United States of America v. Fernando Zambrano

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 28, 2023
Decided November 30, 2023
Before
FRANK H. EASTERBROOK , Circuit Judge
D AVID F. H AMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 22-2525
U NITED STATES OF A MERICA ,
Plaintiff-Appellee,
v.
FERNANDO ZAMBRANO ,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illi-
nois, Eastern Division.
No. 1:20-CR-00049
Edmond E. Chang, Judge.
O R D E R
A jury convicted Fernando Zambrano of lying when answering two federal
agents’ questions about whether Zambrano (a local police officer working with federal
agents in drug cases) had discussed a particular subject with an informant. 18 U.S.C.
§1001. The judge sentenced Zambrano to three months’ imprisonment (which has been
served) and six months’ supervised release. Zambrano’s appeal presents multiple argu-
ments, but the district judge’s four thorough opinions enable us to be brief.

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No. 22-2525 Page 2
1. Zambrano filed two pretrial motions to dismiss the indictment, and the district
judge denied each motion. 2021 U.S. Dist. LEXIS 158212 (N.D. Ill. Aug. 21, 2021); 2021
U.S. Dist. LEXIS 181287 (N.D. Ill. Sept. 22, 2021). The judge’s analysis does not require
elaboration. We add only that, once a jury has found guilt beyond a reasonable doubt,
the quality of the evidence presented to a grand jury no longer matters. See, e.g., United
States v. Mechanik, 475 U.S. 66 (1986); United States v. Williams, 504 U.S. 36 (1992).
2. The district judge instructed the jury this way on materiality:
A statement is "material" if it is capable of influencing the actions of
the Federal Bureau of Investigation (FBI) or the Department of
Homeland Security – Office of Inspector General (DHS-OIG). The
government is not required to prove that the statement actually in-
fluenced the actions of the FBI or DHS-OIG.
A statement may be material even if the FBI or DHS-OIG agents be-
lieved that it was false at the time of the statement. A statement also
may be material if the statement casts suspicion away from the
speaker or misdirects the agents, even if the statement does not suc-
ceed in doing so.
The first paragraph comes from this circuit’s pattern jury instructions, modified to name
the agencies involved. It is a correct statement of law. See, e.g., United States v. Gaudin,
515 U.S. 506, 509 (1995) (a false statement is material if it has “a natural tendency to
influence, or be capable of influencing, the decision of the decisionmaking body to
which it was addressed.”) (cleaned up). The second paragraph is not in the pattern in-
structions but likewise is a correct statement of law. See, e.g., United States v. R. Enter-
prises, Inc., 498 U.S. 292 (1991) (holding, in the context of a subpoena-enforcement pro-
ceeding, that the prosecutor’s knowledge of the truth does not permit a suspect to with-
hold or lie about information). The district judge’s analysis, see 2021 U.S. Dist. LEXIS
246544 (N.D. Ill. Dec. 28, 2021) at *19–22, further shows why Zambrano’s arguments are
incorrect.
3. The jury asked two substantive questions during its deliberations. Zambrano
contends that the district court gave incorrect answers to both. The district judge pa-
tiently covered these contentions and showed why the answers were appropriate and
not misleading. Id. at *22–29. Indeed, defense counsel agreed with the way the judge
handled the second question, so that issue has been waived. Id. at *26.
4. After the trial concluded, another district judge found that Special Agent Tony
Chesla, of the Inspector General’s Office in the Department of Homeland Security, had

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No. 22-2525 Page 3
permitted a witness in a different case to testify that no rewards had been promised for
the witness’s testimony, despite a “mutual understanding” that Chesla would help the
witness in immigration matters. See United States v. Dekelaita, 2022 U.S. Dist. LEXIS
171466 (N.D. Ill. Sept. 22, 2022). Chesla was one of two agents who interviewed Zam-
brano, received the lies that led to his conviction, and testified about that interview at
trial. Zambrano contends that knowledge of Chesla’s inappropriate conduct in Dekelaita
would have enabled Zambrano’s lawyer to cross-examine Chesla more effectively, and
that the United States thus violated the rule of Brady v. Maryland, 373 U.S. 83 (1963), as
applied to impeachment evidence in United States v. Bagley, 473 U.S. 667 (1985).
As the district judge observed when denying Zambrano’s motion for a new trial,
however, the district judge in Dekelaita did not reach his conclusion until almost a year
after Zambrano’s trial. Findings yet to be made could not have been “disclosed”. Nor
does Zambrano offer any evidence that the prosecutors in his case knew at the time of
his trial that Chesla had permitted misleading testimony to stand in a different case.
More than that: the judge in Dekelaita ultimately concluded that Agent Chesla’s
silence when he should have spoken did not spoil that conviction. (That question has
been raised on Dekelaita’s appeal, No. 22-2911, to be argued on January 23, 2024. We do
not express any opinion on any issue in Dekelaita.) Given that Dekelaita’s conviction re-
mains in force, it is hard to see how there could be a problem with Zambrano’s. He con-
cedes in this court that he knowingly gave false answers. He denies only that his an-
swers were material to an investigation into what happened to $50,000 in “buy money”
supposedly given to the informant. Yet materiality does not depend on Chesla’s credi-
bility. The interview was recorded, the full recording was available to the jury, and ma-
teriality was demonstrated by the need to understand whether Zambrano and the in-
formant may have coordinated their responses in order to frustrate the investigation.
See the district court’s order of February 26, 2023.
Other contentions have been considered but do not require discussion.
A FFIRMED

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