Appendix — Briones v. United States

Supreme (Court. U.S.

091044 DEC 16 2009

No. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

Riley Briones, Jr., and

Ricardo Briones,

VS.

United States of America,

Petitioners

Respondent

ON APPEAL FROM THE JUDGEME

vr vv rw rY

NT OF THE

NINTH CIRCUIT COURT OF APPEALS

APPENDIX

Riley Briones, Jr. #41865-008

Federal Correctional Institution

37910 N. 45 Ave.

Phoenix, Arizona 85086

Ricardo Briones #42207-008

Federal Correctional Institution

P.O. Box 9000

Safford, Arizona 85548

Pro Se

la

APPENDIX A-MEMORANDUM*

NOT FOR PUBLICATION

FILED NOVEMBER 30, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 97-10369

NO. 97-10370

NO. 97-10371

NO. 97-10372

D.C.NO. CR-96-00464-RCB

UNITED STATES OF AMERICA

Plaintiff Appellee

V.

RILEY BRIONKES, SR..,

RICARDO BRIONES,

RILEY BRIONES, JR., AND

PHILBERT J. ANTONE,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Arizona (Phoenix)

Robert C. Broomfield, District Judge, Presiding

Argued and Submitted September 15, 1998

San Francisco, California

Before: CHOY, CANBY, AND KLEINFELD, Circuit

Judges.

Introduction

This appeal involves the consolidated cases

of four defendants: Riley Briones, Sr. (“Riley Sr.”),

2a

Appendix A

Ricardo Briones (“Ricardo”), Riley Briones, Jr.

(“Riley Jr.”), and Philbert Antone (“Antone”).

Defendants appeal their respective convictions on

several counts, including murder, arson, and

conspiracy to participate in a racketeering

enterprise.

This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as

provided by Ninth Circuit Rule 36-3.

*

We AFFIRM on all issues except for the

ineffective assistance of counsel claim which we

REJECT WITHOUT PREJUDICE.

Analysis

Each Defendant raises several arguments on

appeal, some of which overlap. We address each in

turn.

a Severance of trial

A. Riley Sr.

Riley Sr. argues that the district court’s refusal to

sever forced him to abandon a defense which was

antagonistic to his codefendants. But a defense in

which Riley Sr. denied any knowledge or

participation in his codefendants’ activities would

not have been “irreconcilable.” United States v.

Throckmorton, 87 F. 3d 1069, 1072 (9% Cir. 1996).

Even if Riley Sr. had suggested his codefendants’

guilt in asserting his own lack of involvement, the

jury could still find that the Government failed to

prove the charges against them beyond a

3a

Appendix A

reasonable doubt. See United States v. Cruz, 127

F. 3d 791 (9t Cir. 1997).

B. Ricardo

Ricardo argues that he was prejudiced by

being brought to trial with codefendants who were

charged with a “laundry list” of crimes for which he

was not charged. But joinder was appropriate

because the Defendants were charged with acts of

conspiracy, some committed by Ricardo and some

committed by his codefendants. See United States

v. Hernandez, 952 F. 2d 1110, 1114 (9th Cir. 1991).

This case is unlike United States v. Satterfield, 548

F. 2d 1341, 1345 (9 Cir. 1977), which rejected

joinder because the bank robberies committed by

one defendant alone were unrelated to the ones

committed jointly by both defendants. Here, the

charges faced by Ricardo were related to the series

of offenses committed by his codefendants.

Il. | Photographs (Riley Sr.)

Riley Sr. appeals the admission of two photographs

into evidence. One depicted Riley Sr. in the midst of

a group of Eastside Crip gang members (“ESC”),

and the other depicted his four year-old daughter

wearing a blue bandana and holding a gun. These

photographs were relevant to show Riley Sr.’s

association with the ESC, proof of which was

necessary to the RICO conspiracy charge. There is

no indication that the pictures were used as

improper character evidence. Instead, they

corroborated the statements of witnesses who

4a

Appendix A

testified that Riley Sr. supported, perpetuated, and

recruited members into the gang. Moreover, the

pictures do not appear unduly prejudicial or

particularly inflammatory.

IfIl. John Webster’s change of plea and testimony

After trial began and a main Government

witness had already testified, codefendant John

Webster changed his plea and agreed to testify

against the remaining Defendants. The Defendants

challenge the district court’s decision to allow

Webster's testimony.

Generally, mistrial is not automatically

required when a codefendant changes his plea mid-

trial, even when that codefendant testifies against

the remaining defendants. See United States v.

Pierro, 32 F. 3d 611, 617 (1*t Cir. 1994). Granted,

Webster’s testimony proved damaging to the

Defendants in this case. But the district court

properly instructed the jury to examine Webster's

testimony with greater caution than that of

ordinary witnesses and to consider any influence to

prevent any unfair prejudice. See Pierro 32 F.3d at

618 n. 7.

Additionally, the argument that the

Government violated 18 U.S.C§ 201 (c) (2) by

promising leniency in exchange for Webster's

testimony is unpersuasive. The decision cited by

the Defendants, United States v. Singleton, 144

F.3d 1343 (10% Cir. 1998), has been vacated

pending a rehearing en banc by the Tenth Circuit.

5a

Appendix A

IV. Sufficiency of evidence

A. Riley Sr.

Riley Sr. argues that “mere association” with

members of a conspiracy was insufficient to make

him a coconspirator. But there was sufficient

evidence indicating that Riley Sr. manifested “an

agreement to conduct or participate in the affairs

lof the ESC] through a pattern of racketecring.”

United States v. Blinder, 10 F. 3d 1468, 1477 (9t

Cir. 1993). For example, he acted as a counselor to

the gang when it committed crimes and harbored

an arsenal of firearms at his house for the use in

the gang’s drive-by shootings. This evidences an

ongoing relationship in which Riley Sr. manifested

his agreement with the ESC’s illegal activities. See,

e.g., United States v. DeRosa, 670 F. 2d 889, 896

(9th Cir. 1982).

B. Ricardo

Ricardo focuses his appeal on the

“enterprise” requirement of the statute. He argues

that RICO does not apply to “neighborhood gangs,”

only organized crime. But the RICO statute does

apply to the informal organizations such as

criminal gangs. United States v. Rogers, 89 F. 3d

1326, 1337 (7 Cir. 1996). Unlike the fraud scheme

in Chang v. Chen, 80 F. 3d 1293 (9% Cir. 1995), the

ESC gang contained a leadership structure. Older

members were known as “Original Gangsters,”

while the younger members were known as

“PeeWees.” Thus, there was sufficient evidence of a

system of authority.

6a

Appendix A

C. Antone

Antone’s argument that there was no

evidence of his agreement to participate in the

ESC’s affairs is without merit. The record contains

evidence that the Subway store robbery and

murder were his idea. It also indicates that Antone

purchased the pistol used to kill the clerk. As in the

case of his codefendants, there was sufficient

evidence to support Antone’s conviction on the

RICO conspiracy count.

V. Jury instructions (Riley Sr.)

A. Aiding and abetting instruction

Riley Sr. objects to the advisement that the

Government was not required to show precisely

which defendant committed the offense and which

defendant aided and abetted. But this instruction

was a correct statement of the law. See United

States v. Vaandering, 50 F. 3d at 702. Regardless,

no Defendants in this case were convicted on any

counts with which they were not charged. In fact,

the jury found Riley Sr. innocent on Count 13.

Hence, there is no indication that the jury was

confused about which counts and which evidence

applied to which defendants.

B. RICO instruction

Riley Sr. objects to the district court’s refusal

to change the word “and” to “both” in instructing

the jury on the RICO conspiracy count. But choice

of the word “and” more than adequately conveys

the Government’s burden of proof. Use of the word

Ta

Appendix A

“both” would provide negligible emphasis, if any.

VI. Speedy trial (Ricardo)

Ricardo argues that the Government violated

his right to a speedy trial by charging him in two

cause numbers, and then charging him with the

same offenses later in a new cause number. But the

Government was simply complying with the

Juvenile Delinquency Act when it proceeded

against Ricardo first as a juvenile before filing a

motion to proceed against him as an adult. There is

simply no indication of delay tactics.

VII. Arlo Eschief’s hearsay testimony

The Defendants argue that the district court

should not have admitted certain statements made

by Arlo Eschief to detectives. But the hearsay

statements in question qualify for the penal

interest exception pursuant to Fed. R. Evid. 804 (b)

(3) because they subjected the declarant to criminal

liability. See United States v. Williams, 989 F. 2d

1061, 1068 (9 Cir. 1993). Specifically, a reasonable

person in Eschiefs shoes would know that

statements concerning the purchase and disposal of

the gun would assist the police tu socating it.

Although neutral on its face, the statement that he

hung around Riley Jr. and company linked him to

those involved in the conspiracy. The two

statements in which Eschief admits shooting the

Subway clerk and being accompanied by gang

members expose him to liability for murder and

8a

Appendix A

conspiracy. Granted, the last two statements were

made after officers invited Eschief to “save” himself

because his friends had already snitched on him.

But a reasonable person would not confess to

shooting another in the head unless he believed it

to be true, even if he were cooperating in the hope

of a reduced sentence. In all, the hearsay statement

were “truly self-inculpatory, rather than merely

attempts to shift blame or curry favor.” Williamson

v. U.S., 512 U.S. 594, 603 (1994).

Finally, the self-inculpatory nature of the

statements alleviates any concern over the

Confrontation Clause. See Williamson, 512 U.S. at

605 (the very fact that a statement is genuincly

self-inculpatory is itself one of the particularized

guarantees of trustworthiness that makes a

statement admissible under the Confrontation

Clause. See also, United States v. Nazemian, 948 F.

2d 522, 532 (9t Cir. 1991).

VIII. Ineffective assistance of counsel (Ricardo)

Ricardo argues that the judge should have

granted his motion for the federal court to stay the

state court actions in which his lawyer was

representing a defendant, because the obligation to

try two cases simultaneously rendered counsel

ineffective per se. But he cites no authority for the

proposition that counsel’s obligation to try two

cases in different courts during the same

overlapping weeks renders counsel ineffective per

se, and point to no evidence of ineffectiveness or

defective representation in Ricardo’s case.

9a

Appendix A

Moreover, the federal judge noted that counscel’s

responsibilities in the state case were limited to

DNA evidence issues, and he was not lead counsel

there.

We ordinarily do not decide ineffectiveness of

counsel on direct appeal, but leave it for habeas

review, and it is not argued in this case, so we

intimate no conclusion on whether counsel was

ineffective.

Therefore, we reject the ineffective

assistance claim without prejudice.

IX. Motion to Stay (Ricardo)

As for whether the federal judge should have

stayed the state proceedings, Ricardo cites no

authority for the proposition that the federal judge

could have done so. Under 28 U.S.C. § 2283, a

federal court “may not grant an injunction to stay

proceedings, “unless one of three exceptions

applies. Ricardo has not argued for applicability of

any of the exceptions, and it is hard to see how he

could.

X. Evidence of gun possession at time of arrest

(Riley Jr.)

Riley Jr. argues that testimony indicating

his possession of a gun at the time of his arrest was

irrelevant and prejudicial. But the evidence was

relevant to the ESC’s ongoing conspiracy to acquire

and use firearms. See United States v. Spaulding,

588 F. 2d 669 (9th Cir. 1978). Moreover, the

evidence probably did not materially affect the

10a

Appendix A

verdict given the other testimony at trial. See

United States v. Rubio, 727 F. 2d at 786, 798 (9t

Cir. 1983).

XI. Admission of 911 tape (Antone)

Philbert argues that the district court erred

in admitting a tape of the 911 call from the Subway

clerk in which the victim indicates that he was

robbed and shot. We previously affirmed the

introduction of the same 911 tape against Arlo

Eschief in his trial for the same Subway robbery

and murder. See United States v. Eschief, 1997 WL

107754 (9t Cir. 1997) (unpublished disposition).

In that case, we found that the tape was probative

and not overly emotional.

We find no reason in this case to deviate

from our previous findings. Although Antone may

have been willing to concede the robbery element of

the charge, the parties never actually filed a

stipulation to that effect.

Conclusion

The decision of the district court is

AFFIRMED with respect to all Defendants and all

issues except for Ricardo’s ineffective assistance of

counsel claim which we REJECT WITHOUT

PREJUDICE.

lla

Appendix A

INTERNAL USE ONLY: Proceedings include

all events. 97-10372 USA v. Antone

UNITED STATES OF AMERICA

Plaintiff- Appellee

Patrick J. Schneider, Esq. 602-514-7500

Suite 4000

[COR LD NTC aus]

USPX-OFFICE OF THE U.S. ATTORNEY

230 North First Avenue Phoenix, AZ 85025

v.

PHILBERT ANTONE

Defendant Appellant

Daniel D. Maynard, Esq.602-279-8500

Ste 2300

[COR LD NTC ret]

MAYNARD, MURRAY, CRONIN & O’SULLIVAN

3200 N. Central Ave. Phoenix, AZ 85012

Docket as of October 3, 1998 0:41am NON PUBLIC

INTERNAL USE ONLY: Proceedings include

all events. 97-10371 USA v. Briones, Jr.

UNITED STATES OF AMERICA

Plaintiff- Appellee

Patrick J. Schneider, Esq.602-514-7500

Suite 4000

[COR LD NTC aus]

USPX-OFFICE OF THE U.S. ATTORNEY

230 North First Avenue Phoenix, AZ 85025

v.

RILEY BRIONES, JR.

Defendant-Appellant

12a

Appendix A

Charles M. McNulty, Esq. 602-262-4224

Suite 103-316

[COR LD NTC gcja]

3003 N. Central Phoenix, AZ 85012

Docket as of October 9, 1998 0:34am NON PUBLIC

INTERNAL USE ONLY: Proceedings include

all events. 97-10370 USA v. Briones

UNITED STATES OF AMERICA

Plaintiff- Appellee

Patrick J. Schneider, Esq. 602-514-7500

Suite 4000

[COR LD NTC aus]

USPX-OFFICE OF THE U.S. ATTORNEY

230 North First Avenue Phoenix, AZ 85025

v.

RICARDO BRIONES

Defendant-Appellant

Michael Reeves 602-241-0460

Suite 210

COR LD NTC gja]

45 W. Jefferson Phoenix, AZ 85003

Docket as of October 9, 1998 0:34am NON PUBLIC

INTERNAL USE ONLY: Proceedings include

all events. 97-10369 USA v. Briones, SR.

UNITED STATES OF AMERICA

Plaintiff- Appellee

Patrick J. Schneider, Esq. 602-514-7500

Suite 4000

13a

Appendix A

[COR LD NTC aus]

USPX-OFFICE OF THE U.S. ATTORNEY

230 North First Avenue

Phoenix, AZ 85025

V.

RILEY BRIONES SR.

Defendant-Appellant

Tamara D. Brooks, Esq. 602-254-3332

Suite 17

[COR LD NTC gjal

11 W. Jefferson Arcade Phoenix; AZ 85003

Docket as of November 26, 1998 0:32am NON

PUBLIC

14a

APPENDIX B-JUDGMENT

FILED MARCH 31, 2003

CLERK U.S. DISTRICT COURT

DISTRICT OF ARIZONA

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

CR 96-464- PHX-RCB

CV 99-2094 PHX-RCB

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

Vs.

Riley Briones, Jr.,

Defendant/Movant

JUDGMENT

This action came on for consideration before

the Court, the Hon. Robert C. Broomfield, United

States District Judge presiding, and the issues

having been duly considered and a decision having

been duly rendered

IT IS ORDERED AND ADJUDGED that the

defendant’s Motion to Vacate, Set Aside, or Correct

Sentence is desi ad.

ITIS kt “THER ORDERED AND

ADJUDGED that the Movant take nothing and the

action be, and same hereby is, dismissed.

Dated at Phoenix, Arizona, this 315t day of March,

2003.

loa

Appendix B

RICHARD H. WEARE, Clerk, DCE

By: /s/Taylor Deputy Clerk

ce: USA,

Judgment Book

Defense Counsel

Pretrial Services

U.S. Marshals

Probation

16a

APPENDIX C- ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

FILED MARCH 31, 2003

CLERK U.S. DISTRICT COURT

DISTRICT OF ARIZONA

CR 96-464- PHX-RCB

CV 99-2094 PHX-RCB

United States of America,

Respondent,

vs.

Riley Briones, Jr.,

Movant

ORDER

Riley Briones, Jr. is one of three federal

prisoners who move to vacate their convictions and

sentences under 28 U.S.C. § 2255 based on their

leadership or involvement in the crimes committed

by themselves or by their street gang called the

Eastside Crips “Rolling 30’s” on the Salt River

Pima-Maricopa Indian Community. Briones, Jr. is

a founder of the gang, and drove certain members

to and from a Subway restaurant where Arlo

Eschief robbed the restaurant and shot to death the

clerk who worked there named Brian Patrick

Lindsey.

On February 7, 2001, the U.S. Magistrate

Judge filed his Report and Recommendation that

suggested that this Court deny the § 2255 motion

in its entirety. See Report and Recommendation

17a

Appendix C

(Doc. 269). Briones, Jr. then filed his Objections.

See Objections to Magistrate [‘] s Report and

Recommendation in the Entitled Cause (Doc.274).

As the following analysis reveals, the Court has

thoroughly reviewed the record and agrees with the

U.S. Magistrate Judge that relief under § 2255 is

not warranted and hence the motion will be denied.

Before proceeding to the analysis of Briones,

Jr.’s eight grounds for relief, the Court makes the

following two preliminary observations.

First, Briones, Jr.’s constitutional claims for

relief under his Sixth Amendment right to the

effective assistance of counsel are governed by the

two-pronged test under Strickland v. Washington,

466 U.S. 668 (1984). See United States v. Sanchez-

Cervantes, 282 F. 3d 664, 671 (9% Cir. 2002)

(holding that “we must” apply Strickland to

ineffective-assistance-of counsel claims in an

appeal from the district court’s denial of a motion to

vacate under 28 U.S.C. § 2255).

