Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`PUBLISH
`
`
`October 27, 2022
`UNITED STATES COURT OF APPEALS
`
`
`Christopher M. Wolpert
`FOR THE TENTH CIRCUIT
`Clerk of Court
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`CARLOS HERRERA, a/k/a Lazy,
`
` Defendant - Appellant.
`
`-----------------------------------------------------------------
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`DANIEL SANCHEZ, a/k/a Dan,
`
` Defendant - Appellant.
`
`-----------------------------------------------------------------
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`ANTHONY RAY BACA, a/k/a Pup,
`
` Defendant - Appellant.
`
`
`
`
`
`
`
`
`
`
`No. 19-2126
`
`
`
`
`
`
`
`
`
`
`
`No. 19-2141
`
`
`
`
`
`
`
`
`
`
`
`No. 19-2195
`
`_________________________________
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 2
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`(D.C. Nos. 2:15-CR-04268-JB-25, 2:15-CR-04268-JB-18,
`2:15-CR-04268-JB-21)
`_________________________________
`
`Ryan J. Villa, The Law Office of Ryan J. Villa, Albuquerque, New Mexico,
`for Defendant-Appellant Carlos Herrera; Josh Lee, Assistant Federal Public
`Defender, Office of the Federal Public Defender, Districts of Colorado and
`New Mexico (Virginia L. Grady, Federal Public Defender, with him on the
`briefs), Denver, Colorado, for Defendant-Appellant Daniel Sanchez; and
`Theresa M. Duncan, Duncan Earnest LLC, Santa Fe, New Mexico, for
`Defendant-Appellant Anthony Ray Baca.
`
`Richard Williams, Assistant United States Attorney (Fred J. Federici,
`Acting United States Attorney, with him on the briefs), Las Cruces, New
`Mexico, for Plaintiff-Appellee.
`_________________________________
`
`Before BACHARACH, BRISCOE, and McHUGH, Circuit Judges.
`_________________________________
`
`BACHARACH, Circuit Judge.
`_________________________________
`
`TABLE OF CONTENTS
`
`1. Mr. Herrera, Mr. Sanchez, and Mr. Baca were convicted of
`violating VICAR. ..................................................................... 8
`
`
`
`
`
`
`
`
`
`
`
`
`
`A.
`
`B.
`
`C.
`
`D.
`
`The district court severed the case into multiple trials. ....... 9
`
`The government continued to furnish discovery during
`and even after the trial. .................................................... 9
`
`The government furnished much of the discovery through
`tablets, which the cooperating witnesses allegedly viewed
`to coordinate their testimony. ........................................... 9
`
`The government attributed the Molina murder to orders
`issued by Mr. Baca, Mr. Sanchez, and Mr. Herrera. ............ 10
`
`2
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 3
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`(1) Mr. Baca allegedly ordered the “hit” on Javier
`Molina. .................................................................. 10
`
`(2) Mr. Baca also allegedly planned the murder of two
`corrections officials. ............................................... 10
`
`
`(3) Mr. Herrera allegedly gave the Molina paperwork to
`Mr. Rodriguez and Mr. Sanchez. .............................. 11
`
`All defendants: The government did not suppress materially
`favorable evidence. .................................................................. 12
`
`A.
`
`The government must disclose evidence that’s favorable,
`that’s in its possession, and that’s material. ....................... 12
`
`
`B. We use different standards for reviewing the district
`court’s legal conclusions and factual findings. ................... 14
`
`C.
`
`D.
`
`E.
`
`
`
`The government delayed many of its disclosures. ............... 14
`
`The recording of Mr. Rodriguez’s phone call with his
`mother was not material. .................................................. 15
`
`(1) The Rodriguez recording didn’t bear materially on
`Mr. Baca’s guilt ...................................................... 16
`
`(2) Nor was the recorded phone call material as to Mr.
