Archive for August 2012
After the case was sent the to Jury, the defense attorneys and family, and some friends, customers and acquaintances, waited mostly outside in the hallway for the verdict.
Wednesday afternoon, the Jury requested to see the Barrett 50 caliber weapon, and then it was returned to the courtroom. By this time, a number of people had moved into the courtroom. The Judge, some of the various court staff, defense attorneys, the government’s prosecutors, and a government attorney believed to be the attorney who would head upt the government’s asset forfeiture case. Little by little, family and other observers wandered in. Agent Pacheco arrived around 3:10pm and the defendants were brought in by the Marshalls shortly thereafter.
The Judge announced they were going on the record and explained that they had received two questions from the Jury, however, the questions didn’t indicate a time. He explained the problem was that they had received another note telling the Judge not to worry about the second question and that they had figured it out.
One question the Jury had related to Counts 11-28 and another question was about punishment. There were discussions between the Judge and Mr. Gorence.
The Judge commented that the jury doesn’t get to recommend sentence, and that on the other question they are typically referred back to the specific language in the Jury instructions.
One of the court staff members left the room to determine which question needed to be answered, and she she returned, the Judge responded the answer is there is no provision for the jury to recommend sentence, and told her to tell the Jury the answer is no.
One of the government’s attorneys informed the Judge that the government had come to an agreement with the defense regarding asset forfeiture. The government informed the Judge they only wanted to pursue civil forfeiture and not criminal forfeiture. A long discussion followed on some legal technicalities about incorporating evidence from the criminal trial and not having to re-introduce all of it into evidence in order to speed up the discovery process.
At 3:45pm the Jury returned with the verdicts as previously published. Each count was read with the name of the defendant and the verdict. Afterwards, each juror was asked two questions, was the vote unanimous and did they agree with the stated verdicts.
Remington was ordered released immediately. He was released after the paperwork to release him was processed.
The Judge ordered a pre-sentencing report for the three who were convicted to assist him with sentencing at a later date. Rick and Ryin were removed by the Marshalls and will remain in custody. Terri remains out on bond until sentencing.
The prosecution had one more chance to make its case against the Reese family. The final closing argument was by Ms. Armijo.
Ms. Armijo told the Jury they deal with the devil all the time. She stated Mr. Gorence could say that, but pointed out that when you play in hell, and they did play with Roman, there are no angels in hell. She justified this by saying unfortunately in a lot of investigations there are certain steps that have to be done, and you are damned if you do, and damned if you don’t.
She told the Jury that in 2009 there was not enough probable cause to arrest Roman. She said with the aircraft there was not enough probable cause to arrest Roman, and they had to keep building a case until they had enough probable cause and they didn’t want to be premature.
Ms. Armijo asked the Jury why did Terri Reese cover herself with the call to officer Batts. Ms. Armijo suggested when Terri checked the registry to see who owned the weapon for the government, she realized she’d better do something so she called LSCO Batts and told him certain things.
Ms. Armijo pointed out that by the way, S/A Valles (sp?) was the senior agent. But Terri only told law enforcement just enough to do their job. However, once Roman became involved, it played out differently.
Ms. Armijo reminded them in November of 2010 Roman purchased some ammunition. Terri didn’t place any calls to ATF, and when he purchased a 50 caliber they didn’t call that in. Ms. Armijo suggested the reason Terri called was to cover her ass in case it ever came back to her, which is exactly what happened.
Ms. Armjio asked the Jury how could they find the Reeses had knowledge, not just banter and puff. She pointed to the July 29, 2011 undercover sting. She mentioned Ryin telling Roman that if more than two handguns are sold that a multiple handgun sales report must be made and that ATF will know, with Roman replying it was ok, no problem. She pointed out Ryin replied that was fair enough.
Ms. Armijo pointed to other statements. Roman told them on June 15th that he was taking stuff to Mexico to make money, and on July 7th that he had the money but she (the undercover agent) would do the paperwork, asking if Ryin wanted him to give her the money.
Ms. Armijo asked the Jury to remember Terri joking about the 4473 form and telling the undercover agent she didn’t pass, and asked the Jury why wouldn’t that matter.
Ms. Armijo alleged that there was other knowledge that Rick and Terri knew the 50 caliber was going to Mexico for cartel purposes, and reminded them of Roger Morris’ testimony that they could go shooting in Casa Grande, Mexico with the cartel. She told the Jury this was knowledge, not car shop talk, not puff.
Ms. Armijo stated there was a lack of calls to the ATF, and she pointed to October 13th regarding the multiple firearms report of Penny Torres’ which was due on the same day.
Ms. Armijo explained to the Jury that the government doesn’t have to show a contract to show a conspiracy. The government is not required. Actions show agreement, she told them.
Ms. Armijo told the Jury the government can infer knowledge from their actions. She added it is very simple, and provided an example. When she returns home and sees hopscotch marking on her driveway, and chalk on the kids hands, she doesn’t have to see them having fun on the sidewalk. There is circumstantial evidence.
Ms. Armijo told them to look at the Reese’s actions. She told them the government doesn’t have to prove every doubt, just reasonable doubt and urged the Jury to use their common sense.
