Amicus Curiae Brief — Turner v. United States, 137 S. Ct. 614 (2016) (No. 15-1503)

FEB 2. 2017

rears a SeSOS O 20-2000. te |

IN THE

Supreme Court of the Anited States

CHARLES S. TURNER, ET AL., PETITIONERS,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

RUSSELL L. OVERTON, PETTTIONER,

Vv.

UNITED STATES OF AMERICA, RESPONDENT.

On Writ of Certiorari to the District of Columbia

Court of Appeals

BRIEF OF AMICUS CURIAE

WILFREDO LORA

IN SUPPORT OF PETITIONERS

ALAN B. MORRISON

(COUNSEL OF RECORD)

THE GEORGE WASHINGTON

UNIVERSITY LAW SCHOOL

2000 H STREET NW

Washington, DC 20052

(202) 994-7120

(202) 994 5157 (Faxy

abmorrison@law.gwu.edu

February 2, 2017

TABLE OF CONTENTS

TABLE OF AUTHORITIES .........0000 eee

INTEREST OF AMICUS CURIAE ...................... 1

SUMMARY OF ARGUMENT .......00 ee 2

ARGUMENT

THE JUDGMENT BELOW SHOULD BE

REVERSED, AND THE COURT'S OPINION

SHOULD CLARIFY AND RE-ENFORCE THE

OBLIGATIONS OF PROSECUTORS UNDER

SIE saiiaieincotaknnedsiivieniacestatacinseniidedsaectanmeubinciacnitaines 5

A. The Refusal of Government Counsel to

Produce Vital Brady Material at Lora’s Trial

Demonstrates the Seriousness of the Problem. 5

B. When a Prima Facie Brady Claim is

Presented, Prosecutors Should Be Directed to

Respond Substantively in All Cases. ............... 12

C. The Burden of Obtaining a New Trial When

a Brady Violation Has Been Established Should

SE A RINE iS RM ine ERECT AS ECE 2 15

li

TABLE OF AUTHORITIES

Cases

Felker v. Turpin, 518 U.S. 651 (1996) ................. 14

Kyles v. Whitley, 514 U.S. 419 (19985)............ 11,13

United States v. Agurs, 427 U.S. 97 (1976)..... 4, 11

United States v. Bagley, 473 U.S. 667 (1985)...... 11

United States v. Olsen, 737 F.3d 625 (9th Cir.

A SIS os MS Re ORR eS irae 10

Statutes

28 U.S.C. § 2244(b)(1)(B)(ii)........... eee eeeeeeeereeeeeeeee LB

oe EE |

28 U.S.C. § 2244(b)(B)(E) ....-oe.cececccccceecceessseeeenees 14

28 U.S.C. § 2255... ccc. See fo A RATE 4

2B U.S.C. § 2255(£)(4) ....-ecceccceccccccosecseeecsescsseeeevees 12

I i hiniciccndeineusineionsniénddeadeedtniéenns ame

28 U.S.C. § 2255(h)(1) ......-.-eececoeccsssssecsesssesssseeeee 12

INTEREST OF AMICUS CURIAE

WILFREDO LORA!

This brief is submitted to illustrate to the

Court the severity of the problem of federal

prosecutors failing to carry out their disclosure

obligations under Brady v. Maryland, 373 U.S. 83

(1963). It also demonstrate why this Court should

clarify and strengthen those obligations in

reversing the judgment below under existing

Brady jurisprudence.

The facts in this brief relating to the

conviction of amicus Wilfredo Lora are taken from

the petition for a writ of certiorari (No. 15-6826)

and petition for a writ of habeas corpus (No. 15-

6807) that he filed in October 2015. Lora’s affidavit

and supporting exhibits were attached as

appendices to his habeas corpus petition, and they

form the factual basis for his certiorari petition and

his motion to certify filed in the Fourth Circuit, in

which he sought permission to file a successive

motion for a new trial. For convenience, the basis

for the factual statements in this brief will cite to

the motion to certify that was attached to amicus’

certiorari petition (“App __”).

