Doc.419.Reese Motion to Dismiss.02.20.13

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, )

) Plaintiff, )

) vs. ) Case Number: 11 CR 2294 RB

) RICK REESE, ) TERRI REESE, and ) RYIN REESE, )

) Defendants. )

______________________________________________________________________________

DEFENDANTS’ MOTION TO DISMISS WITH PREJUDICE THE FOUR REMAINING COUNTS OF THE INDICTMENT BASED ON BRADY / GIGLIO VIOLATIONS

______________________________________________________________________________

Defendants, Rick Reese, by and through his counsel of record, Robert J. Gorence of

Gorence & Oliveros, P.C., Ryin Reese, by and through his counsel of record, Jason Bowles of

Bowles & Crow, and Terri Reese, by and through her counsel of record, Brad D. Hall and Pete V.

Domenici, Jr., hereby move to dismiss the following counts: Ryin Reese moves to dismiss Counts

7 and 8; Rick Reese moves to dismiss Count 9; and Terri Reese moves to dismiss Count 10 of the

Indictment pending against them on the grounds that the Government has willfully or was

recklessly negligent in not disclosing Giglio information that was in the possession of the

Government.

BACKGROUND

The procedural posture of this case was summarized in the Court’s Memorandum Opinion

and Order (Doc. 404) which was filed on February 1, 2013. In the Court’s Memorandum Opinion

and Order, the Court found that Rick, Terri and Ryin Reese did not receive a fair trial because the

Case 2:11-cr-02294-RB Document 419 Filed 02/20/13 of 8

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Government had Giglio information in its possession at the time of trial; that evidence was

favorable to the Defendants “as it impeached a Government witness and would have put the entire

investigation in a negative light;” and finally, that the evidence was material because “Deputy

Batts’ credibility was vitally important at trial,” and that there was a reasonable probability that the

outcome of the proceeding would have been different had the material been disclosed.

Moreover, the Court wrote:

As [AUSA] Mr. Castellano was present at the hearing, but did not testify, the Court is left to wonder whether he, appropriately, passed the information on to Ms. Armijo and Mr. Jordan or, inexplicably, sat on it. Regardless of the reason why the warnings went unheeded (or, more darkly, were ignored), there is no doubt that the prosecution, intentionally or negligently, suppressed the evidence.

See Memorandum Opinion and Order, (Doc. 404).

Defendants now request an evidentiary hearing in order to elicit testimony from AUSA

Randy Castellano, Las Cruces Branch Chief Alfred Perez, First Assistant U.S. Attorney Steven

Yarbrough, and U.S. Attorney Kenneth Gonzales. If needed, AUSAs Armijo and Jordan will also

be called. The collective testimony of all of the prosecutors with a hand in this ill-baked pie will

be relevant and prove to establish either a willful constitutional violation or that there has been a

pattern and practice in the U.S. Attorney’s Office under Mr. Gonzales’ tenure of suppressing

Brady/Giglio information.

ARGUMENT

The Supreme Court has addressed the issue of proper remedies for violations, noting that

the general rule that remedies should be tailored to the injury suffered from the violation and

should not unnecessarily infringe on competing interests. United States v. Morrison, 449 U.S.

361, 364, 66 L. Ed. 2d 564, 101 S. Ct. 665 (1981). Rule 16(d)(2)(D) authorizes a court to “enter


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any order that is just under the circumstances” if a party fails to comply with the discovery rule.

Where the government has violated its Brady obligations, the court must “identify and then

neutralize the taint by tailoring relief appropriate in the circumstance.” United States v. Morrison.

449 U.S. 361, 364 (1981). Dismissal is proper where there is a showing of willful misconduct,

demonstrable prejudice, or substantial threat thereof. See, Government of Virgin Islands v. Fahie,

419 F.3d 249 (3d Cir. V.I. 2005).

The United States Supreme Court is concerned with both prejudice and deterrence, and when both of those factors call for a particularly harsh sanction, dismissal--the harshest available sanction for a Brady violation--may be proper.

Id. at 253. The inquiry into bad faith “turns on the government's knowledge of the exculpatory value

of the evidence at the time it was lost or destroyed [or suppressed].” Youngblood, 488 U.S. at 57.