Ms. Armijo told the Jury also there was no evidence Roman was given (not heard) by the the Cartel. He wasn’t charged because of the proffer letter January 26, 2011. (Ms. Armijo’s next comments were not completely heard, something involving …. anything people say… used against… can’t use other statements against them…) Ms. Armijo called it a red herring used by the defense in an attempt distract.
Ms. Armijo addressed the tax credibility issue and explained how the defense said they paid their taxes, but the Jury would see there was no money to paid to the government on taxes.
Ms. Armijo reminded the Jury Terri said she never changed a 4473, the inspector testified she had taken some out of the pile and was told she couldn’t do that. She pointed out the defense didn’t cross examine on that issue and things like that go to credibility.
Ms. Armijo stated the government is not on trial. She told the Jury they were there because of Roman. Three people cooperated. Penny Torres cooperated. Roman cooperated and his wife cooperated. She reminded them Roman talked about New Deal, and even the government didn’t believe him, but the government investigated. His cooperation in this case was shown by video.
Ms. Armijo asked why this case. She explained the guns are lawful, but they must be purchased legally, and stated they shouldn’t wind up in the wrong hands. She described the (sale of) weapons as purposeful action, putting guns in the hands of criminals.
She stated the government knows why. It is not a political expression. She reminded the Jury Rick Reese said his motive was that guns defend people. But, she informed the Jury that this doesn’t give them the right to put guns in the wrong hands.
Ms. Armijo reminded the Jury they took an oath to decide this case on the facts of the law.
She concluded with reminding the Jury they are not supposed to have bias, but to evaluate what was before them and to hold the Reeses accountable for those facts and to see the violence in Mexico.
The government rested its case shortly after 4:00pm.
The Jury was told the evidence (guns and ammunition) would be available to them as needed, but left in the courtroom for safekeeping. They were instructed to select a foreperson, review the jury instructions and understand the legal basics. They were reminded they were bound by their oath to follow the law as read by the Judge. The Jury was told they never have to explain their decision to anyone, and that each of them must decide for themselves. There were to consult with the other jurors, and it was okay to change their minds.
Jason Bowles, Ryin Reese’s attorney, was the last of the defense attorneys to address the Jury argue for their acquittal.
Mr. Bowles explained the Jurors would be taking the indictment back to chambers to answer 28 questions on the verdict. He explained over the next 10-15 minutes why each should be answered not guilty, starting out with with law, and the decision making based on the facts.
Mr. Bowles pointed to Count 1 and reminded them of the Jury’s instructions on reasonable doubt. The government failed (to prove conspiracy) and the Judge instructed if you think there is doubt that you must find them not guilty. You have to be firmly convinced they are guilty as charged.
Regarding Counts 2 – 28 Mr. Bowles mentioned aiding and abetting and asked if it was reasonable. He explained the Reeses did not know about any of this. Mr. Bowles explained for the government to convict them of the smuggling counts they have to go thru the aiding and abetting clause. First someone else committed the crime. Second, the defendant has to intend to associate and participate. They must share common knowledge. General suspicion is not enough. Also being present at a crime is not sufficient. Mr. Bowles asked the Jury if they intended to associate? Mere presence is not enough. If you can’t find that standards present, you must find them not guilty.
Mr. Bowles asked the Jury how they would go about making these decisions, and told them they would have to go thru the process.
He told them to evaluate the believability of the witnesses and that they should consider if they impressed them as being honest. Mr. Bowles pointed out that Roman hasn’t been honest since age 17, and he told them to consider that Roman had a personal interest in the outcome of the case.
Mr. Bowles pointed out one of the things not immediately apparent. There was no language in the motion to get a reduced sentence in the Plea Agreement. (Possibly in the Penny Torres Plea Agreement.) Mr Bowles pointed another a section Prosecutor Jordan highlighted where a defendant falsely implicated a person on false information, at a minimum, the defendant is in violation of the Plea Agreement.
However, Mr. Bowles continued, that part isn’t in the Roman Plea Agreement. There is no language about being truthful. Under cross examination it was brought out that Roman wants the benefits of the Plea Agreement and it colors your perception.
Mr. Bowles reminded the Jury this case started with Roman, and Terri helped the government. If this family was involved, why would Terri tip off the government, he asked.
Jose Roman did get benefits. Every one of the defendants had a factual basis to tell the truth to the government. When they were shown the plea agreement, not a single one talked about the Reeses. Not in there when they were under oath. Why not?
Mr. Bowles told the Jury they couldn’t give any weight to Roman’s testimony. He infected this whole case. The government tried to keep him out because he’s so dirty.
Mr. Bowles stated the best thing the government has is the tapes, which they tried to script. Go into any business and see if you don’t hear outlandish statements. But that doesn’t prove criminal intent.
Mr. Bowles explained that the only two people who had knowledge were the two people in the conversation. He pointed out you don’t see the undercover agent. He pointed out you couldn’t see if the agent was shopping. The government agents actions are not filmed.
Mr. Bowles emphasized Roman didn’t say he couldn’t buy weapons, and this case is different. Mr. Bowles explained they did not intentionally participate.
