United States v. Valas

• Decision Date: 08 July 2022
• Docket Number: 20-50830
• Citation: 40 F.4th 253
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Raymond R. VALAS, III, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

40 F.4th 253

UNITED STATES of America, Plaintiff—Appellee,

v.Raymond R. VALAS, III, Defendant—Appellant.

No. 20-50830

United States Court of Appeals, Fifth Circuit.

FILED July 8, 2022

Joseph H. Gay, Jr., Richard Louis Durbin, Jr., Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff—Appellee.

Suzanne Amy Spencer, Esq., Shaheen & Gordon, P.A., Concord, NH, for Defendant—Appellant.

Before Willett, Engelhardt, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

This is the second time Raymond R. Valas, III has challenged his conviction before this court. On direct appeal in 2016, we affirmed his conviction for "engaging in a commercial sex act with a minor in violation of 18 U.S.C. § 1591." United States v. Valas , 822 F.3d 228, 234 (5th Cir. 2016). Now seeking habeas relief, he alleges that prosecutors unconstitutionally suppressed a document that would have aided his case and that he received ineffective assistance of counsel during his trial and his direct appeal. Valas fails to demonstrate that any of his habeas claims merit relief. Thus, we affirm.

I.

Valas is a former lieutenant colonel in the United States Army. Id. at 235. On August 26, 2013, he went with members of his New Hampshire National Guard unit to San Antonio. They were in San Antonio to review a military exercise they had completed in El Salvador. Id. While there, Valas stayed at the Hilton Hotel. Id. That night and the following night, after obtaining her contact information from an online prostitution advertisement, Valas encountered TJ, a fifteen-year-old runaway turned prostitute, in his hotel room. Id. Valas maintains that he briefly attempted to interview TJ as part of a project on human trafficking both nights. Id. TJ testified that Valas summoned her to the hotel to have sex with her. Id.

The jury convicted Valas of violating 18 U.S.C. § 1591, which criminalizes participating in the sex trafficking of children, including by causing a child "to engage in a commercial sex act." Id. at 234-35. Valas appealed the conviction and raised a host of challenges to the constitutionality of his trial. Id. A panel of this court rejected his arguments and affirmed his conviction. Id. at 248.

Just over a year later, in August 2017, Valas filed a habeas corpus petition under 28 U.S.C. § 2255 that was also styled as a motion for a new trial under Federal Rule of Criminal Procedure 33. Valas alleged various violations of his Sixth Amendment rights. First, he asserted the prosecution unconstitutionally suppressed a statement TJ gave to the Federal Bureau of Investigation (FBI) that would have aided his case. This hypothetical assertion of error—Valas essentially guessed that there must have been an unproduced statement based on other evidence—proved true. Specifically, the Government conceded in response to Valas's petition that it had failed to disclose an agent-created FD-302 summary of a March 2014 interview the FBI conducted with TJ.

Next, he averred that the prosecution had impermissibly vouched for TJ's credibility before the jury and that his trial counsel should have objected to those statements. He also argued that counsel was ineffective because he did not adequately cross-examine and impeach TJ's credibility using her journal and cell phone records.

Finally, Valas contended that his direct-appeal counsel should have raised the district court's failure to give a modified unanimity instruction as an issue on appeal. At trial, the prosecution adduced testimony that Valas had sex with TJ on two nights: August 26, 2013, and either late on August 27 or very early on August 28, 2013. By contrast, the indictment charged

[t]hat on or about the 26th day of August, 2013, ... the Defendant, Raymond Valas, did knowingly ... cause T.J. to engage in a commercial sex act, knowing that T.J. had not attained the age of 18 years, recklessly disregarding that T.J. had not attained the age of 18 years, and having had a reasonable opportunity to observe T.J., in violations of Title 18, United States Code, Sections, 1591(a) and 1591(b)(2).

Valas argued that the contrast between the prosecution's evidence and the indictment created a duplicity¹ problem requiring a modified unanimity jury instruction. Without a proper instruction, he contended, it was likely that some jurors would conclude that he had violated the law on August 26, whereas others would conclude that he did so on August 27/28, rather than unanimously agreeing to convict Valas for the same act on the same day.