Bad faith is conduct in which the violation was “substantial and deliberate.” United States v. Leon,

468 U.S. 897 (U.S. 1984) (discussing the nature of the violation necessary to suppress evidence

under exclusionary rule), quoting Franks v. Delaware, 438 U.S. 154, 171 (1978). “A prosecutor

should not intentionally fail to make timely disclosure to the defense, at the earliest feasible

opportunity, of the existence of all evidence or information which tends to negate the guilt of the

accused or mitigate the offense charged or which would tend to reduce the punishment of the

accused.” Kyles v. Whitley, supra at 437 (emphasis added); citing, ABA Model Rule of

Professional Conduct 3.8(d) (1984) (“The prosecutor in a criminal case shall . . . make timely

disclosure to the defense of all evidence or information known to the prosecutor that tends to

negate the guilt of the accused or mitigates the offense”).


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In reviewing a trial court's remedy for an alleged Brady violation, an appellate court

reviews conclusions of law de novo and reviews any findings of fact, where appropriate, for clear

error. Government of Virgin Islands v. Fahie, supra. “The intentional character of the

government's misconduct affects the appropriate remedy.” Id., at 253 (citing United States v.

Morrison, 449 U.S. 361, 365 (U.S. 1981)). The Supreme Court in Morrison noted, for example,

that a “pattern of recurring violations by investigative officers . . . might warrant the imposition of

a more extreme remedy in order to deter further lawlessness.” Government of Virgin Islands v.

Fahie., 419 F.3d 249, 253 (quoting Morrison, 449 U.S. at 365 n.2). “This statement suggests that

the Court was concerned with both prejudice and deterrence, and that when both of those factors

call for a particularly harsh sanction, dismissal - the harshest available sanction for a Brady

violation - may be proper.” Government of Virgin Islands v. Fahie., 419 F.3d 249, 253; see also,

United States v. Isgro, 974 F.2d 1091, 1097 (9th Cir. 1992) ("Dismissal of an indictment with

prejudice is the most severe sanction possible.").

Further, as recognized in Government of Virgin Islands v. Fahie., 419 F.3d 249, 253, n.5,

“[i]n United States v. Mitchell, [the Third Circuit] held that while as a legal matter, the question of

good faith versus bad faith is a distinction without a difference in the Brady context, the existence

of bad faith on the part of the prosecution is probative of materiality because it is doubtful that any

prosecutor would in bad faith act to suppress evidence unless he or she believed it could affect the

outcome of the trial.” 365 F.3d 215, 255 (3d Cir. 2004) (quoting United States v. Jackson, 780

F.2d 1305, 1311 n. 4 (7th Cir. 1986) (internal quotations omitted)). The Court in Virgin Islands

stated that it believed “that bad faith may be of additional relevance in the context of choosing a

remedy for a Brady violation.” Virgin Islands, 419 F.3d 249, 253, n.5.


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Dismissal is warranted “only where the defendant is actually prejudiced . . . the challenged

activity was something other than an isolated incident unmotivated by sinister ends or . . .

misconduct challenged has become entrenched and flagrant”); United States v. Costanzo, 740 F.2d

251, 257 (3d Cir. 1984). As the Court in Government of Virgin Islands v. Fahie., 419 F.3d 249,

256 further stated:

A pattern of constitutional violations may indeed be used to show recklessness on the part of a prosecutor. See Sample v. Diecks, 885 F.2d 1099, 1117 (3d Cir. 1989) ("The existence of a pattern of constitutional violations may provide a basis for implying deliberate indifference."); Farmer v. Brennan, 511 U.S. 825, 836, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994) ("Acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk."); see also Morrison, 449 U.S. at 365 n.2 (noting that higher penalties may be warranted where there is a pattern of misconduct). Moreover, a constitutional violation that results from a reckless disregard for a defendant's constitutional rights constitutes willful misconduct. See Wehr v. Burroughs Corp., 619 F.2d 276, 282 (3d Cir. 1980) ("only three degrees of culpability are associated with the term 'willful': intentional, knowing, or reckless"); cf. United States v. Johnstone, 107 F.3d 200, 208-09 (3d Cir. 1997) (holding that “willful[]” in federal criminal civil rights statute, 18 U.S.C. § 242 “means either particular purpose or reckless disregard”); United States v. Frost, 999 F.2d 737, 743 (3d Cir. 1993) (holding that “in order to secure suppression of the fruits of [a search based on a misleading search warrant affidavit], a defendant must show . . . that bad faith or reckless disregard existed on the part of the affiant”); Polselli v. Nationwide Mut. Fire Ins. Co., 23 F.3d 747, 751 (3d Cir. 1994) (holding, in the insurance context, that “recklessness . . . can support a finding of bad faith”). Thus, reckless misconduct, if prejudicial, may sometimes warrant dismissal. Otherwise, a prosecutor who sustains an erroneous view of her Brady obligations over time will be inadequately motivated to conform her understanding to the law.

