388 F.3d 471 (5th Cir. 2004), 03-40657, United States v. Sipe

Docket Nº:03-40657.
Citation:388 F.3d 471
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. David SIPE, Defendant-Appellee.
Case Date:October 15, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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388 F.3d 471 (5th Cir. 2004)

UNITED STATES of America, Plaintiff-Appellant,


David SIPE, Defendant-Appellee.

No. 03-40657.

United States Court of Appeals, Fifth Circuit

October 15, 2004

Page 472

Jennifer Levin (argued), U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, David Kevin Flynn, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellant.

Nancy M. Simonson (argued), Canales & Simonson, Corpus Christi, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, HIGGINBOTHAM and SMITH, Circuit Judges.


Border Patrol Agent David Sipe was convicted after a jury trial of using excessive force and causing bodily injury in the arrest of Jose Guevara, a Mexican national attempting to enter the United States illegally. Sipe sought a new trial, complaining that the prosecution's misrepresentations and nondisclosures rendered the trial unfair. In particular, Sipe pointed to a false representation by the prosecution regarding the extent of the benefits provided by the government to three illegal aliens who testified at trial, as well as the prosecution's

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failure to produce exculpatory evidence in violation of its obligations under Brady v. Maryland. 1 In two distinct rulings the district court agreed, granting Sipe's motion for a new trial. The district court pointed to the cumulative effect of the prosecution errors and rested its ruling on the "interest of justice" standard of Rule 33 of the Federal Rules of Criminal Procedure and the court's finding that the prosecution committed numerous Brady violations.

We hold that the district court did not err in granting a new trial. Although both the government and the accused make strong arguments, we ultimately agree with the district judge who presided over this five-day trial that the prosecution violated its Brady duty by suppressing favorable material evidence, thereby undermining confidence in the jury's verdict. We affirm the grant of a new trial.



On April 5, 2000, Sipe and his partner, Lorraine Gonzales, were patrolling the border between the United States and Mexico, an area near Penitas, Texas. Two other BPAs, Christopher Cruce and James Smith, were also covering the same general area. At approximately 4:00 a.m., both pairs of agents were alerted that a sensor alarm had been triggered in the area, and they proceeded to investigate. A second sensor was triggered approximately twenty minutes later. A group of twelve to fifteen aliens who were attempting to move through the area had triggered the sensors. One of the aliens was Jose Guevara.

Because it was still dark, the agents, following standard practice, turned their large hand-held flashlights on the aliens, "lighting them up," while shouting commands in Spanish to stop and surrender. The aliens instead scattered and ran in various directions, although most quickly stopped, waiting to be taken into custody. Guevara and at least two others, however, fled to the arrizo--an area of heavy reeds that were both dense and taller than the aliens and agents. Crouching on his knees in the reeds, Guevara remained motionless for approximately two minutes before Sipe discovered him.

What happened next is disputed. The other two aliens hiding in the reeds, Nehemias Diaz and Evarado Sanchez, became government witnesses, but only with substantial benefits. 2 According to their story, Sipe struck Guevara with his flashlight on the back of the head. They testified that Guevara did not resist or yell out and that his scalp was cut by one of the blows. Sanchez claimed that he saw Guevara squatting alone and motionless just before Sipe struck Guevara at least twice with a flashlight and that Guevara was bleeding after the blows. Diaz, who was slightly farther away from Sanchez, claims to have seen Sipe swing his flashlight three times, striking something in the reeds.

Agent Cruce headed into the brush to assist Sipe. When Cruce was a few feet away from Sipe, he saw Sipe on top of Guevara, who was lying on the ground face down and was not struggling. Another of the agents, Agent Smith, could not see Sipe but heard him say words like "is that enough" or "have you had enough." Cruce heard movement in the brush nearby and, suspecting more aliens were hiding there, called out for them to stand up. 3 Sanchez

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and Diaz complied. Sipe--saying nothing about a possible injury to Guevara--offered to escort Sanchez and Diaz to the van.

