United States v. Francisco Colorado Cessa

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-50328
Fifth Circuit
FILED
June 9, 2017
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
FRANCISCO ANTONIO COLORADO CESSA, also known as Pancho, also
known as Francisco Antonio Colorado-Cessa,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Defendant–Appellant Francisco Colorado Cessa (“Colorado”) appeals his
conviction for conspiracy to commit money laundering under 18 U.S.C.
§ 1956(h). Colorado was convicted of participating in a scheme to launder drug
proceeds for Los Zetas, a Mexican drug cartel. On appeal, Colorado raises six
issues: (1) whether the district court erred when it declined to order disclosure
of certain Brady and Giglio material; (2) whether the district court erred by
instructing the jury that it could infer intent to conceal funds from
commingling legitimate and unlawful assets; (3) whether the prosecutor’s
closing statement on the commingling inference requires a new trial; (4)
Case: 16-50328 Document: 00514027465 Page: 2 Date Filed: 06/09/2017
No. 16-50328
whether the district court erred in finding that double jeopardy principles did
not bar Colorado’s retrial; (5) whether the district court erred when it declined
to dismiss the indictment based on alleged prosecutorial misconduct before the
grand jury; and (6) whether the district court erred in ordering the forfeiture
of some of Colorado’s property or in entering a money judgment against him.
We remand for further findings on the Brady and Giglio claim. In light of our
remand on the Brady claim, we do not reach Colorado’s challenge to the
forfeiture order. We otherwise reject Colorado’s arguments.
I
Colorado is a businessman from Mexico who owns an oil-services
business called ADT Petro Services (“ADT”). Around 2004, Colorado became
associated with the Zetas. The Zetas import drugs from Colombia and export
them to the United States. Colorado’s association with the Zetas arose out of
his close friendship with Efrain Torres, a leader in the organization, who was
also known as “Zeta 14” (the 14th member of the Zetas) or “La Chispa.”
Colorado’s association continued, however, after Torres was murdered at the
direction of Miguel Trevino (also known as “Zeta 40”) in 2007.
The Zetas engaged in a money-laundering operation that involved
purchasing quarter horses—a type of racehorse—in the United States. The
scheme was designed to conceal illegal drug money by repeatedly buying and
reselling horses to “straw purchasers and shell companies”—a process that
generated “clean” money, the origin of which was difficult to trace.
Colorado and others were first indicted in 2012. Colorado was charged
with one count of conspiring to launder drug proceeds in violation of 18 U.S.C.
§ 1956(h). The indictment alleged that the conspiracy began “in or about 2008”
and that its objective was “to launder U.S. currency gained from the sale of
illegal controlled substances by Los Zetas to purchase, breed, train, and race
quarter horses in the United States and Mexico.” Colorado and other
2
Case: 16-50328 Document: 00514027465 Page: 3 Date Filed: 06/09/2017
No. 16-50328
conspirators were convicted in 2013, but this Court reversed Colorado’s
conviction due to an improper jury instruction. See United States v. Cessa, 785
F.3d 165, 187 (5th Cir. 2015) (“Cessa I”).
On August 4, 2015, a grand jury returned a second superseding
indictment, which again charged Colorado with violating § 1956(h) by
conspiring to commit money laundering with the Zetas. The second
superseding indictment mirrored the first indictment in almost every respect.
However, the new indictment expanded the dates of the alleged conspiracy,
this time alleging that the conspiracy began “in or about 2004.”
A jury found Colorado guilty after a nine-day trial. The district court
sentenced Colorado to 200 months in prison, followed by three years of
supervised release. The district court also ordered forfeiture of Colorado’s
personal property and a $60 million money judgment. Colorado timely
appealed.
II
Colorado first argues that the district court erred under Brady and
Giglio by failing to order the Government to turn over certain interview
memoranda related to Carlos Nayen, a cooperating Government witness who
testified at the second trial. Government agents interviewed Nayen at least
nine times before trial. The agents generated FBI Forms 302 (official interview
memoranda) for each of the nine interviews, the last occurring on December
18, 2013, almost two years before trial began. Before Nayen testified,
Colorado, citing Brady and Giglio, moved for the Government to produce “all
FBI-302s, DEA-6s, and similar interview memoranda” related to Nayen to the
court for in-camera review. 1 The next day, the district court granted the
1 Colorado’s specific request for the Nayen interview memoranda followed the
defense’s more general pre-trial request for all Brady and Giglio material.
3
Case: 16-50328 Document: 00514027465 Page: 4 Date Filed: 06/09/2017
No. 16-50328
motion. Following Nayen’s direct testimony, Colorado’s counsel asked the
court to review the produced 302s with a “careful eye” in light of Nayen’s direct
testimony. The court responded by stating that nothing in the 302s was
“helpful” to the defense, and accordingly, denied Colorado access to the
interview memoranda. On appeal, we granted, over the Government’s
objections, Colorado’s motion to view the 302s. Colorado now argues that the
302s contain material, exculpatory and impeachment evidence requiring that
we vacate his conviction under Brady.
“We generally review whether the government violated Brady de novo,
although even when reviewing a Brady claim de novo, we must proceed with
deference to the factual findings underlying the district court’s decision[.]”
United States v. Brown, 650 F.3d 581, 589 (5th Cir. 2011) (internal quotation
marks and citations omitted). “But we have an exception to our general rule
of de novo review: Where . . . ‘a district court has reviewed potential Brady
material in camera and ruled that the material was not discoverable, we
review [that] decision only for clear error.’” Id. (alteration in original) (quoting
United States v. Skilling, 554 F.3d 529, 578 (5th Cir. 2009), vacated in part on
other grounds by Skilling v. United States, 510 U.S. 358 (2010)). “The district
court’s finding is clearly erroneous if, on the entire evidence, [the Court is] left
with a ‘definite and firm conviction’ that a mistake has been committed.” Id.
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Under Brady v. Maryland, a defendant’s due process rights are violated
when the prosecution suppresses evidence that is exculpatory. 373 U.S. 83, 87
(1963). The principle also applies to evidence that could be used to impeach
prosecution witnesses. Giglio v. United States, 405 U.S. 150, 152–54 (1972).
“To establish a Brady violation, a defendant must show: (1) the evidence at
issue was favorable to the accused, either because it was exculpatory or
impeaching; (2) the evidence was suppressed by the prosecution; and (3) the
4
Case: 16-50328 Document: 00514027465 Page: 5 Date Filed: 06/09/2017
No. 16-50328
evidence was material.” United States v. Dvorin, 817 F.3d 438, 450 (5th Cir.
2016). “Evidence is material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.” Id. at 451 (internal quotation marks and citation omitted).
Although the Government claimed at oral argument that the district
court considered all three prongs of the Brady analysis, the record does not
support that proposition. The district court denied Colorado’s request for the
302s, saying: “I’ve read everything with the idea of how could any of that help
you, and I couldn’t find anything that would help you. Found a lot that could
hurt you but not much that could help you. Nothing that could help you.” On
the face of the district court’s statement it considered only favorability. This
is not a case where the district court reviewed all potential Brady material in-
camera and denied discoverability without giving reasons or with reasons that
could reasonably be read to reach all three Brady prongs. In that type of case,
we might (in the absence of contrary evidence) presume that the district court
did a full Brady analysis. Here, however, the district court gave reasons for
denying discovery and couched its holding in terms of favorability only.
