In the

United States Court of Appeals
                 For the Seventh Circuit
                          ____________

No. 06-3607

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

JAVIER R EYES,
                                               Defendant-Appellant.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 04 CR 970—Harry D. Leinenweber, Judge.
                          ____________

      A RGUED JUNE 4, 2008—D ECIDED S EPTEMBER 5, 2008
                          ____________



  Before B AUER, W OOD and W ILLIAMS, Circuit Judges.
  B AUER, Circuit Judge. A jury convicted Javier Reyes of
conspiracy to commit bank robbery, bank robbery, and
possessing and brandishing a handgun in furtherance
of violence. The district court sentenced Reyes to 300
months’ imprisonment. On appeal, Reyes argues that the
district court erred in allowing evidence of his prior bad
acts, limiting the scope of cross-examination of a co-
defendant witness, and denying his motion for new trial.
For the following reasons, we affirm.
2                                             No. 06-3607

                  I. BACKGROUND
  In the early morning of August 23, 2004, Antonio
Vasquez, Ramon Berrios, Walter DeJesus, and Jose Torres
robbed the WECO Credit Union in West Chicago, Illinois.
Around 7:00 a.m., DeJesus entered the Credit Union
while the others kept watch outside in two separate cars.
DeJesus, brandishing a gun, led Ron Schuermann, the
only employee on duty at that time, to the rear of the
building. Vasquez then entered the Credit Union, emptied
money from an open safe, opened a second safe with
keys found in the first safe, and demanded that
Schuermann divulge the combination to a third safe.
Schuermann obliged. After packing up the money from
the third safe, the two men returned to the cars and drove
off.
  During the robbery, Reyes was many miles away,
enjoying a vacation in the Wisconsin Dells. But he had
his own connection to the Credit Union. Earlier in the
year, Reyes had worked there as a loan officer, but had
been fired after three months on the job. While in the
process of getting fired, Reyes overheard that the Credit
Union’s security cameras did not work.
  According to Vasquez, DeJesus, and Torres—all of whom
would later testify for the government against Reyes
pursuant to a cooperation agreement—in mid-August,
2004, Reyes had a series of conversations with each of
them in which they discussed robbing the Credit Union.
Eventually, Reyes provided DeJesus and Vasquez with
information that: (1) the security cameras at the Credit
Union did not work; (2) Schuermann, the President of the
No. 06-3607                                               3

Credit Union, would be working alone between 7:00 and
8:00 a.m.; (3) the Credit Union had three safes, the first
of which would have the keys to the second, and the
third of which would require the combination kept by
Schuermann. In addition, Reyes drew a map of the
floorplan of the Credit Union, showing the locations of the
safes, the panic switches for the alarms, and the entrances
and exits to the building. Reyes, according to his co-
conspirators, gave further instructions on what to do
with the proceeds of the robbery and told of his intention
to create an alibi by heading to Wisconsin. After the
robbery, Reyes made several demands regarding his
share of the profits.
  On January 11, 2005, a grand jury indictment charged
Reyes with conspiracy to commit bank robbery in viola-
tion of 18 U.S.C. § 371 (Count I); bank robbery in violation
of 18 U.S.C. § 2113(a) (Count II); and possessing and
brandishing a handgun in furtherance of violence in
violation of 18 U.S.C. § 924(c)(1)(A) (Count III). Reyes’s
defense relied on attacking the testimony of the co-defen-
dants as inconsistent and biased. He also argued that, if
he had disclosed information to his co-defendants, he did
so innocently and without any intent to commit a crime.
On October 19, 2005, the jury found Reyes guilty of all
charges. Reyes filed a motion for a new trial on
November 9, 2005 and another motion for a new trial
claiming newly discovered evidence on April 26, 2006.
  On August 31, 2006, the district court denied both
motions. That same day, the court sentenced Reyes to
60 months’ imprisonment on Count I and 216 months’
4                                               No. 06-3607

imprisonment on Count II, to be served concurrently. The
court also sentenced Reyes to 84 months’ imprisonment
for Count III, to be served consecutively to the sentences
for Counts I and II. The court also imposed a three-year
term of supervised release, a special assessment of $300,
and restitution in the amount of $107,803.36. This timely
appeal followed.


                    II. DISCUSSION
  On appeal, Reyes argues that the district court:
(1) abused its discretion in granting the government’s
motion to allow evidence of Reyes’s alleged prior crim-
inal behavior; (2) denied Reyes a fair trial by narrowing
the scope of his cross-examination of Torres; and (3)
abused its discretion in denying his motion for a new
trial based on newly discovered evidence. We will
address each issue in turn.