Regarding the exports counts in 11-28, and aiding and abetting, Mr. Bowles explained the defendants sold these weapons but they didn’t need to get the export license or approval from the state. They had knowledge it was prohibited by law.
Mr. Bowles explained Ryin’s problem statement was that he said he didn’t need to know that. Of course they knew they are looked at by the government; inspections happen all the time.
This idea that he was an exporter, there is no proof. Ryin had no idea they were going there. If they had suspicions, there is no requirement to report. They can’t be convicted on a guess or speculation.
There is no proof they were violation the Arms Export Laws because there is no evidence any of them knew they needed to report. They didn’t know the guns were being smuggled, and they didn’t act willfully.
Regarding the Conspiracy Count, Mr. Bowles stated requires knowingly breaking the law, and the only evidence the government presented was the family in a huddle talking in hushed tones. Mr. Bowles told the Jury they can’t convict on this.
Mr. Bowles told the Jury another thing learned in this case is that people are products of what they grow up with. He described the agents’ day in and day out job as dealing with criminals, and soon all you start to see is everyone is a criminal, and that it colors you after a while.
Mr. Bowles used Agent Frye (sp?) as an example, who described the storage room as a “tunnel” and a “bunker”, which are techniques to shade things.
Mr. Bowles pointed out how Prosecutor Armijo interpreted the connotation of “you all” and “y’all”, and that hairsplitting is done to make words sound criminal.
Mr. Bowles reminded the Jury to remember Roman. He explained the government starts with their strongest witness first. Roman admitted to buying a gun, and that he was their first witness. He asked the Jury to remember that Roman continually laughed, and suggested it was all planned, it was all a big joke. Eventually you’re going to get people to say something that sounds like a crime.
Mr. Bowles reminded the Jury that Ryin wouldn’t sell a weapon unless it was for the buyer (the undercover agent).
Mr. Bowles told the Jury there were no double sets of books. Law enforcement was tipped off by them, and there is ample evidence they were trying to obey the law.
He reminded the Jury that if the Reeses could pass an inspection of that kind (the 2010 inspection) that there is nothing there.
Mr. Bowles concluded by stating the defense has done their best to show why the government has no case and urged them to find all of the Reeses not guilty on all counts.
Terri Reese’s defense attorney, Brad Hall, addressed the Jury next.
Mr. Hall informed the Jury that in any heavily regulated business in our country it is easy to make a mistake, whether it is an industry making a EPA violation, or the banking industry or a gun shop. New Deal didn’t even violate any regulations during the 2010 inspection. If they did, there would have been a conference. They should have had a meeting when five months later the government arrested a cartel member. The government didn’t request a conference and should have.
Mr. Hall reminded the Jury that Terri was suspicious and called to report her suspicions. Terri testified the ATF conferences were courteous, professional and the helpful. Mr. Hall described the relationship as a positive evolution of things.
However, Mr. Hall told the Jury, DHS HSI got involved with cartel member Roman and he took them for a ride. His wife was out of jail within two months. Penny Torres works in a hospital. The Reese family needs you to put the story straight.
Mr. Hall explained that political issues were talked about during routine sales, which is not a crime. You’d expect the government to come in with an agreement. Nothing was recorded. Nothing was acknowledged. This is a strange case, Mr. Hall declared.
Mr. Hall referred the Jury to page 166 (of the FF Guidelines book) and pointed out one page of the government’s evidence out of the book. He explained that the paragraph discussed straw purchases, and how if someone does do a straw purchase the buyer should be arrested, not the seller. He reiterated the buyers are supposed to be arrested. He pointed out the strangest part of the case is even Roman doesn’t say the Reese’s knew about this. He was instructed to talk, to create confusion. In this case we have Proof by a Reasonable Doubt.
Mr. Hall described Terri as running around, very busy, and somehow she’s supposed to know somehow when they left the store they were criminals.
He pointed out that the government showed video clips showing carrying merchandise out to the car was normal.
Mr. Hall pointed out removing labels from ammo was to protect the contact information of their distributors, and this had become a normal routine practice and had been for years.
Mr. Hall told them in this case they have criminals working off charges.
Mr. Hall asked them if they believed the story about the trace in the manner Penny Torres described. He reminded the Jury that Terry Reese showed the trace to any customer as a matter of routine. You may want to know if one of your guns is missing, and she said she did it as a courtesy. There was nothing illegal about that.
Mr. Hall told the Jury there were 15 meetings between the agents and Roman and Penny Torres told them that Terri Reese stated that she would deny it (showing her the trace report). Yet this was a standard business practice, where Terri informed business customers to check if a weapon was missing.
Mr. Hall pointed out the government cut a sweetheart deal, and all they managed to come in and remove labels from ammo. The government went in with a criminal who needed to reduce his sentence, instead of just talking to the Reeses.
Mr. Hall explained the government claimed Terri should have known that the cartel was behind “Jesus” (Roman), and that she should have known it was a fake (straw purchase at the time of purchase). However, he pointed out, it took the government five months to determine it was a fake (straw purchase). Mr. Hall called this crazy. Mr. Hall stated the government developed a theory to support this.
