Earlier this year, the federal government appealed Judge Brack’s decision granting the Rick, Terri and Ryin Reese a new trial. The 10th Circuit Court of Appeals in Denver, Colorado has published the date for oral arguments.
DATE: Wednesday, November 20, 2013
COURTROOM: Courtroom II
TIME: 8:30 a.m.
LOCATION: The Byron White U.S. Courthouse 1823 Stout Street Denver, CO 80257 Map This Location
This proceeding is OPEN TO THE PUBLIC. The public is encouraged to attend. If you can not attend, but know someone in Denver who may be interested, please notify them of the time, date and location.
The Court of Appeals is located in downtown Denver. For those persons interested in traveling and attending and need a hotel room, downtown Denver is not located near the Tech Center or the Denver International Airport.
As previously detailed on this website, Rick and Terri Reese, and their two sons, Ryin and Remington, were arrested in August 2011 on multiple gun related charges, including conspiracy, smuggling weapons to the Mexican cartel, money laundering, and Form 4473 violations related to alleged straw purchasers. Remington was acquitted of all charges. Rick and Terri Reese were convicted of one count each, and Ryin was convicted of two counts of Form 4473 violations. The essence of the violation was that the Reeses should have known that undercover government agents (who were using phony identification that passed the required FBI background checks) were posing as straw purchasers for a career criminal and Mexican cartel member. That Mexican cartel member, Jose Roman, was seeking to have charges against him dropped, reduced sentences for the charges that were not dropped, and some things not charged at all (such as possession of a machine gun). His wife was also seeking to have criminal charges against her dropped.
Several months after the conviction, and before sentencing, the government revealed information that it had used a law enforcement officer, Deputy Sheriff Alan Batts, to testify against the Reeses, when he himself has or had been under investigation for nearly 10 years on suspicion of smuggling illegal aliens, ripping off drug dealers and discrepancies related to missing evidence. The government withheld this evidence about Deputy Batts during trial and Jury deliberations. Deputy Batts has not been charged with any criminal activity as far as can be determined, and therefore remains innocent until proven guilty, if he is charged in the future.
Deputy Batts was the law enforcement officer that Terri Reese contacted when she became suspicious of a buyer that she learned after her arrest was a straw purchaser. Reese defense attorneys alleged that Batts may have known he had been under investigation and may have tempered his testimony.
After an evidentiary hearing in January 2013 concerning issues related to Deputy Sheriff Batts, where the defense team sought a new trial, Judge Robert C. Brack granted the Reeses a new trial http://www.lunatpp.org/breaking-news-judge-grants-a-new-trial/ . Judge Brack granted that trial after hearing testimony of a supervising Assistant US Attorney who knew about the derogatory information about Batts, two FBI agents who were involved in investigating Batts, and testimony from Batts himself.
Near the end of February, the attorneys filed a motion to dismiss the charges against the Reeses. Approximately one month later, at the eleventh hour deadline, the government filed an appeal against Judge Brack’s ruling. http://www.lunatpp.org/reese-case-prosecution-appeals-judge-bracks-decision/
The cases have been on hold since that time.
At issue in the appeal is not whether or not the Reeses are guilty. What is at issue is whether Judge Brack made a correct legal ruling based on case law related to granting a new trial based on all of the evidence surrounding the Batts issue.
Attorney Herbert W. Titus (Virginia) is the attorney of record in the appeals case and will argue on behalf of the Reeses to the Appellate Court.
Michael Connelly, Constitutional Lawyer and Executive Director of the United States Justice Foundation has led the way for raising legal defense funds for the appellate case only. The Reeses are grateful to all persons who have contributed as their own resources were exhausted.
Laura Fashing is the Assistant US Attorney that prepared the government’s opening brief and may argue their side of the case on behalf of the government.
If the appellate court rules in favor of the government, the Reeses will return to Judge Brack’s courtroom for sentencing on the 4 counts of conviction. If the appellate court rules against the government, the Reeses will face a new trial on those four counts if the government decides to continue with the case. The appellate court ruling in this case will not be known for a number of months.
