UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FILED
UNITED STATES OF AMERICA, APR 1 2 2013
Clerk, u.s. UISUIG'l6t oanKruptcy
courts for the District of Golumbla
Plaintiff,
v. Criminal Case No. 07-65 (GK)
CHRISTIAN FERNANDO BORDA,
et al.,
Defendants.
MEMORANDUM OPINION
On December 9, 2010, Defendants Christian Fernando Borda
("Borda") and Alvaro Alvaran-Velez ("Alvaran") were convicted
under the Controlled Substances Import and Export Act, 21 U.S.C.
§§ 951 et seq., of conspiring to distribute five kilograms or
more of cocaine with the intent or knowledge that the cocaine
would be unlawfully imported into the United States. See Verdict
Form as to Borda [Dkt. No. 2 0 7] ; Verdict Form as to Al varan
[Dkt. No. 209]; 21 U.S.C. §§ 959, 960, 963.
Defendants moved for judgment of acquittal under Federal
Rule of Criminal Procedure 29, which the Court denied 1n a
Memorandum Opinion on March 9, 2011 [Dkt. No. 238]. Defendants
next moved for a new trial under Federal Rule of Criminal
Procedure 33, which the Court denied in a Memorandum Opinion on
April 27, 2011 [Dkt. No. 249] Defendants then moved to vacate
the jury verdict and to dismiss the indictment under the Fifth
Amendment's Due Process Clause and Federal Rule of Criminal
Procedure 6(e), which the Court denied in a Memorandum Opinion
on November 27, 2012 [Dkt. No. 376]
This matter is now before the Court on Defendants' Joint
Motion to Dismiss for Brady Violations 1 or, in the Alternative,
for a New Trial [Dkt. No. 354]. Upon consideration of the
Motion, the Opposition [Dkt. No. 360], the Reply [Dkt. No. 365],
the Sur-Reply [Dkt. No. 366], the Sur-Sur-Reply [Dkt. No. 367],
the entire record herein, and for the reasons set forth below,
Defendants' Joint Motion to Dismiss is denied.
I . Background
Defendants were each convicted of conspiring, beginning in
January 2005 and continuing to at least October of 2005, to
distribute five or more kilograms of cocaine with the intent or
knowledge that the cocaine would be unlawfully imported into the
United States. See 21 U.S.C. §§ 959, 963. At trial, Defendants
did not dispute that they had distributed cocaine during that
period, but argued that they neither knew nor intended that the
cocaine would be unlawfully imported into the United States.
1
The remedy for a Brady violation is retrial, not dismissal.
U.S. v. Pettiford, 627 F.3d 1223, 1228 (D.C. Cir. 2010) ("If we
find a Brady violation, a new trial follows as the prescribed
remedy, not as a matter of discretion.") (internal quotation
marks omitted) .
- 2 -
The Government offered evidence of three separate drug
deals in 2005. The first deal, "Palm Oil One," took place
between January and May 2005. In Palm Oil One, Defendants Borda
and Alvaran arranged to ship 1,553 kilograms of cocaine
concealed in drums of palm oil from Cartagena, Colombia to
Puerto Progreso, Mexico. Upon the shipment's arrival in Puerto
Progreso, an associate named Raul Valladeres, or "Junior,"
contacted Defendants to say that he could transport the cocaine
to Monterrey, Mexico and would pay Borda $9, 100 per kilogram
within ten days after receipt of the drugs. Trial Transcript
("Tr.") at 18:24-20:18, 25:10-28:15 A.M. Session, Nov. 4, 2010.
Defendants agreed to Junior's proposal, and Junior transported
the cocaine north to Monterrey. rd.; Gov't Ex. 40b at 3-4.
The Government introduced evidence that Monterrey is
located less than two hours away from the United States border.
The Government's evidence showed that Monterrey is an inland
city in Mexico with insufficient demand for a delivery of
cocaine as large as the Palm Oil One load. See Gov't Ex. 40b at
6 (Defendant Alvaran stated that Monterrey is "not a market for
personal use").