Mr. Hall described customers coming in week in and week out, and some shared a weapon and would pool money, and this is not illegal.
He reminded the Jury that the agents successfully used fake ID and fooled them. The Reeses didn’t know it was fake ID.
Mr. Hall explained every charge requires knowledge and intent. He explained a car salesman could sell someone a car, and then the buyer could go out and rob a bank. All the bank robber would have to do is blame the car dealer who supplied a speedy get-away car, therefore it is the car dealer’s fault. That would happen if they could get away with that. He provided another example when a pharmacy sells schedule two prescriptions. If a criminal came in with a fake ID, would the pharmacy be charged? No.
Mr. Hall told the Jury in this case there is a lot of talk and no proof.
Mr. Hall had no explanation for why the whole investigation and attack on this family occurred. The government seized more than 1 million dollars of their assets that took them a lifetime of work to accumulate. It took the government five days to haul it all away.
Mr. Hall asked them what was the motive to go all in? A cartel member developed a story with the agents. And ATF Project Gunwalker gets a boost with the arrest of a FFL gun store.
Mr. Hall pointed out it took the government 4-5 months after Terri reported her to arrest Penny Torres. He pointed out they didn’t even know the Reese’s names. Terri didn’t know anything about their arrest. There is a lot of typical banter in the New Deal. And the government took the bulk of their assets pending the outcome of this case.
Mr. Hall told the Jury now is the time to correct the mistake of the government with Roman. Instead of a regular conference they went all in within five days (of Roman’s arrest) because of “cartels” and the Reeses got fooled by Roman. Now is the time for a happy ending, he urged. Make it a happy ending for Terri for crossing every T and dotting every I. She has been waiting for 11 months for this day.
Mr. Hall summed up with a request for the Jury to acquit Terri and the whole family of all of the charges.
Remington was represented by Bernadette Sedillo, an attorney from Las Cruces, NM.
Ms. Sedillo reminded the Jury that at the beginning of the case she told them the evidence would show Remington followed the regulations he was required to while working. Ms. Sedillo informed the Jury all of the charges stem from waiting on customers at New Deal. All ammunition and weapons were legal to purchase and sell in the U.S.
Ms. Sedillo told the Jury they had to determine if Remington acting as a sales clerk constituted proof beyond a reasonable doubt.
Ms. Sedillo reminded them Remington was charged with 6 counts of smuggling and 1 count of conspiracy. She explained they now know what evidence was produced by the government and that there were no allegations of crimes committed by Remington before 2011 and emphasized this was important.
Ms. Sedillo explained Count 13 alleged that on August 21, 2010 that Remington was involved in smuggling firearms. However, Penny Torres testified she never dealt with Remington. She urged the Jury to knock that charge right off.
Ms. Sedillo stated even though all of Penny Torres’ transactions occurred prior to 2011, Remington became a target of the investigation because of Roman’s testimony. It was undisputed that Penny Torres was coached what to say. She was to say she purchased weapons for her uncle on a farm. Ms. Sedillo pointed out that all money was handled prior to her entering the store. She asked why should she have been coached and given money ahead of time. Ms. Sedillo explained the reason – it was an intent to deceive the seller, and that is what happened in this case.
As far as the other counts, Ms. Sedillo explained the Jury was going to hear other than April 20, 2011 that Remington was standing right there. The evidence is that he was standing next to someone. This is not the same thing as committing a criminal act.
Ms. Sedillo explained on April 20, 2011, the only transaction was he sold ammunition lawfully. She noted it was an important operation, only the government who had the ability to video tape, did not video tape the undercover operation. She stated without video there was no way to determine demeanor, body language, or gestures, which the government stated are indicators of a crime. You don’t know this about any of the four or even Roman. Ms. Sedillo pointed out there was only audio, and Agent Ramirez told you that you had to see the body language.
We have the words of Jose Roman, Mrs. Sedillo reminded them.
First, Ms. Sedillo explained, the Reeses didn’t know Roman well enough to know that they had been arrested.
Second, on all the videos, they never address Roman by name. It was always “dude”, or “bro”. They were not on a first name basis.
Third, (not clear) … Roman testified…. talked… to Mexico for weekend to visit family.
Fourth, Roman spoke broken English and he is a lawful permanent US resident.
Fifth, Remington knew he was from Mexico. Roman is throwing out at times comments about Mexico, but it is not a big red flag. He’s visiting his family, or oh, the people in Mexico loves these. Or this is a bad ass gun. Those are not red flags.
Ms. Sedillo reminded the Jury Remington is a young man who grew up in a gun store and from a young age, 13-14, worked there.
Ms. Sedilllo explained that there is a lot of macho testosterone backed conversations. There was laughing and giggling between Remington and Roman. Roman made a lot of ridiculous statement. According to the government it is okay for Roman to make ridiculous statements, but if Remington makes a ridiculous statement, the government’s position is it isn’t ridiculous.
Ms. Sedillo pointed out that one of the comments made by Remington came from ballistics reports.
Ms. Sedillo explained that Remington talked about going into executive protection, but makes a comment about how he doesn’t want to (illegible notes), so let’s send Ryin. Ms. Sedillo explained these are ridiculous comments.
