REESE UPDATE: Motion to Vacate Felony Convictions

The court appointed attorneys in the Reese case have filed a joint motion to vacate (throw out) the felony convictions and sentence them under a misdemeanor statute.

Rick, Terri and Ryin Reese were convicted in 2011 of four counts of Form 4473 (Brady check) violations.  According to agents who testified during trial, the Reeses ran all of the required background checks (the Brady checks) through the FBI processing center for all sales, including the undercover agents who purchased the firearms, and that none of the paperwork was missing.

Jurors acquitted the Reeses of all charges that involved conspiracy, firearms smuggling and straw purchases involving Penny Torres.  Torres admitted to being a straw purchaser for mid-level Mexican cartel member Jose Roman.  In order to acquit the Reeses of those counts, the jury presumably would have had to reach a decision that the Reeses were fooled by Penny Torres and did not know that Torres was acting as a straw purchaser, or that Roman was a cartel member.

However, when it came to the undercover operations, the jurors decision to convict them of four counts of paperwork violations seemed to indicate they believed the Reeses “knew” the guns being sold to undercover agents were actually being straw purchased for mid-level Mexican cartel member Jose Roman, and that they had learned or already knew Roman was a cartel member.

The Reeses were convicted of violating (federal statutes) Title 18 U.S.C. 924(a)(1)(A) for knowing the named purchaser (an undercover agent) was not the actual purchaser (Mexican cartel member Roman).  Violations of this straw purchasing statute carries a sentence of a fine and ”imprison[ment] not more than five years or both.”

However, further down in the same section of Title 18 U.S.C. 924(a)(3) there is an exception for licensed firearms dealers (FFLs), which carries a fine and “imprison[ment] not more than one year, or both.”

It is important to note that both of these sections are under the section “924″ , therefore “pari materia” applies.  Statutes that apply to the same subject (“in pari materia”) must be interpreted in light of each other – they must be construed together.

Defense attorneys submit that the court can not ignore the language in 924(a)(3) that specifically applies to licensed federal firearms dealers, simply because Torres committed a felony straw purchase, and the undercover agents pretended to commit a felony straw purchase.

The Court decision in the Wegg case explained:

A straw purchase could not occur but for the involvement of the dealer, much like adultery or statutory rape could not occur without the involvement of the “partner” or the under-age female. Furthermore, just as the criminal law may treat the customer of a prostitute differently from the prostitute by having a separate statute or an adulterer different from his or her “partner,” the present statute expressly treats sellers of guns different from purchasers.”  (emphasis added)

Besides the number of years of imprisonment, there is another big difference in the sentences.  Conviction under 924(a)(1)(A) is a felony.  Conviction on 924(a)(3) is a misdemeanor.

The difference not only impacts the length of time the Reeses may serve in prison, but it may also impact  their ability to own firearms in the future.  Convicted felons can not own firearms.  Title 18 U.S.C. § 922(g)(1) states that anyone “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year” is barred from possessing, shipping, transporting, or receiving a firearm or ammunition.”  It also includes constructive possession of a firearm or ammunition, meaning any ability to exercise control over a firearm or ammunition through a third party.

Title 18 U.S.C. § 921(a)(20) and (a)(33)(ii) states that “[any] conviction which has been …. set aside … shall not be considered a conviction for purposes of” the federal gun ban.

As recently as one month ago in the last court proceeding, AUSA Maria Armijo continued to argue that Terri Reese was a flight risk and a danger to the community.  Presumably, the government also considers Rick and Ryin Reese to be dangers to the community.  It is anticipated that the government will argue against the motion to reduce the convictions from felonies to misdemeanors.

In support of the motion, Reese defense attorneys submitted three decisions in other federal cases.  The judges in those cases all noted that the statutes require the courts to treat licensed firearms dealers differently, with the law only providing for a penalty of a misdemeanor.

Defense attorneys pointed out that the government will likely submit their counter-arguments based on three other court decisions.  Those cases, however, involve “willfully failing to keep records”,  which is a violation of 18 U.S.C. § 924(a)(1)(D) – a charge the Reeses were not accused of.  The Reeses not only ran the required Brady checks (Form 4473), but they also maintained the records in their files.

