# Appendix — Briones v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1038

## Text

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NOT FOR PUBLICATION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 renditio

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1671%3A2. Public record. Not legal advice.