Ms. Sedillo told the Jurors that the government wants them to believe that Remington knew the ammunition was going to Mexico and helped conceal the ammunition in a bag. Yet, Ramirez and Pacheco gave Roman specific instructions to place the ammunition into a bag. Remington was on audio, and they talked about paying first. Remington had already sold them the ammunition. He had no knowledge before the bag that ammunition was going to Mexico. Only after the ammunition was placed in the bag does this come out. Remington is joking that it is a good idea to sell ammo this way. And Remington states this is the first time he’s been asked to do this. Remington comments that he is getting good at this and that it is like cracking eggs. It isn’t until the ammunition is in the bag that Roman told Remington not to worry, it is going to Mexico.
Ms. Sedillo explained that Remington was not talking seriously or literally. Not one thought about it.
Ms. Sedillo told the Jury that Remington denies he sold weapons without a license to export and that he has tried to follow the regulations.
Ms. Sedillo reminded the Jury on April 20, 2011 Roman asked about AKs. Then during the next undercover sting operation on May 19, 2011, Roman asked if they got the underfold (a type of folding stock). Remington told him they couldn’t find those. Roman reminded he was going to (not heard), and Remington answered him that he knew. Remington never even ordered the weapon for Roman.
Ms. Sedillo told the Jury to ask themselves if it was reasonable if they would make comments in jest in response to Roman’s banter. If his comments were in jest, there there is reasonable doubt about the evidence and guilt.
Ms. Sedillo told the Jury there was absolutely no evidence that Remington knowingly helped them illegally obtain weapons. Remington received no benefit, which is different than Penny Torres who got paid to commit crimes.
Ms. Sedillo told the Jury that Jose Roman is a criminal, (an accomplished?) liar, and a thief.
Ms. Sedillo reminded the Jury that even Agent Pacheco testified he didn’t trust Roman. When Pacheco was asked about the house, if he even has a house… Ms. Sedillo paused and stated that we don’t know if Roman has a house after all the meetings and debriefings, Agent Pacheco could not even say if he knew if Roman has a house. If Roman can’t be trusted, then the evidence from him can’t be trusted.
Wording or interactions. On July 29, 2011, the last undercover sting, Roman had a short conversation with Remington. Roman told Remington that he didn’t know how Remington would talk to his father about this. Ms. Sedillo explained this was very telling, and asked the Jury why Roman would say he didn’t know how Remington would talk to his father about this, when supposedly all the Reeses were on board all of the time. Ms. Sedillo explained to the Jury that it was because the Reeses were not on board. Ms. Sedillo hammered in the point that Roman was treated like any other customer at New Deal.
As far as conspiracy, Ms. Sedillo reminded the Jury that Mr. Gorence already covered these charges and whether or not they willingly participated. She added the government has to prove this. First the defendant has to have agreed with at least one other persons to violate the law. She reminded them the Judge read this to them. And she reminded them single defendants can’t conspire with a government agent. She pointed out that the Jury could not say that Remington conspired with Roman, or any of the government agents.
As far as conspircy, Ms. Sedillo pointed out there is no evidence to commit a conspiracy. The government had failed on that element.
Ms. Sedillo pointed out it was the same on the last charge, explaining there was no evidence, no interdependence to show they intended to act for a shared mutual benefit. Remington hasn’t conspired and there was no shared benefit.
In closing, Ms. Sedillo reminded the Jury it has been a long trial. All the lawyers will be back in court again in another trial. But, for the Reese, this is the most important day of their lives.
Ms. Sedillo urged the Jury to find them not guilty.
Next, Mr. Gorence pointed out that unlike others, undercover agent Danny Ramirez hadn’t been sitting back in the courtroom since he testified. Mr. Gorence reminded the Jury that Ramirez went in to the store on April 20, 2011 and testified that he tried to purchase a fully automatic rifle, which carries a very serious penalty, but Remington refused. Remington told him Ramirez could do it with a kit but Remington declined the illegal act.
Mr. Gorence suggested that if you are a criminal you are all in.
Next Ramirez wanted to purchase a weapon, but his license was expired, but Remington refused to sell to him without valid paperwork. Remington asked him if the only reason he wanted the ammunition was for the gun, and the agent agreed. Remington refused to sell the weapon. Mr. Gorence pointed out that Remington was given a fake ID for a lawful purchase.
Mr. Gorence talked about the next undercover sting on May 19th and told the Jury that this time the government played snippets. He asked the Jury to pay heed to the trained agent Ramirez deal with Ryin negotiation for a firearm. Mr. Gorence reminded the Jury that Ryin didn’t phone up the paperwork, and that Ryin was talking to Ramirez about the weapons, and even asked him if the weapon was for Ramirez, and that if not, Ryin wouldn’t sell him the weapon. Mr. Gorence reminded the Jury that when Ramirez was asked if he thought Ryin was engaged in criminal activity, Agent Ramirez answered no.
Agent Ramirez even went back to the Assistant US Attorney and advised there was nothing going on at New Deal.
Mr. Gorence asked the Jury why he was taken off the case and two women brought in. Mr. Gorence reminded the Jury there was no criminal conduct with Agent Ramirez during the window of opportunity.