The Government also introduced the following evidence to
prove that Defendants were aware that Junior was trying to sell
the cocaine across the Mexican border into the United States.
- 3 -
First, on June 15, 2005, Defendant Alvaran met with the
Government's confidential informant, Camilo Suarez ("Suarez") ,
after Junior had failed to pay Defendants for Palm Oil One
within ten days of his receipt of the drugs. Suarez testified at
trial that, in the course of that meeting, Alvaran expressed his
understanding that the cocaine had been moved north of Mexico
City to Monterrey. Tr. at 22:2-9 P.M. Session, Nov. 15, 2010;
Gov't Ex. 34b.
Second, on July 20, 2005, Borda met with Alvaran and Suarez
to discuss Junior's progress in making payments for Palm Oil
One. Suarez defended Junior's delay to Borda by explaining that
the "market went bad because the border got, [] harder for him."
Gov' t Ex. 40b at 3-7. Defendants then discussed the conditions
at the border in further detail. Id. At one point, Borda noted
that he understood Junior's difficulties because he had once
been a drug dealer in the United States. Id. at 10. Borda also
went on to explain that his source for cocaine in Colombia had
told him how such transactions usually proceed:
[Mexicans] get the merchandise, they say
they' ll take it, they pay us nine thousand
in Monterrey and they go and sell it on the
other side 2 for, for fourteen thousand or
fifteen thousand pesos, and we're the ones
that are losing because we lose time, money
and everything else.
Id. at 22-23.
2
"On the other side" refers to the United States.
- 4 -
Third, Suarez testified at trial that "[a]ll 1,553
[kilograms] went to the United States." Tr. at 44:5-9 A.M.
Session, Nov. 18, 2010. Suarez also testified that he did not
recall any discussion that Borda's 724 kilogram share of the
Palm Oil One cocaine was going to Europe. Tr. at 46:13-17 P.M.
Session, Nov. 18, 2010. And Suarez and Borda's secretary in
Mexico City, Juan Montoya, testified at trial that payment was
received from Junior for Palm Oil One in United States currency.
Tr. at 45:17-24 A.M. Session, Nov. 17, 2010; Tr. at 71:9-18 A.M.
Session, Nov. 24, 2010.
In the second deal, "Palm Oil Two," Defendants discussed
shipping additional cocaine from Colombia to Mexico, but
ultimately never did so because of their difficulties in
receiving payment for Palm Oil One.
Finally, the third Palm Oil deal, named the "Chino Load,"
was scheduled for September 2005. In this third deal, Borda,
Alvaran, and an associate named "El Chino" agreed to transport a
second load of 3,000 kilograms of cocaine from Colombia to
Mexico City, Mexico in two "go-fast boats," one of which was a
Venezuelan-registered fishing vessel. However, the United States
Coast Guard intercepted the fishing vessel, which was carrying
half of the Chino Load, and the vessel's crew threw the cocaine
into the Caribbean Sea. Tr. at 41:24-42:17 A.M. Session, Nov.
- 5 -
16, 2010. Consequently, the United States Coast Guard found no
cocaine on the ship.
On the basis of this evidence, the Jury returned a verdict
of guilty against Borda and Alvaran, concluding that each
conspired to distribute more than five kilograms with the
knowledge or intent that the cocaine would be unlawfully
imported into the United States.
II. Standard of Review
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court
held that "the Due Process Clause imposes upon the prosecution
an obligation to disclose 'evidence favorable to an accused
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution."' U.S. v. Johnson, 519 F.3d 478, 488 (D.C. Cir.
2008) (quoting Brady, 373 U.S. at 87).
A "true Brady violation" has three components: "[1] The
evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; [2] that
evidence must have been suppressed by the State, either
willfully or inadvertently; and [3] prejudice must have ensued."
Strickler v. Greene, 527 U.S. 263, 281-82 (1999); United States
v. Pettiford, 627 F.3d 1223, 1227 (D.C. Cir. 2010).
