plans to import cocaine into the United States. At that
meeting, Lagrotteria was tasked with identifying an American
company suitable for receiving the imported cocaine,
particularly one with a warehouse in New York or New Jersey
and a history of importing produce. Lagrotteria was told that
the conspirators were working with a Customs official6 and
that the official planned to check a Customs computer


been unable to locate him.
  6
   At some point, again it is not clear, Lagrotteria became
aware of Juan’s and Jorge’s roles in the conspiracy, including
that Jorge was the insider at Customs.
                              7
database to see if any company Lagrotteria identified had
been flagged by Customs as having previously imported
contraband.

       In April 1999, Customs and DEA agents fabricated
records for a fictitious company they named “TJ Import
Produce.” They put the records in a Customs database and,
on April 8, 1999, at the behest of the government agents,
Lagrotteria informed Garravito-Garcia that he had identified
TJ Import Produce as a potential recipient of the cocaine the
conspirators hoped to import. A few days later, on April 12,
1999, Jorge accessed the Customs computer database and
examined the mock importation and inspection records for TJ
Import Produce. Subsequently, Uribe informed Lagrotteria
that TJ Import Produce had been investigated and was
suitable.

        Later that April, Lagrotteria traveled to Colombia to
meet Juan and to discuss with Uribe and Juan the
conspirators’ plans to import cocaine. At that meeting, Uribe
informed Juan and Lagrotteria that he was having trouble
locating 500 kilograms of cocaine. Juan responded that, to
make the conspiracy worth the risks involved, they needed to
import at least 500 kilograms of cocaine, and he suggested
that the conspirators try to locate and pool together smaller
quantities of cocaine in order to amass a large quantity. When
asked at trial why Juan required such a large amount of
cocaine, Uribe explained that Juan “told [him] many, many
times that Jorge needed that quantity -- Jorge Reyeros, his
brother, needed that quantity. He wouldn’t work with other
quantities, two or three hundred, or a hundred, it wasn’t any
good for him.” (Supplemental Appendix [“SA”] 3145.)
When asked what he meant when he said that Jorge wouldn’t
“work with” smaller quantities, Uribe testified, “It means that
he wouldn’t take little amounts of drugs to use his Customs


                              8
position, it would be too little of a deal. He needed big deals.
Big drug deals.” (Id.)

        Uribe also testified that, instead of shipping cocaine
directly from Colombia to the United States, the conspirators
planned to ship the drugs through Ecuador, concealed in a
cargo container purportedly holding bananas. According to
Uribe, Juan explained that the container of drugs should be
shipped from Ecuador instead of Colombia because Jorge had
said it was “impossible to take anything out of Colombia.”
(SA 3176.) Uribe further testified that the conspirators
planned to elude detection by shipping multiple containers at
one time, only one of which would contain drugs. Uribe
stated that Jorge was going to ensure that Customs would
inspect only the containers that did not contain drugs and
would let the container with the drugs “go by.” (SA 3148.)
The conspirators never actually carried out their plan,
however, because they were not able to acquire cocaine.

       The jury found Jorge and Juan guilty of the charges
alleged in Counts 5 and 6 of the Indictment. It also
specifically found, through special interrogatories, that Jorge
and Juan had conspired to import more than 150 kilograms of
cocaine and that Jorge had unlawfully accessed the Customs
computer database in furtherance of the conspiracy. The jury
acquitted Jorge of the charges alleged in Counts 1 through 4.

       After trial, Jorge and Juan each moved for a judgment
of acquittal on Counts 5 and 6. In addition, each moved for a
new trial on a number of grounds, including erroneous
evidentiary rulings, violations of the disclosure obligations
imposed by Brady,7 and prosecutorial misconduct during

  7
   During trial, the defendants sought and were denied
information that they contended was covered by the Jencks
Act.
                               9
closing arguments. The District Court denied the defendants’
post-trial motions, and, on January 26, 2006, sentenced Jorge
to 292 months in prison and Juan to 235 months in prison.

      On appeal, Jorge and Juan challenge their convictions
and Juan challenges his sentence. We have jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.   Discussion

      A.     Sufficiency of the evidence

       Jorge argues that, because the evidence presented at
trial was insufficient to permit the jury to find him guilty
beyond a reasonable doubt, the District Court erroneously
denied his motion for a judgment of acquittal on Counts 5 and
6. As noted earlier, Count 5 charged Jorge, Juan, Uribe, and
Garravito-Garcia with conspiring to import cocaine, in
violation of 21 U.S.C. § 963,8 and Count 6 charged them with
exceeding authorized access in furtherance of the conspiracy
to import cocaine, and aiding and abetting exceeding
authorized access, in violation of 18 U.S.C. §§ 1030(a)(2)(B),
(c)(2)(B) and 2.9 Jorge’s challenge to the sufficiency of the

  8
    Section 952 of Title 21 prohibits the importation of a
controlled substance into the United States, and § 960 of that
title sets forth the penalties for importing a controlled
substance in violation of § 952. Section 963 of Title 21
provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject
to the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.”
  9
    Section 1030(a)(2)(B) of Title 18 prohibits exceeding
authorized access of a computer and thereby obtaining
                             10
evidence is a narrow one: he argues that his convictions must
be vacated because the government failed to introduce
sufficient evidence to establish that he knew that the specific
object of the conspiracy was to import cocaine.10 We
disagree.

