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.

Reese Case: Date Set for the Appeal

Earlier this year, the federal government appealed Judge Brack’s decision granting the Rick, Terri and Ryin Reese a new trial.  The 10th Circuit Court of Appeals in Denver, Colorado has published the date for oral arguments.

DATE:  Wednesday, November 20, 2013

COURTROOM:  Courtroom II

TIME:  8:30 a.m.

LOCATION:  The Byron White U.S. Courthouse 1823 Stout Street Denver, CO 80257 Map This Location

This proceeding is OPEN TO THE PUBLIC.  The public is encouraged to attend.  If you can not attend, but know someone in Denver who may be interested, please notify them of the time, date and location.

The Court of Appeals is located in downtown Denver.  For those persons interested in traveling and attending and need a hotel room, downtown Denver is not located near the Tech Center or the Denver International Airport.

 

Background:

As previously detailed on this website, Rick and Terri Reese, and their two sons, Ryin and Remington, were arrested in August 2011 on multiple gun related charges, including conspiracy, smuggling weapons to the Mexican cartel, money laundering, and Form 4473 violations related to alleged straw purchasers.  Remington was acquitted of all charges.  Rick and Terri Reese were convicted of one count each, and Ryin was convicted of two counts of Form 4473 violations.  The essence of the violation was that the Reeses should have known that undercover government agents (who were using phony identification that passed the required FBI background checks) were posing as straw purchasers for a career criminal and Mexican cartel member.  That Mexican cartel member, Jose Roman, was seeking to have charges against him dropped, reduced sentences for the charges that were not dropped, and some things not charged at all (such as possession of a machine gun).  His wife was also seeking to have criminal charges against her dropped.

Several months after the conviction, and before sentencing, the government revealed information that it had used a law enforcement officer, Deputy Sheriff Alan Batts, to testify against the Reeses, when he himself has or had been under investigation for nearly 10 years on suspicion of smuggling illegal aliens, ripping off drug dealers and discrepancies related to missing evidence.  The government withheld this evidence about Deputy Batts during trial and Jury deliberations.  Deputy Batts has not been charged with any criminal activity as far as can be determined, and therefore remains innocent until proven guilty, if he is charged in the future.

Deputy Batts was the law enforcement officer that Terri Reese contacted when she became suspicious of a buyer that she learned after her arrest was a straw purchaser.  Reese defense attorneys alleged that Batts may have known he had been under investigation and may have tempered his testimony.

After an evidentiary hearing in January 2013 concerning issues related to Deputy Sheriff Batts, where the defense team sought a new trial, Judge Robert C. Brack granted the Reeses a new trial http://www.lunatpp.org/breaking-news-judge-grants-a-new-trial/ .  Judge Brack granted that trial after hearing testimony of a supervising Assistant US Attorney who knew about the derogatory information about Batts, two FBI agents who were involved in investigating Batts, and testimony from Batts himself.

Near the end of February, the attorneys filed a motion to dismiss the charges against the Reeses.  Approximately one month later, at the eleventh hour deadline, the government filed an appeal against Judge Brack’s ruling.  http://www.lunatpp.org/reese-case-prosecution-appeals-judge-bracks-decision/

The cases have been on hold since that time.

At issue in the appeal is not whether or not the Reeses are guilty.  What is at issue is whether Judge Brack made a correct legal ruling based on case law related to granting a new trial based on all of the evidence surrounding the Batts issue.

Attorney Herbert W. Titus (Virginia) is the attorney of record in the appeals case and will argue on behalf of the Reeses to the Appellate Court.

Michael Connelly,  Constitutional Lawyer and Executive Director of the United States Justice Foundation has led the way for raising legal defense funds for the appellate case only.  The Reeses are grateful to all persons who have contributed as their own resources were exhausted.

Laura Fashing is the Assistant US Attorney that prepared the government’s opening brief and may argue their side of the case on behalf of the government.

If the appellate court rules in favor of the government, the Reeses will return to Judge Brack’s courtroom for sentencing on the 4 counts of conviction.  If the appellate court rules against the government, the Reeses will face a new trial on those four counts if the government decides to continue with the case.  The appellate court ruling in this case will not be known for a number of months.

Also pending is the government civil forfeiture case against the Reeses, where the government seeks to have the Reeses forfeit the bulk of their valuable assets, the bulk of which were acquired over their lifetime.  Most of the assets the government seeks have already been seized and are being held by the government pending the outcome of the civil forfeiture case.