To satisfy the prejudice component, the withheld evidence
must be "material;" that is, there must be "a reasonable
- 6 -
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different." Strickler at 280 (quoting U.S. v. Bagley, 473 U.S.
667, 676 (1985)); see United States v. Cellis, 608 F.3d 818, 837
(D.C. Cir. 2010) In other words, the defendant bears the
burden of showing a reasonable probability of a different
result. Strickler, 527 U.S. at 291; U.S. v. Gale, 314 F.3d 1, 4
(D.C. Cir. 2003).
In determining whether the defendant has met that burden,
courts have a "responsibility to evaluate the impact of the
undisclosed evidence not in isolation, but in light of the rest
of the trial record," U.S. v. Pettiford, 627 F.3d 1223, 1229
(D.C. Cir. 2010) 1 and "must consider the non-disclosure
dynamically, taking into account the range of predictable
impacts on trial strategy." Johnson, 519 F.3d 478, 488 (internal
quotation marks omitted) .
III. Analysis
The Defendants were indicted in this case on March 16,
2007. On December 9, 2010, they were convicted of conspiring to
distribute five kilograms or more of cocaine with the intent or
knowledge that the cocaine would be unlawfully imported into the
United States. Between the date of their indictment and the
date upon which their trial began on November 1, 2010, there was
extensive pretrial activity.
- 7 -
Defendants filed numerous pretrial motions, many of which
alleged discovery difficulties and Brady violations. Defendants
prevailed on some of the motions and failed on others.
In addition to the rulings on those motions, the Court held
numerous Status Conferences with counsel, most of which focused
on the difficulties that Defendants were having getting
appropriate discovery from the Government. Although the
Government did, in fact, properly turn over a great deal of
discovery, the bottom line is that whether purposefully,
negligently, or innocently, it was less than forthcoming in
fully satisfying its discovery obligations, thereby, making the
efforts of defense counsel to prepare for a long and difficult
trial far more onerous than necessary.
In sum, while the Government did turn over many thousands
of pages of discovery and many tape recorded conversations, it
did so reluctantly and oftentimes belatedly, thereby affecting
the ability of defense counsel to make full use of the documents
before they began their last-minute push for trial.
At trial, much of the evidence presented by the Government
consisted of recordings of telephone or in-person conversations,
taped by cooperating witnesses. The evidence presented was
difficult for the jury to follow. Virtually all the telephone
calls were in Spanish, and the jury was required to follow them
by reading written translations provided by the parties. The
- 8 -
trial was relatively long and required close attention from the
jury because of the extensive use of these recorded
conversations. Finally, most of the Government witnesses were
cooperators who had their own histories of lengthy involvement
in the drug trade and convictions for drug offenses, so that
determining credibility had to have been a challenging task for
the jury.
While this Court has already acknowledged that the
Government's evidence was not "overwhelming, " that, of course,
was not the Government's burden to satisfy. The jury well
understood that the Government's burden was to prove its case
beyond a reasonable doubt.
Above all, this was quintessentially a "jury case" in that
the Government's case rested overwhelmingly on the jury's
evaluation of the credibility of the major witness-cooperators,
and on the inferences to be drawn from the taped telephone
conversations, of which they heard many. The jury did its job
and reached its conclusion- -which was, as noted earlier, for
conviction.
Defendants have identified numerous documents and
statements which they argue were favorable to them, were not
given to them by the Government and which contained material
information whose absence or late production prejudiced their
case. The Court must now evaluate the impact of those alleged
- 9 -
Brady violations in light of the trial record as a whole and
determine whether they were favorable to the Defendants, whether
that evidence was suppressed by the Government, and whether
"prejudice must have ensued" such that there was a "reasonable
probability" of a different result.
l. After the trial was completed and a verdict was
reached, Defendants alleged that the Government had withheld
evidence that they did not know or intend for the Palm Oil
cocaine to be sent to the United States. This allegation was
based on a written statement given to one of Borda's attorneys
by Raphael Mejia, who had been incarcerated with co-conspirator
H.B. and Borda at Northern Neck Regional Jail in Warsaw,
Virginia. 3 Mejia claimed that while incarcerated together, H.B.
told him that Borda "made it very clear to him (H. B.) and
[Junior] that he (Borda) did not want any cocaine sent to the
United States." Mejia also claimed in that statement that H.B.
also told Government agents that Borda did not want cocaine sent
to the United States.