    A. Introduction of Rule 404(b) Evidence
  Prior to trial, the government filed a motion asking the
district court to allow the introduction of evidence of prior
bad acts of Reyes under Federal Rule of Evidence 404(b).
The evidence involved Reyes’s participation in a series
of previous robberies and a bank fraud scheme with two
of his co-conspirators.
  At Reyes’s trial, DeJesus testified that he had partici-
pated in “[a]bout two” other robberies with Reyes. He
testified that the two had participated in the robbery of a
No. 06-3607                                              5

bowling alley “[a]round 2003” and the robbery of a house
in “[e]arly 2003 or late 2002.” DeJesus gave no other
details about either robbery.
  Torres testified that he and Reyes “had done another
robbery before” but were never caught. According to
Torres, the robbery occurred “in 2003 in Hinsdale—or
Hinkley.” Torres further testified that Reyes had at-
tempted to involve him in a scheme whereby Torres would
pose as a Credit Union customer and withdraw money
from that customer’s account. However, Torres chose not
to participate in the crime, offering an oddly generous
reason for his decision: “It wasn’t a fair split. He was
talking about like $5,000. I would get $4,500 and he would
get $500.”
  The government argued that the evidence was necessary
to show “the nature and strength of the relationship
between [the] co-conspirators” and “to show [Mr. Reyes’s]
intent in providing information to them.” The court stated:
   Well, it is propensity evidence, but it also would rebut
   the fact that the defendant innocently disclosed certain
   information which made the bank robbery feasible
   or possible. If that’s your defense, then I’m going to
   grant their motion and allow them to introduce that. If
   that’s not your defense, then I would be inclined to
   believe that the prejudice certainly exceeds—that the
   propensity, it’s certainly more proof of propensity. But
   I think that they’re entitled to know that they had
   previous relationships, you know, that make it more
   likely, makes it certainly more likely true that he
   didn’t believe that he was innocently disclosing infor-
   mation. So it all depends on what your defense is.
6                                                No. 06-3607

The court ultimately ruled that it would allow the prior
acts because it was relevant as to whether Reyes unwit-
tingly provided the information to the co-defendants.
  We review a district court’s decision to allow Rule 404(b)
evidence for an abuse of discretion. United States v. Moore,

, 499 (7th Cir. 2008). Four conditions must be
met to allow the introduction of evidence under 404(b):
    (1) the evidence is directed toward establishing a
        matter in issue other than the defendant’s propen-
        sity to commit the crime charged;
    (2) the evidence shows that the other act is similar
        enough and close enough in time to be relevant to
        the matter in issue;
    (3) the evidence is sufficient to support a jury finding
        that the defendant committed the similar act; and
    (4) the probative value of the evidence is not substan-
        tially outweighed by the danger of unfair preju-
        dice.

States v. Ross, 

, 713 (7th Cir.
2007)).
  Reyes contends that the government failed to meet all
four of these requirements, but we only need to focus on
the third; the Rule 404(b) evidence introduced falls short
of meeting it. We have held that the “preponderance”
standard is appropriate for determining the admissibility
of prior acts evidence. United States v. Burke, 

,
410 (7th Cir. 2005) (citing Huddleston v. United States, 

, 690, 

, 

(1988)). Even
No. 06-3607                                               7

by this standard, the evidence of the prior robberies lacks
the requisite factual support; the support that Torres and
DeJesus do provide is inconsistent and contradictory.
Torres could not identify in which of two Chicago
suburbs his robbery took place and could only put the
time of the robbery within a year. DeJesus could not even
identify the year when either of his two robberies took
place; as for the location, the only affirmative details he
gave were that one occurred in a house and another in a
bowling alley. There was no corroborating evidence to
support these allegations of the witnesses.
  The government argues that even if the evidence of
these acts was slight, the robberies were introduced for a
limited purpose, and the district court issued a limiting
instruction. While this may be true, it does not relieve the
government of its obligation to meet the requirement that
the evidence be “sufficient to support a jury finding.”
  However, this error was harmless beyond a reasonable
doubt. “Error in admitting Rule 404(b) evidence may be
deemed harmless if we are convinced that the error did not
influence the jury, or had but very slight effect, and can
say with fair assurance . . . that the judgment was not
substantially swayed by the error.” United States v. Dennis,

, 769-70 (7th Cir. 2007) (internal quotations
and citation omitted). The government presented enough
evidence at trial to satisfy any concern that the error
swayed the jury. The testimony of the co-conspirators
showed that Reyes played a key role in organizing and
plotting the Credit Union heist. Reyes gave specific and
extensive details about the inner workings of the Credit
8                                               No. 06-3607

Union, including the strengths and weaknesses of the
security system. He pinpointed the location of the safes
and how to access them, and recommended the ideal time
to commit the robbery. Moreover, the government did not
discuss the prior acts in summation or rebuttal, and the
district court gave a limiting instruction on the use of the
evidence. In light of the limited use of this evidence and
substantial evidence of guilt presented at trial, we are
satisfied that the error did not improperly influence
the jury.