The Reeses face difficult times ahead, no matter what the outcome of this appellate case is.

 

A message from the Reeses:

“Please keep us in your prayers as we need the help of our Lord as usual at this time.

Thanks for the help and God Bless. 

Rick, Ter, Ry and Rem”

 

 

 

 

 

 

 

REESE CASE: Who knew?

The government claimed that the Reeses “knew” what was going on.

The government claimed the Reeses “knew”:

  • that Jose Roman was a Mexican Cartel member smuggling guns,
  • that Penny Torres was one of Roman’s straw purchasers,
  • that a weapon was recovered in Mexico, even though the location was not indicated on the weapons trace request,
  • that the undercover agents during an elaborate sting operation were posing as straw purchasers for Roman, even though their phoney identification passed FBI muster,
  • that somehow the Reeses were supposed to know they needed to get an export license to export weapons, even though they were not exporting weapons, and even the government’s own witnesses stated they didn’t need export liceses, and
  • that somehow the Reeses should have known making the day’s business sales deposits into the bank was evidence of money laundering.

The Reeses were supposed to have made some kind of intuitive leap on information that was not told to them.  They were supposed to be mind-readers.

 

Who didn’t know?

 

The government claims they didn’t know about Deputy Alan Batts and his potential Giglio problems.

The government claims they didn’t know:

  • that Batts had a Giglio problem, even though he was under investigation for nearly 10 years in the same Las Cruces US Attorneys office,
  • that Batts had a Giglio problem, even though the FBI expressed their concerns several times,
  • that Batts had a Giglio problem, even though an AUSA supervisor Williams mentioned it his superiors several times; before indictment, before and during trial, the same supervisors that oversaw the Reese case.

Somehow we are supposed to believe that the government wasn’t able to make the same kind of intuitive leap to knowing Batts had a problem – even though they were directly told multiple times.

 

Ironic isn’t it?

Who knew indeed.

Sure sounds like a double standard.

 

REESE CASE: Appellee’s Opening Brief – Part 4

 

WAS BATTS A MINOR WITNESS?

This is the question we all want answered.  How did a government witness against the Reeses, one who testified for just a short timesuddenly become central to their conviction?

The government has claimed that Deputy Alan Batts was just a minor witness and not central to influencing the jury’s decision towards conviction.

The government asked the appeals court to review Judge Brack’s decision granting a new trial to determine if Judge Brack made a legal error.  If Judge Brack made a legal error in granting a new trial, the appeals court could reverse Judge Brack’s decision.  Should the appeals court decide that Judge Brack made a legal error, and reverse his decision, the Reeses will proceed to sentencing.

After explaining the Reese side of the argument on why they believe the government withheld favorable and material evidence, the appellee’s brief explained the standard of review in this case.

The appellees’ brief explained that the “decision to grant (or deny) a motion for a new trial lies within the sound discretion of the district court” and that the appeals court can only overturn that decision if the judge “abused its discretion” by making an “arbitrary, capricious, whimsical, or manifestly unreasonable” judgment.  The standard involves a three part Brady test.  Namely, was evidence suppressed, was it favorable to the defendant, and was it material?

The appellees pointed out that when reviewing what is materially important for Brady purposes, the Supreme Court admonishes the appeals court “not to look for ‘ample, independent evidence of guilt’ or ‘evidence sufficient to support the [jury’s] findings,’” but instead to determine “whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’”

Much of the government’s brief  was dedicated towards looking for ample evidence of guilt and to support the jury’s guilty verdicts.

The appellees claimed the Government is “factually mistaken” and has erroneously applied the standard of review governing defendants’ Giglio claim.  They further claim that Judge Brack’s decision was within his sound discretion, was supported fully by the facts in the record and in compliance with the appropriate legal standards.

The appellee’s brief explained in great detail why the Reese defense team believes Deputy Batts was a major witness during the Reese trial.   The Reese defense team believes Deputy Batts played a key role in establishing the integrity of the investigation and prosecution of the Reese family.  Furthermore, they believe Batts was a key witness utilized to prove beyond a reasonable doubt that Rick, Terri & Ryin knew the undercover firearms sales were straw purchases.  The appellees’ attorneys also point out:

“As to the four counts of conviction, the Government points to nothing in the record to support its contention that the guilty verdicts can be attributed to the audio and video tapes alone, as the Government adamantly insists.”