Briones, Jr. must prove both deficient

performance (“counsel made errors so serious that

counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth

Amendment” under an objective, totality-of-the-

circumstances standard measured against

“prevailing professional norms”) and that counsel’s

deficient performance prejudiced his defense

(although a lower threshold than a preponderance-

of-the-evidence standard or a more-likely-than-not-

standard, the defendant must show that “there is a

reasonable probability that, but for counsel’s

18a

Appendix C

unprofessional errors, the result of the proceeding

would have been different” in that the probability is

“sufficient to undermine confidence in the

outcome”). See Strickland, 466 U.S. at 687, 688,

694. The performance-and-prejudice test applies

equally to claims on direct review and collateral

proceedings. See 466 U.S. at 697-98 (“I[slince

fundamental fairness is the central concern of the

writ of habeas corpus, no special standards ought to

apply to ineffectiveness claims made in habeas

proceedings” [citation omitted]). Finally, the Court

may address either prong, in any order, if its

resolution will dispose the claim:

[Tlhere is no reason for a court

deciding an ineffective assistance

claim to approach the inquiry in the

same order or even to address both

components of the inquiry if the

defendant makes an insufficient

showing on one. In particular a court

need not determine whether counsel’s

performance was deficient before

examining the prejudice suffered by

the defendant as a result of the

alleged deficiencies. The object of an

ineffectiveness claim is not to grade

counsel's performance. If it is easier to

dispose of an ineffectiveness claim on

the ground of lack of sufficient

prejudice, which we expect will often

be so, that course should be followed.

Courts should strive to ensure that

19a

Appendix C

ineffectiveness claims not become so

burdensome to defense counsel that

the entire criminal justice system

suffers as a result. [466 U.S. at 697].

Second, although Briones, Jr. frames his

ineffective-assistance-of-counse! claims as

challenges to both his trial and appellate counsel,

this Court’s conclusion that his trial counsel did not

perform constitutionally ineffectively obviates the

need to write out the following repetitive verse at

the conclusion of each sections: “Because Briones,

Jr.'s trial counsel did not perform ineffectively or

cause prejudice to Briones, Jr., his appellate

counsel’s decision not to raise this issue on appeal

did not violate the Sixth Amendment right to

effective assistance of appellate counsel.” See

Turner v. Calderon, 281 F. 3d 851, 873 (9

Cir.2002) (holding that “[c]laims of ineffective

assistance of appellate counsel are reviewed

according to the standard announced in Strickland

v. Washington. To be constitutionally effective,

counsel need not appeal every possible question of

law” (citations, ellipse, brackets, and internal

quotation marks omitted]); Bailey v. Newland, 263

F. 3d 1022, 1028-29 (9th Cir. 2001) (reaffirming that

Strickland’s “two prongs partially overlap when

evaluating the performance of appellate counsel. In

many instances, appellate counsel will fail to raise

an issue because she foresees little or no likelihood

of success on that issue; indeed, the weeding out of

weaker issues 1s widely recognized as one of the

hallmarks of effective appellate advocacy. Appellate

20a

Appendix C

counsel will therefore frequently remain above and

objective standard on competence (prong one) and

have caused her client no prejudice (prong two) for

the same reason- because she declined to raise a

weak issue” [ellipses omitted]).

The Court will now evaluate Briones, Jr’s

eight grounds for relief.

Ground I. Ineffective assistance of counsel based on

failure to object to the trial court’s jury instructions

and the prosecution’s closing argument which

partially directed a verdict on the jurisdictional

elements of certain counts.

In his first ground for relief, Briones, Jr.

advances two attacks: first his appellate counsel

rendered ineffective assistance of counsel by failing

to appeal “the fact that the trial judge directed a

partial directed verdict on the jurisdictional

element” of counts one, three, four, and seven

though eleven; second, his trial counsel failed to

object to the trial court’s jury instruction as well as

the prosecution’s closing argument when they

suggested that the jury should “conclusively

assume that Petitioner was Indian, thus relieving

the jury of its duty to decide all elements of the

indicted offense.” [Second] Amended Motion to

Vacate, Set Aside, or Correct Sentence by a Person

in Federal Custody (28 U.S.C. § 2255) (Doc. #255)

(“Motion”) at 4 (A).

Although Briones, Jr. does not identify the

counts’ alleged jurisdictional flaws, the Court’s

examination of the Indictment leads it to conclude

2la

Appendix C

that the challenged jurisdictional element must be

the location where the alleged crimes occurred: “in

the District of Arizona, within the confines of the

Salt River Pima-Maricopa Indian Community,

Indian Country.” But there was no question or

argument regarding the location of these two

crimes during the trial, and Briones. Jr. offers no

reasoning or evidence to challenge the location of

where these two crimes occurred. In the absence of

argument or evidence to challenge the jury

instruction, the Court concludes that counsel did

not perform ineffectively on this front.

The trial counsel's failure to object to the

jury instruction regarding Briones, Jr.’s status as a

Native American [Indian also did not amount to

constitutionally defective performance because his

trial counsel had already stipulated during the trial

that Briones, Jr. was, in fact, a “Native American

Indian [] as defined in Title 18, United States Code,

§ 1153.” RT (05/06/97) at 79:8-80:5. Briones, Jr.

offers no additional argument that his attorney’s

underlying stipulation amounted to ineffective

performance.

The Court denies the first ground for relief.

Ground I]. The government’s failure to disclose all

prosecution agreements that it had entered into

with Norval Antone and Gilland Fulwilder violated

Briones, Jr.’s Fifth-Amendment right to due

process of law.

In his second ground, Briones, Jr. alleges

that the prosecution failed to aisclose its

22a

Appendix C

agreements among two witnesses named Norval

Antone and Gilland Fulwilder which ensured that,

in exchange for their testimony against him, the

government would drop their pending murder

charges. See Motion at 4 (B); Briones, Jr.’s Reply to

Governments’ Response to Writ Filed Pursuant to

28 U.S.C. § 2255 (“Reply”) (Doc. #267) at 5:10-17

(quoting the respective witnesses in-court denials

to the contrary but observing that “now that the

trial is over, and charges against both these

individuals have been dropped, the government is

asking this [Clourt to believe despite the fact that

there was no ‘formal written deal,’ that there was

also no ‘informal gentlemen’s agreement’ which

lead to the charges against these two individuals to

be dropped. This is just too big a pill to swallow

without a proper evidentiary hearing to discover

the real truth of what occurred” [emphasis in

originall); accord Eli Paul Mazur, Ratrona/

Expectations of Leniency: Implicit Plea Agreements

and the Prosecutor’s Role as a Minister of Justice,

51 Duke L.J. 1333, 1336 (2002) (“[rlesearch shows

that witnesses are more likely to lie, more likely to

cooperate, and more likely to fabricate when agents

of the state make implicit rather than explicit

promises of leniency. Moreover, the procedural

safeguards erected to protect the accused from the

dangers of the institutionalized plea agreement are

ineffective when a witness merely has a rational

expectation of leniency”).

The government does not deny that the

charges against these two witnesses have been

23a

Appendix C

dropped but reiterates the witnesses’ denials

regarding any undisclosed leniency -for-testimony

agreements. See Government’s Response to

Petition for Writ Pursuant to 28 U.S.C. § 2255

(“Response”) (Doc. #243) at 23:17-19. The

government also attaches a grief affidavit that

denies the existence of any agreements:

I, Patrick J. Schneider, Assistant U.S.

Attorney, do hereby swear and affirm

that there were no agreements

between the U.S. Attorney Office or

the federal government and witnesses

Gilland Fulwilder and Norval Antone

which were not disclosed to defense

counsel in the case of United States v.

Antone, et al. CR 96-464-PHX-RCB.

[Affidavit, attached as final page to

the government’s Response].

Briones, Jr.’s claim is governed by a

confluence of U_S. Supreme Court and Ninth

Circuit decisions. The prosecution’s suppression of

material, exculpatory evidence favorable to an

accused violates the constitutional right to due

process of law “irrespective of the good faith or bad

faith of the prosecution” under Brady v. Maryland,

373 U.S. 83, 87 (1963). And when a witness’s

reliability may determine guilt or innocence, the

U.S. Supreme Court has held that a leniency-for-

testimony agreement constitutes the type of

credibility evidence which must be disclosed to the

defense under Brady. See Giglio v. United States,

24a

Appendix C

405 U.S. 150, 154 (1972); United States v.

Ramirez, 608 F.2d 1261, 1266 (9t» Cir.1979) (citing

Giglio among cases for proposition that it is “well

established that the prosecutor has a duty to

disclose any promises of leniency made to a witness

testifying at trial since any such agreement is

relevant to his or her credibility”); see also Hil v.

Johnson, 210 F. 3d 481, 485 (5t» Cir. 2000) (“[t]hat

an accused’s constitutional rights are violated when

the State withholds material evidence affecting the

credibility of witnesses is well-established”).

Specifically, a prosecutor’s failure to disclose to the

defendant that one of its witnesses has been a

promised that he would not be prosecuted if he

cooperated with the government violates a

defendant’s constitutional due-process rights. See

Giglho v. United States, 405 U.S. at 154-55; see also

Killian v. Poole, 282 F. 3d 1204, 1210 (9% Cir. 2002

(citing Brady and Giglio among cases for

proposition that “lilf exculpatory or impeachment

evidence is not disclosed by the prosecution and

prejudice ensues, a defendant is deprived of due

process”).

That the agreement may have been an

informal wink-and-nod understanding makes no

difference: every agreement between the

government and a witness that exchanges leniency

for testimony must be disclosed to the defense. In a

case that affirmed a defendant’s conviction for

failure to actually prove a Gigiio violation, the

Ninth Circuit recognized that even an implicit

leniency -for-testimony agreement must be

25a

Appendix C

disclosed to the defense:

We are not unaware of the reality that

the Government has ways of

indicating to witness’s counsel the

likely benefits from cooperation

without making a bald promises, and

that conceivably [the witness’s] and

his counsel’s protestations that the

Government made no “promises” while

perhaps literally true might have been

misleading. The prosecutor has a duty:

to apprise the court when he or she

knows the witness is giving

misleading testimony regarding such

promises or negotiations.

[ Ramirez, 608 F. 2d at 1266 n.9

(citations omitted); see also Bagley v.

Lumpkin, 798 F. 2d 1297, 1302 (9t

Cir. 1986) (“the more uncertain the

agreement, the greater the incentive

to make the testimony pleasing to the

promisor” [quoting Boone v. Paderick,

541 F. 2d 447, 451.(4* Cir. 1976)));

Several other federal courts agree. See, e.g.,

Brown v. Wainwright, 785 F. 2d 1457, 1464-65 (11%

Cir. 1986) (rejecting the State’s interpretation that

Giglio forbids only those agreements where the

‘promise of leniency’ is express; “[clertainly Gig/io

does not require that the word ‘promise’ is a word of

are that must be specifically employed. ...The

state’s argument misconceives the constitutional

concerns addressed by Gigiro. It is a constitution

26a

Appendix C

we deal with, not semantics”); Zuern v. Tate, 101 F.

Supp. 2d 948,971 (S.D. Ohio 2000) (“lolf course, the

state’s obligation under Brady is not limited to

instances where it has entered into an express

agreement with one of its witnesses. For instance,

in Alderman v. Zant, 22 F. 3d 1541, 1554 (11% Cir.

[1994]), cert. denied, 513 U.S. 1061, 115 S. Ct. 673,

130 L.Ed.2d 606 (1994), the Eleventh Circuit noted

that the duty to disclosure extends to ‘informal

understandings,’ as well as to instances where the

prosecutor has made an express promise to a

witness”)].

Unfortunately for Briones, Jr., however, he

has not alleged sufficient facts to warrant an

evidentiary hearing on his claim. Briones, Jr.’s

entire ground rests on the raw fact that the two

witnesses testified against him and then later the

government dropped their pending charges which,

as a matter of law, does not amount to the

“substantial indicia of a prior agreement” to justify

an evidentiary hearing:

Even if a prior plea bargain has not

been clearly established, where there

is substantive claim an undisclosed

agreement had been reached,

DeMarco v. United States, 415 U.S.

449, 450, 94S. Ct. 1185, 39 L.Ed.2d

501 (1974) [(per curium)], requires

remanding the case to the district

court to conduct an evidentiary

hearing in order to determine whether

27a

Appendix C

a bargain was reached prior to the

witness's giving of his testimony.

However, the mere fact that the

witness was subsequently allowed to

plead to a lesser offense in and of itself

is not sufficient to warrant a DeMarco

hearing. In DeMarco, the existence of

a plea agreement was clear and the

remarks of the United States Attorney

at the witness’s sentencing hearing

indicated that the agreement may

have been reached prior to the

witness's testimony. Appellant has not

presented us with any substantial

indicia of a prior agreement allowing

for a misdemeanor disposition other

than [the witness’s] actual plea three

days after appellant’s trial. The

transcript of the [witness’s]

proceedings provided by the appellant

does not reveal any evidence of a plea

bargain which, if it existed, was

required to have been disclosed on the

record under Federal Rule of Criminal

Procedure 11(e) (2). [Ramurez, 608 F.

2d at 1267 citations omitted)].

Like the Ramurez court, this Court has not

been presented with “any substantial indicia of a

prior agreement” among the government and the

disputed witnesses. In fact, Briones, Jr.’s raw

allegation presents less evidence of an agreement

than the Ramzrrez court faced when it denied

28a

Appendix C

remanding the case to the district court for an

evidentiary hearing. See Ramurez, 608, F. 2d at

1266 n.9 (concluding that “there is no substantive

evidence that [an implicit leniency -for-testimony

agreement] occurred in the instant case” even

though the witness was allowed to plea to a

misdemeanor shortly after the defendant’s trial and

the prosecutor's pre-trial letter to the witness's

attorney state that the witness will given the

opportunity to plead guilty to certain crimes in

exchange for cooperation but that no promises

could or would be made; “the record is void of any

evidence that an agreement allowing such a

disposition had been reached at the time of the trial

which was not disclosed to the jury” [emphasis

added]); accord DeMarco, 415 U.S. at 450 (holding

that whether a leniency-for-testimony agreement

was “made after or before [a defendant’s] trial” is

“dispositive” in determining whether there has

been a Giglio violation).

The Ramirez holding remains good law in

this Circuit and in other Circuits as well. See, e.z.,

United States v. Cooper, 173 F. 3d 1192, 1203 (9t»

Cir. 1999) (citing Ramirez in affirming defendant’s

conviction; “[als the defense established at trial,

[the testifying witness’s] credibility was shaky at

best. He faced potential criminal prosecution in the

United States, so it seems unlikely that he would

return to testify only because he wanted to tell the

truth. This, however, is at most circumstantial

evidence of an immunity agreement with [the

witness]. A defendant must present more direct

29a

Appendix C

evidence of an agreement to justify reversal on this

ground”); United States v. Molina, 75 F. 3d 600,

602 (10% Cir. 1996) (citing Ramirez in affirming

defendant’s conviction because “[t]he mere fact that

the witnesses were subsequently allowed to plead

on favorable terms is not evidence that the plea

agreements were secretly reached prior to the

witness’ testimony and improperly withheld from

the defense”); United States v. Baskes 649 F.2d

471, 476-77 (7h Cir. 1980) (citing Ramrrez in

affirming defendant’s conviction; testifying

witnesses’ attorney's “hopeful expectation” that his

clients’ testimony might help them avoid criminal

exposure “even when supplemented by evidence

that government attorney used language [in

communicating with another government attorney!

concerning the possibility of granting informal

immunity is not sufficient to warrant a new trial

under the rationale of Giglio. The situation is too

equivocal to deem the witnesses’ answers false and

the government under a duty to correct or qualify

them” [citations omitted]).

Finally, counsel for Briones, Jr. and his co-

defendants exposed the two witnesses’ motivation

to testify by vigorously cross-examining them, thus

fulfilling a procedural safeguard against false

testimony under the Sixth-Amendment

Confrontation Clause and the Fifth-Amendment

Due Process Clause. See RT (04/18/97) at 10:21-

21:9 (Fulwilder’s cross-examination by Philbert

Antone’s counsel); id. at 21:14-55:9 (same by

Ricardo’s counse]); 7d. at 55:14-103:22 (same by

30a

Appendix C

Briones, Jr.’s counsel); id. at 110:6-190:7 (same by

Briones, Sr.’s counsel); sd. at 190:19-232:2 (same by

Webster’s counsel); RT (04/24/97 at 137:13-183:18

(Norval Antone’s cross-examination by Philbert

Antone’s counsel); id. at 184:17-222:7 (same by

Ricardo’s counsel); id. at 222:11-270:20 (same by

Briones, Jr.’s counsel); RT (04/25/97) at 5:13-37:15

(same by Briones, Sr.’s counsel); accord Delaware v.

Van Ardsall, 475 U.S. 673, 678-79 (1986)

(reaffirming that “the exposure of a witness’

motivation in testifying is a proper and important

function of the constitutionally protected right of

cross-examination’”).

The Court denies the second ground for

relief.

Ground III. Ineffective assistance of counsel based

on failure to refute Detective Auerbach’s rendition

of Arlo Eschiefs out-of-court statements.

In his third ground, Briones, Jr. alleges that

his counsel should have refuted Detective

Auerbach’s rendition of Arlo Eschiefs out-of-court

statements regarding what happened during the

night of the robbery and killing. See Motion at 5.

The Government counters that Briones, Jr. never

explains How counsel should have rebutted the

testimony or otherwise points to which evidence or

witness could have countered the testimony. See

Response at 23:27-24°3.

Briones, Jr.’s failure to specify his charges

prevents the Court from granting relief. See Jones

v. Gomez, 66 F.3d 199, 205 (1995) (affirming

gla

Appendix C

district court’s denial of habeas relief because the

petitioner's “conclusory suggestions that his trial

and state appellate counsel provided ineffective

assistance fall far short of stating a valid claim of

constitutional violation”).

The Court denies the third ground for relief.

Ground IV: The prosecution’s introduction of Arlo

Eschiefs out-of-court statements violated the Sixth

Amendment’s Confrontation Clause, as evinced

through a superseding change in the law.

