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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA, Plaintiff, vs. RICK REESE, TERRI REESE, and RYIN REESE, Defendants. ) ) ) CR No. 11-2294 RB ) ) ) ) ) ) )

UNITED STATES RESPONSE IN OPPOSITION TO MOTION TO DISMISS WITH PREJUDICE THE FOUR REMAINING COUNTS OF THE INDICTMENT BASED ON BRADY/GIGLIO VIOLATIONS On February 1, 2013, the Court granted Defendants a new trial based on its conclusion that the United States violated Giglio by failing to disclose until after trial impeachment information relating to a witness called in the United States case-in-chief. See Doc. 404. Defendants now have moved for an order dismissing with prejudice the remaining counts of the indictment. See Doc. 419. As explained below, however, Tenth Circuit precedent establishes that dismissal is not an available remedy for a Giglio violation. The most severe sanction a district court in this circuit may impose for a Giglio violation is that which this Court already has imposed granting a new trial. Alternatively, even if the Court disagreed with current Tenth Circuit precedent, there was no act or omission by any member of the United States Attorneys Office (USAO) with any connection to this case that reasonably could justify the extraordinary sanction of dismissal. Finally, the claim in the motion to dismiss that the USAO has engaged in a pattern and practice of suppressing Brady/Giglio information, Doc. 419 at 2, is thoroughly and fundamentally inaccurate. The Court should deny the motion to dismiss and should do so 1

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without granting an evidentiary hearing. Defendants Claim Is Specific and Narrow At the outset, it is crucial for the Court to focus on the narrow legal basis on which the motion to dismiss wholly rests. The caption of the motion makes clear that the relief sought is [b]ased on Brady/Giglio [v]iolations, and the motion in substance relies heavily on Government of Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005), a case that established dismissal as a remedy (in the Third Circuit) for Brady/Giglio violations. Furthermore, the Courts order granting a new trial also was premised solely on the finding of a Brady/Giglio violation. See Doc. 404 (applying the relevant three-prong test for determining such violations). Despite the specificity and narrowness of the issues before the Court, Defendants confuse them by relying on language from cases that address entirely separate doctrines of law. For instance, in pages 2-5 of their motion, Defendants cite repeatedly to United States v. Morrison, 449 U.S. 361 (1981), and assert that Morrison guides trial courts in fashioning remedies for Brady/Giglio violations. See, e.g., Doc. 419 at 3 (Where the government has violated its Brady obligations, the court must identify and then neutralize the taint by tailoring relief appropriate in the circumstance. United States v. Morrison, 449 U.S. 361, 364 (1981).). But Morrison says nothing about what a court should do when it has found a Brady/Giglio violation, for it was a case that dealt instead with the remedy for a violation of the Sixth Amendment right to counsel. Similarly, the motion to dismiss refers the Court to Arizona v. Youngblood, 488 U.S. 51 (1988), for guidance in fashioning a remedy for a Brady/Giglio violation. See Doc. 419 at 3. Defendants go so far as to include what they represent to be a quotation from Youngblood: The inquiry into bad faith turns on the governments knowledge of the exculpatory value of the evidence at the time it was lost or destroyed [or suppressed]. Youngblood, 488 U.S. at 57. 2