1 This brief is being filed with the consents of all parties,

which are being filed with the Court. No person other than

amicus or his counsel has authored this brief in whole or in

part or made a monetary contribution toward its preparation

or submission.

SUMMARY OF ARGUMENT

Wilfredo Lora is a citizen of the Dominican

Republic. After residing in the United States for

more than 14 years, he was arrested and

eventually convicted in 1999 in the United States

District Court for the Eastern District of Virginia

of being the ringleader of a massive drug

conspiracy and sentenced to 292 months in federal

prison. He was granted early release in November

2015. However, solely because of his drug

conviction, he was deported to the Dominican

Republic in December 2015, where he now lives.

From the moment of his arrest until today,

Lora has maintained that he never participated in

any drug conspiracy and that his conviction was

obtained by the use of the false testimony of the

witnesses against him. While in prison, he filed

multiple pro se actions seeking release and/or a

new trial, but none were successful. Eventually, he

obtained copies of the presentence reports of the

three key witnesses against him, which had never

been provided to him or his counsel for trial, as

required by Brady v. Maryland, 373 U.S. 83 (1963).

As more fully explained below, the presentence

reports for the two main witnesses contained

evidence that directly contradicted their testimony

against Lora, and the report of the third witness

contained information regarding his crimes that

was completely inconsistent with that witness’s

trial testimony. Shortly after receiving those pre-

sentence reports, Lora obtained the pro bono

services of undersigned counsel to represent him in

seeking a new trial based on this newly discovered

and wrongly withheld evidence.

Because Lora had filed prior motions to set

aside his conviction and/or for a new trial, he had

to obtain permission from the Court of Appeals for

the Fourth Circuit to file a motion for a new trial in

the district court in which he was convicted.

Counsel filed a motion to certify, seeking that

permission, in which he detailed the facts of Lora’s

Brady claims. Without requiring a response from

the United States, the Court of Appeals denied the

request, with no explanation. Lora then sought

review in this Court, by both certiorari and habeas

corpus, but again, the United States did not reply,

and this Court denied review.

The Brady violation that Lora sustained

shines an important light on the willingness of

prosecutors to circumvent the requirements of

Brady. First, it confirms that federal prosecutors

either do not understand or do not follow the

commands of Brady in situations where there can

be no doubt as to its applicability: prior statements

by key witnesses that directly contradict their trial

testimony. To bring clarity to the mandate of

Brady, this Court should require that all

documents in the possession or control of the

Government that contain information about

testifying witnesses, such as the pre-sentence

reports in Lora’s case, should be automatically

provided to defense counsel for use at trial, without

filtration by Government counsel on the grounds

that the information contained therein is either not

exculpatory or not material.

Second, Brady violations are often

discovered many years after a conviction, and in

many cases after the defendant has filed

unsuccessful motions to set aside the conviction.

When the courts of appeals receive a petition for

leave to file a successive motion to set aside a

conviction under 28 U.S.C. § 2255 based on alleged

Brady violations, they should be directed to require

a substantive response from the Government, so

that there is an evidentiary basis on which the

court can decide either to allow or deny the

petitioner permission to seek relief in the district

court. This procedure is especially important

because the prosecutor alone knows why the Brady

evidence was not produced at trial.

Third, because, as in this case, much Brady

material is only uncovered long after a trial is

concluded, this Court should no longer require

defendants to shoulder the heavy burden of proving

that the wrongly withheld evidence would have

altered the outcome of the trial. Government

lawyers already have little enough incentive to

turn over Brady materials at trial, and if they fail

to do so, the Government should be required to

explain why that failure did not affect the outcome,

instead of imposing that burden on the defendant,

as the court below did in this case.

While such bright-line rules are not

necessary for the Court to rule in favor of

petitioners in this case, these straightforward

proposals would do much to fulfill Brady's

“overriding concern with the justice of the finding

of guilt” and would provide sorely needed guidance

to Government counsel and lower courts on the

scope and extent of the Government's Brady

obligations. United States v. Agurs, 427 U.S. 97,

112 (1976).

