Case: 20-50830 Document: 00516387883 Page: 1 Date Filed: 07/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50830 July 8, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Raymond R. Valas, III,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:13-CR-806
Before Willett, Engelhardt, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
This is the second time Raymond R. Valas, III has challenged his
conviction before this court. On direct appeal in 2016, we affirmed his
conviction for “engaging in a commercial sex act with a minor in violation of
18 U.S.C. § 1591.” United States v. Valas, 822 F.3d 228, 234 (5th Cir. 2016).
Now seeking habeas relief, he alleges that prosecutors unconstitutionally
suppressed a document that would have aided his case and that he received
ineffective assistance of counsel during his trial and his direct appeal. Valas
fails to demonstrate that any of his habeas claims merit relief. Thus, we
affirm.
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I.
Valas is a former lieutenant colonel in the United States Army. Id. at
235. On August 26, 2013, he went with members of his New Hampshire
National Guard unit to San Antonio. They were in San Antonio to review a
military exercise they had completed in El Salvador. Id. While there, Valas
stayed at the Hilton Hotel. Id. That night and the following night, after
obtaining her contact information from an online prostitution advertisement,
Valas encountered TJ, a fifteen-year-old runaway turned prostitute, in his
hotel room. Id. Valas maintains that he briefly attempted to interview TJ as
part of a project on human trafficking both nights. Id. TJ testified that Valas
summoned her to the hotel to have sex with her. Id.
The jury convicted Valas of violating 18 U.S.C. § 1591, which
criminalizes participating in the sex trafficking of children, including by
causing a child “to engage in a commercial sex act.” Id. at 234-35. Valas
appealed the conviction and raised a host of challenges to the
constitutionality of his trial. Id. A panel of this court rejected his arguments
and affirmed his conviction. Id. at 248.
Just over a year later, in August 2017, Valas filed a habeas corpus
petition under 28 U.S.C. § 2255 that was also styled as a motion for a new
trial under Federal Rule of Criminal Procedure 33. Valas alleged various
violations of his Sixth Amendment rights. First, he asserted the prosecution
unconstitutionally suppressed a statement TJ gave to the Federal Bureau of
Investigation (FBI) that would have aided his case. This hypothetical
assertion of error—Valas essentially guessed that there must have been an
unproduced statement based on other evidence—proved true. Specifically,
the Government conceded in response to Valas’s petition that it had failed to
disclose an agent-created FD-302 summary of a March 2014 interview the
FBI conducted with TJ.
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Next, he averred that the prosecution had impermissibly vouched for
TJ’s credibility before the jury and that his trial counsel should have objected
to those statements. He also argued that counsel was ineffective because he
did not adequately cross-examine and impeach TJ’s credibility using her
journal and cell phone records.
Finally, Valas contended that his direct-appeal counsel should have
raised the district court’s failure to give a modified unanimity instruction as
an issue on appeal. At trial, the prosecution adduced testimony that Valas
had sex with TJ on two nights: August 26, 2013, and either late on August 27
or very early on August 28, 2013. By contrast, the indictment charged
[t]hat on or about the 26th day of August, 2013, . . . the
Defendant, Raymond Valas, did knowingly . . . cause T.J. to
engage in a commercial sex act, knowing that T.J. had not
attained the age of 18 years, recklessly disregarding that T.J.
had not attained the age of 18 years, and having had a
reasonable opportunity to observe T.J., in violations of Title 18,
United States Code, Sections, 1591(a) and 1591(b)(2).
Valas argued that the contrast between the prosecution’s evidence and the
indictment created a duplicity1 problem requiring a modified unanimity jury
instruction. Without a proper instruction, he contended, it was likely that
some jurors would conclude that he had violated the law on August 26,
whereas others would conclude that he did so on August 27/28, rather than
unanimously agreeing to convict Valas for the same act on the same day.
Valas filed a motion for discovery in relation to his suppression claim.
The district court denied the motion, finding that while the prosecution had
suppressed the FD-302 interview summary, its contents were ultimately not
1
Duplicity is “the joining in a single count of two or more distinct and separate
offenses.” United States v. Robin, 693 F.2d 376, 378 (5th Cir. 1982).