Valas filed a motion for discovery in relation to his suppression claim. The district court denied the motion, finding that while the prosecution had suppressed the FD-302 interview summary, its contents were ultimately not material to Valas's defense. But the court scheduled an evidentiary hearing on Valas's claim of ineffective assistance of trial counsel. After that hearing, the court denied Valas's Section 2255 petition and Rule 33 motion in two lengthy orders, finding that Valas had failed to establish any violation of his Sixth Amendment rights. Valas now appeals the denial of his Section 2255 petition.²

II.

"When evaluating the denial of a Section 2255 motion, we review the district court's factual findings for clear error and its legal conclusions de novo." United States v. Scott , 11 F.4th 364, 368 (5th Cir. 2021) (citing United States v. Phea , 953 F.3d 838, 841 (5th Cir. 2020) ). We address each of the issues Valas raises in turn.

A.

Valas asserts that the prosecution violated his Sixth Amendment rights to a fair trial under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by suppressing evidence favorable to his case. We review this issue de novo with deference to the district court's underlying factual findings. United States v. Bolton , 908 F.3d 75, 90 (5th Cir. 2018) (quoting United States v. Swenson , 894 F.3d 677, 683 (5th Cir. 2018) ). To prove a claim under Brady , a petitioner "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." Reeder v. Vannoy , 978 F.3d 272, 277 (5th Cir. 2020) (internal quotation marks omitted) (quoting United States v. Glenn , 935 F.3d 313, 319 (5th Cir. 2019) ); see also Youngblood v. West Virginia , 547 U.S. 867, 868–70, 126 S.Ct. 2188, 165 L.Ed.2d 269 (2006) (per curiam) (applying Brady to evidence known by government investigators but allegedly unknown by prosecutors); Giglio v. United States , 405 U.S. 150, 154–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (applying Brady to impeachment evidence). As to the third element, "[s]uppressed 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.’ " Reeder , 978 F.3d at 277 (emphasis added) (internal quotation marks omitted) (quoting Murphy v. Davis , 901 F.3d 578, 597 (5th Cir. 2018) ). "Different" means that "the suppressed evidence ‘undermines confidence in the outcome of the trial.’ " Id. (internal quotation marks omitted) (quoting Turner v. United States , ––– U.S. ––––, 137 S. Ct. 1885, 1893, 198 L.Ed.2d 443 (2017) ).

At issue is an FD-302 summary of a March 2014 interview of TJ conducted by an FBI agent. The FD-302 is a form used by the FBI to memorialize conversations between an agent and an interviewee. Basically, "302s" capture the interviewing agent's notes of a witness interview, and they are routinely part of criminal investigations conducted by the agency. So much so that, as noted above, Valas's habeas counsel was able correctly to guess that a 302 was missing in this case, forcing the Government to concede that it "inadvertently" failed to produce the document before trial. The parties thus agree that the 302 was suppressed by the prosecution; they contest the other two elements of the Brady test—whether the evidence was favorable to Valas and material to the outcome of his trial.

The district court denied Valas's claim without addressing whether the evidence was favorable to Valas. Assuming it was, the court found that Valas had failed to demonstrate that the 302 was material. Much of the parties' briefing on appeal thus grapples over the third element. Our analysis will focus there as well.

But before we proceed, we emphasize that the Government's concession that it suppressed the 302 is correct. The Government's only justification for its lapse, that the failure to produce the 302 to Valas was "inadvertent," is troubling. It is difficult to grasp how a document as routine as a 302 would be overlooked, particularly in this instance. TJ was the crucial witness for the prosecution, the only one who actually accused Valas of criminal activity. And the agent who prepared this 302 also testified, so defense counsel was deprived of the opportunity to use the document in cross-examining two witnesses, not just one. We note that, unfortunately, this is not the first time something like this has happened, e.g., United States v. Perea , 625 F. Supp. 2d 327 (W.D. Tex. 2009). We admonish the Government to endeavor to make it the last.

Nonetheless, as the district court concluded, Valas's claimed Brady violation falters because he fails to show how the 302 is material. The 302 itself is fairly short. It consists of ten paragraphs. The first identifies TJ and the location of the interview. Four through ten recount that the investigators showed TJ photographs and TJ identified individuals from them. Only the second and third paragraphs relate to Valas. The second paragraph indicates that TJ identified Valas from a photo array. The third encapsulates details about her encounter with Valas:

[TJ] remembered that VALAS was very surprised when [TJ] showed up to his room because VALAS thought that the photos on the advertisement were "fake." VALAS took [TJ]'s clothes off slowly and had

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