The appellees’ brief pointed to repeated references made to Deputy Batts in the government’s closing arguments, including allegations that Terri knew the weapon purchased by Penny Torres had been recovered in Mexico because “she knew Roman took it there”, and that Terri’s statements to Batts were “a cover-up, not a genuine concern for compliance with ATF regulations.”

The appellees’ brief also claimed at least one of the governments arguments was absurd.

In a valiant, but quixotic effort to trivialize Batts’ testimony, the Government has attempted a mathematical reduction ad absurdum, contending that Batt’s testimony ‘consumed only 21 pages… of a trial transcript that spanned more than 2300 pages… the ninth of sixteen witnesses in the government’s case-in-chief… his testimony… among the shortest.’”

Reese attorneys point out that the importance of testimony has nothing to do with how many pages of transcripts exist.  The appellees’ pointed out some statistics of their own:

Deputy Batts’ testimony consumed almost 1% of the trial transcript, but references to his testimony in closing arguments appeared on 5 of 38 pages – 13% of the pages.

The brief explains that “Deputy Batts’ testimony directly related to the knowledge element of the straw purchase counts of conviction.”

Note:  Apparently, the key issue in the counts the Reeses were convicted of was the knowledge element.  Did the Reeses actually know that the undercover agents were posing as straw purchasers for Mexican cartel member Jose Roman?  The Reeses have maintained all along that they did not know.

The brief pointed out that the government claims Terri’s statement to Batts was relevant only to smuggling counts and had nothing to do with the counts of conviction (making false statements on a 4473 form).  However, the appellee’s point out that each count of conviction for filing a false statement has a parallel count charging “knowingly facilitating the smuggling of the firearm(s)…”  (Emphasis added.)

The point the appellees’ are making is that during trial the government claimed that the Reeses knew that Roman had been smuggling weapons by using straw purchaser Penny Torres.  Therefore the Reeses were charged with the smuggling charges, and the filing false statements related to the weapons being purchased by a straw purchaser.  However, now the government claims Batts’ statement only related to the smuggling charges, but not the related straw purchase charges that they were convicted of.

To futher support their charges, the government had argued in trial that the objectives of conspiracy were to sell guns and ammunition knowing they would be illegally smuggled to MX, and to sell those guns via straw purchasers.  The government was able to allege that Terri had knowledge because Allen Batts testified that Terri knew the guns had been recovered in Mexico.

The government’s brief claimed that Batts’ testimony only indicated that Terri had knowledge, but this did not implicate Rick or Ryin having knowledge.

However, during closing arguments the government pointed out that this is a family operated store, they lived and worked together and knew what was going on even when they were not present in the store.  The appellees’ brief pointed out that it would therefore have been reasonable for a jury to infer that Terri would have discussed the weapon being recovered in MX with her husband Rick, and son Ryin, if she had also told that to Batts.

(Note:  Not only would it have been reasonable for the jury to infer that the family had discussed the trace report of the weapon being recovered in Mexico, there was trial testimony that indicated they had in fact discussed it.  As previously reported, Rick testified during trial that Terri and he had it and Terri indicated she was going to call law enforcement.  http://www.lunatpp.org/reese-trial-rick-reese-takes-the-stand-part-3/)

The appellees’ claim Batts had motive to temper his testimony because he knew he was being investigated by the FBI.  The government, however, claimed he didn’t know based on one thing -  “Deputy Batts denied any knowledge of the investigation.”  The appellees claim the government ignored mentioning the other facts that led Judge Brack to conclude otherwise.  These other facts included Deputy Batts call to the FBI to implicate another officer in wrongdoing, while claiming he had nothing to do with the wrongdoing.

The appellees pointed out that impeaching Batts would have helped the defense and explained:

“[T]he Reeses only had one weapon to counter Batts’ false claim – Terri’s denial.  The fact that Batts had also said nice things about the Reeses and their business practices actually hurt the Reeses, rather than helped, because his overall testimony gave the jury the impression that Batts had no animus towards them…… [a] jury would not believe that a government witness who spoke so highly of the defendants was slanting his testimony to curry favor with the government… By withholding the FBI report, the Government foreclosed any opportunity for the jury to make that decision themselves.  And it ill behooves the Government to substitute its opinion for that of the jury in this case.”

As a result, the appellees asserted the impeachment information suppressed was material, it was favorable to the defense, and that government misconduct was relevant.  The appellees’ explained the government’s brief attempted to exclude the facts that led to Judge Brack decision that the government suppressed Giglio material.