Also pending is the government civil forfeiture case against the Reeses, where the government seeks to have the Reeses forfeit the bulk of their valuable assets, the bulk of which were acquired over their lifetime. Most of the assets the government seeks have already been seized and are being held by the government pending the outcome of the civil forfeiture case.
The Reeses face difficult times ahead, no matter what the outcome of this appellate case is.
A message from the Reeses:
“Please keep us in your prayers as we need the help of our Lord as usual at this time.
Thanks for the help and God Bless.
Rick, Ter, Ry and Rem”
The government claimed that the Reeses “knew” what was going on.
The government claimed the Reeses “knew”:
- that Jose Roman was a Mexican Cartel member smuggling guns,
- that Penny Torres was one of Roman’s straw purchasers,
- that a weapon was recovered in Mexico, even though the location was not indicated on the weapons trace request,
- that the undercover agents during an elaborate sting operation were posing as straw purchasers for Roman, even though their phoney identification passed FBI muster,
- that somehow the Reeses were supposed to know they needed to get an export license to export weapons, even though they were not exporting weapons, and even the government’s own witnesses stated they didn’t need export liceses, and
- that somehow the Reeses should have known making the day’s business sales deposits into the bank was evidence of money laundering.
The Reeses were supposed to have made some kind of intuitive leap on information that was not told to them. They were supposed to be mind-readers.
Who didn’t know?
The government claims they didn’t know about Deputy Alan Batts and his potential Giglio problems.
The government claims they didn’t know:
- that Batts had a Giglio problem, even though he was under investigation for nearly 10 years in the same Las Cruces US Attorneys office,
- that Batts had a Giglio problem, even though the FBI expressed their concerns several times,
- that Batts had a Giglio problem, even though an AUSA supervisor Williams mentioned it his superiors several times; before indictment, before and during trial, the same supervisors that oversaw the Reese case.
Somehow we are supposed to believe that the government wasn’t able to make the same kind of intuitive leap to knowing Batts had a problem – even though they were directly told multiple times.
Ironic isn’t it?
Who knew indeed.
Sure sounds like a double standard.
WAS BATTS A MINOR WITNESS?
This is the question we all want answered. How did a government witness against the Reeses, one who testified for just a short timesuddenly become central to their conviction?
The government has claimed that Deputy Alan Batts was just a minor witness and not central to influencing the jury’s decision towards conviction.
The government asked the appeals court to review Judge Brack’s decision granting a new trial to determine if Judge Brack made a legal error. If Judge Brack made a legal error in granting a new trial, the appeals court could reverse Judge Brack’s decision. Should the appeals court decide that Judge Brack made a legal error, and reverse his decision, the Reeses will proceed to sentencing.
After explaining the Reese side of the argument on why they believe the government withheld favorable and material evidence, the appellee’s brief explained the standard of review in this case.
The appellees’ brief explained that the “decision to grant (or deny) a motion for a new trial lies within the sound discretion of the district court” and that the appeals court can only overturn that decision if the judge “abused its discretion” by making an “arbitrary, capricious, whimsical, or manifestly unreasonable” judgment. The standard involves a three part Brady test. Namely, was evidence suppressed, was it favorable to the defendant, and was it material?
The appellees pointed out that when reviewing what is materially important for Brady purposes, the Supreme Court admonishes the appeals court “not to look for ‘ample, independent evidence of guilt’ or ‘evidence sufficient to support the [jury’s] findings,’” but instead to determine “whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’”
Much of the government’s brief was dedicated towards looking for ample evidence of guilt and to support the jury’s guilty verdicts.
The appellees claimed the Government is “factually mistaken” and has erroneously applied the standard of review governing defendants’ Giglio claim. They further claim that Judge Brack’s decision was within his sound discretion, was supported fully by the facts in the record and in compliance with the appropriate legal standards.