In addition, the timing of the district court’s decision indicates that the
court did not assess materiality. The district court determined that the 302s
were not discoverable immediately following Nayen’s direct examination. But
much of what we focus on in assessing materiality is how the suppressed
evidence relates to cross-examination. For example, we have asked whether
the suppressed impeachment evidence is the “only avenue of impeachment”
and whether the suppressed evidence impeaches an already impeached
witness. United States v. Sipe, 388 F.3d 471, 483 (5th Cir 2004); accord United
States v. Hughes, 230 F.3d 815, 819–22 (5th Cir. 2000). Further, even when
our materiality jurisprudence extends beyond the scope of cross-examination,
it asks questions that often depend on a full review of the trial evidence. For
5
Case: 16-50328 Document: 00514027465 Page: 6 Date Filed: 06/09/2017
No. 16-50328
example, we ask whether the suppressed evidence impeaches a witness at the
“heart of the government’s case,” whether the case is close on any element of
the crime, and whether the testimony that could be attacked with the
suppressed evidence is strongly corroborated. Sipe, 388 F.3d at 490, 492;
United States v. Alexander, No. 16-30737, 2017 WL 1031281, at *6 (5th Cir.
2017) (unpublished). These questions implicate the totality of the evidence
presented at trial. Indeed, we have made clear that “[t]he materiality of Brady
material depends almost entirely on the value of the evidence relative to the
other evidence mustered by the state.” Banks v. Thaler, 583 F.3d 295, 321 (5th
Cir. 2009) (quoting Smith v. Black, 904 F.2d 950, 967 (5th Cir. 1990), vacated
on other grounds 503 U.S. 930 (1992)). Accordingly, based both on its own
words and the context of the trial, we conclude that the district court assessed
the undisclosed interview memoranda for only favorability.
The district court clearly erred in finding that the 302s were not
favorable to the defense. As noted, evidence is favorable under Brady if it is
either exculpatory or impeaching. Sipe, 388 F.3d at 477 (citing Strickler v.
Greene, 527 U.S. 263, 281–82 (1999)); see also United States v. Dillman, 15 F.3d
384, 390 (5th Cir. 1994) (“Although exculpatory and impeachment evidence fall
within the purview of Brady, neutral evidence does not.”).
Some of Nayen’s statements in the 302s were exculpatory. At trial,
Colorado’s defense theory was that he bought horses for the Zetas using his
own (or his company’s) money. He explained that he spent millions of dollars
on horses for the Zetas because he feared them. Nayen’s statements in the
302s supported both points. For example, one 302 reports that “Nayen claimed
that Colorado only gave horses to Trevino and Lazcano [another Zeta leader]
as a gift. Nayen said that when Trevino and Lazcano would inquire as to the
price of a horse, Colorado would give it to them and say it is a gift.” This
statement corroborates Colorado’s defense theory that he did not buy horses
6
Case: 16-50328 Document: 00514027465 Page: 7 Date Filed: 06/09/2017
No. 16-50328
using Zeta money. The 302s also suggest that Colorado feared the Zetas,
reporting that “Nayen described Colorado as being in a constant state of
anxiety after meeting with Trevino.” This statement supports Colorado’s
theory that he gave horses to the Zetas—not to aid in the money laundering
conspiracy—but out of fear. Because the 302s lent support to Colorado’s trial
theory, we find that they were favorable.
The Government, however, argues the 302s are not truly exculpatory
because nothing in the 302s goes to the heart of Colorado’s guilt. On the
Government’s theory, Colorado’s fear of the Zetas or the Zetas’ coercion of
Colorado could be relevant only if Colorado requested a jury instruction on the
affirmative defense of duress. Because Colorado disclaimed a duress
instruction, the Government reasons that evidence of fear and coercion cannot
be relevant and, therefore, cannot be exculpatory.
This argument misunderstands Colorado’s defense theory. Colorado did
not concede that he joined the conspiracy but only under duress. Instead,
Colorado argued that he did not join the conspiracy at all, claiming that he
gave the Zetas gifts using his own money because he feared them. This
argument is directed at elements of the money laundering conspiracy charge—
namely the allegations that Colorado joined the conspiracy and did so with
specific intent. See United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.
1999) (noting that to prove a money laundering conspiracy, the government
must show “(1) that there was an agreement between two or more persons to
commit money laundering; and (2) that the defendant joined the agreement
knowing its purpose and with the intent to further the illegal purpose”).
Defendants charged with participating in a conspiracy to launder money
may argue that they did not “join[] the conspiracy[.]” Cessa I, 785 F.3d at 175;
see also United States v. Blessing, 727 F.2d 353, 356 (5th Cir. 1984) (reversing
conspiracy conviction when the government failed to prove that the defendant
7
Case: 16-50328 Document: 00514027465 Page: 8 Date Filed: 06/09/2017
No. 16-50328
joined the conspiracy). In Cessa I, we held that evidence indicating that a
defendant trained horses for the Zetas, was paid with Zeta drug money, and
knew that he was paid with Zeta drug money, was insufficient to support a
money laundering conspiracy charge. 785 F.3d at 175–80. In doing so, we
made clear that involvement with the Zetas, even involvement with Zeta drug
money, was insufficient to support a money laundering conviction because it
did not show that the defendant knowingly joined the Zetas’ laundering
conspiracy. Id. Colorado pursued a similar argument in this case. He argued
that although he knew the Zetas engaged in drug trafficking, he did not join
the money laundering conspiracy. Instead, Colorado claimed that his only
transactions with the Zetas were not money laundering transactions, but gifts.
And he explained the gifts by saying that he gave millions to the Zetas out of
fear. If the jury believed Colorado, it could have acquitted on that theory. See
id.; cf., e.g., United States v. Espinoza-Seanez, 862 F.2d 526, 538 (5th Cir. 1988)
(“It is not enough that the defendant merely associated with someone who was
knowingly participating in a conspiracy . . . .”); Panci v. United States, 256 F.2d
308, 312 (5th Cir. 1958) (reversing conspiracy conviction when evidence
“amount[ed] to no more than that [defendant] was seen associating with
characters of low repute”). 2
2 True, Colorado’s substantive defense may have had factual similarities to a duress
defense. To show duress, a defendant must prove:
(1) that the defendant or a member of his family was under an
unlawful and present, imminent, and impending threat of such
a nature as to induce a well-grounded apprehension of death or
serious body injury; (2) that he did not recklessly or negligently
place himself in a situation in which it was probable that he
would be forced to choose the criminal conduct; (3) that he had
no reasonable legal alternative to violating the law, that is, he
had no chance to refuse to do the criminal act and to avoid the
threatened harm; and (4) that there was a direct causal
relationship between the criminal action taken and the
avoidance of the threatened harm.