“[T]he government claimed that the suppression of evidence “is not at issue in this appeal.”

The government claimed the suppression of the evidence didn’t rise to level of the prosecutor knowingly using perjured testimony, even though Judge Brack did find there was no doubt the prosecution intentionally or negligently suppressed the evidence.

The appellee’s brief pointed out that the Judge Brack had found the government had known about the Batts information for nearly ten years before trial, and that the Judge found the jury didn’t believe the government had a strong case, even though the government told the appeals court they had presented strong evidence.  Additionally, the government didn’t point out that the defendants had been found not guilty of a number of counts involving the undercover stings.

Central to the appellees’ breif is the explanation of why Deputy Batts actually was a key government witness.

Batts’ testimony was essential to corroborate the testimony of government informant Jose Roman.  Roman had testified that Terri told Roman in August 2010 that one of the guns straw purchaser Penny Torres purchased had been found in Mexico.

“Terri’s alleged statement was elicited from Batts because he could be presented to the jury as an experienced law enforcement officer whose only part in the Reese investigation was to ‘contact [] HSI because [he] felt that the weapons were going back across the border.  Without Batts’ testminony corroborating Terri’s alleged statement in August 2010, the Government was stuck with Roman, a member of the Mexican cartel…”

Roman and his wife were parties to a plea agreement and they were both expecting to receive a number of  benefits, including reduced sentences, in exchange for testifying against the Reeses.

“Only by suppressing the FBI Report with its damning information about Batts’ corrupt activity could the Government have accomplished this feat…  [the] suppressed evidence was clearly material.”

Batts’ testimony was essential to prove the Reeses had criminal knowledge beyond a reasonable doubt.

According to the government “[m]ost of the defendant’s incriminating statement were made to Roman” … [thus], the Government recites in great detail the evidence captured on tape.”

However, according to the appellees there was no evidence on tape that indicated the Reeses knew the purchaser was someone other than the person identified on the 4473 forms.  “[K] nowledge was entirely circumstantial, as demonstrated by the prosecution’s closing arguments in trial.”

During closing arguments the government repeatedly told the jury to look at Batts’ testimony to prove that the Reeses had knowledge that the weapons were going to Mexico, had knowledge that Roman was a cartel member, and to look at Batts’ testimony to see that the Reeses knew the full picture.  However the Reese attorneys point out that on appeal, the government took the opposite position and claimed that the impeachment evidence withheld on Deputy Batts “could not have undermined the government’s entire case.”

Mr. Titus, concluded:  “The government cannot have it both ways.”

 

REESE CASE: Appellee’s Opening Brief – Part 3

 

SUMMARY OF THE APPELLEE’S MAIN POINTS

* Four months after conviction the government asked for an in camera review of an FBI report concerning government witness Batts.

* The government wanted a ruling that they had not violated the Reeses’ constitutional rights.

* The government didn’t want a hearing on the matter.

* The government alleged Batts’ testimony was limited.

* The government claimed the AUSAs were unaware of anything that would affect Batts’ credibility.

* The government claimed the information on Batts only came to their attention after the trial ended.

* The government claimed the information was inadmissible under the Federal Rules of Evidence

* “The district court (Judge Brack) was unpersuaded.”

*During hearings, the court learned the AUSA management team knew before trial there were potential Giglio issues with Batts.

* Warnings two months before trial were unheeded.

*“[T]he most valuable evidence to impeach Batts was not his (alleged) criminal conduct disclosed in the withheld reports….[r]ather, the court learned that Batts had called an FBI agent on May 5, 2008, to report the criminal activities of a fellow deputy – with the telling caveat that he, Batts, was ‘not involved.’  Because of this, the district court found that ‘it may be inferred that [Batts] knew about the FBI investigation and he had a motive to curry favor with the Government by embellishing his trial testimony…  When confronted… Batts claimed it never happened.’”

* Judge Brack pointed out that motivation and bias are proper subjects for cross-examination, and ruled the suppression of the FBI report violated the Reese’s Sixth Amendment right to confront a witness.

* The district court (Judge Brack) found the government suppressed evidence, the evidence was favorable and the evidence was material.

* The government claims the suppressed evidence was neither favorable nor material.

* The appellee’s attorney proceeded to explain to the court why the Government is mistaken.

* Batts’ testimony concerning Terri’s knowledge about the guns being recovered in Mexico contradicted Terri’s testimony and impugned her credibility.

* The prosecution told the jury to believe Batts.