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Doc. 419 at 3 (brackets in original). This re-packaged excerpt, however, bears the capacity to mislead the Court as to the legal proposition for which Youngblood stands. The actual quotation used the word polices rather than governments. Youngblood, 488 U.S. at 56-57 n. This mis-quotation largely would be innocuous were it not for the insertion by Defendants of the bracketed phrase or suppressed into their quotation. The combined effect of the two liberties that Defendants have taken with this excerpt renders it misinformative in the extreme. As the Court knows, Youngblood dealt only with what legal standard a court should apply when the police have lost or destroyed potentially exculpatory evidence. The majority opinion in Youngblood took pains to point out that its analysis was different from that employed in the context of a Brady violation. See 488 U.S. at 55-56 (There is no question but that the State complied with Brady and Agurs here. . . . If Respondent is to prevail on federal constitutional grounds, then, it must be because of some constitutional duty imposed over and above that imposed by such cases as Brady and Agurs.). That Defendants nonetheless have chosen to misshape and disfigure the holding of Youngblood to make it seem as if it applies to a Brady violation is inexcusable. There is still more. The motion to dismiss references a courts power under Federal Rule of Criminal Procedure 16(d)(2)(D) to enter any order that is just under the circumstances. See Doc. 419 at 2-3. That provision, of course, is triggered only by a failure to comply with Rule 16 itself. The Court has not found that the government violated Rule 16, nor have the Defendants alleged such a violation. And Defendants citations to United States v. Leon, 468 U.S. 897 (1984), Franks v. Delaware, 438 U.S. 154 (1978), and Kyles v. Whitley, 514 U.S. 419 (1995) are of no assistance to the Court because none of them analyzed the proper remedy for a Brady/Giglio violation. 3

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Properly understood, the only issues presented in the instant motion are whether the Court is permitted to dismiss an indictment as a sanction for a Brady/Giglio violation and, if so, whether there was government conduct so egregious and extreme as to merit the ultimate sanction. Both queries are answerable only in the negative. Controlling Legal Standard Once the Court has waded through citations to inapposite doctrines of law, it likely will arrive at the single relevant decision on which Defendants have hinged their entire motion: Government of Virgin Islands v. Fahie, 419 F.3d 249, 256 (3d Cir. 2005). But in so doing, Defendants have failed to bring to the Courts attention the standard that our own Circuit applies when fashioning remedies for Brady/Giglio violations. This failure is at least curious, considering that the Tenth Circuits leading case is discussed in Fahie. In United States v. Davis, the Tenth Circuit reasoned that a violation of due process under Brady does not entitle a defendant to an acquittal, but only to a new trial in which the convicted defendant has access to the wrongfully withheld evidence. 578 F.2d 277, 280 (10th Cir. 1978). The Third Circuit in Fahie recognized that the Tenth Circuit has remarked or implied that no harsher sanction than a new trial is ever available to remedy a Brady violation. Fahie, 419 F.3d at 254 (citing Davis).1 Indeed, so far as the government is aware, the Tenth Circuit has never held dismissal to be a proper remedy for a Brady/Giglio violation.2

Oddly, Fahie also cites to the Tenth Circuit to support the counter-proposition that [other circuits], however, have held or implied that dismissal may sometimes be appropriate. 419 F.3d at 254 (citing United States v. Fletcher, 801 F.2d 1222 (10th Cir. 1986)). This cite is likely mistaken, as Fletcher involved an analysis of sanctions for the loss of potentially exculpatory evidence under California v. Trombetta, 467 U.S. 479 (1984), and not for a classic Brady/Giglio violation as in Davis. United States v. Dennison, 891 F.2d 255 (10th Cir. 1989) is not to the contrary. In Dennison, the district court dismissed an indictment during trial as a sanction for what it
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The reasoning from Davis, therefore, that the most an invocation of Brady could accomplish would be the ordering of a new trial in which the withheld information is fully disclosed, 578 F.2d at 280 (emphasis added), finds support in at least three other circuits. See DiSimone v. Phillips, 518 F.3d 124, 127 (2d Cir. 2008) (A Brady violation, unlike the due process violation in Blackledge [v. Perry, 417 U.S. 21, 94 (1974) (relating to vindictive prosecution following defendants successful appeal)] is remediable upon a future trial.); United States v. Mitchell, No. 97-4793, 1998 WL 709269, at *6 (4th Cir. Oct. 6, 1998) (The proper remedy for a Brady violation is another trial, not a dismissal of the charges.); United States v. Evans, 888 F.2d 891, 897 n.5 (D.C. Cir. 1989) (Our research indicates, however, that where a Brady violation requires a remedy, relief is afforded by mistrial rather than dismissal.); but see United States v. Kohring, 637 F.3d 895 (9th Cir. 2011) (implying that dismissal for Brady violation is within trial courts discretion); Pardo v. Secy Fla. Dept of Corr., 587 F.3d 1093 (11th Cir. 2009) (same); United States v. Babiar, 390 F.3d 598 (8th Cir. 2004) (same); United States v. Kiner, No. 3:10-CR-87 JD, 2012 WL 175398, at *3 (N.D. Ind. Jan. 20, 2012) ([W]hile the dismissal of an indictment is in theory available to sanction outrageous government misconduct, to this courts knowledge the Seventh Circuit has never seen a case that warrants such an extreme step.).