8
Case: 16-50328 Document: 00514027465 Page: 9 Date Filed: 06/09/2017
No. 16-50328
Moreover, even if the Government were correct that evidence of fear and
coercion was not relevant absent a duress instruction, we would still find that
evidence supporting duress was favorable to the defense at Brady step one. A
defendant’s decision to pursue or disclaim an affirmative defense instruction
is not made in a vacuum; defendants must evaluate the evidence available to
them and determine whether seeking the instruction is likely to help or harm
their cause. Denying defendants access to evidence they are entitled to under
Brady can significantly change this risk calculus. For this reason, courts
routinely find that evidence supporting an affirmative defense is exculpatory
and, therefore, favorable under Brady. See, e.g., Mahler v. Kaylo, 537 F.3d 494,
504 (5th Cir. 2008) (finding Brady error when the prosecution withheld
evidence that supported self-defense). Accordingly, evidence may be favorable
under Brady if it would have supported an affirmative defense—even if the
defendant, acting without the Brady evidence, later disclaims the defense. 3
And that is exactly what happened here: the district court denied the defense
access to the alleged Brady material before ruling on whether to give a duress
instruction. We therefore hold that the evidence contained in the 302s is
United States v. Montes, 602 F.3d 381, 389 (5th Cir. 2010) (quoting United States v. Willis,
38 F.3d 170, 175 (5th Cir. 1994)). Facts that would support the threat element of duress
likely overlap with the facts underlying Colorado’s explanation for why he gave gifts to the
Zetas. But this overlap neither required Colorado to seek a duress instruction nor improperly
shifted the burden of disproving duress onto the Government. See, e.g., Martin v. Ohio, 480
U.S. 228, 234 (1987) (“It may be that most encounters in which self-defense is claimed arise
suddenly and involve no prior plan or specific purpose to take life. In those cases, evidence
offered to support the defense may negate a purposeful killing by prior calculation and design
. . . .”); United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015) (holding that the district
court erred by excluding evidence that the defendant had been coerced in a wire fraud case,
even when the defendant did not request a duress instruction, because evidence of coercion
supported the defendant’s trial theory “that she signed the documents without knowing what
they said because of pressure from [her abuser], such that she lacked the required knowledge
and intent”).
3 Of course, finding that evidence supports an affirmative defense and is therefore
favorable at Brady step one does not mean that the evidence is material at Brady step three.
9
Case: 16-50328 Document: 00514027465 Page: 10 Date Filed: 06/09/2017
No. 16-50328
exculpatory and thus is favorable under Brady.
Furthermore, because Nayen testified inconsistently with the 302s, the
302s could have impeached Nayen’s testimony. “It is a well-established
principle of evidence that prior inconsistent statements of a witness are
admissible to impeach that witness.” United States v. Palacios, 556 F.2d 1359,
1363 (5th Cir. 1977). At trial, Nayen testified inconsistently with the 302s in
two respects.
First, Nayen testified that on three occasions the Zetas delivered
millions of dollars to Colorado, which Colorado used, in part, for horse
payments. The 302s tell a somewhat different story. In the first 302, Nayen
contradicts his trial testimony by saying that Colorado bought horses for the
Zetas as gifts—implying that Colorado used his own money, not Zeta money,
to buy the horses.
Second, Nayen testified that Colorado was “friends” with Zeta 40 (also
called Trevino), and accordingly, Zeta 40 would not have threatened or coerced
Colorado. Again, the 302s tell a different story. There, Nayen states that Zeta
40 said that he “was not [Colorado’s] friend” and that Zeta 40 “always wanted
to kill [Colorado].” Nayen further states that Colorado was “in a constant state
of anxiety after meeting with [Zeta 40].”
The Government questions the impeachment value of the 302s, arguing
that “in its proper evidentiary context, the ‘suppressed’ evidence of Nayen’s
statements about Miguel Trevino [Zeta 40] did not impeach Nayen’s trial
testimony.”
Preliminarily, the Government does not argue that Nayen’s statements
about the gifts are not favorable impeachment evidence. Accordingly, even if
the Government were correct that the friends-statements are not favorable, we
would still find the 302s as a whole contained favorable impeachment evidence.
Regardless, we hold that the friends-statements were also favorable to
10
Case: 16-50328 Document: 00514027465 Page: 11 Date Filed: 06/09/2017
No. 16-50328
Colorado. According to the Government, Colorado and Zeta 40 may have been
“not friends” before early 2007, but that changed sometime after Colorado and
Zeta 40 met in Tampico in March 2007. In early 2007, Zeta 40 had Torres (Zeta
14 or “La Chispa”), who was friends with Colorado, murdered. Following
Torres’s death, Nayen, Colorado, and Colorado’s business partner, Tavo, were
summoned to Tampico to discuss their friendship with Torres with Zeta 40.
Nayen missed the meeting and Tavo was killed there. The Government
concedes that before the Tampico meeting, Colorado may have feared Zeta 40.
But the Government solicited evidence from a number of witnesses, including
Nayen, that they saw Colorado and Zeta 40 behaving like they were friends
following the Tampico meeting. Based on those witnesses’ testimony, the
Government argues that “Nayen’s testimony about the friendship between the
defendant and Trevino, when placed in its proper context, addressed their
relationship after the Tampico tension had dissipated.”
The Government’s contextualization of Nayen’s statements in the 302s
does not make the 302s unfavorable under Brady. Nayen’s statements in the
302s are broad enough to encompass the time period following the Tampico
meeting: Nayen said that Colorado was in a “constant state of anxiety after”
the Tampico meeting and that Zeta 40 “always wanted to kill” Colorado
“through the course” of their relationship. Those statements impeach Nayen’s
testimony that Colorado and Zeta 40 were friends and that Zeta 40 never
threatened Colorado. Maybe, if confronted with his statements in the 302s,
Nayen would have explained that his statements in the 302s concerned the
time period before the Tampico meeting, and maybe the jury would have
credited that explanation. But it would have been favorable to the defense to
be able to demand that explanation and test it with the jury. See, e.g., United
States v. Campos, 20 F.3d 1171, 1994 WL 144866, at *13–15 (5th Cir. 1994)
(unpublished) (evidence of prior inconsistent statements is favorable to the
11
Case: 16-50328 Document: 00514027465 Page: 12 Date Filed: 06/09/2017
No. 16-50328
defense under Brady); United States v. Weintraub, 871 F.2d 1257, 1260 (5th
Cir. 1989) (same). 4
The district court’s analysis ended at the favorability step—declining to
address either suppression (the Government appears to have arguments that
some, but not all, of the statements in the 302s were not suppressed) 5 or
materiality. We hold that the district court clearly erred in concluding that
the 302s were not favorable.
In this posture, we often proceed to analyze the suppression and
materiality ourselves, but we are not required to do so. Compare Smith v. Dep’t
of Corr., 572 F.3d 1327, 1348–49 (11th Cir. 2009) (“We could conduct the
cumulative materiality analysis involving the six pieces of withheld evidence
ourselves, but we think it would be beneficial to remand the case so that the
district court can do that in the first instance. The district court has not yet
performed that analysis and in the circumstances of this case we think that
resolution of the issue will benefit from a two-tiered consideration.”), with
Hughes, 230 F.3d at 819–22 (conducting a materiality inquiry in the first
instance). We believe that remand is the proper course here for several
reasons.
