News in California picked up David Codrea’s article on the Reese appeal.
Unable to find any links to articles published from the local papers, Deming Headlight or Las Cruces Sun.
Now that Sheriff Raymond C. Cobos’ second term as Sheriff of Luna County is nearly over, 10 candidates filed to run for the position in the primaries.
Republican candidates include Robert Santana, Michael Waldrop, Allen Batts and Harold May. Democrat candidates include Mark Jasso, Jonathan Mooradian, Kelly Gannaway, Fred C. De La O, Paul Borde and Mike Eby.
On March 19th 2014, the Tenth Circuit U.S. Court of Appeals published its Order in the Reese case. http://www.lunatpp.org/breaking-news-appeals-court-decision-reese-case/
In short, the 3 member panel of appellate court judges disagreed with the Judge Robert Brack’s decision to grant Rick, Terri and Ryin Reese a new trial. Judge Brack was the trial judge and had made this decision after information came to light that the prosecution in the Reese case had not brought forth information about Deputy Sheriff Alan Batts, who the defense describe as a key witness in trial.
Michael Connelly of the US Justice Foundation, Robert Gorence, Jason Bowles, and Herb Titus, who is the attorney of record for the appeals case filed a Petition for Rehearing En Banc, which is a hearing in front of the entire bench of appellate judges as opposed to just a panel of three. En banc reviews can be used for unusually complex cases or cases of great importance, or when the decision appears to conflict with prior decisions of the court.
Reese attorneys cited three reasons for requesting the review, 1) the decision applied a standard of review that conflicted with the US v Robinson decision, 2) the decision applied a standard of review that conflicted with the US v Torres decision, and 3) that “the proceeding involved an erroneous ruling of exceptional importance that must be corrected by the full court.”
In February 2013, Judge Brack found that the prosecution, intentionally or negligentlty suppressed [exculpatory] evidence during the trial, and when viewing the record as a whole, the evidence about Deputy Batts was material and undermined confidence in the verdict.
Even though Judge Brack found Deputy Batts to be a critical witness, defense attorneys allege the appellate court substituted its own factual findings and concluded that Batts was not a critical witness.
Defense attorneys also argue that the appellate panel purported to settle a conflict with US v Robinson that only the court en banc has the authority to decide.
Defense attorneys also pointed out that Judge Brack had made several factual findings upon which he based his decision to grant a new trial. The appellate court did not once refer to any of those factual findings. Judge Brack had pointed out that the prosecution had emphasized the discrepancy between Deputy Batts and Terri Reese’s testimony. He also found that Deputy Batts was vitally important at trial, and that prosecutors underscored that Deputy Batts had no motive to lie.
Reese attorneys pointed out that the panel exclusively relied on some of the evidence, which were described as sterile transcripts and confusing surveillance tapes of the firearms transactions, as opposed to deferring to Judge Brack, who had actually heard and seen all of the evidence.
Additionally, Reese attorneys pointed out that the appellate court decision whitewashed the government’s deliberate violation of the Brady rule by not considering the conduct of the prosecutor. The panel of judges skipped over the conduct of the prosecutor and focused exclusively on materiality. Reese attorneys pointed out that “the panel expressed no concern about the conduct of the prosecutors in withholding the evidence, or about the post-trial false testimony of Deputy Batts.” Instead, the panel bent over backwards to whitewash the prosecutorial misconduct and Deputy Batts’ corrupt motives, despite Judge Brack’s factual findings.
The appellate court concluded that the trial prosecutors weren’t aware of the Deputy Batts investigation until after trial. However, they failed to acknowledge that the lead prosecutor, AUSA Maria Armijo, was the Branch Chief of the Las Cruces US Atorneys office from 2005 to 2008, which was a critical period during the Batts investigation. In addition, the direct supervisor of the trial, Mr. Castelllano, was informed and was repeatedly reminded by another supervisor in the office. Reese attorneys allege the panel of judges shirked its duty to evaluate whether the US Attorney’s Office had discharged its duty. Their duty is to ensure that justice is done, not that the US Attorneys Office wins a case.
Had the panel really been concerned about truth and fairness, it would not have neglected the district court’s finding that, at the evidentiary hearing on the Reeses’ motion for a new trial, Deputy Batts had lied under oath in front of the district judge about a telephone call that he made to an FBI agent in an apparent attempt to curry favor with federal authorities.”
Reese attorneys pointed out that the judiciary has an obligation to supervisor the manner in which prosecutors carry out their responsibilities. The Reese case is not unique. On March 12th 2014, a government overside report was issued, “Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards”.
As a result of this latest development, the sentencing hearing has been postponed.
The Tenth Circuit U.S. Court of Appeals published its Order in U.S.A. v REESE etal. on March 19, 2014.
