United States v. Cessa, 16-50328.

• Decision Date: 25 September 2017
• Docket Number: No. 16-50328.,16-50328.
• Citation: 872 F.3d 267
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Francisco Antonio Colorado CESSA, also known as Pancho, also known as Francisco Antonio Colorado–Cessa, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

872 F.3d 267

UNITED STATES of America, Plaintiff–Appellee

v.Francisco Antonio Colorado CESSA, also known as Pancho, also known as Francisco Antonio Colorado–Cessa, Defendant–Appellant

No. 16-50328.

United States Court of Appeals, Fifth Circuit.

September 25, 2017

Joseph H. Gay, Jr., Assistant U.S. Attorney, Elizabeth Berenguer, Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

John D. Cline, San Francisco, CA, Chris Flood, Flood & Flood, Houston, TX, for Defendant–Appellant.

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

We previously remanded this case to the district court to determine whether the Government suppressed certain favorable evidence and whether any of the suppressed evidence was material. United States v. Cessa , 861 F.3d 121, 143 (5th Cir. 2017) (" Cessa II "). On August 8, 2017, the district court concluded that none of the suppressed evidence was material. Because we cannot say that the district court's materiality determination was clear error, reversal is not required. We therefore affirm.

I

"The Zetas import drugs from Colombia and export them to the United States." Cessa II , 861 F.3d at 127. "The Zetas engaged in a money-laundering operation that involved purchasing quarter horses—a type of racehorse—in the United States. The scheme was designed to conceal illegal drug money by repeatedly buying and reselling horses to ‘straw purchasers and shell companies'—a process that generated ‘clean’ money, the origin of which was difficult to trace." Id. Colorado was indicted as part of the scheme in 2012. Id.

Colorado's first trial began in April 2013. In the Government's opening argument, it told the jury that it would hear evidence that Colorado funneled money from the Zetas through his company, ADT Petro Services, and then back to the Zetas through racehorses. But even at that time, the Government possessed evidence that may have undercut its trial theory. Carlos Nayen, whom the Government described as the "money man" and "the man responsible for coordinating the purchase of horses" in the first trial, had been interviewed nine times as part of the investigation. At times, Nayen's statements indicated that Colorado may not have participated in the scheme. For example, Nayen told the Government that Colorado "only gave horses" to the Zetas "as a gift." The prosecutor's notes from the meeting indicate that Nayen said that Colorado gave the horses "out of fear." But the Government did not disclose Nayen's statements to the defense.

Nayen was not called to testify at the first trial. And the Government severely limited written documentation of Nayen's statements. The Assistant United States Attorneys prosecuting Colorado were present at seven of the nine interviews—all occurring between November 27, 2012 and February 12, 2013. At those seven interviews, only the prosecutors took notes. And three times, no one took notes at all. The Government did not create official interview memoranda, FBI Form 302s, until after Colorado was convicted in his first trial. And within a month of Colorado's Rule 33 motion being denied, and nearly eight months after the first interview, FBI Agent Lawson began to create official interview memoranda for each of the meetings. Presumably working from prosecutor notes—and where there were no notes, from distant memory—Lawson generated 41 pages detailing Nayen's statements at the meetings that had occurred half a year earlier. This was not normal; the same agent, working on the same case, and dealing with the same witness quickly generated interview memoranda for the two meetings not attended by the prosecutors.

Likewise, interviews of other witnesses throughout the investigation, including interviews by Lawson, were quickly memorialized into 302s. And for his interviews with other witnesses, Lawson noted his presence in the 302s, but for Nayen's interviews, Lawson failed to note that he was present.

After his first conviction, Colorado still did not get access to Nayen's statements. At his first sentencing hearing, however, the Government called Lawson to testify. During his testimony, Lawson referred to statements made by Nayen in the investigation—attributing them to a confidential informant. In response, Colorado asked to view the interview memoranda. But, when it appeared that the court might give the documents to the defense, the Government disclaimed any reliance on Nayen's testimony and asked that the documents not be turned over.