considered the prosecutors wholesale and ongoing and bad faith violations of the courts discovery orders. 891 F.2d at 258. On the governments appeal, the Tenth Circuit reversed, holding that the district court abused its discretion in invoking its supervisory power to impose the ultimate sanction of dismissal to redress the violation of its discovery orders. Id. at 260. Because of the posture of the case, the Tenth Circuit had no occasion to consider Davis or its holding that dismissal is not an available remedy for a Brady/Giglio violation. Indeed, the opinion in Dennison does not mention Davis at all. Importantly, the Tenth Circuit in Dennison emphasized that dismissal is an exceedingly rare sanction and that the court was unaware of any case where it had "upheld a district court's dismissal of an indictment because of prosecutorial misconduct" or had even "reviewed a dismissal of an indictment by a district court on the basis of a violation by government counsel of discovery orders." Id.

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As acknowledged in the Fahie decision, the Supreme Court has not directly addressed when, if ever, dismissal with prejudice is a proper response to a Brady violation. Fahie, 419 F.3d at 252. The Tenth Circuits current approach set forth in Davis accords with a strict reading in adherence to the principle of expressio unius est exclusio alterius of the leading Supreme Court cases in this arena. See Giglio, 405 U.S. at 153 ([Brady] held that suppression of material evidence justifies a new trial irrespective of the good faith or bad faith of the prosecution. (emphasis added)); United States v. Bagley, 473 U.S. 667, 692 (1985) (In this case, as in Giglio, a new trial is in order. (emphasis added)). Accordingly, the Tenth Circuits holding in Davis remains on solid ground and this Court should not consider dismissal as a remedy for the Giglio violation the Court has found. Further, the Court should refuse to allow Defendants an evidentiary hearing to adduce evidence in support of a remedy that as a matter of law is not available to them. Even Under Outside Circuit Law, Dismissal Requires Egregious and Extreme Conduct Even if this Court were to conclude that the sanction of dismissal is available in the Tenth Circuit for a Brady/Giglio violation, the existing case law from other circuits highlights the exceedingly high burden Defendants shoulder and the extraordinarily rare circumstances under which a Brady/Giglio violation would warrant dismissal. Fahie itself refused to impose the ultimate sanction and noted that, as of 2005, its research disclose[d] no case where a federal appellate court upheld dismissal with prejudice as a remedy for a Brady violation. Fahie, 419 F.3d at 254 n.6. The governments research in preparation for this response has revealed only one such case since Fahie was decided. See United States v. Chapman, 524 F.3d 1073 (9th Cir. 2008) (affirming the district courts decision to dismiss with prejudice on the basis of Brady/Giglio violations). 6