Mejia, whose hearsay testimony would not have been
admissible at trial, gave inconsistent testimony during the
3
Mejia had no other connection to this case
- 10 -
post-trial evidentiary hearing 4 about whether H.B. had or had not
told him that Borda knew that the cocaine was sent to the United
States. Moreover, his testimony was impeached by the Government
with his written statement.
Importantly, at the post-trial hearing, H.B. himself
testified that he never told Mejia or Government agents that he
thought Borda did not know or intend to send the Palm Oil load
to the United States.
At the post-trial hearing, the Government called two
Special Agents, Michael Chase and Michael Chavarria, and a DEA
5
Intelligence Analyst, Patricia Skidmore, all of whom testified
that H.B. never told them that Borda did not know or intend that
the Palm Oil load would go to the United States. In short, the
testimony of Chase, Chavarria and Skidmore was consistent with
H. B.'s testimony, and directly contradicted the testimony of
Mejia.
4
The post-trial evidentiary hearing on the alleged Brady
violations was held on December 12 and 13, 2011, January 23-24,
2012, and February 10, 2012.
5
Defendants also argue that a draft report of an interview with
Junior prepared by Skidmore constitutes Brady material withheld
by the Government. That draft report notes that, "(u]nbeknownst
to Borda, the CS and (H.B.] took an additional 100 kilograms of
cocaine believing they could sell it in Houston for a larger
profit ($13,500/kilogram) ." In addition to the report being
inadmissible, Skidmore testified that Junior never told her that
Borda did not know the Palm Oil load was going to the United
States. Skidmore 1 s testimony directly contradicts Defendants 1
interpretation of the draft report she wrote.
- 11 -
For the reasons stated above, Defendants have failed to
show that prior to trial the Government suppressed, or even
possessed, any favorable information regarding H.B. 1
S alleged
statements to Mejia. Moreover, even assuming the information
had been favorable, and assuming further that the Government had
it and failed to disclose it to Defendants, the Court concludes
that there is no reasonable probability that Mejia 1 s testimony
before the jury would have produced a different result, given
all the evidence the Government did submit regarding Borda 1 s
knowledge and intent about distribution of the Palm Oil load to
the United States. 6
2. Defendants argue that the Government failed to provide
any evidence clearly demonstrating that the Palm Oil load had
ever actually gone to the United States. Basically, the
Defendants are arguing that the Government should have been
required to prove a negative. However, the allegation is not
even factually correct. As noted earlier, Suarez testified that
11
[a]ll 1,553 [kilograms] went to the United States. 11
In
addition, there was one DEA report prepared by Agent Chase dated
6
While the Court finds no Brady violation, it does find that the
Government 1 s charge that 11 Mejia 1 s attorney, Heather Shaner,
influenced his testimony 11 is out -and-out outrageous. See
Gov t s Opp n to Defs.
1 1 1 1
Mot. To Dismiss, 21, 24. Ms. Shaner is
a long-time, respected CJA lawyer who has handled numerous
criminal cases. To state that she 11 influenced 11 her client 1 s
testimony is to accuse her of having violated all ethical rules
that govern her professional conduct and her Oath of Admission
to this Court.
- 12 -
January 20, 2006, which was disclosed to Defendants at the time
of the post-conviction hearings. That report stated that Junior
told Agent Chase that Borda believed the cocaine went to the
United States. Such a report would have been inadmissible since
it was pure hearsay. Moreover, it certainly would not have been
favorable to the Defendants. Thus, it could not have been Brady
material.
Defendants also seem to be arguing that the Government
violated Brady by not disclosing the many DEA reports which said
nothing at all about whether the Palm Oil load reached the
United States, or about Borda's and Alvaran's knowledge and
intent with respect to the destination of the Palm Oil load.