       In reviewing a challenge to the sufficiency of the
evidence, we apply a “particularly deferential” standard of
review. United States v. Cothran, 

, 175 (3d Cir.
2002) (quoting United States v. Dent, 

, 187 (3d
Cir. 1998)). We do not weigh the evidence or decide the
credibility of the witnesses. 

must view the
evidence in the light most favorable to the Government and
sustain the verdict if any rational juror could have found the
elements of the crime beyond a reasonable doubt.” 

the requisite elements the government must
show in a conspiracy case is that the alleged conspirators
shared a ‘unity of purpose’, the intent to achieve a common


information from a United States agency, and § 1030(c)(2)(B)
provides an enhanced maximum penalty for violations of
subsection (a)(2), “if ... the offense was committed in
furtherance of any criminal or tortious act in violation of the
Constitution or laws of the United States ... .” The Indictment
alleged that Jorge’s violation of § 1030(a)(2) was committed
in furtherance of the conspiracy to import cocaine alleged in
Count 5.
  10
     Jorge argues that if we vacate his conviction for
conspiring in violation of 21 U.S.C. § 963 (Count 5), his
conviction for exceeding unauthorized access of a Customs
computer in violation of 18 U.S.C. § 1030 (Count 6) must
also be vacated. The government does not address that
argument. And, in light of our decision to affirm Jorge’s
conspiracy conviction, we will not address it either.
                              11
goal, and an agreement to work together toward the goal.”
United States v. Wexler, 

, 90 (3d Cir. 1988) (citing
United States v. Kates, 

, 310-11 (3d Cir. 1975)).
Accordingly, “[i]n order for us to sustain a defendant’s
conviction for conspiracy, the government must have put
forth evidence ‘tending to prove that defendant entered into
an agreement and knew that the agreement had the specific
unlawful purpose charged in the indictment.’” United States
v. Idowu, 

, 268 (3d Cir. 1998) (quoting 

).

        Jorge acknowledges that the evidence presented by the
government is sufficient to support a finding that he accessed
the Customs computer database for an improper reason. It is
a concession practically compelled by the evidence. Jorge
researched the importation and inspection records of the
fictitious TJ Import Produce within a few days of Lagrotteria
telling Garravito-Garcia that he had identified that company
as a potential vehicle for importing cocaine. After Jorge
accessed those records, Uribe informed Lagrotteria that TJ
Import Produce had been investigated by his contact in
Customs and was an acceptable recipient of the to-be-
smuggled cocaine. The evidence is thus damning enough
that, when viewed in the light most favorable to the
government, it is more than sufficient to support a finding that
Jorge knew the purpose of the conspiracy was to import some
form of contraband. Cf. United States v. Iafelice, 

, 97 n.3 (3d Cir. 1992) (“There is no requirement ... that the
inference drawn by the jury be the only inference possible or
that the government’s evidence foreclose every possible
innocent explanation.”). That finding is further supported by
Uribe’s testimony that the conspirators planned to ship the
container full of drugs from Ecuador instead of Colombia
because Juan relayed that Jorge had said it was “impossible to
take anything out of Colombia.” (SA 3176.)


                              12
        Perhaps recognizing that the evidence supports the
conclusion that he knew he was involved in a conspiracy to
bring something illegal into the country, Jorge argues on
appeal that the record fails to show he knew the specific
purpose of the conspiracy was to import cocaine, rather than
some other form of contraband. To support his argument,
Jorge cites a number of cases in which we reversed drug
possession and distribution conspiracy convictions for lack of
evidence that the defendant knew the purpose of the
conspiracy involved drugs. See, e.g., United States v.
Cartwright, 

, 286-90 (3d Cir. 2004); 

; United States v. Thomas, 

, 405-
06 (3d Cir. 1997); United States v. Salmon, 

,
1113-15 (3d Cir. 1991); 

-92. For
example, Jorge relies on Wexler, in which we held that
evidence sufficient to support a finding that a defendant acted
as a lookout for a drug transaction was nevertheless
insufficient to support a finding that the defendant was aware
that drugs were involved in the transaction. 

-92. Although we noted in that case that it was “more
likely than not that [the defendant] suspected, if not actually
knew, that some form of contraband was involved” in the
transaction for which he acted as a lookout, we concluded that
the record lacked any evidence from which the jury could
reasonably infer that the defendant knew that the contraband
involved was drugs. 

There, we reasoned that the
evidence was “just as consistent ... with a conspiracy to
transport stolen goods, an entirely different crime.” Id.; see
also 

(“[E]ven in situations where
the defendant knew that he was engaged in illicit activity, and
knew that ‘some form of contraband’ was involved in the
scheme in which he was participating, the government is
obliged to prove beyond a reasonable doubt that the defendant
had knowledge of the particular illegal objective
contemplated by the conspiracy.”).