    B. Limiting Cross-Examination
  Reyes next argues that he was denied a fair trial by the
cutting off of his cross-examination of co-defendant Torres.
Under the Confrontation Clause of the Sixth Amendment,
a defendant must be given an opportunity for effective
cross-examination. Pennsylvania v. Ritchie, 

, 51,

, 

(1987); United States v. Smith,

, 714 (7th Cir. 2006). We review a district
court’s decision to limit the extent of cross-examination
for abuse of discretion. United States v. Khan, 

,
417 (7th Cir. 2007). However, where the limits affect a
criminal defendant’s right to confront a witness who
testifies against him, we review the limitation de novo. 

“[W]hen deciding whether limits on
cross-examination are permissible, we must first distin-
guish between the core values of the Confrontation Clause
and more peripheral concerns which remain within the
trial court’s ambit.” 

. If the “core
values” of the Confrontation Clause remain intact, we
No. 06-3607                                             9

merely ensure that the district court’s exercise of its
wide discretion in limiting cross-examination was not
abusive. 

.
  During the trial, the government introduced evidence
that Reyes had several pre-robbery conversations with
his co-defendants regarding the inner workings of the
Credit Union. The foundation of these conversations came
from the testimony of DeJesus, Vasquez, Torres, and
Berrios. During the direct examination of Torres, the
government elicited testimony that Torres attended three
pre-robbery meetings: one at Torres’s house with Berrios,
Vasquez, and Reyes; one with Vasquez, DeJesus, and
Reyes; and a final meeting with Reyes alone. On cross-
examination, counsel for Reyes attempted to ask about a
meeting on August 22, 2004 between Torres and Dayana
Rodriguez, the individual who supplied one of the get-
away vehicles:
   [Counsel for Reyes]: Mr. Torres, when you were
   planning—when the robbery was getting planned, you
   claim that—well, you said that one thing you had to
   do—I don’t know if you talked about this on direct, but
   one thing you did have to do was find a getaway
   vehicle. That’s something that had to happen, right?
   [Torres]: Yes.
   Q: And to do that, you had a meeting with Dayana
      Rodriguez, correct?
   A: Correct.
   Q: And that meeting took          place   on   Sunday,
      August 22nd, correct?
10                                             No. 06-3607

At this point, the government objected to the testimony as
beyond the scope of the direct examination. The district
court sustained the objection. The cross-examination
continued:
     Q: Mr. Torres, during the course of this, you said
        that Mr. Reyes was involved in all the aspects of
        planning the robbery, correct?
     A: Yes.
     Q: But it’s your understanding, Mr. Torres, that Mr.
        Reyes, he never was involved in getting the get-
        away car. That’s the one thing he didn’t have
        anything to do with, right?
     A: That’s the only thing.
     Q: Right. So as far as you know, he never discussed
        the car with Dayana Rodriguez, correct?
                            ...
     A: As far as I know, no.
     Q: Then they never had a discussion at your house
        on Sunday, the 22nd, did they?
                            ...
     A: No.
     Q: Mr. Torres, on the night of the 22nd—well, the
        22nd, that was after Mr. Reyes was already gone
        on vacation. That’s true, isn’t it?
     A: Yes.
     Q: On the night of the 22nd, you sat down with
        Berrios and Vasquez and DeJesus, correct?
No. 06-3607                                               11

    A: Yes.
    Q: And you guys had a meeting where you discussed
       your final plans, right?
    [Counsel for the government]: Objection, Your Honor.
    This is all beyond the scope.
    [Counsel for Reyes]: Your Honor, they talked about
    all the planning that Mr. Reyes did. It’s only fair that
    we discuss whatever planning Mr. Reyes didn’t do so
    that the jury can make that contrast.
The district court then sustained the government’s objec-
tion.
  We find that the district court did not limit the cross-
examination so as to affect the “core values” of the Con-
frontation Clause. In excluding the examination of the
meeting between Torres, Berrios, Vasquez, and DeJesus,
Reyes was not entirely precluded from delving into
the discussion. Moreover, Reyes could have called Torres
during his case in chief and elicited testimony on
the specifics of that meeting. He chose not to do so. If that
would have created difficulties, Reyes should have
raised such concerns at that time so that the district court
could have weighed the difficulties against allowing the
outside-the-scope testimony. To the extent that Reyes
argues that by sustaining the government’s first objection
that the district court impeded the ability to confront
his co-defendant, his argument falls short. Reyes’s counsel
was able to quickly recover and get from Torres exactly
what he sought: that, in Torres’s opinion, Reyes had
nothing whatsoever to do with the planning of acquiring
a getaway car. No reversible error occurred.
12                                              No. 06-3607

