United States v. Cloud

102 F.4th 968

UNITED STATES of America, Plaintiff-Appellant, v. James Dean CLOUD, Defendant-Appellee.

No. 22-30044

United States Court of Appeals, Ninth Circuit

Argued and Submitted December 8, 2023 Seattle, Washington

Filed May 21, 2024

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge,

Presiding, D.C. Nos. 1:19-cr-02032-SMJ-1, 1:19-cr-02032-SMJ

William A. Glaser (argued), Attorney, Criminal Division; Lisa H. Miller, Deputy Assistant Attorney General; Kenneth A. Polite, Jr., Assistant Attorney General; United States Department of Justice, Washington, D.C.; Russel E. Moot, Assistant United States Attorney, Eastern District of Washington; David M. Herzog, Assistant United States Attorney; Vanessa R. Waldref, United States Attorney; Office of the United States Attorney, Spokane, Washington; for Plaintiff-Appellant.

Colin G. Prince (argued), Chief Appellate Attorney; Federal Defenders of Eastern Washington & Idaho, Spokane, Washington; Lorinda M. Youngcourt, Assistant Federal Public Defender; Federal Public Defenders of Eastern Washington & Idaho, Spokane, Washington; Paul E. Shelton, Jr., Federal Defenders of Eastern Washington & Idaho, Yakima, Washington; Jeremy B. Sporn, Assistant Federal Public Defender; Office of the Federal Public Defender, Albany, New York; John B. McEntire, IV, Connelly Law Offices PLLC, Tacoma, Washington; for Defendant-Appellee.

Before: M. Margaret McKeown, N. Randy Smith, and Gabriel P. Sanchez, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

In the midst of a complicated five-body homicide trial, the district court learned that the Government failed to turn over information suggesting that its star witness, Esmeralda Z., was willing to shape her testimony in exchange for certain benefits. The defense did not learn of this turn of events from the Government. Rather, the night before the witness was expected to testify, her counsel alerted defense counsel of text messages that implicated Esmeralda's credibility. Defense counsel informed the court, and after hearing testimony that revealed additional troubling details, the court entered an order sanctioning the Government for violating James Cloud's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The court excluded the witness and ordered the Government to pay a modest monetary sanction as reimbursement for the time spent getting to the bottom of the nondisclosure.

Not only did the Government suppress evidence, but that suppression was material under Brady. Consistent with our circuit precedent, we affirm the monetary sanctions against the Government, which were imposed under the district court's exercise of supervisory powers, and we reject the Government's argument that sovereign-immunity principles bar the sanctions. See United States v. Woodley, 9 F.3d 774, 782 (9th Cir. 1993).

BACKGROUND

James Cloud was charged with multiple offenses, including five counts of murder, for crimes committed on an Indian reservation in 2019. At his March 2022 trial, the Government planned to call witnesses to identify Cloud as the killer, including Esmeralda, who was scheduled to take the stand during the afternoon of the trial's second day.

Esmeralda was, by all accounts, a key Government witness. The only other witnesses expected to identify Cloud as the shooter—one, an accomplice who testified as part of a plea deal and the other, Cloud's cellmate who testified hoping to get his federal-drug-trafficking sentence reduced—agreed to testify in exchange for conferred or potential benefits. That left Esmeralda as the sole disinterested witness expected to name Cloud as the killer in two of the charged murders. Indeed, weeks before trial—when law enforcement was having trouble locating her—the district court granted the Government's request to designate her as a material witness and authorized a material witness arrest warrant to secure her presence. After Esmeralda was arrested on that warrant in February 2022, the district court appointed an attorney to represent her.

The night before Esmeralda's scheduled testimony, her boyfriend, James S., sent a text message to the lead FBI agent on the case, Troy Ribail. That message referenced James's pending weapon and drug charges in a different county in Washington:

Hi it's James what can we do about my stuff in Kittitas [C]ounty. I've been more than willing to help you guys out and still am cause she wants to go in there and ple[ad] the 5th and say she don't remember anything and is even thinking about taking off. I need my [Kittitas] stuff to go away you guys need her testimony sayi[n]g which one shot who . . . . I need my charges gone so I can get to work and move on in my life. She will testify to whatever you need her to if you can make that happen.