                              13
       In this case, however, unlike in Wexler and the other
cases cited by Jorge, there is no evidentiary deficiency. Here,
the government offered evidence showing that Jorge knew
full well that the purpose of the conspiracy was to import a
massive amount of cocaine. Uribe testified that, at an April
1999 meeting with Lagrotteria and Juan, he told them he was
having trouble locating 500 kilograms of cocaine. According
to Uribe, Juan insisted that they needed to import at least that
much because, as Uribe elaborated, Juan said “many, many
times that Jorge needed that quantity -- Jorge Reyeros, his
brother, needed that quantity. He wouldn’t work with other
quantities, two or three hundred, or a hundred, it wasn’t any
good for him.”11 (SA 3145.) As earlier noted, when asked
what was meant by saying that Jorge wouldn’t “work with”
smaller quantities of cocaine, Uribe testified, “It means that
he wouldn’t take little amounts of drugs to use his Customs
position, it would be too little of a deal. He needed big deals.
Big drug deals.” (Id.) That testimony is sufficient to allow a
rational juror to conclude beyond a reasonable doubt that
Jorge was aware that the purpose of the conspiracy was to
import cocaine, as opposed to some other form of




  11
    In context, the plain implication is that Jorge was
speaking not only about some controlled substance but
specifically about cocaine, and the jury specifically found that
object of the conspiracy was to import cocaine.
                              14
contraband.12 We therefore reject Jorge’s challenge to the
sufficiency of the evidence.

       B.     Brady and Jencks

       Next, the defendants contend that the District Court
erred in failing to order the prosecution to turn over
documents filed with Colombian authorities by Uribe as he
opposed his extradition to the United States. The defendants
acknowledge that, at the time of the trial, the documents they
sought were not, and had never been, in the actual possession
of the United States government. The District Court held that,
under the circumstances, the United States government was
not obligated to obtain and produce documents that the
government had never seen and that were in the possession of
a foreign sovereign. We agree with that ruling.

       Uribe was first named as a defendant in this case in a
superseding indictment returned by the grand jury on June 28,
2001.13 Counts 5 and 6 of the first superseding indictment

  12
    Other evidence supports that conclusion as well. For
example, a jury could reasonably infer that Jorge would ask
his own brother, Juan, the nature of the contraband for which
he was putting his Customs career at risk. In addition,
Lagrotteria testified that Jorge was to receive a percentage of
the value of any cocaine imported, which suggests that Jorge
would want to know the nature of the contraband so that he
could understand the expected payoff. Those pieces of
evidence buttress the direct statement of knowledge attributed
to Jorge by his brother Juan.
  13
    The original indictment was returned by the grand jury on
December 21, 2000, and it charged Jorge and Juan with a
single count of conspiring to exceed unauthorized access to a
Customs computer database.
                              15
charged Jorge, Juan, Uribe, and Garravito-Garcia with
conspiracy to import cocaine, attempting to exceed authorized
access to a Customs computer, and aiding and abetting the
attempt to exceed authorized access. When the first
superseding indictment was returned in 2001, Uribe was, as
we have noted, in a Colombian prison serving a sentence for
drug trafficking and conspiracy. While investigating this
case, the United States sought to question Uribe. To that end,
it sent to the government of Colombia a document entitled,
“Vienna Convention Mutual Legal Assistance Request.” (SA
3753.) The request asked Colombian authorities to interview
Uribe using questions provided by the United States and then
to provide a written summary of Uribe’s responses. But
instead of questioning Uribe and providing his answers to the
United States, Colombian authorities permitted United States
Customs investigators to personally interview Uribe in
Colombia.

       That interview took place over the course of two days
on November 19 and 20, 2002 and was memorialized by
Customs investigators in a written report.14 The report
indicates that, before the interview, Maria Cristina Munoz, a
Colombian prosecutor, read to Uribe and his attorney the
questions contained in the United States’ Mutual Legal
Assistance Request in the presence of the Customs
investigators and Carmen Colon, a United States Department
of Justice Judicial Attache. After Munoz finished reading the
questions, Munoz and Colon left the room and the Customs
investigators interviewed Uribe.

       Following the interview, the United States asked
Colombia to extradite Uribe to face the charges in Counts 5
and 6 of the first superseding indictment. Uribe opposed

  14
    The prosecution produced a copy of that report to the
defense during the trial.
                             16
extradition but failed to prevent it; he arrived in the United
States on December 13, 2004, after the grand jury returned the
second superseding indictment, and after the trial of Jorge and
Juan had begun. The same day Uribe arrived, he entered into
a plea agreement which provided that he cooperate with the
United States government and plead guilty to conspiracy to
import cocaine into the United States. The next day, he pled
guilty in accordance with the agreement, and, two days after
that, he testified on behalf of the government at the trial of
Jorge and Juan.

       When it became apparent that Uribe was coming to the
United States and would testify, the defendants asked the
District Court to compel the prosecution to obtain and
produce, among other things, any documents Uribe had filed
with Colombian authorities to oppose his extradition. The
defendants contended that, even if the prosecution did not
actually possess such documents, it had a duty under Brady v.
Maryland, 

(1963), and the Jencks Act, 18 U.S.C.
§ 3500, to acquire them. The essence of the defendants’
argument was that the prosecution constructively possessed
any documents possessed by the Colombian authorities
relating to Uribe’s extradition because Colombia had
cooperated with the United States both by permitting United
States officials to interview Uribe and by acting upon the
United States’ request to extradite him.

        On December 14, 2004, during the trial, the District
Court held a hearing to consider the defendants’ discovery
demands. At the hearing, the government took the position
that it had no obligation to obtain and turn over the documents
sought by the defense. Nevertheless, the prosecutor
represented that the United States was attempting to obtain
documents from Uribe’s attorney in Colombia and that it
would turn over whatever it obtained. As earlier noted, the
District Court denied the discovery demands. It ruled that the

                              17
prosecution was not in actual or constructive possession of the
documents sought by the defense and was therefore not
required under Brady or the Jencks Act to obtain and produce
them.15 The defendants wrongly say that was error.