Mr. Gorence reminded the Jury that they need to evaluate what defendants said. Mr. Gorence pointed out from their whole lives, and the way they lived, the Jury could get a sense of Rick as a self-made man, not getting any handouts, loyal to his family and that these are American traits.
In Rick’s business practice, he had become the third largest in the State, and was targeted by this Department of Justice. They had no idea. Rick testified he would never put his family in jeopardy. Every sale was just like all the other sales. It doesn’t make sense.
Mr. Gorence urged the Jury to read Jury Instruction #7 which addressed good character and reasonable doubt. He pointed out there is no evidence they had any actual knowledge. The government cherry picked the tapes.
Mr. Gorence moved on to Counts 11-28 and stated these were much easier to resolve and pointed to a transcript from the trial. Schwindler (sp?) and Ramirez already testified the bottom line is the seller doesn’t have to get an export license – it is the exporter’s responsibility. Mr. Gorence pointed out that they never apply because they never knew if the products were going there. But, the government didn’t ask Roman if Roman got an export license. The government didn’t get evidence and didn’t bother to go get that. Mr. Gorence stated it was not the responsibility of the Reese’s; they didn’t take part.
Mr. Gorence stated they were treated like all other customers who purchased; they carried out the purchases to the cars.
Mr. Gorence pointed out that putting ammunition in bags isn’t illegal, but the government alleges that it somehow supposed to impart knowledge that the ammunition would be exported to Mexico. Yet, there was no conduct to get the weapons to Mexico. Only Roman broke the law.
Mr. Gorence explained to the Jury that the Money Laundering Counts had been dropped.
As far as Count 1, the conspiracy charge against Rick Reese, Mr. Gorence pointed out that the government was grasping for something, and that even S/A Huerta (sp?) wouldn’t even call it a huddle.
Mr. Gorence concluded that there is no case. The prosecutor wants a conviction on that, but that is a joke.
Mr. Gorence asked the Jury to find his client not guilty of Conspiracy.
On the issue of the tax returns, Mr. Gorence reminded them of the lengthy discussion with Agent Frye (sp?), the guy with the psychology degree, who is somehow now a financial expert, but isn’t a CPA. Mr. Gorence claimed that Agent Frye always wanted to slant things, and that he wasn’t impartial.
Mr. Gorence stated there were no incriminating documents, and that every one of the receipts was kept. But Agent Frye testified that the 4473 was a false document. He claimed it was a false document because Penny Torres signed as the buyer; however, that wasn’t known until after the fact and there was no evidence the Reeses knew.
Mr. Gorence described Agent Frye as constantly partisan, and asked the Jury who Rick Reese offended in the government to draw this kind of response. Mr. Gorence described this as a political agenda and that is why all this happened.
Mr. Gorence pointed out the government would have the Jury believe that he could go to his accountant with a day planner, not the actual books, to prepare tax returns and that would be good enough for the IRS. He pointed out that the government never even went to talk to the New Deal accountant or issued a subpoena. The government now comes in and suggests Rick lied. Mr. Gorence asked the Jury how could the government could suggest that a day planner (represents taxable income) when you know you need to subtract all the business expenses.
Regarding Rick’s comment involving “Federales”, Mr. Gorence termed it a political expression, and that Rick believes armed people provide a safer environment. Mr. Gorence stated some evil people use guns. The question is, his client (Rick), believes armed persons in that theater would be good.
Mr. Gorence stated it was factually misleading. He asked the Jury to look at the conduct and determine if someone truly had knowledge.
Mr. Gorence concluded that he had tried many cases, and he has done this for a while. He stated the Jury usually gets it. His colleagues were going to address legal requirements, and the Jury will see that the government has utterly failed to prove beyond a reasonable doubt.
Mr. Gorence urged them to find the defendants not guilty from start to finish.
Mr. Gorence stated actions display knowledge. He gave some examples.
A banker makes a collateralized loan. The loan goes bad. Does the government arrest the banker? It is FDIC insured. Is a mistake a reason? Mr. Gorence told the Jury they could infer knowledge if on the loan, the banker knew something was misrepresented and the loan would be non-collectible. Then when the loan went bad, it would be criminal and there would be a basis to prosecute.
Another example was an employer who hired someone in the southwest. Someone presents a valid green card and driver’s license. The employer can’t tell if it is valid because there is no national database. The employer gives the person a job, but later is told the papers are bogus, even though the employer can’t tell. Does the employer go to jail? No. The employer has to know the papers are bogus.
Mr. Gorence returned to the federal agents in the Reese case. Mr. Gorence reminded them of Roman’s border crossings and that even by the end of the trial, the list of these crossings weren’t complete. Mr. Gorence told them Agent Pacheco didn’t query all of the crossings, just the vehicle tags, and asked, “Why?” Why, for something totally relevant to this case, did Pacheco say he saw something on the screen, but did not print it out?
Mr. Gorence pointed out that not even with leading questions did Pacheco answer why there was massive paperwork and thousands of agents in this case, but why weren’t there any border crossings. Mr. Gorence asked if it was either gross negligence or a mistake.