Soon after Ribail received this message, he called Esmeralda. It was clear that James was with Esmeralda and listening in on a speakerphone, as he started yelling at Ribail towards the end of the call. After the call ended, James texted Ribail again at 7:20 PM: "So ju[s]t so I understand correctly y[o]u are no longer going t[o] help with relocation or any kind of protection for my girl and our family correct? S[o] you were just blowing smoke up our asses yesterday?" A few minutes later, an Assistant United States Attorney called Esmeralda's attorney to inform him of James's text messages and to request a meeting with Esmeralda and her lawyer the next day during the morning trial break, because prosecutors were concerned that she might not comply with her subpoena. A few hours later and after having obtained a waiver of the attorney-client privilege, Esmeralda's attorney—who knew defense counsel personally—phoned Cloud's attorney to inform him of the text messages.

The next morning before court was called into session (and with Esmeralda scheduled to testify that afternoon), Cloud's attorney asked prosecutors whether there was anything they wanted to bring up—they responded that there was not. Shortly after court began and just minutes before jury proceedings were set to commence, Cloud's attorney notified the district court that he had become aware of James's text messages, which the Government had not disclosed.

The district court excused the jury and called witnesses to unravel the chronology and history of the nondisclosure. Esmeralda confirmed that she was aware that James had texted Ribail, and that he did so with her approval. Esmeralda also revealed that, starting about two weeks before, she had had discussions with Ribail about relocating for safety reasons after her testimony. She explained that James's text message reflected their hope that the Government would help resolve his pending charges so that they could move to another state together. Esmeralda also testified that in the days prior to her scheduled testimony, Ribail had told her that he would help with money for a down payment "or whatever was necessary." Esmeralda stated that she had given Ribail a list of the funds she needed, including housing expenses and relocation costs. She had been pushing Ribail to commit these promises to writing, but he told her there "wasn't enough time." Days earlier, Esmeralda had texted Ribail: "I'm so mad and confused. Idk if ur trying to lose a big case but we need to talk."¹

Finally, Esmeralda admitted on the stand that she was willing to shape her testimony in exchange for receiving these benefits. When asked, "[Y]ou were willing to say whatever they wanted you to say . . . . That's what you were willing to do, correct?," she responded, "Yeah." The court then followed up with a final question: "You were willing to change your testimony based upon whether or not you got this benefit; is that right?" Esmeralda offered an unequivocal "Yes" in response.

The Government never disputed Esmeralda's testimony, nor did it ever disclose any of this information to defense counsel. Ribail—who testified before Esmeralda for around 43 minutes—admitted that he had been communicating with Esmeralda and James for several weeks to locate Esmeralda and to coordinate her witness preparation, but he never disclosed in testimony before the district court any discussions of relocation or financial assistance. Those discussions only came to light when Esmeralda testified after Ribail.

After hearing this testimony, the Government indicated that it would not call Esmeralda as a witness, and the district court stated that it would exclude her because she was unreliable. The court then made a finding that the Government's "egregious" conduct violated Brady, and stated that it would sanction the Government accordingly. The next day, the court reiterated that sanctions would be forthcoming, and ordered the defense to submit an accounting of time and expenses spent dealing with the matter, excluding what the defense reasonably would have spent had it been given timely notification of the impeachment material and had Esmeralda testified. A week later, on March 9—the same day that the jury entered a verdict convicting Cloud on thirteen counts, including four counts of first-degree murder²—the district court issued a sanctions order, directing the Government to pay $4,844.68 (an amount that reflected the defense's accounting) to the Federal Defenders of Eastern Washington & Idaho and $216.00 (the amount paid to jurors while they sat idle) to the district court clerk.³

ANALYSIS

I. Appellate Jurisdiction

This case presents an unusual situation. The Government filed a timely notice of appeal of the sanctions order two weeks after the district court issued the order, but several months before final judgment issued in the underlying criminal case. The Government asserts jurisdiction under 28 U.S.C. § 1291, or alternatively under 28 U.S.C. § 1651(a) as a petition for a writ of mandamus. It goes without saying that it is atypical for us to hear an appeal from the Government after it has...