When Sipe left, Cruce and Smith found Guevara kneeling, holding the back of his head with his right hand. He was bleeding from a cut in his scalp. Smith ordered Guevara to stand up, but Guevara did not respond immediately. Rather, he appeared to have the dry heaves. 4 Cruce yelled for Sipe to return to the area. 5

Sipe reached BPA Gonzales with Sanchez and Diaz just before Cruce called for him. According to Gonzales, Sipe appeared calm and made no mention of any confrontation with Guevara. When Sipe returned to the brush where he had encountered Guevara, Sipe did not appear to be aware that Guevara was injured. Sipe told Cruce and Smith that he hit Guevara's leg with his flashlight because Guevara was running away from him, and that he used force to protect himself from a possible assault with a knife or other weapon when Guevara resisted.

Guevara walked to the Border Patrol vehicle. His scalp was bleeding and he was angry, refusing the offer of aid by Sipe and other agents. Sipe told Gonzales, who was at the vehicle with other aliens, that he hit Guevara both in the hip and in the head. A short time later, Guevara was taken to a doctor to have his cut sutured.

The following day, the BPA assigned Agent Garcia to work with Sipe. Sipe told Garcia that he hit an alien the night before in an effort to slow him, striking him with his flashlight on his head, the part of his body closest to him. When he was on the alien's back, he hit the alien again because the alien would not give up his hands and was resistant and uncooperative. Garcia said Sipe did not appear upset about the incident. Rather, he did not understand why he was being investigated.


On November 24, 2000, Sipe was indicted on one count of violating 18 U.S.C.§ 242 by using excessive force. Before trial, he filed motions seeking the production of exculpatory and mitigating evidence. 6 In particular, he asked for (1) the criminal records of any witnesses in the case; (2) what benefits the government had given the aliens; (3) the names of persons interviewed by the government; and (4) all exculpatory and impeaching Brady and Rule 16 evidence. The government complied by producing a number of items of evidence, including Cruce's grand jury testimony, in which Cruce stated under

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questioning that he did not dislike Sipe. The United States also advised that it was unaware of any criminal convictions of any witnesses to be called at trial. Finally, the government informed Sipe that the three testifying aliens--Diaz, Guevara, and Sanchez--had been allowed to remain and work in the country pending trial, but "no other promises or advantages" had been given.

The case proceeded to trial on March 19, 2001. According to Sipe, it became evident early in the proceedings that the government's disclosure was incomplete. 7 At trial, witnesses recounted the events we have detailed. In addition, BPAs Cruce, Smith, Gonzales, and Fortunato testified that during their years of service, they seldom needed to use "intermediate force" to subdue an alien or to defend themselves. They noted that all agents are taught not to strike a person's head or face unless deadly force is necessary. After a five-day trial, the jury found Sipe guilty of violating 18 U.S.C. § 242 by using excessive force.

Following the verdict, the Presentence Report became a source of controversy when it became apparent that the government had disclosed information to the probation officer that it did not disclose to the defense. Sipe was first alerted to the government's nondisclosures by a statement in the PSR indicating that Cruce disliked Sipe. Sipe immediately complained that this statement was contrary to Cruce's grand jury testimony. The government traced the source of the probation officer's statement in the PSR to a Prosecution Memorandum that was prepared by the line attorney assigned to the case. The memorandum stated in relevant part:

Cruce admits to disliking the subject [Sipe] even before this incident. Cruce said that [Sipe] has an abrasive personality, keeps to himself, and is generally disliked by most of the other agents.

Sipe moved for the production of the government's entire investigative file. After reviewing the material produced, Sipe identified four additional pieces of exculpatory or impeachment information that the government had failed to provide.

First, Sipe discovered that the government had taken several photographs of the arrest scene. Guevara himself is in the photographs, apparently posing to demonstrate where he was located in the reeds when Sipe struck him. Second, Sipe learned that Alexander Murillo, one of the government's witnesses, had a criminal history. Specifically, Murillo had been charged in the past with filing a false police report, theft, and harassment, although there had been no convictions.

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Third, Sipe learned that the government interviewed one Herica Rodriguez before trial. Rodriguez, one of Sipe's fellow EMT students, told government investigators that Sipe was a "nice person" and that she did not hear him make any statements suggesting that he disliked or disrespected aliens.


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