U.S. v. Perea
| Decision Date | 10 June 2009 |
| Docket Number | No. EP-08-CR-059-DB.,EP-08-CR-059-DB. |
| Citation | 625 F.Supp.2d 327 |
| Court | U.S. District Court — Western District of Texas |
| Parties | UNITED STATES of America v. Carlos PEREA aka "Shotgun", Manuel Cardoza aka "Tolon", Benjamin Alvarez aka "T-Top", Eugene Mona aka "Gino" and Said Francisco Herrera aka "Shorty". |
Jose Luis Acosta, U.S. Attorney's Office, El Paso, TX, for Plaintiff.
Gary B. Weiser, Attorney at Law, Vivek Grover, Vivek Grover Attorney at Law, Robert J. Perez, Attorney at Law, Russell M. Aboud, Attorney at Law, Francisco F. Macias, Law Office of Francisco F. Macias, Kenneth Del Valle, Attorney at Law, El Paso, TX, for Defendants.
On this day, the Court considered Defendant Benjamin Alvarez's "Motion For New Trial," filed in the above-captioned cause on April 9, 2009. The Court also considered Defendants Said Francisco Herrera, Carlos Perea, Manuel Cardoza, and Eugene Mona's Motions for New Trial, filed in the above-captioned cause on April 12, April 13, April 15, and April 16, 2009.1 On April 16, 2009, the United States of America ("the Government") filed a "Response To Defendant's Motion For Dismissal And New Trial." After due consideration, the Court is of the opinion that Defendants' Motions should be denied for the reasons that follow.
On January 9, 2008, the Grand Jury returned an eleven-count Indictment, charging Defendants in various counts. The Grand Jury specifically charged Perea, Cardoza, Alvarez, and Herrera with engaging in the affairs of an enterprise through a pattern of racketeering behavior ("RICO violations"), and charged Perea, Cardoza, Alvarez, Mona, and Herrera with conspiring to conduct the affairs of an enterprise through a pattern of racketeering behavior ("RICO conspiracy").2 The Indictment alleged that the criminal charges stemmed from the operation of an extortion scheme by the Barrio Azteca enterprise ("BA"), an established prison gang operating in El Paso, Texas. On November 3, 2008, a jury trial commenced in the above-entitled and numbered cause. Defendants were present and represented by counsel. The Jury was empaneled on November 3, 2008, and the presentation of evidence commenced on November 4, 2008. During the pendency of the trial, the Jury heard the testimony of multiple witnesses and viewed innumerable exhibits. Eight (8) witnesses were confirmed BA members, and one (1) witness was linked to the BA but was not an official member.
The testimony at trial established that the BA charged drug traffickers ("tiendas") a percentage of drug proceeds ("cuota") for running their businesses in BA territory. In return, payment of cuota ensured BA protection such that the tiendas could operate safely. This extortion scheme assisted the BA in funding the prison accounts of BA members located in various state and federal prisons across the United States. Specifically, BA members sent money, usually in the form of money orders, through the United States ("U.S.") Postal Service to imprisoned BA members.
The testimony at trial further established that the BA command structure was para-military in nature. As such, BA members moved up through the ranks from soldier to captain ("capo"). Orders were issued through higher-ranking members and capos, specifically, to maintain order within the BA organization and to continue the BA's money-making scheme. Additionally, testimony at trial revealed that a non-compliant BA member or one that was harming the organization could face severe punishment issued through a "green light." Punishment issued through a green light ranged from a physical altercation to death.
On December 2, 2008, the Jury returned a verdict, finding Perea, Alvarez, Cardoza, and Herrera guilty of RICO violations, and finding Perea, Cardoza, Alvarez, Mona, and Herrera guilty of RICO conspiracy.3 On April 13, 2009, Sentencing was held as to the above-named Defendants. The instant Motions followed.