First, the Government acknowledged at oral argument that a remand
would be proper to allow the district court to consider the interview notes
4 Nayen was a key Government witness at the second trial—his testimony was a
significant evidentiary addition in that trial. Nayen had been interviewed by three
government agencies over a two year period. And yet, the defense had limited discovery
material with which to challenge Nayen. And, on cross-examination, Nayen was able to repel
lines of questioning by claiming that defense counsel’s premises were lies. Had the 302s been
disclosed before trial, the defense may have been able to pursue additional lines of
impeachment.
5 It is not at all clear that the Government’s arguments on the suppression prong
would apply to all the alleged Brady and Giglio material. For example, many of the 302s
indicate that notes are attached to the document, but the 302s in the record do not have
attached notes.
12
Case: 16-50328 Document: 00514027465 Page: 13 Date Filed: 06/09/2017
No. 16-50328
corresponding to the 302s. This acknowledgment makes sense because there
is reason to believe that the interview notes may require a more probing Brady
analysis. 6 Interview notes may be discoverable under Brady if they are
inconsistent with the content of the corresponding 302s. See United States v.
Brown, 303 F.3d 582, 592–93 (5th Cir. 2002). At oral argument, the
Government indicated that it had not thoroughly looked through all of the
interview notes. Although Special Agent Scott Lawson authored each of the
302s, and a post-oral argument affidavit indicates that Lawson was present at
each of the interviews, 7 the Government separately confirmed that the “only”
note takers in the interviews were the prosecuting attorneys. This might not
be problematic, but here, Lawson did not generate the 302s, produced as
“interview memoranda,” until more than six months after the interviews: the
first seven interviews occurred between November 27, 2012 and February 12,
2013; Lawson did not begin to generate 302s until July 2013. And in urging
that the 302s would not be material, the Government itself disclaimed the
accuracy of the 302s, arguing that impeaching Nayen with the 302s would have
been ineffective because the 302s were “written long after the interviews.”
Accordingly, in light of the unique circumstances surrounding the interview
memoranda here, including the Government’s disclaiming the accuracy of the
302s and acknowledging that it had not thoroughly reviewed the interview
notes taken by the prosecuting attorneys for use a half year later in Lawson’s
302s, we conclude that remand for full assessment of the Nayen interview
6 We recognize that “Brady violations not considered in district court are not properly
before our court, and should not be considered.” Banks, 583 F.3d at 329. And accordingly, if
we were to reach an ultimate conclusion on the Brady claim we could not consider the notes.
However, because we find clear error in the district court’s favorability analysis, and because
potential Brady issues surrounding the noted arose on appeal, the best course is to let the
district court decide itself how to handle the notes on remand.
7 We note that although the 302s list the individuals present at each interview,
Lawson is not listed as present for any of the 302s.
13
Case: 16-50328 Document: 00514027465 Page: 14 Date Filed: 06/09/2017
No. 16-50328
memoranda is necessary. Because Brady errors must be assessed
cumulatively, see Skilling, 554 F.3d at 590, remand is the best course to allow
the district court to consider all Brady material at the same time.
The district court is also in a better position to conduct the required
suppression and cumulative materiality analysis because the district court had
the opportunity to observe the trial. See, e.g., United States v. Rodriguez, 496
F.3d 221, 227 (2d Cir. 2007) (remanding to the district court to make a
materiality and suppression determination in a Brady case because “[t]he
district court is far better positioned to make t[he] appraisal”); Smith, 572 F.3d
at 1348–49 (noting that materiality assessment would benefit from “two-tiered
consideration”).
Accordingly, we remand the Brady claim to the district court to conduct
a suppression and materiality analysis. On remand, the district court may,
but need not, review the contemporaneous prosecutor notes corresponding to
the later-generated agent 302s in camera. 8
III
Colorado next argues that a new trial is needed because the district court
gave an improper instruction concerning what inferences the jury could draw
about Colorado’s intent from his commingling illegal proceeds with legitimate
funds (the “commingling instruction”). We find no error.
8 On appeal, Colorado also sought disclosure of any “documents reflecting interviews
with Nayen after December 18, 2013.” Below, neither the defense motion seeking Brady
material nor the district court’s order requiring that the 302s be produced was time limited.
Nonetheless, the Government, claiming that no additional interview memoranda existed,
produced no interview memoranda after December 18, 2013. Brady obligations are
continuing throughout trial, and are neither dependent on a request from the defendant nor
the form of the Brady material. See, e.g., United States v. Bagley, 473 U.S. 667, 681–83 (1985)
(no requirement that defendant requests Brady material); Sipe, 388 F.3d at 486 (evidence in
inadmissible form may still be Brady material); Jackson v. Johnson, 194 F.3d 641, 649 n.18
(5th Cir. 1999) (Brady obligations continuing). In light of our remand, we do not reach the
issue; instead, we leave it to the district court in the first instance to consider Colorado’s
request for additional disclosures.
14
Case: 16-50328 Document: 00514027465 Page: 15 Date Filed: 06/09/2017
No. 16-50328
This is not the first time we have considered Colorado’s objections to the
district court’s instructions on the commingling of assets. At Colorado’s first
trial, the district court instructed: “the commingling of illegal proceeds with
legitimate business funds is evidence of intent to conceal or disguise. Therefore,
it would not be a defense that legitimate funds were also involved in a
transaction involving illegal and legitimate funds combined.” Cessa I, 785 F.3d
at 184. Colorado challenged the instruction on appeal. We noted that
‘“[e]vidence that the defendant commingled illegal proceeds with legitimate
business funds is sufficient to support a conviction under § 1956,’ particularly
when the defendant also subsequently used the commingled funds to purchase
equipment to further illegal activities.” Id. at 185 (quoting United States v.
Rodriguez, 278 F.3d 486, 491 (5th Cir. 2002)). However, we held that the
instruction was an abuse of discretion because it did not “make clear that the
inference is permissive and not mandatory.” Id. at 186. Finding that the error
was not harmless, we vacated and remanded. Id. at 187.
At Colorado’s second trial, the district court gave an amended
commingling instruction:
With respect to the fourth element, the commingling
of illegal proceeds with legitimate business funds may
constitute evidence of intent to conceal or disguise. If
you find that someone engaged in such commingling
in this case, then you may find that the person did so
with the intent to conceal or disguise the nature, the
location, the source, the ownership, or the control of
the proceeds. You are not obliged to so find, however.
You are the exclusive judges of the facts proved, and in
deciding what inference to draw, if any, from any such
commingling, you should carefully consider all of the
evidence in this case, including any explanatory or
mitigating circumstances, and giving the evidence
whatever weight you think it deserves.
15
Case: 16-50328 Document: 00514027465 Page: 16 Date Filed: 06/09/2017
No. 16-50328
Jury instructions are reviewed “for abuse of discretion, affording
substantial latitude to the district court in describing the law to the jury.”
