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United States v. Anderson

United States District Court, D. Montana, Billings Division

October 9, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
FRITZ ANDERSON, Defendant/Movant. Before § 5K1.1 Motion Sentence Imposed Count Date Charge Brief Description

          REDACTED ORDER [1]

          Susan P. Watters United States District Judge

         This case comes before the Court on Defendant/Movant Anderson's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Reviewing the parties' submissions and the record has taken an extraordinary amount of time. The underlying facts of the case involved a string of controlled drug buys, a search of Anderson's home, and multiple traffic stops, all of which resulted in seizure of methamphetamine, cocaine, ecstasy, or marijuana, sometimes in saleable quantities. With the exception of three counts, every count against Anderson depended, at least in part, on the testimony of cooperating witnesses.

         The United States withheld crucial information about benefits it gave a dozen of those witnesses. Neither Anderson nor his counsel could discover what the United States did for its witnesses, because the information was either filed with the Court under seal or not filed at all. The jury did not know the real reasons these witnesses might be biased, might exaggerate, claim to know things they did not know, or just flat-out lie.

         I. Background

         A detailed procedural history of the criminal case and proceedings under 28 U.S.C. § 2255 is available in the record. See, e.g., Order (Doc. 469) at 1-5; Order (Doc. 390) at 1-4; see also Am. Opinion and Order (Doc. 452).

         Briefly, Anderson was indicted with four co-defendants: Teal Rounds, Shantae Harris, Kaydee Goff, and Nathaniel Davis. Rounds and Harris pled guilty more than a month before Anderson's trial. Goff s case was severed to be tried later. Anderson and Davis were scheduled to be tried together, but Davis pled guilty on the morning of trial. See Minutes (Doc. 222). Neither Anderson nor Davis testified.

         The jury found Anderson guilty on all counts. The mandatory minimum sentence was 120 months. Superseding Indictment (Doc. 71) at 8. Anderson was sentenced to serve a total term of 480 months in prison, to be followed by a 12-year term of supervised release. See Minutes (Doc. 318); Judgment (Doc. 319) at 3-4.

         II. Failure to Disclose

          This portion of the Order identifies the information that was not disclosed and considers how disclosing it could have altered reasonable jurors' view of the affected witnesses' credibility.

         A. The Obligation to Disclose Information Favorable to the Defense

         "[Suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). The prosecution must disclose to defense counsel evidence in its possession or control if the evidence is favorable to the defense.

         In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court considered whether Brady also requires disclosure of impeachment evidence. The question arose when, sometime after trial, the defendant's trial counsel "discovered new evidence indicating that the Government had failed to disclose an alleged promise made to its key witness that he would not be prosecuted if he testified for the Government." Id. at 150-51. The Supreme Court held that the United States' failure to disclose its promise violated the defendant's constitutional right to due process. See Id. at 153-55.

         "The importance of cross-examination... is to reveal a witness' state of mind and, more particularly, the extent of the witness' incentive to testify to the government's satisfaction." United States v. Larson, 495 F.3d 1094, 1110 (9th Cir. 2007) (en banc) (Graber, J., concurring in part and specially concurring) (a District of Montana case). Counsel for the defendant must be allowed not only to ask "whether the witness was biased but also to make a record from which to argue why the witness might have been biased." Id. at 1102 (majority op.) (internal quotation marks and brackets omitted) (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). Counsel cannot make that record, and the jury cannot fairly and accurately evaluate the evidence, when the United States fails to disclose relevant impeachment information within its possession.

         B. Undisclosed Evidence

         Twenty-eight cooperating witnesses testified at Anderson's trial. The United States failed to disclose impeachment information about 12 of them:[2] W08, W10, W13, W11, W05, [3] W14, W15, W06, W24, W28, W03, and W07. See U.S. Brief (Doc. 498) at 13-21.

         In addition, a thirteenth witness, W02, misstated the nature of a promise made to him in his plea agreement. Seykora did not correct the record. These witnesses are referred to collectively as "the Giglio witnesses."

