United States v. Tavera, 11–6175.

• Decision Date: 20 June 2013
• Docket Number: No. 11–6175.,11–6175.
• Citation: 719 F.3d 705
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Abel Martinez TAVERA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

719 F.3d 705

UNITED STATES of America, Plaintiff–Appellee,

v.Abel Martinez TAVERA, Defendant–Appellant.

No. 11–6175.

United States Court of Appeals,Sixth Circuit.

Argued: May 1, 2013.

Decided and Filed: June 20, 2013.

ARGUED:A. Philip Lomonaco, The Law Offices of A. Philip Lomonaco, Knoxville, TN, for Appellant. Donald Wayne Taylor, United States Attorney's Office, Greeneville, TN, for Appellee. ON BRIEF:A. Philip Lomonaco, The Law Offices of A. Philip Lomonaco, Knoxville, TN, for Appellant. Donald Wayne Taylor, United States Attorney's Office, Greeneville, TN, for Appellee.

Before: MERRITT, CLAY, and DONALD, Circuit Judges.

MERRITT, J., delivered the opinion of the court in which, DONALD, J., joined. CLAY, J. (pp. 714–18), delivered a separate dissenting opinion.

OPINION

MERRITT, Circuit Judge.

Defendant Abel Martinez Tavera was convicted by a jury and sentenced to 186 months of imprisonment for participating in a methamphetamine drug conspiracy. With Tavera as his passenger, co-defendant Placido Mendoza drove a truck for several hours from North Carolina to Tennessee. The truck contained construction equipment and a large quantity of methamphetamine hidden under nails. The police arrested both men after discovering the drugs. At his trial, Tavera, a roofer, testified that he did not know about the drugs and that he thought he was going to Tennessee to view a construction project. After his conviction, Tavera learned that a few days before his trial Mendoza had participated in plea negotiations in which he told Assistant U.S. Attorney Donald Taylor, the government's trial lawyer in Tavera's case, that Tavera had no knowledge of the drug conspiracy. Mendoza pled guilty after the negotiations.

Mendoza's statements to Taylor were plainly exculpatory. They not only corroborated Tavera's trial testimony—they directly contradicted the story of the government's main witness, co-defendant Guadalupe Granado, who testified that Tavera had detailed knowledge of the drugs in the truck and participated in the conspiracy. However, the jury never learned of Mendoza's statements because Taylor, the prosecutor, failed to disclose them to Tavera. Tavera was in jail. He did not communicate with or presumably did not have access to Mendoza. His lawyer did not interview Mendoza.

Fifty years ago, the Supreme Court held in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the government must provide defendants with material, exculpatory evidence in its possession. Failure to do so results in a trial that is fundamentally unfair. The Supreme Court has never wavered from this principle. Yet nondisclosure of Brady material is still a perennial problem, as multiple scholarly accounts attest. ¹ This case shows once again how prosecutors substitute their own judgment of the defendant's guilt for that of the jury. So long as favorable evidence could very well affect the jury's decision, prosecutors must disclose it. And when they fail to do so, courts have a duty to order a retrial, allowing a jury to consider the previously concealed evidence.

This particular case is not close. Prosecutor Taylor's failure to disclose Mendoza's statements resulted in a due process violation. We therefore vacate Tavera's conviction and remand for a new trial. In addition, we recommend that the U.S. Attorney's office for the Eastern District of Tennessee conduct an investigation of why this prosecutorial error occurred and make sure that such Brady violations do not continue.

I. Background

In May 2010, Tavera was arrested with four co-defendants during an undercover sting in the area of Morristown, Tennessee. The sting was the product of an investigation in which Agent Michael Templeton of the Drug Enforcement Administration posed as a dealer interested in acquiring a large quantity of marijuana or methamphetamine. Agent Templeton's main contact was Guadalupe Granado. Templeton bought small quantities of meth from Granado on several occasions and arranged to purchase ten pounds of the drug on May 14, 2010. Originally the plan was for Templeton to conduct the transaction in a McDonald's parking lot with unknown associates of Granado. This arrangement fell through at the last minute because Granado insisted that the meeting be changed to a more remote location. However, surveillance enabled law enforcement to track and arrest the participants as they were driving away from the planned location of the buy.

