Defendant Wins on Brady Issues; Gov't Failed to Disclose Information About Confidential Informant

United States v. Torres, ___F.3d ___, 2009 WL 1862528 (10th Cir. 2009)

Addressing Brady and evidentiary issues, the COA hands a victory to the Defendant. The opinion bears careful reading. (Sorry for the length–this is a rare fact-bound defense victory).

Set up: In May, 2005, confidential informant (CI) arranges a controlled drug buy with the Defendant. The buy is witnessed by the cops. During discovery, the government discloses that the CI has two prior felony convictions, has been working for cops for 8 months, was paid $100, was a meth user who had been clean for 15 months. Defendant asks for more under Brady/Giglio, with specificity. Government responded that it gave all material in categories requested or that there was no such material. District Court granted Defendant’s requests regarding what was already disclosed, and denied it for additional material–there was sufficient material for impeachment of CI disclosed. Court barred Defendant from cross examining CI on March 2004 arrests for drug possession and forgery because charges against CI dismissed in April 2004. Defendant was convicted.

District Court denied Defendant's new trial/Brady motion on newly discovered evidence to impeach CI which government failed to disclose: that DEA had retained CI on 2 occasions prior to Defendant’s indictment, Feb to March 2004--terminated because of forgery arrests--and August to Dec 2005. She was thus a freelancing drug dealer and forgerer in the period she was retained by DEA. Plus, CI had once during a de-briefing misidentified the subject as “Ms. Esparza’s nephew” when the subject, Defendant, was her son.

The Tenth Circuit reversed. The district court applied the wrong five-factor newly discovered evidence test, which does not apply when a Brady violation is alleged. It erroneously modified the test with Brady, discounting the impeachment evidence and heightening the burden on Defendant to show entitlement to a new trial. The error was not harmless. The Brady test requires only that the government suppressed the evidence, evidence was favorable to the Defendant, and material. Because of government concessions, materiality was the only issue for the Court of Appeals.

Emphasizing the importance of cross examining the CI in a case like this, the Tenth said a number of interesting things. Reminiscent of Melendez, it said that it is immaterial that the Defendant had said he might call witnesses to impeach the CI–Rule 608 permits cross examination of a witness with conduct that undermines credibility. The Court then reviewed the evidence and found that the case indeed hinged on the CI’s credibility, and recounted evidence that tended to show that the cops’ observations during surveillance did not provide good independent evidence against Defendant: the car in which the buy took place had dark windows; cops could not make out the conversation between CI and the drug seller; cops got only a glimpse of the seller through the windshield of the moving vehicle; cops did not have photos of Defendant before the surveillance to see if seller matched his picture; no drug sniffing dog or female cop searched CI to make sure she was not hiding drugs in her underwear prior to the buy (!); buy money never recovered from Defendant.

The Court further pointed out that the government rehabilitated the CI with DEA witnesses who called her one of the most reliable CIs they had ever worked with; she was helping as a CI in order to better the community; she had been drug free from Dec. 2004 til trial.

The CI’s conflating Defendant with a cousin was also material, given the CI’s failure to mention Defendant as a druggie in some earlier documents, and her stating that the cousin was a major drug dealer, demonstrating that the mis-naming during the debriefing was not a mere slip of the tongue.