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The test to determine whether dismissal is warranted for a Brady/Giglio violation differs among the circuits that allow it. For instance, the Third Circuit states that [w]hile retrial is normally the most severe sanction available for a Brady violation, where a defendant can show both willful misconduct by the government, and prejudice, dismissal may be proper. Fahie, 419 F.3d at 255 (emphasis added). The Eighth Circuit loosely tracks that two-pronged approach, stating that dismissal is proper if the defendant demonstrates flagrant misconduct and substantial prejudice. Babiar, 390 F.3d at 600. But the two definitions of prejudice differ in an important way. Fahie appears to merge the prejudice (or materiality) prong of the Brady test with the prejudice required by its dismissal test. Fahie, 419 F.3d at 255 n.7 (noting that [b]ecause a new trial cures completely any prejudice to a defendant from a Brady violation, prejudice alone cannot justify dismissal.). Babiar, on the other hand, requires some form of continuing prejudice to the defendant. See 390 F.3d at 600 (In this context, prejudice means prejudice to an individuals ability to present a defense and receive a fair trial, which it noted was absent because [t]he newly discovered evidence was provided to Babiar before the second trial, and [he] used this evidence in presenting his defense.). For its part, the Ninth Circuit appears to jettison the prejudice requirement altogether, stating that [a]lthough the appropriate remedy will usually be a new trial . . . a district court may dismiss the indictment when the prosecutions actions rise, as they did here, to the level of flagrant prosecutorial misconduct. Chapman, 524 F.3d at 1086. But even under the most liberal of these tests, the circumstances of this case fall well beneath those warranting dismissal. A defendant who seeks a new trial based on an alleged Brady violation must show by a preponderance of the evidence that (1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and (3) the evidence was 7

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material. United States v. Ford, 550 F.3d 975, 981 (10th Cir. 2008) (quoting United States v. Velarde, 485 F.3d 553, 558 (10th Cir. 2007)). To warrant dismissal with prejudice, rather than merely a new trial, Defendants at a minimum bear the additional burden of showing the suppression was due to willful or flagrant prosecutorial misconduct. Fahie, 419 F.3d at 255; Chapman, 524 F.3d at 1086. Willful or flagrant prosecutorial misconduct can be shown by demonstrating the suppression was intentional, knowing, or reckless. Fahie, 419 F.3d at 256. Mere negligent, or even grossly negligent conduct is not enough. United States v. Kearns, 5 F.3d 1251, 1255 (9th Cir. 1993). The two cases located by the United States in which a federal court dismissed an indictment for a Brady/Giglio violation (or affirmed a lower court that did) illustrate the egregiousness with which the prosecutor must act to warrant the ultimate sanction of dismissal. In Chapman, the Ninth Circuit ruled that the failure to produce documents and to record what had or had not been disclosed, along with the affirmative misrepresentations to the court of full compliance, support[ed] the district courts finding of flagrant prosecutorial misconduct. 524 F.3d at 1086. The government in Chapman failed to disclose 650 pages . . . consist[ing] of rap sheets, plea agreements, cooperation agreements, and other information relating to numerous government witnesses, including at least three important witnesses whose testimony was already complete. Id. at 1079. The trial record was further marred by the AUSAs unrepentant attitude, repeated misrepresentations to the court, and failure to maintain any record of the close to 400,000 pages of documents he claimed to have disclosed. Id. at 1078, 1089. Similarly, in United States v. Dollar, 25 F.Supp.2d 1320 (N.D. Ala. 1998), the district court dismissed an indictment with prejudice on the basis of Brady violations. There, the governments general conduct was characterized as to disclose as little as possible, and as late 8