3
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material to Valas’s defense. But the court scheduled an evidentiary hearing
on Valas’s claim of ineffective assistance of trial counsel. After that hearing,
the court denied Valas’s Section 2255 petition and Rule 33 motion in two
lengthy orders, finding that Valas had failed to establish any violation of his
Sixth Amendment rights. Valas now appeals the denial of his Section 2255
petition.2
II.
“When evaluating the denial of a Section 2255 motion, we review the
district court’s factual findings for clear error and its legal conclusions de
novo.” United States v. Scott, 11 F.4th 364, 368 (5th Cir. 2021) (citing United
States v. Phea, 953 F.3d 838, 841 (5th Cir. 2020)). We address each of the
issues Valas raises in turn.
A.
Valas asserts that the prosecution violated his Sixth Amendment
rights to a fair trial under Brady v. Maryland, 373 U.S. 83 (1963), by
suppressing evidence favorable to his case. We review this issue de novo with
deference to the district court’s underlying factual findings. United States v.
Bolton, 908 F.3d 75, 90 (5th Cir. 2018) (quoting United States v. Swenson, 894
F.3d 677, 683 (5th Cir. 2018)). To prove a claim under Brady, a petitioner
“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 evidence was material.” Reeder v. Vannoy,
2
Valas’s briefing on appeal makes no reference to Rule 33 and each of his
arguments is couched in favor of “habeas” relief. To the extent Valas properly moved
under Rule 33 in the district court for a new trial, any potential arguments related to that
motion are forfeited because he has not briefed them. Roy v. City of Monroe, 950 F.3d 245,
251 (5th Cir. 2020) (quoting Procter & Gamble Co. v. Amway Corp., 376 F.3d 496, 499 n.1
(5th Cir. 2004)).
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978 F.3d 272, 277 (5th Cir. 2020) (internal quotation marks omitted)
(quoting United States v. Glenn, 935 F.3d 313, 319 (5th Cir. 2019)); see also
Youngblood v. West Virginia, 547 U.S. 867, 868–70 (2006) (per curiam)
(applying Brady to evidence known by government investigators but allegedly
unknown by prosecutors); Giglio v. United States, 405 U.S. 150, 154–55 (1972)
(applying Brady to impeachment evidence). As to the third element,
“[s]uppressed 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.’” Reeder, 978 F.3d at 277 (emphasis added)
(internal quotation marks omitted) (quoting Murphy v. Davis, 901 F.3d 578,
597 (5th Cir. 2018)). “Different” means that “the suppressed evidence
‘undermines confidence in the outcome of the trial.’” Id. (internal quotation
marks omitted) (quoting Turner v. United States, 137 S. Ct. 1885, 1893
(2017)).
At issue is an FD-302 summary of a March 2014 interview of TJ
conducted by an FBI agent. The FD-302 is a form used by the FBI to
memorialize conversations between an agent and an interviewee. Basically,
“302s” capture the interviewing agent’s notes of a witness interview, and
they are routinely part of criminal investigations conducted by the agency.
So much so that, as noted above, Valas’s habeas counsel was able correctly
to guess that a 302 was missing in this case, forcing the Government to
concede that it “inadvertently” failed to produce the document before trial.
The parties thus agree that the 302 was suppressed by the prosecution; they
contest the other two elements of the Brady test—whether the evidence was
favorable to Valas and material to the outcome of his trial.
The district court denied Valas’s claim without addressing whether
the evidence was favorable to Valas. Assuming it was, the court found that
Valas had failed to demonstrate that the 302 was material. Much of the
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parties’ briefing on appeal thus grapples over the third element. Our analysis
will focus there as well.
But before we proceed, we emphasize that the Government’s
concession that it suppressed the 302 is correct. The Government’s only
justification for its lapse, that the failure to produce the 302 to Valas was
“inadvertent,” is troubling. It is difficult to grasp how a document as routine
as a 302 would be overlooked, particularly in this instance. TJ was the crucial
witness for the prosecution, the only one who actually accused Valas of
criminal activity. And the agent who prepared this 302 also testified, so
defense counsel was deprived of the opportunity to use the document in
cross-examining two witnesses, not just one. We note that, unfortunately,
this is not the first time something like this has happened, e.g., United States
v. Perea, 625 F. Supp. 2d 327 (W.D. Tex. 2009). We admonish the
Government to endeavor to make it the last.