In August 2012, Rick and Terri Reese were convicted of one count each of making false statements on ATF Form 4473, and Ryin Reese was convicted of two counts of making false statements on ATF Form 4473. In December, information was alleged in open court by the Chief of the Criminal Division concerning a criminal investigation involving Deputy Sheriff Alan Batts. (No charges have been filed to date as far as this writer knows.) The revelation led to an evidentiary hearing in January 2013, which eventually led Judge Robert Brack granting a defense motion for a new trial.
The government appealed Judge Brack’s decision to grant a new trial for the Reeses.
In November 2013, the defense and the prosecution argued the legal technical points of whether or not Judge Brack erred in granting a new trial. A recap of the appellate arguments can be reviewed at this link: http://www.lunatpp.org/reese-case-defense-team-defends-judge-bracks-order/ Reese appellate attorney Herb Titus argued in part that Deputy Batts was a key government witnesss.
“Due process requires a new trial if the government withholds evidence that is favorable to the defendant and material to guilt or punishment. Smith v Cain”. Three elements which the Reeses needed to prove was that 1) the government suppressed evidence, 2) the evidence was favorable to the defendant, and 3) the evidence was material. “Evidence is material if there is a reaonsable probability that the result of the proceeding would have been different had the evidence been disclosed. Cain.”
The decision explained that Brady’s purpose (citing the case law involved in the Reese appeals case) is not to punish the misdeeds of the prosecutor, but to avoid an unfair trial. They also explained that a different standard of review might apply if the undisclosed evidence shows that the government knowingly used perjured testimony. The Reeses had not alleged the government withheld evidence of perjured testimony in this case.
The appeals court judges explained that the Supreme Court decision in Smith v. Cain, where the Court stated that evidence impeaching a government witness may not be material if the government’s other evidence is strong enough to sustain conficence in the verdict. “We think that statement captures this case,” they explained.
The appellate judges noted that the sole critical question at trial was whether the defendants knew the agents were straw purchasers for Roman but helped the undercover agents psoing as straw purchasers for Roman fill out the Form 4473 saying otherwise. Citing a number of points made by the prosecution during trial, the judges concluded the Reeses had to have known the undercover agents were posing as straw purchasers.
The appellate judges concluded that the Deputy Batts investigation was not material because the government’s evidence on the count of conviction was strong enough that they believe the jury would have reached the same verdict. According to the appellate judges, Deputy Batts was not a critical witnesss because the principal link between the straw purchase counts and the defendants ws the video evidence, not Deputy Batts. They rejected they argument that Batts was a critical witness.
The appellate judges also rejected that the Batts investigation was material because it was a close case based on the fact that the jury acquitted the Reeses on 24 of 28 counts. They explained that the shortcomings of the evidence in those 24 counts did not “infect the straw purchase counts.”
They concluded there was no reasonable probability that the outcome of the trial would have been different if the government had disclosed that Deputy Batts was under investigation. They reversed Judge Brack’s Order granting a new trial and sent the case back to Judge Brack for further proceedings.
The nature of those proceedings are not yet known, but presumably might involve sentencing. Prior to the information being learned about Deputy Batts, the Reeses were waiting for the pre-sentencing investigation reports to be completed, and related issues to be completed prior to a sentencing hearing.
Jeff Knox has published his latest article related to the Reese case. The Reese indictment, for those of you who don’t know, was issued under Ken Gonzales when he was the U.S. Attorney for New Mexico. Ken Gonzales is now a Federal Judge.
David Codrea put in his two cents also.
1. There is no update on the status of the appeals case. The Government filed an appeal last year, appealing Judge Brack’s decision to grant the Reeses a new trial based on the government violating their civil rights.
2. The rumors floating around Deming that Terri Reese has been recently arrested yet again are completely unfounded. In December I personally witnessed the probation office give Rick and Terri written permission to leave New Mexico so they could attend Ryin’s wedding. They have since returned and I can personally vouch that as of last night neither is in custody. This is not the first time that unfounded rumors have spread about Terri Reese being re-arrested and one can only wonder who starts those rumors.
3. Ryin Reese was married on January 1, 2013 to Claranne Turner of Las Cruces. They were married in the State of Washington, where Ryin is currently employed.
4. Four of the defendants in the Columbus case received sentence reductions recently, including Ian Garland, the owner of Chaparral Guns who was accused of ATF Form 4473 violations, Conspiracy and Weapons Smuggling. Apparently these four were sentenced to too much time. The Columbus case was linked to Operation Fast and Furious.
5. In the event the Government wins their appeal of Judge Brack’s decision granting the Reeses a new trial, it remains to be seen if the Reeses will be treated the same way as the four defendants in the Columbus case in terms of a reduced sentence. The Reeses were not convicted of conspiracy and weapons smuggling or money laundering.
6. Another rumor floating around town is that the Reeses altered the ATF Forms 4473 involved in the case. This also is not true.
In August 2011, Rick, Terri, Ryin and Remington Reese were charged with 32 counts relating to gun smuggling, conspiracy, money laundering and falsifying information on Form 4473. Nearly a year later, Remington was found not guilty of all charges. Rick and Terri Reese were convicted of one count each, and their son Ryin was convicted of two counts of Form 4473 violations.