To date, Rick and Ryin Reese have already served nearly 18 months.  If the convictions are reduced to misdemeanors, Rick and Ryin have already served more time than the law requires.  Terri Reese was released on bond early to prepare for trial and served less than one year.  She may be required to return to prison to finish out a sentence.  It is not known if the judge would take into consideration that Terri Reese (as well as Rick and Ryin) have not violated any of the conditions of their release – unlike a great majority of persons out on bond who wind up back in jail within a months  of being released pending sentencing.

Meanwhile, the deadline set by the judge for the defense to submit objections to the presentencing report prepared by the probation office was early this week.  The prosecution now has two weeks to submit their objections to the defense’s objections.

One can only wonder what was really going on in the Reese case.

During trial, Homeland Security Investigations (HSI) Special Agent Eddie Pacheco testified that he did not actually believe mid-level cartel member Jose Roman, when Roman alleged that the Reeses knew that he was a cartel member and smuggling guns to Mexico.  The basis for Agent Pacheco changing his mind came about when Roman placed a phone call to New Deal and asked to speak to Ryin Reese.  He asked if they had any AK-47 rifles for sale; Ryin informed that they did and to come on down and take a look.  Based on that phone call, a routine inquiry, agents believed that there was actually a reason to believe that the Reeses had knowledge of Roman’s illegal activity.  The jury did not agree with the agents – they acquitted the Reeses of those charges involving Roman and Torres.

Regardless, based on that phone call, the agents proceeded with multiple and extraordinarily expensive undercover sting operations, to build a stronger case, until they were able to “get something” on each of the four Reeses.  After the Reeses were arrested in Las Cruces without incident, hundreds of agents swooped down on New Deal in Deming.  Instead of agents using the key voluntarily provided to them to open the secure storage area that contained ammunition and powder in part, they used a blow torch to cut open the door, caught the place on fire and nearly caused an explosion.

As the Courts have pointed out, the statutes expressly treat firearms dealers different than straw purchasers.

The straw purchasers in the Reese case got off with a slap on the wrist.  The Reeses currently face more time than the criminals who actually smuggled drugs, firearms and ammunition to drug cartels in Mexico.  The government is seeking an upwards deviation from five years to eight years.  This seems to be the opposite of the plain language of the statutes cited by defense attorneys.

Meanwhile, the government’s civil forfeiture case to seize the bulk of the Reese’s valuable assets is still pending.  Even if it turns out the convictions against the Reeses turn out to be misdemeanors, the government can and still is going after the Reeses’ cash, life savings, personal collection of firearms collected over a lifetime, business cash, business inventory, personal and business property, vehicles, and more.

All for what potentially may turn out to have been a misdemeanor.

One can only wonder why the government went to such lengths to “Get the Reeses”.

In another firearms case in Luna County, locally known as “the Columbus case”, over 200 guns were in fact actually smuggled to Mexican cartel members.  The public learned much later the case was linked to the Fast and Furious case.  Based on testimony by ATF agent Carlos Valles in one of the proceedings in the Reese case, and information later learned, the government knew this many months before the Columbus co-defendants were arrested.  Prior to the arrests in that case, the husband of the former Chief of the Criminal division of the prosecutor’s office was convicted for leaking information to one of the co-defendants in that case that the government had the phones tapped.  No such huge display of force was used to arrest those prolific firearms smugglers.  Judge Brack presided over that case, however, none of the co-defendants went to trial as they pled guilty.

In contrast, approximately five to seven firearms sold by the Reeses to Penny Torres were later found in Mexico at crime scenes.

Interestingly, agents testified in trial that some of the firearms purchase by Torres were recovered in Sinaloa, Mexico.  Sinaloa is an area controlled by the Sinaloan cartel – the arch enemy of the La Linea cartel.  Jose Roman was a mid-level member of La Linea.  Later, government hearings revealed the Sinaloa cartel was receiving its firearms from smugglers involved in the Fast and Furious case.

Stay tuned for updates.

A hearing date concerning this issue will be published as soon as it is known.