Nonetheless, as the district court concluded, Valas’s claimed Brady
violation falters because he fails to show how the 302 is material. The 302
itself is fairly short. It consists of ten paragraphs. The first identifies TJ and
the location of the interview. Four through ten recount that the investigators
showed TJ photographs and TJ identified individuals from them. Only the
second and third paragraphs relate to Valas. The second paragraph indicates
that TJ identified Valas from a photo array. The third encapsulates details
about her encounter with Valas:
[TJ] remembered that VALAS was very surprised when [TJ]
showed up to his room because VALAS thought that the
photos on the advertisement were “fake.” VALAS took [TJ]’s
clothes off slowly and had unprotected sex. VALAS told [TJ]
he was in San Antonio on business and that he was flying back
to New York in two days. [TJ] told VALAS that she was 18
because that is what she was instructed to do by [her pimp].
VALAS did not ask her to have unprotected sex and although
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[TJ] had a condom with her, she did not ask him to put it on.
[TJ] did not remember if VALAS paid her $130.00 or $150.00.
VALAS called her for a second date the next day or two days
later. During the second date they used a condom and VALAS
paid her the same amount as the first time. VALAS told [TJ]
that he was in love with her and wanted her to go with him. [TJ]
did not remember if VALAS had any tattoos, however she
remembered that “when he smiled his dimple would pop.”
Valas asserts that the 302 is material because of its impeachment value
stemming from the differences between its summation of TJ’s statement and
her trial testimony. At trial, TJ stated that the first night they met, neither
she nor Valas had a condom, he struggled with flaccidity, and ultimately the
two engaged in oral sex and non-penetrative anal sex.3 She also testified that
Valas paid her $150 for that night.
This testimony admittedly seems to differ from the 302’s account of
TJ’s statement to the FBI, but the differences are in magnitude of detail
rather than substance. At best, the interview notes could have been used to
force TJ to explain how the sexual actions she described at trial fit under the
heading of “unprotected sex” used in the 302 and whether TJ or Valas
actually had condoms in the hotel room. These differences are hardly the
grand “gotchas” Valas makes them out to be. To the contrary, none of the
variances are likely to have dented the jury’s assessment of TJ’s credibility.
There is perhaps a closer question regarding the use of the 302 in
cross-examining the FBI agent who created it. As we discuss infra in Part
II.B.2., counsel’s strategy in cross-examining TJ was fraught with risk, e.g.,
3
Valas also points to purported inconsistencies between the 302 summary and TJ’s
journal entries. Her journal generally mirrors her trial testimony but additionally recounts
that TJ and Valas engaged in “breast sex.” Valas asserts that his counsel should have been
able to exploit this discrepancy as well. For the reasons discussed above the line, this detail
likewise fails to move the needle in Valas’s favor.
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that she might effectively explain inconsistencies or come across as more
sympathetic, irrespective of whether counsel used the 302. There may have
been some upside, and less potential downside, in using the 302 to interrogate
the agent. However, if the 302 would have had only marginal impeachment
value used with TJ directly, it may have been even more attenuated to try to
amplify these alleged inconsistencies through another witness. In any event,
Valas does not offer any argument regarding the agent’s testimony, so we
decline to evaluate this issue further. The impeachment value of the 302 is
insufficient to undermine confidence in the trial and the jury’s verdict, such
that the 302 is not material, and Valas’s Brady claim therefore fails. Reeder,
978 F.3d at 277.4
B.
We next turn to Valas’s ineffective assistance of counsel claims.
“[T]he Sixth Amendment entitles a criminal defendant to reasonable, but not
perfect, representation of counsel.” United States v. Valdez, 973 F.3d 396, 404
(5th Cir. 2020). To succeed on an ineffective assistance of counsel claim, a
petitioner must establish “that (1) his ‘counsel’s performance fell below an
objective standard of reasonableness,’ and (2) that his counsel’s deficient
performance caused him prejudice.” Id. at 402 (quoting United States v.