United States v. Wright, 634 F.3d 770, 774 (5th Cir. 2011) (citation omitted).
This Court must determine whether the “charge, as a whole, is a correct
statement of the law and whether it clearly instructs jurors as to the principles
of law applicable to the factual issues confronting them.” United States v.
Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003) (quoting United States v.
Lara-Velasquez, 919 F.2d 946, 950 (5th Cir. 1990)). A jury instruction must be
“legally accurate” and “factually supportable”—a district court “may not
instruct the jury on a charge that is not supported by evidence.” Cessa I, 785
F.3d at 185 (quoting Mendoza-Medina, 346 F.3d at 132). “In assessing whether
evidence sufficiently supports a particular jury instruction, this Court views
‘the evidence and all reasonable inferences that may be drawn from the
evidence in the light most favorable to the Government.’” Id. (quoting
Mendoza-Medina, 346 F.3d at 132).
Colorado challenges the amended commingling instruction on three
grounds. First, he argues that the instruction was not supported by the
evidence, claiming that “there was no evidence that drug proceeds went into
any account from which horse payments came.” Second, he contends that “the
commingling instruction improperly highlighted one inference among many
the jury could draw.” And third, he claims that the instruction was
constitutionally infirm because commingling, at least here, does not make an
intent to conceal more likely. We reject each claim.
First, the instruction was supported by the evidence. Evidence of
commingling “illegal proceeds with legitimate business funds is sufficient to
support a conviction under § 1956.” Rodriguez, 278 F.3d at 491 (citing United
States v. Willey, 57 F.3d 1374, 1386 (5th Cir. 1995); United States v. Jackson,
935 F.2d 832, 840 (7th Cir. 1991)). Indeed, “[t]he government is under no duty
16
Case: 16-50328 Document: 00514027465 Page: 17 Date Filed: 06/09/2017
No. 16-50328
to trace the individual funds and ‘it is not necessary that a transaction be
examined wholly in isolation if the evidence tends to show that it is part of a
larger scheme that is designed to conceal illegal proceeds.’” Id. (quoting Willey,
57 F.3d at 1386). Therefore, if there was evidence that Colorado commingled
drug proceeds with his legitimate business funds, the instruction was
appropriate.
There was. For example, Nayen testified that when Colorado agreed to
hold $10 million for Zeta 40, Colorado told Zeta 40 “this time . . . I’m going to
handle it the way I need to handle it. I don’t want it to be like the last time.
I’m going to put it in my account, I’ll handle it.” The jury also heard significant
evidence indicating that the Zetas deposited drug money into ADT controlled
accounts as loans and that ADT funds were commingled with Colorado’s
personal funds. There was also ample evidence that Colorado purchased
horses for the Zetas. Colorado’s investment adviser and an IRS investigator
corroborated these loans and purchases. For example, Colorado’s investment
adviser in the United States testified that ADT’s financial documents reflected
the mixing of business accounts and personal expenses. An IRS investigator
testified that Colorado’s balance sheets showed he would not have been able to
fund ADT and purchase over $10 million in horses from 2008 to 2012, as ADT
merely “broke even” during that time. Accordingly, we find that sufficient
evidence supported the commingling instruction.
Second, our precedent forecloses the argument that the commingling
instruction unfairly highlighted one inference to the jury or was
constitutionally infirm under Leary v. United States, 395 U.S. 6, 36–37 (1969),
which held that the Due Process Clause requires that permissive inferences be
based in fact. In Cessa I we explicitly approved of a permissive inference
instruction on commingling, so long as the instructions “included . . . language
17
Case: 16-50328 Document: 00514027465 Page: 18 Date Filed: 06/09/2017
No. 16-50328
clarifying that the inference was permissive and not mandatory.” Cessa I, 785
F.3d at 186.
Moreover, even if we were to reexamine Cessa I, we would not find that
the commingling instruction was an abuse of discretion. The commingling
instruction here did not unfairly highlight one inference to the jury. Colorado
points to the Ninth Circuit’s opinion in United States v. Rubio-Villareal, 967
F.2d 294 (9th Cir. 1992) (en banc). There, the court held that a permissive
inference instruction that allowed the jury to infer knowledge of drugs from
the fact that the defendant was the driver of the vehicle containing the drugs
was an abuse of discretion because (1) “the instruction constituted an intrusion
on the jury’s deliberative process because it effectively told the jury in this case
that the judge thought there was sufficient evidence to convict the
defendant[,]” and (2) the instruction allowed the jury to ignore evidence outside
the permissive inference. Id. at 295, 299–300 However, subsequent cases
from the Ninth Circuit have distinguished Rubio-Villareal, and approved of
permissive inference instructions that (1) emphasize that the jury is the
ultimate fact finder; (2) remind the jury that explanatory or mitigating facts
may erode the power of the permissive inference; and (3) remind the jury to
consider all of the evidence. See, e.g., United States v. Beltran-Garcia, 179 F.3d
1200, 1205 (9th Cir. 1999); United States v. Houser, 130 F.3d 867, 870 (9th Cir.
1997); United States v. Warren, 25 F.3d 890, 899 (9th Cir. 1994). Even
assuming that Rubio-Villareal and its progeny apply, but see United States v.
Parker, 32 F.3d 395, 402 (8th Cir. 1994) (rejecting Rubio-Villareal), the
instruction here did all that the Ninth Circuit requires. The instruction told
the jury (1) that they were “the exclusive judges of the facts proved”; (2) to
consider “explanatory or mitigating circumstances”; and (3) to “consider all of
the evidence . . . giving [it] whatever weight you think it deserves.”
18
Case: 16-50328 Document: 00514027465 Page: 19 Date Filed: 06/09/2017
No. 16-50328
Neither did the commingling instruction run afoul of Leary’s
requirement that permissive inference instructions be based in fact. “A
permissive inference violates the Due Process Clause only if the suggested
conclusion is not one that reason and common sense justify in light of the
proven facts before the jury.” Francis v. Franklin, 471 U.S. 307, 314–15 (1985);
see also Barnes v. United States, 412 U.S. 837, 845 (1973) (noting that
permissive inferences may be based in “common sense and experience”); Smith
v. Stalder, 26 F.3d 1118, 1994 WL 286165, at * 1 (5th Cir. 1994) (unpublished)
(noting that permissive inference instructions are unconstitutional only if
“reason and common sense do not justify the suggested conclusion”). The
inference that commingling signals an intent to conceal is based in reason and
common sense; indeed, both we and other courts have relied on commingling
of assets to reject sufficiency challenges to money laundering convictions. See,
e.g., United States v. Shepard, 396 F.3d 1116, 1121 (10th Cir. 2005) (“This
circuit has noted that depositing illegal proceeds into the bank account of a
legitimate business may support the inference of an intent to conceal.”);
Rodriguez, 278 F.3d at 491; United States v. Bowman, 235 F.3d 1113, 1117 (8th
Cir. 2000) (“Depositing unlawfully obtained money into a seemingly legitimate
business account and passing the money off as funds of a legitimate business
is sufficient evidence to allow a reasonable jury to conclude that Mr. Bowman
intended to conceal the stolen nature of the money and its true ownership.”
