US v. Francisco Colorado Cessa (5th Cir., 6/9/17): Excellent Brady Decision re: Gov’t’s Failure to Disclose 302’s.

A very nice and important 5th Circuit opinion by the panel of Judges Higginson (author), Prado, and Costa. This defendant had the misfortune of getting connected with Los Zetas, a Mexican drug cartel. The government alleged that Colorado was involved in money-laundering the cartel’s money through purchases of quarter houses (a type of racehorse).  Colorado was a businessman from Mexico who happened to have a relationship with a Zeta member who was subsequently murdered. The government first tried Colorado in 2013 and he was convicted.  That conviction was reversed due to a faulty jury instruction.  The federal Grand Jury then came back with a superseding indictment, and he was tried again in 2015 and once again convicted.  He was sentenced to 200 months in prison, along with forfeiture of his personal property and a $60 million money judgment. Colorado raised a few claims, but the Brady claim has clearly received the most traction from the Court.

For those short on time, the takeaways are these:

1)         In conducting an in-camera review of Brady material, judges have a duty to assess for both exculpatory and impeaching material;

2)         Judges also need to assess the materials in light of the defendant’s cross-     examination, and with an eye towards all of the evidence presented in the case      (and not just its relevance to the government’s direct examination of that witness);

3)         If the government’s actions impede a defendant’s possible raising of any    affirmative defense, that evidence is going to be considered Brady;

4)         The Fifth Circuit will be watching this case closely going forward on the remand.

For those wanting more details, read on!

Colorado argued that the government erred under Brady and Giglio[1] by failing to order the government to turn over interviews related to Carlos Nayen, a cooperating witness.  Nayen had been interviewed by government agents nine times before trial.  In connection with these interviews, the FBI agents produced 302’s (official interview memoranda).  Before Nayen testified at trial, Colorado moved the court to produce “all FBI-302s, DEA-6s, and similar interview memoranda” related to Nayen to the court for an in-camera review.  The district court granted the motion.

The court reviewed the material and concluded that they contained “nothing helpful” to the defense and denied Colorado access to the materials.  On appeal, the 5th Circuit granted appellate counsel access to the materials.  On appeal, Colorado argued that those materials contained material, exculpatory and impeaching evidence in violation of Brady and Giglio.

Under Brady v. Maryland, a defendant due process rights are violated when the prosecution suppresses evidence that is exculpatory.  373 U.S. 83, 87 (1963).  the principal also applies to evidence that could be used to impeach prosecution witnesses.  Giglio v. United States, 405 U.S. 150, 152-54 (1972).  “To establish a Brady violation, a defendant must show: (1) the evidence that issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was surprised by the prosecution; and (3) the evidence was material.”  United States v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016).  “Evidence is material if there is a reasonable probability that, have the evidence been disclosed to the defense, the result of the preceding would have been different.”  Id. at 451.

Here, the district court judge only assessed whether the interview memoranda was favorable to Colorado (and not whether it was relevant for impeachment). The Court also faulted the district court judge for making this assessment immediately following Nayen’s direct examination. The court notes that much of what it focuses on in assessing materiality is how the suppressed evidence relates to cross examination. The Court also highlights that a proper Brady analysis depends on a full review of the trial evidence.

The Court assessed the 302’s and found that some of the statements that the government did not disclose were, in fact, exculpatory. For example, Colorado’s defense at trial was that he bought horses for the Zeta’s using his own money. He explained that he spent millions of dollars on the horses because he feared the cartel.  Nayen’s statements in the 302’s supported both of these points because he told the government that Colorado only gave horses to two particular Zeta numbers as gifts.  Nayen also described Colorado as being in a constant state of anxiety after meeting with another particular Zeta member.

The government argued that this material was not exculpatory because it did not go to the heart of Colorado’s defense. After detailing Colorado’s defense at trial in this opinion, the Court held that denying defendants’ access to evidence they are entitled to under Brady can significantly change how their attorneys’ present the defense for their clients.  For this reason, it found, courts routinely find that evidence supporting an affirmative defense is exculpatory, and, therefore, is favorable evidence under Brady.  See, e.g., Mahler v. Kaylo, 537 F.3d 494, 504 (5th Cir. 2008) (finding Brady error when the prosecution withheld evidence that supported self-defense). In other words, the government doesn’t get to hide evidence from you, and then argue it’s not Brady evidence because you didn’t mount a particular defense.  If it supports any defense, then it’s properly considered Brady.

In addition to being favorable, the Court also found that some of the statements contained in the interviews would have helped Colorado impeach this witness. Essentially this witness testified differently from the statements he gave to the government. The 5th Circuit did not hesitate including the district court clearly erred in concluding that the 302’s were not favorable to Colorado.

The Fifth Circuit remanded the case back to the district court because there were interview notes taken in connection with the 302’s that have not, up until this point, been adequately inspected by the government. Also, the 302’s where transcribed long after the interviews were conducted. The court wanted to give the district court the first opportunity to assess these facts in light of its remand.  The Court did not really leave any question that it would be closely monitoring this case going forward.

An excellent opinion on this issue, and helpful for practitioners in preserving their records for Brady claims.  Make sure your judge is assessing everything that should be assessed, and that the assessment is being conducted in light of all of the relevant considerations.

[1]           Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972). These two cases, read together, secure that fundamental right all defendants should be aware of, that the government is obliged to provide material evidence to the defense that is exculpatory or impeaching.