Grammas, 376 F.3d 433, 436 (5th Cir. 2004)); see Strickland v. Washington,
466 U.S. 668, 687 (1984). A petitioner demonstrates prejudice if he shows
4
As a final note, it is also debatable whether the 302 is actually beneficial to Valas
under the first Brady element. As noted above, its impeachment value is marginal. While
the 302 differs from TJ’s testimony in some ways, it also provides a direct statement about
Valas’s dimple that, if corroborated, could have increased TJ’s credibility, not diminished
it. At the end of the day, we need not further delve into this issue because, assuming the
302 would have benefitted Valas and, as the Government concedes, it was suppressed, it
was not material in terms of its likely effect on the trial or the verdict.
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“that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Valdez, 973
F.3d at 402 (internal quotation marks omitted) (quoting United States v. Bass,
310 F.3d 321, 325 (5th Cir. 2002)). Finally, “judicial scrutiny of counsel’s
performance must be ‘highly deferential’ because ‘[i]t is all too tempting for
a defendant to second-guess counsel’s assistance after . . . [an] adverse
sentence, and it is all too easy for a court . . . to conclude that a particular act
or omission of counsel was unreasonable.’” Id. at 403–04 (quoting
Strickland, 466 U.S. at 689).
Valas makes three arguments regarding ineffective assistance of
counsel. He contends that his direct-appeal counsel failed to press the
potential lack of jury unanimity due to the district court’s failure to instruct
the jury adequately; he argues that his trial counsel did not effectively cross-
examine TJ; and, finally, he asserts that his trial counsel also failed to object
to the prosecutor’s improper vouching for TJ’s credibility during closing.
1.
“Appellate ‘[c]ounsel need not raise every nonfrivolous ground of
appeal, but should instead present solid, meritorious arguments based on
directly controlling precedent.’” Moore v. Vannoy, 968 F.3d 482, 489 (5th
Cir. 2020) (quoting Ries v. Quarterman, 522 F.3d 517, 531–32 (5th Cir.
2008)). When reviewing the effectiveness of appellate counsel, the relevant
question is whether the argument the petitioner asserts should have been
made was “sufficiently meritorious such that . . . counsel should have raised
it on appeal.” United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000).
“Declining to raise a claim on appeal, therefore, is not deficient performance
unless that claim was plainly stronger than those actually presented to the
appellate court.” Davila v. Davis, 137 S. Ct. 2058, 2067 (2017) (emphasis
added) (citing Smith v. Robbins, 528 U.S. 259, 288 (2000)).
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Valas argues that there was a genuine risk that the jury became
confused and failed to reach unanimity in its verdict because some believed
he committed the charged offense on one day (August 26) through one set of
actions, while other jurors believed he committed the charged offense on
another day (August 27/28) through different actions. Given this risk, Valas
asserts his appellate counsel ought to have raised the district court’s failure
to give an instruction to the jury clarifying that they all had to agree that he
committed the same act on the same day. The district court rejected this
habeas claim because it found (1) the unanimity argument had been waived
such that appellate counsel would have needed to prove plain error on appeal
and (2) the argument was in any event not meritorious.
Scrutinizing the record, Valas failed to preserve his objection to the
district court’s failure to provide an additional instruction clarifying or
modifying the standard unanimity instruction. Federal Rule of Criminal
Procedure 30(d) requires that “[a] party who objects to any portion of the
instructions or to a failure to give a requested instruction must inform the
court of the specific objection and the grounds for the objection before the
jury retires to deliberate.” Failing to do so means an argument related to the
jury instructions is not preserved and can be reviewed only for plain error.
United States v. Spalding, 894 F.3d 173, 187 (5th Cir. 2018) (citing United
States v. Gibson, 875 F.3d 179, 195 (5th Cir. 2017); Fed. R. Crim. P. 30(d)).