(internal citation, quotation marks, and alterations omitted)); Willey, 57 F.3d
at 1386 (“Evidence that the defendant commingled illegal proceeds with
legitimate business funds has been held to be sufficient to support the design
element.”); United States v. Termini, 992 F.2d 879, 881 (8th Cir. 1993) (“We
reject Termini’s contention that the evidence of commingling of legal and
illegal funds was insufficient to support a jury finding of concealment.”); United
States v. Posters N Things Ltd., 969 F.2d 652, 661 (8th Cir. 1992) (“By
19
Case: 16-50328 Document: 00514027465 Page: 20 Date Filed: 06/09/2017
No. 16-50328
conducting the financial end of her drug paraphernalia business in this way—
commingling in one account, in an indistinguishable way, legitimate business
receipts and illegitimate receipts—a reasonable juror could infer that Acty’s
actions were designed to disguise the nature or the source of the proceeds from
her unlawful business.”), aff’d 511 U.S. 513 (1994); Jackson, 935 F.2d at 840
(“Indeed, the commingling in this case is itself suggestive of a design to hide
the source of ill-gotten gains that the government must prove under §
1956(a)(1)(B)(i).”).
Accordingly, even were we able to reconsider Cessa I, we would hold that
the district court did not abuse its discretion in giving the commingling
instruction.
IV
Colorado next argues that the Government’s statements at closing
require a new trial. During closing, the Government said “[a]nything that
comes out of ADT that’s been capitalized by drug proceeds, I submit to you that
once it gets commingled with dirty funds, anything that comes out of that
company is, in fact, money laundering.” Colorado argues that this statement
both converted the permissive instruction into an unlawful mandatory one and
impermissibly broadened the scope of the commingling instruction by shifting
the presumption from one element of money laundering—intent to conceal or
disguise—to the entire crime and by extending the inference to cover a
commingled account even after the unlawful funds had dissipated. Colorado
objected to the prosecutor’s statement at trial and asked for the district court
either to not give the commingling instruction or for “some corrective
language.” We review for abuse of discretion. See United States v. Gracia, 522
F.3d 597, 600 n.2 (5th Cir. 2008); United States v. Stouffer, 986 F.2d 916, 926
(5th Cir. 1993).
20
Case: 16-50328 Document: 00514027465 Page: 21 Date Filed: 06/09/2017
No. 16-50328
We have a two-step process for analyzing alleged prosecutorial
misconduct. See United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007).
“First, we assess whether ‘the prosecutor made an improper remark.’” Id.
(quoting United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004)). “In
assessing whether statements made by a prosecutor were improper, it is
necessary to look at them in context.” United States v. Gallardo-Trapero, 185
F.3d 307, 320 (5th Cir. 1999); see also United States v. Delgado, 672 F.3d 320,
335 (5th Cir. 2012) (“[C]ontext is crucial to determining the effect of the
statement.”). To properly gauge context, we “consider[] a prosecutor’s closing
argument as a whole and in the context of the trial.” United States v. Boyd,
773 F.3d 637, 645 (5th Cir. 2014).
If we conclude that a prosecutor’s statement was improper, “then we ask
whether the defendant was prejudiced. . . . [T]he prejudice step of the inquiry
sets a high bar[.]” Fields, 483 F.3d at 358. “The determinative question is
whether the prosecutor’s remarks cast serious doubt on the correctness of the
jury’s verdict.” United States v. Holmes, 406 F.3d 337, 356 (5th Cir. 2005)
(quoting United States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989)). “We
generally look to three factors in deciding whether any misconduct casts
serious doubt on the verdict: ‘(1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the conviction.’” Fields,
483 F.3d at 358 (quoting United States v. Mares, 402 F.3d 511, 515 (5th Cir.
2005)).
The prosecutor’s statement did not improperly convert the permissive
inference instruction into a mandatory one. The prosecutor indicated, in the
challenged statement itself, that she was inviting the jury to make an
inference, and therefore, mimicked, rather than obfuscated, the commingling
instruction that the jury would later hear. By prefacing her evidentiary
21
Case: 16-50328 Document: 00514027465 Page: 22 Date Filed: 06/09/2017
No. 16-50328
conclusion with the phrase “I submit to you,” the prosecutor indicated to the
jury that she was making an inferential argument using the evidence adduced
at trial. See United States v. Perez-Solis, 709 F.3d 453, 467–68 (5th Cir. 2013)
(“The challenged excerpt does not say ‘I think that’ or ‘I believe.’ It says ‘I
submit to you’—which a prosecutor making an argument from evidence
necessarily does. The statement was mere argument—not misconduct—
encouraging a common-sense inference from the record.”); cf. United States v.
Zabaneh, 837 F.2d 1249, 1260–61 (5th Cir. 1988) (examining a closing
argument statement that began “I would submit to you” and concluding that
the statement “advis[ed] the jury to consider” certain facts “in deciding how
much weight” to give the evidence). That is, all the challenged statement
communicates is the conclusion that the prosecutor asked the jury to draw from
the evidence of commingling. Because that conclusion was permissible, we find
no error. See United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978) (“[A]n
attorney properly may state, ‘I believe that the evidence has shown the
defendant’s guilt[.]’”).
Reading the challenged statement in context confirms this innocuous
reading. Immediately before the challenged statement, the prosecutor told the
jury that she “anticipate[d] an instruction on commingling.” And immediately
surrounding the challenged statement, the prosecutor summarized the trial
evidence indicating that Colorado commingled drug proceeds with ADT money.
This context suggests that the prosecutor was alerting the jury to the
permissive inference blessed by the commingling instruction. Accordingly, we
conclude that the challenged statement did not improperly convert the
permissive instruction to a mandatory one.
Neither did the challenged statement impermissibly broaden the scope
of the permissive inference. The commingling instruction allowed the jury to
22
Case: 16-50328 Document: 00514027465 Page: 23 Date Filed: 06/09/2017
No. 16-50328
infer a single element of money laundering, 9 intent to conceal or disguise, from
commingling unlawful proceeds with legal funds. Colorado argues that
because the challenged statement says “I submit to you that once it gets
commingled with dirty funds, anything that comes out of that company is, in
fact, money laundering[,]”the prosecutor’s statements broadened the
permissible inference from going to a single element, to going to the whole
crime. Context belies Colorado’s suggestion. Indeed, immediately after the
challenged statement, the prosecutor made clear that she was talking about
intent. Moreover, the remainder of the closing argument makes clear that the
jury could not convict based on only commingling, outlining the numerous
elements that the Government needed to prove, that proving money
laundering was not enough to convict on money laundering conspiracy, and
multiple pieces of evidence beyond the commingling. Likewise, the
prosecutor’s suggestion that the jury could infer intent from commingling did
not require the jury to find intent even after unlawful funds had dissipated.
Indeed, throughout the closing, the prosecutor highlighted the continued
replenishment of illegal proceeds into ADT account. Taking the closing as a
whole, we find no misconduct.