        Brady stands for the proposition that “the suppression
by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith
or bad faith of the prosecution.” 

. A
Brady violation has three components: the evidence at issue
must be favorable to the defendant; it must be material; and it
must have been suppressed by the prosecution. United States
v. Pelullo, 

, 209 (3d Cir. 2005); United States v.
Perdomo, 

, 970 (3d Cir. 1991). 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.
Bagley, 

, 682 (1985). Material evidence can
include evidence that may be used to impeach a witness. 

Giglio v. United States, 

, 154 (1972).

        Brady prohibits the prosecution from “supress[ing]”
material, favorable 

, but that does
not mean that the prosecution’s duty to disclose is limited to
evidence within the actual knowledge or possession of the
prosecutor. It is well-settled that the prosecution has a duty to
learn of and disclose information “known to the others acting
on the government’s behalf in the case ... .” Kyles v. Whitley,

, 437 (1995). Accordingly, it has been held that
a state prosecutor has a duty to obtain and turn over to the
defense favorable evidence known to a state police officer

  15
    Despite the District Court’s ruling, it appears that the
prosecution did obtain some documents from Uribe’s attorney
and did turn them over to the defense.
                               18
who investigated the case. 

Similarly, a federal
prosecutor is charged with knowledge of information
possessed by other agents of the federal government when
those agents are a part of a “prosecution team,” which
includes federal personnel involved in the investigation as
well as the prosecution of a case. 

;
see also United States v. Antone, 

, 569 (5th Cir.
1979) (“[T]his Court has declined to draw a distinction
between different agencies under the same government,
focusing instead upon the ‘prosecution team’ which includes
both investigative and prosecutorial personnel.”).

        In some cases, the government’s obligations under
Brady may extend even further. We have held that, under
certain circumstances, evidence possessed by state agents may
be constructively possessed by a federal prosecutor such that
the prosecutor has a duty to obtain that evidence and disclose
it to the defense. See United States v. Risha, 

,
303-06 (3d Cir. 2006); see also 

.
In Risha, we called this issue “cross-jurisdiction constructive
knowledge.” 

. We considered in that
case whether it was proper to impute to a federal prosecutor
the knowledge of state agents that a witness who had testified
in a federal criminal case expected leniency with respect to
unrelated state charges, in return for his cooperation in the
federal case. 

federal prosecutor did not
know that the witness expected leniency in state court in
return for his testimony, we concluded that the federal
prosecutor might, under certain circumstances, be deemed to
have constructive knowledge of that information if it was
known to the state agents. 

       We held that a case-by-case analysis was appropriate
when considering a federal prosecutor’s constructive
knowledge, and we set forth three questions as relevant to the
analysis: “(1) whether the party with knowledge of the

                              19
information is acting on the government’s ‘behalf’ or is under
its ‘control’; (2) the extent to which state and federal
governments are part of a ‘team,’ are participating in a ‘joint
investigation’ or are sharing resources; and (3) whether the
entity charged with constructive possession has ‘ready access’
to the evidence.” 

The first question concerns the
“intermingling” of the forces of the federal government with
the forces of the state sovereign.16 

question is
closely related to the first and asks whether the federal
government and the state “are part of a team or are engaged in
a joint effort” or whether they had a “close working
relationship.” 

The last question considers whether
the information the defense alleges should have been
disclosed was available to the prosecution if it had sought to
discover it. 

we opined that facts indicating that
a state agent was heavily involved in the prosecution and
knew of impeachment evidence would support a conclusion
that federal prosecutors had constructive knowledge of that
evidence. 

        Our holding in Risha relied, in part, on the opinion of
the United States Court of Appeals for the Fifth Circuit in
United States v. Antone. In that case, the Fifth Circuit
considered whether knowledge of state investigative agents
should be imputed to federal prosecutors where there was a
joint investigative task force composed of FBI agents and

  16
    Implied though not stated in this inquiry into
“intermingling” is the idea that the federal government would
be the controlling entity in a federal-state partnership.
Whether that is a sound assumption in all cases is open to
debate. If the Risha test were applicable in the context of
cooperation between the United States and a foreign
sovereign, a proposition not without doubt (see infra), simply
showing an “intermingling” of assets would clearly not be
sufficient to show the control assumed in Risha.
                               20
state agents. 

. The defendants
argued that evidence that a witness’s attorney fees had been
paid by the state was material because it could have been used
to impeach the witness, and they argued further that the state
agents’ knowledge of that evidence should be imputed to the
federal prosecutors for purposes of determining whether the
evidence had been suppressed in violation of Brady. 

       The Fifth Circuit agreed that the state agent’s
knowledge should be imputed to federal prosecutors. The
Court first noted that, if the investigators with knowledge of
the evidence had worked for a federal agency, their
knowledge would have been imputed to the prosecution for
Brady purposes. 

The Court went on to consider
whether evidence in the possession of the state investigators
should be treated differently because those investigators
represented a different sovereign. Instead of imposing a
“rigid distinction” between knowledge possessed by the
federal and state agencies, the court endorsed a “case-by-case
analysis of the extent of interaction and cooperation between
the two governments.” 