Briones, Jr. alleges that, irrespective of his

counsel’s performance as measured under ground

three, the prosecution’s introduction of Arlo

Eschiefs out-of-court statements- through the in-

court rendition by Police Detective Karl Auerbach,

over the defendant’s pre-trial and contemporaneous

objections- regarding what happened during the

night of the gang’s Subway robbery and killing

violated the Sixth Amendment’s Confrontation

Clause. See Motion at 5(d); accord U.S. Const.

amend.VI (“In all criminal prosecutions, the

accused shall enjoy the right... to be confronted

with the witnesses against him...”). Explicitly

recognizing that the Ninth Circuit already resolved

this ground against him on direct review, he states

that a superceding change in law has occurred. See

Motion at 5 (d).

32a

Appendix C

Ground IV: The prosecution’s introduction of Arlo

Eschiefs out-of-court statements violated the Sixth

Amendment’s Confrontation Clause, as evinced

through a superseding change in the law.

The Government contends that no

change in law has occurred, claiming that the

original case on which the Ninth Circuit relied in

rejecting Briones, Jr.’s appeal has not been altered.

See Response at 24:4-12 (“[s]hephardization of

| Williamson v. United States, 512 U.S. 594(1994)]

shows that this case has not been overturned or

reversed”).

33a

Appendix C

Although Briones, Jr. does not identify

the change in the law, this Court’s research has

disclosed that the movant is most likely referring to

the U.S. Supreme Court’s plurality opinion in Lilly

v. Virginia (1999) 527 U.S. 116.!

' The Lilly case involved three people- the defendant,

his brother named Mark, and the brother’s friend- who were

arrested at the end of a two-day crime spree that involved

stolen hquor and a homicide and who the police took into

separate custody and told Mark that “he would be charged

with armed robbery and that, unless he broke ‘family ties,’

petitioner ‘may be dragging you right 1n to a life sentence.”

Mark admitted that he stole alcohol but asserted that the

defendant and the friend were the ones that stole the guns

and that the defendant “masterm:nded” the robbenes and

shot and killed the person. Although the Virginia Supreme

Court upheld the trial court’s decision to admit Mark’s tape-

recorded statements to the police because, in light of the

brother’s invocatron of his privilege against self-incrimination,

the Confrontation Clause was satisfied for three reasons

(Mark’s statement fell within a firmly rooted exception to the

hearsay rule as declarations against penal interest, the

statements were reliable because Mark knew that he was

implicating himself as a participant in numerous crimes, and

because other evidence at trial corroborated Mark’s

statements), the U.S. Supreme Court reversed the decision.

Although Justice Scalia concurred separately and

found that the prosecution’s introduction of Mark’s tape-

recorded statements during a custodial interrogation in which

he stated that the defendant committed the charged crime of

murder without making Mark available for cross-examination

presented a “paradigmatic Confrontation Clause violation,”

Justice Stevens led a four-Justice plurality which parsed out

how the Confrontation Clause violation emerged.

34a

Appendix C

The plurality reaffirmed that labeling a

statement as being a declaration against penal interest

“defines too large a class for meaningful Confrontation Clause

analysis” and categorized the case’s fact pattern as falling

into the separate subcategory of “evidence offered by the

prosecution to establish the guilt of an alleged accomplice of

the declarant.” 527 U.S. at 127. Because the statements of a

nontestifying accomplice’s confession are “inherently -

unreliable” “under circumstances 1n which the declarant

stands to gain by inculpating another, the accusation is

presumptively suspect and must be subjected to the scrutiny

of cross-examination.” /d. At 127 131-32 (internal quotation

marks omitted), crting Lee v. Illinois, 476 at 541).

The admission of the statements can survive

Confrontation Clause scrutiny under one of two conditions.

First, the statements may be admissible as a “firmly rooted”

hearsay-rule exception, but the plurality “exphcitlly]

concluded that “accomplices’ confessions that inculpate a

criminal defendant are not within a firmly rooted exception to

the hearsay rule as that concept has been defined in our

Confrontation Clause jurisprudence” and thus concluded that

“it sumply means that the government must satisfy the second

prong of the Odio v. Roberts, 448 U.S. 56 (1980) test in order

to introduce such statements” which 1s that the circumstances

surrounding the statements bore “particularized guarantees

of trustworthiness” such that cross-examination would be of

marginal utility.

35a

Appendix C

The plurality found that Mark’s statements

lacked the required “particular guarantees of

trustworthiness’ for several reasons. Initially, the

government was involved in the statements’ production

and the statements described past events without being

subject to adversarial testing. Additionally, that Mark

knew that he was exposing himself to criminal liability

“merely restates the fact that portions of his statements

were technically against penal interest” and those

statements remain constitutionally suspect under

Wilhamson “insofar as the inculpate other persons.” See

527 U.S. at 138-39. Finally, the plurality “squarely

rejected” the proposition that “evidence corroborating the

truth of a hearsay statement may properly support a

finding that the statement bears ‘particularized

guarantees of trustworthiness” because “Itlo be

admissible under the Confrontation clause... hearsay

evidence used to convict a defendant must possess indicia

of rehability by virtue of its inherent trustworthiness, not

by reference to other evidence at trial.” /d. (some internal

quotation marks omitted). The high court remanded the

case to the Virginia Supreme Court for a harmless-error

analysis of the Confrontation Clause violation. See :d.

140.

A. Factual background: Detective Auerbach

testifies on Arlo Eschiefs statements

About one year after the Subway

robbery and murder of the clerk there named Brian

Patrick Lindsey, Detective Auerbach and a

colleague went to Arlo Eschief's home to ask him

questions about the incident. The detectives went

on two occasions: first on April 24, 1995 and then,

after following up on some leads that Eschief

provided, again five days later on April 30, 1995.

36a

Appendix C

Detective Auerbach’s trial testimony can

be found in the Reporter’s Transcript from May 5,

1997 at 20:19-27:2. Regarding the first meeting

with Eschief on Eschief’s front porch, Detective

Auerbach testified that Eschief told him the

following three statements:

1) Eschief said had he had “hung

around” with Briones, Jr., as well as

co-defendants Ricardo, PJ Antonc,

and John Webster in May 1994.

2) Eschief said that Eschief possessed

and owned guns around May 1994.

3) Eschief said that Eschief purchased a

gun from PJ Antone and his

eirlfriend got rid of that particular

gun in Summer of 1994.

After the detectives found the gun, they

submitted the gun for finger prints. This gun was

later identified as the same gun produced at trial

regarding the Subway crime, and ballistic testing

matched the bullets from the Subway clerk’s dead

body.

On April 30, 1995, the police detectives

returned to Eschiefs home and spoke with him ina

shaded area near his house. After listening to the

detectives read to him their pre-written statement

that urged Eschief to “save” himself, Eschief

purportedly told the detectives the following

3va

Appendix C

statements (rendered in court through the

testimony of Detective Auerbach’s testimony:

1) Eschief admitted his involvement in

the Subway incident and admitted that he shot the

clerk.

2) Eschief stated that they were driven

to the Subway Restaurant by Riley Briones, Jr.

driving his car, and thereby once arriving at the

Subway Restaurant, parked several spaces south of

the restaurant.

3) Eschief stated Riley Briones, Jr.

remained seated in the car while Eschief, John

Webster, and PJ Antone went into the restaurant.

4) Eschief stated that they were all

similarly dressed and described gang-like clothes.

B. Legal analysis: the three reasons why the Court

rejects the claim.

There are three reasons why this Court rejects the

claim. First, the U.S. Supreme Court issued the

Lilly decision over two months after Briones, Jr.’s

case had become final: although it is unclear

whether Briones, Jr. himself petitioned the U.S.

Supreme Court for a writ of certiorari, the high

court denied review from the Ninth Circuit’s’

decision that involved himself, Briones, Sr., and

Ricardo Briones on April 5, 1999,2 and the high

court decided Li//y on June 10, 1999. Before Lilly,

the U.S. Supreme Court had not so distinctly

2 See 526 U.S. 1056 (Apr. 5, 1999).

38a

Appendix C

fleshed out its Confrontation Clause jurisprudence;

the Supreme Court’s then-most-recent decision on

the matter- Williamson v. United States, 512 U.S.

594 (1994)- limited itself to the declaration-against-

interest hearsay exception under Federal Rule of

Evidence 804(b)(3),3 and that decision’s.

Confrontation Clause discussion occurred in a

concurrence where, joined by Justice Scalia, Justice

O’Connor reasoned that a truly self-inculpatory

statement that is admissible under Rule 804(b)(3)

is itself a “particularized guarantee of

trustworthiness” that may make the statement

survive a Confrontation Clause challenge.‘ In fact,

the parties in this case argued the matter under

Federal Rule of Evidence 804 (b) (3), and only

treated the Confrontation Clause matter in a few

sentences to support their more-underlying rule-

based contentions® The Court recognized the nature

3 See Williamson, 512 U.S. at 605 (“Jn light of this

disposition [under Rule 804(b)(3)], we need not address

Williamson’s claim that the statements were also made

inadmissible by the Confrontation Clause...” leiting through

“see generally” signal White v. Illinois, 502 U.S. 346 (1992)});

accord Lully, 527 U.S. at 132-33 (plurality opinion)

(recognizing that the Court decided Williamson under Federal

Rules of Evidence “without reaching the Confrontation Clause

issuc...” [footnote omitted]).

4 See n.7, infra.

5 Compare Government’s Motion in Limine to

Introduce Statements of Arlo Eschief (Doc.28) at 10:4-10

(arguing that “[elven assuming that corroborating evidence is

required to establish the ‘trustworthiness’ of statements

sought to be introduced, a number of statements made by

Arlo Eschief to Detectives Auerbach and Arvisu are

39a

Appendix C

admissible under Rule 804(b)(3) of the Federal Rules of

Evidence as statements against interest, or under Rule

804(b)(5) under the catch-all provision of the Rule”) and

Government's Motion for Reconsideration of Motion in Limine

to Introduce Statements (Doc.45) at 2:26-3:11 (arguing that

“Itlhe [Clourt misinterpreted the government's request. The

government does not seek to introduce the totality of Arlo

Eschiefs statements. Rather, the government provides all of

the statements so that the court can review the context in

which the statements were made. The government requests

that some of those statements made in that context be

admitted as exceptions to the hearsay rule under Rule

804(b)(3) as statements against interest under the analysis

set forth in Williamson v. United States, 114 S. Ct. 2431

(1994), as statements pursuant to Rule 804(b)(5) as

statements not specifically covered by any of the other

enumerated exceptions but which have equivalent

circumstantial guarantees of trustworthiness’) with Philbert

Antone’s Response to the Government’s Motion In Limine to

Introduce Statements of Arlo Eschief (Doc.38) at 5:19-23

(observing that “[bloth sides rely upon Williamson v. United

States in support of their contradictory positions about the

applicability of Rule 804(b)(3) to testimony concerning the

statements of Eschief” [citation omitted]) and Response to

Motion 1n Limine Re: Eschief Statements (Doc.31) (noting

that “even though a statement may be admissible pursuant to

the Rules of Evidence, it does not necessarily mean that there

has been compliance with the [Clonfrontation [C]lause of the

Sixth Amendment to the U.S. Constitution” 1n that “[t]here

must be a finding of adequate indicia of reliability for the

statement in order to satisfy Constitutional mandates” but

not arguing which statements transgress the Constitution

and instead representing to the Court that “Defendant

Webster requests that the [Clourt make the above-described

findings of fact and law for each statement of Arlo Escmef

that the government seeks to introduce at trial of the above-

captioned case in order to determine the admissibility of said

statements”)

40a

Appendix C

of the parties’ arguments and resolved the

government's in /imine motion under that rubric.®

Additionally, the Ninth Circuit itself affirmed this

Court’s decision to permit Detective Auerbach’s

statements under Williamson, the same case that

the parties argued before this Court.’

6 See Order (Doc.39) at 1:18-20 (this Court

introducing its zn /umine ruling by stating that the defendants

were “relying primarily upon Wil/iamson v. United States” to

argue against the controverted statement ‘admussibility”

[citation omitted J; Order (Doc.52 at 1-19-22 (this Court

introducing its reconsideration ruling of the prior Order by

noting that “/s/pecifically, plaintiff [United States] now

articulates reasons why certain statements made by E'schief

are self-inculpatory under Willramson v. Unites States”

[citation omitted]

7 When the Ninth Circuit resolved Briones, Jr.’s

appeal, it cited Williamson in concluding that the self-

inculpatory nature of E'schief’s statements “alleviates any

concern over the Confrontation Clause.” Memorandum at 7.

The cited portion of Williamson was penned by Justice

O'Connor and was joined by solely by Justice Scalia. See

Wilhamson, 512 U.S. at 596, 605. Only in the next sentence

did Justice O’Connor write the following language (upon

which the Ninth Circuit relied in rejecting Briones, Jr.'s

appeal): “We note, however, that the very fact that a

statement is genuinely self-inculpatory- which our reading of

Rule 804(b)(3) requires-is itself one of the ‘particularized

guarantees of trustworthiness’ that makes a statement

admissible under the Confrontation Clause.” /d. (citing Lee

v.[Hinots, 476 U.S. 530, 543-45 (1986). The Ninth Circuit

buttressed its Williamson reliance by citing to United States

v. Nazemian holding- that an unavaulable witness's out-of-

court statements did not violate the Confrontation Clause

because “his statements bore adequate indicia of reliability”-

Ala

Appendix C

Second, to whatever extent Lilly may

constitute a new rule of criminal procedure under

Teague v. Lane,’ it would not be available to

Briones, Jr. on collateral review except under two

restrictive exceptions that do not apply (both

because Lil/y did not establish that certain conduct

cannot be criminalized and because the plurality

opinion did not apply (both because Li//y did not

establish that certain conduct cannot be

criminalized and because the plurality opinion did

not require the observance of a fairness safeguard

that is implicit in the concept of ordered liberty).

hinged on the presence of “corroborating circumstances” that

supported the declarant’s out-of-court statement. See

Nazemzian, 948 F.2d at 531-32 (declining to resolve the firmly-

rooted-hearsay-exception debate because “[mlost importantly,

other evidence and testimony at trial corroborates” the

unavailable declarant’s statement). Reliance on corroborating

evidence to survive Cunfruntation Clause review was

“squarely rejected” by the Lil/y plurality. See Lally, 527 US.

at 137-38 (crting Idaho v. Wright, 497 U.S. 805, 822 (1990)).

8 In the words of the Tenth Circuit when that court

vacated a defendant’s conviction because, the conviction was

not a harmless violation of the Confrontation Clause, “after

the Supreme Court’s decision in Li//y, it 1s no longer clear

whether considering the degree to which a statement is

against penal interest is even permissible...” United States v.

Gomez, 191 F.3d 1214, 1223 (10% Cir. 1999); but see Ai7// v.

Hofbauer, 195 F. Supp.2d 871, 880 n.6 (E D. Mich. 2001)

(“Lilly did not announce a new rule of criminal procedure

benefitting defendants in criminal cases. Rather Lilly

declined to announce a rule at the behest of the state thereby

leaving a defendant's rights under the Confrontation Clause

as they were”); Sanders v. Moore, 156 F. Supp. 2d 1301, 1316

(M.D. Florida 2001) (same).

42a

Appendix C

Third, even if Briones, Jr.’s

Confrontation Clause rights were violated (without

so concluding) by the introduction of Eschief’s out-

of-court statements through the in-court rendition

by Detective Auerbach’s statements if Eschief's

statements lacked the required “particularized

guarantees of trustworthiness” to admit his out-of-

court statements without subjecting them to the

crucible of cross-examination, the Court concludes

that any error was harmless?

The correct inquiry is whether,

assuming that the damaging potential of the cross-

examination were fully realized, a reviewing court

might nonetheless say that the error was harmless

beyond a reasonable doubt. Whether such an error

is harmless in a particular case depends upon a

host of factors, all readily accessible to reviewing

courts. These factors include the importance of the

witness’ testimony in the prosecution’s case,

whether the testimony was cumulative, the

presence or absence of evidence corroborating or

contradicting the testimony of the witness on

material points, the extent of cross-examination

9 Accord Lilly, 527 U.S. at 139-40; Harrington v. California,

395 U.S. 250, 253-54 196W (applying harmless-error review

to Confrontation Clause error regarding the 1mproper

admission of non-testifying co-defendants’ confessions;

confirming that Confrontation Clause violations are

susceptible to harmless-error analysis for both state and

federal convictions); Hernandez v. Small, 282 F. 3d 1132.

1144 (9 Cir. 2002) (‘la] Confrontation Clause violation 1s

sulyject to harmless error analysis”)

A3a

Appendix C

otherwise permitted, and, of course, the overall

strength of the prosecution’s case.” Van Arsda//

475 U.S. at 684. In the Confrontation Clause

context, however, the harmlessness must be

“determined on the basis of the remaining

evidence” in the case, and “cannot include

consideration of whether the witness’ testimony

would have been unchanged, or the jury’s

assessment unaltered, had there been

confrontation” because “such an inquiry would

obviously involve pure speculation...” Coy v. lowa,

487 U.S. 1012, 1021-22 (1988).

Here, the Court is confident that the

Confrontation Clause violation was harmless

beyond a reasonable doubt. Beginning with the first

factor- the importance of Detective Auerbach’s in-

court rendition of Arlo Eschiefs out-of-court

statements to the prosecution’s case-the Court

acknowledges that this factor slightly favors

Briones, Jr.. The only person testifying at trial who

actually placed Briones, Jr. at the scene of the

Subway crime was John Webster, a witness who

entered into a plea agreement with the

government. Although Webster’s testimony is

viewed with greater caution than that of other

witnesses, he remained subject to cross-

examination. That the actual trigger-puller himself

confessed to a detective that Briones, Jr. both drove

him to the crime and drove him away presents very

powerful evidence for the prosecution. For the same

reason, the second factor- the cumulative nature of

the testimony- also slightly favors Briones, Jr.,

44a

Appendix C

given that only informant John Webster could

physically identify Briones, Jr. as the driver.