To show that his trial counsel preserved the point, Valas offers a
somewhat ambiguous statement by counsel during the charge conference:
[K]eep in mind that the date charged in the indictment is
Monday, the 2[6]th. Tuesday, the 2[7]th, is not charged in the
indictment. And in terms of this charge conference, I’m very
concerned about confusion, and I’m very concerned about the
jury making a determination where several think that he did it
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on Tuesday, several think that he did it on Monday, and that
that’s unacceptable under our law. And I object to that.
I’m not exactly sure how the Court needs to fix it. I think it’s a
problem with the way that it was indicted. But nonetheless—
like, for instance, similar acts may—what are the similar acts?
The similar acts – the only similar act is Tuesday, the 27th. But
this jury needs to be told that they cannot convict him for what
happened on—or what they believe—if they find beyond a
reasonable doubt that anything happened, it could only be used
to determine whether the event took place.
While counsel raised an objection that jury “confusion” could lead it to
convict for different offenses on different days, counsel did not
“object[] . . . to a failure to give a requested instruction.” Fed. R. Crim.
P. 30(d). Instead, counsel stated that it was not clear “how the Court
need[ed] to fix it,” and pivoted to “the way that [the case] was indicted.”
This is a rather tenuous basis on which to argue that counsel “inform[ed] the
court of the specific objection” being raised regarding a failure to instruct the
jury. Id. Accordingly, appellate review of this issue would have been framed
by plain error analysis.5 We thus view Valas’s current ineffective assistance
claim mindful of that exacting standard.
Valas asserts that United States v. Holley, 942 F.2d 916 (5th Cir. 1991),
demonstrates the merits of his unanimity argument. In Holley, this court
reversed a conviction for perjury, concluding both that the indictment in the
5
To prove plain error, an appellant must demonstrate (1) “an error; (2) the error
must be clear or obvious . . . (3) the error must have affected the appellant’s substantial
rights . . . ; and (4) the court must decide in its discretion to correct the error.” United
States v. McGavitt, 28 F.4th 571, 575 (5th Cir. 2022) (quoting United States v. McClaren, 13
F.4th 386, 413 (5th Cir. 2021)). Additionally, as Valas did not propose an instruction, the
plain error consideration would have been limited to whether the district court’s “charge,
as a whole, [was] a correct statement of the law clearly instruct[ing] the jurors.” Spalding,
894 F.3d at 187 (quoting United States v. Kay, 513 F.3d 432, 446 (5th Cir. 2007)).
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case was duplicitous and the instructions given to the jury did not cure that
problem. 942 F.2d at 928-29. But Holley is distinguishable because, inter
alia, unlike in that case, Valas was charged with a single offense: causing TJ
“to engage in a commercial sex act” “on or about the 26th day of August,
2013.” While the Government introduced evidence that Valas had sex with
TJ on both August 26, and either late on August 27 or early on August 28,
“[a]n indictment’s allegations, and not the evidence adduced at trial, control
whether the indictment is duplicitous . . . .” United States v. Mauskar, 557
F.3d 219, 225 (5th Cir. 2009); see United States v. Sila, 978 F.3d 264, 269 (5th
Cir. 2020) (similarly finding that duplicity is a question of indictments, not
of evidence adduced at trial).6
Valas also argues that a footnote in this court’s prior opinion deciding
his direct appeal shows the value of this argument. There, the court noted
that “the indictment and the Government’s ‘on or about’ argument might
have raised a duplicity concern,” but declined to address the issue further
because Valas had forfeited it. Valas, 822 F.3d at 237 n.2. Far from
establishing the merit of this issue, though, the Valas footnote merely
identified it as a potential concern.
Regardless, Valas’s present endeavor is not to show that the
unanimity argument was worthwhile or meritorious, but that it “was plainly
stronger” than the seven other issues raised in his direct appeal. Davila, 137
6
Further, even though the Government introduced evidence of Valas’s conduct
on both August 26 and August 27/28, the district court expressly instructed the jury that
“to return a guilty verdict for Count 1, all of you must agree that the same way of
committing the offense . . . has been proved beyond a reasonable doubt.” Cf. Holley, 942
F.2d at 929. Even assuming some residual concern about unanimity, assessing whether the
district court’s charge, as a whole, was a correct statement of the law, Spalding, 894 F.3d
at 187, we do not discern error that is “‘clear’ or, equivalently, ‘obvious,’” United States
v. Olano, 507 U.S. 725, 734 (1993) (quoting United States v. Young, 470 U.S. 1, 16, n.14
(1985)).