 

For additional information, please read David Codrea’s latest article at:

http://www.examiner.com/article/reese-family-files-motion-to-vacate-felony-convictions

 

REESE UPDATE: Hearing to Reduce Bond

The Reese family, including Ryin Reese’s wife, Clara, and friends and supporters gathered once again in Judge Brack’s courtroom.  All three new court appointed attorneys were present at the defense table.

Judge Brack heard two motions presented by Terri Reese’s court appointed attorney, Stephen Hosford.

The first motion related to modifying travel restrictions.  Terri Reese previously was only allowed to travel freely in Luna County, where she resides, Dona Ana County, where the court and probation office is located, and Otero County.  Terri sought to have Sierra County added, where her in-laws reside, so she could travel there without having to ask permission each time.  In addition, she sought to have unrestricted travel throughout the State of New Mexico, which is the same condition her husband and son enjoy.

Mr. Hosford explained to the court that Terri and Rick have been working as movers, living from job-to-job while waiting for sentencing.  At times their work requires them to travel out of state.

AUSA Maria Armijo pointed out that the pre-trial office had recommended the restrictions.

Judge Brack granted the defendant’s motion.  Terri Reese does not have to contact the probation office to travel to Sierra County, and does not have to have permission to travel in state, but advised her to continue keeping the probation office informed.  Terri continues needs to get permission from the probation office if she is traveling out of state.

The second motion sought to have her $100,000 bond reduced.  The bond is currently secured by real estate owned by her in-laws in Sierra County.  Terri’s in-laws are elderly, the trial has been very expensive, their assets were seized, and they have had to rely on their in-laws for financial assistance.  Her mother-in-law is retired, and her father-in-law works part-time odd jobs.  The Reeses wished to relieve their in-laws of their financial obligations with respect to the bond.

Terri’s attorney pointed out that she has been out on bond for nearly two and a half years and does not have the means,  desire to run, or even a passport.  Her son Ryin, has been living in the State of Washington without incident.  (Ryin recently returned to Luna County in anticipation of the sentencing hearing.)

AUSA Armijo pointed out that although prior to conviction Terri faced a much higher maximum sentence, none-the-less, she has been convicted of one count and is still facing a significant penalty – 5  years.

Terri’s attorney maintained that she has no desire to abscond and that the excessive $100,000 bond is not necessary.  He asked the court to reduce Terri’s bond to a bond similar to Rick and Ryin’s bond.  Mr. Hosford suggested a $15,000 unsecured bond.  He also assured the court that Terri is not a danger to the community.  He requested the judge to give the property back to the in-laws.

Judge Brack questioned why it was a hardship if the in-laws have no intention to sell.  Mr. Hosford responded that the in-laws would like to be able to sell if they need to since they have been squeaking by financially.

AUSA Armijo claimed that Terri Reese had not complied with the court’s request to disclose all assets and financial information.  She claimed that Terri still has anger at the U.S. government and had not had any mental health treatment.  AUSA Armijo also informed the judge that the government is seeking an upward departure from the sentencing guidelines.  AUSA characterized Terri’s actions as “a threat to national security.”  She further claimed that Terri needs “anger management” and a “full mental health evaluation.”  Terri would face over five years and to date she had only served approximately seven months.  AUSA Armijo claimed the only reason she was released before trial was for medical issues.  AUSA Armijo also claimed that there were also obstruction of justice issues related to Terri’s trial testimony.

AUSA Maria Armijo characterized Terri’s actions as “a threat to national security.” She further claimed that Terri needs “anger management” and a “full mental health evaluation.”

The probation officer informed the judge that there have been no problems or issues with Terri while she has been out on bond, and that she always contacts either herself or another probation officer.

Terri’s attorney pointed out that Rick and Terri jointly own their assets, and that former attorney,Robert Gorence did provide the government with their combined financial assets.

Judge Brack explained that one point he was stuck on was that there was no need.

Terri’s attorney admitted there is no immediately sale pending and that he did not know when they would decide to sell the property.

Judge Brack decided to leave the $100,000 secured bond in place for now, but if the situation changed he would be willing to consider the matter again if the attorney could make a compelling case that there is a real burden on Jack and Marj Stewart.

Judge Brack also stated that he does not believe that Terri Reese is a danger to the community and no longer considers her a flight risk.

