August 20, 2018

Colorado Supreme Court: Prosecution’s Withholding of Evidence was Brady Violation and Sanctions Warranted

The Colorado Supreme Court issued its opinion in People v. Bueno on Monday, January 22, 2018.

Motion for New Trial—Evidence.

In this case, the Colorado Supreme Court considered two questions. The first is whether a Crim. P. 33(c) motion for a new trial is time-barred because it was filed more than one year after the defendant’s conviction, and thus arguably more than one year after “entry of judgment.” The second is whether the trial court erred in granting a new trial after concluding that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide to the defense evidence that the prosecution had obtained at the outset of the investigation until after defendant’s conviction. The court held that “entry of judgment,” for the purposes of Rule 33(c), does not occur until both a verdict or finding of guilt and the imposition of a sentence. The court concluded that, applying Brady’s disclosure requirements, the trial court did not abuse its discretion in granting a motion for a new trial.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Gang Can Meet RICO’s Interstate Commerce Element if Larger Encompassing Gang Trafficks Drugs

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia on Tuesday, July 14, 2015.

Defendants Pablo Garcia and Gonzalo Ramirez were members of the Diablos Viejos (DV) subset of the Norteños gang in Dodge City, Kansas. Garcia and Ramirez participated in several instances of gang violence, including a shooting at the Hernandez house involving Defendant Ramirez, a home invasion of a Guatemalan immigrant involving both Garcia and Ramirez, and a shooting of rival Sureños gang members in which Garcia shot and killed one man. Defendants, along with 21 others affiliated with the Norteños, were indicted in the U.S. District Court for the District of Kansas. Defendants were charged with (1) a conspiracy to violate RICO; (2) four VICAR offenses and discharge of a firearm in furtherance of a crime of violence; and (3) two VICAR offenses and brandishing of a firearm in furtherance of a crime of violence. In addition, Ramirez was charged with three VICAR offenses and discharge of a firearm in furtherance of a crime of violence. Twenty of the other defendants pleaded guilty and one was dismissed, leaving Ramirez and Garcia to stand trial. Defendants were found guilty by a jury on all counts. Ramirez was sentenced to life imprisonment plus 57 years, and Garcia was sentenced to live imprisonment plus 32 years.

Defendants appealed, arguing several points of error: (1) a Brady violation due to the government’s failure to disclose promises made to a key cooperating witness; (2) a Napue violation based on the government’s false trial evidence concerning the same promises to the cooperating witness; (3) an incorrect jury instruction on RICO elements; (4) unconstitutional application of VICAR because their crimes did not affect interstate commerce, and (5) a Confrontation Clause violation based on erroneously admitted hearsay testimony by an expert witness.

The Tenth Circuit first addressed Defendants’ claims of a Brady violation. The witness in question, Worthey, was also a DV member who was present during the shooting. The government disclosed several meetings with Worthey but failed to disclose two meetings, during one of which he was told that his cooperation in an unrelated state case would influence the government to recommend a lower sentence in the federal case. The government falsely stated that Worthey received nothing in exchange for his testimony, but later conceded the sentence reduction. The Tenth Circuit noted that the government conceded the first two prongs of a Brady evaluation — that the government suppressed evidence favorable to defendant — but disputed the third prong — the evidence’s materiality. Evaluating Worthey’s testimony and its significance, the Tenth Circuit found that although Worthey was a key witness, Defendants vigorously impeached him, including by admitting evidence of Worthey’s other meetings with the government and his testimony in exchange for sentence reductions. The Tenth Circuit found that although the government’s concealment of the meetings was “at best, . . . the result of gross incompetence,” the nondisclosure was immaterial.

Next, the Tenth Circuit evaluated Defendants’ Napue claim, premised on the same nondisclosure. The Tenth Circuit noted that the standard for a Brady claim is lower than that for Napue, since Napue requires intentional concealment. The Tenth Circuit found that Defendants failed to establish any elements of a Napue claim, finding that the district court could reasonably have accepted that the “imprecise questioning” of defense counsel could have led a police detective to misunderstand the question regarding Worthey’s interviews, and that it was reasonable that Worthey could have forgotten to mention the recorded meetings with the government. The Tenth Circuit found it illogical to presume Worthey would have intentionally failed to disclose two meetings when he disclosed others that were equally damaging to his credibility.