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as possible even to the point of a post-trial Brady disclosure. 25 F.Supp.2d at 1332. Specifically, the government failed to disclose exculpatory ATF reports and the prior inconsistent statements of at least six of the governments key witnesses. Id. ([A]fter having assured the court that it had produced all Brady materials, the United States continued to withhold materials which clearly and directly contradicted the direct testimony of several of its most important witnesses.). What made the conduct in Chapman and Dollar flagrant and distinguishes it from the conduct at issue here was the continuing nature of the Brady violations, the unrepentant attitude of the prosecutors, and the sheer number of documents and witnesses involved. On the other hand, Fahie and Kohring are illustrative of the range of cases involving Brady/Giglio violations that do not warrant dismissal. In Fahie, the prosecutor violated Brady by failing to disclose an ATF firearms trace summary to a defendant charged with possessing an unlicensed firearm. 419 F.3d at 250-51. The Third Circuit held dismissal to be improper, despite the prosecutor initially misrepresenting her disclosure to the court and additionally failing to disclose the results of an inconclusive fingerprint analysis prior to a suppression hearing. Id. at 255-56. Though the court characterized the prosecutor as misguided and disorganized, it could not conclude that her conduct was deliberate or reckless. Id. The ruling was supported by the notion that in all jurisdictions, dismissal with prejudice is in practice a rare sanction for any constitutional violation. Id. at 254. The prosecutors actions in Kohring were markedly more egregious than the circumstances in either Fahie or the instant case, and yet the Ninth Circuit still held dismissal to be too extreme of a remedy. 637 F.3d at 913-14. Despite the prosecutions failure to disclose several thousand pages of material documents including FBI reports, memoranda, and police 9

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reports that could have been used to impeach government witnesses the Court held that it did not have sufficient evidence to conclude the prosecution acted flagrantly, willfully, and in bad faith. Id. (quoting Chapman, 524 F.3d at 1085). The undisclosed information purportedly contained voluminous and damning impeachment material relevant to the primary cooperating co-defendant who testified as a government witness. Id. at 912. And yet despite those significant transgressions and the resulting prejudice, the Court observed that the appropriate remedy for a Brady/Giglio violation will usually be a new trial[,] and declared [t]hat is the case here. Id. (internal quotations and citation omitted). The Circumstances of this Case Do Not Warrant Dismissal The United States urges the Court to follow Davis, deny the motion, and refuse the request for an evidentiary hearing. In the interest of more fully informing the Court of the circumstances that combined to result in its inadvertent, unfortunate, and regrettable failure to disclose the information in question, the United States proffers the following additional information. Following the evidentiary hearing on the motion for new trial and the Courts order granting the same, AUSA Richard Williams and others searched their digital and hard-copy files for any additional relevant information. As set forth in his affidavit and the exhibits attached thereto, AUSA Williams has assembled information that sheds new light on important parts of his previous testimony. For example, in August 2010, the USAO was advised by a federal agent working with the FBIs public corruption task force investigating the Luna County matters that its focus had been refined down to two individuals, neither of whom were Deputy Batts. See

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Atch 1 (Williams Affidavit) at 4.3 A document memorializing a review of pending cases conducted in December 2010 by AUSA Williams and AUSA Teresa Raymond, to whom the investigation was assigned, reflects that the USAOs entire investigation was designated to be closed. See id. at 5. Electronic mail exchanges between then-Branch Chief John Crews and Supervisory AUSA Alfred Perez in May 2011 further confirm that the USAOs investigative file on this matter was to be closed. See id. at 6-7.4 As the Court can tell from Exhibit 6 to the affidavit, certain of the cases or matters assigned to AUSA Raymond were to be closed (including the file in question) and the rest were reassigned to other AUSAs. Despite the attorneys decision to close the file in question, the file somehow never was administratively closed. This oversight resulted in the file technically remaining open in the USAOs LIONS electronic case tracking database. When AUSA Raymond left the office in June 2011, the file was not reassigned to another AUSA because the branch chief and the relevant supervisor believed it was being closed. For its part, the hard-copy file was piled in with a series of files that were to be but apparently never were administratively closed. This explains why the file sat unassigned and unattended until the closing arguments were made in this case on July 31, 2012. At worst, this is a story about inadvertent negligence for which the