The third factor, however, favors the

government, as there was strong evidence which

corroborated Detective Auerbach’s testimony. First,

the jury was perfectly entitled to ultimately credit

the testimony of John Webster, who testified that

the group drove to the Subway restaurant in

Briones, Jr.’s car and that Briones, Jr. was the one

driving the car. See RT (04/29/02) at 66:3-67:7.

Webster described who was in the car, who sat

where, and even detailed the route that the group

took to the Subway restaurant. See rd. at 66:12-

67:11. Webster also testified that as he got into the

car, “Riley, Jr. told me there was always going to be

a time that I was going to be tested, and I wasn’t

sure if it was going to be for real or if I was just

being tested.” /d. at 66:20-25. Webster further

testified that Briones, Jr. remained in the car when

the rest of them went into the Subway restaurant

and that Eschief returned to the car and spoke to

Briones, Jr. before heading back into the

restaurant to kill the clerk. See id. at 72:23-73°:6

and 75:14-22. Briones, Jr. also became “mad” at

Webster for running out of the restaurant because

‘it looks obvious, like something happened.” RT

(04/29/02 at 80:25-81:5. As Briones, Jr. drove the

group away after the killing, Briones, Jr. suggested

that Nick Pablo retrieve the rifle in the car’s

backseat so that they could shoot and kill the

maintenance worker who glanced at the group as

they entered the restaurant. See id. at 81:24-82:13.

45a

Appendix C

The next day, Briones, Jr. told Webster “just to

keep quiet, and if anybody asked where I was last

night, just to say I was home doing something”. /d.

at 85:10-13.

Although the defendants could not

locate the maintenance worker who witnessed the

incident in order to silence him, the government

later located and called this worker- Mr. Ivan

Johnson- as a witness. Johnson testified that the

car to enter the Subway restaurant were four

Native American teenagers. And witness Todd

McEvers, who worked at the Warehouse store near

the Subway restaurant, testified that he stood

outside of the store smoking a cigarette and noticed

a car parked halfway between his store and the

Subway restaurant and saw the car exit the

parking lot as well. Five weeks after the Subway

robbery and killing McEvers saw a car which

looked like the car that he spotted in the parking

lot the night of the Subway incident; McEvers

wrote down the license-plate number, gave it to the

police, and the car came back registcred to Riley

Briones, Jr..

The fourth factor also favors the

government, as this Court permitted full cross-

examination of Detective Auerbach: Briones, Jr.

has not alerted this Court to an improper restraint

on his attorney’s cross-examination.

Finally, the fifth factor favors the

government as well, as the overall strength of the

government’s case points to Briones, Jr.s'

involvement in the Subway robbery, especially his

46a

Appendix C

violent threats and actions in seeking to prevent

other gang members from discovering any details of

the Subway incident.

Although the corroborating evidence of

Briones, Jr.’s involvement in the Subway robbery

and killing in no way increases the trustworthiness

of Eschief's out-of-court statements or otherwise

contributes to the statement’ “particularized

guarantees of trustworthiness” to excuse cross-

examination in the absence of a well-established

hearsay exception, the substantial corroborating

evidence convinces this Court that the

Confrontation Clause violation in this case was

harmless beyond a reasonable doubt. Accord Idaho

v. Wright, 497 U.S. at 823 (“liln short, the use of

corroborating evidence to support a hearsay

statement’s ‘particularized guarantees of

trustworthiness’ would permit admission of a

presumptively unreliable statement by

bootstrapping on the trustworthiness of other

evidence at trial, a result we think at odds with the

requirement that hearsay evidence admitted under

the Confrontation Clause be so trustworthy that

cross-examination of the declarant would be of

marginal utility. Indeed, although a plurality of the

Court in Dutton v. Evans looked to corroborating

evidence as one of four factors in determining

whether a particular hearsay statement possessed

sufficient indicia of reliability, see 400 U.S., at 88,

91S. Ct., at 219, we think the presence of

corroborating evidence more appropriately

indicates that any error in admitting the statement

47a

Appendix C

might be harmless, rather than that any basis

exists for presuming the declarant to be

trustworthy” [footnote omitted]).

The fourth ground for relief is denied.

Ground V. Ineffective assistance of counsel based

on counsel’s failure to move to suppress testimony

from “bribed” witnesses.

In his fifth ground, Briones, Jr. asserts

that the government’s explicit offer of leniency in

exchange for testimony from certain witnesses

(apparently John Webster) constitutes illegal

bribery under 18 U.S.C. § 201 (c)(2) (establishing

up to two years’ imprisonment for “[w]hoever...

gives, offers, or promises anything of value to any

person, for or because of the testimony under oath

or affirmation given or to be given by such person

as a witness upon a trial, hearing, or other

proceeding, before any court... authorized by the

laws of the United States to hear evidence or take

testimony...”). See Motion at 7. Although a three-

Judge panel of the Tenth Circuit championed this

interpretation in United States v. Singleton, 144

F.3d 1343, 1347-48 (10% Cir. 1998), the full Tenth

Circuit vacated the pancl’s opinion and rejected the

notion that a government agent’s Ieniency-for-

testimony agreement amounts to a “bribe”. See

United States v. Singleton, 165 F.3d 1297, 1298-

1302 (10 Cir. 1999) (en banc) (holding that the

statute’s word “whoever” does not include

government agents acting withing the scope of their

48a

Appendix C

authority to exercise the government’s

prosecutorial powers, given the absence of clear

language evincing Congress’ intent to overturn

such “ingrained aspect of American legal culture”

as leniency for testimony). The Ninth Circuit has

rejected the argument as well, discerning “no

merit” in the claim and observing that the

contention has been “firmly rejected” by other

Courts of Appeals. United States v. Mattarolo, 209

F. 3d 1153, 1160 (9t Cir. 2000); see also United

States v. Smith, 196 F. 3d 1034, 1038 (9t» Cir. 1999)

(joining “every circuit that has considered it” in

rejecting defendant’s Singleton claim).

Briones, Jr.’s contention that the U.S.

Constitution and several Senate-ratified

international treaties outlaw bribery (see Reply at

9:1-12:8) similarly fails to persuade this Court to

grant relief, as the Ninth Circuit has rejected the

fundamental premise that a prosecutor’s offer of

leniency in exchange for truthful testimony

constitutes a bribe in the first place.

The Court also notes that it cautioned

the jury regarding Webster’s testimony on three

occasions. The first occurred when Webster actually

pleaded guiliy to count 17 and the second time

occurred when the Court acquiesced to Briones,

Jr.'s co- defendant Briones, Sr.’s counsel’s request

that the Court should re-caution the jury

immediately before John Webster actually took the

stand a week later:

I previously told you~ I believe it

was about a week ago- that Mr.

49a

Appendix C

Webster had entered a plea of

guilty to Count 17 of the

indictment, the RICO charge,

and in exchange, the

government will ask that I

dismiss the other charges

against Mr. Webster, and as I

told you, as a part of that plea

agreement, Mr. Webster will be

called for the government to

testify, and that’s going to occur

todayl4] Mr. Websters’ guilty

plea is not evidence against any

of the other defendants, and you

may consider it only in

determining Mr. Webster’s

believability. You should

examine his testimony, you

should consider the extent to

which you [sic] may have been

influenced by his plea

agreement with the government

[4] Although the defendants are

being tried together, you must

give separate consideration for

each defendant. In doing so, you

must determine what the

evidence in the case proves with

respect to each defendant,

leaving out of consideration any

evidence admitted solely

against some other defendant.

50a

Appendix C

The fact that Mr. Webster has

pleaded guilty should not

influence in any way your

verdict as to any other

defendant.

[RT (04/29/97 at 44:7-45:3].

The Court’s third warning took place in

the form of reading to the jury an instruction that

complies with the Ninth Circuit’s Model Criminal

Jury Instructions by cautioning the jury to

carefully scrutinize any compensated testimony:

[Slome [accomplices] received benefits,

compensation or favored treatment in

connection with this case. You should

consider such testimony with greater

caution than that of an ordinary

witness, and you should consider the

extent to which it may have been

influenced by the receipt of those

benefits, compensation or favored

treatment.

[RT (05/08/97 at 50:2-11; accord

Comm. On Model Criminal Jury

Instructions Within the Ninth Circuit,

Manual of Model Criminal Jury

Instructions 4.9 (“Testimony of

Witness under Grant of Immunity”),

4.10 (“Testimony of Witness Receiving

Benefits”), 4.11 (“Testimony of

Accomplice”) (2000) (each model

instruction containing language that

the jury should consider the testimony

ola

Appendix C

“with greater caution than that of

other witness”)].

The above-quoted instructions served

the “essential procedural function|)” of

“reinforcling] the defense’s cross-examination by

attacking the generalized trustworthiness of

accomplice testimony.” Mazur, 51 Duke L.J. at

1354.

The Court denies the fifth ground for

relief.

Ground VI: Ineffective assistance of counsel on

counsel’s failure to request a James hearing or a

hearing under Federal Rule of Evidence 104.

In his sixth ground, Briones, Jr. faults

his counsel on two fronts: first, counsel failed to

request a court-based determination of certain

persons’ qualifications to be a witness and the

admissibility of their testimony (under Federal

Rule of Evidence 104); second, counsel should have

requested what is called a James hearing to assess

whether substantial independent evidence of a

conspiracy exists which would justify admission of

an alleged co-conspirator’s statement into evidence

under FRE 801 (d)(2)(E). See Motion at 7.

Addressing the James argument first,

the Court observes that the district court’s

authority to conduct a “/ames hearing” stems from

a Fifth Circuit decision which held that a co-

conspirator’s statements are admissible FRE 801

(d)(2)(E) hearsay exception only if substantial

independent evidence of a conspiracy exists. See

52a

Appendix C

United States v. James, 590 F.2d 575, 581 (5t» Cir.

1991) (en banc), abrogated on other grounds as

recognized in the United States v. Fragoso, 978

F.2d 896, 900 (5*» Cir. 1992). As one of the potential

methods by which a district court can determine

the admissibility of the statements, the court can

conduct an outside-of-the-jury’s-presence hearing

known as a James hearing. See United States v.

Williams, 264 F.3d 561, 576 (5 Cir. 2001).

The James court recognized, however,

“that if the district court ‘determines it is not

reasonably practical to require a showing to be

made before admitting the evidence, [it] may admit

the statement subject to being connected up”’

through a subsequent final determination of the

statement’s admissibility. See United States v.

Baltas, 236, F.3d 17, 35 (1st Cir. 2001) (footnote

omitted; brackets added by the Ba/tas court). The

district court retains discretion over how to conduct

the admissibility determination. See Williams, 264

F.3d at 576.

In this case, this Court considered and

rejected Briones, Jr.’s co-defendant Briones, Sr.’s

request for a James hearing. See Motion for James

Hearing (Doc. #74); RT (04/29/97) at 27:12-42:13.

Because Briones, Jr.’s motion to vacate does not

disclose the testimony which this Court allegedly

improperly admitted, this Court can only assume

that he hinges his claim on the same statements

attacked by Briones, Sr. when his counsel

requested a James hearing. In light of this

assumption, no constitutionally cognizable

oda

Appendix C

prejudice could have arisen from Briones, Jr.’s

counsel’s failure to request a James hearing on the

same matter advanced by his co-counsel.

Turning to the second argument

regarding FRE 104, Briones, Jr. cites Ninth Circuit

case law which holds that a trial judge’s ability to

consider the co-conspirator’s out-of-court statement

in assessing the statement’s admissibility under

FRE 104 does not affect the inherent unreliability

of the statement, which in turn requires that the

co-conspirator’s statement that implicates the

defendant in the alleged conspiracy must be

corroborated by “fairly incriminating evidence.” See

Rely at 12:18-26, quoting United States v.

Silverman, 861 F.2d 571, 577-78 (9 Cir. 1988).

Briones, Jr.’s ground for relief apparently

transforms into an argument that had his trial

counsel asked for a hearing for Briones, Jr. alone,

the trial result would have been different from him

because Eschief’s statements “completely

ex[onerated Brionesl,Jr.] from any involvement in

the robbery and murder at the Subway

Restaurant.” Reply at 12:27-13°6.

This argument falls flat, as Eschief’s

statement inculpated Briones, Jr. in the Subway

crime by stating that it was Briones, Jr. who drove

the gang members to the restaurant, parked to the

car several spaces south of the restaurant, and then

drove the group away after Eschief shot the clerk in

the face. Under no possible reading could Detective

Auerbach’s in-court rendition of Arlo Eschief’s out-

of-court statements vindicate or exculpate Briones,

54a

Appendix C

Jr.. In fact, that Detective Auerbach’s rendition of

Eschief's statements zncu/pate Briones, Jr. in the

Subway crime is the very reason that he retains

standing to raise the Confrontation Clause

challenge under grounds three and four.

Ground VII: Ineffective assistance of counsel based

on failure to request that the District Court make a

determination that the government’s expert

witness comply with Federal Rules of Evidence

702, 703, and 104 and failure of the District Court

to screen the expert witnesses for their expert

opinions.

According to Briones, Jr.’s Reply, his seventh

ground “relates to the fact that the district court

did not conduct an extensive voir dire to assess the

basis for and relevance and reliability of the ATF

‘expert’ on destructive devices.” Reply at 13:17-20.

Citing Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993), Briones, Jr. maintains that the

ATF expert merely “vouched” for the contents of the

“evidence transmittal form” and other reports,

given that the government failed to establish “a

truly independent ‘expert opinion.” Reply at 13:20-

14:3.

This ground fails because the ATF expert

named Jerry Andrew Taylor detailed on the stand

his 17 years of experience as an Explosives

Enforcement Officer for the ATF and his 30 years of

experience in the area of explosives and incendiary

devices. See RT (04/16/97) at 188:10-190:19.

Additionally, Briones, Jr.’s attorney brought out on

00a

Appendix C

cross-examination that Taylor did not “examine

any evidentiary items in connection with this case.”

Id. at 194:7-10. He also brought out that Taylor’s

own report read that “[t]he evidence could not be

analyzed for the presence of ignitable liquids with

any meaningful conclusion.” /d. at 196:11-17.

Briones, Jr. has not established his counsel's

deficient performance or constitutionally

recognizable prejudice here. The Court denies the

seventh ground for relief.

Ground VIII: Ineffective assistance of counsel based

on failure to file a pre-trial motion challenging

counts eleven, fifteen, and seventeen as void for

vagueness.

In his final ground for relief, Briones, Jr.

argues that his trial counsel rendered ineffective

assistance in failing to file a pre-trial motion to

challenge counts, 11, 15, and 17 on void-for-

vagueness grounds. See Motion to Vacate at 8.

The government did not indict Briones, Jr. in

counts 15 or 17 so he lacks standing to challenge

their specificity. As for the specificity on count 11

(assault with a dangerous weapon- 18 U.S.C.§

113(a)(3) and 2), the indictment provides a date,

location, the victim’s name, and the type of

dangerous weapon (a rifle), and the applicable

federal statutes. See Indictment at 9:9-15. Asa

matter of law, the federal assault statute under

which the government indicted Ricardo is not

unconstitutionally vague. See United States v.

Dupree, 544 F. 2d 1050, 1052 (9th Cir. 1976) (per

56a

Appendix C

curium) (reversing district court’s void-for-

vagueness-based dismissal of federal-assault

indictment under 18 U.S.C § 113: “[ulse of this

common-law definition of assault will render 18

U.S.C. § 113 (c) sufficiently certain to give a person

of ordinary intelligence fair notice that his

contemplated activity is forbidden”), reaffirmed in

United States v. Spencer, 839 F.2d 1341, 1343-44

(9th Cir. 1988) (citing Dupree for statement that

“[t]his court has held that the common-law

meaning of a common-law term used in a federal

criminal statute is a source of statutory precision in

determining whether a statute is impermissibly

indefinite. A statute is not impermissibly indefinite

if it gives a person of ordinary intelligence fair

notice that his contemplated activity is forbidden”).

Briones, Jr.’s counsel did not perform

defectively in failing to file a pre-trial challenge to

count 11 because the count is not

unconstitutionally vague. The Court denies the

eighth ground for relief.

CONCLUSION AND ORDER

IT IS ORDERED that, for the foregoing reasons,

the Court denies Riley Briones, Jr.’s motion to

vacate in its entirety.

DATED this 315* day of March, 2003

/s/ Robert C. Broomfield

Senior United States District Judge

57a

APPENDIX D-JUDGMENT

FILED MARCH 31, 2003

CLERK U.S. DISTRICT COURT

DISTRICT OF ARIZONA

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

CR 96-464- PHX-RCB

CV 99-2054 PHX-RCB

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

Vs.

Ricardo Briones,

Defendant/Movant.

JUDGMENT

This action came on for consideration

before the Court, the Hon. Robert C. Broomfield,

United States District Judge presiding, and the

issues having been duly considered and a decision

having been duly rendered,

IT IS ORDERED AND ADJUDGED that the

Jefendant’s Motion to Vacate, Set Aside, or Correct

Sentence is denied.

IT IS FURTHER ORDERED AND

ADJUDGED that the Movant take nothing and the

action be, and same hereby is, dismissed.

58a

Appendix D

Dated at Phoenix, Arizona, this 31st day of March,

2003

RICHARD H. WEARE, Clerk, DCE

By: /s/ Taylor Deputy Clerk

cc: USA, Judgment Book, Defense Counsel, Pretrial

Services, U.S. Marshals, Probation

59a

APPENDIX E- ORDER

FILED ON MARCH 31, 2003

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

CR-96-00464-RCB

CIV-99-02095-RCB

District of Arizona,

Phoenix

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

RICARDO BRIONES,

Defendant-Appellant

ORDER

Ricardo Briones 1s one of three prisoners

who move to vacate their convictions and sentences

under 28 U.S.C.§ 2255 based on their leadership or

involvement in the violent crimes committed by

themselves or by their street gang called the

Eastside Crips “Rolling 30’s” on the Salt River

Pima Maricopa Indian Community.

Although the fifteen-year old Ricardo

Transcript (“RT”) (07/28/97) at 49:9-18 (this Court

reducing Ricardo’s enhancement from four to three

under the United States Sentencing Guidelines); id.

at 82:9-13 (this Court acknowledging that Ricardo

“was not involved in an actual murder” but

60a

Appendix E

nonetheless concluding that Ricardo was “heavily

involved in this gang”).