ARGUMENT

THE JUDGMENT BELOW SHOULD BE

REVERSED AND THE COURT'S OPINION

SHOULD CLARIFY AND RE-ENFORCE THE

OBLIGATIONS OF PROSECUTORS UNDER

BRADY.

A. The Refusal of Government Counsel

to Produce Vital Brady Material at

Lora’s Trial Demonstrates the

Seriousness of the Problem.

After a two day trial, Lora was convicted of

a conspiracy to distribute five kilograms of cocaine

and one kilogram of heroin that was alleged to have

begun in 1986 and continued until he was arrested

in August 1998. The only evidence against him was

the testimony of eleven convicted felons, all of

whom claimed to have been part of this conspiracy,

and all but one of whom was then in federal prison

for drug-related offenses. The witnesses all

claimed that the hub of the conspiracy was Willie’s

Auto Body Shop owned and operated by Lora in

Northwest Washington DC. Despite the length of

this conspiracy, there were no drugs seized or

offered in evidence, no documents or other tangible

evidence supporting the charge, and no Drug

Enforcement Agent who claimed to have witnessed

the operation or offered any corroborating

evidence.

Lora has maintained his innocence from the

time of his arrest to date. His appeal from his

conviction was denied, as were his efforts to have

his sentence reduced. He subsequently filed

numerous motions and appeals attacking his

conviction, all pro se, and all unsuccessful. In the

fall of 2014, he finally obtained the presentence

reports of two key witnesses in his trial, which,

together with another report that he had obtained

several years before, provided a very strong basis

for Lora’s new trial motion.

The most significant of the pre-sentence

reports was that of Franklin Cano, who was the

Government’s first witness and who described the

alleged drug conspiracy in greatest detail. App. 6-

7. Cano testified that he came to the United States

in 1982, started selling drugs illegally with Lora in

New York City in 1987, and continued doing that

with Lora until he moved to Maryland in 1990.

Cano testified that he commuted to Washington,

DC, mostly by airplane, to traffic multiple

kilograms of cocaine at a time. According to Cano,

he would meet Lora at National Airport and bring

as much as 25 or 50 kilograms of cocaine at a time

to the auto body shop that Lora allegedly owned at

that time. Thus, crucial to Cano’s accusations is

the time—1987 to 1990—that he claimed he was

delivering drugs from New York to Lora in

Washington.

Cano had been convicted of a federal drug

offense. That fact was known to Lora and his

defense counsel, but they were never provided

Cano’s January 1996 presentence report for that

offense, to which the U.S. Attorney’s office plainly

had access at the time of trial. When Lora obtained

that report (App. 6-7), it revealed that Cano did not

live in New York from 1987 to 1990 as he testified.

More importantly, Cano could not have been

engaged in the alleged conspiracy as early as 1987

because that report stated that Cano studied and

worked in Puerto Rico from the early 1980s until

April 1988, when he moved to the United States,

coming to Washington, not New York that

September. In addition, an application that Cano

filed with the INS (App. 7), confirmed that Cano

came to Puerto Rico, not New York City, in 1982,

where he lived until 1988. In neither of these

official documents is there any reference to his

living or working in New York. And when Cano

came to the Washington area, the presentence

report states that, from December 1988 to

February 1990, he worked for a cleaning company

at Washington National Airport, and that he

worked at another cleaning company in Rockville

from August 1990 to November 1992. App. 7.

Presentence reports are not routine

government documents, subject to all the frailties

of human reporting. Rather, they are prepared by

federal probation officers from information that

they are given by the defendant, verified with

information from third parties (such as former

employers, as happened for Cano), and then used

by the Government in suggesting a sentence and by

sentencing judges in imposing one. In short,

presentence reports are not just any evidence, but

are highly reliable and could not be rejected by a

jury without some explanation, which could not

have happened here because the report was not

provided to Lora’s lawyer for use at trial.

