REESE CASE: Prosecution Appeals Judge Brack’s Decision

Rick Reese and his family operated one of the largest gun stores in New Mexico.  It was located just 30 miles north of the US-Mexican border.  The bulk of his customers were law enforcement officers from across the entire country.

In August 2011, federal agents arrested all four members of the Reese family one-by-one. They were read their rights, then pressured to waive their rights to an attorney.  The government agents wanted them to talk, but the government didn’t even tell them what they had been arrested for.  The boys were pressured to rat on each other and their parents.   None of the Reeses waived their rights – after all, they still believed in the American system of justice and the U.S. Constitution and Bill of Rights.   They were booked, jailed, and their assets seized.  At the time, they didn’t even realize they couldn’t afford even one single attorney, much less four defense attorneys.

It wasn’t until days later that they learned what they had been arrested for.  They were handed the indictments in the courtroom right before a hearing.  They each read the indictment in total astonishment.  This is when they found out why they had been arrested.  The indictment revealed the government had charged them with 30 counts of smuggling guns, money laundering, conspiracy, and paperwork violations relating to the pre-purchase criminal background checks they always conducted.

They listened in horror as the prosecution described them as a danger to the community, flight risks, and the kind of people who would go up on a mountain and get into a Ruby Ridge style shoot out with government agents rather than return to court to face trial.

A year later, the Judge dismissed the two money laundering charges.  There was no evidence of that.  The Jury heard the evidence,  and after deliberating for a day, found Remington Reese not guilty of all charges, Terri Reese guilty of one paperwork violation, Rick Reese guilty of one paperwork violation, and Ryin Reese guilty of two paper violations.  Tthe violations boiled down to the Reeses should have me the standard of “should have known”.  They should have used ESP to determine the undercover agents were using government issued false identification, and that the FBI was in on the operation to approve agents using false ID to purchase weapons.  They were supposed to use their ESP to figure out that the agents were going to smuggle the guns to Mexico.  None of the guns were actually smuggled to Mexico.

Rick and Ryin Reese spent the nearly eighteen months in jail, while they waited for trial, and later for sentencing.  Terri had been released on a $100,000 bond earlier so she could have surgery to remove a large tumor from her leg while she was in jail.  While still recovering from surgery, government agents visited her home and then accused her of violating her bond and being a threat to the probation officers – officers who are armed and wearing bullet proof vests.  It didn’t matter that the government had already seized all their personal and gun store inventory of weapons.

Sentencing never happened.  Four months after conviction, while Rick and Ryin languished in jail, the judge learned that the prosecution had withheld evidence in the trial and ordered it be revealed to the defense attorneys.  That eventually led to the public learning that a key witness in the case, Deputy Sheriff Allen Batts, had been under investigation for nearly ten years regarding allegations of ripping off drug dealers, stealing evidence destined to be seized by the federal government, smuggling drugs and illegal aliens, and other similar charges.  He was never charged with any of those crimes.

The prosecution claimed withholding the evidence about Batts, was just a simple and harmless mistake, and that the defense attorneys were making a big to do about nothing.  Judge Brack disagreed.  His scathing memorandum order found that the prosecution had withheld evidence that could have changed the outcome of the trial.  Point-by-point, Judge Brack outlined the three legal elements that needed to be met in order for him to grant a new trial.  It is clear in the Judge’s memorandum that not only had the defense proved those key elements, but Judge Brack was aware of other similar instances involving prosecutors not turning over all of the evidence as required.  Judge Brack ordered a new trial, and ordered Rick and Ryin released on $10,000 bond each – far lower than Rick’s wife’s $100,000 bond.  $10,000 bond each for the baddest of the bad in the family.

After the prosecution had finished putting on their case in trial, defense attorneys filed a motion to dismiss all of the charges.  Judge Brack did not dismiss them at that  time.

After Judge Brack’s order for a new trial, defense attorneys revisited having the remaining charges dismissed and filed a motion for dismissal with prejudice two weeks ago.   After all, the defense attorney’s job is to defend their clients to the best of their ability.  Language in Judge Brack’s memorandum opinion may have opened the door for the defense attorneys to revisit a motion for dismissal.

After reading the judge’s memorandum, it is an easy to speculate that an overzealous quest for victory against the Reeses was involved in the decision making process from bottom to top, to withhold the evidence about Deputy Batts prior to the case going jury for deliberation.