The impact of Judge Brack’s decision on the Reeses means that Terri Reese would not have to come up with $15,000 in cash to replace the current $100,000 secured bond;  and the Stewarts would not be able to sell the property, if they need to.

After those two motions were decided, Judge Brack requested an update from the defense and the prosecution.  He noted that he had not yet seen any objections filed concerning the presentence report.  He wanted to move the case forward.  (It has been two years since the verdict came out, and approximately three months since the appellate court make its decision on the prosecutions appeal.)

Rick and Terri’s attorney had not yet received a copy of the presentence report (“PSR”).   Rick’s attorney, Cori Harbour-Valdez had just learned about the PSR the day before and requested sufficient time to review it and the trial records.  She anticipated there would be numerous objections.  Ryin’s attorney had received a copy, but was waiting for a decision on the motions before filing his objections.

Judge Brack initially gave the defense attorneys two weeks to file their objections.

Ms. Valdez pointed out that they had not tried the case, and that AUSA Armijo was claiming the government would be seeking an upward variance in the sentence.  They had not read the trial transcripts and needed additional time to read the lengthy and contentious transcripts.  She also pointed out that they did not have anything to do with representing the Reeses in the first appeal, however, had filed an appeal to the Supreme Court.  She also pointed out that Judge Brack and AUSA Armijo both had the benefit of being present during the trial.

AUSA Armijo informed the judge that the PSR had been disclosed in 2012.  Ms. Valdez countered that the new attorneys were appointed by the court in March of 2014.

Judge Brack has given the defense attorneys 30 days to prepare their objections to any issues in the PSR, and then two weeks after that for the government to respond to those objections.  Judge Brack also informed the attorneys that the trial transcripts had been transcribed for the appeal.

For now, the Reeses remain out on bond, pending the resolution of any disputes over the presentence report.

 

Rick, Terri were convicted of one count each, and Ryin on two counts, of paperwork violations of ATF’s Form 4473 (the Brady check).  The core essence of the conviction was that the  Reeses should have known that undercover agents, using phoney names and identification which passed the FBI Brady check, were posing as straw purchasers for Jose Roman, who, unbeknownst to the Reeses, had been caught smuggling guns and drugs across the New Mexico border through Columbus, New Mexico earlier that year.

During the Reese trial, a government expert witness described Jose Roman as a mid-level cartel leader of La Linea.  La Linea is the strong arm of the Juarez (Mexico) cartel.  Jose Roman admitted during trial to having a machine gun in his possession, amongst his many other crimes spanning over ten years, which included alien smuggling, drug smuggling and gun smuggling.  Jose Roman received a significantly reduced sentence in exchange for participating in the sting operations against the Reeses.  Prior to the commencement of the undercover sting, Jose Roman used straw purchaser Penny Torres to purchase weapons at New Deal, and to help him smuggle drugs.  During trial, Penny Torres admitted that Jose Roman and his wife coached her on what to say to the Reeses.  When the defense pointed out that she was trying to fool them, Penny Torres stated, “…if that’s what you want to call it.”  Penny Torres also admitted to hiding firearms in her house for Jose Roman.

In another case, Ian Garland, the FFL who sold nearly 200 firearms to the former chief of police, former mayor, former trustee and other co-conspirators in the Columbus case, received a five year sentence.  Ian Garland was released from jail last year after serving approximately two and half years.  According to a December 2013 Los Angeles Times article, Ian Garland was “released after a court hearing in Las Cruces, N.M., showed that he was given a longer sentence because the court was misinformed that some of the weapons he sold were fully automatic machine guns, rather than rifles and pistols. He had served half of his five-year sentence.”

It should be noted that Penny Torres admitted that she fooled the Reeses for the weapons she was purchasing for mid-level cartel leader, Jose Roman.  The four counts of conviction involved in the Reese case stem solely from undercover operations.  None of the weapons listed in the Reese case are “fully automatic machine guns”, and none of the weapons purchased by the undercover agents were smuggled out of the country to the cartel.

As noted during today’s hearing, the government is seeking an upward departure from the maximum sentencing guidelines of five years.

In federal court, a person who testifies in their own defense who is convicted by the jury, runs the risk of being assessed a two-level increase for obstruction of justice.