The Fifth Circuit
ultimately concluded that the knowledge of the state
investigators should be imputed to the federal prosecutors in
that case because the federal and state investigative agencies
had “cooperated intimately from the outset of [the]
investigation” and the degree of cooperation was “extensive.”

the Court, the state investigators essentially
“functioned as agents of the federal government under the
principles of agency law” and “were in a real sense members
of the prosecutorial team.” 

in the present case is markedly different.
First, and most obviously, it involves a foreign sovereign,
which implicates issues that may well make a showing of
effective federal control of foreign evidence more sensitive

                               21
and demanding than is suggested by the Risha factors. But
even if Risha were the operative test, the defendants do not
meet that less demanding standard.17 The first Risha
factor–whether the individuals with possession of the
requested information were acting on the federal
government’s “behalf” or were under its “control”–does not
support a determination of constructive possession in this
case. 

. There is nothing of record to
indicate that the nation of Colombia was somehow under
American control in the investigation of this case, or that any
Colombian authorities were members of a United States
“prosecution team.” Unlike the state agents in Antone,
Colombian authorities did not function as agents of the United
States government. It is true that the Colombian government
acted at the request of the prosecution in permitting the
federal investigators to interview Uribe; however, beyond the
initial recitation of the officially propounded questions, no
Colombian officials participated in that interview or any other
part of the investigation. Moreover, while Colombian
officials naturally participated in the Colombian judicial
proceeding that resulted in Uribe’s extradition, those
authorities did not function as agents of the United States
government or act under its control. Instead, they acted on
behalf of their own government in responding to a request
from the United States. The level of cooperation extended by
the Colombian government, while admirable, appears to have
been nothing more than the comity called for by treaty and
custom. We decline to adopt the defendants’ suggestion that
a determination of constructive possession is appropriate


  17
    We assume, for purposes of discussion only, that the
evidence sought by the defendants was both favorable to the
defense and material, focusing instead on Brady’s
requirement that the evidence must have been in the
possession of the prosecution.
                              22
whenever a foreign government responds to a request from
the United States for investigative or judicial assistance.

       Nor does the second Risha factor support a
determination of constructive possession. There was no joint
investigation by the United States and Colombian
governments regarding the events alleged in the Indictment.
Indeed, there is no indication that the two governments shared
any investigative resources whatsoever.18 See

  18
     The defendants point to a document that, they say,
suggests there was a joint investigation. The document is a
letter sent by Uribe in July 2004 to a Colombian Magistrate,
in which Uribe states that Maria Cristina Munoz, a Colombian
prosecutor, informed him in 2001 that United States Customs
agents wanted to interview him. In the letter, Uribe states that
he “spontaneously” told Munoz what he knew about the
conspiracy now at issue. (Joint Appendix 456.) The
defendants seem to contend that that letter establishes the
existence of a joint investigation between the United States
and Colombia.
         It is questionable whether the defendants’ argument
with respect to Uribe’s July 2004 letter is properly put to us at
all since it does not appear to have been presented to the
District Court. In any event, the fact that Uribe spoke to a
Colombian prosecutor regarding the events alleged in the
Indictment does not indicate the existence of a joint
investigation. The relevant question, again, is not whether a
Colombian official may have learned of evidence relevant to
this case, but whether the Colombian government was
engaged in a cooperative investigation with the United States
government. Uribe’s letter does not suggest that it was. No
more persuasive is the defendants’ contention that a joint
investigation is shown by evidence that Carmen Colon, a
United States Department of Justice Judicial Attache,
contacted Uribe’s Colombian attorney regarding the United
                               23
States’ desire to secure Uribe’s testimony. The defendants
have not explained how evidence of communications between
an agent of the United States government and Uribe’s
attorney demonstrates that there was a joint investigation
between the United States and the government of Colombia.
        The defendants’ briefs also refer to a document that
they claim to have recovered after trial from a Colombian
court extradition file. That document appears to be a letter
sent by Uribe to the Attorney General of Colombia in May
2004 and is strikingly similar to Uribe’s July 2004 letter to the
Colombian Magistrate. Moreover, the May 2004 letter was
never presented to the District Court and is not properly part
of the record on appeal. Fed. R. App. P. 10(a).
        Despite the lack of evidence indicating a joint
investigation, the defendants argue that the District Court
should have held an evidentiary hearing regarding their
contention that the United States and Colombia undertook
such an investigation. However, as just indicated, the
defendants did not provide any good cause for a hearing. Put
simply, they have failed, both before the District Court and on
appeal, to articulate how an evidentiary hearing would have
helped them establish that there was a joint investigation.
Because they did not make a threshold showing that a
material fact was in dispute, their demand for an evidentiary
hearing warranted no more consideration than the District
Court gave it. Cf. United States v. Panitz, 

,
1273 (1st Cir. 1990) (“The test for granting an evidentiary
hearing in a criminal case [is] substantive: did the defendant
make a sufficient threshold showing that material facts were
in doubt or dispute?”); Gov’t of Virgin Islands v. Martinez,

, 306-08 (3d Cir. 1986) (holding that an
evidentiary hearing regarding an alleged Brady violation was
appropriate when an affidavit submitted by the defendant to
the district court raised “genuine issues of material fact”)
(quoting United States v. Dansker, 

, 1264 (3d
                               24
Moon v. Head, 

, 1310 (11th Cir. 2002)
(refusing to impute to a Georgia state prosecutor evidence
possessed by Tennessee law enforcement officials when there
was no evidence that Tennessee officials and Georgia
prosecutors had participated in a joint investigation).

        Finally, the third Risha factor–whether the federal
government had “ready access” to the sought-after
information–does not support a determination of constructive
possession. 