* The prosecution could not have used that tactic if the defense had been able to confront Batts with the FBI report.

* The disputed testimony triggered the investigation and prosecution.

* The disputed testimony was used to prove the Reeses had knowledge – a key element in the four counts of which they were convicted.

* Batts testimony completed the link of knowledge between straw purchases and smuggling.

 “Clearly, the Government’s actions to suppress the evidence in this case have resulted in a verdict unworthy of confidence.  The district court correctly applied the three-part Giglio standard to the evidence in this case, and his decision to grant a new trial was within his sound discretion.”

 

The appellees’ seek to have the Appeals Court affirm (uphold) the district court’s order granting a new trial.

 

Continued in Part 4

REESE CASE: Appellee’s Opening Brief – Part 2`

 

DID THE GOVERNMENT SUPRESS FAVORABLE AND MATERIAL EVIDENCE?

 

The appellees’ brief pointed to a number of items to show support for Judge’s Brack’s determination that the government suppressed potential Giglio evidence.

  • The government waited nearly four months before informing the court about a potential Giglio problem with Luna County Sheriff Deputy Alan Batts.
  • The government attempt to persuade Judge Brack to rule they had not violed the Reese’s constitutional rights on the matter without having a hearing.
  • Judge Brack’s order noted that the government’s motion lacked any explanation on how they failed to discover the information on Batts before trial or why they waited so long to disclose it.
  • The government’s Ex Parte motion did not disclose the US Attorney’s office was aware prior to indicting the Reeses that AUSA Williams had warned the AUSA management team supervising the Reese prosecution about the Giglio issues involving Deputy Batts.
  • The government’s Ex Parte motion did not reveal to Judge Brack that the US Attorney’s ethics officer, trial and supervisory counsel, and investigative agency counsel had discussed the Giglio problem, and had agreed to informed the court only that prior to Batts’ testifying that the two AUSAs trying the Reese case did not know of any potential Giglio problems.

Herbert Titus also pointed out:

“Apparently, the standard procedure in this U.S. Attorney’s office limited its Giglio inquiry to the government agency with which the witness is employed… thus allowing trial counsel to avoid obtaining such knowledge from other law enforcement agencies.”

(Note:  During courtroom testimony, it was made clear that the employer (Luna County Sheriff’s Office, and/or the sheriff) would not have known about a corruption investigation being conducted of one of its officers in order to preserve the integrity of the investigation.)

The appellee’s brief continued with additional information regarding suppression of potential impeachment evidence:

  • The government’s Ex Parte motion did not reveal that the FBI had expressed concern to AUSA Williams about Batts being on a drug task force, and that Williams had informed the AUSA management team via email.
  • The only reason any of this came to light was because Judge Brack demanded an “explanation as to how the trial prosecutors failed to discover the information before trial” and that only then was the court given the details of the concealment.  The impeachment material had been in the US Attorney’s office for several years and that Judge Brack had asked why Ms. Armijo, one of the prosecutors, did not know about the impeachment material “in light of the fact that she had been ‘the branch chief down here.’”

The appellee’s brief pointed out that during the January  2013 hearing:

  • AUSA Williams reviewed the prosecution memo before the Reese indictment and confirmed that Batts’ name was on it.
  • AUSA Williams verified before the indictment he identified potential Giglio issues with Batts and notified the management team in Las Cruces (AUSAs Castellano & Perez).
  • Before trial, Williams sent the management team an email about the FBI’s concern about Batts, but doesn’t know if they read the potential Giglio material.

The appellee’s brief also revealed that:

  • Judge Brack confirmed that AUSA Williams had warned AUSAs Castellano, Perez and others about Batts’ potential Giglio problems and had noted they needed to consider his presence on the drug task force.
  • The Las Cruces AUSA’s office failed to disclose information about another officer who was subject of the same investigation as Batts.  That failure to disclose also resulted in the court granting that defendant a new trial.
  • In July 2012, AUSA Williams attempted two more times to get Batts off the drug task force, but “the Government called Deputy Batts to testify on its behalf at (the Reese) trial.”

The appellees’ brief also claimed that the government has misstated the Giglio claim because the government claimed in their opening brief:

“…there has been no determination that Batts engaged in any misconduct, let alone any misconduct that involved untruthfulness.”   (Emphasis added.)

The appellees state the government completely omitted  mentioning the telephone conversation between Deputy Batts and FBI Agent Garry Brotan that was memorialized in a FBI report at the time of the call.