`Herrera or Mr. Sanchez. .......................................... 23
`
`The government did not commit a due process violation
`by delaying disclosure of Mr. Urquizo’s recorded phone
`calls about the discovery tablets. ...................................... 23
`
`(1) We review for plain error because the Defendants
`failed to preserve their challenges to the Urquizo
`recordings. ............................................................. 24
`
`
`(2) Mr. Baca does not satisfy the plain-error standard
`because the government had not obviously
`suppressed the Urquizo recordings. .......................... 26
`
`3
`
`
`
`
`2.
`
`
`
`
`
`
`
`
`
`
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`
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`
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`

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`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 4
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`F.
`
`G.
`
`H.
`
`The government did not deny due process to the
`Defendants by delaying disclosure of the FBI’s typed
`notes. ............................................................................. 30
`
`The government did not violate due process by delaying
`disclosure of an FBI questionnaire about SNM. ................. 33
`
`Considered cumulatively, the late-disclosed evidence was
`not material. ................................................................... 36
`
`Defendants Sanchez and Baca: The district court didn’t err in
`allowing introduction of the evidence of prior bad acts. .............. 37
`
`A. Mr. Sanchez and Mr. Baca forfeited their Rule 403
`arguments involving the probative value of enterprise
`evidence. ........................................................................ 38
`
`(1) Mr. Sanchez and Mr. Baca preserved a general Rule
`403 argument, triggering the abuse-of-discretion
`standard. ................................................................ 38
`
`
`(2) Mr. Sanchez and Mr. Baca forfeited two of their
`arguments. ............................................................. 40
`
`
`(3) Even without a waiver, the Defendants’ new
`appellate arguments would fail under the plain-error
`standard. ................................................................ 44
`
`B.
`
`The district court did not abuse its discretion in allowing
`introduction of evidence about Mr. Sanchez’s 2005
`assaults. ......................................................................... 48
`
`C. Any possible error would have been harmless when the
`district court allowed the introduction of evidence of Mr.
`Baca’s commission of murder in 1989. .............................. 51
`
`Defendants Sanchez and Herrera: The district court did not err
`in declining to sever Counts 6–7. .............................................. 55
`
`A.
`
`The district court did not violate Rules 403 and 404(b) in
`allowing the introduction of evidence as to the conspiracy
`to kill the corrections officials. ........................................ 56
`
`
`4
`
`
`
`
`3.
`
`
`
`
`4.
`
`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 5
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`(1) Mr. Sanchez and Mr. Herrera generally preserved
`their arguments on probative value. .......................... 57
`
`
`(2) The district court did not abuse its discretion in
`applying Rule 404(b). ............................................. 59
`
`
`(3) The district court did not abuse its discretion in
`applying Rule 403. .................................................. 60
`
`B.
`
`Rule 14 did not require severance. .................................... 64
`
`Defendants Sanchez and Baca: The district court did not abuse
`its discretion in declining to sever the Defendants’ trials. ........... 71
`
`A.
`
`The codefendants’ out-of-court statements didn’t require
`severance. ....................................................................... 72
`
`(1) Mr. Sanchez and Mr. Baca waived the issue
`involving severance of Defendants based on the
`out-of-court statements. .......................................... 73
`
`
`(2) Mr. Sanchez and Mr. Baca failed to timely file
`pretrial motions to sever the case as to the
`defendants. ............................................................. 74
`
`
`(3) The district court did not raise the issue. .................. 79
`
`(4) Without good cause, Mr. Sanchez and Mr. Baca
`waived their arguments under Rule 14 for severance
`of Defendants based on the recorded statements. ....... 81
`
`
`(5) Even without a waiver, the district court would not
`have erred when declining to sever the case as to
`the defendants. ....................................................... 82
`
`
`
`(a) The district court did not err in declining to
`sever the Defendants based on the
`government’s recordings. ................................ 83
`
`(i) Mr. Sanchez and Mr. Baca had not
`shown actual prejudice. .......................... 83
`
`
`
`5
`
`
`
`5.