 

REESE CASE UPDATE: New Bond Hearing & Supreme Court Appeal

Terri Reese is scheduled for a bond hearing on Wednesday, AUGUST 6th 2014, 10:00 a.m. at the Federal Courthouse in Las Cruces.  The purpose of the hearing is a reduction in bond from $100,000 to an unsecured bond of $15,000.

Supporters who can attend are encouraged to arrive by 9:00 a.m. to get through the x-ray screening process. Leave cell phones, cameras, and anything that can be considered a weapon (hair spray, fingernail clippers, knives, guns, etc.) at home or in your vehicle.

Rick, Terri, and Ryin Reese were convicted in August 2012 of paperwork violations in connection with the instant FBI background investigation checks (ATF Form 4473) conducted when undercover agents purchased weapons.  The agents provide false identification and signed Form 4473 that they were in fact the purchasers of the weapons. Three of four Reeses were convicted by a jury that the Reeses should have known that the undercover agents were purchasing weapons for a man the government described as a mid-level Mexican cartel member.  The Reeses claimed they did not know Jose Roman was a cartel member.  During the undercover operation mid-level Mexican cartel member Roman assisted one male and two female undercover agents pick out weapons, which the agents purchased.

Terri Reese has been out on bond since before trial.  After the convictions, the government attempted to revoke her bond.  A probation officer claimed she was in fear of her life when she went to visit Terri at her home and allegedly saw items on the property that caused her to be afraid.  The judge ordered a search of the premises.  After the search revealed nothing on the property that would be a cause for concern, the judge did not revoke Terri’s bond.

Instead of proceeding to sentencing, Rick and Ryin Reese were released four months later at a much lesser bond amount, $10,000 each.  Judge Brack granted a motion for a new trial after the prosecution voluntarily revealed to the defense attorneys that Luna County Deputy Sheriff Alan Batts, who testified at trial against the Reeses, was himself being investigated by the FBI on allegations of corruption.  The corruption allegations, revealed in court by two FBI agents and a supervising federal prosecutor, involved allegations of drug and alien smuggling, ripping off drug dealers, and missing property seized from criminals.   No charges have been filed against the deputy to date, as far as is known.

To date, as far as is known, Rick, Terri and Ryin have not violated any of the terms of their conditions for release pending sentencing.  Rumors around town, including rumors that Ryin Reese is/was a fugitive in Canada and that Terri Reese was back in jail amongst others, are false.

The government filed an appeal against Judge Brack’s decision to grant the Reeses a new trial.  The Denver appellate court later reversed the trial judge’s decision (Judge Robert Brack) and remanded the case back to Judge Brack for sentencing.

The Reeses have since filed a Petition for Writ of Certiorari to the Supreme Court of the United States.

For now, the Reeses remain out on bond pending a decision from the Supreme Court.

 

 

News in California picks up the Reese appeal story

News in California picked up David Codrea’s article on the Reese appeal.

http://newsinca.com/reese-family-challenges-appeals-panel-overturning-of-new-trial-order/

 

Unable to find any links to articles published from the local papers, Deming Headlight or Las Cruces Sun.

 

 

 

Luna County Sheriff Candidates

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.

 

BREAKING NEWS: Reese Attorneys file for Rehearing En Banc

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.    

BREAKING NEWS: Appeals Court Decision Reese Case

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.

 

 

 

 

REESE CASE – Updates

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.

http://www.firearmscoalition.org/index.php?option=com_content&view=article&id=708:courting-corruption&catid=19:the-knox-update&Itemid=144

David Codrea put in his two cents also.

http://waronguns.blogspot.com/2014/01/justice-delayed-justice-denied.html

 

Other updates:

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.

 

 

 

 

 

 

REESE CASE: Defense Team Defends Judge Brack’s Order

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.

Transcript – Senator Ted Cruz questions the nominee for ATF Director

The below is a transcript of an interview posted on Youtube.com titled:  “BRILLIANT!  Ted Cruz Takes ATF Director Nominee to Task  on Guns”

http://www.youtube.com/watch?v=2tRidnXwLf8

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)

 

Transcript:

 

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?

 

JONES:  Yes.

 

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.

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