The sentencing date for Rick, Terri and Ryin Reese has been set for 1:30 p.m. on Wednesday November 5, 2014 in Judge Brack’s courtroom in Las Cruces, New Mexico.
Rick and Terri were convicted of one count each of failing to keep the information required on ATF Form 4473 (the Brady check form) of the name of the true purchaser of firearms sold during a 2011 undercover sting operation conducted in Rick’s store, New Deal Shooting Sports. Form 4473 listed the name of an undercover agent who posed as a straw purchaser for mid-level cartel member Jose Roman, who had previously been arrested on marijuana and firearms smuggling charges. The government alleged and maintains that the Reeses should have known that the agent was making the purchase for Jose Roman.
Ryin Reese was convicted of two counts for failing to keep the information required on ATF Form 4473 (the Brady check form) of the name of the true purchaser of firearms sold during two separate 2011 undercover sting operations conducted in his father’s store. Those forms listed two undercover agents who were also posing as straw purchasers for Jose Roman. Ryin Reese was also convicted because he should have also known that the agents were making purchases for Jose Roman.
Jurors had acquitted the Reeses of all counts involving straw purchases made by Deming resident Penny Torres, who was making straw purchases at the direction of Jose Roman. In fact, Penny Torres admitted on the witness stand during trial that when she was making straw purchases for Jose Roman she concealed that information from the Reeses and fooled them into thinking she was the true purchaser. She also admitted that Jose Roman and his wife, Yadira, coached her on what to saw when purchasing the firearms so the Reeses wouldn’t become suspicious about the purchases.
The Reeses’ youngest son, Remington Reese, was acquitted of all counts.
It is anticipated that the government and defense attorneys will also argue about the merits of a motion filed by the defense to sentence the Reeses under a misdemeanor statute, as opposed to felony counts, as charged.
Terri Reese has been out on bond since March 2012, and has served seven months to date. Rick and Ryin Reese were released in April 2013 and have served approximately eighteen months. Presumably, the time they have already served will be credited towards their sentence.
Earlier this week, the U.S. Supreme Court denied the Reese appeal of the Appellate Court decision in their case. The Appellate Court had overruled Judge Brack’s decision granting the Reeses a new trial.
Friends and supporters are encouraged to show support:
100 North Church Street, Las Cruces, New Mexico
1:30 p.m. Wednesday
November 5th, 2014
Thank you all for the support and prayers in the past. If you are available or know anyone who is… please come to sentencing to show support to the judge. God Bless Rick, Ter, Ry and Rem”
Federal prosecutors filed their response on September 23, 2014 to the Reese defense team motion to vacate the felony convictions. Prosecutors argue that the government has the option to choose whether to prosecute licensed federal firearms dealers under felony charges or misdemeanor charges. Additionally, prosecutors argue that the law does not say that FFLs must be exclusively prosecuted under misdemeanor statutes.
Prosecutors allege the Reeses flagrantly and repeatedly accepted false ATF forms from straw purchases, and therefore the charges were correctly filed under felony statutes.
Please read David Codrea’s article for further details.
The scheduled date for a hearing on the matter is not yet known and will posted as soon as available.
Meanwhile, there is no word yet as to whether the United States Supreme Court will accept the Reese appeal of the Appellate Court decision. The Court of Appeals overturned Judge Brack’s decision granting the Reeses a new trial based on the government use of Luna County Deputy Sheriff Alan Batts as a witness against the Reeses, when he himself was under investigation for several alleged federal crimes, thereby violating the Reeses’ civil rights.
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:
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.
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 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.