`
`
`
`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 6
`
`(ii) Even if actual prejudice had otherwise
`existed, the district court enjoyed
`discretion to alleviate the prejudice
`through limiting instructions. .................. 88
`
`B.
`
`Severance wasn’t required based on live testimony
`recounting out-of-court statements that had directly
`implicated Mr. Sanchez. .................................................. 91
`
`All defendants: The district court did not abuse its discretion in
`denying the motions for a continuance. ...................................... 92
`
`A. We apply the abuse-of-discretion standard. ....................... 92
`
`The district court did not err in denying Mr. Herrera’s
`first request for a continuance. ......................................... 93
`
`B.
`
`C.
`
`The district court did not err in denying the Defendants’
`second motion for a continuance. ..................................... 98
`
`All defendants: The Defendants waived their challenge to the
`constitutionality of VICAR’s position clause. ............................ 106
`
`A.
`
`Because the constitutional argument is not jurisdictional,
`the Defendants needed to make this argument in a pretrial
`motion to dismiss. ........................................................... 107
`
`The Defendants failed to raise the constitutional challenge
`in a timely pretrial motion. .............................................. 113
`
`B.
`
`Defendant Herrera: The district court didn’t prevent a full and
`fair defense by prohibiting Mr. Herrera from impeaching his own
`out-of-court statements. ........................................................... 117
`
`A. Mr. Herrera preserved this challenge, so we apply the
`abuse-of-discretion standard. ........................................... 117
`
`(1) Preservation didn’t require Mr. Herrera to make an
`offer of proof. ........................................................ 117
`
`
`(2) The ruling was definitive. ........................................ 118
`
`6
`
`
`
`6.
`
`
`
`
`7.
`
`
`8.
`
`
`
`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 7
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`B.
`
`9.
`
`The district court did not abuse its discretion in excluding
`Mr. Herrera’s out-of-court statements. .............................. 119
`
`All defendants: No cumulative error occurred. ........................... 123
`
`10. Conclusion. ............................................................................. 125
`
`
`_________________________________
`
`
`
`This case arises from the murder of a state inmate and conspiracy to
`
`murder two corrections officials. The government attributed the crimes to a
`
`prison gang, Sindicato de Nuevo Mexico (“SNM”), and charged many of its
`
`members under the Violent Crimes in Aid of Racketeering Act (“VICAR”).
`
`See 18 U.S.C. § 1959.
`
`This appeal involves the charges against three SNM members
`
`(Anthony Ray Baca, Daniel Sanchez, and Carlos Herrera). After a six-week
`
`jury trial, they were convicted of (1) conspiring to murder a fellow SNM
`
`member (Javier Molina) (Count 6) and (2) aiding and abetting that murder
`
`(Count 7). Mr. Baca was also convicted of conspiring to murder two
`
`corrections officials (Counts 9–10).
`
`Mr. Baca, Mr. Herrera, and Mr. Sanchez appeal based on eight
`
`arguments:
`
`1.
`
`
`2.
`
`
`
`
`
`The government suppressed materially favorable evidence in
`violation of Brady v. Maryland, 373 U.S. 83 (1963).
`
`The district court erred in admitting evidence of prior bad acts
`by Mr. Baca and Mr. Sanchez.
`
`7
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 8
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`3.
`
`4.
`
`5.
`
`
`6.
`
`7.
`
`
`
`
`8.
`
`The district court erred in failing to sever the counts against
`Mr. Herrera and Mr. Sanchez.
`
`The district court erred in failing to sever the trials as to Mr.
`Baca and Mr. Sanchez.
`
`The district court erred in denying two requests for
`continuances.
`
`VICAR’s “position clause” exceeds Congress’s power under the
`U.S. Constitution.
`
`The district court erred in excluding Mr. Herrera’s exculpatory
`statements.
`
`Cumulative errors require a new trial.1
`
`
`We reject these arguments and affirm.
`
`1. Mr. Herrera, Mr. Sanchez, and Mr. Baca were convicted of
`violating VICAR.