Police first arrested Elias Perez, Placido Mendoza, and Tavera. Perez was driving a red Chevy Cavalier. A search of the car uncovered a firearm and ammunition inside a cooler. Mendoza was driving a red Dodge Ram pickup truck in which Tavera was the passenger. The truck contained a variety of construction equipment, including a ladder and a bucket of nails. Underneath the nails police discovered a large quantity of methamphetamine. As it later emerged, Mendoza and Tavera had driven with the drugs from Winston–Salem, North Carolina, that same day. Perez, who had been staying in Tennessee, had been assigned to drive the Cavalier as a lookout. Later in the day police arrested Granado and Marco Rivera, who turned out to be the source of the drugs.

The government indicted all five men. It charged Tavera with one count of conspiracy to distribute over 500 grams of methamphetamine and one count of possession with intent to distribute over 500 grams of methamphetamine. ² All participants except Tavera pled guilty.

Tavera's trial was held on May 3–6, 2011. Granado's testimony was the primary proof against Tavera. Granado testified that he had previously been to Tavera's home in North Carolina and that Tavera was present while Rivera cooked meth. He testified to overhearing a phone conversation between Rivera and Mendoza in which Rivera suggested that Mendoza bring Tavera for security and to count money from the transaction. He testified that Tavera was to be paid for helping with the drugs and that there was no construction job. And he testified to post-arrest conversations he had with Tavera in jail. In these conversations, Tavera stated that he wished to remove meth-related materials from his home, asked Granado to tell law enforcement that he had never seen Tavera before, and revealed that he had used the ladder to make it look like he and Mendoza were traveling for construction work.

In addition to Granado's testimony, the government introduced physical evidence recovered from the truck and evidence of phone calls exchanged between the participants in the hours before the arrest. There were multiple calls from Rivera to Mendoza, but not Tavera, during the time that Mendoza and Tavera were driving from North Carolina. Additionally, Tavera had talked on the phone with both Rivera and Mendoza in the weeks before the sting.

Tavera's primary proof was his own testimony. He testified, contrary to Granado's story, that he and Granado had never met before the sting and that he never attempted to get Granado to lie. He established his long career as a roofer and stated that he knew Mendoza and Rivera through legitimate construction work. He testified that he believed the purpose of the trip was to provide an estimate on a roofing job and that he brought the ladder for that reason. When he and Mendoza arrived at the site of the drug transaction, Tavera said, he began to get “desperate about where the job was going to be,” and Mendoza responded that they were waiting for someone to take them there. On cross-examination, Tavera said he did not know the exact location of the job beforehand. He also admitted that Mendoza talked with Rivera on the phone during the trip, but he contended that he did not hear the substance of the conversations. In addition to this evidence, the parties stipulated that ion swabs showed methamphetamine on Mendoza's hands and cell phone, on the cooler where the firearm was found, and in Granado's car, but not on Tavera's hands or cell phone.

The jury found Tavera guilty on all counts, and on September 12, 2011, the court sentenced him to 15 years and 6 months of imprisonment. The court held a sentencing hearing for Mendoza on the same day. At his hearing, Mendoza argued that he was “safety-valve” eligible for a reduced sentence because he had provided truthful information to the government about the crime. In the week before Tavera's trial, Mendoza had participated in two debriefings with Mr. Taylor, the Assistant U.S. Attorney, and agents involved in the sting. At the first debriefing, Mendoza told Taylor and the agents that Tavera was not involved in the conspiracy and did not know there were drugs in the truck. Later the same day, there was a second debriefing at which Mendoza said Tavera “did know about the drugs that were in the vehicle, but did not know until he got in the vehicle with [Mendoza] that day.” R. 213, Mendoza Sentencing Tr. at 15. Throughout these debriefings, Mendoza denied that the defendant came along to count money or provide security. He consistently maintained that the roofing job was one of the purposes of the trip to Tennessee.

The government never disclosed Mendoza's statements to Tavera. After the debriefings, Mendoza signed a plea agreement. Mendoza's agreement reversed his position that Tavera was innocent and stated, “Tavera knew that they were transporting methamphetamine from North Carolina to be delivered to another person in Tennessee and agreed to accompany [Mendoza]. Since they were transporting methamphetamine, Tavera told [Mendoza] that they needed to be careful.” R. 143, Am. Plea Agreement at 6. Obviously, Mendoza was lying either in the beginning or after his plea negotiations.

Tavera filed a timely notice of appeal from the district court's final judgment, thus vesting this court with jurisdiction. One year later, Tavera filed his brief in this court as well as a motion for a new trial in the district court. Both are based on the argument that Brady required...