Moreover, Cano’s testimony was hardly of

peripheral relevance to the case against Lora. As

is clear from the prosecutor’s closing statement at

trial (App. 8), the core of the alleged conspiracy was

that Cano trafficked drugs from New York to

Washington, where they were allegedly delivered

to Lora’s body shop. Thus, the evidence that Cano

lied about crucial elements of the charges against

Lora was unrebutted, and thereby established the

factual basis for his Brady claim.

The presentence report that forms the basis

of the second Brady violation is that of Roberto

Rodriguez prepared in connection with his

December 1991 sentencing for cocaine distribution.

App. 10. Rodriguez was the only Government

witness against Lora who was not then

incarcerated in a federal facility although, as an

alien and a convicted felon, he was under an order

of deportation. Rodriguez testified at trial that he

worked for Lora from March 1989 to May 1991 at

his body shop in Washington DC, where he

witnessed the drug conspiracy alleged in the

indictment, including delivery of cocaine at

National Airport.

Rodriguez's presentence report tells a very

different story for that period. App. 10-11. In

direct contradiction of his trial testimony that he

worked for Lora in 1989-1991, the report states

that Rodriguez worked at Falls Church Auto Body

Shop from March 1988 to January 1990 and at

Craftsman Auto Body Shop in Chantilly, Virginia,

from September 1990 to April 1991. The

presentence report makes no mention of

Rodriguezs employment starting in 1989 at

Willie’s Auto Body Shop, or at any entity related to

Lora, or at any other place in the District of

Columbia. Unless Rodriguez was working two jobs,

and told the presentence investigator about only

one of them, his testimony at trial is false. ?

The third significant presentence report is

that of Leopoldo Perez, also a convicted drug dealer

and labeled a “major supplier” in his presentence

report. App. 8. He claims to have participated in

Lora’s drug conspiracy from 1993 to the time of his

arrest in December 1996. App. 8-9. His prior drug

conviction was for an offense that took place from

the summer of 1994 until late 1996. The details are

spelled out in full in his presentence report and in

the Statement of Facts to which he and the

Government agreed when he pled guilty. Those

factual descriptions are most significant for what

they do not say. Even though Perez's trial

testimony was that he was involved with Lora from

1993 until his arrest in November 1996, these two

detailed statements of facts against him covering

most of the same period never mention Lora or

Willie’s Auto Body Shop.

This omission is significant for several

reasons. The arrest of Perez and his co-

conspirators was based on extensive DEA

surveillance, yet there is no mention of Lora in

either document, even though Perez was

supposedly dealing heavily with him during this

? There was another serious flaw in the testimony of

Rodriguez and Cano. Official government records attached

as exhibits to Lora’s affidavit confirm that Lora only owned

Willie’s Auto Body Shop from January 1994 until July 1996,

far after the periods in which those witnesses alleged the

conspiracy took place. App. 13.

10

same time period. Indeed, the DEA did not come

after Lora until August 1998, which suggests that

they were unaware of Perez’s alleged dealings with

Lora in 1993-1996 or, more likely, that there were

no such dealings. In addition, the Perez

prosecution was supported by evidence from DEA

agents and seized drugs, neither of which were

present in Lora’s case. Finally, if Perez had

evidence about Lora’s illegal activities when he was

sentenced in 1996, he surely would have come

forward with it then in order to obtain a reduction

in his sentence, instead of only after Lora was

arrested and indicted two years later.

These undisputed facts are living proof of

the conclusion drawn by then-Chief Judge Alex

Kozinski, dissenting from the denial of rehearing

en banc in United States v. Olsen, 737 F.3d 625, 626

(9th Cir. 2013): “There is an epidemic of Brady

violations abroad in the land. Only judges can put

a stop to it.” The documents withheld — pre-

sentence reports of three key witnesses — are

plainly relevant in any criminal trial, especially

when there was no evidence beyond the trial

testimony of the prosecution’s witnesses. Because

the witnesses were all convicted of federal drug

felonies, the Office of the U.S. Attorney surely

knew how important presentence reports are and

either had the reports (to defend against cross-

examination by Lora’s trial counsel) or could easily

obtain them. Defendants are not required to make

a specific request for Brady material, and this

Court has held that Brady applies to impeachment

as well as direct exculpatory evidence. United

States v. Bagley, 473 U.S. 667, 676 (1985). Thus,

1]

there can be no doubt that the presentence reports

in Lora’s case were Brady material that should

have been turned over for trial, and little doubt

that had they been available to defense counsel, the

trial and almost certainly the verdict would have

been very different.

