United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Court held a trial in this matter on May 20-22, 2019, after
which the jury returned a verdict of guilty on two counts of
aggravated sexual abuse. On July 2, 2019, Defendant Tyrone
Coriz filed a Motion to Dismiss, or Alternatively, to Grant a
New Trial (ECF No. 162). The Government opposes the motion.
Defendant requested a hearing to present argument in open
court to help clarify the record, but the Court finds a
hearing is not necessary, given the extensive briefing on the
issues and the clear record. The Court, having considered the
motion, briefs, evidence, applicable law, and otherwise being
fully advised, will deny the motion.
January 29, 2019, a federal grand jury returned a Superseding
Indictment charging Defendant with two counts: aggravated
sexual abuse of a minor in violation of 18 U.S.C.
§§ 1153, 2241(c), 2246(2)(C), and 3559(e) (Count 1)
and aggravated sexual abuse of a minor in violation of 18
U.S.C. §§ 1153, 2241(c), 2246(2)(D), and 3559(e)
to trial, the Government sought admission of evidence of
Defendant's sexual abuse involving prior alleged
incidents with C.T. and with other victims not alleged in the
indictment, as well as additional bad acts evidence.
See Mem. Op. and Order 2-9, ECF No. 126. The Court
excluded certain evidence but permitted the introduction of
the following evidence of past sexual abuse under Federal
Rules of Evidence 413, 414, and 404(b): Defendant's 1991
conviction for abusive sexual contact of S.S.; S.S.'s
testimony that Defendant continued touching her in a sexual
manner after he was released from custody; S.S.'s
testimony that her mother caught him fondling her and beat
him with a board in 2002; A.T.'s and S.S.'s testimony
of sexual contact of S.S. and attempted sexual contact of
A.T. after the movies; and M.T.'s statement that she
witnessed Defendant take C.T.'s pants off while C.T. was
asleep in bed. Id. at 3-6, 31.
Court reserved ruling on the following testimony until a
foundation could be established at trial: S.S.'s
testimony that she did not discuss her sexual abuse with
other family members who had been sexually abused; S.S.'s
testimony that Defendant took a photograph of M.T.'s
buttocks; A.T.'s testimony that Defendant touched her
sexually when she was eight years old; A.T.'s testimony
that Defendant laid on A.T. in a bed and digitally penetrated
her; M.T. was in a separate bunk when Defendant touched S.S.;
and in 2014, Defendant pushed M.T. against a wall and choked
her in front of C.T. Compare Id. at 31,
with Gov.'s Sealed Mot. in Limine 2-4, ECF No.
95. Regarding the incidents with A.T., the Court explained
that it would not admit the evidence unless there was
additional testimony from A.T. that would permit it to make a
credibility determination. See Id. at 21. As for the
photograph of M.T., the Court explained that the evidence
could become relevant and introduced at trial if S.S. had
personal knowledge that Defendant took a photograph of
M.T.'s buttocks when M.T. was a minor. See Id.
at 28. Similarly, the Court stated it would not admit
M.T.'s testimony about Defendant touching S.S. unless
testimony established that she had personal knowledge of the
incident. See Id. at 28-29. With respect to the
choking incident, the Court reserved ruling until it had more
context at trial. See Id. at 29.
Court held a three-day jury trial. The Government called S.S;
two law enforcement officers, Luticia Mann and Agent James
Jojola; M.T.; LeRoy Chama; C.T.; and A.T. See
Clerk's Minutes, ECF No. 142. The defense rested without
putting on any of its own witnesses. See Trial Tr.
defendant's motion, a court may vacate a judgment and
grant a new trial in the interest of justice. Fed. R. Crim.
P. 33(a). In ruling on a motion for new trial, the trial
court has discretion and may weigh the evidence and assess
witness credibility. United States v. Quintanilla,
193 F.3d 1139, 1146 (10th Cir. 1999). A new trial, however,
is viewed with disfavor and should be granted only with great
must determine, first, whether the prosecutor's conduct
was improper, and second, whether any improper conduct
requires reversal. United States v. Apperson, 441
F.3d 1162, 1207 (10th Cir. 2006). “When prosecutorial
misconduct deprives a criminal defendant of a fair trial, the
defendant's due process rights are violated, and reversal
is warranted.” United States v. Gabaldon, 91
F.3d 91, 93 (10th Cir. 1996) (internal citation omitted). To
violate due process, the prosecutorial misconduct “must
be of sufficient significance to result in the denial of the
defendant's right to a fair trial.” United
States v. Maynard, 236 F.3d 601, 606 (10th Cir. 2000).