On February 7, 2001, the U.S.

Magistrate Judge filed his Report and

Recommendation that suggested that this Court

deny the motion in its entirety. See Report and

Recommendation (Doc. 268). Ricardo then filed his

Objections, arguing that the Report and

Recommendation’s grouping of certain claims and

brief analysis would render Ricardo “in a position

where he has not received adequate or effective

collateral review.” Movant's Objection to “Report

and Recommendation” by Magistrate [hereinafter

Ybjections] (Doc.275) at 5:2-13. As the following

analysis reveals, the Court has thoroughly

reviewed the record and nonetheless agrees with

the U.S. Magistrate the relief under § 2255 is not

warranted and hence the motion will be denied.

Before proceeding to the analysis of

Ricardo’s nineteen grounds for relief, the Court

makes the following three preliminary

observations.

First, this Order refers to Mr. Ricardo

Briones as “Ricardo” in order to distinguish him

from his co-defendants (his brother Riley Briones,

Jr. and his father Riley Briones, Sr.), and the Court

implies no disrespect in referring to Mr. Ricardo

Briones by his first name as a matter of

administrative convenience only. See, e.g., Bond v.

Walker, 68 F. Supp. 2d 287, 289 n.1 (S.D. New York

1999) (adopting Magistrate Judge’s Report and

6la

Appendix E

Recommendation which employed a similar

approach).

Second, Ricardo’s constitutional claims

for relief under his Sixth Amendment right to the

effective assistance of counsel are governed by the

two-pronged test under Strickland v. Washington,

466 U.S. 668 (1984). See United States v. Sanchez-

Cervantes, 282 F.3d 664, 671 (9% Cir. 2002)

(holding that “we must” apply Strickland to

ineffective-assistance-of-counsel claims in an

appeal from the district court’s denial of a motion to

vacate under 28 U.S.C. § 2255).

Ricardo must prove doth deficient

performance (“counsel made errors so serious that

counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth

Amendment” under and objective, totality-of-the-

circumstances standard measured against

“prevailing professional norms”) and that counsel’s

deficient performance prejudiced his defense

(although a lower threshold than a preponderance-

of-the-evidence standard or a more-likely-than-not

standard, the defendant must show that “there is a

reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding |

would have been different” in that the probability is

“sufficient to undermine confidence in the

outcome”). See Strickland, 466 U.S. at 687, 688,

694. The performance-and-prejudice test applies

equally to claims on direct re .ew and collateral

proceedings. See 466 U.S. at 697-98 (“[slince

fundamental fairness is the central concern of the

62a

Appendix E

writ of habeas corpus, no special standards ought to

apply to ineffectiveness claims made in habeas

proceedings” [citation omitted]). Finally, the Court

may address either prong, in any order, if its

resolution will dispose the claim:

[T]here is no reason for a court

deciding an ineffective assistance

claim to approach the inquiry in the

same order or even to address both

components of the inquiry if the

defendant makes an insufficient

showing on one. In particular a court

need not determine whether counsel’s

performance was deficient before

examining the prejudice suffered by

the defendant as a result of the

alleged deficiencies. The object of an

ineffectiveness claim is not to grade

counsel’s performance. If it is easier to

dispose of an ineffectiveness claim on

the ground of lack of sufficient

prejudice, which we expect will often

be so, that course should be followed.

Courts should strive to ensure that

ineffectiveness claims not become so

burdensome to defense counsel that

the entire criminal justice system

suffers as a result. [466 U.S. at 697].

Third, although Ricardo frames his

ineffective assistance -of-counsel claims as

challenges to both his trial and appellate counsel,

this Court’s conclusion that his trial counsel did not

63a

Appendix E

perform constitutionally ineffectively obviates the

need to write out the following repetitive verse at

the conclusion of each section: “Because Ricardo’s

trial counsel did not perform ineffectively or cause

prejudice to Ricardo, his appellate counsel’s

decision not to raise this issue on appeal did not

violate the Sixth Amendment right to effective

assistance of appellate counsel.” See Turner v.

Calderon, 281 F.3d 851, 873 (9 Cir. 2002) (holding

that “[cllaims of ineffective assistance of appellate

counsel are reviewed according to the standard

announced in Strickland v. Washington. To be

constitutionally effective, counsel need not appeal

every possible question of law” [citations, ellipses,

brackets, and internal quotation marks omitted]);

Bailey v. Newland, 263 F.3d 1022, 1028-29 (9t Cir.

2001) (reaffirming that Strickland’s “two prongs

partially overlap when evaluating the performance

of appellate counsel. In many instances, appellate

counsel will fail to raise an issue because she

foresees little to no likelihood of success on that

issue; indeed, the weeding out of the weaker issues

is widely recognized as one of the hallmarks of

effective appellate advocacy. Appellate counsel will

therefore frequently remain above an objective

standard of competence (prong one) and have

caused her client no prejudice (prong two) for the

same reason- because she declined to raise a week

issue” [ellipses omitted]).

The Court will now evaluate Ricardo’s

nineteen grounds for relief.

64a

Appendix E

Ground I: Ineffective assistance of counsel based on

failure to object to the trial court’s jury instructions

and the prosecution’s closing argument which

partially directed a verdict on the jurisdictional

elements of certain counts.

| In his first ground for relief, Ricardo

advances two attacks: first, his appellate counsel

rendered ineffective assistance of counsel by failing

to appeal “ the fact that the trial judge directed a

partial directed verdict on the jurisdictional

element of counts eleven and fifteen:;” second, his

trial counsel failed to object to the trial court’s jury

instruction as well as the prosecution’s closing

argument when they suggested that the jury should

“conclusively assume that Petitioner was Indian,

thus relieving the jury of its duty to decide all

elements of the indicted offense.” [Second]

Amended Motion to Vacate, Set Aside, or Correct

Sentence by a Person in Federal Custody (28 U.S.C.

§ 2255) (Doc. #226) (“Motion”) at 4 (A).

Although Ricardo does not identify the

alleged jurisdictional flaws in counts 11 and 15

(charging him with two separate assaults with a

dangerous weapon), the Court’s examination of the

Indictment leads it to conclude that the challenged

jurisdictional element must be the location where

the alleged crimes occurred: “in the District of

Arizona, within the confines of the Salt River Pima-

Maricopa Indian Community, Indian Country.” But

there was no question or argument regarding the

location of these two crimes during the trial, and

Briones, Jr. offers no reasoning or evidence to

65a

Appendix E

challenge the location of where these two crimes

occurred. In the absence of argument or evidence to

challenge the jury instruction, the Court concludes

that counsel did not perform ineffectively on this

front.

The trial counsel’s failure to object to the

jury instruction regarding Ricardo’s status as a

Native American Indian also did not amount to

constitutionally defective performance because his

trial counsel had already stipulated during the trial

that Ricardo was, in fact, a “Native American

Indian [] as defined in Title 18, United States Code,

§ 1153.” RT (05/06/97) at-79:8-80°5. Ricardo offers

no additional argument that his attorney’s

underlying stipulation amounted to ineffective

performance.

The Court denies Ricardo’s first ground

for relief.

Ground II: The government’s failure to disclose all

prosecution agreement that it had entered into

with Norval Antone and Gilland Fulwilder violated

Ricardo’s Fifth-Amendment right to due process of

law.

In his second ground, Ricardo alleges that

the prosecution failed to disclose its agreements

among two witnesses named Norval Antone and

Gilland Fulwilder which ensured that, in exchange

for their testimony against Ricardo, the

government would drop their pending murder

charges. See Motion at 4 (B); Ricardo’s Reply to

Governments’ Response to Writ Filed Pursuant to

66a

Appendix EK

28 U.S.C. § 2255 (“Reply”) (Doc. #265) at 5:10-17

(quoting the respective witnesses’ in-court denials

to the contrary but observing that “now that the

trial is over, and charges against both these

individuals have been dropped, the government is

asking this [Clourt to believe despite the fact that

there was no ‘formal written deal,’ that there was

also no ‘informal gentlemen’s agreement’ which

lead to the charges against these two individuals to

be dropped. This is just too big a pill to swallow

without a proper evidentiary hearing to discover

the real truth of what occurred” [emphasis in

original]); accord Eli Paul Mazur, Aationa/

Expectations of Leniency: Implicit Plea Agreements

and the Prosecutor’s Role as a Minister of Justice,

51 Duke L.J. 1333, 1336 (2002) (“[rlesearch shows

that witnesses are more likely to lie, more likely to

cooperate, and more likely to fabricate when agents

of the state make implicit rather than explicit

promises of leniency. Moreover, the procedural

safeguards erected to protect the accused from the

dangers of the institutionalized plea agreement are

ineffective when a witness merely has a rational

expectation of leniency”).

The government does not deny that the

charges against these two witnesses have been

dropped but reiterates the witnesses’ denials

regarding any undisclosed leniency-for-testimony

agreements. See Government's Response to

Petition for Writ Pursuant to 28 U.S.C. § 2255

(“Response”) (Doc. #244) at 23:22-24. The

67a

Appendix E

government also attaches a grief affidavit that

denies the existence of any agreements:

I, Patrick J. Schneider, Assistant U-S.

Attorney, do hereby swear and affirm

that there were no agreements

between the U.S. Attorney Office or

the federal government and witnesses

Gilland Fulwilder and Norval Antone

which were not disclosed to defense

counsel in the case of United States v.

Antone, et al. CR 96-464-PHX-RCB.

[Affidavit, attached as final page to

the government's Response to co-

defendant Riley Briones, Jr’s motion

to vacate under Doc. #243].

Ricardo’s claim is governed by a confluence

of U.S. Supreme Court and Ninth Circuit decisions.

The prosecution’s suppression of material,

exculpatory evidence favorable to an accused

violates the constitutional right to due process of

law “irrespective of the good faith or bad faith of

the prosecution” under Brady v. Maryland, 373

U.S. 83, 87 (1963). And when a witness’s reliability

may determine guilt or innocence, the U-S.

Supreme Court has held that a leniency-for-

testimony agreement constitutes the type of

credibility evidence which must be disclosed to the

defense under Brady. See Giglio v. United States,

405 U.S. 150, 154 (1972); United States v. Ramirez,

=. OE ———_ 330 — —_ ——— —_ ee —_ —E = —_

68a

Appendix E

608 F.2d 1261, 1266 (9 Cir.1979) (citing Giglio

among cases for proposition that it is “well

established that the prosecutor has a duty to

disclose any promises of leniency made to a witness

testifying at trial since any such agreement is

relevant to his or her credibility”); see also Hi// v.

Johnson, 210 F. 3d 481, 485 (5% Cir. 2000) (“[t]hat

an accused’s constitutional rights are violated when

the State withholds material evidence affecting the

credibility of witnesses is well-established”).

Specifically, a prosecutor’s failure to disclose to the

defendant that one of its witnesses has been a

promised that he would not be prosecuted if he

cooperated with the government violates a

defendant’s constitutional due-process rights. See

Giglho v. United States, 405 U.S. at 154-55; see also

Killian v. Poole, 282 F. 3d 1204 (9t» Cir. 2002

(citing Brady and Giglio among cases for

proposition that “li]f exculpatory or impeachment

evidence is not disclosed by the prosecution and

prejudice ensues, a defendant is deprived of due

process’).

That the agreement may have been an

informal wink-and-nod understanding makes no

difference: every agreement between the

government and a witness that exchanges leniency

for testimony must be disclosed to the defense. In a

case that affirmed a defendant’s conviction for

failure to actually prove a Cig/io violation, the

Ninth Circuit recognized that even an zmplicit

leniency -for-testimony agreement must be disclosed

to the defense:

69a

Appendix FE;

We are not unaware of ine reality that

the Government has ways of

indicating to witness’s counsel the

likely benefits from cooperation

without making a bald promises, and

that conceivably [the witness’s] and

his counsel’s protestations that the

Government made no “promises” while

perhaps literally true might have been

misleading. The prosecutor has a duty

to apprise the court when he or she

knows the witness is giving

misleading testimony regarding such

promises or negotiations.

| Ramirez, 608 F. 2d at 1266 n.9

(citations omitted); see also Bagley v.

Lumpkin, 798 F. 2d 1297, 1302 (9%

Cir. 1986) (“the more uncertain the

agreement, the greater the incentive

to make the testimony pleasing to the

promisor” {quoting Boone v. Paderick,

541 F. 2d 447, 451 (4tb Cir. 1976)]):

Several other federal courts agree. See, e.g.,

Brown v. Wainwright, 785 F. 2d 1457, 1464-65 (11th

Cir. 1986) (rejecting the State’s interpretation that

Giglio forbids only those agreements where the

‘promise of leniency’ is express; “[clertainly Grg/io

does not require that the word ‘promise’ is a word of

are that must be specifically employed. ...The

state’s argument misconceives the constitutional

70a

Appendix FE

concerns addressed by Gig/io. It is a constitution

we deal with, not semantics”); Zuern v. Tate, 101

F. Supp. 2d 948, 971 (S.D. Ohio 2000) (“lolf cours:

the state’s obligation under #rady 1s not limited to

instances where it has entered into an express

agreement with one of its witnesses. For instance

in Alderman v. Zant, 22 F. 3d 1541, 1554 (11 Cir

11994]). cert. denied. 513 U.S. 1061. 115S. Ct. 673

130 L.Ed.2d 606 (1994), the Eleventh Circuit noted

that the prosecutor has made an express promise to

i witness”)]

(/nfortunately for Ricardo however, he ha

not alleged sufficient facts to warrant an

evidentiary hearing on his claim. Ricardos entire

ground rests on the raw fact that the two witness

testified against him and then later the

yovernment dropped their pending charges which

as a matter of law, does not amount to the

ubstantial indicia of a prior agreement” to justify

in evidentiary hearing

Even if a prior plea bargain has not

been clearly established, where there

is a substantive claim an undisclosed

avreement had been reached.

DeMarco v. United States, 415 U.S

149, 450, 94S. Ct. 1185, 39 L.ED.2d

5OL (1974) (per curium)], requires

remanding the case to the district

court to conduct an evidentiary

hearing in order to determine whether

a bargain was reached prior to the

witness's giving of his testimony

dla

Appendix FE

However, the mere fact that the

witness was subsequently allowed to

plead to a lesser offense in and of itself

is not sufficient to warrant a DeMarco

hearing. In DeMarco, the existence of

a plea agreement was clear and the

remarks of the United States Attorney

at the witness's sentencing hearing

indicated that the agreement may

have been reached prior to the

witness's testimony. Appellant has not

presented us with any substantial

indicia of a prior agreement allowing

for a misdemeanor disposition other

than [the witness’s] actual plea three

days after appellant’s trial. The

transcript of the |witness’s]

proceedings provided by the appellant

does not reveal any evidence of a plea

bargain which, if 1t existed, was

required to have been disclosed on the

record under Federal Rule,of Criminal!

Procedure 11(e) (2)

| Ramirez, 608 F. 2d at 1267 citations

omitted)|

Like the Ramirez court, this Court has not

been presented with “any substantial indicia of a

prior agreement’ among the government and the

disputed witnesses. In fact, Ricardo’s raw

allegation presents less evidence of an agreement

than the Ramurez court faced when it denied

remanding the case to the district court for an

72a

ae

Appendix EF

evidentiary hearing. See Ramurez, 608, F. 2d at

1266 n.9 (concluding that “there is no substantive

evidence that lan implicit leniency-for-testimony

agreement] occurred in the instant case” even

though the witness was allowed to plea to a

misdemeanor shortly after the defendant’s trial and

the prosecutor's pre-trial letter to the witness’s

attorney state that the witness will given the

opportunity to plead guilty to certain crimes in

exchange for cooperation but that no promises

could or would be made; “the record is void of any

evidence that an agreement allowing such a

disposition had been reached at the time of the tria/

which was not disclosed to the jury” [emphasis

added]); accord DeMarco, 415 U.S. at 450 (holding

that whether a leniency -for-testimony agreement

was “made after or before la defendant’s] trial” is

“dispositive” in determining whether there has

been a Giglio violation.

The Ramurez holding remains good law in

this Circuit and in other Circuits as well. See, e.g.,

l/nited States v. Cooper, 173 F. 3d 1192, 1203 (9t

Cir. 1999) (citing Ramirez in affirming defendant's

conviction; “[als the defense established at trial,

[the testifying witness's] credibility was shaky at

best. He faced potential criminal prosecution in the

United States, so it seems unlikely that he would

return to testify only because he wanted to tell the

truth. This, however, is at most circumstantial

evidence of an immunity agreement with [the

witness|. A defendant must present more direct

evidence of an agreement to justify reversal on this

73a

Appendix E

ground”); United States v. Molina, 75 F. 3d 600.

602 (10% Cir. 1996) (citing Ramirez in affirming

defendant’s conviction because “[t]he mere fact that

the witnesses were subsequently allowed to plead

on favorable terms ts not evidence that the plea

agreements were secretly reached prior to the

witness’ testimony and improperly withheld from

the defense”); United States v. Baskes 649 F.2d

171, 476-77 (7 Cir. 1980) (citing Ramirez in

affirming defendant's conviction: testifying

witnesses’ attorney’s “hopeful expectation” that his

chents’ testimony might help them avoid criminal

exposure “even when supplemented by evidence

that government attorney used language lin

communicating with another government attorney|

concerning the possibility of granting informa!

immunity is not sufficient to warrant a new trial

under the rationale of Giglio. The situation is too

equivocal to deem the witnesses’ answers false and

the government under a duty to correct or qualify

them” [citations omitted]).