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S. Ct. at 2067 (citing Smith, 528 U.S. at 288). His briefing does not address
this question, such that this claim fails for that threshold reason alone.
Beyond that, looking through the lens of plain error, we do not see that
Valas’s argument is so meritorious that it would have been “plainly
stronger” than the other issues counsel actually raised on direct appeal.
Accordingly, his claim of ineffective assistance of appellate counsel fails.
2.
Valas next asserts that his trial counsel was ineffective because
counsel did not adequately cross-examine TJ. “Because decisions regarding
cross-examination are strategic, they usually ‘will not support an ineffective
assistance claim.’” United States v. Bernard, 762 F.3d 467, 472 (5th Cir.
2014) (quoting Dunam v. Travis, 313 F.3d 724, 732 (2d Cir. 2002)).
Valas’s arguments here boil down to two contentions. First, he
contends that his counsel should have confronted TJ with the FBI’s 302
interview summary7 and her journal entries in order to discredit her regarding
the specifics of the two encounters with Valas. Second, Valas maintains that
counsel should have confronted TJ with her phone records to demonstrate
that, because she either texted or called people for much of the time she was
supposed to be with Valas, she could not have had sex with him.
Regarding his first argument, Valas posits four inconsistencies
between TJ’s testimony and her statements reflected in the 302 summary
and her journal: whether Valas used a condom; whether the sex acts on
August 26 were “unprotected sex” as her initial statement said, or oral sex,
non-penetrative anal sex, and “breast sex” as her journal stated; Valas’s
7
Valas reasons that, had the 302 not been suppressed, it would have been useful in
cross-examining TJ, such that his counsel’s inability to use it during cross rendered
counsel’s representation ineffective.
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inability initially to get an erection; and the payment amount. Valas argues
that forcing TJ to explain these inconsistencies would have undoubtedly
discredited her in the eyes of the jury. As discussed supra in Part I.A., this is
unlikely for several reasons.
The 302 is not overly detailed (and it was prepared not by TJ, but by
the interviewing agent). Its description of their first encounter states that
Valas removed TJ’s clothing and “had unprotected sex” with her.
Conceivably, the actions TJ described at trial could fit under the heading of
“unprotected sex.” And when comparing the relatively short 302 summary
with TJ’s trial testimony, it is evident the other inconsistencies could easily
be explained away as well. TJ’s more detailed journal is essentially consistent
with TJ’s trial testimony. It begins with her running away from home,
recounts how she met the pimp who would market her, details several liaisons
with other individuals, and provides significant detail regarding her
encounters with Valas. The only alleged discrepancy Valas raises based on
the journal centers on whether he used a condom during the encounters. But
as with the 302’s purported discrepancies, had TJ been confronted on this
point, she could have explained it fairly easily. In any event, it is hardly a
contradiction that would have undermined the trial’s outcome.
And counsel did not exactly leave TJ unscathed during cross- and
recross-examination, which spanned roughly 600 transcript lines during trial.
Valas acknowledges that counsel extensively cross-examined TJ, adducing
testimony from TJ that she was on probation; smoked marijuana; used
alcohol during her weeklong stint as a prostitute; stole a gift card from her
mother before she ran away; had difficulty remembering places; listed her age
on Backpage.com as nineteen, not fifteen; and texted and called people
constantly. The additional inconsistencies that Valas now proffers would
have been unlikely to discredit TJ before the jury any more than the
testimony actually elicited did. Indeed, giving TJ a chance to explain might
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have harmed Valas’s defense and made the fifteen-year-old witness more
sympathetic. As a matter of strategy, Valas’s trial counsel did not act
unreasonably by refraining from confronting TJ with her journal statements.
Valdez, 973 F.3d at 404 (“[T]he Sixth Amendment entitles a criminal
defendant to reasonable, but not perfect, representation of counsel.”).