`
`The SNM has operated in the New Mexico state prison system for
`
`decades. Mr. Baca had headed the SNM, and Mr. Sanchez and Mr. Herrera
`
`had served as mid-level leaders. The government alleged that
`
`
`This chart shows which defendants have joined each of the eight
`1
`appellate arguments:
`
`
`Issue
`Brady Violation
`Admissibility of Bad Acts Evidence
`Severance of Counts
`Severance of Defendants
`Denial of Continuance
`Constitutionality of VICAR
`Exculpatory Statements
`Cumulative Error
`
`8
`
`
`
`
`
`Herrera
`x
`
`x
`
`x
`x
`x
`x
`
`Sanchez
`x
`x
`x
`x
`x
`x
`
`x
`
`Baca
`x
`x
`
`x
`x
`x
`
`x
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 9
`
`
`
`
`
`A.
`
`Mr. Baca, Mr. Sanchez, and Mr. Herrera had orchestrated the
`murder of a fellow SNM member, Mr. Javier Molina, and
`
`Mr. Baca had plotted the assassination of two corrections
`officials to retaliate for their enhancement of security measures
`after Mr. Molina’s murder.
`
`The district court severed the case into multiple trials.
`
`The indictment covered not only Mr. Herrera, Mr. Sanchez, and Mr.
`
`Baca, but also nineteen other SNM members. The district court ultimately
`
`severed the case into two trials. The court assigned Mr. Herrera, Mr.
`
`Sanchez, and Mr. Baca to the first trial (for Counts 6–12).2
`
`B.
`
`The government continued to furnish discovery during and
`even after the trial.
`
`The district court declared the case complex and ordered the
`
`government to disclose materially favorable information. The government
`
`responded by producing information long before the trial and
`
`supplementing the production right before the trial, during the trial, and
`
`even after the trial had ended.
`
`C.
`
`The government furnished much of the discovery through
`tablets, which the cooperating witnesses allegedly viewed to
`coordinate their testimony.
`
`Because the Defendants and many of the government witnesses were
`
`in prison, the parties agreed on distribution of discovery material through
`
`
`A fourth defendant, Mr. Rudy Perez, was also assigned to this trial.
`2
`He obtained an acquittal.
`
`
`
`9
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 10
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`tablets. At trial, the Defendants argued that the cooperating witnesses had
`
`coordinated their testimony by sharing information from the tablets.
`
`D.
`
`The government attributed the Molina murder to orders
`issued by Mr. Baca, Mr. Sanchez, and Mr. Herrera.
`
`At trial, the government alleged that the Defendants had occupied
`
`various roles in the Molina murder.
`
`(1) Mr. Baca allegedly ordered the “hit” on Javier Molina.
`
`Mr. Baca allegedly had “paperwork” showing Mr. Molina’s
`
`cooperation with law enforcement. According to the government, Mr. Baca
`
`arranged for passage of the paperwork to other SNM members at a Las
`
`Cruces prison (where Mr. Molina was housed). When the paperwork
`
`arrived, SNM members in the Las Cruces prison were to kill Mr. Molina.
`
`(2) Mr. Baca also allegedly planned the murder of two
`corrections officials.
`
`
`Mr. Baca also allegedly ordered the murder of two New Mexico
`
`corrections officials:
`
`
`
`
`
`1.
`
`2.
`
`Gregg Marcantel, the former Secretary of the New Mexico
`Corrections Department, and
`
`Dwayne Santistevan, the former acting director of the Security
`Threat Intelligence Unit at the New Mexico Corrections
`Department.
`
`Mr. Baca allegedly ordered these murders as retaliation for the state’s
`
`stiffening of security measures following the Molina murder. The two
`
`officials weren’t harmed.
`
`
`
`10
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 11
`
`(3) Mr. Herrera allegedly gave the Molina paperwork to Mr.
`Rodriguez and Mr. Sanchez.
`
`Mr. Herrera was an SNM member housed in a pod next to Mr.