The issue relating to the counts of conviction boiled down to the Reeses should have known the undercover government agents who filled out Form 4473, were acting as straw purchasers for Mexican cartel member Jose Roman. The government alleges the Reeses knew Jose Roman was a Mexican cartel gun and drug smuggler – something the Reeses emphatically deny – and therefore would have known the agents were acting as straw purchasers.
(Form 4473 is used to run the FBI background checks conducted before a gun is purchased from a FFL gun dealer. The agents used phoney identification, which passed the background checks.)
In November of 2012, information the government withheld from the defense before and during trial was given to the trial judge, Robert C. Brack. The government did not want the judge to share this information with the defense team. Judge Brack disagreed and by the end of January two hearings had been held in the matter. It turned out that Deputy Sheriff Alan Batts, the law enforcement officer Terri Reese had called to report a suspicious weapons buyer, had himself been under investigation for a number of years for alleged corruption.
As a result of the testimony of a supervisor in the Las Cruces U.S. Attorney’s Office, the testimony of two FBI agents, and testimony from Alan Batts, Judge Brack ordered a new trial for Rick, Terri and Ryin. The government immediately filed an appeal. The government does not want the Reeses to have a new trial.
On November 20, 2013 the U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado heard the government’s arguments against a new trial, and the Reese attorney’s argument in support of affirming Judge Brack’s decision granting a new trial.
The appeals court will rule on what a layman would call a legal technicality: Did Judge Brack err in his reasons for granting the Reeses a new trial based on existing case law?
Did Judge Brack err in his reasons for granting the Reeses a new trial based on existing case law?
Unlike trial, no witnesses were sworn in to testify. Three appellate judges questioned the government’s attorney, Laura Fashing from Albuquerque, and the Reese’s attorney, Herb Titus from Virginia, to further explain their positions. The government wants Judge Brack’s decision overturned, and the defense wants Judge Brack’s decision upheld (affirmed).
Unlike trial, the appellate judges asked rapid fire questions of the attorneys in order to clarify each party’s position. Each attorney was given fifteen minutes total to present their side of the case. Ms. Fashing answered questions first.
The first question the appellate judges had for the government was they wanted to know if Alan Batts knew he had been under investigation, and if not, what would have motivated him to call the FBI and deny involvement. Ms. Fashing explained that there was no actual evidence that Alan Batts knew he was under investigation, and that knowledge was actually inferred by Judge Brack. As to what would have motivated him to call, Ms. Fashing’s response was not heard clearly. Ms. Fashing asked the court to focus on whether or not Batts’ testimony was material to the Reese convictions.
One judge asked if the government was suggesting that there was no Brady issue and pointed out that there is a dual standard of review – was the evidence material and favorable. The judge further noted the decision of whether to grant a new trial is the trial judge’s discretion. Ms. Fashing suggested the court look at the decision in U.S.A. v Robinson. The court responded that case is used to determine if there is actually a Brady issue and again indicated that ordering a new trial is at the discretion of the trial judge. Ms. Fashing explained that case not only dealt with failing to discover evidence, but whether or not the information was crucially favorable and material.
The court asked Ms. Fashing if the government’s position was simply that the information about Batts was simply immaterial. Ms. Fashing explained that Batts’ testimony had nothing to do with the counts of conviction.
[W]hy was Batts’s testimony mentioned in closing if his testimony wasn’t important?
The court wanted to know why was Batts’s testimony mentioned in closing if his testimony wasn’t important. She explained the defense had explained why Terri called the police, and that the government argued Terri called the police to cover her tracks because she was concerned about the weapons trace request.
The court pointed out that the government did not have a strong case because the defendants were found not guilty of most of the counts they were charged with. The court asked why they weren’t convicted on all counts if it was such a strong case. Ms. Fashing explained that there were different elements in each count.
(“Elements” are the basic components defined in laws that the government has to prove existed in order to prove a violation of the law has occurred.)
The court pointed out to Ms. Fashing that it was very material whether the Reeses knew the weapon had been recoverd in Mexico. Ms. Fashing explained that that was the rationale of the defense.
The court also wanted to know if audio and video was involved in the counts of conviction. She indicated there was audio and/or video involved in all counts of conviction. When asked if there was any mention of the weapons going to Mexico on the audio or video, Ms. Fashing replied there was not.
The court’s attention turned to the Reese’s appellate attorney. Mr. Titus was grilled just as hard as Ms. Fashing.
The first thing one of the judges asked about related to the missing audio sections from the undercover stings. Mr. Titus didn’t know anything about that.
The court pointed out that the decision to grant a new trial is fact bound. Mr. Titus explained that the trial court (Judge Brack) had reviewed the facts for clear error and found that Batts was a critical witness used to establish that Terri had knowledge. When asked if Judge Brack found Batts’ testimony pertinent, Mr. Titus explained that it wasn’t simply pertinent, it was critical to show that first the Reeses had to have knowledge that Roman was part of the Mexican cartel, and then have knowledge that cartels use straw purchasers.