Turning to Valas’s assertion regarding TJ’s cell phone records, Valas
asserts that he has identified only two gaps of time, one three minutes long
and the other six, between 9:00 and 9:30 p.m. on August 26 when TJ was not
texting or calling someone. He asserts that had his counsel raised this on
cross-examination, TJ’s cell phone use would have contradicted her
testimony that she performed sex acts with Valas between 9:00 and 9:30,
significantly damaging her credibility. As with her journal entries, however,
confronting TJ with the records may have allowed her to explain them, as her
cell phone use is not necessarily inconsistent with her testimony that Valas
and she engaged in two to three discrete sex acts on August 26.
In like manner, Valas goes to great lengths to show that TJ was using
her cell phone almost constantly from 1:00 to 1:30 a.m. on August 28. Valas
argues that TJ should have been confronted with the phone’s activity logs
because she testified that she and Valas had sex between 1:00 to 1:30 that
night. But TJ’s testimony was that she arrived at Valas’s hotel room around
1:00 a.m. She testified to an approximation of the events that occurred the
night of August 27/28. Additionally, the times immediately before 1:00 and
after 1:30 a.m. show gaps in phone activity. As with the prior night’s records,
asking TJ about the phone log for August 28 may well have backfired.
Rather, the record bears out that Valas’s counsel made a strategic
decision not to ask TJ about the details in her phone records. Instead, counsel
walked through the cell phone log with the jury in his closing argument,
making the exact argument that Valas asserts should have been explored in
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cross-examination. Thus, contrary to Valas’s current depiction, his trial
counsel did not wholly abandon TJ’s cell phone data. Instead, counsel
strategically deployed the records, without any potential explanation from TJ
regarding the alleged discrepancies, as one of the last things the jury was
presented before it deliberated.
Moreover, Valas’s counsel also impeached TJ’s credibility in other
ways. Valas’s counsel elicited damaging facts about TJ from other witnesses,
and introduced evidence that undermined TJ’s reputation for virtue and
veracity. See Russell v. Collins, 944 F.2d 202, 204–06 (5th Cir. 1991) (noting
that eliciting negative testimony from other witnesses was a reasonable
strategy for impugning a witness’s credibility). Against this record, and
particularly given the presumption accorded cross-examination strategy in
assessing effectiveness of counsel, Bernard, 762 F.3d at 472, Valas’s trial
counsel’s efforts to impugn a volatile fifteen-year-old witness’s credibility
“[fell] within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. In other words, counsel’s cross-examination of
TJ was not “so ill chosen that it permeate[d] the entire trial with obvious
unfairness.” Virgil v. Dretke, 446 F.3d 598, 608 (5th Cir. 2006) (internal
quotation marks omitted) (quoting Johnson v. Dretke, 394 F.3d 332, 337 (5th
Cir. 2004)). Accordingly, this issue lacks merit.
3.
Valas’s final ineffective assistance of counsel claim relates to the
prosecutor’s closing argument. Valas asserts that his trial counsel was
ineffective because counsel did not object to the prosecutor’s improper
vouching for TJ’s honesty.
Generally, “[a] prosecutor may argue fair inferences from the
evidence that a witness has no motive to lie, but cannot express a personal
opinion on the credibility of witnesses.” United States v. Gracia, 522 F.3d
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597, 601 (5th Cir. 2008) (citing United States v. Gallardo-Trapero, 185 F.3d
307, 320 (5th Cir. 1999)). This court’s test “for improper vouching for the
credibility of a witness is ‘whether the prosecutor’s expression might
reasonably lead the jury to believe that there is other evidence, unknown or
unavailable to the jury, on which the prosecutor was convinced of the
accused’s guilt.’” United States v. McCann, 613 F.3d 486, 495 (5th Cir. 2010)