`
`Molina’s. According to the government, Mr. Herrera passed the paperwork
`
`from Lupe Urquizo, who forwarded it to Mario Rodriguez and Mr.
`
`Sanchez.
`
`
`
`When Mr. Sanchez obtained the paperwork, he allegedly organized
`
`the killing by obtaining a walker from Rudy Perez, ordering Mr. Rodriguez
`
`to make shanks out of the walker, telling Mr. Rodriguez and Timothy
`
`Martinez to restrain Mr. Molina, and ordering Jerry Armenta and Jerry
`
`Montoya to stab Mr. Molina.3
`
`Responding to these allegations, Mr. Sanchez presented two
`
`alternative theories based on his codefendants’ pretrial statements:
`
`
`Mario Rodriguez, Jerry Armenta, Timothy Martinez, and Jerry
`3
`Montoya were also charged with Mr. Molina’s murder. But they admitted
`their involvement, cooperated with law enforcement, and testified for the
`government.
`
`
`
`11
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 12
`
`1. Mr. Sanchez had not reviewed the paperwork, and Mr. Armenta
`stabbed Molina in the heat of the moment.
`
`
`2.
`
`The ringleader for the murder was Mr. Rodriguez, not Mr.
`Sanchez.
`
`
`With these theories, Mr. Sanchez attacked the credibility of government
`
`witnesses and noted a lack of physical evidence.
`
`2.
`
`All defendants: The government did not suppress materially
`favorable evidence.
`
`The Defendants argue that the district court should have ordered a
`
`new trial because the government waited too long to disclose favorable
`
`evidence.
`
`A.
`
`The government must disclose evidence that’s favorable,
`that’s in its possession, and that’s material.
`
`Due process requires a new trial if the government suppresses
`
`evidence that is material to guilt or punishment. Brady v. Maryland, 373
`
`U.S. 83, 87 (1963). To establish a deprivation of due process, a defendant
`
`must prove that
`
`
`
`
`
`the evidence was favorable,
`
`the government suppressed the evidence, and
`
`the suppression resulted in prejudice.
`
`United States v. Durham, 902 F.3d 1180, 1221 (10th Cir. 2018). The third
`
`
`
`element (prejudice) is satisfied only if the suppressed evidence was
`
`material. Id.
`
`
`
`12
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 13
`
`A defendant can establish materiality by showing that timely
`
`disclosure would have created a reasonable probability of a different
`
`result. United States v. Reese, 745 F.3d 1075, 1083 (10th Cir. 2014). A
`
`probability is “reasonable” if it “undermine[s] confidence in the outcome.”
`
`United States v. Bagley, 473 U.S. 667, 682 (1985); see also Wearry v.
`
`Cain, 577 U.S. 385, 392 (2016) (per curiam) (“Evidence qualifies as
`
`material when there is ‘any reasonable likelihood’ it could have ‘affected
`
`the judgment of the jury.’” (quoting Giglio v. United States, 405 U.S. 150,
`
`154 (1972))). But evidence isn’t material just because it might be
`
`exculpatory. United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir.
`
`1994). The pertinent question is whether the suppression of evidence
`
`prevented “a fair trial,” which the Supreme Court has defined as “a trial
`
`resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S.
`
`419, 434 (1995).
`
`Evidence may be material even when it affects only the credibility of
`
`a witness. Giglio v. United States, 405 U.S. 150, 154–55 (1972); see
`
`Browning v. Trammell, 717 F.3d 1092, 1106 (10th Cir. 2013) (concluding
`
`that suppressed mental-health records were material because they could
`
`have been used to attack a key witness’s credibility). When the evidence
`
`involves credibility, however, the witness must be “absolutely critical to
`
`the government’s case.” United States v. Cooper, 654 F.3d 1104, 1123
`
`(10th Cir. 2011). Even then, the evidence might not be material. United
`13
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`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 14
`
`States v. Trujillo, 136 F.3d 1388, 1393 (10th Cir. 1998). For example,
`
`evidence isn’t material when it is “cumulative” of other impeachment
`
`evidence or bears only an insignificant effect on the impeachment
`
`evidence. Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009); see
`
`Trujillo, 136 F.3d at 1394 (“[A]n incremental amount of impeachment
`
`evidence on an already compromised witness does not amount to material
`
`evidence.”).