Because this response will be filed publicly, some of the exhibits attached to AUSA Williams affidavit have been redacted in certain respects for law enforcement or privacy reasons. In a separate ex parte filing, the United States will be submitting to the Court for inspection in camera copies of the exhibits that have had certain redactions removed to reveal information that may be helpful to the Court in deciding the instant motion. The United States intends to serve on the defense a copy of its separate filing and the partially-unredacted exhibits provided that the Court orders them treated in accordance with the protective order previously entered in this case. These e-mail exchanges also included AUSA Randy Castellano as a recipient. AUSA Castellano served as an acting supervisor while AUSA Alfred Perez was on military reserve duty from mid-March to mid-May 2011. AUSA Perez replaced AUSA John Crews as the branch office chief in June 2011, at which time AUSA Castellano officially became a supervisory AUSA.
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USAO accepts complete responsibility. As the Court knows from having received during the evidentiary hearing (at defense counsels request, see Tr. at 33-34) the prosecution memorandum prepared by the original AUSAs on this case, Deputy Batts is mentioned in a single paragraph on one page of a 25-page memorandum. Importantly, his name is not found in the list of witnesses on page 2 of the memorandum. Moreover, despite its inclusion of dozens of overt acts, the indictment (that accompanied the prosecution memorandum during the internal screening process) makes no reference to Batts meeting with Terri Reese on August 30, 2010, or the content of their conversation. Consequently, it was not plain to the supervisors conducting the screening process that Batts would be a government witness in this case. Given the benefit of hindsight, the failure to follow up on that possibility could be considered to be negligent, but nothing more sinister than that. Two other circumstances are worthy of note: (1) the trial team in this case was not privy to the Batts-related electronic mail that circulated among the supervisors on May 30, July 13, and July 19, 2012; and (2) pursuant to the USAOs prevailing practice at the time, the supervisory team did not review the list of witnesses (beyond the list in the prosecution memorandum reviewed almost a year earlier) the government expected to call at trial. In retrospect, the government recognizes that it should have ensured that the AUSAs assigned to the case were alerted to the existence of potential Giglio information relating to Batts. And there could have been a way to do that without jeopardizing whatever remained of an ongoing investigation. Similarly, there was nothing that prevented the supervisors from demanding to see a witness list for this trial, or any other trial for that matter. But the fact remains that those steps, however reasonable they seem with the benefit of hindsight, were not taken. The failure to take 12

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them, though, does not constitute an intentional, willful, or reckless violation of Giglio in this case. Until closing arguments, the supervisory team did not associate Deputy Batts as a witness called by the government in this case. Whether they should have done so, whether there were sufficient indicia that earlier should have suggested the same, or whether someone else in their shoes might have made that association sooner is not the question. As soon as they made the connection, they took immediate action to commence the process of locating and assessing the potential Giglio material, analyzing its legal import, and determining whether and how to disclose it to the Court and to defense counsel.5 Although the foregoing examples highlight what USAO personnel did not do, the United States urges the Court to evaluate what our personnel did do in attempting to comply with Giglio. Our trial team requested that Giglio inquiries be sent to the employing agencies of law enforcement personnel. That was done with Deputy Batts and a letter confirming the existence of no such information was received from Luna County prior to trial. In addition, the trial team asked Batts (and all other witnesses) a series of questions designed to elicit any information that could qualify for disclosure under Giglio. At least under the USAOs practice in effect last summer, the trial team had done everything they were supposed to do to comply with Giglio. And, as referenced above, as soon as the Giglio issue was recognized in this case, USAO personnel acted on it. It bears emphasizing that the Giglio information that prompted the Court to grant a new trial was brought to the Courts attention by the government on its own. It was not found by the defense nor any third party.
As recognized by the USAOs Criminal Division Chief at the December 18th hearing on the motion for release, the post-trial delay in disclosing the information was inexcusably excessive. See Tr. of Hrg on Mot. for Release Pending Sentencing at 30-31.
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Additional evidence of the United States good faith in this matter is shown by the corrective measures the USAO has implemented directly in response to this case. Well before the Court even granted a new trial in this case, the USAO put into place three separate mechanisms that together are designed to ensure that the extraordinary scenario that played out in this case never again recurs. We have reacted to the Courts understandable frustration by strengthening our institutional processes to do the best we can to ensure 100% compliance with Brady/Giglio going forward. And we have done so even though we maintain our respectful disagreement with the Court about whether the information we did not disclose until after trial was sufficiently material under a Brady/Giglio analysis to warrant a new trial.6 We accept
complete responsibility for our failure to disclose the impeachment information before trial, which deprived the parties and the Court of the opportunity to litigate and decide its admissibility via pretrial motion. That undeniably is how this matter should have been handled. There Is No Pattern or Practice of Brady/Giglio Violations by the USAO Finally, Defendants contend that a pattern of practice at the [USAO] would be established in which the Government will have been found to play dirty. Doc. 419 at 5. To support this sensational claim, Defendants muster a grand total of three cases, one of which cited a small number of other cases from within the district. Examined separately and collectively, the cases cited by Defendants do not come close to establishing a pattern of any kind, much less a pattern of intentionally, willfully, or recklessly violating Brady/Giglio. And apart from being factually unsupported and unsupportable, this claim ignores the manifest and abundant evidence that proves how seriously the USAO considers its Brady/Giglio obligations, and how faithfully it seeks to

