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United States v. Coriz

United States District Court, D. New Mexico

October 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRONE CORIZ, Defendant.

          MEMORANDUM OPINION AND ORDER

         This 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.

         I. BACKGROUND

         On 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) (Count 2).

         Prior 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.

         The 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.

         The 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. 464:15-23.

         II. STANDARD

         Upon a 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 caution. Id.

         A court 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).

         The 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 (1935)).

         III. ANALYSIS

         Defendant 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.

         A. Characterizing defense counsel as “rude” and comments on cross-examination questions

         During 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.

         During his rebuttal closing argument, Mr. Nayback said the following:

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 want explanations.
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 no.”
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, ” rudely.
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 you.

Trial Tr. 550:20-551:25 (italics added).

         Counsel 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 ...


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