In any event, we would find any error in the closing harmless. With
regard to prejudicial effect, the prosecutor’s statement that the case would
“really come down to one thing” which was whether Colorado “intend[ed] to
join th[e] conspiracy,” highlights the prosecution’s burden to prove that
element of the offense and tends to rebut Colorado’s argument that the jury
would have assumed any evidence of commingling should result automatically
To be clear, the intent to conceal or disguise element is an element of the substantive
9
money laundering offense, not the charged conspiracy offense. See Threadgill, 172 F.3d at
366 (indicating that money laundering conspiracy does not require proof of the substantive
elements of money laundering).
23
Case: 16-50328 Document: 00514027465 Page: 24 Date Filed: 06/09/2017
No. 16-50328
in a guilty verdict. Moreover, the jury instructions made explicit that any
inference drawn from the commingling evidence was permissive. And, during
closing argument, the prosecutor advised the jury that the judge’s “word is
law,” and, in the event of a conflict between the lawyer and the trial judge’s
articulation of the law “it’s his law and his words that you go with.”
V
Colorado next argues that under principles of double jeopardy and
collateral estoppel, he should not have been retried on the theory that he
knowingly used illegal proceeds to purchase horses. Colorado argues that
because in Cessa I we stated that the Government failed to submit sufficient
evidence that he bought horses using illegal proceeds, the Government should
have been barred from arguing the same theory on retrial. We disagree.
In Cessa I, we denied Colorado’s sufficiency challenge:
Colorado also argues that insufficient evidence
supports his conviction because the government failed
to prove that Colorado knowingly used illegal proceeds
to purchase horses. Although we agree with
Colorado’s argument that the government failed to
introduce sufficient evidence on that point—which
was the government’s theory of the case—we hold that
the government’s evidence supports Colorado’s
conviction on a different theory; namely, that Colorado
purchased the horses with the knowledge that they
would be used as part of a larger money-laundering
conspiracy. This knowledge is some circumstantial
evidence that he voluntarily joined a conspiracy
knowing its purpose was to conceal the source or
nature of illegal funds. However, the issue is close, as
the government offered weak circumstantial evidence
based largely on Colorado’s personal relationships
with Los Zetas’ leaders that Colorado’s knew the
conspiracy’s purpose was to conceal the nature or
source of illegal proceeds. As we explain . . . the
erroneous jury instruction on commingling, viewed in
24
Case: 16-50328 Document: 00514027465 Page: 25 Date Filed: 06/09/2017
No. 16-50328
light of the sparse evidence of Colorado’s guilt,
requires that Colorado’s conviction be vacated.
Cessa I, 785 F.3d at 182 (internal citations omitted).
The doctrine of double jeopardy bars retrial when the defendant has been
acquitted, or when an appellate court reverses “on grounds of evidentiary
insufficiency.” Burks v. United States, 437 U.S. 1, 16 (1978). However, double
jeopardy does not apply when a “conviction is set aside because of an error in
the proceedings leading to conviction.” Id. at 14 (quoting United States v. Tateo,
377 U.S. 463, 465 (1964)).
Relatedly, “[t]he doctrine of collateral estoppel is one aspect of the
protection afforded by the double jeopardy clause.” United States v. Price, 750
F.2d 363, 365 (5th Cir. 1985). Collateral estoppel—or issue preclusion—is the
principle that “when an issue of ultimate fact has once been determined by a
valid and final judgment, that issue cannot again be litigated between the
same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443 (1970).
“This court has interpreted Ashe to require a twofold inquiry for analyzing
double jeopardy claims. First, the court must determine what, if anything, the
jury necessarily decided in the first trial.” United States v. Tran, 433 F. App’x
227, 230 (5th Cir. 2011) (unpublished) (citing Bolden v. Warden, W. Tenn. High
Sec. Facility, 194 F.3d 579, 583–84 (5th Cir. 1999)). “Second, a court must
determine ‘whether the facts necessarily decided in the first trial constitute
essential elements of the offense in the second trial.’” Id. (quoting Bolden, 194
F.3d at 584). Colorado “bears the burden of demonstrating that the factual
issue allegedly barred by collateral estoppel ‘was actually decided in the first
proceeding.’” Garcia v. Dretke, 388 F.3d 496, 501 (5th Cir. 2004) (quoting
Dowling v. United States, 493 U.S. 342, 350 (1990)). “This burden requires a
defendant to prove that a second jury necessarily made a finding of fact that
contradicted a finding” made at the first trial. Id. “The question of whether
25
Case: 16-50328 Document: 00514027465 Page: 26 Date Filed: 06/09/2017
No. 16-50328
[the] prosecution violates the Double Jeopardy Clause is one of law and is thus
reviewed de novo.” United States v. Cihak, 137 F.3d 252, 257 (5th Cir. 1998).
Collateral estoppel did not bar Colorado’s retrial, even on the theory that
he used drug proceeds to buy horses. “The doctrine of collateral estoppel as
delineated in Ashe . . . deals with facts not theories.” United States v. Ragano,
520 F.2d 1191, 1198 (5th Cir. 1975); see also Wright v. Whitley, 11 F.3d 542,
546 (5th Cir. 1994) (“[T]he Ashe holding only bars relitigation of a previously
rejected factual allegation where that fact is an ultimate issue in the
subsequent case.”). No facts (pertaining to Colorado) were conclusively decided
in Cessa I. True, we said in Cessa I that the Government did not introduce
sufficient evidence to show that Colorado used drug proceeds to buy horses, but
that fact was not part of our holding. 785 F.3d at 182. Indeed, we held that
the Government put forward sufficient evidence to convict, and reversed on
only instructional error. Id. at 182, 187. Likewise, whether Colorado used
drug proceeds to purchase horses was not necessarily at issue at the second
trial. As we said in Cessa I, the jury could convict on the theory that “Colorado
purchased the horses with the knowledge that they would be used as part of a
larger money-laundering conspiracy.” Id. at 182. And accordingly, the
Government repeatedly, and correctly, eschewed the burden to trace drug
funds through Colorado and then back to the Zetas, in the form of horses.
Because no facts actually decided in Cessa I were at issue in Colorado’s trial,
double jeopardy does not apply.
VI
Additionally, Colorado argues that the district court should have
dismissed the Second Superseding Indictment because of prosecutorial
misconduct before the grand jury. Because we find no material misconduct,
we disagree.
26
Case: 16-50328 Document: 00514027465 Page: 27 Date Filed: 06/09/2017
No. 16-50328
Colorado alleges three types of prosecutorial misconduct before the
grand jury. First, he argues that the prosecutor improperly informed the grand
jury of Colorado’s prior indictment and conviction. Specifically, the prosecutor
told the grand jury that the appeals of all the original defendants in the
conspiracy “were affirmed except for one guy, Francisco Antonio Colorado
Cessa. And so the Court came back and said, ‘Even though your evidence is
sufficient on this guy and all the other guys, you had an improper jury
instruction.’” He also argues that many statements made by the prosecutor
were “prejudicial and misleading.” Finally, Colorado points out several leading
questions that he contends functioned as “unsworn assertions of fact thinly
disguised as questions to the [witness].”