In the instant Motions, Defendants argue that information contained in the Pre-Trial Services Report ("PSR") filed prior to the Sentencing was never disclosed to Defendants in discovery.4 Specifically, Defendants allege that paragraphs 56, 57, 62, 63, 64, and 65 of the PSR demonstrate that murders were ordered by BA members Eduardo Ravelo, aka "Tablas," ("Ravelo") and Miguel Angel Esqueda, aka "Angelillo," ("Esqueda"). Defendants contend that this evidence would have increased the culpability of Ravelo and Esqueda while diminishing their own guilt. Alvarez in particular hypothesizes that this discovery would have further underscored his theory that Ravelo was the BA capo issuing green lights and running the BA organization. Further, Defendants argue that two (2) trial witnesses, Gustavo Gallardo, aka "Tavo," ("Gallardo") and Gerardo Hernandez ("Hernandez"), were involved with the execution of those murdered. Defendants argue that Gallardo and Hernandez's involvement in these murders would have materially altered the manner in which those witnesses were cross-examined, thereby illuminating the untrustworthiness of these witnesses and exposing these witnesses' motivation in testifying. As such, Defendants contend that the failure to disclose this evidence constitutes a Brady violation, thereby violating Defendants' Fifth and Sixth Amendment rights, warranting a new trial. Lastly, Defendants contend that the manner in which the Jury was transported to and from the courthouse was unduly prejudicial.
The Government counters that Defendants, in fact, received the Federal Bureau of Investigation ("FBI") 302 reports ("302s") that expressly included the information at issue in the PSR. Indeed, the Government argues that it resubmitted the 302s to defense counsel during the trial as defense counsel was dissatisfied with the lack of information identifying confidential sources in the originally disclosed 302s. Further, even assuming defense counsel did not receive the 302s, the Government asserts that the vast majority of the information at issue was not based on personal knowledge and could not be perceived as linking Gallardo or Hernandez to the murders discussed in the PSR. Nevertheless, the Government concedes that Gallardo can be shown to have had personal knowledge of one murder at issue in paragraph 64, but the Government emphasizes that Defendants thoroughly cross-examined Gallardo as to this murder. Next, the Government contends that both Gallardo and Hernandez were thoroughly impeached on the basis of their extensive criminal history, gang activity, and potential motives for testifying. Despite Defendants' arguments to the contrary, the Government propounds that ample evidence connected Defendants to the BA scheme and that the Jury believed the evidence linked Defendants to that scheme beyond a reasonable doubt, despite the thorough impeachment of Gallardo and Hernandez. The Court agrees with the Government and further finds that transportation provided to the Jury was entirely appropriate.
In Brady v. Maryland, the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). A defendant seeking a new trial based on a Brady violation must prove that: "(1) the prosecution suppressed evidence; (2) the evidence was favorable to him; and (3) the evidence was material either to guilt or punishment." United States v. Severns, 559 F.3d 274, 278 (5th Cir.2009).5 The Court examines each element below.
As a preliminary matter, the Court addresses the first element: whether the prosecution in the instant case suppressed evidence. Defendants contend that they never received in discovery the information that formed the basis of the PSR. The Government counters that Defendants received the 302 reports from which the information was taken on several occasions. The Court agrees with the Government.
A comparison between the PSR and the 302 reports which form the basis of the PSR reveals that the PSR recounts, nearly verbatim, the information contained in the 302 reports.6 For example, paragraph 56 is an abridged version of two (2) 302 reports, relating that Jesus Arguelles Palos ("Palos") had been murdered at a restaurant in Ciudad Juarez and indicating that a confidential informant ("CI") believed that Perea sent a letter ordering this murder. In the presence of the Court, Defendants' attorneys raised—during trial— their belief that the Government had not disclosed all 302 reports. Counsel for the Government indicated that discovery of the 302 reports had been made available and that Defendants' attorneys were invited to review the 302 reports in the Government office. Indeed, Defendants' attorneys later acquiesced, agreeing that the Government had, in fact, complied with discovery and had provided the 302 reports to Defendants.7 Further, the Court ordered, and the record reflects, that the Government disclosed anew the 302 reports in an altered format, as per the request of Defendants' attorneys. Undoubtedly, the Government at no time suppressed the evidence—the 302 reports— that formed the basis of the PSR. Nevertheless, for purposes of the instant Motion and to be thorough, the Court will assume that the Government did indeed suppress the 302 reports.
Next, the Court determines whether the evidence referenced in the PSR was favorable to Defendants. Defendants essentially make two (2) claims regarding this evidence. First, Defendants claim that this evidence further inculpated Ravelo and Esqueda while diminishing their own guilt. Second, Defendants claim that this evidence reveals Gallardo and Hernandez's own involvement in various murders and, therefore, could have rendered cross-examination more effective and...
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