         1. The Undisclosed Motions

         Eight of the Giglio witnesses-W08, W10, W13, W11, W14, W15, W06, and W07-pled guilty to federal crimes before Anderson's trial. W11 's plea agreement did not address motions under U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35(b), which generally authorize a court to reduce a sentence, on a prosecutor's motion, to reward the defendant for providing substantial assistance to law enforcement. The other seven plea agreements stated that motions under § 5K1.1 "and/or" Rule 35 might be filed. The United States did not promise any witness it would file such a motion.[4] All of these plea agreements were disclosed to Anderson.

         Anderson's jury knew that all eight of these witnesses had been convicted of felonies and agreed to testify. Two witnesses, W10 and W13, were specifically asked about sentence reductions. Consistent with their plea agreements, they said they "hoped" for reduced sentences. No. witness claimed to have been promised anything, and no one claimed to expect anything. See 2 Trial Tr. (Doc. 337) at 283:15-284:1 (W13), 341:18-342:3 (W11); 3 Trial Tr. (Doc. 338) at 385:24-386:13 (W10), 485:4-15 (W07), 491:6-14 (W15), 572:14-24 (W14), 573:19-574:3 (W06); 4 Trial Tr. (Doc. 339) at 612:25-613:3, 615:18-616:12 (W08).

         The jury knew other witnesses, too, had been charged with state or federal crimes-for example, W20 and W16. Still other witnesses, including W26 and W25, incriminated themselves in drug trafficking without saying they had been charged with anything. (W26 was not charged, at least not in this Court, but W25 was facing federal trial.) The jury knew some witnesses received "immunity," meaning, so far as the jury knew, that the prosecution could not use the witness's testimony against the witness. The scope of that protection was not explained. Cf., e.g., United States v. Dudden, 65 F.3d 1461, 1467-68 (9th Cir. 1995) (explaining that derivative use immunity applies unless the United States expressly says otherwise). The jury did not know what role a prosecutor plays in obtaining a reduced sentence or in filing charges. Compare, e.g., Larson, 495 F.3d at 1109-10; United States v. Schoneberg, 396 F.3d 1036, 1041-42 (9th Cir. 2005).

         In sum, the jurors at Anderson's trial probably inferred that all witnesses who had been or could be charged with federal crimes were hoping to curry favor or reap some benefit from testifying at Anderson's trial. How this might happen and what favors or benefits were available, they did not know.

         "There is nothing particularly new" about cooperating witnesses '"singing for their supper.'" Larson, 495 F.3d at 1113 (Hawkins, J., dissenting). But W08, W10, W13, W11, W14, W15, W06, and W07 had already sampled the delights of the prosecutor's table. Before Anderson's trial, each received a reduced sentence under U.S.S.G. § 5K1.1 based on their debriefing with agents or testimony to the grand jury against Anderson or others. All eight undisclosed § 5K motions were filed by Assistant United States Attorney James E. Seykora. Seykora personally appeared at each witness's sentencing hearing and spoke with the presiding judge about the extent of the witness's cooperation as well as the reduction the witness ought to receive. Seykora prosecuted Anderson and questioned each of these same witnesses before the jury that decided Anderson's fate.

         Because of Seykora, each witness had already obtained the following benefits:


Before § 5K1.1 Motion
Sentence Imposed


advisory guideline range

84 to 105 months

60 months 18 U.S.C. § 924(c)

48 months 60 months § 924(c)


advisory range 37 to 46 months

30 months


120-month mandatory minimum 60 months § 924(c)

90 months 60 months § 924(c)


advisory range

262 to 327 months

60 months § 924(c)

190 months 60 months § 924(c)


advisory range 120-month mandatory minimum to 135 months

90 months


advisory range 151 to 188 months

120-month mandatory minimum


240-month mandatory minimum

160 months

         Neither Anderson nor the jury knew the difference Seykora made in the prison terms of these eight witnesses. Anderson did not learn of the § 5K1.1 motions until almost seven years after his trial. See Order (Doc. 451).