(quoting United States v. Ellis, 547 F.2d 863, 869 (5th Cir. 1977)). Of course,
“[o]ften, the decision as to whether or not to object to particular statements
made in closing argument is a matter of tactics. Since an objection may tend
to emphasize a particular remark to an otherwise oblivious jury, the effect of
[an] objection may be more prejudicial than the original remarks[.]” Walker
v. United States, 433 F.2d 306, 307 (5th Cir. 1970) (citing Williams v. Beto,
354 F.2d 698, 705–06 (5th Cir. 1965)).
The prosecutor began his closing argument with this theme: “It is
true. It is true. [TJ] is telling you the truth.” Then after explaining certain
aspects of the court’s instructions, the prosecutor transitioned to the
substance of the case, stating “[n]ow, we’re going to get to the elements and
really kind of discuss how TJ is telling the truth.” The prosecutor discussed
the age requirement for conviction, then transitioned: “So why is [TJ] telling
the truth? Because her story is indiscriminate and consistent . . . . [S]he has
always been consistent, and she has always been indiscriminate.” After
discussing evidence that corroborated TJ’s story, the prosecutor reiterated
parts of TJ’s testimony and asked: “Why? Why would she have to lie about
the details? She wouldn’t. If she was making this up, she’d say, we had sex
twice. I can’t remember—I mean, it was—it was too long ago. I can’t
remember. Sex twice. Why get into the details?” Then, after addressing the
defense’s suggestion that TJ was motivated to lie because she was not paid
by Valas, the prosecutor repeated his rhetorical questions and commented on
Valas’s partial corroboration of TJ’s story:
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And why lie about two days? I mean, if we’re making this up, I
mean, what’s so significant about two days versus one day?
Wouldn’t one day be good enough? Valas agrees, right?
Because he has to. He has to up to the point where everything
corroborates her story. She is a truth-teller. But he wants you
to believe that as soon as the documents stop, then he can come
out and say she’s not telling the truth . . . . He’s willing to go
up to that point because he knows he can’t escape the
corroboration.
Considered in isolation, some of the prosecutor’s statements appear
suspect. But the test is not simply whether the prosecutor cast a witness as a
“truthteller,” as Valas argues. Instead, we examine “the comment[s] in
context.” McCann, 613 F.3d at 495 (internal quotation marks omitted)
(quoting United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004)).
The prosecutor’s first statement echoed Valas’s counsel’s opening
statements to the jury three days earlier—“It’s not true. It’s not true. It’s
not exactly what happened.”—but argued the contrary. Seizing upon the
theme, the prosecutor reminded the jury of the events that opened the trial
and stated the Government’s position, before proceeding to discuss the
evidence presented during the trial purportedly supporting that position.
Given the rhetorical context in which the prosecutor’s first statement was
made, it is unlikely that the jury would have understood it to communicate
that the prosecutor had some secret basis for asserting that Valas was guilty.
Id. at 496.
The prosecutor’s next statement merely transitioned to explain “how
TJ [was] telling the truth” by “get[ting] to the elements” of the charged
crime. The statement itself is not a declaration that TJ was truthful, but
rather an introductory statement into a further discussion. Thus, considered
in context, the jury would have had no reason to deduce that the prosecution
had secret, undisclosed evidence that tended to establish Valas’s guilt. Id.
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The subsequent references to TJ “telling the truth” and disclaiming
her “motive to lie” are couched around the prosecutor’s discussion of the
evidence in the case. Given that the statements were embedded in a reprise
of the evidence adduced at trial, “the prosecutor . . . made fair inferences
respecting the witnesses’ credibility, and referred to the record evidence on
which his statements were based.” United States v. Surtain, 519 F. App’x
266, 292 (5th Cir. 2013); see McCann, 613 F.3d at 496; Gracia, 522 F.3d at
601. Rather than suggesting to the jury that the prosecution had other
evidence to prove Valas’s guilt, the statements tend to show the prosecutor’s
belief in the persuasiveness of the evidence adduced during trial.
Because none of the prosecutor’s statements, taken in context,
constitute improper vouching, Valas cannot argue that his trial counsel
should have objected to them and was ineffective for not doing so. And even
if the prosecution acted improperly as to some of its closing remarks, Valas
fails to show how any strategic decision on his counsel’s part not to object
rises to ineffective assistance. Therefore, this claim also falters.
III.
Because Valas has failed to demonstrate that the prosecution violated
the Sixth Amendment in its failure to produce the FBI’s FD-302 notes of its
March 2014 interview of TJ, or that he received ineffective assistance from
either his trial or appellate counsel, the judgment of the district court is
AFFIRMED.
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