Judicial Notice: 5th Circuit Finds Failure To Disclose FBI Interview Not A Brady Violation In Judicial Sexual Favor Appeal

Pursuant to the Supreme Court’s opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court’s opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. That said, the Fifth Circuit has determined that evidence turned over to the defense during trial has not been “suppressed” within the meaning of Brady so long as “the evidence is received in time for its effective use at trial.” And that was a problem for the defendant in United States v. Barraza, 2011 WL 3925675 (5th Cir. 2011).

In Barraza, 

Manuel Barraza was a state court judge and former criminal defense attorney in El Paso, Texas. A jury found Barraza guilty of two counts of wire fraud and one count of making false statements, stemming from Barraza’s use of his position as a state judge to obtain money and sexual favors in exchange for assisting a criminal defendant.

The case against Barazza centered

on promises Barraza made to a former client, Diana Rivas Valencia, who was facing drug charges in El Paso. Rivas was arrested in September 2008, and in December, Rivas conveyed to a friend that she was unhappy with her current attorney and wished to speak with Barraza. Later that day, Barraza went to the jail to visit Rivas. At the time, Barraza had won election to the state bench but had not yet been sworn in. Rivas testified that Barraza promised to help her “get rid of the charges” once he assumed office as a state judge. In exchange, Barraza indicated he wanted money and a “buffet” of women.

Thereafter,

By mid-January 2009, the FBI had recruited Rivas’s sister, Sarait, and a friend to assist with their investigation. Sarait and an undercover FBI agent, posing as a woman who would provide sexual favors, met with Barraza on January 21. There, Barraza stated that he would try to move Rivas’s case to his court and that he wished to replace Rivas’s court-appointed attorney with someone he trusted. On January 23, Sarait met Barraza at the courthouse and paid him $1,300. The same day, a transfer order appeared, trying to transfer Rivas’s case to Barraza’s courtroom, but the court coordinator stopped the transfer after discovering that Barraza had previously represented Rivas.

After the transfer failed,

Barraza continued seeking money and sex from Rivas’s family and friends in exchange for his assistance. In February 2009, Barraza asked Sarait for the FBI undercover agent’s email address and began soliciting her. On February 24, Sarait and the undercover agent met with Barraza, who detailed the failed transfer order. Barraza stated that he was trying to find other ways to remove the current judge in Rivas’s case, but he would need more money. Three days later, Sarait met Barraza at the courthouse and paid him an additional $3,800.

After he was convicted, Barraza appealed, claiming, inter alia, that there was a Brady violation because

During her original FBI interview, Sarait did not say that Barraza had agreed to help Rivas in his capacity as a judge. Rather, Sarait simply said he had agreed to help Rivas, conceivably as her former attorney. 

At trial, however, “Sarait asserted that Barraza had promised to help Rivas using his position as a judge.” After Sarait testified, the prosecution disclosed the original FBI interview to defense counsel. On Barraza’s appeal, the State claimed that its failure to disclose the FBI interview was not a  Brady violation because it was merely supplementary and not contradictory, meaning that it was not impeachment evidence.

The Fifth Circuit, however, found that it did not need to resolve this issue because

even if Sarait’s testimony is considered impeachment evidence, it did not prejudice Barraza. We have previously held that evidence turned over to the defense during trial has not been “suppressed” within the meaning of Brady, so long as “the evidence is received in time for its effective use at trial.” Barraza cross-examined both Sarait and the FBI agent who interviewed her regarding this alleged change in testimony, and counsel was able to adequately impeach Sarait using the FBI’s witness report. Prior knowledge of the perceived inconsistency would not have affected Barraza’s trial strategy; thus, he was not prejudiced by any withholding of information.

-CM