The defendants next argued that jury was improperly instructed on the evidence necessary to meet RICO’s interstate commerce requirement. Defendants argued that more than a minimal effect on interstate commerce was necessary to support the RICO charges, but the Tenth Circuit disagreed, finding plenty of precedent that a minimal effect of interstate commerce is sufficient. Defendants also argued that the DVs did not directly engage in economic activity. The Tenth Circuit, however, found ample evidence that the Norteños engaged in drug trafficking, including sending money to California for drug sales and selling drugs imported from California, so it found no error in the RICO instruction. The VICAR claims were premised on the interstate commerce requirement as well, so the Tenth Circuit rejected them for much the same reason.

Finally, the Tenth Circuit addressed the Confrontation Clause issue. Defendants asserted that the testimony of gang expert Shane Webb improperly “parroted” testimonial hearsay in violation of their Confrontation Clause rights. The Tenth Circuit evaluated Webb’s challenged testimony and agreed that some of the testimony was “quintessential parroting.” However, because the evidence was cumulative, the Tenth Circuit found the testimony harmless beyond a reasonable doubt.

Defendants’ convictions were affirmed.

Tenth Circuit: Grant of New Trial Reversed Because Undisclosed Evidence Immaterial Under Brady

The Tenth Circuit Court of Appeals published its opinion in United States v. Reese on Wednesday, March 19, 2014.

Rick Reese owned a federally licensed firearms store and ran it with his wife, Terri, and two sons, Ryin and Remington. In August 2012, a jury convicted Rick, Terri, and Ryin under 18 U.S.C. §§ 2 and 924(a)(1)(A) for aiding and abetting straw purchases of firearms from the store. Unbeknownst to them, however, at the time of trial the FBI was investigating one of the government’s witnesses, Deputy Batts, for his alleged involvement in various criminal activities. Arguing that the government’s failure to disclose that information before trial violated Brady v. Maryland, Defendants filed a motion for a new trial. The district court concluded that the government had withheld favorable, material evidence from Defendants and granted their motion. The government appealed.

Before reaching the merits of the appeal, the Tenth Circuit clarified that de novo is the standard of review of a district court’s ruling on a Brady claim asserted in the context of a new-trial motion. It also clarified that the test for materiality of withheld evidence does not change based on whether the government withheld it negligently or intentionally.

The court focused on the materiality element of the Brady claim and concluded that the Deputy Batts investigation was immaterial because there was not a reasonable probability that the outcome of Defendants’ trial would have been different had the government disclosed the investigation. The government’s evidence on the counts of conviction was sufficiently strong that the court was confident in the jury’s verdict. The court rejected Defendants’ arguments that Deputy Batts was a critical witness or that this was a close case and reversed the district court.

Tenth Circuit: Convictions for Wire Fraud and Money Laundering Affirmed

The Tenth Circuit Court of Appeals published its opinion in United States v. Battles on Tuesday, March 11, 2014.

To finance construction of her residence, Safiyyah Tahir Battles obtained two loans totaling $377,400 from First Security Bank. In 2007, she decided to refinance her residence. She submitted a uniform residential loan application to Saxon Mortgage, Inc. (“Saxon”), but Saxon’s automated system rejected the application because her debt-to-income ratio was too high. Consequently, Ms. Battles reapplied for credit through Saxon’s “Score Plus” program, which required her to submit twelve months’ worth of bank statements, as well as information concerning her gross monthly income and assets. Among other things, Ms. Battles claimed a gross monthly income of $28,723.16 and a First Security Bank account containing $165,907.70. Saxon approved her application for a $500,000 loan shortly thereafter.

But, as it turned out, Saxon’s decision was based on a distorted picture of Ms. Battles’s financial status. Ms. Battles’s 2007 federal income tax return revealed that her adjusted gross annual income was $14,346—a far cry from the $344,677.92 extrapolated from the figures on her loan application. Similarly, the balance in her bank account on the loan’s closing day was less than $1,000. It subsequently came to light that Ms. Battles had falsified bank statements to inflate her income and improve her chances of qualifying for a loan.

A closing company prepared a settlement statement that specified that a local builder named Emmitt Wisby would receive $102,630.01 and Ms. Battles would receive $2,000. The closing company gave Mr. Wisby’s check to Ms. Battles with the understanding that she would deliver it to Mr. Wisby. Instead, Ms. Battles deposited the funds into her bank account. Ms. Battles dissipated the proceeds of the loan; she wrote checks totaling $47,700 to family members. She made no mortgage payments on the residence after July 31, 2007. When the property fell into foreclosure, Saxon sustained a significant loss from having funded the loan.

After a grand jury indictment and jury trial, Ms. Battles was convicted of one count of wire fraud and one count of money laundering. Ms. Battles was sentenced to thirty months in prison, followed by two years of supervised release. The district court also ordered her to make restitution to the victim of her crimes. Ms. Battles appealed on several grounds.

