United States v. Orozco

291 F.Supp.3d 1267

UNITED STATES of America, Plaintiff,

v.Gregory OROZCO, Defendant.

Case No. 15–20074–JAR

United States District Court, D. Kansas.

Signed December 5, 2017

Terra D. Morehead, Office of United States Attorney, Kansas City, KS, for Plaintiff.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

After a jury trial, Defendant Gregory Orozco was convicted of two counts of drug trafficking charges and acquitted of two counts of firearm charges. This matter comes before the Court on Defendant's Motion for New Trial (Doc. 92); Defendant seeks either a new trial, or an order vacating the convictions and dismissing the charges with prejudice.¹ The Court held two evidentiary hearings on this matter. At the conclusion of the second hearing, the Court invited the parties to submit additional briefing regarding the type of remedy the Court should enter if it found a Sixth Amendment violation. The parties each submitted supplemental briefing.² The matter is fully briefed and the Court is now prepared to rule. Based on the evidence, the Court finds that the prosecutor in this case, Assistant United States Attorney ("AUSA") Terra Morehead, substantially interfered with a defense witness's decision to testify. The Court concludes that in doing so, AUSA Morehead violated Defendant's rights under the Sixth Amendment. As more fully explained below, AUSA Morehead's conduct in violating the Sixth Amendment cannot be adequately remedied by a new trial. Thus, the Court grants Defendant's motion, vacates the convictions on Counts 1 and 2, and dismisses Counts 1 and 2 of the Superseding Indictment with prejudice.

I. Charges and Pretrial Procedural Background

Defendant was charged in a Superseding Indictment with: Count 1—conspiracy to possess with intent to distribute fifty grams or more of methamphetamine; Count 2—knowingly and intentionally possessing with intent to distribute five grams or more of methamphetamine; Count 3—knowingly, intentionally, and unlawfully possessing a firearm in furtherance of a drug trafficking crime; and Count 4—felon in possession of a firearm. Counts 2, 3 and 4 stemmed from an interaction between United States Marshals and three occupants of a car, including Defendant. Only Defendant was charged.

The trial was originally set to commence on December 12, 2016. On that morning, AUSA Morehead filed an Information to Establish Prior Conviction,³ effectively doubling the mandatory minimum sentence for the conspiracy charged in Count 1, from a mandatory minimum of 10 years to a mandatory minimum of 20 years.

And, just minutes before the trial was to commence, Defendant moved to continue the trial because AUSA Morehead only that morning had provided him with additional evidence. This evidence was three SIM cards and a flash drive, which had been in the same small case from which officers had recovered the methamphetamine charged in Count 2. Defendant noted that this evidence consisted of more than 200 photographs that may be associated with one of the other individuals in the car, not Defendant.

AUSA Morehead advised the Court that her late-disclosure of this evidence was inadvertent, as the evidence had been secured in the property vault, rather than in the evidence vault, and she only became aware of it shortly before trial. When the Court asked AUSA Morehead whether she intended to use this evidence, she responded that these were "random, discrete photos" of "normal things" that "didn't appear to be anything related to drugs or guns or anything like that."⁴

AUSA Morehead did not inform the Court that this evidence was potentially exculpatory evidence, that is, Brady information that she was required to disclose. But, it was Brady evidence, and ultimately figured prominently in the defense. Based on the late disclosure of this evidence, the Court continued the trial for two months, until February 2017.

II. Government's Evidence at Trial

Several Deputy United States Marshals ("DUSMs") were assigned to find a fugitive named Ryan Barker. The DUSMs learned that Barker would likely arrive at a certain CVS store on the evening of February 23, 2013 in a maroon truck with a woman named Amy Stimec–Smart, and engage in a drug transaction. Thus, the DUSMs set up surveillance outside the CVS store. They observed a maroon pickup truck arrive with three occupants. They further observed a silver pickup truck arrive and park close to the maroon truck. They watched as a woman exited the passenger side of the maroon truck, walked to the silver truck, took an object from the driver of the silver truck, and returned to the maroon truck.

Believing this was the anticipated drug transaction involving Mr. Barker, the DUSMs converged on the maroon truck. DUSM Brady Flannigan saw the driver of the truck reaching for the floorboard. The DUSMs yelled their presence and ordered the three occupants, all sitting in the front seat, to exit the truck. Defendant was in the driver's seat and exited the truck. Tommy Cordell–Eastland, who was sitting in the middle of the front seat, and Amy Stimec–Smart, who was sitting next to the passenger window of the front seat, also exited the truck. The DUSMs did not find Mr. Barker during this encounter. After handcuffing the three occupants, the DUSMs searched the truck.