To that end, the United States advises the Court and Defendants that it today will be filing a Notice of Appeal of the Courts order granting a new trial.

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discharge them. Defendants first cite to United States v. Whittaker and Reynolds, CR 08-1098 RB. See Doc. 419 at 5-6. In that case, following a trial at which both defendants were convicted, the Court granted them new trials on the basis of newly-discovered evidence and inadvertent Giglio violations. See Doc. 114 (order granting new trial to Whittaker) and 160 (Mem. Op. and Order granting new trial to Reynolds). In so doing, however, the Court found that neither the AUSA nor the case agent knew before trial of the existence of the Giglio information arising from a federal drug investigation being conducted in Iowa. See Doc. 160 at 3-4 (The Court fully credits the representations of Assistant United States Attorney Maria Armijo that she and [the DEA case agent] had no knowledge of the Iowa investigation until well after the trial. The Court emphasizes that it maintains complete confidence in the professional integrity of the entire prosecution team.); see also Doc. 114 at 5 (similar statements by the Court). Both defendants subsequently pleaded guilty to felony crimes. Defendants cite to United States v. Varela, CR 06-1022 RB, stating that a new trial was again ordered for the Governments failure to turn over Giglio information which involved a law enforcement witness. Doc. 419 at 6. Defendants use of the term law enforcement witness mischaracterizes the situation. The law enforcement officer to whom the information related (who was not Deputy Batts) was never called as a witness in the Varela trial. For that reason, the United States believed that its decision not to disclose impeachment information about a witness who does not testify was completely in line with the controlling case of United States v. Green, 178 F.3d 1099, 1109 (10th Cir. 1998). Despite granting a mistrial, the Court made no findings

that the prosecutors actions were an intentional, willful, or reckless violation of Brady/Giglio. The defendant later was re-tried and convicted on a gun charge (and sentenced to ten years in

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prison) after the United States voluntarily had dismissed certain drug-related counts. Lastly, Defendants cite to United States v. Ahrensfield, CR 09-3457 JAP. See Doc. 419 at 6. Their selective references to that litigation amount to something less than full disclosure. To begin, Defendants assert that Judge Parker ultimately found that had there been disclosure the outcome would amount to a reasonable probability of having been different. Id. This is exactly the opposite of what Judge Parker found for, had he done so, he would have granted rather than denied Ahrensfields Brady motion. Judge Parker concluded that the information in question was not material and probably would not have led to a different outcome. See Doc. 170 (Mem. Op. and Order Denying Brady Motion). In addition to misstating Judge Parkers decision, Defendants do not bring to this Courts attention that Judge Parker specifically found that the governments failure to disclose was unintentional and that the prosecutor had not acted in bad faith. See id. at 12. Defendants also have omitted to note that Ahrensfields counsel was revealed to have known for seven months before the re-trial of the evidence he claimed to have been ambushed with during trial. See Docs. 180 (governments motion to reconsider), 190 (defendants response), and 193 (governments reply). Judge Parker exercised his discretion not to reconsider a ruling that only would have strengthened his decision in favor of the United States. See Doc. 196. The Tenth Circuit, however, considered the fact that defense counsel knew of the evidence before trial to be important, mentioning it twice in its opinion affirming the denial of the Brady claim. See United States v. Ahrensfield, 698 F.3d 1310, 1317 n.3, 1321 (10th Cir. 2012).7 The