On appeal, Ms. Battles raised seven claims: (1) the government suppressed evidence that was favorable and material to her defense; (2) the district court erred by admitting testimony of a witness who intimated that Ms. Battles had destroyed documents; (3) there was insufficient evidence produced at trial to support her convictions; (4) she received ineffective assistance of trial counsel; (5) the district court erred by failing to grant a two-level sentence reduction for acceptance of responsibility; (6) the district court imposed a legally infirm restitution order; and (7) cumulative error deprived her of a fair trial and a reliable sentence.

First, the court held it did not have jurisdiction to address Ms. Battles’s Brady claim in the context of this appeal. The sole district court order that adjudicated Ms. Battles’s Brady claim was the order denying Ms. Battles’s motion for a new trial. This order was issued after the district court’s final judgment was entered and after Ms. Battles filed her formal notice of appeal challenging that judgment. The court could find no evidence in the record that, after the district court issued its motion-for-new-trial order, Ms. Battles sought within the fourteen-day period prescribed by the federal rules to file a new notice of appeal to challenge that order. Therefore, the court dismissed this aspect of the appeal for lack of jurisdiction.

Second, Ms. Battles argued that certain “other-crimes” testimony was offered not for any of Rule 404(b)’s recognized purposes,  but, rather, to incite the jury’s passions against her. The court concluded Ms. Battles did not demonstrated that any error in admitting the evidence affected her substantial rights, i.e., that the error disturbed the outcome of the proceedings.

Third, Ms. Battles contended there was insufficient evidence produced at trial to support her convictions. However, the court held there was ample evidence to support the jury’s convictions. The court was satisfied that a substantial quantum of evidence supported Ms. Battles’s wire-fraud conviction. Accordingly, under its deferential standard of review, the court would not second-guess the jury’s decision finding Ms. Battles guilty of wire fraud.

Fourth, Ms. Battles argued she received ineffective assistance of trial counsel. The Tenth Circuit concluded that the record before the district court was not sufficiently developed to address this issue. Precedent militated in favor of dismissing this claim without prejudice so that the district court could address it in collateral proceedings in the first instance.

Fifth, Ms. Battles argued the district court erred by failing to grant a two-level sentence reduction for acceptance of responsibility. The court stated it would have great difficulty viewing Ms. Battles’s statements as not reflecting in pronounced fashion her denial of fraudulent intent in connection with the Saxon loan. And this denial continued throughout her trial and sentencing. Ms. Battles failed to demonstrate that the district court abused its discretion in denying her an acceptance-of-responsibility downward sentence adjustment.

Sixth, Defendant contended the district court imposed a legally infirm restitution order. Ms. Battles asserted her view that she was unfairly surprised at sentencing when the district court named a different victim in the restitution order than that identified at trial. The district court reviewed this document at sentencing and found it clear that Deutsche Bank was taking an assignment as a trustee and custodian for Saxon and that there was no issue with respect to the identification of the victim. The court discerned no error, and certainly no clear error, in this factual finding.

Finally, Ms. Battles claimed cumulative error deprived her of a fair trial and a reliable sentence. However, Ms. Battles failed to name more than one error. A defendant who has failed to establish the existence of multiple non-reversible errors cannot benefit from the cumulative error doctrine.

The Tenth Circuit upheld the judgment of the district court and AFFIRMED Ms. Battles’s convictions and sentence. The court DISMISSED the portion of Ms. Battles’s appeal pertaining to her Brady claim for lack of jurisdiction.

Tenth Circuit: State Court’s Refusal to Consider Merits of Claim Because It Was Previously Determined Was Not a Proper Basis for Denying Federal Habeas Review

The Tenth Circuit Court of Appeals published its opinion in LeBere v. Abbott on Friday, October 18, 2013.

Kent LeBere is serving a 60-year term of imprisonment imposed by a Colorado court as a result of his conviction for second-degree murder and second-degree arson. In his 28 U.S.C. § 2254 petition for habeas relief, he contended the State relied on perjured testimony and withheld potentially exculpatory evidence material to his defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). The only question presented was whether federal courts may consider his claim. It involved the interplay between state and federal procedural rules.

