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May 29, 2018 Practice Points

Recent Decision Underscores Importance of Building a Record to Prove Witness Tampering

Tampering could be a violation of your client’s Sixth Amendment right to present a defense, and could result in a new trial or even an outright dismissal.

By Sheena Foye and James R. Wyrsch – May 29, 2018

“The Fifth or Fourteenth (if a state is involved) and Sixth Amendments concomitantly provide a criminal defendant the right to present a defense by compelling the attendance, and presenting the testimony, of his own witnesses.” United States v. Serrano, 406 F.3d 1208, 1215 (10th Cir. 2005) (citing Washington v. Texas, 388 U.S. 14, 18–19 (1967)). This right derives from the Sixth Amendment Compulsory Process Clause, and the Fifth and Fourteenth Amendment Due Process Clauses. This right may be infringed if the prosecution substantially interferes with a defense witness’s decision to testify. Webb v. Texas, 409 U.S. 95, 97–98 (1972); Serrano, 406 F.3d at 1215. In Webb v. Texas, the U.S. Supreme Court held that a trial judge’s “lengthy and intimidating warning” and “threatening remarks” effectively caused the defendant’s only witness not to testify, in violation of the Due Process Clause. Webb, 409 U.S. at 97–98.

Recently, the chief district judge of the District of Kansas held that an Assistant U.S. Attorney’s (AUSA’S) threatening remarks resulted in a defense witness’s not testifying, which violated the defendant’s Sixth Amendment right to present a defense. The court vacated and dismissed with prejudice the defendant’s two convictions because of the constitutional violations. On December 5, 2017, in U.S. v. Gregory Orozco, Chief U.S. District Judge for the District of Kansas Julie Robinson vacated and dismissed with prejudice two convictions (one to conspiracy to possess with the intent to distribute 50 grams or more of methamphetamine, and one to knowingly and intentionally possessing with the intent to distribute five grams or more of methamphetamine) following findings of guilt after a jury trial, and ordered the superseding indictment dismissed with prejudice. U.S. v. Orozco, 2017 WL 6019613.

(The authors encourage all readers of this practice point to read the full 26-page opinion issued by Chief Judge Robinson as it provides a detailed overview of the facts of the case and the conduct engaged in by the AUSA that Judge Robinson deemed to substantially interfere with Orozco’s Sixth Amendment right to present a defense. Additionally, the authors suggest that all readers of this practice point also review “Fighting Governmental Witness Tampering (Or, You Can Have Our Defense Witnesses When You Pry Them From Our Cold, Dead Hands)” by Kevin Sali and John Robb, which provides excellent background regarding governmental interference with witnesses.)

The United States has filed an appeal, which is currently pending in the Tenth Circuit Court of Appeals.

During the government’s case in chief, a state witness, Alejandro Ruiz, testified to the following:

  • Orozco bought large quantities of methamphetamine from Alejandro Ruiz.
  • Ruiz met Orozco in early 2012 at a casino.
  • Shortly after their meeting, Ruiz began selling methamphetamine to Orozco in quantities that started at one to two ounces but progressed to four ounces.
  • Ruiz sold Orozco four ounces of methamphetamine more than five times.
  • Ruiz sold Orozco a chameleon-colored Camaro in August 2012.
  • Ruiz sold methamphetamine to Orozco two to three times a week from the time they met in early 2010 until November or December 2012.

On cross-examination, Orozco’s attorney challenged Ruiz’s motivation to testify, questioned why Ruiz never mentioned Orozco’s name in his proffer to case agents, questioned whether Ruiz had ever sold methamphetamine to Orozco, questioned whether Ruiz’s brother—Jose Luis Ruiz-Salazar—introduced Orozco to Ruiz, and finally questioned whether Jose Luis Ruiz-Salazar, not Ruiz, sold Orozco the chameleon-colored Camaro. Ruiz denied that Ruiz-Salazar introduced him to Orozco and stated that he, not his brother, sold Orozco the Camaro.