Virgin Islands, 419 F.3d 249, 256.

Intentional misconduct, while alleged, will only be established at the next hearing when federal

prosecutors will testify under oath. Even in the absence of intentional misconduct, Defendants’ assert

that a pattern of practice at the United States Attorney’s Office would be established in which the

Government will have been found to have played dirty. In United States v. Reynolds, 2:08-cr-01098-


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RB, this Court found that Mr. Reynolds and his Co-Defendant, Mr. Whitaker, were denied their right

to a fair trial on a violation based on Giglio non-disclosure. Although the Court exonerated Ms.

Armijo from the fact that it was intentional, the question remains as to why the DEA did not make an

inquiry, so simply done on its Naddis software system, to ascertain the existence of Giglio

information.

United States v. Ahrensfeld, 09-cr-03457-JAP, is another case in which Judge Parker found that

the Government failed to disclose Giglio information that was material to the defense. Judge Parker

ultimately found that had there been disclosure the outcome would amount to a reasonable probability

of having been different. But the non-disclosure of Giglio information is what is relevant here to show

the pattern and practice of the U.S. Attorney’s Office in not disclosing what is constitutionally

required. Without repeating what was addressed in Mr. Ahrensfeld’s Supplemental Brief in Support

of his Motion to Dismiss Indictment with Prejudice Based on Brady Violation (Doc. 125), the long

history of Brady and Giglio violations by AUSA Tara Neda (the majority of which pre-date the

administration of U.S. Attorney Ken Gonzales) show an office that has been reckless at best with what

is constitutionally required for a defendant to receive a fair trial. Additionally, in United States v. Juan

Varela, 06-cr-01022-RB, a case prosecuted by U.S. Attorney Ken Gonzales, a new trial was again

ordered for the Government’s failure to turn over Giglio information which involved a law

enforcement witness. Doc.86 at pp. 19-24.

The Defendants assert that this constellation of mishaps is sufficient to show a pattern of

practice that constitutes either intentional or reckless ignorance of their constitutional obligations to

Americans when they are charged with a crime in order that a fair trial may unfold and a true verdict

can be rendered. As such, the Defendants request an evidentiary hearing at which all of the Assistant


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U.S. Attorneys previously mentioned, as well as U.S. Attorney Kenneth Gonzales, will be subpoenaed

pursuant to the Touhy Regulations and the Court can hear their testimony as to how, in a post U.S.

Senator Ted Stevens world, this can happen.

Respectfully submitted,

/s/ Robert J. Gorence Robert J. Gorence Gorence & Oliveros, P.C. Attorney for Defendant 1305 Tijeras Avenue NW Albuquerque, NM 87102 (505) 244-0214 [email protected]

/s/ Jason Bowles Jason Bowles Bowles & Crow 201 3rd Street NW, Suite 1370 Albuquerque, NM 87102 (505) 217-2680 [email protected] /s/ Brad D. Hall Brad D. Hall Law Office of Brad D. Hall 320 Gold Avenue SW, #1218 Albuquerque, NM 87102 (505) 255-6300 [email protected] Peter V. Domenici, Jr. Domenici Law Firm, P.C. 320 Gold Avenue SW, #1000 Albuquerque, NM 87102 (505) 883-6250 [email protected]


mailto:[email protected]



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been emailed by CM/ECF to counsel entitled to notice, this 20th day of February, 2013. /s/ Robert J. Gorence Robert J. Gorence


Doc.419.Reese Motion to Dismiss.02.20.13

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