The appellee’s brief explained in great detail why the Reese defense team believes Deputy Batts was a major witness during the Reese trial. The Reese defense team believes Deputy Batts played a key role in establishing the integrity of the investigation and prosecution of the Reese family. Furthermore, they believe Batts was a key witness utilized to prove beyond a reasonable doubt that Rick, Terri & Ryin knew the undercover firearms sales were straw purchases. The appellees’ attorneys also point out:
“As to the four counts of conviction, the Government points to nothing in the record to support its contention that the guilty verdicts can be attributed to the audio and video tapes alone, as the Government adamantly insists.”
The appellees’ brief pointed to repeated references made to Deputy Batts in the government’s closing arguments, including allegations that Terri knew the weapon purchased by Penny Torres had been recovered in Mexico because “she knew Roman took it there”, and that Terri’s statements to Batts were “a cover-up, not a genuine concern for compliance with ATF regulations.”
The appellees’ brief also claimed at least one of the governments arguments was absurd.
In a valiant, but quixotic effort to trivialize Batts’ testimony, the Government has attempted a mathematical reduction ad absurdum, contending that Batt’s testimony ‘consumed only 21 pages… of a trial transcript that spanned more than 2300 pages… the ninth of sixteen witnesses in the government’s case-in-chief… his testimony… among the shortest.’”
Reese attorneys point out that the importance of testimony has nothing to do with how many pages of transcripts exist. The appellees’ pointed out some statistics of their own:
Deputy Batts’ testimony consumed almost 1% of the trial transcript, but references to his testimony in closing arguments appeared on 5 of 38 pages – 13% of the pages.
The brief explains that “Deputy Batts’ testimony directly related to the knowledge element of the straw purchase counts of conviction.”
Note: Apparently, the key issue in the counts the Reeses were convicted of was the knowledge element. Did the Reeses actually know that the undercover agents were posing as straw purchasers for Mexican cartel member Jose Roman? The Reeses have maintained all along that they did not know.
The brief pointed out that the government claims Terri’s statement to Batts was relevant only to smuggling counts and had nothing to do with the counts of conviction (making false statements on a 4473 form). However, the appellee’s point out that each count of conviction for filing a false statement has a parallel count charging “knowingly facilitating the smuggling of the firearm(s)…” (Emphasis added.)
The point the appellees’ are making is that during trial the government claimed that the Reeses knew that Roman had been smuggling weapons by using straw purchaser Penny Torres. Therefore the Reeses were charged with the smuggling charges, and the filing false statements related to the weapons being purchased by a straw purchaser. However, now the government claims Batts’ statement only related to the smuggling charges, but not the related straw purchase charges that they were convicted of.
To futher support their charges, the government had argued in trial that the objectives of conspiracy were to sell guns and ammunition knowing they would be illegally smuggled to MX, and to sell those guns via straw purchasers. The government was able to allege that Terri had knowledge because Allen Batts testified that Terri knew the guns had been recovered in Mexico.
The government’s brief claimed that Batts’ testimony only indicated that Terri had knowledge, but this did not implicate Rick or Ryin having knowledge.
However, during closing arguments the government pointed out that this is a family operated store, they lived and worked together and knew what was going on even when they were not present in the store. The appellees’ brief pointed out that it would therefore have been reasonable for a jury to infer that Terri would have discussed the weapon being recovered in MX with her husband Rick, and son Ryin, if she had also told that to Batts.
(Note: Not only would it have been reasonable for the jury to infer that the family had discussed the trace report of the weapon being recovered in Mexico, there was trial testimony that indicated they had in fact discussed it. As previously reported, Rick testified during trial that Terri and he had it and Terri indicated she was going to call law enforcement. http://www.lunatpp.org/reese-trial-rick-reese-takes-the-stand-part-3/)
The appellees’ claim Batts had motive to temper his testimony because he knew he was being investigated by the FBI. The government, however, claimed he didn’t know based on one thing - “Deputy Batts denied any knowledge of the investigation.” The appellees claim the government ignored mentioning the other facts that led Judge Brack to conclude otherwise. These other facts included Deputy Batts call to the FBI to implicate another officer in wrongdoing, while claiming he had nothing to do with the wrongdoing.