Batts was a critical witness used to establish that Terri had knowledge.
The court pointed out that guns do not have to go to Mexico to establish a straw purchase. Mr. Titus explained that if Terri knew he was a member of a cartel, then she would have known the others were straw purchasers. The court wanted to know if it was necessary to prove that the cartel was or wasn’t a purchaser. Mr. Titus pointed to the government’s opening and closing arguments which emphasized Deputy Batts’ testimony that Terri knew the guns were going to Mexico and that was the clinching evidence.
When the court asked Mr. Titus if this was a due process violation for making an inflammatory argument, rather than a Brady violation, Mr. Titus again pointed to the closing arguments explaining that Batts’ testimony about Terri having knowledge that the guns were recovered in Mexico is what gave them the full picture.
Batts’ testimony was used to discredit Terri
The court wanted to know if Batts’ testimony was absolutely critical and indispensable, noting there was other evidence. Mr. Titus explained that fact finding is vitally important at trial and that Batts’ testimony was used to discredit Terri about knowledge that the weapon was recovered in Mexico and to establish knowledge about the cartel. He also pointed out that the government presented Batts as a boy scout, and afterwards Judge Brack found that Batts lied about the phone call to the FBI.
[T]he government presented Batts as a boy scout.
Mr. Titus pointed out that the government hid evidence. This statement brought the court full circle to where they started with Ms. Fashing. What evidence was in record that indicated Batts knew he was under investigation?
Mr. Titus explained the inference came from the content of his phone call to the FBI and that he must have known otherwise he wouldn’t have called out of the blue to declare his non-involvment in drug smuggling, etc. One of the judges pressed on trying to clear up whether Batts had sufficient knowledge to know about an investigation in general or whether he was personally under investigation. Mr. Titus indicated the inference was that Batts had fear of the outcome of the investigation.
Mr. Titus concluded by stating that the defendants have shown that the government suppressed favorable and material evidence and asked the court to affirm Judge Brack’s Order granting a new trial.
The court’s attention returned to Ms. Fashing.
After listening to the court question Mr. Titus and his arguments, Ms. Fashing urged the court to determine that Batts’ testimony was not important or critical, and that his testimony at trial was not important for conviction. Ms. Fashing suggested that Batts’ testimony only affected Terri Reese and not Rick or Ryin. The court pointed out that they are all in this together.
(The government had pointed out earlier that if a new trial is granted it should only apply to Terri Reese, not Rick or Ryin.)
If Alan Batts’ testimony was material to impeach Terri Reese’s testimony, then isn’t Terri’s testimony about Alan Batts equally important, so the defense could impeach Alan Batts’ testimony?
The court pointed out the central question at issue. If Alan Batts’ testimony was material to impeach Terri Reese’s testimony, then isn’t Terri’s testimony about Alan Batts equally important, so the defense could impeach Alan Batts’ testimony? Ms. Fashing directed the court to look at the decision in a case that one of the judges sitting on the appeals bench may have written. She explained that in that case, the conviction was not dependent on witness credibility, but was dependent on the recording device.
[The government's attorney] directed the court to look at the decision in a case that one of the judges sitting on the appeals bench may have written.
The time to argue both sides was up at this point.
The outcome of the appeals case will be published some months in the future.
If the government loses their appeal, there are several potential outcomes.
- The government could appeal to the Supreme Court,
- The government could drop the case against the Reeses, or
- The government could re-file charges against the Reeses
If the government wins the appeal, the case picks up where it left off. Sentencing, and possibly other hearings related to issues surrounding the reasons for not turning over the evidence about Batts until four months after the original convictions, which are now vacated.
The below is a transcript of an interview posted on Youtube.com titled: “BRILLIANT! Ted Cruz Takes ATF Director Nominee to Task on Guns”
Note: Umms, and ahhhs, and stutters were ommitted. Emphasis has been added to clarify what the questions were. JUDICIARY COMMITTEE SD-226
Senator Ted Cruz (TX)
Hon. B. Todd Jones (MN)
CRUZ: Thank you Madam Chairman. Mr. Jones, thank you for being here. You are a currently sitting United States Attorney. You previously served as Chairman of the Attorney General’s Advisory Committee. You’re the acting director of ATF. You are perhaps uniquely situated to discuss the Obama Administration’s priorities and record concerning gun prosecution. So I’d like to ask you a question. Is it a priority for the Obama Justice Department to prosecute felons and fugitives who attempt to illegally purchase firearms?
JONES: Senator, thank you for that question and one of the priorities of the Department [of] Justice is always been during my second tenure as US Attorney protecting the American public from violent crime including violent firearms crimes.
CRUZ: Is that a yes?
JONES: That’s a yes.
CRUZ: Would you describe it as a high priority?
JONES: It is one of the major priorities.
CRUZ: So a major priority?
