U.S. v. Velarde

• Decision Date: 01 May 2007
• Docket Number: No. 06-2126.,06-2126.
• Citation: 485 F.3d 553
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mel Lambert VELARDE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.3d 553

UNITED STATES of America, Plaintiff-Appellee, v. Mel Lambert VELARDE, Defendant-Appellant.

No. 06-2126.

United States Court of Appeals, Tenth Circuit.

May 1, 2007.

Marc M. Lowry (Peter Schoenburg with him on the briefs), Rothstein, Donatelli,

Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP, Albuquerque, New Mexico, for Defendant-Appellant.

J. Miles Hanisee, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before HARTZ, ANDERSON, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Mel Velarde, who was convicted of sexually abusing a minor within Indian country, has filed a motion for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure. He claims that the government violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing evidence that L.V., the minor victim, falsely accused her school teacher and vice principal of inappropriate touching. Velarde argues that had the government disclosed this evidence, he could have impeached L.V. at trial, and the result of his trial would have been different.

The district court initially scheduled an evidentiary hearing at which Mr. Velarde would have been able to subpoena certain otherwise uncooperative witnesses and determine the nature of L.V.'s false accusations, if that is what they were, and establish whether the government was aware of them. Later, however, the court sua sponte cancelled the evidentiary hearing and denied Mr. Velarde's motion for a new trial on the ground that he had failed to introduce admissible evidence in support of his Brady claim. We hold that the district court erred by denying Mr. Velarde's motion without granting an opportunity for discovery. We therefore VACATE the district court's order and REMAND for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

1. The Jury Trials and Rule 33 Motion

In March 1999, Mel Velarde was convicted by a jury of sexually abusing a minor within Indian country in violation of 18 U.S.C. §§ 1153, 2241(c), 2246(2)(A). L.V., the alleged minor victim, is the daughter of the woman Mr. Velarde was dating at that time. No one else saw the alleged crime, and there was no corroborating medical evidence, so Mr. Velarde was convicted almost entirely on L.V.'s testimony. Mr. Velarde appealed his conviction and this Court reversed, holding that the district court erroneously admitted expert testimony concerning L.V.'s propensity for truthtelling. United States v. Velarde, 214 F.3d 1204, 1210-11 (10th Cir.2000).

The government elected to retry Mr. Velarde. During his second trial, which occurred in September 2001, L.V. testified that Mr. Velarde took her from the top bunk of her brothers' bed (her younger brother was also sleeping in the top bunk, and her older brother was sleeping in the lower bunk) into the hallway and held her mouth shut while he "tried to stick his private part in [her] private part." R. Vol. III, at 255. Mr. Velarde's theory of the case was that L.V. fabricated those allegations to get back at him because when he spent the night at her mother's house he displaced L.V. from her mother's bed, L.V.'s usual sleeping place. This second trial resulted in another conviction, which this Court affirmed. United States v. Velarde, 88 Fed.Appx. 339 (10th Cir.2004).

In September 2004, three years after his second trial, Mr. Velarde filed a motion under Rule 33(b)(1) of the Federal Rules of Criminal Procedure seeking a new trial. He alleged that the government violated his Brady rights by failing to disclose before his second trial evidence that was favorable to him and material. Specifically, Mr. Velarde claimed that in the days immediately preceding his second trial, L.V. falsely accused her school teacher and the school's vice principal of inappropriately touching her. He asserted that, because the case hinged largely on whether L.V.'s testimony was credible, evidence that L.V. falsely accused other men of inappropriate touching could have impeached L.V. and led to a different result.

Mr. Velarde learned of L.V.'s apparently false accusations from Phil Gallegos, another teacher at L.V.'s school who was L.V.'s teacher's union representative. Mr. Gallegos testified in an affidavit that he told FBI Agent Frank Chimits about L.V.'s false accusations before Velarde's second trial began. He also testified that he "reminded Agent Chimit[s] of his legal obligation to fully disclose this type of evidence." R. Vol. I, Doc. 334, Ex. A., at 2. The government countered with Agent Chimits's affidavit testimony that he "did not at any time have a conversation with [Mr. Gallegos] of the nature described in Defendant Velarde's Motion," nor did he know of L.V.'s second accusations from any other source prior to the second trial. R. Vol. I, Doc. 314, Ex. 1, at 2.