The appellees pointed out that impeaching Batts would have helped the defense and explained:
“[T]he Reeses only had one weapon to counter Batts’ false claim – Terri’s denial. The fact that Batts had also said nice things about the Reeses and their business practices actually hurt the Reeses, rather than helped, because his overall testimony gave the jury the impression that Batts had no animus towards them…… [a] jury would not believe that a government witness who spoke so highly of the defendants was slanting his testimony to curry favor with the government… By withholding the FBI report, the Government foreclosed any opportunity for the jury to make that decision themselves. And it ill behooves the Government to substitute its opinion for that of the jury in this case.”
As a result, the appellees asserted the impeachment information suppressed was material, it was favorable to the defense, and that government misconduct was relevant. The appellees’ explained the government’s brief attempted to exclude the facts that led to Judge Brack decision that the government suppressed Giglio material.
“[T]he government claimed that the suppression of evidence “is not at issue in this appeal.”
The government claimed the suppression of the evidence didn’t rise to level of the prosecutor knowingly using perjured testimony, even though Judge Brack did find there was no doubt the prosecution intentionally or negligently suppressed the evidence.
The appellee’s brief pointed out that the Judge Brack had found the government had known about the Batts information for nearly ten years before trial, and that the Judge found the jury didn’t believe the government had a strong case, even though the government told the appeals court they had presented strong evidence. Additionally, the government didn’t point out that the defendants had been found not guilty of a number of counts involving the undercover stings.
Central to the appellees’ breif is the explanation of why Deputy Batts actually was a key government witness.
Batts’ testimony was essential to corroborate the testimony of government informant Jose Roman. Roman had testified that Terri told Roman in August 2010 that one of the guns straw purchaser Penny Torres purchased had been found in Mexico.
“Terri’s alleged statement was elicited from Batts because he could be presented to the jury as an experienced law enforcement officer whose only part in the Reese investigation was to ‘contact  HSI because [he] felt that the weapons were going back across the border. Without Batts’ testminony corroborating Terri’s alleged statement in August 2010, the Government was stuck with Roman, a member of the Mexican cartel…”
Roman and his wife were parties to a plea agreement and they were both expecting to receive a number of benefits, including reduced sentences, in exchange for testifying against the Reeses.
“Only by suppressing the FBI Report with its damning information about Batts’ corrupt activity could the Government have accomplished this feat… [the] suppressed evidence was clearly material.”
Batts’ testimony was essential to prove the Reeses had criminal knowledge beyond a reasonable doubt.
According to the government “[m]ost of the defendant’s incriminating statement were made to Roman” … [thus], the Government recites in great detail the evidence captured on tape.”
However, according to the appellees there was no evidence on tape that indicated the Reeses knew the purchaser was someone other than the person identified on the 4473 forms. “[K] nowledge was entirely circumstantial, as demonstrated by the prosecution’s closing arguments in trial.”
During closing arguments the government repeatedly told the jury to look at Batts’ testimony to prove that the Reeses had knowledge that the weapons were going to Mexico, had knowledge that Roman was a cartel member, and to look at Batts’ testimony to see that the Reeses knew the full picture. However the Reese attorneys point out that on appeal, the government took the opposite position and claimed that the impeachment evidence withheld on Deputy Batts “could not have undermined the government’s entire case.”
Mr. Titus, concluded: “The government cannot have it both ways.”
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
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
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
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.)
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.
On August 30, 2011, Rick and Terri Reese and their two sons were arrested and charged with 30 gun-related counts including conspiracy, gun smuggling, money laundering and form 4473 violations for knowingly selling guns to Mexican cartel and undercover officer straw purchasers.
Nearly a year later, Judge Robert C. Brack tossed out two of the counts due to a lack of evidence http://www.lunatpp.org/reese-trial-judge-throws-out-money-laundering-conspiracy-charges/ and the jury acquitted them of 24 counts. On August 1, 2012, Rick and Terri were found guilty of one count each, and Ryin was found guilty of two counts. The guilty verdicts related only to charges related to knowing that they were selling to straw purchasers. Remington Reese was acquitted of all charges.
