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June 26, 2019 Practice Points

Witness Tampering Update: United States v. Orozco

The Tenth Circuit reverses Judge Robinson’s decision to dismiss with prejudice the case against Mr. Orozco.

By Sheena Foye and James R. Wyrsch

Previously, these authors wrote a May 2018 Practice Point on the district-court decision in United States v. Orozco, 291 F. Supp.3d 1267 (D.Kan.2017). In that piece, the authors discussed the finding of the chief judge for the District of Kansas, Julie Robinson, that the government interfered with the defendant’s Sixth Amendment right to a defense by tampering with and encouraging a defense witness not to testify. As a result of the government’s behavior, Judge Robinson dismissed the case with prejudice against the defendant. The government appealed.

On appeal, the government argued that the district court erred in finding that the defendant’s Sixth Amendment rights were violated by the government’s conduct, and that the district court abused its discretion by dismissing the indictment with prejudice rather than by ordering a new trial. See United States v. Orozco, 916 F.3d 919 (10th Cir. 2019). The Tenth Circuit Court of Appeals did not find that the district court erred in finding that the government violated the defendant’s Sixth Amendment rights and that the error was not harmless. However, the Tenth Circuit did find that the district court abused its discretion in dismissing the case with prejudice rather than ordering a new trial.

In United States v. Morrison, 449 U.S. 361, 364 (1981), the U.S. Supreme Court held that remedies for Sixth Amendment violations should be “tailored” and not unnecessarily infringe on competing interests.” In Orozco, the Tenth Circuit Court of Appeals held that “less drastic remedies were available to address the district court’s concerns.” The court went on to state that the “district court failed to balance the competing interests that Morrison requires and failed to consider more narrowly tailored remedies.” The Tenth Circuit then went on to discuss the district court’s concern that the defendant’s witness may be afraid to testify in the future for the defendant, fearing consequences in the witness’s own case pending in the Western District of Missouri, as a basis for the district court’s dismissal with prejudice. The Tenth Circuit believes this concern of the district court could have been addressed by delaying the trial until after defendant’s witness’s own trial in the Western District was completed.

The district court also expressed concern that if the defendant’s witness was then convicted in that Western District case, the government would use that conviction to impeach the defendant’s witness. The Tenth Circuit believes this concern of the district court could have been addressed by the district court issuing an order preventing the government from using that Western District conviction against the defendant’s witness. The Tenth Circuit remanded the case back to the district court so that the government can proceed with a new trial and with instructions that the district court should narrowly tailor restrictions upon the government (as discussed above) to cure any Sixth Amendment violation. Of note, the Honorable Judge Lucero issued a dissent in Orozco, stating that the case should be remanded to the district court but with directions for the district court to conduct a proper balancing analysis as required by Morrison. Judge Lucero then stated that if after conducting the balancing test under Morrison, the district court finds that the proper remedy is still a dismissal with prejudice, this district court should be free to dismiss the matter.

At this point, it is unclear what will happen at a new trial for the defendant. If the defendant’s witness fails to testify despite the safeguards discussed by the district court, how will that impact the defendant’s Sixth Amendment rights? We will continue to follow and update on this case as it has important Sixth Amendment implications. This case serves as an excellent reminder that practitioners arguing Sixth Amendment violations for clients should be sure to make a full and complete record as laid out in Morrison so that there can be no question that if a dismissal with prejudice is granted, the government cannot establish on appeal that a more narrowly tailored remedy would have cured the Sixth Amendment violation.

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

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