CRUZ: I guess then I would ask you to reconcile that comment, that it’s a high priority, with the data. And in particular in 2010 out of 48,321 felons and fugitives who attempted to illegally purchase firearms, the Department of Justice prosecuted only 44 of them. 44 out of over 48,000. And, at least for me, I have difficulty reconciling those hard facts with the assertion you have made that it is a high priority of the Obama Justice Department to prosecute felons and fugitives who try to illegally purchase firearms.
JONES: During fiscal year 2012, Senator, the Department of Justice did approximately 85,000 federal criminal cases involving defendants and 1 out of 7 involved firearms offenses. The NICS check does generate hits of people who are potentially prohibited and you were correct in that the number of folks who are prosecuted federally for what has been coined “lying and trying” is a small number. But the number does not tell the story about what the department has done with armed career criminals…
CRUZ: With respect, sir, my question wasn’t about armed career criminals. My question was whether is was a priority to prosecute felons and fugitives who try to illegally buy firearms. Now this data focuses exactly on that. That’s why I wanted… You could have said no, it is not a priority, and I would suggest the data demonstrate it is not a priority of the Obama Justice Department to prosecute felons and fugitives. In my view, that’s completely unacceptable. Do you disagree? Do you think prosecuting just 44 out of over 48,000 felons and fugitives who tried to illegally buy guns, do you think that is an acceptable allocation of prosecutorial resources?
JONES: Prosecutorial resources are thin and there are a number of issues that US Attorneys across the country deal with ranging from national security financial frauds, and we have tough decisions to make. The reality is, as a first line prosecutor and someone who exercises their discretion on a regular basis, if given the choice between doing a “lying and trying” case, which we have not done in Minnesota, and doing a….
CRUZ: So your office is….
JONES: … We have not done a “lying and trying” case.
CRUZ: Your office has prosecuted ZERO felons and fugitives who tried to illegally purchase firearms?
JONES: We have not tried a … we have not prosecuted a “lying….
CRUZ: Is that a yes?
JONES: …and trying case”. We have done over 150 felony possession armed career criminal cases. We have done straw purchaser cases. On the spectrum of prosecutions that US attorneys can do, “lying and trying” cases, both because of the dedication of resources and the potential deterrent impact and the sentence that’s going to be involved, are not commonly done, which is underlying that 44 figure that you cited earlier, Senator.
CRUZ: Mr. Jones, I have to admit I find it remarkable that you testified to this committee that it is a “major priority” of the Department of Justice to prosecute felons and fugitives who attempt to illegally purchase firearms and then you respond to this committee that it is an acceptable allocation of prosecutorial resources to prosecute just 44 out of over 48,000. And even more astonishingly, you inform this committee that you have prosecuted ZERO. My question to you is are there other things you would describe as major priorities of the Department of Justice that at the same time you have chosen to prosecute ZERO cases enforcing those so-called major priorities?
JONES: With all due respect, Senator, just so the record is clear, a major priority of this Department of Justice is protecting the American public from violent crime, including violent gun crime. I just want to make sure that that’s clear so that what my testimony is is not twisted into something that it’s not.
CRUZ: (waiting in silence)
JONES: Your question, sir, was….
CRUZ: Are there any other so-called major priorities on which you have prosecute ZERO cases?
JONES: We’ve made hard decisions with our resources. Priority number one is national security. In Minnesota we have made major efforts on that front with Al-Shebab. We have made major efforts on protecting our community from violent crime including gun crime. We have made major efforts protecting the safety of people’s nest eggs and financial fraud, and so we have a veritable smorgesborg of decisions that we’re making and all of our work has been consistent with the priorities of this Department of Justice.
CRUZ: Mr. Jones, I would note that you chose not to answer my question. I just want to have one final question with the chairman’s indulgence. Which is that the Grassley-Cruz legislation that was introduced in the floor of the Senate, that received a majority of votes in the Senate, 52 Senators including 9 Democrats, it was the most bi-partisan of all the comprehensive gun legislation introduced. It provided funding for prosecuting felons and fugitives who attempt to illegally purchase firearms. Because in my judgment, and the judgment of the majority of the Senate, it is utterly unacceptable for this Justice Department to refuse to prosecute felons and fugitives who attempt to illegally purchase firearms. In your role as Acting Director of the ATF, or as US Attorney, did you support the Grassley-Cruz legislation and do you support that legislation?
JONES: I am not familiar with the specifics of that legislation and I’m not in a position to answer the question because I’m not familiar with the legislation.
CRUZ: Very well. Thank you.
Earlier this year, the federal government appealed Judge Brack’s decision granting the Rick, Terri and Ryin Reese a new trial. The 10th Circuit Court of Appeals in Denver, Colorado has published the date for oral arguments.
DATE: Wednesday, November 20, 2013
COURTROOM: Courtroom II
TIME: 8:30 a.m.
LOCATION: The Byron White U.S. Courthouse 1823 Stout Street Denver, CO 80257 Map This Location
This proceeding is OPEN TO THE PUBLIC. The public is encouraged to attend. If you can not attend, but know someone in Denver who may be interested, please notify them of the time, date and location.