Lora’s facts are also important because they

demonstrate the need for the Court to spell out in

detail the kinds of evidence that clearly comes

within the Brady mandate. These would include

presentence reports, prior statements of testifying

witnesses, statements of other fact witnesses not

called for trial, results of forensic testing (whether

used or not), and any other evidence (admissible or

not) that might be useful to the defense. Years

after a trial, when Brady materials eventually

surface, the trial judge is asked to decide “whether

in its absence [defendant] received a fair trial,

understood as a trial resulting in a verdict worthy

of confidence.” Kyles v. Whitley, 514 U.S. 419, 434

(1995). That necessarily artificial and hypothetical

inquiry would be avoided if prosecutors carried out

their Brady duties properly, because the jury would

have had the evidence in making its determination

of guilt or innocence, instead of asking courts to

speculate on the significance of the withheld

evidence years later. As the Court has previously

instructed, the message that prosecutors should

receive is that all doubts should be resolved in favor

of disclosure to the defense. See Kyles, 514 U.S. at

439; Agurs, 427 U.S. at 108. Yet, as in Lora’s case,

prosecutors often follow the contrary presumption,

confirming the need for further guidance from this

Court.

12

B. When a Prima Facie Brady Claim is

Presented, Prosecutors Should Be

Directed to Respond Substantively in

All Cases.

In this case, the petitioners were fortunate

in one respect: they had not made previous post-

conviction motions to set aside their convictions

before they obtained the exculpatory evidence that

Brady required be made available at trial. Lora

faced an additional hurdle, frequently arising in

cases like his. Because Lora, acting pro se, had

filed previous motions to vacate his conviction, he

was barred by 28 U.S.C. § 2255(h) from filing a

successive motion without first obtaining

permission from the Fourth Circuit via a motion to

certify. His recently-obtained counsel filed that

motion on September 24, 2015, accompanied by

Lora’s affidavit, exhibits, and a proposed

memorandum in support of the motion to vacate

his conviction based on the Government’s failure to

provide him with these exculpatory pre-sentence

reports

The Fourth Circuit did not ask the United

States to respond, and so it was undisputed that

the evidence that Lora submitted was (a) newly

discovered under 28 U.S.C. § 2255(h)(1), and (b)

filed within the one year discovery limitation under

28 U.S.C. § 2255(f)(4). App. 4. Accordingly, the

only legitimate basis on which the Court of Appeals

could have denied the motion was that, “in light of

the evidence as a whole, [the facts] would [not] be

sufficient to establish by clear and convincing

evidence that, but for the constitutional error, no

reasonable factfinder would have found the movant

13

guilty of the underlying offense.” 28 U.S.C. §

2244(b)(1)(B)Gi). Given the factual record

presented on Lora’s Brady claims, it is impossible

to understand the basis on which the Court of

Appeals reached a contrary conclusion in its six

word order denying Lora’s motion.

In contrast to Lora, the petitioners here did

not have to obtain permission to file a motion for a

new trial. They simply filed their motion, and the

United States had to respond on the merits. At that

point, the trial and appellate courts had a record on

which to decide whether there was a Brady

violation and if so, whether petitioners were

entitled to a new trial. As this Court observed in

Kyles, 514 U.S. at 521, the answer to that question

“turns on the cumulative effect of all such evidence

suppressed by the government.” And while the

suppressed evidence must be material, that does

not “require demonstration by a preponderance

that disclosure of the suppressed evidence would

have resulted ultimately in the defendant's

acquittal.” Id. at 434.