Reversal, however, is only required when the improper conduct
influenced the verdict. Id. The prosecutorial
misconduct must have prejudiced the defendant to warrant a
new trial. See Id. Even if no individual statement
is sufficiently prejudicial, a pattern of improper statements
may require a new trial. United States v. Stover,
474 F.3d 904, 917 (6th Cir. 2007).
court should examine the prejudicial impact of any errors
when viewed in the context of the entire trial, including the
trial court's curative acts, the extent of the
misconduct, and the role of the misconduct in the case.
See Maynard, 236 F.3d at 606; Gabaldon, 91
F.3d at 94. The Tenth Circuit described the court's
evaluation as follows:
A prosecutor's improper statement to the jury is harmless
unless there is reason to believe that it influenced the
jury's verdict. In assessing whether the misconduct had
such an impact, we consider the trial as a whole, including
the curative acts of the district court, the extent of the
misconduct, and the role of the misconduct within the case
... [T]o warrant reversal, the misconduct must have been
flagrant enough to influence the jury to convict on grounds
other than the evidence presented.
Gabaldon, 91 F.3d at 94 (quoting United States
v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996)). Accord
United States v. Green, 435 F.3d 1265, 1268 (10th Cir.
2006). Where a prosecutor's question elicits an improper
answer, the court also looks at whether the prosecutor acted
in bad faith. United States v. Meridyth, 364 F.3d
1181, 1183 (10th Cir. 2004). While a prosecutor “may
strike hard blows, he is not at liberty to strike foul
ones.” Gabaldon, 91 F.3d at 95 (quoting
Berger v. United States, 295 U.S. 78, 88
argues that the Government engaged in a series of acts that
amount to prosecutorial misconduct, and that alone, or
cumulatively, the proper remedy is to dismiss the indictment
or give Defendant a new trial. The Court will address the
conduct in turn.
Characterizing defense counsel as “rude” and
comments on cross-examination questions
cross-examination of LeRoy Chama by defense counsel Benjamin
Gonzales, Assistant United States Attorney
(“AUSA”) Kyle Nayback objected that Mr. Gonzales
was interrupting the witness while the witness was still
finishing his answers. See Trial Tr. 387:23-388:1.
The Court responded that it is important that only one person
speak at a time. Id. at 388:2-3. Mr. Gonzales told
Mr. Chama that if he would only answer the question asked,
without telling more, they could avoid the problem to which
Mr. Nayback was objecting. Id. at 388:7-10. After
Mr. Gonzales asked a question about a change in C.T. in
January 2016, Mr. Chama said, “That's what I was
trying to explain, what happened.” Id.
388:12-17. Mr. Gonzales responded, “That's all
right. If I ask you about the train tracks, then I will. But
I'm not.” Id. 388:18-19.
his rebuttal closing argument, Mr. Nayback said the
You know, Ms. Gagan and Mr. Gonzales cross-examined every
witness. And they're seasoned defense attorneys, and
they're only asking yes-or-no questions. They don't
They try to get these young women tripped up, right,
by asking: “You said it was in the bedroom, then you
said it was in the living room. And only say yes. Only say
I think the best example of that was when Mr. Gonzales -
remember when Leroy Chama was up here and he wanted to
explain why [C.T.] was on the train tracks?
And Mr. Gonzales said: “I don't want [to] hear
about the train tracks. If I want to, I'll ask you,
They don't want explanations. They don't want any
extra information except to yes-or-no questions.
Young women who have never been in the courtroom before.
And Nick did a good job, didn't he? That is a big
question, as to whether it happened in the bedroom.
And [C.T.] told you that was another time.
I mean, [S.S] told you that she got abused so many times
it's too many to count. How are they supposed to keep
them all straight and where it was? That should make sense to
Trial Tr. 550:20-551:25 (italics added).
has a duty to not make unfounded and inflammatory attacks on
opposing counsel. United States v. May, 52 F.3d 885,
888 (10th Cir. 1995). See also United States v.
Murrah, 888 F.2d 24, 27 (5th Cir. 1989) (“No
counsel is to throw verbal rocks at opposing counsel. The
court will not accept such conduct from any lawyer.”).
As for the comments about defense counsel trying to trip up
the young women on cross examination, the Court is not
convinced that the comment was improper or inflammatory.
Rather, from the context, it appears the prosecutor was
arguing to the jury why cross examination can confuse a
witness and why the jurors should look to witnesses'
explanations, rather than just the “yes” or
“no” answers they give. Regarding the use of the
term “rudely, ” although Mr. Nayback's
comments were directed to Mr. Gonzales's exchange with
Mr. Chama in which Mr. Gonzales had interrupted Mr. Chama,
its use was unnecessary and arguably inappropriate.
Nevertheless, it was a fleeting comment that does not amount
to an inflammatory attack rising to the level of
prosecutorial misconduct. The comment was not significant
enough or egregious enough to affect the jury's verdict
or deprive Defendant of a fair ...