`
`B. We use different standards for reviewing the district court’s
`legal conclusions and factual findings.
`
`
`When a due process claim is preserved, we conduct de novo review
`
`of legal conclusions and apply the clear-error standard to factual findings.
`
`United States v. Garcia, 793 F.3d 1194, 1205 (10th Cir. 2015). We also
`
`apply this standard when considering whether the defendant is entitled to a
`
`new trial based on a denial of due process. See United States v. Reese, 745
`
`F.3d 1075, 1083 (10th Cir. 2014) (“In a long line of cases, we have held
`
`that in the new-trial context we review de novo a district court’s ruling on
`
`a Brady claim, with any factual findings reviewed for clear error.”). But
`
`when the defendant fails to preserve a claim of due process, we review
`
`only for plain error. United States v. Simpson, 845 F.3d 1039, 1057 (10th
`
`Cir. 2017).
`
`C.
`
`The government delayed many of its disclosures.
`
`The government made six late disclosures:
`
`14
`
`
`
`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 15
`
`About two months before trial, the government disclosed over
`60,000 audio recordings, totaling more than 15,000 hours.
`
`About a month before trial, the government disclosed about
`10,000 pages of new discovery and 6 more phone recordings.
`
`Roughly 2 weeks before trial, the government disclosed more
`than 6,000 pages of discovery.
`
`During voir dire, the government disclosed about 3,500 more
`pages.
`
`After presenting its case-in-chief, the government disclosed
`almost 1,000 pages of Mr. Rodriguez’s personal documents and
`almost 500 pages of FBI field notes from interviews of
`government witnesses.
`
`1.
`
`
`2.
`
`
`3.
`
`
`4.
`
`
`5.
`
`
`6.
`
`About 3 months after the trial, the government disclosed over
`50 audio recordings of calls from Mr. Rodriguez.
`
`
`For four of these items, the Defendants characterize the late disclosures as
`
`a denial of due process:
`
`1.
`
`2.
`
`3.
`
`4.
`
`A recording of Mr. Rodriguez’s phone call to his mother
`
`Recordings of Mr. Urquizo’s phone calls about what he saw on
`the discovery tablets
`
`The FBI’s typed notes of an interview with Mr. Urquizo
`
`An FBI questionnaire about SNM
`
`D.
`
`The recording of Mr. Rodriguez’s phone call with his
`mother was not material.
`
`The Defendants allege that the government waited too long to
`
`disclose the recording of a phone call between Mr. Rodriguez and his
`
`mother. In the phone call, Mr. Rodriguez told his mother: “The only one
`
`they want to use me against is Dan [Mr. Sanchez]. And they won’t use me
`15
`
`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 16
`
`against Pup [Mr. Baca] because I don’t have nothing on him.” R. vol. 1, at
`
`1921. The government didn’t disclose evidence of the phone call until over
`
`three months after the trial.4 The district court concluded that the late
`
`disclosure hadn’t violated the Defendants’ rights to due process. Id. at
`
`2880–81. For this conclusion, we conduct de novo review. See p. 14,
`
`above.
`
`The Defendants argue that the recording of the phone call was
`
`suppressed, favorable, and material. We assume that the recording was
`
`suppressed and favorable. But even if the recording had been suppressed
`
`and favorable, it wouldn’t have been material.
`
`(1) The Rodriguez recording didn’t bear materially on Mr.
`Baca’s guilt.
`
`Mr. Baca argues that Mr. Rodriguez’s recorded statements were
`
`material because they
`
`contradicted Mr. Rodriguez’s trial testimony against Mr. Baca
`and
`
`would have constituted stronger impeachment evidence than the
`other evidence that Mr. Baca had used to impeach Mr.