Mr. Gorence explained to the Jury the key issue was did Rick and Terri, Ryin and Remington have actual knowledge of straw purchasers. Mr. Gorence reminded them that in 2010, there were four straw purchases. These only involved Roman and Penny and they couldn’t keep their stories straight. They used their collective memory. Penny Torres she always came in with Roman and he called in orders ahead of time.
Mr. Gorence noted the phone records in 2010, and that they clearly went to voice mail, and pointed out that is not evidence of knowledge.
Mr. Gorence reminded the Jury about Inspector Smith, and that the agents did not find suspicious evidence and if they didn’t then how were the Reese’s supposed to find something suspicious. The government took no action.
Mr. Gorence explained to the Jury that they heard snippets and cherry picking from the audio and video from the undercover operation and there was a massive effort to set up the undercover operations.
Mr. Gorence asked the Jury to think about the type of proof needed with the example of the banker and employees, and stated that Pacheco presented no evidence during trial that the Reese’s set up any kind of conduct with Roman. There was no knowledge in their heads.
Mr. Gorence pointed out that in 2011, Roman was never held out as being a prohibited person. He never told them he couldn’t purchase weapons. It would have been different if he had been convicted and couldn’t buy guns, but that is not on the tapes. Mr. Gorence stated the purpose of a straw purchase was to help a person who can’t purchase guns or get guns. The purpose of the statutes is to keep guns out of the hands of persons who aren’t permitted to have guns; however, Roman was permitted to have guns.
Mr. Gorence provided an example of a different kind of buyer, “I am a felon. I can’t purchase, and I will make it worthwhile and pay you $2500 not $500. I don’t want to come in during store hours because part time law enforcement works there. I want to come in after hours at night and make sure no one is there. We’ll meet and I can’t buy so we’ll make up a name. Use some fictitious name. I can’t even take them out. I’m going to deliver to Columbus.” If there was that kind of test, then there would have been knowledge, illegal knowledge, Mr. Gorence explained. But he added there was nothing like this, and the government cherry picked the conversation.
The Reeses were fooled by a straw purchaser.
Mr. Gorence pointed out that it doesn’t matter what amount of money is involved in this case, and pointed out that all these agents (sitting in the courtroom) are here watching this case because they have a vested interest in the outcome. Mr. Gorence stated they used a heavy handed search warrant, a swat team, the Albuquerque ATF and other agencies. He pointed out the government tactics were biased to what is going on.
He reminded the Jury that every time the government took Roman out of jail a minimum of 50 agents were needed, including air coverage and State Police. Mr. Gorence stated the government wants them to believe that Roman is some kind of Hannibal Lector who is going to escape, and that is not credible. Mr. Gorence alleged the government knew the real risk was the Cartel would try to pop him (assassinate Roman). Mr. Gorence continued by stating the government took this risk to target a law abiding family. Mr. Gorence described this as “Dumb and Deadly”.
According to Mr. Gorence, the icing on the cake was during jury selection and the government brought in a consultant from California. Mr. Gorence pointed out the all of the Reese family money has been tied up (seized) by the government and pointed out the defense does not have the money to stack the deck. He also pointed out he thought there was a fair cross section of jurors.
However, he asked them, what was the reason and pointed out the Reeses are not the devil! Mr. Gorence pointed out that Roman made a deal with the devil, but he didn’t have any idea on the Reeses.
Mr. Gorence asked if it was Rick’s politics. Was it because he is a firm believer in the 2nd Amendment? Or is it this government just doesn’t like guns on the border. Mr. Gorence urged the Jury to evaluate this case in context of how the case started.
Mr. Gorence pointed out that there are things that are absolutely true.
Mr. Gorence stated that there is no doubt Penny Torres is a criminal and she purchased weapons four times on behalf of cartel member Roman. They admitted to this and it did occur at New Deal. It happened. But, he noted, that doesn’t establish criminal liability on the part of the Reeses. Mr. Gorence reminded the Jury that Judge Brack has instructed them to read instruction #19 – adding that it is really the defendants knowingly made a false statement. He clarified that when Penny Torres signed as the true purchaser, the FFL also signs the form, and that it is actual knowledge, not that they should have known or could have known.
With this, Mr. Gorence told the Jury that they must find the Reeses not guilty of Counts 2 – 10.
Mr. Gorence next addressed the elements of knowledge. He explained a key component underlying the whole case was the circumstance of (not sure what was said). Mr. Gorence explained it was not for mistakes, but for doing something intentionally and willfully. Mr. Gorence explained further that knowledge requires that.
Mr. Gorence recalled that Oliver Wendell Holmes commented on intent, and that to prove intent he stated, “Even a dog knows the difference between being kicked and being stumbled over”. Mr. Gorence stated that this concept is seen all over case law. He asked if any one of the Reese family have actual knowledge.
(It sounded like Mr. Gorence stated next that it is rare proof that someone comes in and says they are doing something illegal.)
Mr. Gorence explained to the Jury a Plea Agreement is a contract. The government got what they bought and paid for, and at long last they can confront (not heard, possibly Roman).