The Court of Appeals is located in downtown Denver. For those persons interested in traveling and attending and need a hotel room, downtown Denver is not located near the Tech Center or the Denver International Airport.
As previously detailed on this website, Rick and Terri Reese, and their two sons, Ryin and Remington, were arrested in August 2011 on multiple gun related charges, including conspiracy, smuggling weapons to the Mexican cartel, money laundering, and Form 4473 violations related to alleged straw purchasers. Remington was acquitted of all charges. Rick and Terri Reese were convicted of one count each, and Ryin was convicted of two counts of Form 4473 violations. The essence of the violation was that the Reeses should have known that undercover government agents (who were using phony identification that passed the required FBI background checks) were posing as straw purchasers for a career criminal and Mexican cartel member. That Mexican cartel member, Jose Roman, was seeking to have charges against him dropped, reduced sentences for the charges that were not dropped, and some things not charged at all (such as possession of a machine gun). His wife was also seeking to have criminal charges against her dropped.
Several months after the conviction, and before sentencing, the government revealed information that it had used a law enforcement officer, Deputy Sheriff Alan Batts, to testify against the Reeses, when he himself has or had been under investigation for nearly 10 years on suspicion of smuggling illegal aliens, ripping off drug dealers and discrepancies related to missing evidence. The government withheld this evidence about Deputy Batts during trial and Jury deliberations. Deputy Batts has not been charged with any criminal activity as far as can be determined, and therefore remains innocent until proven guilty, if he is charged in the future.
Deputy Batts was the law enforcement officer that Terri Reese contacted when she became suspicious of a buyer that she learned after her arrest was a straw purchaser. Reese defense attorneys alleged that Batts may have known he had been under investigation and may have tempered his testimony.
After an evidentiary hearing in January 2013 concerning issues related to Deputy Sheriff Batts, where the defense team sought a new trial, Judge Robert C. Brack granted the Reeses a new trial http://www.lunatpp.org/breaking-news-judge-grants-a-new-trial/ . Judge Brack granted that trial after hearing testimony of a supervising Assistant US Attorney who knew about the derogatory information about Batts, two FBI agents who were involved in investigating Batts, and testimony from Batts himself.
Near the end of February, the attorneys filed a motion to dismiss the charges against the Reeses. Approximately one month later, at the eleventh hour deadline, the government filed an appeal against Judge Brack’s ruling. http://www.lunatpp.org/reese-case-prosecution-appeals-judge-bracks-decision/
The cases have been on hold since that time.
At issue in the appeal is not whether or not the Reeses are guilty. What is at issue is whether Judge Brack made a correct legal ruling based on case law related to granting a new trial based on all of the evidence surrounding the Batts issue.
Attorney Herbert W. Titus (Virginia) is the attorney of record in the appeals case and will argue on behalf of the Reeses to the Appellate Court.
Michael Connelly, Constitutional Lawyer and Executive Director of the United States Justice Foundation has led the way for raising legal defense funds for the appellate case only. The Reeses are grateful to all persons who have contributed as their own resources were exhausted.
Laura Fashing is the Assistant US Attorney that prepared the government’s opening brief and may argue their side of the case on behalf of the government.
If the appellate court rules in favor of the government, the Reeses will return to Judge Brack’s courtroom for sentencing on the 4 counts of conviction. If the appellate court rules against the government, the Reeses will face a new trial on those four counts if the government decides to continue with the case. The appellate court ruling in this case will not be known for a number of months.
Also pending is the government civil forfeiture case against the Reeses, where the government seeks to have the Reeses forfeit the bulk of their valuable assets, the bulk of which were acquired over their lifetime. Most of the assets the government seeks have already been seized and are being held by the government pending the outcome of the civil forfeiture case.
The Reeses face difficult times ahead, no matter what the outcome of this appellate case is.
A message from the Reeses:
“Please keep us in your prayers as we need the help of our Lord as usual at this time.
Thanks for the help and God Bless.
Rick, Ter, Ry and Rem”
The government claimed that the Reeses “knew” what was going on.
The government claimed the Reeses “knew”:
- that Jose Roman was a Mexican Cartel member smuggling guns,
- that Penny Torres was one of Roman’s straw purchasers,
- that a weapon was recovered in Mexico, even though the location was not indicated on the weapons trace request,
- that the undercover agents during an elaborate sting operation were posing as straw purchasers for Roman, even though their phoney identification passed FBI muster,
- that somehow the Reeses were supposed to know they needed to get an export license to export weapons, even though they were not exporting weapons, and even the government’s own witnesses stated they didn’t need export liceses, and
- that somehow the Reeses should have known making the day’s business sales deposits into the bank was evidence of money laundering.
The Reeses were supposed to have made some kind of intuitive leap on information that was not told to them. They were supposed to be mind-readers.
Who didn’t know?
The government claims they didn’t know about Deputy Alan Batts and his potential Giglio problems.