  C. New Trial
   Reyes finally agues that the district court erred when
it denied Reyes’s motion for a new trial based on newly
discovered evidence. We review an order denying a new
trial motion based on newly discovered evidence for an
abuse of discretion. See United States v. McGee, 

, 979 (7th Cir. 2005).
  Under Federal Rules of Criminal Procedure 33, “the court
may vacate any judgment and grant a new trial if the
interest of justice so requires.” To obtain a new trial based
on newly discovered evidence, Reyes must show that the
evidence (1) was discovered after trial; (2) could not have
been discovered sooner with due diligence; (3) was mate-
rial and not simply impeaching or cumulative; and (4) if
presented at a new trial would “probably result in acquit-
tal.” United States v. Palivos, 

, 255 (7th Cir.
2007).
  In his motion for a new trial, Reyes presented affidavits
of two individuals—Daniel Ramirez and Lucy Ocasio.
Ramirez claimed in his affidavit that while incarcerated
at the Metropolitan Correction Center he came into
contact with DeJesus. DeJesus, according to Ramirez,
discussed the Credit Union robbery and admitted that it
was planned by someone named “Joey”—Torres’s nick-
name. DeJesus further told Ramirez that Reyes had
nothing to do with the robbery, and that all of the men
agreed that they would blame Reyes if they were caught.
  According to Ocasio’s affidavit, she dated Berrios at the
time of the robbery and witnessed several of the meetings
where the robbery was discussed and during the course
of these meetings, she never saw Reyes at any of them;
No. 06-3607                                                  13

and she claimed that Torres had instructed the others to
blame Reyes if any of them were caught.
  As the government points out, Ocasio’s statements in the
affidavit directly contradict her statements made to the
FBI in an interview conducted eighteen months before
she signed her proffered affidavit. In that interview, she
stated that on one occasion, she was present at a meeting
among Reyes, Torres, and Berrios. Following the meeting,
Berrios told Ocasio that they were discussing robbing the
Credit Union. In addition, the government gave Reyes a
copy of her interview with the FBI, and Reyes had an
opportunity to interview Ocasio prior to trial.
  In denying Reyes’s motion, the district court found that
both affidavits failed the materiality requirement; its
primary use would be for impeachment.
  We will focus primarily on the statements in the Ramirez
affidavit. Ocasio’s affidavit, apart from not offering much
material support to Reyes’s defense, is inconsistent and
contradicts her earlier statements. Moreover, Reyes could
have discovered this information prior to trial with some
diligence.
  Addressing the evidence in the Ramirez affidavit, we
are not as convinced as the district court that the evidence
fails on the materiality requirement. It is true that, typi-
cally, newly discovered impeachment evidence does not
warrant relief under Rule 33. See United States v. Woods, 

, 563 (7th Cir. 2002); see also United States v. Taglia,

, 415 (7th Cir. 1991) (finding that newly
discovered impeachment evidence can be enough where
the conviction depends entirely on the uncorroborated
14                                              No. 06-3607

testimony of a single unreliable witness). This evidence
might have had benefits to Reyes beyond impeachment.
By supporting his argument that his co-defendants sought
to pin the robbery on an unwitting Reyes, the evidence
would bolster, to a degree, his defense. Reyes argued
that he did not realize that the information he disclosed to
his co-defendants would be used in the commission of a
crime; therefore, evidence suggesting that they used
this disclosure prompted the co-defendants to both
commit the crime and pin the leadership role on Reyes
would support his argument.
  We need not go too far down this road, however, as the
proffered evidence fails to satisfy the fourth element. It
his hard to conceive that the evidence in Ramirez’s affida-
vit would have affected the verdict. Comparing the
evidence indicating the extent of Reyes’s knowledge of
the robbery of the Credit Union—including the specific
insider details used during the crime—it is difficult to
believe that the testimony of a former cellmate of one of
the co-defendants would result in acquittal.


                   III. CONCLUSION
  Accordingly, Reyes’s conviction is A FFIRMED.




                           9-5-08