The appellees explain it was that phone call that was “identified as the crucial event from which an actual Giglio claim would emerge.” That call is what led to defense counsel to inform Judge Brack in December 2012 that the information was not simply character evidence, but that Batts was a key witness and had “motive and bias to lie in favor of the government.”

Appellees informed the appeals court of testimony omitted from the government’s opening brief that,

“Right after the phone call”,… FBI Special Agent Acosta testified that the ‘FBI collectively’ formed the opinion that Batts had been ‘tipped…off’… ‘that the FBI was looking at him and some other officers.’”

In an effort to point out that there is potentially misconduct involving untruthfulness, the appellees directed the appeals court to look at Batts’ sworn testimony in January 2013 where he testified:

“I never called Garry Brotan.”

The appellees state the government attempted to marginalize Batts as a witness and “omitted…any meaningful description or analysis of the substance of Batts’ testimony.”

The appellees claim the government “glossed over the August 2010 meeting” between Terry and Deputy Batts and “avoids discussing what happened at New Deal, which is what triggered the entire undercover investigation.

The appellees further the “Government belittled Batts’ testimony as ‘not crucial to the prosecution’s case’”.  However, the government’s closing arguments at trial told a different story as they referred to the discrepancy between Batts’ and Terri’s testimony numerous times, telling the jury to decide who was truthful.  The government claimed Terri’s alleged knowledge that the weapon had been recovered in Mexico proved they had knowledge.

 

Continued in Part 3

 

 

 

REESE CASE: Appellee’s Opening Brief – Part 1

 

WHAT IS THE ISSUE IN THE APPEALS CASE?

 

As explained in the previous post, the government is appealing Judge Brack’s order granting a new trial for Rick, Terri and Ryin Reese.  The government asked the appeals court to review the following issue:

“Did the district court (i.e. Judge Robert C. Brack) err in granting a new trial based on the government’s failure to disclose potential impeachment evidence relating to a minor trial witness when the evidence was neither favorable to the defendants nor material?”

The attorney of record for Rick, Terri and Ryin (“the  appellees”) is Herbert W. Titus (Vienna, VA) who has been hired by Michael Connelly of the U.S. Justice Foundation, and Robert Gorence and Jason Bowles.

Mr. Titus’ brief immediately clarified the issue that has been presented for review:

The issue presented is whether, based on the whole record, the district court  abused its discretion in granting defendants’ motion for a new trial because the Government had ‘intentionally or negligently’ suppressed favorable and material impeachment evidence, in violation of defendants’ Fifth Amendment Due Process right and Sixth Amendment right of confrontation, as those guarantees have been applied in Giglio v. United States… and related cases.

Judge Brack had cited the Supreme Court cases of Giglio, Brady, and a number of other of related legal cases supporting his decision to grant a new trial.  Judge Brack’s memorandum order detailed his reasoning behind granting the Reeses a new trial based on each of the three key issues that must be met to grant a new trial:

  • Did the government suppress evidence?
  • Was that evidence favorable to the defense?
  • Was the evidence material to the case?

The government had argued in their brief that, while some of the supervisors in the Las Cruces US Attorney’s office knew about potential  impeachment material involving Deputy Alan Batts, the impeachment material wasn’t favorable or material to the defense and would not have affected the outcome of the case.

Mr. Titus briefly outlined the main events in the case in chronological order, starting with the date of their arrests though trial and the verdicts.  The events and hearings leading to Judge Brack’s Memorandum Order granting a new trial were also  listed.

The appellee’s brief noted that what was really at issue in the December 2012 and January 2013 hearings was whether or not Deputy Batts knew “[of the FBI investigation of his activities,] (because) then he has a motive to temper his testimony to please the government…”

The appellee’s brief asserted the government’s statement of facts in their brief “is flawed.”

  • “In its Statement of Facts, the Government spends 28 of 36 pages rehearsing its version of what transpired between August  30, 2010, the date the investigation began….and August 1, 2012, the date of the  jury verdict.”… “The Government account of the testimony at trial reads as if the Reeses had been convicted on all counts, and were appealing their conviction.” …  “In their account, the Government implies that there was more than sufficient evidence to establish each crime as charged.” (Emphasis added.)

The appellee’s brief further pointed out that the “Government’s account of the six undercover stings  leaves the reader with the distinct impression  that all of the testimony recounted therein led to the same result – guilty as charged.”