Under the driver seat where Defendant had been sitting, DUSMs recovered an unloaded firearm, which was partially visible from the driver's side floorboard. They also recovered from under the driver's seat a clear plastic case that contained pills, marijuana and 4 small empty plastic baggies that usually package user-quantities of narcotics. On the front seat of the truck where the three occupants had been sitting, the DUSMs found a loaded magazine that fit the firearm and a large amount of US currency. In the flipped-up front seat console armrest, the DUSMs found a small pink nylon case that contained the aforementioned SIM cards and flash drive, including over 200 photographs of Amy Stimec–Smart and her family and friends. The small pink nylon case also contained one bag containing 41.3 grams of methamphetamine.⁵ Amy Stimec–Smart testified that the small pink case could have belonged to her, but the methamphetamine was not hers. Neither Amy Stimec–Smart, nor Tommy Cordell Eastland was charged. Defendant was charged with possession with intent to distribute the methamphetamine, using or carrying the firearm in furtherance of the methamphetamine charge, and being a felon in possession of the firearm. The jury acquitted Defendant of both firearm charges.

Defendant was also charged, and the jury convicted him of, conspiracy to distribute or possess with intent to more than 50 grams of methamphetamine, from 2012 to June 2013. The government called several witnesses regarding Defendant's purchase or sale of methamphetamine during the time of the alleged conspiracy. Tommy Cordell–Eastland, who had been in the truck with Defendant, testified that he had bought personal-use amounts of methamphetamine from Defendant, ranging from 1.75 grams to 3.5 grams; over time he began buying larger quantities from Defendant to sell to others, ranging from 1.5 to 2 ounces. Cordell–Eastland testified that the largest quantity he ever bought from Defendant was ¼ pound; and that he had another supplier as well. Cordell–Eastland further testified that on the day of the encounter with the DUSMs, he had paid Defendant $1000 he owed him from a prior drug purchase from Defendant; and this money was seized by the DUSMs. Cordell–Eastland also testified that he and Defendant used methamphetamine together. Brittany Eastland, who is married to Cordell–Eastland, testified that she had previously been Defendant's live-in girlfriend and that Defendant supplied her with personal-use amounts of methamphetamine which she used, and sometimes sold to others. On cross-examination, Defendant challenged the quantities and frequencies of these transactions, and also challenged the motivations of these witnesses.

Felix Leal and Jose Alejandro Ruiz ("Alejandro Ruiz") were also called as government witnesses and testified that they sold methamphetamine to Defendant during the time period charged in the Count 1 conspiracy. Leal testified that he sold methamphetamine to Defendant in one- to two-ounce quantities, once or twice a week, which were for Defendant's personal use. Sometimes Leal gave methamphetamine to Defendant, in exchange for Defendant allowing Leal to live in Defendant's house while Leal's house was under heavy law enforcement surveillance.⁶ Leal testified that Defendant in turn sold methamphetamine to Cordell–Eastland.

While the other witnesses testified that Defendant typically bought or sold one to two ounces of methamphetamine or less, government witness Alejandro Ruiz testified that Defendant bought larger quantities from him. Alejandro Ruiz testified that he met Defendant in early 2012 at the Seventh Street Casino in Kansas City, Kansas and began selling methamphetamine to him after that time.⁷ Alejandro Ruiz testified that he began selling to Defendant in one- to two-ounce quantities, but progressed to selling him four-ounce quantities when Defendant "was doing good."⁸ He further testified that he dealt methamphetamine to Defendant until November or December 2012, and that during this time he sold Defendant four-ounce quantities of methamphetamine more than five times.⁹ He testified that he dealt methamphetamine to Defendant up to two or three times a week during this time.¹⁰ Alejandro Ruiz also testified that he sold a chameleon-colored Camaro to Defendant in August 2012, and that he did not recall that Defendant ever paid him for the car.

On cross-examination, Defendant's attorney, James Campbell, challenged Alejandro Ruiz's motivation to testify, questioned why he did not mention Defendant's name in his proffer to case agents, questioned whether he had ever sold methamphetamine to Defendant and questioned whether he had been introduced to Def...