`Rodriguez.
`
`
`
`
`
` 
`
`
`Neither argument is persuasive.
`
`
`The phone call took place in November 2017, and the government
`4
`produced the recording about seven months later. By then, the trial had
`already finished.
`
`
`
`16
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`

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`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 17
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`We may assume for the sake of argument that Mr. Rodriguez’s trial
`
`testimony contradicted what he had said to his mother. Even with this
`
`assumption, the statement would have lacked materiality because Mr. Baca
`
`had impeached Mr. Rodriguez with similar inconsistent statements to the
`
`FBI. Like the statements to Mr. Rodriguez’s mother, his statements to the
`
`FBI had downplayed Mr. Baca’s role in the Molina murder.
`
`When the district court ruled on the issue, it was considering Mr.
`
`Baca’s motion for a new trial. In that motion, Mr. Baca emphasized the
`
`similarity between what Mr. Rodriguez had told the FBI and his mother.
`
`Within roughly three weeks, Mr. Rodriguez had talked to both the FBI and
`
`his mother. To the FBI, Mr. Rodriguez had said that
`
`
`
`
`
`
`
`Mr. Baca liked Mr. Molina,
`
`Mr. Rodriguez didn’t know if Mr. Baca wanted Mr. Molina
`murdered, and
`
`Mr. Rodriguez thought that Mr. Baca would have stopped the
`murder if he’d been at the Las Cruces prison.
`
`Three weeks later, Mr. Rodriguez told his mother that he had no
`
`incriminating information against Mr. Baca.
`
`On appeal, Mr. Baca attributes power to Mr. Rodriguez’s statements
`
`to his mother, arguing that they had contradicted his trial testimony that
`
`Mr. Baca had
`
`
`
`said that Mr. Molina was supposed to have been killed much
`earlier,
`
`
`
`17
`
`
`
`
`
`
`
`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 18
`
`shared details about the Molina murder that few people had
`known,
`
`conspired to intimidate another prosecution witness (Jerry
`Armenta), and
`
`discussed his plan to murder the two correction officials.
`
`
`
`
`
`
`
` 
`
`But the jury heard about the same inconsistencies between Mr.
`
`
`
`
`
`Rodriguez’s trial testimony and his earlier statements to his mother. In the
`
`recorded phone call, Mr. Rodriguez remarked to his mother that he
`
`wouldn’t need to testify against Mr. Baca because he had nothing
`
`incriminating to say. This remark tracks Mr. Rodriguez’s statement to the
`
`FBI three weeks earlier, acknowledging that he had no incriminating
`
`information against Mr. Baca. Indeed, in his motion for a new trial, Mr.
`
`Baca told the district court that Mr. Rodriguez’s statements to the FBI
`
`were “consistent with [his] statement to his mother that he did not ‘have
`
`anything on’ Mr. Baca.” R. vol. 1, at 1921.
`
`
`
`The government had timely disclosed the FBI’s notes from the
`
`interview with Mr. Rodriguez, and the defense used these statements to
`
`cross-examine Mr. Rodriguez. Given this cross-examination, Mr.
`
`Rodriguez’s statement to his mother would have added little to Mr. Baca’s
`
`defense related to the Molina murder. Mr. Rodriguez told his mother that
`
`prosecutors wouldn’t use him against Mr. Baca, but the jury already knew
`
`that Mr. Rodriguez had just told the FBI that Mr. Baca would probably
`
`have stopped the murder if he’d been there.
`18
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`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 19
`
`Mr. Rodriguez’s statement to his mother also fit what he had told the
`
`FBI about the plot to murder the corrections officials. The FBI’s notes
`
`from the interview with Mr. Rodriguez contained no mention of Mr. Baca’s
`
`involvement with the plot, and the defense used that omission to cross-
`
`examine Mr. Rodriguez. Mr. Rodriguez responded that he had “told [the
`
`FBI that he] knew specific things” about the plot to murder the corrections
`
`officials but didn’t “think [they] got around to” the issue in the interview.