The fact that Government statements or exhibits are silent
and do not implicate a defendant certainly cannot be construed
as "favorable" to that defendant. In short, the absence of
incriminating information in a report cannot be turned into an
affirmative conclusion that it is "favorable" to the Defendants
and, therefore, cannot constitute Brady material.
3. Defendants allege that Brady was violated because the
following pieces of "favorable" information were not disclosed
prior to trial: ( 1) a summary of an interview with Junior in
which it is claimed that Junior told the Agents that Colombians
were actually engaged in trafficking to Europe, and (2) a report
establishing that H.B. told the Government that Bruno was
- 13 -
secreting cocaine inside ovens, which he then sent to Europe.
Defendants also complain about a disclosure before trial by
Geraldo Cantu which referred to a 2000 kilogram shipment of
cocaine from Mexico to Spain.
Apart from the fact that much of this information was in
fact disclosed to Defendants, it was not material. Once again,
Defendants are arguing that the absence of information
constitutes "favorable" material under Brady. That is simply
not the case. Putting on affirmative evidence that Defendants
were shipping cocaine to Europe would not have helped prove that
they did not intend or know that the Palm Oil load was going to
the United States.
Moreover, the Court has already concluded that "evidence
pertaining to Defendant Borda's involvement in selling drugs to
other countries outside of the United States is not Brady
evidence." Order (October 21, 2010) [Dkt. No. 140]
4. Defendants argue that the Government violated Brady by
failing to produce the factual proffer which supported the
guilty plea that H.B. entered in the U.S. District Court for the
Southern District of Texas ("SDTX").
H.B. 's plea agreement along with its factual basis cannot
be deemed Brady material because the Government did not suppress
it. In 2009, the plea agreement was filed as a public record,
was listed on the public ECF docket within two days of its
- 14 -
actual filing, and has been publicly available ever since. The
Government is correct that there cannot be a Brady violation for
failure to disclose public documents which the Defendants could
have found on their own. While defense counsel did have a vast
amount of material to examine prior to trial, it certainly would
not have been impossible for these technologically savvy lawyers
and paralegals to have located this information, which was
accessible to them.
Defendants argue that because H.B. 's plea agreement did not
explicitly mention that Borda knew or intended the Palm Oil load
to go to the United States, the proffer, in conjunction with
other testimony, "would have been powerful evidence in support
of Defendants' theory. " Once again, Defendants are asking that
the mere absence of incriminating evidence is "favorable" under
Brady. That is just not correct, as the Court has already
ruled, supra.
5. Defendants complain that the Government did not give
them rough handwritten notes which Agent Chase took of an
interview with Cantu on October 15, 2010. Neither Cantu nor
Chase testified at trial. Included in the notes was the
following sentence:
The Colombian (Borda) thought he had done the best thing by
reaching Mex. & didn't want to risk sending to U.S. Borda
was happy w/Mex. prices & didn't want to risk sending up to
N.Y. but wants Cantu to convince Tony that everything would
be o. K. if Drug were seized in U.S. Tony would lose most
- 15 -
b/c he was owner. Jr. said Tony already knows about you
(Cantu) b/c Jr. and Camilo had spoke highly of you. [sic.]
(emphasis added)
Since Chase's notes contained Cantu's statements 1 those
notes would clearly have been deemed hearsay. Additionally/
since Cantu did not testify at trial/ whatever statements he may
have made to Agent Chase back in 2010 could not have been used
by Defendants to impeach him if he had testified.
Moreover/ those notes were not clearly "favorable" to
Borda; indeed 1 they indicate that while Borda did not want to
risk sending the drugs to New York/ he certainly knew there was
a possibility that New York would be their destination.
Finally 1 the information itself was brought out in trial
during the testimony of Camilo Suarez 1 the Government's main
witness-cooperator. As this Court already noted "a reasonable
jury could have inferred from this evidence that Defendants did
not want to be personally responsible for transporting the
cocaine into the United States/ but nevertheless concluded on
the basis of other information that Defendant knew that the
cocaine would eventually reach that market through Junior."