Finally, counsel for Ricardo and his co

defendants exposed the two witnesses’ motivation

to testify by vigorously cross-examining them, thus

fulfilling a procedural safeguard against false

testimony under the Sixth-Amendment

Confrontation Clause and the Fifth - Amendment

Due Process Clause. See RT (04/18/97) at 10:21

21:9 (Fulwilder’s cross-examination by Philbert

Antone’s counsel); 1d. at 21:14-55°9 (same by

Ricardo’s counsel); 1d. at 55°14-103°22 (same by

Briones, Jr.’s counseD; 1d. at 110°:6-190°7 (same by

14a

Appendix EF

Briones, Sr.’s counsel); id. at 190:19-232:2 (same by

Webster's counsel); RT (04/24/97 at 137:13-183:18

(Norval Antone’s cross-examuination by Philbert

Antone’s counsel); id. at 184:17-222:7 (same by

Ricardo’s counsel); id. at 222°11-270:20 (same by

Briones, Jr.’s counseD; RT (04/25/97) at 5:13-37-15

(same by Briones, Sr.’s counsel); accord Delaware

v. Van Ardsall, 475 U.S. 673, 678-79 (1986)

(reaffirming that “the exposure of a witness’

motivation in testifying 1s a proper and important

function of the constitutionally protected right of

cross examination )

The Court denies Ricardo’s second ground for

reli I

Ground II]. Ineffective assistance of counsel based

on failure to object to jury instruction.

In his third ground, Ricardo argues that his

trial counsel failed to object to the Court’s jury

instructions, asserting that a conviction for the

RICO-conspiracy offense under count 17 requires

jury unanimity regarding both the conspiracy to

participate in a racketeering enterprise as well as

unanimity regarding the finding that Ricardo

himself committed at least two underlying acts that

make up the conspiracy. See Motion at 5

The government responds by quoting from

the Court's jury instructions, which explicitly

stated that count 17 required that the jury find

beyond a reasonable doubt that “the defendant

agreed that someone, not necessarily the

defendant, would commit at least two racketeering

75a

Appendix E

acts.” Response at 24:3-13, quoting RT (05/08/97) at

79:4-7 (this Court’s emphasis added). The

government also notes that he Court correctly

explained “the ‘at least two’ required acts of

racketeering’ by reading the instructions to the

jury that “A pattern of racketeering activity is at

least two racketeering acts that have a relationship

to each other plus a threat of continuity. ... The

enterprise element of RICO requires that the

organization, formal or informal, be an entity

separate and apart from the pattern of activity in

which it engages. ... It is also not necessary to show

that the organization has some function wholly

unrelated to the racketeering activity. Rather, it is

sufficient to show that the organization has an

existence beyond that which is merely necessary to

commit the predicate acts of racketeering. The

function of overseeing and coordinating the

commission of several different predicate offenses

and other activities on an ongoing basis 1s adequate

to satisfy the separate existence requirement.”

Id.citing RT (05/08/97) at 79°10-86:14; see also 1d.

at 86: 22-23 (“Youlr] verdict, whether guilty or not

guilty, must be unanimous’).

The government also points to the jury’s

unanimous verdicts under counts 2 and 12 as

constituting the two underlying racketeering acts.

See Response at 24:10-12 (as the jury unanimously

convicted on counts 2 and 12 of the indictment

(which constituted the two racketeering acts) the

jury necessarily was unanimous on the

racketeering predicates’).

76a

Appendix E

Although Ricardo himself was not charged or

found guilty of the underlying Subway robbery/

killing under count 2 (interference with commerce

by threats or violence in violation of 18 U.S.C. §

1951), the ground on which Ricardo advances this

claim for rehef ultimately fails because the Court

provided the jury with the proper instructions.

The Subway incident constituted one of the

RICO-conspiracy’s underlying predicates which,

along with count 12’s witness tampering in which

Ricardo happened to personally engage, fulfills the

law’s requirement that the enterprise itselfcommit

two underlying acts of racketeering in furtherance

of the conspiracy.

The substantive offense of participating in

the conduct of an enterprise through a “pattern of

racketeering activity” that affects interstate

commerce: that is, violating the Racketeer

Influenced Corrupt Organization statutes: 1s

prohibited under 18 U.S.C. § 1962 (a), (b), and (c).

The phrase “pattern of racketeering activity” refers

to at least two acts of “racketeering activity” listed

under 18 U.S.C. § 1961 (5), commonly referred to as

“predicate acts.”

The government charged neither Ricardo nor

his co-defendants with actually engaging in a

“pattern of racketeering activity.” Instead, under

count 17, the government charged Ricardo with

conspiring to violate the RICO statutes under 18

U.S.C. § 1962 (d) (making it unlawful “for any

person to conspire to violate any of the provisions of

T7a

Appendix E

subsection (a), (b), or (c) of this section”). See

Indictmeat at 1-17:1.

Evaluating the RICO-conspiracy statute

through the lens of general criminal conspiracy

law, the U.S. Supreme Court held that a conviction

for violating 18 U.S.C.§ 1962 (d) will stand so long

as the evidence shows that the defendant merely

“adoptls] the goal of furthering or facilitating the

criminal endeavor” which can be accomplished “in

any number of ways short of agreeing to undertake

all of the acts necessary for the crime’s completion”

by “agreeing to facilitate only some of the acts

leading to the substantive offense.” Salinas v.

United States, 522 U.S. 52, 65 (1997) (unanimous)

(calling the proposition “elementary” that “a

conspiracy may exist and be punished whether or

not the substantive crime ensues, for the

conspiracy is a distinct evil, dangerous to the

public, and so punishable in itself’). When the

Salinas defendant challenged his RICO-conspiracy

conviction in light of the jury’s acquittal on the

substantive RICO counts under subsections (a), (b),

and (c) by faulting the trial court for not instructing

the jury that “he must have committed or agreed to

commit two predicate acts himself,” the unanimous

Supreme Court held “[hlis interpretation of the

conspiracy statute wrong.” 522 US. at 63. “The

RICO conspiracy statute, § 1962 (d), broadened

conspiracy coverage by omitting the requirement of

an overt act; it did not, at the same time, work the

radical change of requiring the Government to

prove each conspirator agreed that he would be the

78a

Appendix FE.

one to commit two predicate acts.” /d. at 64. That

the substantive RICO offenses under § 1962 (a), (b)

and (c) requires two or more predicate acts “makes

no difference,” the Supreme Court explained, as the

“interplay between [the substantive offenses and

the conspiracy offense] does not permit us to excuse

from the reach of the conspiracy provision an actor

who does not himself commit or agree to commit

the two or more predicate acts requisite to the

underlying offense.” /d. at 65.

In his Motion to Vacate, Ricardo never

disputes his factua/involvement in the Rolling 30's

gang or otherwise question that he “adoptled] the

goal of furthering or facil tating the criminal!

endeavor’ by “agreeing to facilitate only some of the

acts leading to the substantive offense.” Sa/inas,

522 U.S. at 65. His agreement to conspire with the

Rolling 30's in committing a “pattern of

racketeering activity,” then, is supported by two

overt acts. First, although it is not necessary that

he himself committed either of the two overt acts

one of the conspiracy’s overt acts entailed

tampering with a witness that happened to be

committed by Ricardo himself. The jury found

Ricardo himself guilty of count 12- tampering with

a witness: and the government included this

conduct as one of the overt acts committed by the

RICO conspiracy under count 17. Compare

‘

Indictment at 9:16-23 (charging under count 12

that “loln or about April 5, 1995 in the State and

District of Arizona, the defendant, RICARDO

BRIONES CJoker), RILEY BRIONES, JR.CMr

79a

Appendix E

Spitz’) and John Doe (2), did knowingly use

physical force against Norval Antone by hitting him

in the face with the handle of a pistol with the

intent to hinder, delay, and prevent Norval Antone

from communicating with law enforcement officers

about the federal offenses committed by the

Eastside Crips ‘Rolling 30's’ and the May 15, 1994

Subway homicide. [4] In violation of Title 18,

United States Code, Sections 1512 (b)(3) and 2”)

and Indictment at 15:23-16:2 (charging as one of

count 17’s overt acts that “[oln or about April 5,

1995, John Doe (1) hit Norval Antone in the head

with a pistol, causing bodily injury to him because

the gang suspected Norval Antone of providing

information to law enforcement. After they thought

that Norval Antone was unconscious, RICARDO

BRIONES CJoker’), John Doe (1), and John Doe (2),

and others known and unknown talked about

killing Norval Antone to assure that he would not

talk to the authorities”) with 18 U.S.C. § 1961

(1)(B) (listing violations of 18 U.S.C. § 1512

(relating to tampering with a witness, victim, or an

informant) as one of the indictable acts that

constitutes “racketeering activity”)

The second overt act committed by the

Rolling 30's gang occurred in the robbery and

killing at the Subway restaurant. Compare

Indictment at 14:11-21 with 18 U.S.C. § 1961 (1)(B)

(listing violations of 18 U.S.C. § 1951 (relating to

interference with commerce through robbery and

extortion, also known as the Hobbs Act) as one of

the indictable acts that constitutes “racketeering

80a

Appendix E

activity”). The indictment reflects what later

emerged at the trial: Ricardo met with other gang

members and suggested that they commit armed

robberies, even though it was during a later,

separate occasion (without Ricardo present) that

some other gang members specifically suggested

that they commit an armed robbery of a Subway

restaurant (which eventually occurred, again

without Ricardo present). See Indictment at 14°7-

10. In light of Salinas, however, the proximate

causation between Ricardo’s general suggestion

that the gang commit some armed robberies and

the gang’s eventual robbery and killing at the

Subway restaurant no longer matters” Ricardo’s

undisputedly heavy involvement in this gang

enterprise makes him liable for the acts of his co-

conspirators when they committed crimes that

furthered this conspiracy’s objectives; by requiring

the jury to unanimously find two underlying

racketeering acts- independent of the alleged

existence of the racketeering conspiracy~ the

Court’s instruction complied with the law. See

Salinas, 522 U.S. at 63-65.

The Court recognizes, of course, that the U.S.

Supreme Court did not decide Sa/inas, until

approximately six months after the completion of

Ricardo’s trial and sentencing. In fact, at the time

of the trial the Ninth Circuit had held just the

opposite in Nerbel v. Trans World Assurance, 108

F.3d 1123, 1128 (9 Cir. 1997) (cited by Ricardo in

his Reply at 7:21-24). The Nesbe/ court adopted the

Third Circuit’s position that “[liability under

Sila

Appendix E

section 1962 (d) would be permissible under the

first scenario lof conspiring to operate or manage

an enterprise], but, without more, not under the

second lof conspiring with someone who is

operating or managing the enterprise]. Nesbe/, 108

F.3d at 1128, quoting United States v. Antar, 53 F

3d 568, 581 (3r¢ Cir. 1995).

In the wake of the Supreme Court's Sa/rnas,

decision, however, it appears that Nerbel's

interpretation of the RICO-conspiracy statute

cannot survive. The Court specifically held that its

broad reading of the RICO-conspiracy statute

would trump concerns regarding the tenuous

connection between a defendant and the charged

conspiracy to further the enterprise.

In some cases the connection the

defendant had to the alleged

enterprise or to the conspiracy to

further it may be tenuous enough so

that his own commission of two

predicate acts may become as

important part of the Government’

case. Perhaps these were the

considerations leading some of the

Circuits to require in conspiracy cases

that each conspirator himself commit

or agree to commit two or more

predicate acts. Nevertheless, that

proposition cannot be sustained as a

definition of the conspiracy offense, for

it is contrary to the principles we have

discussed. [522 U.S. at 65-66].

82a

Appendix E

Tellingly, the Third Circuit itself had

overruled Antar to the extent that it conflicts with

the Supreme Court’s broad reading of the RICO-

conspiracy statute explicated in Sal/inas. See Smith

v. Berg, 247 F. 3d 532, 534 (3'4 Cir. 2001) (affirming

district court’s conclusion that Sa/inas implicitly

overruled Antar’s conspiracy interpretation; “[wle

hold that any reading of United States v. Antar to

the effect that conspiracy liability under section

1962 (d) extends only to those who have conspired

personally to operate or manage the corrupt

enterprise, or otherwise suggesting that conspiracy

liability is limited to those also liable, on successful

completion of the scheme, for a substantive

violation under section 1962 (c), is inconsistent

with the broad application of general conspiracy

law to section 1962 (d) as set forth in Salinas”

lcitation to Antar omitted]); 247 F.3d at 538 Cany

reading of Antar suggesting a stricter standard of

liability under section 1962 (d) is inconsistent with

the broad application of general conspiracy law set

forth in Sa/inas. In accord with the general

principles of criminal conspiracy law, a defendant

may be held liable for conspiracy to violate section

1962 (c) if he knowingly agrees to facilitate a

scheme which includes the operation or

management ora RICO enterprise’). Other Circuits

agree. See, e.g., United States v. Posada-Rios, 158

F.3d 832, 857-58 (5 Cir. 1998) (agreeing with the

Second, Seventh, and Eleventh Circuit’s pre

Salinas decisions that the “better-reasoned rule” is

that the RICO-conspiracy statutes do not require

83a

Appendix E

evidence that the defendant managed or controlled

the conspiring organization). As one of our sister

districts in the Ninth Circuit has concluded, “{iln

light of Sa/inas and [a U.S. Supreme Court case

which reaffirmed it], it appears to this court that

Nerbelis no longer good law.” Does I v. The Gap,

2002 WL 1000068, * 9 n.20 (D.N. Mar.I. 2002)

(reviewing RICO-conspiracy case law and finding

that “the Supreme Court’s decision in Sa/inas

defines and governs what constitutes a violation of

§ 1962 (d)”).

Until the then-recently-decided Neibe/

decision, this Court’s jury instructions fully

complied with Ninth Circuit law. See, e.g., United

States v. Tille, 729 F.2d 615, 619 (9% Cir. 1984)

(holding that the RICO-conspiracy statute “does not

require proof that a defendant participated

personally, or agreed to participate personally, in

two predicate offenses. Read in context, section

1962 (d) makes it unlawful to conspire to conduct or

participate in the conduct of an enterprise’s affairs,

where its affairs are conducted though a pattern of

racketeering activity.... Proof of an agreement the

objective of which is a substantive violation of

RICO (such as conducting the affairs of an

enterprise though a pattern of racketeering) is

sufficient to establish a violation of section 1962 (d).

[tis only when proof of such an objective 1s lacking

that the evidence must establish the defendant's

participation or agreement to participate in two

predicate offenses”), cited in Salinas, 522 U.S. at

61-62 Gdentifying the Ninth Circuit as one of the

84a

Appendix E

Circuits that “take a contrary view” to the

proposition that a “defendant must himself commit

or agree to commit two or more predicate acts”);

United States v. Frega, 179 F.3d 793, 810 n.21 (9%

Cir. 1999) (agreeing with the dissent that Salina’s

and 7il/le’s holding are synonymous).

But even if the Neibe/court’s holding- issued

less than three months before the Court provided

the jury instructions- made this Court’s jury

instructions incorrect at the time of Ricardo’s trial

(and hence his counsel’s performance ineffective for

failing to challenge the instructions on this

ground), this Court is forbidden to recognize any

resulting prejudice from counsel’s performance now

that the instructions complete with the law as it

currently stands under a doctrine established in

Lockhart v. Fretwell, 596 U.S. 364, 372 (1993)

(holding that no legally cognizable “prejudice”

arises “if the ineffectiveness of counsel does not

deprive the defendant of any substantive or

procedural right to which the law entitles him”).

See id. at 374 (O’Connor, J., concurring) (“today we

hold that the court making the prejudice

determination may not consider the effect of an

objection it knows to be wholly meritless under

current governing law, even if the objection might

have been considered meritorious at the time of its

omission”); see also Grishy v. Blodgett, 130 F.3d

365, 372 (9t Cir. 1997) (observing that Lockhart

prevents a habeas petitioner's ineffective-

assistance-of-counsel claim that arises from

counsel’s failure to make a motion based on a

85a

Appendix E

latter-overruled state-court decision); Fogg v.

Kernan, 1998 WL 470470, *10 (N.D. Cal. 1998)

(denying habeas relief in part because “lin

Fretwell, the Supreme Court held that a habeas

petitioner cannot demonstrate prejudice for

purposes of the Strickland test if the petitioner is

complaining about his lawyer's failure to raise a

defense that although valid at the time of the

proceeding was subsequently declared invalid by a

higher court”).

Furthermore, Ricardo’s assertion that “the

failure of the trial court to give a more specific

charge on unanimity resulted in a manifest

injustice which invalidated the verdict since it

denied him of due process of law in violation of the

Fifth Amendment” because “lal profusion of crimes

of which Ricardo was not charged were piaced

before the jury as well as the evidence, innuendo

and speculation to support them” (Reply at 8:12-15

is squarely defeated by the Court’s instructions to

the jury that specified which defendants had been

indicted under each count as well as by the

instructions that explained the requirement for

separate unanimity in the verdicts. See RT

(05/08/97) at 43:19-44:2 (Court reading instruction

that “A separate crime is charged against one or

more of the defendants in each count. The charges

have been joined for trial. You must decide the case

of cach defendant on each crime charged against

that defendant separately. Your verdict on any

count as to any defendant should not control your

verdict on any other count as to any other

86a

Appendix FE

defendant”); 7d. at 41:16-86:14 (Court reading

instructions to the jury, detailing the crimes

charged against each defendant).

Finally, Ricardo does not identify the alleged

“intervening change in the substantive law such

that Petitioner’s conviction is for conduct which the

law does not criminalize” (Motion at 5) and the

Court’s own research did not uncover either the

purported change in the law (other than the Ninth

Circuit’s Neibel decision, addressed above) or the

conduct which is no longer criminalized.

The Court denies the third ground for relief.

Ground IV: Ineffective assistance of counsel based

on failure to refute Detective Auerbach’s rendition

of Arlo Eschiefs out-of-court-statements.

In his fourth ground, Ricardo alleges that his

counsel should have refuted Police Detective

Auerbach’s rendition of Arlo Eschief’s out-of-court-

statements regarding what happened during the

night of the gang’s robbery and killing which took

place at a Subway restaurant (comprising the

second predicate act under count 17’s RICO-

conspiracy charge). See Motion at 51°

10 Arlo Eschief 1s the person who actually pulled the

trigger and murdered the Subway clerk named Brian Patrick

Lindsey. See United States v. Eschief, 108 F.3d 1386, 1997

WL 107754, *1 (9% Cir. 1997) (unpublished memorandum

disposition) (affirming Eschief's conviction for first degree

felony-murder, second-degree murder, and use of a firearm

during a violent crime, all on an Indian reservation).