`
`R. vol. 5, at 8295–96.
`
`Mr. Rodriguez’s statement to his mother added little that was new:
`
`when he talked to his mother, he hadn’t given the FBI any incriminating
`
`details about Mr. Baca’s involvement in the plot to kill the corrections
`
`officials. So Mr. Rodriguez’s statement to his mother tracked what he’d
`
`told the FBI.
`
`
`
`Mr. Baca characterizes Mr. Rodriguez’s statements to his mother as
`
`“qualitatively different from, and considerably more powerful than” other
`
`impeachment evidence by “directly contradict[ing] Mr. Rodriguez’s
`
`allegations that Mr. Baca [had] told him things that implicated Mr. Baca in
`
`the charged offenses.” Baca’s Opening Br. at 34 (emphasis in original).
`
`But these contradictions are apparent from the FBI’s notes, and Mr. Baca
`
`used those notes at trial. Mr. Baca never says how Mr. Rodriguez’s
`
`statements to his mother differed from what he had told the FBI.
`
`
`
`19
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`

`

`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 20
`
`Nor has Mr. Baca shown a meaningful difference between Mr.
`
`Rodriguez’s statements to his mother and other evidence that the defense
`
`had used for impeachment. For materiality, the evidence cannot just be
`
`“cumulative,” Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir. 2009),
`
`or “additional impeachment evidence,” Nuckols v. Gibson, 233 F.3d 1261,
`
`1267 n.8 (10th Cir. 2000) (quoting Tankleff v. Senkowski, 135 F.3d 235,
`
`251 (2d Cir. 1998)). To the contrary, the statements must “significantly
`
`enhanc[e] the quality of the impeachment evidence.” Douglas, 560 F.3d at
`
`1174.
`
`Mr. Baca argues that the extensive impeachment of Mr. Rodriguez
`
`made the other evidence more important, not less. But the incremental
`
`value of more impeachment evidence generally dissipates when the witness
`
`has already faced strong impeachment:
`
`the credibility of a witness “has already been
`[W]here
`substantially called into question in the same respects by other
`evidence, additional impeachment will generally be immaterial
`and will not provide the basis for a Brady claim.” Furthermore,
`we have indicated that “an incremental amount of impeachment
`evidence on an already compromised witness does not amount to
`material evidence.”
`
`United States v. Cooper, 654 F.3d 1104, 1120 (10th Cir. 2011) (citations
`
`omitted).
`
`Mr. Rodriguez’s statements to his mother were merely “additional
`
`impeachment evidence” because he had already been impeached with prior
`
`
`
`20
`
`

`

`
`
`Appellate Case: 19-2126 Document: 010110759758 Date Filed: 10/27/2022 Page: 21
`
`inconsistent statements. Apart from the lies to law enforcement, the
`
`Defendants impeached Mr. Rodriguez with his
`
`
`
`
`
`
`
`false denial of official membership in SNM,
`
`prior convictions for criminal sexual penetration, residential
`burglary, and aggravated battery with a deadly weapon,
`
`
`
`
`
`effort to flee the country, and
`
`statement that he had planned to murder Mr. Herrera after
`hearing his recorded statements.
`
`R. vol. 5, at 8236–37, 8246–47, 8287–88, 8295–96, 8308, 8310, 8394–99.
`
`And on cross-examination, Mr. Rodriguez admitted lying to the FBI and
`
`withholding Mr. Baca’s comments about killing the corrections officials.
`
`Though Mr. Baca could have impeached Mr. Rodriguez’s testimony with
`
`his statements to his mother, those statements would have added little.
`
`In his reply brief, Mr. Baca states that during cross-examination, Mr.
`
`Rodriguez “was able to quibble” about the accuracy of the FBI’s reports
`
`because they were written summaries rather than “verbatim recordings of
`
`those statements.” Baca’s Reply Br. at 14. For this stateme