2. The District Court's Response to Mr. Velarde's Brady Motion

Faced with the contradictory Gallegos and Chimits affidavits, the district court set an evidentiary hearing. R. Vol. I, Doc. 349. The order stated that "[t]he Court's initial task is to determine whether a conversation with the content described in the Gallegos affidavit, did or did not occur." Id. at 4. The court ordered the parties to "be prepared to present substantive evidence as to the specific content of a conversation between Gallegos and Chimits." Id. at 5. The court also ordered Mr. Velarde to present at the hearing "the substantive, strong, exculpatory, admissible evidence that he intends to present at trial, i.e., the `new evidence' on which he has based his motion." Id. at 7.

Soon after the district court issued this order, Mr. Velarde moved the court to issue subpoenas under Fed.R.Crim.P. 17(b) to compel the attendance of Gallegos, L.V., and L.V.'s principal, vice principal, and teacher. R. Vol. I, Doc. 350, at 1. These witnesses were to be the source of the "substantive, strong, exculpatory, admissible" new evidence that the court ordered him to introduce. Mr. Velarde contended that because the allegations implicated the school officials' fitness for continued employment, subpoena power was necessary to compel their cooperation.

Approximately one week after Mr. Velarde sought these subpoenas, and before the court took any action on his motion, the district court sua sponte vacated the evidentiary hearing. R. Vol. I, Doc. 351, at 1. The court stated that "[r]ather than proceed with a costly and time-consuming evidentiary hearing, as well as potentially with at least a portion of a new trial, the Court determines that it is prudent, at this juncture, to determine the ultimate admissibility of such evidence, if established." Id. at 1-2. The court ordered the parties to brief whether the evidence would be admissible under Fed.R.Evid. 412 and "to appear for legal arguments," id. at 1, at "a strictly legal hearing" after the briefing was complete, id. at 3.

The parties submitted briefs as directed and appeared for the "strictly legal hearing" at the appointed time. But when the hearing began, the district judge immediately asked defense counsel to give "a statement of exactly what the new evidence is that the defendant wishes to or claims to have found that justifies a new trial." R. Vol. VI, at 2. Defense counsel offered what the district court later characterized as a "proffer," R. Vol. I, Doc. 357, at 4, 6, based on conversations a paid defense investigator had with L.V.'s teacher and vice principal.

According to defense counsel, L.V.'s teacher told the investigator that he was summoned to the principal's office in the week after September 11, 2001, where L.V. and her mother were present. He was asked, "What did you do to [L.V.], if [you] touched her inappropriately." R. Vol. VI, at 5. He denied the charge. The principal then asked L.V. why she did not bring the incident to the attention of the vice principal. L.V. responded that she did not like the vice principal "because he touches me funny too." Id. at 5-6. Her teacher was told to leave the office, and he "never knew what happened afterwards." Id. at 6.

The investigator's conversations with the vice principal largely concerned the school's investigation into L.V.'s charges. The investigation involved the vice principal, a school counselor, and "others." Id. at 6-7. Initially, the vice principal discussed the school's investigation with the defense investigator. Id. at 6. He told the investigator "that nothing came of it, and that they didn't think [L.V.] was telling the truth." Id. at 6. Later, however, he clammed up, stating that "he couldn't recall." Id. at 7. He provided no further information to the investigator. And the school counselor who the vice principal stated "would have handled this" told the defense investigator that "she had no recall of the investigation." Id. at 9.

The defense subpoenaed the school records, but according to defense counsel, "there is [sic] no records to be had" because they are purged on an annual basis. Id. at 7.

Defense counsel informed the district court that the defense wished to present the testimony of L.V.'s teacher and the defense investigator, and wished to subpoena the vice principal and the principal, Bill Reese. He explained to the court that "the underlying allegations of inappropriate touching are admissible, as well as Mr. Gallegos' testimony that he, in fact, informed Agent Chimits about the allegations." Id. at 8. In further discussion with the district court, defense counsel stated that the admissible evidence the defense would present relates to "[the teacher's] comments, Mr. Reese's discussion with the mother, and the victim, and [the vice principal]," as well as "the investigation, if any, [that] was done by [the vice principal]." Id. at 8-9.

The district court attempted to pin down the defense regarding the exact nature of L.V.'s allegations against her...