In January 2013, Judge Brack granted Rick, Terri and Ryin a new trial after deciding that the government had withheld evidence in the case and violated their constitutional rights. Details of the hearing that led to the trial can be read here http://www.lunatpp.org/reese-hearing-motion-for-a-new-trial-2/ which is the first of a 5 part series. The effect of granting the new trial voids their convictions. The judge’s order can be reviewed here http://www.scribd.com/doc/123390298/Reese-Order. Shortly thereafter, Rick and Ryin were released on bond pending a new trial.
After the defense attorneys submitted a motion to dismiss the case, http://www.lunatpp.org/reese-case-motion-to-dismiss-with-prejudice-march-7-2013/ , the government decided to appeal Judge Brack’s decision granting a new trial. http://www.lunatpp.org/reese-case-prosecution-appeals-judge-bracks-decision/.
In March, the US Justice Foundation agreed to handle the appeal case for the Reeses, and claimed the Reese case is the most important Second Amendment legal case in America at the moment.
By April, Judge Brack ordered the ankle monitors be removed from Rick and Ryin and shortened their curfew hours. They still report in nightly to their probation officer, and seek permission to travel as needed to comply with the conditions of their bond.
The government’s briefs to the appeals court had not been filed by this time, but the deadline for them to file was nearing.
Status at this point:
- The government has appealed Judge Brack’s order for a new trial.
- The Reese attorneys have requested the appeal case be argued orally to appeals court.
- The Motion to Dismiss the remaining four charges is on hold pending the outcome of the appeals case.
- The Civil Forfeiture case still lurks in the background.
- The Reeses have filed a motion seeking return of some of their property so they can pay legal fees, and the government opposes returning any of their property.
- A new trial is on hold until the two issues are resolved – the appeals case and the motion to dismiss.
Details regarding the above are forthcoming.
The government appealed the decision by Judge Brack granting Rick, Terri and Ryin Reese a new trial based on the government violating their civil rights.
The government filed their brief last month and this evening the Reese’s filed their brief. The brief is not brief, it is 79 pages long.
During the January 2013 evidentiary hearing for the Motion for a New Trial, Deputy Alan Batts testified he did not call FBI Agent Gary Brotan and inform the FBI that another officer was involved in criminal activity.
Specifically Deputy Batts testified in Court during the Reese hearing:
“He’s stating that I called reporting another … officer. That never happened. I don’t ever recall calling Garry Brotan reporting something on another officer. He said I had recorded conversations with somebody and turned it over to the FBI? No sir. I never called GarryBrotan….“
However, on page 19 of the appellee’s brief, the FBI’s contemporaneous notes entered by FBI Agent Brotan indicate something completely different:
“… in response to a telephone message to contact Batts, “[t]he writer [Brotan] along with SA Joe Acosta telephonically contacted Investigator Batts [who]advised that he had some information to pass onto the FBI” concerning some potential criminal activity by another Luna County law enforcement officer named Brookhouser who was referred to by name in the FBI original report.” (emphasis added, first name not indicated)
During the December 2012 hearing and again at the January 2013 hearing, it was learned that a FBI investigation into public corruption in Luna County has been ongoing since 2002 and that Luna County Sheriff’s Deputy Alan Batts was named as one of multiple persons being investigated.
The brief also quotes additional testimony in January hearing:
“Agent Brotan testified that he spoke with Batts by telephone on May 5, 2008, and that Batts provided some information of criminal activity involving another Luna County law enforcement official. And Brotan testified that, in the course of the conversation, Batts stated that he, Batts, had a good reputation, and that he was not involved in any wrongdoing. XIV App. 3155, l. 4 – 3156, l. 21. “Right after the phone call” (XIV App. at 3186, ll. 9-11), Special Agent Acosta testified that the “FBI collectively” formed the opinion that Batts had been“tipped … off” (XIV App. at 3185, ll. 19-24) “that the FBI was looking at him and some other officers.” (emphasis added)
It is not known at this writing how many officers are under investigation in the ongoing public corruption case. As far as this writer knows, no charges have been filed against either Batts or Brookhouser.
Additional updates concerning the government’s brief and other aspects of the Reese’s brief are forthcoming.