These were essentially the arguments Colorado made below. The district
court denied Colorado’s motion to dismiss the indictment. “The denial of a
motion to dismiss the indictment for Governmental misconduct is reviewed de
novo.” United States v. Forte, 65 F. App’x 508, 2003 WL 1922910, at *5 (5th
Cir. 2003) (unpublished) (citing United States v. Johnson, 68 F.3d 899, 902 (5th
Cir. 1995)). However, we review any district court factual determinations
concerning prosecutorial misconduct before the grand jury for clear error.
United States v. Bourgeois, 950 F.2d 980, 984 (5th Cir. 1992).
“[A]s a general matter, a district court may not dismiss an indictment for
errors in grand jury proceedings unless such errors prejudiced the
defendant[].” Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988).
“[D]ismissal of the indictment is appropriate only ‘if it is established that the
violation substantially influenced the grand jury’s decision to indict,’ or if there
is ‘grave doubt’ that the decision to indict was free from the substantial
influence of such violations.” Id. at 256 (quoting United States v. Mechanik,
27
Case: 16-50328 Document: 00514027465 Page: 28 Date Filed: 06/09/2017
No. 16-50328
475 U.S. 66, 78 (1986) (O’Connor, J., concurring)). 10 Put another way,
“[w]hether or not prosecutorial misconduct prejudiced a defendant depends on
whether it affected the grand jury’s decision to indict.” United States v.
Whitfield, 590 F.3d 325, 359 (5th Cir. 2009).
First, although the prosecutor mentioned Colorado’s first trial, he
explicitly instructed the grand jury: “your job is still to look at this case fresh.”
Moreover, the prosecutor explained that the dates on the new indictment had
been expanded after the conviction was reversed, and the prosecutor
highlighted that each indictment had “to be considered independently.”
Overall, as the district court concluded, it appears that the prosecutor
“repeatedly emphasized to the grand jury that they were more than a rubber
stamp.” Given this repeated emphasis of the grand jury’s independent role,
mentioning Colorado’s prior conviction and appeal did not substantially
influence the grand jury’s decision to indict. See Nova Scotia, 487 U.S. at 256.
Second, the prosecutor did not knowingly present material false and
misleading information to the grand jury. We have “refuse[d] to adopt the
proposition that, absent perjury or government misconduct, an indictment is
flawed simply because it is based on testimony that may later prove to be
questionable.” United States v. Sullivan, 578 F.2d 121, 124 (5th Cir. 1978).
Indeed, even perjured grand jury testimony does not demand dismissal of the
indictment under the district court’s supervisory power unless the perjury was
“knowingly sponsored by the government.” United States v. Strouse, 286 F.3d
767, 772 (5th Cir. 2002). Accordingly, when a defendant claims that the
prosecution put false information before the grand jury, we ask two questions
10Nova Scotia also makes clear that certain structural errors in the grand jury (such
as the exclusion of women or racial minorities from the grand jury) may lead to the
presumption of prejudice. 487 U.S. at 256–57. Colorado makes no argument of structural
error here.
28
Case: 16-50328 Document: 00514027465 Page: 29 Date Filed: 06/09/2017
No. 16-50328
(1) did the government “knowingly “sponsor[]” false information before the
grand jury and (2) was that information material, that is, was the information
“capable” of influencing the grand jury’s decision. See, e.g., id. at 770–72; Forte,
2003 WL 1922910, at *5–6.
Colorado challenges the following statements made to the grand jury as
being materially false and misleading: (1) that the panel in Cessa I “affirmed
except for one guy”; (2) that the panel in Cessa I found the evidence against
Colorado sufficient; (3) that the expansion in the dates in the indictments was
“based on some stuff” the Government discovered between the first and second
indictments; (4) statements citing Agent Fernald’s financial analysis,
including that ADT was not legitimate because it was begun with drug
proceeds and that Colorado had “unexplained wealth.” For all but the first
challenged statement, the Government did not knowingly put false
information before the grand jury because it had an evidentiary basis for the
statements. See United States v. Stearman, 981 F.2d 1256, 1992 WL 386839,
at *3 (5th Cir. 1992) (unpublished) (finding no prosecutorial misconduct when
the government witness had a factual basis for their grand jury testimony).
The first challenged statement was immaterial. In Cessa I, we did not
“affirm[] except for one guy”; we reversed both Colorado and Eusevio Huitron’s
convictions, finding that the Government failed to carry its burden to show
that Huitron, a horse trainer who worked with the Zetas, joined the money
laundering conspiracy. Cessa I, 785 F.3d at 180. However, we fail to see how
the fact that Huitron’s conviction was reversed was “capable” of influencing the
grand jury’s decision to indict Colorado, especially because (1) Huitron and
Colorado were charged with participating in the money laundering conspiracy
in very different ways—Huitron as a horse trainer and Colorado as a major
financial player and (2) the prosecutor repeatedly told the grand jury that they
had to independently consider the evidence, despite the prior verdicts.
29
Case: 16-50328 Document: 00514027465 Page: 30 Date Filed: 06/09/2017
No. 16-50328
Third, we reject Colorado’s objections to the prosecutor’s leading
questions. Leading questions are permitted in grand jury proceedings, so long
as “a duly-sworn witness actually testifie[s] to the factual correctness of all the
[leading] questions asked.” United States v. Brown, 872 F.2d 385, 388 (11th
Cir. 1989); accord McKethan v. United States, 439 U.S. 936, 938 (1978) (“In
grand jury proceedings, the ordinary rules of evidence do not apply. Leading
questions and multiple hearsay are permitted and common.”); United States v.
Weiss, 752 F.2d 777, 786 (2d Cir. 1985) (“We perceive no error in the
prosecution’s use of leading questions before the grand jury.”); United States v.
Galindo, No. 04-053 DAE, 2008 WL 918405, at *5 (D. Haw. Apr. 4, 2008)
(“Defendant asserts that the excessive use of leading questions was improper.
Leading questions alone are not grounds for dismissal of an indictment.”). And
here, a sworn agent responded to each of the prosecutor’s leading questions.
Accordingly, we find no error in the prosecutor’s use of leading questions before
the grand jury.
VII
For the foregoing reasons, we remand Colorado’s Brady claim to the
district court for further findings on the suppression and materiality elements.
We do not reach Colorado’s forfeiture claim because it is contingent on a valid
conviction. We otherwise reject Colorado’s arguments. Because this is a
limited remand, “[w]e retain jurisdiction of this appeal pending the district
court’s compliance with our limited remand.” Wheeler v. City of Columbus, 686
F.2d 1144, 1154 (5th Cir. 1982); accord Smitherman v. Bayview Loan
Servicing, L.L.C., No. 16-20328, 2017 WL 113919, at *1 (5th Cir. Jan. 11, 2017)
(unpublished); In re Schlumberger Tech. Corp., 648 F. App’x 420, 421 (5th Cir.
2016) (unpublished); Hornbeck Offshore Servs., LLC v. Salazar, No. 10-30585,
2010 WL 3219469, at * 2 (5th Cir. Aug. 16, 2010) (unpublished).
30