The prosecution’s opposition to the motion for dismissal is quite likely standard operating procedure.  When one party, in this case the defense, files a motion, the other party (the prosecution) files a response.  It is the same in reverse.  Many examples of this have occurred throughout the entire Reese ordeal.  An early example is the defense request bond and stated their clients had ties to the community, were not dangerous, no prior record, business owners, and not flight risks.  And the prosecution’s predictable canned responded was that they were dangerous to the community, flight risks, etc.  They even alleged Remington Reese, then 19 and living at home, lived in New York to support their standard response.  Remington has never even been to New York.

As indicated in David Codrea’s article yesterday http://www.examiner.com/article/u-s-attorney-steps-up-case-against-reese-family-by-going-over-judge-s-head , the prosecution has filed their opposition to dismissal.  Links to three document files are embedded in the article, and I urge you to read the article, and the links, and share them with everyone you know.  Yes, it is that dreaded legalese.  Read it anyway.

First, U.S. Attorney Ken Gonzales filed a notice of appeal of the judge’s decision granting the Reese’s a new trial.  Simply put – they don’t want a new trial.  They want the Reese case to move to sentencing.

Second, U.S. Attorney Ken Gonzales filed their opposition to the defense motion to dismiss.  The short version on all that is the prosecution doesn’t want to have their staff on the witness stand in an evidentiary hearing to find out to what extent the evidence about Batts was suppressed – the who knew what and when angle.  The prosecution lists a long line of cases indicating that most often the appropriate remedy for the prosecution breaking the rules is simply a new trial – not a dismissal of the case.    However, buried within the pages are references to some cases where the judges have actually dismissed entire cases.

What nobody mentions when is comes to appropriate remedy is the continuing devastating financial effect a long list of motions and hearings and another trial will have on the Reese family.  Guilt or innocence is practically secondary when you’ve been bankrupted by the federal government.  Talk about cruel and unusual punishment!

Without having an evidentiary hearing, it would be impossible for the defense to find out several things.  This would include being able to determine if the prosecution artfully asked questions to obscure the truth about Deputy Batts or any other evidence in the case. While the last hearing initiated exploring if the prosecutor withheld information, how far up the ladder the knowledge was can not be determined without an additional evidentiary hearing.  Judge Brack’s memorandum addressed his opinion that this knowledge may have altered the outcome of the trial.

The Supreme Court case called Brady addresses a number of things the prosecutor must do regarding evidence.  It part it addresses withholding evidence at the discovery phase, which occurs before trial.  Another issue that can not be determined without an evidentiary hearing relates to the “constructive knowledge” of the prosecutors’ office .  Did the prosecution exercise enough due diligence to have known the facts about Batts?  Was simply sending the Luna County Sheriff a query of whether there was anything derogatory about Allen Batts enough due diligence?  After all, it was revealed in the January hearing that only a very, very short list of people would be privileged to know that a corruption investigation was ongoing.  And in the December hearing, it was learned that allegations of corruption would not be placed in the personnel file.  Therefore, how would the sheriff know about the investigation if he was not on the short list?

From the Brady v Maryland case, suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.”

Brady also established rules concerning undisclosed evidence, and sets a “known or should have known” standard regarding truthfulness of testimony.   Brady sets the highest standard against the use of perjured testimony.

The prosecution’s opposition to an evidentiary hearing includes an affidavit from AUSA Williams, and offers that as new evidence to supplement AUSA Williams’ testimony in January for Judge Brack to consider when he rules on this opposition to the motion to dismiss.  In the affidavit, AUSA Williams indicates that he was not sufficiently prepared for the January 28, 2013 evidentiary hearing regarding the motion for a new trial.

AUSA Williams is a supervisor.  He received his subpoena to testify approximately one week prior to being put on the witness stand in January.  Just exactly how long does it take for a seasoned prosecutor to get ready to be sufficiently prepared to answer questions about a witness who should not have been used in the Reese case?  He had more than a week actually.  He knew about Batts prior to the Reese trial ending some six months earlier.  And Batts’ name was mentioned in open court over four weeks before the January hearing.

The “known or should have known” and “constructive knowledge” standard should apply to all of the prosecutors, and hopefully Judge Brack will rule in favor of an evidentiary hearing.

Meanwhile, tomorrow’s evidentiary hearing has been vacated – i.e. cancelled.  When additional information is learned about the impact of the government’s appeal on the judge’s decision for a new trial, it will be posted.

Meanwhile, prayers continue to pour in.  And that is wonderful, but the Reese’s desperately need financial help.  I pray that each one of you who reads this can commit to making a monthly contribution.

Reese Defense Fund, Attention Patricia Arias, First Savings Bank, 520 South Gold, Deming, NM 88030

or http://www.firearmscoalition.org/

 

submitted by Leslie Bronken

 

 

 

 

 

 

 

 

 

 

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