At the close of the government’s case, the court conducted a hearing outside the presence of the jury to inquire about Orozco’s witnesses. Orozco, through counsel, advised that he intended to call two witnesses, Clayton Deardorff and Jose Luis Ruiz-Salazar. Ruiz-Salazar appeared at this hearing with his attorney. Orozco advised the Court during this hearing that Ruiz-Salazar would testify to the two following issues: (1) that Ruiz-Salazar, not Ruiz, sold the Camaro to Orozco; and (2) that while Ruiz-Salazar was friends with Orozco, Ruiz did not have a friendship or relationship with Orozco. Ruiz-Salazar was indicted on his own federal drug case out of the Western District of Missouri and was awaiting trial on those charges. The court ruled that the AUSA was able to question Ruiz-Salazar whether he was facing pending charges in the Western District and whether he was seeking favorable treatment in that case by testifying in this case. Ruiz-Salazar’s counsel stated that her client would be willing to testify on behalf of Orozco under those circumstances. The court then spoke with Ruiz-Salazar on the record and advised him about what the government could question him on, and that even during his time on the stand he had a Fifth Amendment privilege and could ask to speak with his attorney. Ruiz-Salazar advised the court that he understood.

During a recess and prior to Orozco presenting his defense, the AUSA asked Ruiz-Salazar’s attorney if she could speak with her and her client. After a discussion between the AUSA and Ruiz-Salazar’s counsel, and then a discussion between Ruiz-Salazar and his counsel regarding what she and the AUSA had discussed, Ruiz-Salazar was no longer willing to testify for Orozco. As a result of Ruiz-Salazar’s changing his mind about testifying, Orozco informed the Court that he had no choice but to take the stand himself to testify on his own behalf and to prove his innocence. Ultimately, Orozco was convicted of the two aforementioned drug charges. (Orozco was acquitted of knowingly, intentionally, and unlawfully possessing a firearm in furtherance of a drug trafficking crime and felon in possession of a firearm.)

After the trial, Orozco’s counsel filed a motion for new trial stating that his client’s Sixth Amendment right to a fair trial and to present a defense was violated because the AUSA intimidated a defense witness into not testifying. The court held two evidentiary hearings on this issue. At the first hearing, Orozco testified that Ruiz-Salazar told him that Ruiz-Salazar had decided not to testify because the AUSA told Ruiz-Salazar’s attorney who told him that, “if he got in her way, she would get in his way.” Ruiz-Salazar’s attorney submitted an affidavit stating that the AUSA told her that her client could be charged with perjury should he testify, and that she was aware of who was handling his indictment in the Western District of Missouri. Ruiz-Salazar’s attorney also testified at the hearing that the AUSA used an “assertive tone” and that the AUSA explained to her that seeking ramifications against her client if he testified “was a strong possible outcome.” At the second evidentiary hearing on the issue, Ruiz-Salazar testified that although he did not directly speak with the AUSA, he felt threatened by her given the information that his attorney had relayed to him that she would “get in his way.” Ruiz-Salazar stated that he felt that if he testified for Orozco, it would impact his own case.

Following both evidentiary hearings, Chief Judge Robinson found that the AUSA had substantially interfered with Ruiz-Salazar’s decision to testify and, therefore, violated Orozco’s Sixth Amendment right to present a defense. The court outlined that the comments made by the AUSA to Ruiz-Salazar went beyond what was appropriate and that her other behavior in the case showed that the AUSA acted in bad faith and departed from the proper standard of conduct by the prosecution.

(Orozco’s trial was originally set to begin on December 12, 2016. On that morning, the AUSA filed an information to establish prior conviction, essentially doubling the mandatory minimum of 10 years to a mandatory minimum of 20 years. Additionally, minutes before the trial was set to begin, the AUSA disclosed to Orozco’s counsel three SIM cards and a flash drive that had not been turned over. The AUSA characterized the late disclosure items as inadvertently not turned over and that they just contained “random, discrete photos of normal things that didn’t appear to be anything related to drugs or guns or anything like that.” Orozco’s counsel was granted a two-month trial continuance to review the new evidence, which ended up including Brady material.)

Attorneys preparing to defend a criminal client should take note of the Orozco case and the well-documented record made by his counsel regarding the interference that took place. Attorneys intending to call witnesses in criminal prosecutions should document early on a witness’s willingness to testify. This can be achieved in several ways. For example, an attorney could record early interviews with a potential witness (with their permission of course) and have the witness indicate in that recording that the witness is willing to testify on behalf of the defendant, or have the witness sign an affidavit following an interview if the witness is willing to testify for the defendant. Attorneys should be diligent in keeping up with possible defense witnesses so that they can be aware if a witness has changed his or her mind about testifying, and what might have caused the change of mind. If there is any indication that a witness has changed his or her mind because of contact from the government, you must request a hearing and make a complete record of what occurred.

Sheena Foye and James R. Wyrsch are with Wyrsch Hobbs Mirakian P.C. in Kansas City, Missouri.

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