The government claims they didn’t know:
- that Batts had a Giglio problem, even though he was under investigation for nearly 10 years in the same Las Cruces US Attorneys office,
- that Batts had a Giglio problem, even though the FBI expressed their concerns several times,
- that Batts had a Giglio problem, even though an AUSA supervisor Williams mentioned it his superiors several times; before indictment, before and during trial, the same supervisors that oversaw the Reese case.
Somehow we are supposed to believe that the government wasn’t able to make the same kind of intuitive leap to knowing Batts had a problem – even though they were directly told multiple times.
Ironic isn’t it?
Who knew indeed.
Sure sounds like a double standard.
WAS BATTS A MINOR WITNESS?
This is the question we all want answered. How did a government witness against the Reeses, one who testified for just a short timesuddenly become central to their conviction?
The government has claimed that Deputy Alan Batts was just a minor witness and not central to influencing the jury’s decision towards conviction.
The government asked the appeals court to review Judge Brack’s decision granting a new trial to determine if Judge Brack made a legal error. If Judge Brack made a legal error in granting a new trial, the appeals court could reverse Judge Brack’s decision. Should the appeals court decide that Judge Brack made a legal error, and reverse his decision, the Reeses will proceed to sentencing.
After explaining the Reese side of the argument on why they believe the government withheld favorable and material evidence, the appellee’s brief explained the standard of review in this case.
The appellees’ brief explained that the “decision to grant (or deny) a motion for a new trial lies within the sound discretion of the district court” and that the appeals court can only overturn that decision if the judge “abused its discretion” by making an “arbitrary, capricious, whimsical, or manifestly unreasonable” judgment. The standard involves a three part Brady test. Namely, was evidence suppressed, was it favorable to the defendant, and was it material?
The appellees pointed out that when reviewing what is materially important for Brady purposes, the Supreme Court admonishes the appeals court “not to look for ‘ample, independent evidence of guilt’ or ‘evidence sufficient to support the [jury’s] findings,’” but instead to determine “whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’”
Much of the government’s brief was dedicated towards looking for ample evidence of guilt and to support the jury’s guilty verdicts.
The appellees claimed the Government is “factually mistaken” and has erroneously applied the standard of review governing defendants’ Giglio claim. They further claim that Judge Brack’s decision was within his sound discretion, was supported fully by the facts in the record and in compliance with the appropriate legal standards.
The appellee’s brief explained in great detail why the Reese defense team believes Deputy Batts was a major witness during the Reese trial. The Reese defense team believes Deputy Batts played a key role in establishing the integrity of the investigation and prosecution of the Reese family. Furthermore, they believe Batts was a key witness utilized to prove beyond a reasonable doubt that Rick, Terri & Ryin knew the undercover firearms sales were straw purchases. The appellees’ attorneys also point out:
“As to the four counts of conviction, the Government points to nothing in the record to support its contention that the guilty verdicts can be attributed to the audio and video tapes alone, as the Government adamantly insists.”
The appellees’ brief pointed to repeated references made to Deputy Batts in the government’s closing arguments, including allegations that Terri knew the weapon purchased by Penny Torres had been recovered in Mexico because “she knew Roman took it there”, and that Terri’s statements to Batts were “a cover-up, not a genuine concern for compliance with ATF regulations.”
The appellees’ brief also claimed at least one of the governments arguments was absurd.
In a valiant, but quixotic effort to trivialize Batts’ testimony, the Government has attempted a mathematical reduction ad absurdum, contending that Batt’s testimony ‘consumed only 21 pages… of a trial transcript that spanned more than 2300 pages… the ninth of sixteen witnesses in the government’s case-in-chief… his testimony… among the shortest.’”
Reese attorneys point out that the importance of testimony has nothing to do with how many pages of transcripts exist. The appellees’ pointed out some statistics of their own:
Deputy Batts’ testimony consumed almost 1% of the trial transcript, but references to his testimony in closing arguments appeared on 5 of 38 pages – 13% of the pages.
The brief explains that “Deputy Batts’ testimony directly related to the knowledge element of the straw purchase counts of conviction.”
Note: Apparently, the key issue in the counts the Reeses were convicted of was the knowledge element. Did the Reeses actually know that the undercover agents were posing as straw purchasers for Mexican cartel member Jose Roman? The Reeses have maintained all along that they did not know.
The brief pointed out that the government claims Terri’s statement to Batts was relevant only to smuggling counts and had nothing to do with the counts of conviction (making false statements on a 4473 form). However, the appellee’s point out that each count of conviction for filing a false statement has a parallel count charging “knowingly facilitating the smuggling of the firearm(s)…” (Emphasis added.)
The point the appellees’ are making is that during trial the government claimed that the Reeses knew that Roman had been smuggling weapons by using straw purchaser Penny Torres. Therefore the Reeses were charged with the smuggling charges, and the filing false statements related to the weapons being purchased by a straw purchaser. However, now the government claims Batts’ statement only related to the smuggling charges, but not the related straw purchase charges that they were convicted of.