At that point it appeared that Nayen's statements would never be disclosed. But we reversed Colorado's first conviction because of an instructional error. United States v. Cessa , 785 F.3d 165, 170 (5th Cir. 2015) (" Cessa I "). And when the Government retried Colorado it decided to call Nayen to testify. Nonetheless, the Government did not disclose any of the 41 pages of Nayen's statements to the defense, disclosing instead, only the formal interview memoranda—and not the underlying notes—in camera, to the district court. Following Nayen's direct examination, the district court ruled that nothing contained in the 302s was favorable to the defense. As we explained in Cessa II , the district court should have ordered disclosure because the 302s contained favorable exculpatory evidence. See Cessa II , 861 F.3d at 129. The Government compounded the error by saying nothing as Nayen testified inconsistently with the 302s during cross examination. Id. at 131–34. The jury convicted Colorado at his second trial.

Even after the second conviction, the Government opposed Colorado's effort to view the favorable statements in Nayen's 302s. On appeal, Colorado argued that by failing to turn over the 302s, the Government violated its Brady obligations. To make the argument, Colorado requested the 302s, although the defense recognized that a protective order or redactions may have been necessary to protect the Government's interests in the 302s. Without explanation and without request for a protective order, the Government opposed. We granted Colorado permission to view the 302s.

Finally with the benefit of the 302s, Colorado argued that the district court erred in finding that the documents were not favorable to him. We agreed, and remanded to the district court to determine whether the information contained in the 302s was suppressed and material. Cessa II , 861 F.3d at 143. At the district court, the Government augmented its in-camera disclosure by providing the district court with the prosecutor notes corresponding to the 302s, as well as prosecutor notes from meetings with Nayen after the first trial (for which no 302s were made). With respect to the prosecutor notes for which no 302s were made, the district court held that the notes constituted "non-discoverable, attorney work-product" under the Jencks Act and declined to consider them.¹ For the notes the district court did consider, it held that Nayen's statements in his interviews were not material under Brady , and therefore, Colorado's conviction could stand.

II

"To establish a Brady violation, a defendant must show: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed 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, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ " United States v. Brown , 650 F.3d 581, 588 (5th Cir. 2011) (quoting United States v. Bagley , 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). " ‘A reasonable probability of a different result’ is one in which the suppressed evidence ‘undermines confidence in the outcome of the trial.’ " Turner v. United States , –––U.S. ––––, 137 S.Ct. 1885, 1893, 198 L.Ed.2d 443 (2017) (quoting Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ). "Consequently, the issue before us here is legally simple but factually complex." Id. "We must examine the trial record, ‘evaluat[e]’ the withheld evidence ‘in the context of the entire record,’ and determine in light of that examination whether ‘there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.’ " Id. (quoting United States v. Agurs , 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ; Cone v. Bell , 556 U.S. 449, 470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) ).

Because the district court reviewed the alleged Brady material in camera and determined that it was not discoverable, we review for clear error. Brown , 650 F.3d at 589. "The district court's finding is clearly erroneous if, on the entire evidence, we are left with a ‘definite and firm conviction’ that a mistake has been committed." Id. (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ).

III

As we explained in Cessa II , "Colorado's defense theory was that he bought horses for the Zetas using his own (or his company's) money. He explained that he spent millions of dollars on horses for the Zetas because he feared them." Cessa II , 861 F.3d at 129. Put differently, "Colorado argued that he did not join the conspiracy at all, claiming that he gave the Zetas gifts using his own money because he feared them." Id. at 130. Colorado argues that the Brady material contains three categories of evidence that would have materially advanced his defense theory, or at least impeached Nayen's testimony: (1) statements that Colorado feared the Zetas, (2) Nayen not disclosing payments flowing from the Zetas to Colorado and back to the Zetas until his seventh interview, and (3) a statement that Colorado gave horses to the Zetas as a gift. We hold that the district court did not clearly err when it found that none of the favorable statements were material.

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