         But the witnesses certainly knew what they owed to Seykora and how important it was to satisfy him. All eight were eligible for another sentence reduction under Rule 35 if Seykora approved of their performance at Anderson's trial. In a jury's assessment of a witness's "incentive to testify to the government's satisfaction," "the most important piece of the puzzle is the anticipated benefit that [the witness] expected to receive if his assistance satisfied the prosecutor," that is, "what the witness hoped to gain and, realistically, could expect to gain." Larson, 495 F.3d at 1110 (Graber, J., concurring) (emphasis in original). At Anderson's trial, these eight witnesses did again what they had done before. They could realistically expect to gain another reduction similar to the one they had already received.[5]

         When each of these eight witnesses testified, "there were two trials going on at the same time." "The verdict in [the witness's] trial... would be a Rule 35 motion" and "would be delivered by the United States Attorney's Office." Schoneberg, 396 F.3d at 1041-42. Not only did the witnesses know what was likely to be on the supper menu if they sang for it, but the § 5K1.1 motions also told each witness what tune Seykora wanted to hear. They already knew what Seykora believed to be the truth.

         The jury knew nothing of Seykora's influence over these witnesses or what the witnesses knew about Seykora.

         2. W13's Phone Calls

         With regard to Wl3, the United States failed to disclose more than its § 5K1.1 motion. More than two years before Anderson's trial, a drug task force officer wrote a report describing a series of recorded jail phone calls between W13 and his girlfriend. In one profanity-laced call on May 10, 2006, the couple discussed whether W13 could get his charges dropped by cooperating with authorities. W13 said, "[T]hey just want to go up the ladder you know, they just want to get people higher and higher." "If I give them all they want maybe they would just fucking drop the charges, the fucking federal charges." The girlfriend suggested W13 "[f]ucking take down that fucking black guy, you know who I'm talking about." W13 responded, "I now [sic] but fucking Nate, I don't know rucking shit about him or anything really, I don't know how to, I don't know." See Gov't Ex. 6 (Doc. 461-6) at 3-4 (under seal).

         At Anderson's trial, when Anderson's counsel asked W13, "[D]id you ever deal with Nate Davis?" W13 responded, "I don't even know who he is. I've never met him in my life." 2 Trial Tr. (Doc. 337) at 276:8-23.

         The jury heard a lot about Nate Davis's activities. Anderson, like Davis, is African-American. Yet in the phone call, when W13's girlfriend referred to "that black guy," W13 assumed she was talking about Davis. In all nine recorded calls, Anderson's name never came up-not "Anderson," not "Fritz," not "Pete," not "Prophecy." Just "Nate." See Gov't Ex. 6 (Doc. 461-6) (describing nine calls); Final Pretrial Conf. Tr. (Doc. 335) at 3:13-16 (Anderson's nicknames).

         W13 was the second cooperating witness to testify (the first did not recognize methamphetamine when she saw it) and the first whose testimony seriously incriminated himself and Anderson. He claimed that, between 2004 and the end of June 2006, Anderson fronted him more methamphetamine and cocaine than any other trial witness claimed to receive. See, e.g., 2 Trial Tr. (Doc. 337) at 255:20-257:2, 258:7-259:12, 268:4-269:11, 271:16-22. If the jury believed him, W13's testimony alone proved all the elements of all but the marijuana counts of the indictment. Recapping his relationship with Anderson, W13 said, "I've dealt a lot of drugs with a lot of people, so what I'm saying is a lot of it is accurate, but I can't remember the exact amounts. But I've dealt a lot with Fritz, and the meth, the meth, I've sold over 40 pounds; the cocaine is right at about 10 pounds; and ecstasy is about a hundred pills." Id. at 271:23-272:2.