. The record suggests that
the prosecution did not have access to the documents in
Uribe’s Colombian court file, aside from those documents it
was able to obtain from Uribe’s attorney in Colombia. Cf.
United States v. Hughes, 

, 688 (1st Cir. 2000)
(holding that the prosecution was not required to produce
crime scene photographs in the possession of the Mexican
government because “the government has no duty to produce
evidence outside of its control”); United States v. Friedman,

, 120 (9th Cir. 1979) (holding that Brady did not
require evidence seized by the Chilean government to be
produced when the federal government had no access to the
evidence). More importantly, though, we could not conclude
that the prosecution had constructive possession of the
requested documents in this case even if it could have
acquired them. The mere fact that documents may be
obtainable is insufficient to establish constructive possession.
Without a showing that evidence is possessed by people
engaged in the investigation or prosecution of the case, we
have declined to hold that the evidence was constructively
possessed by federal prosecutors, despite its being in the
possession of another agent of the federal government and




Cir. 1977)).
                              25
therefore presumably obtainable.19 See, e.g., 

(holding that information known to officials in the
United States Department of Labor was not constructively
known to federal prosecutors when there was no indication
that the prosecution and the officials engaged in a joint
investigation or that the prosecution had any control over the
officials); United States v. Merlino, 

, 154 (3d
Cir. 2003) (holding that there is no “duty on the prosecutor’s
office to learn of information possessed by other government
agencies that have no involvement in the investigation or
prosecution at issue”) (quoting United States v. Morris, 

, 1169 (7th Cir. 1996)).

      In sum, after examining the factors set forth in Risha,
we conclude that the United States was not in constructive
possession of evidence, if there were any, possessed by
Colombian authorities, and thus there was no violation of
Brady in this case.

        We also reject the defendants’ argument that the
prosecution was obligated by the Jencks Act to turn over
documents filed by Uribe in Colombia in opposition to his
extradition. Jencks requires the prosecution to produce a
witness statement “in the possession of the United States
which relates to the subject matter as to which the witness has
testified.” 18 U.S.C. § 3500(b). We have held that the phrase
“in the possession of the United States” should be read to
“require production only of statements possessed by the
prosecutorial arm of the federal government.” 

(quoting United States v. Dansker, 

,
61 (3d Cir. 1976)); see also United States v. Weaver, 

, 245 (3d Cir. 2001) (“[T]he Jencks Act only applies to
evidence in the possession of the United States, and not state

  19
    This, of course, assumes that the exculpatory information
in question was not known to the prosecutors.
                              26
authorities ... .”); 

(holding that the
Jencks Act did not require the production of evidence that had
been seized by the Chilean government). In this case, the
documents sought were allegedly located in Uribe’s
Colombian court file. We reject any general assertion, and
certainly any assertion on this record, that Colombian courts
serve as an arm of the United States government.20 Therefore,
we also reject the defendants’ argument that the prosecution
was required to obtain and turn over those documents under
the Jencks Act.21

  20
     We recognize the existence of authority from the United
States Court of Appeals for the Second Circuit that suggests
the United States might have a duty under the Jencks Act to
attempt to obtain and produce written statements that are in
the actual possession of another sovereign when the two
governments have engaged in a joint investigation. See
United States v. Paternina-Vergara, 

, 998 (2d
Cir. 1984) (holding that the most the Jencks Act requires
when there is a joint investigation is “a good-faith effort to
obtain the statements of prosecution witnesses in the
possession of the foreign government” and concluding that
the prosecution in that case had made such an effort). We
need not address that issue today, however, because, as
explained above, there was no joint investigation in this case.
Cf. United States v. Durham, 

, 860-61 (9th Cir.
1991) (holding that a federal prosecutor had no obligation
under the Jencks Act to provide written statements in the
possession of a state agency, noting that federal and state
agencies had not undertaken a joint investigation in that case).
  21
    The defendants contend that the prosecution committed a
number of other Brady violations unrelated to the alleged
suppression of evidence in the possession of Colombian
authorities. As those additional arguments are vague,
conclusory, and, ultimately, unpersuasive, we address them
                              27
       C.     Other challenges to the convictions

        Jorge and Juan raise a number of other issues related to
their convictions, none of which, either alone or in
combination, warrant a new trial. First, Juan challenges the
District Court’s decision to deny his motion for severance.
We review under an abuse-of-discretion standard a district
court’s decision not to sever defendants. Zafiro v. United
States, 

, 538-39 (1993). Even if a district court
abuses its discretion, however, reversal is not required absent
a demonstration of “clear and substantial prejudice resulting
in a manifestly unfair trial.” United States v. Hart, 

, 370 (3d Cir. 2001) (internal quotation marks omitted).

        Federal Rule of Criminal Procedure 8(b) states that
defendants may be charged together in an indictment “if they
are alleged to have participated in the same act or transaction,
or in the same series of acts or transactions, constituting an
offense or offenses.” Fed. R. Crim. P. 8(b). It further
provides that “[a]ll defendants need not be charged in each
count.” 

in turn, permits a court to sever
defendants’ trials if the joinder of defendants in an indictment
“appears to prejudice a defendant.” Fed. R. Crim. P. 14(a).
“[W]hen defendants properly have been joined under Rule
8(b), a district court should grant a severance under Rule 14
only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or
prevent the jury from making a reliable judgment about guilt
or innocence.” 

.