Defendants attempt in cursory fashion to incorporate by reference a series of cases that Ahrensfield cited in his Brady motion in furtherance of his assertion that the AUSA prosecuting Ahrensfield had engaged in a pattern of misconduct. See Doc. 419 at 6 (citing Doc. 125 in CR 093457 JAP). Only two of those cases are the least bit relevant, however, because they are the only two in which a court actually found a Brady/Giglio violation. In United States v. Monclova, CR

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Tenth Circuit held that the United States had not committed a Brady violation because the evidence about which Ahrensfield had complained was not material. Id. at 1321-22. To recap, Defendants have urged this Court to derive a pattern of practice by this USAO of violating Brady/Giglio on the basis of four cases in which a federal court found such a violation. Whatever else can be said of such a claim or the motivations underlying it, such a claim should fail as a matter of law. The USAOs electronic file database shows that just for calendar years 2000-2012 the USAO charged a total of 32,170 felony cases, of which 365 proceeded to jury trial. If the Court were to assume conservatively that the United States called an average of ten witnesses during each of these trials, that would mean that the USAO would have had 3,650 witnesses for whom it would be deemed responsible under the Brady/Giglio doctrine. The examples relied on by Defendants represent such an infinitesimal percentage of our trial practice for the last thirteen years as to be statistically meaningless. The United States respectfully suggests that the only pattern and practice to be derived from the USAOs performance during this time is one of diligent and faithful commitment to complying with Brady/Giglio, not the reverse. This USAO, just like its fellow USAOs in the other 93 districts, receives and conducts intensive training on Brady/Giglio matters. The Department of Justice mandates that every AUSA who prosecutes criminal cases receives annual training on his/her responsibilities in this regard. For its part, the USAO in this district goes above and beyond the Departments

99-1026 LH, the district court in 2000 granted a new trial and the defendant later pleaded guilty. In United States v. Torres, 569 F.3d 1277 (10th Cir. 2009), the Tenth Circuit reversed the denial of a motion for new trial. Importantly, there was no finding in Torres either by the district court or the court of appeals that the Brady/Giglio violation was intentional, willful, or reckless. Without minimizing those violations or shirking responsibility for them, the United States contends that they do not comprise a pattern of intentionally, willfully, or recklessly violating Brady/Giglio.

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requirements by emphasizing Brady/Giglio compliance at office-wide semi-annual CLE seminars, monthly training sessions, and periodic electronic mail case updates. And we continually revise our procedures to react to and keep pace with court rulings and Department policy changes. Although our efforts have not yielded a perfect record of compliance, we remain staunchly committed to ensuring that we have done everything required of us and more to ensure that the defendants we prosecute receive the fair trial to which they are constitutionally entitled. For the foregoing reasons, the United States respectfully requests that the Court deny the motion to dismiss without an evidentiary hearing. Respectfully submitted: KENNETH J. GONZALES United States Attorney Filed Electronically March 4, 2013 MARIA Y. ARMIJO AARON O. JORDAN GREGORY J. FOURATT Assistant U.S. Attorneys 555 S. Telshor Blvd., #300 Las Cruces, New Mexico 88001-8646 (575) 522-2304

I HEREBY CERTIFY that on March 4, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification to all counsel of record. /s/ GREGORY J. FOURATT Assistant U.S. Attorney

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