In the process of investigating the crime, two police

detectives interviewed Eschief near Eschiefs home on two

87a

Appendix E

The government responds that Ricardo lacks

standing to challenge the statements’ admissibility

(and, presumably, his counsel's related

performance) because Eschief's out-of-court

statements related solely to counts 1 and 2 (first

degree/felony murder and interference with

interstate commerce, respectively, regarding the

Subway incident) under which Ricardo was never

charged. See Response at 24:21-24 (maintaining

that Ricardo lacks standing to challenge the

statements because, “[als the indictment clearly

indicates, the petitioner was not charged in Counts

separate days in late April 1994. Over the defendant’s pre-

trail and contemporaneous objections, one of these two police

detectives- Karl Auerbach- testified in court regarding what

Eschief had told him and his colleague. See RT (05/05/97 at

22:2-27:2. According to Detective Auerbach’s i1n-court-

rendition of Eschief's out-of-court statements, Eschief did not

mention Ricardo as having participated in the Subway

incident. See rd. at 26:15-20 “Arlo Rodney Eschief had

indicated to me that he, Philbert J Antone, and John Webster

had exited the car and went into the Subway Restaurant,

while Riley Briones, Jr. remained seated in the car”). At an

early point in the first day of the two Eschief interviews,

however, Eschief acknowledgéd that he had “[hung] around”

with certain people during the time of May 1394 (the time of

the Subway incident) and one of the people whom Eschief

reportedly included in the lst happened to be Ricardo. See id.

at 22:3-7

(Question: Detective Auerbach, did Mr. Eschief indicate to

you who he was associating with back in May of 1994?

Answer: Yes. Arlo Rodney Eschief had indicated to me that he

was hanging around Riley Briones, Jr., Ricardo Briones,

Philbert J. Antone- P.J. Antone-and John Webster’).

88a

Appendix E

1 and 2 of the indictment and therefore the

statements were not introduced against him”).

As Ricardo himself realizes later in his Reply

under ground nineteen, the government’s reasoning

arguably contradicts its position regarding the

underlying admissibility of Eschiefs statements

since part of the jurisdiction in allowing Detective

Auerbach to testify regarding Eschiefs out-of-court

statement that Eschief had indeed “hung around”

with certain people (including Ricardo) during the

time period when the Subway incident took place is

that the statements were against Eschief’s penal

interest because the statements linked Eschief with

“co-conspirators” in the Subway robbery and

killing, and the government indicted Ricardo with

count 17’s RICO-conspiracy charge which lists the

Subway incident as one of the required “overt acts.”

Accord Government’s Motion in /rmine to Introduce

Statements of Arlo Eschief (Doc. #28) at 11:14-18

(describing the statement regarding hanging

around with people (including Ricardo) as

“sufficiently ‘against interest’ as it links [Eschief] to

those who conspired to rob the Subway incident”);

Order (04/10/97 (Doc. #39) at 11:1-22 (Court

agreeing with the government on this point).

But assuming that Ricardo retains standing

to object to Detective Auerbach’s rendition of

Eschief’s out-of-court statements- rather, as

presented in this Motion to Vacate, standing to

object to his counsel’s performance regarding the

statements’ admission into trial- Ricardo fails to

explain Aow his counsel should have rebutted the

89a

Appendix E

testimony or otherwise point to which evidence or

witness could have countered the testimony. Accord

Government's Response at 23:27-24:3.

Ricardo’s failure to specify how his attorney

could have offered better performance prevents this

Court from granting relief. See Jones v. Gomes, 66

F.3d 199, 205 (9th Cir. 1995) (affirming district

court’s denial of habeas relief because the

petitioner's “conclusory suggestions that his trial

and state appellate counsel provided ineffective

assistance fall far short of stating a valid claim of

constitutional violation”).

The Court denies the fourth ground for relief.

Ground V: Ineffective assistance of counsel based

on failure of appellate counsel to raise the issue

that the Court’s admission of Eschiefs out-of-court

statements violated the Sixth Amendment’s’

Confrontation Clause.

In Ricardo’s fifth ground, he specifically

argues that his appellate counsel should have

raised the following issue on direct appeal: the

Court’s admission of Arlo Eschief’s out-of-court

statement through Detective Auerbach’s testimony

violated Ricardo’s Sixth-Amendment right to

confront the witnesses against him. See Motion at

7. For the reasons described in this Order’s

immediately preceding section, this Court remains

doubtful regarding the government's contention

(see Response at 25:4-7) that Ricardo somehow

90a

Appendix E

lacked standing to object to the out-of court

statement’s admission.

Ricardo’s argument is similar to the

argument advanced by his co-defendant, Briones,

Sr. Unbke Briones, Jr. but similar to Briones, Sr.,

Ricardo was not present during the actual Subway

robbery and killing but nonetheless suffered the

consequences of advancing the gang’s objectives

which included the Subway incident. Therefore, to

whatever extent Ricardo’s attorney ineffectively

performed by not raising a Confrontation Clause

argument against the introduction of Eschief’s

statements through the testimony of Detective

Auerbach, the Court finds no prejudice from the

‘alleged error because the asserted Confrontation

Clause violation itself was harmless. See Order re:

Riley Briones, Sr. (Doc. not yet determined).

The Court denies the fifth ground for relicf.

Ground VI: Ineffective assistance of counsel based

on counsel’s failure to move to suppress testimony

from “bribed” witness.

In his sixth ground, Ricardo asserts that

the government’s explicit offer of leniency in

exchange for testimony from certain witnesses

(apparently John Webster) constitutes illegal

bribery under 18 U.S.C. § 261 (c)(2) (establishing

up to two years’ imprisonment for “[w]hoever...

gives, offers, or promises anything of value to any

person, for or because of the testimony under oath

or affirmation given or to be given by such person

as a witness upon a trial, hearing, or other

9Sla

Appendix E

proceeding, before any court... authorized by the

laws of the United States to hear evidence or take

testimony...”). See Motion at 7. Although a three-

Judge panel of the Tenth Circuit championed

Ricardo’s interpretation in United States v.

Singleton, 144 F.3d 1343, 1347-48 (10% Cir. 1998),

the full Tenth Circuit vacated the panel’s opinion

and rejected the notion that a government agent’s

leniency-for-testimony agreement amounts to a

“bribe”: See United States v. Singleton, 165 F.3d

1297, 1298-1302 (10% Cir. 1999) (en banc) (holding

that the statute’s word “whoever” does not include

government agents acting withing the scope of their

authority to exercise the government's

prosecutorial powers, given the absence of clear

language evincing Congress’ intent to overturn

such “ingrained aspect of American legal culture”

as leniency for testimony). The Ninth Circuit has

rejected Ricardo’s argument as well, discerning “no

merit” in the claim and observing that the

contention has been “firmly rejected” by other

Courts of Appeals. United States v. Mattarolo, 209

F. 3d 1153, 1160 (9 Cir. 2000); see also United

States v. Smith, 196 F. 3d 1034, 1038 (9% Cir. 1999)

(joining “every circuit that has considered it” in

rejecting defendant’s Singleton claim).

Ricardo’s contention that the U.S.

Constitution and several Senate-ratified

international treaties outlaw bribery (see Reply at

9:1-12:8) similarly fails to persuade this Court to

grant relief, as the Ninth Circuit has rejected the

fundamental premise that a prosecutor's offer of

92a

Appendix E

leniency in exchange for truthful testimony

constitutes a bribe in the first place.

The Court also notes that it cautioned

the jury regarding Webster’s testimony on three

occasions. The first time occurred when Webster

actually pleaded guilty to count 17 and the second

time occurred when the Court acquiesced to

Ricardo’s co-defendant Briones, Sr.’s counsel’s

request that the Court should re-caution the jury

immediately before John Webster actually took the

stand a week later:

I previously told you~ I believe it was

about a week ago- that Mr. Webster

had entered a plea of guilty to Count

17 of the indictment, the RICO charge,

and in exchange, the government will

ask that I dismiss the other charges

against Mr. Webster, and as I| told

you, as a part of that plea agreement,

Mr. Webster will be called for the

government to testify, and that’s going

to occur today!4] Mr. Websters’ guilty

plea is not evidence against any of the

other defendants, and you may

consider it only in determining Mr.

Webster's believability. You should

examine his testimony, you should

consider the extent to which you [sic]

may have been influenced by his plea

agreement with the government []]

Although the defendants are being

tried together, you must give separate

93a

Appendix E

consideration for each defendant. In

doing so, you must determine what

the evidence in the case proves with

respect to each defendant, leaving out

of consideration any evidence

admitted solely against some other

defendant. The fact that Mr. Webster

has pleaded guilty should not

influence in any way your verdict as to

any other defendant. {RT (04/29/97 at

44:7-45:3].

The Court’s third warning took place in

the form of reading to the jury an instruction that

complies-with the Ninth Circuit’s Model Criminal

Jury Instructions by cautioning the jury to

carefully scrutinize any compensated testimony”

tSlome [accomplices] received benefits,

compensation or favored treatment in

connection with this case. You should

consider such testimony with greater

caution than that of an ordinary

witness, and you should consider the

extent to which it may have been

influenced by the receipt of those

benefits, compensation or favored

treatment.

[RT (05/08/97 at 50:2-11; accord

Comm. On Model Criminal Jury

Instructions Within the Ninth Circuit,

Manual of Model Criminal Jury

Instructions 4.9 (“Testimony of

Witness under Gant of Immunity”),

94a

Appendix E

4.10 (“Testimony of Witness Receiving

Benefits”), 4.11 (“Testimony of

Accomplice”) (2000) (each model

instruction containing language that

the jury should consider the testimony

“with greater caution than that of

other witness”)].

The above-quoted instructions served

the “essential procedural functionl[]” of

“reinforcling] the defense’s cross-examination by

attacking the generalized trustworthiness of

accomplice testimony.” Mazur, 51 Duke L.J. at

1354.

The Court denies the fifth ground for relief.

Ground VII: Ineffective assistance of counsel on

counsel’s failure to request a James hearing or a

hearing under Federal Rule of Evidence 104.

In his seventh ground, Ricardo faults his

counsel on two fronts: first, counsel failed to

request a court-based determination of certain

persons’ qualifications to be a witness and the

admissibility of their testumony (under Federal

Rule of Evidence 104); second, counsel should have

requested what is called a James hearing to assess

whether substantial independent evidence of a

conspiracy exists which would justify admission of

an alleged co-conspirator’s statement into evidence

Under FRE 801 (d)(2)(E). See Motion at 7.

Addressing the James argument first,

the Court observes that the district court’s

authority to conduct a “James hearing” stems from

a Fifth Circuit decision which held that a co-

95a

Appendix E

conspirator’s statements are admissible FRE 801

(d)(2)(E) hearsay exception only if substantial

independent evidence of a conspiracy exists. See

United States v. James, 590 F.2d 575, 581 (5 Cir.

1991) (en banc), abrogated on other grounds as

recognized in the United States v. Fragoso, 978

F.2d 896, 900 (5% Cir. 1992). As one of the potential

methods by which a district court can determine

the admissibility of the statements, the court can

conduct an outside-of-the-jury’s-presence hearing

known as a James hearing. See United States v.

Williams, 264 F.3d 561, 576 (5t Cir. 2001).

The James court recognized, however,

“that if the district court ‘determines it is not

reasonably practical to require a showing to be

made before admitting the evidence, [it] may admit

the statement subject to being connected up”

through a subsequent final determination of the

statement’s admissibility. See United States v.

Baltas, 236, F.3d 17, 35 (1st Cir. 2001) (footnote

omitted; brackets added by the Ba/tas court). The

district court retains discretion over how to conduct

the admissibility determination. See W..J/iams, 264

F.3d at 576.

In this case, this Court considered and

rejected Ricardo’s co-defendant Briones, Sr.’s

request for a James hearing. See Motion for James

Hearing (Doc. #74); RT (04/29/97) at 27:12-42:13.

Because Ricardo’s motion to vacate does not

disclose the testimony which this Court allegedly

improperly admitted, this Court can only assume

that he hinges his claim on the same statements

96a

Appendix FE

attacked by Briones, Sr. when his counsel

requested a James hearing. In light of this

assumption, no constitutionally cognizable

prejudice could have arisen from Ricardo’s counsel’s

failure to request a James hearing on the same

matter advanced by his co-counsel.

Turning to the second argument

regarding FRE 104, Ricardo cites Ninth Circuit

case law which holds that a trial judge’s ability to

consider the co-conspirator’s out-of-court statement

in assessing the statement’s admissibility under

FRE 104 does not affect the inherent unreliability

of the statement, which in turn requires that the

co-conspirator’s statement that implicates the

defendant in the alleged conspiracy must be

corroborated by “fairly incriminating evidence.” See

Rely at 13:12-18, quoting United States v.

Silverman, 861 F.2d 571, 577-78 (9% Cir. 1988).

Ricardo's ground for relief apparently transforms

into an argument that had his trial counsel asked

for a hearing for Ricardo alone, the trial result

would have been different for Ricardo because

Eschief's statements “completely exllonerated

[Ricardo] from any involvement in the robbery and

murder at the Subway Restaurant.” Reply at 13:18-

23.

This argument fails for several reasons.

First, just as the government contradicted itself by

initially seeking the admission of Eschief’s out-of-

court statements against Ricardo on against-penal-

interest grounds (since the statements inculpated

Ricardo as an asserted “co-conspirator” in the gang”

97a

Appendix E

but then suggested that Ricardo lacked standing to

challenge his counsel’s performance here because

E:schiefs statements had no relation to Ricardo at

all, it is now Ricardo who contradicts himself: he

urges the Court to consider that Detective

Auerbach’s rendition of Eschiefs out-of-court

statements implicated him just enough so that

Ricardo has demonstrated his standing to assert an

ineffective-assistance-of-counsel claim in relation to

his counsel’s response to the Confrontation Clause

problem, but he asserts here that Eschief’s

statements fully exonerated him from the Subway

incident.

More importantly, however, Ricardo’s

contention displays the fundamental

misunderstanding of count 17’s RICO-conspiracy

charge. There is no question that Ricardo neither

specifically discussed robbing the Subway store or

was present during the robbery and killing; he was

not even charged with this conduct in a separate

count. However, Detective Auerbach’s rendition of

Eschiefs account of the Subway incident in no way

exonerates Ricardo from conspiring to violate the

RICO statutes. As explained above, the United

States Supreme Court has established that a RICO

conspirator need not have been the person who

himself committed the RICO-conspiracy’s two

underlying predicate acts: it is Ricardo’s

substantial involvement in the criminal conspiracy

through his agreement to facilitate some of the

substantive racketeering acts that supports the

jury’s finding of guilt under count 17, not his

98a

Appendix E

uncharged involvement in the Subway robbery

itself. See Salinas, 522 U.S. at 65.

Finally, to the extent that Ricardo advances

a jury-confusion claim, the risk of jury confusion

has been addressed in this Order in resolving

Ricardo’s ground two and the current claim for

relief adds nothing new to the analysis. As the

Ninth Circuit explained in resolving Ricardo’s

direct appeal, the government’s charges against

Ricardo related to the series of offenses committed

by the codefendants:

Ricardo argues that he was prejudiced

by being brought to trial with co-

defendants who were charged with a

“laundry list” of crimes for which he

was not charged. But joinder was

appropriate because the Defendants

were charged with acts of conspiracy,

some committed by Ricardo and some

committed by his codefendants. See

United States v. Hernandez, 952 F.2d

1110, 1114 (9% Cir. 1991). This case is

unlike United States v. Satterfield,

robberies committed by one defendant

alone were unrelated to the ones

committed jointly by both defendants.

Here, the charges faced by Ricardo

were related to the series of offenses

committed by his codefendants.

[Memorandum at 2-3].

The Court denies the seventh ground for relief.

99a

Appendix E

Ground VIII: Constructive denial of effective

assistance of counsel through the Court’s failure to

issue a stay in a state-court proceeding that

involved Ricardo’s counsel.

In his eighth ground, Ricardo argues that,

although ostensibly represented by an attorney, he

was in effect denied effective assistance of counsel

because this Court failed to issue a stay in the

state-court proceeding in which Ricardo’s counsel

was involved at the same time that he represented

Ricardo in this trial. See Motion at 8. In his Reply,

Ricardo points to his counsel’s submitted affidavit

in which his trial lawyer, while not identifying a

specific example of ineffectiveness, “does admit that

it would have been helpful to spend more time

preparing for the federal court trial cross

examination.” Reply at 14:14-18. Ricardo conciudes

that his counsel should have withdrawn from one of

the two cases and also suggests that this Court

abused its discretion in failing to resolve the

problem. See id. at 14:26-15:3 (“[als the Supreme

Court has made clear, ‘upon the trial judge rests

the responsibility that the trial is carried out with

solitude for the rights of the defendant.’ The court

knew of this conflict, but elected to do nothing

about it- to the detriment of [Ricardo] Briones’

defense” [citation omitted]).

Although the Ninth Circuit “intimateld] no

conclusion on whether counsel was ineffective”

when faced with Ricardo’s argument on direct

review, this Court adopts the reasoning of that

court’s dicta surrounding this claim:

100a

Appendix E

[Ricardo] cites no authority for the

proposition that counsel’s obligation to

try two cases in different courts during

the same overlapping weeks renders

counsel ineffective per se, and points

to no evidence of ineffectiveness or

defective representation in Ricardo’s

case. Moreover, the federal judge

noted that counsel’s responsibilities in

the state case were limited to DNA

evidence issues, and he was not lead

counsel there. [Memorandum at 8].

The Court also rejects Ricardo’s underlying

claim that this Court should have issued a stay in

the stay-court proceedings because the Ninth

Circuit has already resolved this issue against him.

See id. at 8-9 (Ricardo cites no authority for the

proposition that the federal judge could have

[stayed the state-court proceedings]. Under 28

U.S.C. § 2283, a federal court ‘may not grant an

injunction to stay proceedings,’ unless one of three

exceptions applies. Ricardo has not argued for

applicability of any of the exceptions, and it is hard

to see how he could”).