The briefs of petitioners amply demonstrate

that the Court’s existing materiality standard has

been met in this case. However, there is an

additional point to be made that applies to the very

many cases where newly-discovered Brady

material is the basis of the motion and permission

must be sought to file a motion for a new trial. In

Lora’s case, the court of appeals (and subsequently

this Court) did not ask for a response from the

United States, but rejected Lora’s motion and

provided no reason for doing so. Where, as in

Lora’s case, a prima facie Brady claim is made, the

14

Government typically responds that the new Brady

evidence would not have had the required impact

had it been available at trial. However, for an

appellate court, which must answer this question

as part of its “gatekeeping” function, Felker v.

Turpin, 518 U.S. 651, 657 (1996), it must have the

legal and factual positions of both sides. When

there are Brady claims, a court cannot make a

reasoned determination to deny the motion to allow

the district court to decide the new trial motion on

the merits without some explanation from the

Government as to why the failure to disclose was

not significant. Yet that is just what the Fourth

Circuit did to Lora, saying only that it “denies” his

motion.

The court’s lack of justification for the denial

or Lora’s motion to certify is itself problematic, but

the best cure for that is to be sure that the

gatekeeper courts have the information that they

need to make a supportable ruling. That means

instructing those courts to demand a prompt

response from the Government in every Brady case

in order to meet the thirty day decision

requirement in 28 U.S.C. § 2244(b)(8)(D). And to

assure that the courts of appeals perform their

gatekeeper function properly, they should be

require to explain the basis for any denial of a

motion to certify. That explanation is particularly

important because the following subparagraph, 28

U.S.C. § 2244(b)(8)(E), precludes a defendant from

seeking rehearing of a denial and also precludes

any appeal or petition for certiorari.

15

C. The Burden of Obtaining a New

Trial When a Brady Violation Has Been

Established Should Be Minimal.

The lower courts in this case imposed a

heavy burden on petitioners to establish their

entitlement to a new trial. That was error, mainly

for the reasons given by petitioners in their briefs.

But it was also error because that kind of burden

also increases the incentive for prosecutors not to

turn over Brady material at trial, when it would be

most useful to the defense. Thus, in any case in

which there is a doubt as to whether there is Brady

material that must be disclosed, if prosecutors

know that they will be able to retain an undeserved

conviction because the defendant will be unable to

show that the unavailable evidence would have

mattered to the verdict, they will be tempted to

withhold the evidence.

Once prosecutors become convinced of a

defendant’s guilt, it is natural for them to do

nothing that might prevent a conviction, which

includes turning over any evidence that might be

exculpatory — unless Brady commands them to do

otherwise. Brady already imposes an affirmative

disclosure obligation on prosecutors, and yet, as

Judge Kozinski observed, supra, the epidemic of

Brady violations continues. A major reason for

that is that, even if a Brady violation is discovered,

and the defendant is permitted to file a motion for

a new trial, the prosecutors are likely to succeed in

persuading the lower courts, as they did here, that

the new evidence would not have mattered.

16

The simplest way to decrease the incentives

for withholding exculpatory and impeachment

material from the defense counsel is to place the

burden of proving that a new trial is not warranted

on the party that withheld that material in the first

place — the Government. Of course, even in that

situation, prosecutors may be able to justify the

withholding, and if they cannot, they can still re-

try the defendant. Nevertheless, placing the

burden on the prosecution to explain why a new

trial is not warranted when exculpatory and

impeachment material has been withheld would

strengthen the incentives for prosecutors to make

upfront disclosures of information favorable to the

defense, which is the goal of Brady in the first

instance.

CONCLUSION

For the foregoing reasons, the Court should

reverse the judgment below under its current

Brady standard. Furthermore, the Court’s opinion

should spell out in detail the obligations of all

prosecutors under Brady so that the evidence

favorable to the defense is turned over for trial and

not many years later, when the courts are left the

very difficult task of determining what impact that

evidence would have had if it been timely produced.

17

Respectfully submitted,

Alan B. Morrison

George Washington University

Law School

2000 H Street NW

Washington D. C. 20052

(202) 994 7120

abmorrison@law.gwu.edu

Counsel for Amicus Curiae

Wilfredo Lora

February 2, 2017