After LeBere began serving his sentence and while his direct appeal was pending, Ronnie Archuleta, a key witness against him, recanted his testimony. LeBere moved for a new trial based upon that newly discovered evidence. His new trial motion became a collateral part of his direct appeal, which was denied. LeBere then brought this habeas petition claiming, for the first time, a Brady violation based on the undisclosed acts of a detective who allegedly encouraged Archuleta to lie at the trial. The district judge abated these habeas proceedings to permit LeBere to exhaust his new claim in the state courts. He then filed a petition for post-conviction relief with the Colorado trial court asserting the Brady claim. The petition was not decided on the merits; post-conviction relief was denied because the Brady claim was part and parcel of his newly discovered evidence claim, which was addressed and decided on direct appeal. Importantly, the Brady issue was not considered to have been procedurally barred because it was not timely raised; it was considered to have been subsumed in the new trial motion and, in effect, decided when the new trial motion was denied. And since it had been decided on direct appeal, under Colorado procedures it could not be revisited in post-conviction proceedings (successive bar). LeBere returned to federal court with the Brady claim. The district judge concluded it was procedurally barred by Colorado’s successive bar rule.

LeBere contended Colorado’s successive bar had no effect on the availability of habeas review of his particular claims. The Tenth Circuit held he was correct.

In his Rule 35(c) post-conviction proceedings, LeBere presented his Brady claim to the state courts. But the post-conviction court did not resolve the Brady claim on the merits. Instead, it declined review under a Colorado rule barring post-conviction review of a claim raised and resolved in a previous proceeding. See Colo. R. Crim. P. 35(c)(3)(VI). Generally, when a state court dismisses a federal claim on a procedural ground, the doctrine of procedural default forecloses federal  review. Coleman v. Thompson, 501 U.S. 722 (1991). The question, then, was whether the application of the state’s successive bar presented a barrier to federal review. The Tenth Circuit concluded it did not.

Cone v. Bell, 556 U.S. 449 (2009) controlled the outcome of this case. In Cone, the Supreme Court decided a state court’s refusal to consider the merits of a claim because the claim was previously determined was not a proper basis for denying federal habeas review. As in Cone, LeBere raised a state-law nondisclosure claim on direct appeal and, based on the same facts, a Brady claim on post-conviction review. And, as in Cone, the post-conviction court applied the state bar on successive claims in declining to reach the merits. If the application of the successive bar in Cone did not affect the availability of federal review, the same should be true for a nearly identical rule here.

REVERSED and REMANDED.

Tenth Circuit: Obstruction of Justice Conviction Affirmed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ahrensfield on Wednesday, November 14, 2012.

The defendant, Brad Ahrensfield, was a former Albuquerque police officer who was convicted of obstructing justice in violation of 18 U.S.C. § 1512(c)(2). Ahrensfield’s teenage son worked for Car Shop, a business owned by Shawn Bryan. Car Shop and Bryan were the targets of an investigation by the FBI and Albuquerque police, following information from a confidential informant that Car Shop employees purchased stolen merchandise and sold drugs and that Bryan was the leader. An officer who was friends with Ahrensfield told him about the investigation because he was concerned about the son’s safety. Ahrensfield then told Bryan his shop was the target of an investigation and he was the suspected ringleader. Bryan then contacted the Albuquerque sheriff and police department commander to ask why he was under investigation and told them the defendant had told him about it. The investigation was dropped at that point.

The defendant was charged with obstruction of justice and making false statements to the FBI. During his first trial, he was acquitted of making false statements but the jury did not reach a verdict on obstruction of justice. Before the second trial, Ahrensfield argued the Double Jeopardy Clause precluded the government from introducing any evidence regarding the false statements because he had been acquitted of that charge by the jury in the first trial. The district court denied his motion. The Tenth Circuit upheld the admission of testimony regarding his false statements because the evidence was admitted as proof of his guilty knowledge, not because it was a required element of the offense of obstruction of justice. “Where the government is not required to prove the offered evidence relating to the prior acquittal beyond a reasonable doubt, ‘the collateral-estoppel component of the Double Jeopardy Clause is inapposite.’”

The defendant filed a motion to dismiss during his second trial based on alleged Brady violations. During that trial, the government impeached Bryan through transcripts of an interview he gave the FBI after the first trial. Defense counsel said he had not been given the transcript or a copy of the recording and did not know Bryan had been interviewed after the first trial. The court gave him time to review the transcript and he extensively cross-examined Bryan. The next day, the government produced a transcript of a call between Bryan and the FBI. The district court denied his renewed motion to dismiss and instead allowed him to recall the FBI agent for further cross-examination as part of the government’s case. He did so and effectively cross-examined the FBI agent using the transcript. After the jury convicted the defendant, the defense discovered it had not received a laboratory report of analysis of the drugs purchased by the confidential informant from a Car Shop mechanic.

The Tenth Circuit found that while the transcripts were suppressed by the government and were favorable to the defendant, they were not material. The lab report was neither favorable nor material, so the court found no Brady violation.

The court affirmed the conviction as there was a nexus between the defendant’s conduct and interference with the official proceeding.