To futher support their charges, the government had argued in trial that the objectives of conspiracy were to sell guns and ammunition knowing they would be illegally smuggled to MX, and to sell those guns via straw purchasers. The government was able to allege that Terri had knowledge because Allen Batts testified that Terri knew the guns had been recovered in Mexico.
The government’s brief claimed that Batts’ testimony only indicated that Terri had knowledge, but this did not implicate Rick or Ryin having knowledge.
However, during closing arguments the government pointed out that this is a family operated store, they lived and worked together and knew what was going on even when they were not present in the store. The appellees’ brief pointed out that it would therefore have been reasonable for a jury to infer that Terri would have discussed the weapon being recovered in MX with her husband Rick, and son Ryin, if she had also told that to Batts.
(Note: Not only would it have been reasonable for the jury to infer that the family had discussed the trace report of the weapon being recovered in Mexico, there was trial testimony that indicated they had in fact discussed it. As previously reported, Rick testified during trial that Terri and he had it and Terri indicated she was going to call law enforcement. http://www.lunatpp.org/reese-trial-rick-reese-takes-the-stand-part-3/)
The appellees’ claim Batts had motive to temper his testimony because he knew he was being investigated by the FBI. The government, however, claimed he didn’t know based on one thing - “Deputy Batts denied any knowledge of the investigation.” The appellees claim the government ignored mentioning the other facts that led Judge Brack to conclude otherwise. These other facts included Deputy Batts call to the FBI to implicate another officer in wrongdoing, while claiming he had nothing to do with the wrongdoing.
The appellees pointed out that impeaching Batts would have helped the defense and explained:
“[T]he Reeses only had one weapon to counter Batts’ false claim – Terri’s denial. The fact that Batts had also said nice things about the Reeses and their business practices actually hurt the Reeses, rather than helped, because his overall testimony gave the jury the impression that Batts had no animus towards them…… [a] jury would not believe that a government witness who spoke so highly of the defendants was slanting his testimony to curry favor with the government… By withholding the FBI report, the Government foreclosed any opportunity for the jury to make that decision themselves. And it ill behooves the Government to substitute its opinion for that of the jury in this case.”
As a result, the appellees asserted the impeachment information suppressed was material, it was favorable to the defense, and that government misconduct was relevant. The appellees’ explained the government’s brief attempted to exclude the facts that led to Judge Brack decision that the government suppressed Giglio material.
“[T]he government claimed that the suppression of evidence “is not at issue in this appeal.”
The government claimed the suppression of the evidence didn’t rise to level of the prosecutor knowingly using perjured testimony, even though Judge Brack did find there was no doubt the prosecution intentionally or negligently suppressed the evidence.
The appellee’s brief pointed out that the Judge Brack had found the government had known about the Batts information for nearly ten years before trial, and that the Judge found the jury didn’t believe the government had a strong case, even though the government told the appeals court they had presented strong evidence. Additionally, the government didn’t point out that the defendants had been found not guilty of a number of counts involving the undercover stings.
Central to the appellees’ breif is the explanation of why Deputy Batts actually was a key government witness.
Batts’ testimony was essential to corroborate the testimony of government informant Jose Roman. Roman had testified that Terri told Roman in August 2010 that one of the guns straw purchaser Penny Torres purchased had been found in Mexico.
“Terri’s alleged statement was elicited from Batts because he could be presented to the jury as an experienced law enforcement officer whose only part in the Reese investigation was to ‘contact  HSI because [he] felt that the weapons were going back across the border. Without Batts’ testminony corroborating Terri’s alleged statement in August 2010, the Government was stuck with Roman, a member of the Mexican cartel…”
Roman and his wife were parties to a plea agreement and they were both expecting to receive a number of benefits, including reduced sentences, in exchange for testifying against the Reeses.
“Only by suppressing the FBI Report with its damning information about Batts’ corrupt activity could the Government have accomplished this feat… [the] suppressed evidence was clearly material.”
Batts’ testimony was essential to prove the Reeses had criminal knowledge beyond a reasonable doubt.
According to the government “[m]ost of the defendant’s incriminating statement were made to Roman” … [thus], the Government recites in great detail the evidence captured on tape.”
However, according to the appellees there was no evidence on tape that indicated the Reeses knew the purchaser was someone other than the person identified on the 4473 forms. “[K] nowledge was entirely circumstantial, as demonstrated by the prosecution’s closing arguments in trial.”
During closing arguments the government repeatedly told the jury to look at Batts’ testimony to prove that the Reeses had knowledge that the weapons were going to Mexico, had knowledge that Roman was a cartel member, and to look at Batts’ testimony to see that the Reeses knew the full picture. However the Reese attorneys point out that on appeal, the government took the opposite position and claimed that the impeachment evidence withheld on Deputy Batts “could not have undermined the government’s entire case.”
Mr. Titus, concluded: “The government cannot have it both ways.”