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United States v. Henderson

United States District Court, D. Montana, Great Falls Division

June 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRELL HENDERSON, Defendant.

          MEMORANDUM AND ORDER

          Brian Morris United States District Judge.

         Defendant Tyrell Henderson (Henderson) has moved for a new trial under Fed. R. Crim P. 33. Henderson argues that a new trial is warranted because the government violated its duty to disclose impeachment evidence relating to Chippewa Cree law enforcement officer J.D. Cabanas (Cabanas), as required under Brady v. Maryland, 373 U.S. 83 (1963). The Government opposes the motion. The Court conducted a hearing on the motion on June 8, 2017.

         BACKGROUND

         A jury convicted Henderson of two counts of involuntary manslaughter on January 11, 2017, following a three-day trial. The charges against Henderson arose from an automobile accident that occurred on the Rocky Boy's Indian Reservation at approximately 4:00 a.m. on September 19, 2015. The vehicle driven by Henderson crossed the centerline and struck a vehicle occupied by three women. Two of the women died as a result of injuries suffered in the accident.

         Henderson's vehicle was traveling approximately 60 mph at impact. The other vehicle was traveling at approximately 12 mph at impact. Henderson's toxicology report revealed that he had 0.72 mg/l of meth in his system shortly after the accident. The toxicology report for the deceased driver of the other vehicle showed no ethanol in her blood sample. Cabanas investigated the accident along with Chippewa Cree law enforcement officer Larry Bernard, and the Montana Highway Patrol.

         The prosecutor submitted a request to the Bureau of Indian Affairs (BIA) in November 2016 seeking any impeachment information that may exist with respect to Cabanas. The BIA disclosed no derogatory information. The prosecutor interviewed Cabanas on January 8, 2017, in preparation for the trial. The prosecutor asked Cabanas whether he was aware of any pending complaints, investigations, or disciplinary actions pending against him based upon the performance of his official duties. Cabanas responded that he had no knowledge of any such complaints, investigations or disciplinary actions.

         Cabanas's response was not accurate. Cabanas knew, at that time, that Chippewa Cree Police Chief Allen Primeau had filed a complaint against him on May 5, 2016. The complaint alleged two incidents of misconduct. The complaint alleged that Cabanas had failed to report a vehicle accident to Chief Primeau. The complaint also alleged that Cabanas had released a male inmate in violation of a tribal court order. Cabanas knew, on January 8, 2017, that the BIA was in the process of investigating the complaint. The BIA had informed Cabanas of its investigation on June 30, 2016.

         The prosecutor learned of the complaint and investigation against Cabanas on March 31, 2017, approximately 2 ½ months after the trial was completed. The prosecutor informed defense counsel of the complaint and investigation on April 6, 2017, based on the fact that Cabanas had testified at trial. Henderson filed the present motion for a new trial on April 25, 2017.

         DISCUSSION

         The Court may grant a new trial under Fed. R. Crim. P. 33 “if the interest of justice so requires.” The decision to grant or deny a motion for a new trial lies within the “sound discretion of the trial court.” United States v. Powell, 932 F.2d 1337, 1340 (9th Cir. 1991).

         A prosecutor has a duty under Brady “to provide a defendant with all material exculpatory and impeachment evidence prior to trial.” Gonzalez v. Wong, 667 F.3d 965, 981 (9th Cir. 2011). A Brady violation constitutes sufficient grounds for a new trial under Rule 33. United States v. Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011). To establish a Brady violation, a defendant must show:

1. The government withheld evidence that was favorable to him, either because it was exculpatory evidence or impeachment evidence;
2. The government willfully or inadvertently withheld the ...

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