As Ricardo acknowledges, his counsel made

this Court aware of the situation during the trial

and the Court resolved the matter against him. See

Reply at 14:8-11.

Ricardo offers no new argumentation in his Motion

to Vacate, and relief here is denied.

10la

Appendix E

Ground IX: Ineffective assistance of counsel based

on trial counsel’s failure to request that the

sentencing court properly identify the predicate

acts that were used for sentencing Ricardo under

count 17s RICO-conspiracy violation.

Ricardo’s fundamental contention here is

that, during the sentencing hearing, his trial

counsel failed to request that the Court properly

identify the two underlying predicate acts which

were employed in sentencing Ricardo for his RICO-

conspiracy conviction under count 17. See Motion

at 8. In the actual Motion to Vacate, the argument

is presented as the counsel’s failure to argue that

the Court should have resolved its factual

determinations through the clear-and convincing

standard of proof, not the preponderance-of-the-

evidence standard. See Motion at 8.

In his Reply to the government’s Response,

Ricardo refines the claim by asserting an Apprendi

violation since a jury never found (and, in fact, the

government never charged) Ricardo with one of the

two underlying predicate acts (the Subway

incident) that comprised count 17’s RICO-

conspiracy conviction. See Reply at 15:14-18:20,

citing Apprend v. New Jersey, 530 U.S. 466, 490

(2000) (holding that, “lo]ther than the fact of a prior

conviction,” the Fourteenth Amendment’s due-

process clause and the Sixth Amendment’s jury-

trial right command that “any fact that increases

the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury,

and proved beyond a re doubt”), reaffirmed

102a

Appendix E

in Ring v. Arizona, 2002 WL 1357257, 122 S. Ct.

2428, 2443 (2002) (applying Apprendi in the

capital-case context by overruling contrary U.S.

Supreme Court authority). In other words, the

argument goes, because Ricardo’s count 17’s RICO-

conspiracy conviction hinges on the presence of two

underlying acts- count 2’s Subway incident and

count 12’s witness-tampering charge- yet the jury

never found that Ricardo participated in the never-

charged-against- Ricardo Subway incident, the

Court’s own conclusion that Ricardo’s punishment

by sentencing him to 20 years’ imprisonment on

count 17’s RICO-conspiracy violation alone.

At first glance, it may appear that;Ricardo’s

claim is defeated by the Ninth Circuit’s prohibition

on applying Apprendi retroactively to cases on

collateral review such as motions to vacate under

§2255. See Sanchez-Cervantes, 282, F. 3d at 668

(holding that Apprendi fails to meet the retroactive

application requirements under Jeague v. Lane,

489 U.S. 288 (1989)). On closer examination,

however, a generous reading of Ricardo’s pro se

motion means that his claim survives this bar.

The crux of his allegation is that he was

never convicted (or even charged) with

participating in the Subway incident, so the Court

improperly relied on a Subway-robbery conviction

in determining Ricardo’s sentence under the RICO-

conspiracy charge. Cf Movant’s Objection to

“Report [&] Recommendation” by Magistrate

(Objections) (Doc. #275) at 3:14-20 (“[t]he error

occurred when the court instructed the jury that

103a

Appendix E

they must agree that there existed, ‘the commission

of two or more predicate acts,’ but did not instruct

them that those acts must be crimes of which

[Ricardo] Briones was charged”). Unlike the

Sanchez-Cervantez scenario where a jury convicted

the defendant of the underlying offenses of drug

violations but the district court increased his

sentence base on the court’s own determination of

the quantity of drugs used in the crime, Ricardo

seems to argue that no jury even convicted him of

the two underlying predicate acts of count 17 in the

first place. Accord Sanchez-Cervantez, 282 F.3d at

669 (holding that the Apprendi rule fails to meet

Teague’s increased-accuracy-of-convictions or

bedrock-procedural-element threshold because

“(tlhe alleged Apprendi error only concerns an

enhancement of the defendant's sentence based on

a drug quantity finding by the judge. Therefore, the

accuracy of the underlying conviction is not at

issue”). Based on the way in which Ricardo frames

it, his fundamental argument is not affected by

Apprendi in the first place because there is no

statutory-maximum penalty involved in an

uncharged, unconvicted crime.

Ricardo’s argument fails, however, because

the indictment did allege Ricardo’s participation in

the Subway incident as one of the “over acts” of

count 17’s RICO conspiracy. Sec Indictment at

14:4-10 (“In furtherance of the conspiracy and to

accomplish the objects of the conspiracy, the

defendants and others committed the following

overt acts, among others:[$] a. On or about April

104a

Appendix E

1994 or the beginning of May, 1994, various

members of the enterprise, known and unknown,

including defendants Philbert Antone (“Indio”),

Ricardo Briones (“Joker”), and John Doe (1),

conspired to commit armed robberies”). The jury

found Ricardo guilty of conspiring to further the

gang-related racketeering enterprise of committing

armed robberies, and the jury’s verdict

demonstrates that it found that the conspiracy

engaged in two overt predicate acts that furthered

the “pattern of racketeering activity”: first, count

12’s witness tampering (directly committed by

Ricardo himself) and second, the Subway robbery

and killing charged as an overt act (along with the

witness tampering) under count 17’s RICO-

conspiracy allegations. As this Court explained at

the sentencing hearing when addressing Riley

Briones, Sr.’s conviction under count 17, “I believe

that the defendant’s conviction of Count 17 includes

all of the conduct perpetrated by the other co-

conspirators and the defendant’s involvement in

the conspiracy. The fact, or the evidence is

sufficient to conclude that it existed before May 15

and was never withdrawn.” RT (07/28/97) at 53:13-

18.

As for Ricardo’s original contention

that his counsel ineffectively assisted him my

failing to argue that the Court should have resolved

its factual determinations through the clear-and-

convincing standard of proof (as opposed to the

preponderance-of-the-evidence standard), this

claim fails because no prejudice can be shown. This

105a

Appendix E

Court resolved the sentencing matter under the

clear-and-convincing standard of proof, so Ricardo’s

counsel’s failure to argue the higher standard made

no difference in the outcome.

The Court denies the ninth ground for relief.

Ground X: Ineffective assistance of counsel based

on counsel’s failure to investigate the legal

impossibility of one of count 17's overt acts.

In his tenth ground, Ricardo argues that his

counsel failed to argue that one of the overt acts

listed under count 17’s RICO conspiracy charge-

that John Webster shot at two police officers- would

be impossible for John Webster to have performed

because John Webster's shooting took place over

600 feet away, and hence presumably John

Webster could not have known that the objects of

his gun fire happened to be police officers. See

Motion at 8. Ricardo concludes that the indictment

contained “a legally insufficient act that the jury

may have used to have convicted Petitioner of count

seventeen, thus this count must be dismissed.” /d.

Ricardo’s counsel’s performance here did not

amount to defective assistance. John Webster's

involvement with count 17 became irrelevant once

he pleaded guilty to the count. R. ardo’s counsel in

no way needed to focus on the legal impossibility of

identifying the identity of those against whom John

Webster attempted to shoot.

The Court denies the tenth ground for relief.

106a

Appendix E

Ground XI: Ineffective assistance of counsel based

on failing to object to the Court’s charge to the jury

that amended the indictment.

In his eleventh ground, Ricardo faults his

trial counsel for “not objecting to the Court’s charge

to the jury that did amend the indictment.” Motion

at 9. The government understandably finds it

difficult to respond, calling the claim “cryptic.”

Response at 28:15-16. In his Reply, Ricardo brings

up the argument that the jury may have convicted

him of violating § 1962 (d) despite the absence of an

indictment of a predicate act. See Reply at 19:13-

14. That the indictment charges Ricardo with a

conspiracy to commit RICO violations- and charges

the conspiracy with committing two or more acts

through witness tampering and the Subway

robbery and killing- has already been addressed in

this Order.

This ground for relief is denied.

Ground XII: Ineffective assistance of counsel based

on failing to challenge the indictment’s

jurisdictional defects.

In his twelfth ground, Ricardo states that his

counsel provided ineffective assistance by failing to

challenge the indictment “as being drafted with a

jurisdictional defect” and “for not filing a pre-trial]

motion that count 17 of the indictment hada

jurisdictional defect.” Motion at 9. In his Reply,

Ricardo explains that the charge lacked specificity.

See Reply at 20:21-24. Ricardo does not disclose the

alleged defect or the alleged ambiguous portion,

107a

Appendix E

and this Court’s further examination reveals none

(his extrapolation under his fourteenth ground will

be addressed below).

Ricardo also raises in his Reply that “[tlhe

government's entire position is that of uncharged

guilty by association” and this Court “erred in

admitting all statements that Briones stated in

supposed furtherance of the conspiracy.” Reply at

21:5-10. (emphasis in original). Without identifying

to which of the three Briones defendants he refers,

Ricardo concludes that “[t]hese statements relating

to uncharged crimes were necessarily prejudicial

and compels reversal as to this count as the verdict

without the erroneously admitted evidence and

jurisdictional defect could not have been reached

Reply at 21:10-14. Assuming that this Court will

exercise its discretion in addressing this new

argument presented for the first time in Ricardo’s

Reply, the Court denies this ground because

Ricardo presents no additional reasoning to

challenge this Court’s previous rulings that the out-

of-court statements could be admitted as

statements made in furtherance of a conspiracy.

The court denies the twelfth ground for

relief.

3?

Ground XIII: Ineffective assistance of counsel based

on failure to request that he District Court make a

determination that he government’s expert witness

comply with Federal Rules of Evidence 702, 703,

and 104 and failure of the District Court to screen

the expert witnesses for their expert opinions.

108a

Appendix E

According to Ricardo’s Reply, his thirteenth

ground “relates to the fact that the district court

did not conduct an extensive voir dire to assess the

basis for and relevance and reliability of the ATF

‘expert’ on destructive devices.” Reply at 21:25-28.

Citing Daubert v. Merrell Dow Pharmaceuticals,

509 U.S. 579 (1993), Ricardo maintains that the

ATF expert merely “vouched” for the contents of the

“evidence transmittal form” and other reports,

given that the government failed to establish “a

truly independent ‘expert opinion.” Reply at 21:28-

22:11.

This ground fails because the ATF expert

named Jerry Andrew Taylor detailed on the stand

his 17 years of experience as an Explosives

Enforcement Officer for the ATF and his 30 years of

experience in the area of explosives and incendiary

devices. See RT (04/16/97) at 188:10-190:19.

Additionally, co-defendant Briones, Jr.’s attorney

brought out on cross-examination that Taylor did

not “examine any evidentiary items in connection

with this case” and that Taylor's own report read

that “ He also brought out that Taylor’s own report

read that “[t]he evidence could not be analyzed for

the presence of ignitable liquids with any

meaningful conclusion.” Jd. at Jd. 194:7-10 and

196:11-17. Ricardo has not established

constitutionally recognizable prejudice here.

The Court denies the thirteenth ground for

relief.

109a

Appendix E

Ground XIV: Ineffective assistance of counsel based

on failure to argue that both the RICO conspiracy’s

underlying predicate acts had no impact on

interstate commerce.

In his fourteenth ground, Ricardo argues

that his trial counsel provided ineffective

assistance of counsel by failing to file a motion to

dismiss the RICO-conspiracy charge under count 17

because counsel should have argued that the two

underlying predicate racketeering violations

charged under count 17 did not affect interstate

commerce and hence there could be no “pattern of

racketeering” as a matter of law. See Motions at 10.

In his Reply, Ricardo explains why robbing Subway

lacked both a substantial effect or even a de

minimis impact on interstate commerce: “Robbery

is not selling, buying, bartering or trading and it

produces absolutely nothing.” Reply at 24:8-12.

The Ninth Circuit resoundingly defeated this

claim when it affirmed this Court’s Order which

transferred three of Ricardo’s co-defendants for

prosecution as adults. See United States v.

Juvenile Male, 118 F.3d 1344, 1347 (9% Cir. 1997).

In its published opinion, the Ninth Circuit

determined that this Subway robbery and killing

had a “probable or potential impact on interstate

commerce” under United States v. Atcheson, 94

F.3d 1237, 1243 (9% Cir. 1996) and held that,

because RICO addresses conduct which directly

affects interstate commerce, “all that is required to

establish federal jurisdiction in a RICO prosecution

is a Showing that the individual predicate

110a

Appendix E

racketeering acts have a de minimis impact on

interstate commerce.” 118 F. 3d at 1347 and 1349.

This Court adopts the Ninth Circuit’s findings

regarding how the Subway incident had much more

than a de minimis affect on interstate commerce:

The evidence in this case establishes

that Defendant’s activities had a

probable or potential impact on

interstate commerce. As the district

court stated, defendants allegedly

robbed the Subway sandwich

franchise which sends a percentage of

its profits to its out-of-state

headquarters. In addition to the

$100.00 taken, defendants allegedly

stole, among other things, sandwiches

and chips, many of whose ingredients

were purchased from out-of-state

suppliers.

In addition, the store was forced to

close down for several days after the

robbery and murder. New employees

had to be hired. Moreover, the firearm

used during the robbery had moved in

interstate commerce, and the reason

for the robbery was to obtain

additional firearms (which has a

potential impact on interstate

commerce).

[118 F. 3d at 1349-1350; accord RT

(07/28/97) at 51:14-18 (this Court

finding at the sentencing hearing that

llla

Appendix E

“the reduction in sales at the

particular... Subway involved in

Scottsdale as well as most of the other

Subway restaurants in Phoenix does

represent a significant loss in net sales

and that it did significantly affect

interstate commerce”)].

The Court is also unpersuaded by Ricardo’s

citation to the U.S. Supreme Court’s United States

v. Morrison, 529 U.S. 598 (2000). See Reply at

24:13-24. The Morrison Court applied the

Commerce Clause analytical framework from

United States v. Lopez 514 U.S. 549 (1995) to hold

that the Violence Against Women Act was an

unconstitutional exercise of Congress’ Commerce

Clause powers because gender motivated crimes of

violence “are not, in any sense of the phrase,

economic activity.” 529 U.S. at 613. In his Reply,

Ricardo characterizes Morrison’s holding to be that

“only where economic activity substantially affects

interstate commerce [] will legislation regulating

that activity be sustained.” Reply at 24:13-17

(emphasis in original). Ricardo’s view of Morrison is

inapposite. The Supreme Court’s “substantially

affects” jurisprudence arises when Congress

attempts to regulate intra-state economic activity;

when that occurs, the economic activity must

“substantially affect J” interstate commerce to

survive Commerce Clause scrutiny. See 529 U.S. at

609-10 (quoting Lopez’s statement that “[wlhere

economic activity substantially affects interstate

112a

Appendix EK

commerce, legislation regulating that activity will

be sustained”).

The Morrison Court added nothing new to

the “substantially-affects doctrine which the Lopez

Court had already canvassed- an important

observation in light of the Ninth Circuit's reliance

on Lopez in rejecting this precise claim in Juvenile

Male. See 118 F.3d at 1348. In any event, it

appears that the need to resolve whether an

individual act “substantially affects” interstate

commerce in the aggregate only arises when the act

itself concerns solely intra-state activities, not

activities which directly impinge (however slightly)

on interstate commerce such as conspiring to

violate the RICO statutes:

Because the Hobbs Act is

concerned solely with inter state,

rather than zntra state, activities, we

conclude that Lopez’s “substantially

affects” test is not applicable... Like

the Hobbs Act, the RICO statue

contains a similar jurisdictional

requirement. See 18 U.S.C. § 1962(a),

§ 1962(b), or § 1962(c) (‘any enterprise

engaged in, or the activities of which

af‘oct, interstate or foreign

commerce”). Thus, the RICO statute,

»» the Hobbs Act, regulates activities

wiuch, in the aggregate have a

substantial effect on interstate

commerce; hence, the “de minimis

character of individual instances

1l3a

Appendix E

under [the] statute is of no

consequence. “ Lopez, 514 US. at 558,

115 S.Ct. at 1629 (citation omitted).

[ Juvenile Male, 118 F. 3d at 1348

(emphasis in original; some citations

and internal quotation marks

omitted); accord Morrison, 529 U.S. at

617 (“‘[wle accordingly reject the

argument Congress may regulate

noneconomic, violent criminal conduct

based solely on that conduct’s

aggregate effect on interstate

commerce” [emphasis added}).

In a later case that reaffirmed the RICO

statute’s constitutionality in the face of a Lopez

challenge, the Ninth Circuit quoted from Juvenile

Male and bluntly held that “Lopez's substantial

effects’ test is inapplicable” to the RICO statutes.

Frega, 179 F.3d 800 (contrasting a bribery-and-

mail-fraud-based RICO conspiracy form Lopez’s

guns-near schools scenario which had “nothing to

do with ‘commerce’ or any sort of economic

enterprise” [quoting Lopez, 514 U.S. at 561)).

Given the Ninth Circuit’s rejection of

Ricardo’s argument when offered by his co-

defendants on direct review, Ricardo’s counsel

failure to raise this point did not constitute

ineffective performance. No prejudice would have

arose either, however, as both this Court and the

Ninth Circuit would have denied the argument in

light of United States v. Juvenile Male, See, e.g.,

ll4a

Appendix E

United States v. Red Frame Parasail, 160 F. Supp.

2d 1048, 1057-58 (D. Ariz. 2001)(Broomfield, J.)

(upholding constitutionality of Airborne Hunting

Act against a Lopez/Morrtsor based motion to

dismiss because, unlike those cases’ fact patterns,

the Act’s prohibition on airborne-based hunting

“directly addresses economic activity: hunting”

[emphasis added)).

The Court denies the fourteenth ground for

relief.

Ground XV: Ineffective assistance of counsel based

on failing to object to jury charge that failed to

provide that an “enterprise” is separate from the

“pattern of racketeering” in which it engages.

In his fifteenth ground, Ricardo argues that

his trial counsel failed to object to the Court’s jury

instructions under count 17’s RICO-conspiracy

charge which allegedly failed to apprize the jury of

the requirement that the existence of an

“enterprise” must be independently proven by the

government- and cannot be found merely through

the “pattern of racketeerin

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