Referring to the 28 of 36 pages of the Government’s brief , which detailed the investigation into the Reeses and New Deal, trial testimony and the verdict, the appellee’s brief points out:

The Reeses are not on retrial here.  And  the issue is not whether the evidence is sufficient to support the convictions of Rick, Terri, and Ryin. …”

The brief  clarified what issue is actually before the appeals court:

“[T]he issue is whether the district court erred by granting the defense motion for a new trial based upon the Government suppression of favorable and material Giglio impeachment materials.” (Emphasis added.)

 

Continued in part 2

 

GOV’T APPEALS JUDGE BRACK’S DECISION: Government’s Opening Brief

In August 2012, Rick, Terri and Ryin Reese were found guilty of four of thirty counts relating to falsifying paperwork relating to straw purchases and gun smuggling charges.

Nearly four months after the guilty verdicts, but before sentencing, the government revealed to Judge Robert C. Brack information that had been withheld during trial.

As a result, in December 2012, a hearing was held to obtain Rick & Ryin’s release from jail.  During that hearing, the government claimed the defense attorneys were making a big to do about nothing.  “Nothing” referred to the government withholding evidence about prosecution witness Deputy Batts, who testified against the Reeses during trial.

During the January 2013 Motion for New Trial, the government also claimed that Deputy Batts was only a “minor witness”, and that the impeachment evidence was not favorable or material.    Judge Brack disagreed and granted the Reeses a new trial.

Approximately two and a half months after the government filed their appeal of Judge Brack’s decision to grant Rick, Terri and Ryin Reese a new trial, the government filed their 76 page opening brief on June 6, 2013, which included a copy of Judge Brack’s scathing Memorandum Opinion granting a new trial.

The government’s brief stated the government wants the appeals court to review the following issue:

 “Did the district court (i.e. Judge Robert C. Brack) err in granting a new trial based on the government’s failure to disclose potential impeachment evidence relating to a minor trial witness when the evidence was neither favorable to the defendants nor material?”

All of the original charges were listed as were the judgments for each (guilty, acquitted, dismissed).

The brief explained that on November 21, 2012 they had “filed a sealed ex parte motion for in camera review” (meaning the prosecution didn’t want  to provide a copy of the motion to the defense, and wanted the judge to rule on  it without the defense knowing about the motion or the information it concerned).

The brief stated the trial prosecutors did not know Deputy Batts had been the subject of an FBI investigation, however, admitted some of the supervisors in the U.S. Attorney’s Office did know.  The brief explained the government believed the information did not have to be given to the defense and that it would have been inadmissible in the original court case.  The brief pointed out Judge Brack ruled against the government and ordered the government to disclose the information about Deputy Batts to the Reese defense team.

The brief rehashed the main points of the December hearing and pointed out that even Judge Brack had made a comment during the December 2012 hearing regarding Deputy Batts’ credibility.  Near the end of the December hearing, Judge Brack made the following comment regarding the odds of obtaining a new trial when he stated to the defense,

“I have reviewed the testimony that is at issue.  Credibility didn’t seem to be a significant issue there.  So if it’s just  credibility… as the government has suggested, you’ve got an uphill battle.”

Later, during the January evidentiary hearing concerning the defendants’ motion for a new trial on the four counts of conviction, the brief explained the government opposed the motion contending the impeachment material was neither material nor admissible.  However, Judge Brack granted the defendant’s motion for the new trial based on his view that,

“[the U.S.] had committed a Giglio violation by failing to produce the investigative materials relating to Deputy Batts before trial.” (emphasis added)

The brief reviewed and detailed a significant amount of the government’s case against the Reeses including the events that led up to the  initiation of the investigation and subsequent  arrests of one of Jose Roman’s straw  purchasers, Penny Torres, cartel member Jose Roman and his wife, and eventually  the sting operations against the Reeses.

The brief also recapped some of the defense trial testimony of Rick and Terri that supported the government’s position that the Reeses are  guilty.

The brief summarized by pointing out that,

“[t]o obtain a new trial, the  defendant must prove by a preponderance of the evidence that the prosecution  suppressed the evidence, that the evidence was favorable to the defendant, and that the evidence was material.”

The government claimed the potential impeachment material was neither favorable nor material therefore the district court (Judge Brack) erred in granting a new trial.