       Juan does not contend that he and Jorge were
improperly charged together in the Indictment. Instead, he
appears to argue that the District Court abused its discretion in
declining to sever his trial from Jorge’s because evidence of


no further.
                               28
the separate conspiracy alleged in Counts 1 through 4, counts
which name only Jorge as a defendant, had the potential to
lead a jury to conclude Juan was involved in that conspiracy
and thus to unfairly lead the jury to find Juan guilty on Counts
5 and 6.22 Juan further argues that the joint trial subjected him
to actual prejudice, not only because the jury heard evidence
that was only relevant to Counts 1 through 4, but also because
the prosecutor confused Jorge’s and Juan’s names on multiple
occasions.

       In denying Juan’s motion to sever, the District Court
concluded that any potential prejudice to Juan resulting from
the joint trial could be cured by limiting instructions, which
the District Court gave. We agree. The risk of unfair
prejudice in this case was not such that the District Court was
bound to grant Juan’s motion to sever. Cf. 

(“[E]ven if there were some risk of prejudice, here it is of
the type that can be cured with proper instructions, and ‘juries
are presumed to follow their instructions.’”) (quoting
Richardson v. Marsh, 

, 211 (1987)).

        However, even if we agreed with Juan that the District
Court abused its discretion in denying his motion to sever, he
has failed to demonstrate “clear and substantial prejudice
resulting in a manifestly unfair trial.” 

(internal quotation marks omitted). There is no reason to
believe that the jury failed to understand the District Court’s
instructions regarding how to use the evidence offered against

  22
    Portions of Juan’s brief appear to suggest that the District
Court should have granted his motion for severance not
because the joint trial created a risk of prejudice but because
of what actually developed during trial. But, of course, the
question of whether the District Court abused its discretion in
denying his motion for severance should be judged as of the
time the motion was ruled on.
                               29
Jorge on Counts 1 through 4. Moreover, although “evidence
of a codefendant’s wrongdoing in some circumstances
erroneously could lead a jury to conclude that a defendant was
guilty,” 

, Juan’s assertion that the jury
so erred in this case has no force, given the jury’s acquittal of
Jorge on Counts 1 through 4. Finally, although it appears that
the prosecutor mixed up Jorge’s and Juan’s names on more
than one occasion, the trial transcript indicates that, on each
occasion, the prosecutor either corrected himself or was
corrected by the Court. After examining the record, we are
unpersuaded that Juan suffered any prejudice, let alone clear
and substantial prejudice, by being tried with his brother, and
we therefore reject his challenge to the District Court’s denial
of his motion to sever.

       Next, the defendants allege that many of the District
Court’s evidentiary rulings constituted abuses of discretion.
These complaints truly warrant little comment. Suffice it to
say that, having examined the record, we see no abuse of
discretion in the experienced District Judge’s even-handed
rulings on evidentiary questions.23 We also reject Juan’s
assertion that the District Court abused its discretion in failing

  23
     The defendants’ argument that the District Court
improperly admitted testimony regarding a phone
conversation between Juan and Lagrotteria lacks merit
because the record reflects that the Court struck that
testimony and instructed the jury not to consider it. For the
same reason, there is nothing to the defendants’ argument that
the District Court erroneously admitted testimony from Uribe
that the jury might have understood to refer to prior drug
deals by the defendants. Finally, we cannot conclude that
District Court abused its discretion in admitting Lagrotteria’s
testimony regarding the amount of profit his co-conspirators
told him he could expect to receive for his participation in the
conspiracy.
                               30
to grant a mistrial after Lagrotteria testified regarding an
unrecorded phone conversation he had with Juan, during
which Juan was “clowning around” and told Lagrotteria that
Juan had a gun to Uribe’s head. (SA 594.) The District Court
immediately struck that portion of Lagrotteria’s testimony and
instructed the jury to disregard it. Assuming, without
deciding, that the challenged testimony was inadmissible, we
believe that the Court’s instruction was more than sufficient
to cure any unfair prejudice.

       In addition, we reject the defendants’ argument that the
District Court abused its discretion in failing to grant a
mistrial as a result of alleged prosecutorial misconduct during
closing arguments. Again, we are unpersuaded that the
challenged comments, assuming they were improper, affected
the jury’s ability to judge the evidence fairly.

        Finally, we decline the invitation to aggregate these
alleged errors and then conclude the defendants were deprived
of a fair trial. Even when all of the defendants’ complaints
are combined, the District Court’s handing of this highly
contentious case was admirable, not error-ridden.

       D.     Sentencing

        We turn last to Juan’s challenge to his sentence. He
argues that he should be re-sentenced because, prior to his
sentencing, the District Judge spoke with Uribe off the record.
The record in this regard is less than clear but it does appear
that the District Judge did speak with Uribe before sentencing
and that their discussion was outside of the presence of the
parties and was not transcribed. We are nevertheless
compelled to conclude that Juan waived any objection he
might otherwise have had regarding that discussion.



                              31
       Prior to sentencing, the defendants moved for
downward departures under the advisory Guidelines. The
government opposed the motions and offered to put Uribe on
the stand at the sentencing hearing to provide a factual
rebuttal to the defendants’ contentions. The government
requested, however, that the District Court limit the
defendants’ cross-examination regarding the identity of one of
Uribe’s cocaine suppliers because Uribe believed he would be
in mortal danger if he openly named the supplier. The
defendants objected to any limitation being placed upon
Uribe’s cross-examination, but Juan’s counsel expressly
affirmed he had no objection to the sensitive portion of
Uribe’s testimony being taken “in camera.”24 (SA 3816.)