By January 21, 2011, that was when the government got him (Roman). Mr. Gorence referenced the Roman Plea Agreement dated January 26, 2011, and explained to the Jury and emphasized that within 5 days the government drafted a Proffer to make a deal with Roman to become a representative of the U.S. Mr. Gorence continued explaining that the government cut him all the slack in the world, and urged the Jury to look at the deal.
Mr. Gorence added Roman is described as a cartel member, but not the nature of the deal. Agent Pacheco described La Linea as one of three of the largest cartels in Mexico. Haggerty was even flown in from Washington and described this cartel as a transnational criminal organization – not just in Mexico but all over – not just involved in drug trafficking, but kidnapping and on and on, and responsible for thousands of murders.
Mr. Gorence told the Jury it is almost unbelievable the government wants (not heard). Mr. Gorence continued reminding the Jury that from Agent Pacheco they were ready to set him up, even though he is a liar, for his alleged cooperation. Roman thinks he’s going to Mexico and facing certain death. Haggerty explained the organization of transnational gangs, and called it a structured business.
Mr. Gorence asked the Jury if Roman ever said one thing about money going to Mexico to the agents, or anything about the stash houses. Nope. He asked if Roman talked about all the other cartel members. Nope. Mr. Gorence stated the only thing Roman wanted to talk about was the Reeses.
Mr. Gorence reminded the Jury that drugs exported across the border into the US are valuable. Marijuana is $350 a pound close to the border, but north of the checkpoint the value increases to $2000 – $5000 a pound just for getting it past law enforcement checkpoints around the border.
Mr. Gorence reminded them that Roman takes the drugs from here and the government turns a complete blind eye, and instead, focuses their attention on an American family who has never been in trouble. Rick has paid taxes in this country for 35 years, and raised his sons his way, yet was targeted based on a cartel member.
Mr. Gorence stated sometimes you hear judges condone this stating we have to make a deal with the devil because we need to catch a bigger devil, and sometimes that is necessary. Mr. Gorence gave an example of John Gotti, who was a star witness, and in that case the government had to cut a deal with Gotti because they needed to get someone responsible for the deaths of hundreds.
Mr. Gorence pointed out that in this case the government took a cartel member and targeted a family with no criminal history, and once they flipped Roman, they cut him a sweetheart agreement. Mr. Gorence reminded the Jury that they need to understand that Roman didn’t take any responsibility for smuggling 4000# of marijuana, no gun smuggling charges, no anything in exchange for the Plea Agreement.
Instead the government goes all in on the Reese family.
Rick Reese’s attorney, Robert Gorence, formerly a veteran prosecutor in NM, addressed the Jury next.
He thanked the Jury for their time during the past three weeks of trial and expressed great respect for them. He stated his respect for them started in Voir Dire, but the respect goes back much further, all the way back to the “Magna Carta”, which transfers the power from the State to the people. The power to convict lies with the Jury, not the State. He explained the power to convict doesn’t lay with HSI, the prosecutor, or others, and that this power doesn’t exist in other countries. Mr. Gorence told the Jurors a three week trial is different from short trials. The process is very adversarial and a process of finding truth.
He explained the Constitution says the best way is not to listen to just one side, but to bring forth all of the facts. The Constitution is a very powerful tool and starts with the 6th Amendment – the Right to Confront Accusers in order to get to the bottom of things. Due process didn’t happen in this case.
Mr. Gorence urged them to go thru the evidence and asked what kind of trial it would be if there was only one side. He pointed out that stories changed, there were outright lies, and that nobody could see the Plea Agreement, even though there are expectations of great benefit. He pointed out even the agents financially benefit.
Mr. Gorence reminded them of the testimony of Gonzalez and Schwindler (sp?) from the State Department, and that without that testimony the Jury would not have heard them testify that weapons going to Mexico just need a license. He reminded them of who had the duty to obtain the license – the exporter or the seller, and that it is the people who take them out of the country.
Mr. Gorence reminded them that Agent Pacheco stated under direct that in January of 2009, he knew about Roman and had him under surveillance. Pacheco had the power to confront him. They never even saw him cross the border, and at best, the city limits.
Mr. Gorence stated it was a privilege to represent Rick, and that he has worked hard to bring all of the relevant facts to the Jury so they could make their decision. He urged them to go thru all of the evidence and highlight how the case started, and to direct their prism to certain areas, including biased government testimony.
Mr. Gorence told the Jury the time line is straight forward. In January 2009, Roman was stopped at the border for trafficking drugs and illegals. Mr. Gorence stated it is inexplicable why he wasn’t prosecuted, just like he wasn’t prosecuted before.
He reminded the Jury that the government didn’t even start their investigation until 2010. Penny Torres went into New Deal four times to buy weapons between March 2010 and August 2010, and that isn’t disputed. Terri filled out the paperwork, including the multiple handgun sales report and then called law enforcement (Batts) to pick up the second copy which ultimate gets to ATF. This case started in August 2010.
Mr. Gorence reminded the Jury in December 2010, defendant Torres realized the game was up when the government told her they know she was engaged in criminal activity. She admitted she was a straw purchaser and saved herself with a sweetheart deal and never spent a day in jail.