Memorandum Opinion (March 9 1 2011) at 9-10 [Dkt. No. 238].
For all these reasons 1 Agent Chase's rough notes of his
interview with Cantu did not constitute Brady material.
6. Defendants argue that the Government violated Brady by
failing to disclose a recorded post-arrest interview of H.B. in
- 16 -
which Defendants claim that H.B. stated that all of the cocaine
was sold in Monterrey and that 100 kilograms belonging to H.B.
and Junior were shipped to New York. The post-arrest interview
contained no favorable information. While the interview did not
address Defendants' knowledge or intent, it fully implicated the
Defendants in the Palm Oil load and was consistent with the
Government's trial evidence. Thus the post-arrest interview does
not constitute Brady material.
Defendants also argue that the Government violated Brady by
failing to turn over certain trial exhibits related to the
testimony of Reynaldo Oyervides during a 2009 trial in the SDTX. 7
Defendants contend that these documents, identified as "Aracely
I" and "Aracely II," constitute favorable material withheld by
the Government. 8
7
In 2009, Reynaldo Oyervides testified as a Government witness
in a narcotics trial in the SDTX. Oyervides had worked for
Junior as a bookkeeper, responsible for maintaining Junior's
drug records. Oyervides had saved some records in summarized
form, and several of those summaries were introduced at the
trial in Texas. Two of the summarized records were identified in
that trial as "Aracely I" and "Aracely II."
8
More specifically, Defendants note that, at trial, Suarez
testified that the Palm Oil load consisted of one shipment of
approximately 1,500 kilograms of cocaine. Defendants further
note that at the post-trial Brady hearing, H.B. testified that
the Aracely documents are account sheets pertaining to the Palm
Oil load. According to Defendants the Aracely documents indicate
that the Palm Oil load consisted of two separate loads of
cocaine, one 1,000 kilogram load and one 1,089 kilogram load,
for a total of 2, 089 kilograms of cocaine. Defendants contend
- 17 -
H.B. did not disclose information regarding the Aracely
documents to the prosecutors in this case until several days
before the January 2012 post-trial Brady hearing. Although the
documents were known to prosecutors in the SDTX in 2009, there
is nothing on the face of the documents which indicate any
connection of them to the Palm Oil load. Moreover, Oyervides'
testimony during the 2009 trial did not link Aracely to the Palm
oil load. There can be no Brady violation where, as here, the
Government could not have known, and did not know until
approximately one year after trial, that documents in the
possession of prosecutors in Texas might be linked to the Palm
Oil load.
Moreover, even· assuming that the Government possessed and
suppressed the Aracely documents, there is no reasonable
probability that, had Defendants been able to use them to
impeach Suarez's testimony about the composition of the Palm Oil
load, the result of the proceeding would have been different.
8. Defendants additionally argue that the Government
violated Brady by failing to turn over: (1) a DEA report noting
that Junior told the DEA that H.B. was involved in the murder of
another trafficker and ( 2) a June 2011 letter from Luis
Manjarres which the Defendants claim shows that Juan Montoya, a
that they could have used these documents to impeach Suarez's
trial testimony.
- 18 -
government witness, asked Manjarres to lie about Borda
threatening Montoya. The DEA report is not Brady material
because it is inadmissible hearsay, and the June 2 011 letter
from Manj arres is not Brady material because it did not even
exist at the time of trial.
IV. CONCLUSION
Considering Defendants' claims cumulatively, the Court
concludes that Defendants have failed to meet the very demanding
Brady standard. Because each of the alleged Brady materials
identified by Defendants was either inadmissible, not favorable,
not suppressed by the Government, or did not exist at the time
of trial, there is no reasonable probability that there would
have been a different result had the Government disclosed them.
For the reasons set forth above, Defendants' Joint Motion
to Dismiss for Brady Violations or, in the Alternative, for a
New Trial is denied. An Order will accompany this Memorandum
Opinion.
April,07.}, 2013
Copies to: Attorneys of Record via ECF
- 19 -