        On the morning of the sentencing hearing, counsel for
both sides spoke with the District Judge in chambers prior to
the hearing. That conference was not placed on the record.
Later, at the beginning of the sentencing hearing, the District
Judge noted that the defendants had agreed during the off-the-
record conference to withdraw their motions for downward
departures and that, as a result, the government was no longer
seeking to introduce Uribe’s testimony at the sentencing
hearing. The government still offered to have Uribe testify, if
the District Judge believed such testimony would be relevant
in determining the appropriate sentences to impose. The
Judge indicated, however, that he did not need to hear from
Uribe, that Uribe’s testimony would only have been relevant
to the defense motions for downward departure, which had
been withdrawn. The Court proceeded to sentencing without
further discussion on that point.


  24
    It’s unclear what the parties understood “in camera” to
mean. Statements by the prosecution indicate that it
contemplated the defendants being present during the portion
of Uribe’s cross-examination that was to be taken in camera.
                              32
        After the Court had imposed sentence, counsel for Juan
stated, “I forgot earlier after the ex parte meeting with Mr.
Uribe to register my objection.” (SA 3713.) The following
exchange then took place, in which the District Court
understandably displayed its consternation:

                    THE COURT: That’s very
             fine, but I don’t recall that ever
             being indicated to me before I
             engaged in this exercise. I didn’t
             hear any objection from anybody.
                    ...

                    What are you saying to
             me?

                    [JUAN’S COUNSEL]:
             That we did not have an
             opportunity on the record to
             object to the ex parte proceeding.

                    THE COURT: Where have
             you been? I came out here a
             number of times before I began
             the sentencing and I never heard
             anything about this. In fact, I kept
             Uribe here in the event there
             would be a problem about my
             decision or your decision to not
             proceed with the motion to depart.

                   [JORGE’S COUNSEL]:
             Your Honor advised us, me and
             advised [another of Juan’s
             counsel] and myself and [Juan’s
             counsel] had an opportunity to

                             33
object had we so determined. So I
absent myself from --

        THE COURT: I appreciate
that. I try to bend over backwards
to make this a fair proceeding. I
really do.

      [JORGE’S COUNSEL]:
No question about that.

       ...

       THE COURT: ... You
[Juan’s counsel] made the
objection for the record. Let me
make something for the record.

        You know, every time I do
this I regret it. It’s only happened
to me one time before. ...

        Every time, at counsel[’]s
request, Judge can we see you in
chambers before you come out? I
thought to myself well, you know,
these are respected attorneys. I
rely on what they say. I don’t
have any problem discussing
preliminarily something that’s of
concern to them. So, I didn’t have
a Court Reporter in there which
reflects my trust in counsel. And
then to come out here now and
have defense counsel tell me that


                34
               they object to my ex parte
               proceeding. In fact --

                     [JORGE’S COUNSEL]:
               Not me.

                       THE COURT: I recognize
               it’s [Juan’s counsel].

                       In fact, in chambers off the
               record I think I originally said
               government counsel will conduct
               the [sic] examinaiton. Then I said
               to myself well, that doesn’t make
               any sense. Why should I have
               government counsel in here with
               defense counsel in here. So, I’ll
               talk to the witness, Mr. Uribe,
               myself with no counsel present. I
               never heard a single objection
               about that. ...

(SA 3713-15.)

       On appeal, Juan alleges that the District Judge may
have improperly relied on information he obtained by Uribe
during their private discussion in deciding upon the sentence
to impose. He requests that we vacate Juan’s sentence and
remand for re-sentencing before a different judge. Although
the precise basis for his assertion of error is not entirely clear,
he appears to contend that the conversation between Uribe
and the District Judge violated his right to due process
because any comment Uribe might have made was untested
and unreliable.



                                35
       After examining the transcript of the sentencing
proceeding, we conclude that Juan waived whatever argument
he might have had because he agreed to have the District
Court speak with Uribe off the record and alone prior to the
sentencing hearing.25 The transcript indicates that the Court
explicitly gave all counsel, including counsel for both Jorge
and Juan, an opportunity to structure how certain information
relevant to the defendants’ downward departure motions
would be received from Uribe. Counsel not only failed to
object, they played a direct role in developing how the
discussion with Uribe would take place. Under those
circumstances, the Judge understood–and it was entirely
reasonable for him to understand–that Juan, through his
counsel, had agreed to the Judge speaking with Uribe
privately prior to the sentencing hearing. Cf. United States v.
Mitchell, 

, 807-09 (1st Cir. 1996) (counsel’s lack
of objection coupled with behavior suggesting assent
constituted a waiver). We share the District Court’s distress
at gamesmanship so blatant that even counsel for Juan’s
brother distanced himself from it, and we hold that Juan’s late
objection was waived.26




  25
    We note, however, that there is no indication from the
transcript of the sentencing proceeding that, when deciding
upon the sentences to impose, the District Judge relied in any
way upon information he might have received from Uribe
during their private discussion.
  26
    We emphasize, though, that district courts should avoid
off-the-record discussions with either counsel or witnesses.
As this case demonstrates, such a procedure may tempt a
disappointed party to adopt dubious tactics to overturn a
decision. Although counsel’s “I forgot to object” ploy is
devoid of merit, it provides a cautionary tale.
                              36
III.   Conclusion

       For the reasons set forth above, we will affirm the
District Court’s judgments of conviction and sentence.




                              37