To support the above, the government brief explained that the (impeachment) “evidence was not favorable because Deputy Batts’ testimony supported the defendants’ theory of the case…” and that his testimony only  differed from Terri on only a single point” (regarding whether Terri told Batts that the gun was recovered in Mexico). The government claimed, “Deputy Batts’ testimony was otherwise entirely favorable to the defense. Impeaching Deputy Batts would not have helped the defense.”    The government further claimed that,

“[t]he defendants cannot show that the potential impeachment evidence concerning  Deputy Batts was reasonably likely to put the whole case in such a different light as to undermine this Court’s confidence in the jury’s verdict.”

The brief continued with their argument of why the District Court  (Judge Brack) erred in granting the Reeses a new trial.  The government asserted that there is no reason to believe that if Deputy Batts’ testimony was impeached that the jury would have found them not guilty.    The government’s main points that were argued to explain why they believe Judge Brack erred in granting a new trial were:

  • The information relating to Deputy Batts was only marginally favorable to the defense
  • Judge Brack incorrectly found that only government agents participated in the undercover stings that resulted in conviction
  • Deputy Batts’ testimony was not important to the Government’s case
  • The Prosecution did not focus on the Batts’ lack of motivation to lie during closing arguments
  • The defense had no motive to impeach Deputy Batts
  • The impeachment evidence was not favorable because it was not admissible
  • The information was not material

The brief explained that

“… the record does not support the district court’s view.  Inexplicably, the district court granted all three defendants a new trial.”

The brief also noted, “… the government presented strong evidence on the false statements counts.  That evidence included (a) audio and video recordings of them selling firearms and ammunition to undercover agents posing as straw purchasers and entering their information on the relevant forms despite knowing that they were making the purchases for Roman, (b) the testimony of those undercover agents, and (c) the testimony of Roman.”

The government claimed in the brief that “Deputy Batts’ testimony did not relate at all to Rick and Ryin’s guilt, and it was only marginally relevant to Terri’s guilt.”

The government reiterated their allegations stated in closing during trial,

“… the reason Terri called Deputy Batts was not to report criminal activity (as the defense argued), but instead to cover her tracks.”

The government’s opening brief requests that the Appeals Court reverse Judge Brack’s order granting the Reeses a new trial and direct Judge Brack to proceed to sentencing.

 

 

(Next post the defense’ brief.)

REESE CASE: Government requested an extension

As previously posted, in March 2013 the government appealed Judge Robert C. Brack’s memorandum opinion granting Rick, Terri and Ryin Reese a new trial.

In late April, the government filed a motion requesting an extension of an additional thirty days to file its opening brief and appendix, which were due April 30, 2013.  The AUSA handling the appeal on behalf of the government, Laura Fashing, cited a heavy case load, and some personal matters that interfered with her ability to submit the opening brief before the deadline.

AUSA Fashing also informed the appeals court, “Furthermore, the government may not file an opening brief in the United States Court of Appeals without authorization from the Solicitor General” … and …  “Although the government has acted expeditiously in this appeal, the Solicitor General has not yet given his final authorization for the government to pursue this appeal.”

It turns out the Solicitor General decides which cases the federal government will appeal, since it could eventually wind up in the Supreme Court.  Ultimately the Office of the Solicitor General represents the United States in all Supreme Court cases.  As a result, the solicitor general’s office reviews all cases decided against the government in the lower courts and decides if the case should be appealed.  In this case, Judge Brack decided against the government and granted the three Reeses a new trial.

The first bump in the road for the Reeses involved a similar issue that arose before the original trial. The government requested more time because they felt there was a potential conflict of having only one attorney represent Rick, Terri and Ryin Reese during the appeal.    During the original case, the government opposed the four defendants being represented by only one attorney.  The judge agreed with the government and the Reeses had to hire four separate attorneys to represent them in the original case.

The government filed an opposition to the Reese’s having joint representation in the appeals case due to a potential conflict of interest.

Michael Connelly of the US Justice Foundation, along with the Herbert Titus and William Olson filed a response and argued that the trial judge’s ruling on joint representation before the 2012 trial is no longer relevant.  They argued that the only legal issue on appeal is “[w]hether the government violated its Giglio obligations concerning one of its trial witnesses, a law enforcement officer who himself had been the subject of an FBI investigation, to the prejudice of the three Reeses convicted at trial.”  In addition, they claimed that the government failed to identify any realistic conflict of interest.

One day after the Reese attorneys filed their response, the Appeal Circuit Judges denied the government’s request without prejudice and indicated they were unable to determine if a conflict existed because the briefs had not yet been submitted.  The judges informed the government may file a similar motion after the case has been fully briefed.

Next post – the government’s brief.

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