         A reasonable juror would likely be far more skeptical of W13's claim he "dealt a lot with Fritz" in light of the phone call. See Fed. R. Evid. 613(b).

         3. Non-Prosecution Agreements

         On Tuesday, June 10, 2008, an FBI memo addressed to then-United States Attorney William Mercer stated that the cases of several individuals should be closed because they "were prosecuted locally and\or have cooperated in the investigation with the understanding that they would not be charged in [sic] they agreed to testify in federal court."[6] Gov't Ex. 12 (Doc. 461-12) at 1; see also U.S. Resp. to Order (Doc. 461) at 19 n. 19. Four witnesses who testified against Anderson the previous week were on the list: W05, W24, W28, and W03. When they testified at Anderson's trial, they knew their testimony was earning their exemption from federal prosecution. The jury did not.

         W05 testified that, over an 18-month period, she sold a pound and a quarter of methamphetamine, five pounds of marijuana, and about 100 ecstasy tablets for Anderson, used about four ounces of cocaine she received from him, and occasionally paid down her drug debt by giving Anderson guns she had received in exchange for drugs. See 3 Trial Tr. at 408:13-419:8. Her testimony was directly relevant to all but the conspiracy counts of the indictment. No. one mentioned anything about her motives or interest in testifying.

         W24 testified that he once bought three ounces of methamphetamine from Anderson through his cousin, W03, and bought "teeners" and a quarter-ounce on other occasions. See 3 Trial Tr. at 527:10-528:19. Anderson's counsel tried to show that W24 agreed to testify so that state authorities would release him and he would not have to go through withdrawal in jail. See Id. at 529:5-530:21. On redirect, Seykora implied that W24 did not benefit from his testimony, because he "didn't have [his] charges reduced for possession of Fritz Anderson's dope" and "pled guilty to a felony" in "state court." See Id. at 528:11-13, 530:25-531:3. The jury did not know that W24's testimony was his ticket out of federal prosecution by Seykora.

         W03 testified that she saw a handgun laying on Anderson's pants on a bed in a motel room in California; that she did not see him with a gun any other time; that she had previously told agents that Anderson brought marijuana, ecstasy, methamphetamine, and cocaine to Montana from California; and that Anderson gave her about eight ounces of methamphetamine, some of which she distributed to W24. See 4 Trial Tr. (Doc. 339) at 674:5-682:21. Thus, the jury heard from two witnesses who corroborated each other-W24 and W03-but did not hear that both of them avoided federal prosecution by testifying.

         W28's testimony likely made a significant impression on the jury. She took the stand, gave her name, identified Anderson, and then said, "I'm not testifying today." 3 Trial Tr. at 451:21-452:17. The jury was excused.[7] When Judge Cebull brought the jury back in, he instructed them not to consider W28's refusal to testify as evidence against Anderson. See Id. at 461:19-462:2. The United States then called W28's stepfather, W31, to tell the jury that a letter from Anderson arrived at his home for W28. He opened it, read it, and called law enforcement. "Adam"[8]took custody of the letter. See 3 Trial Tr. at 464:16-467:9. Judge Cebull did not admit the letter into evidence, so the jury did not know what it said. They knew it prompted W31 to call the cops.

         The United States called W28 again the following day. She told the jury Anderson dealt marijuana, ecstasy, methamphetamine, and cocaine. She was "sure he did" have a handgun on his person but she never saw one. She knew he made two or six trips to California to get drugs and said W05 and W16 sold drugs for him. She agreed she previously said she saw about 200 ounces of methamphetamine and "more than ten, less than 1, 000" ecstasy tablets in her home when Anderson was living with her and previously said Anderson carried a gun for protection when he had cash and drugs. W28 also showed the jury Anderson's name tattooed on her arm. His was not the only name tattooed on her body. See 4 Trial Tr. (Doc. 339) at 624:22-643:20.

         Anderson tried to show W28's testimony-aptly described by Judge Cebull as "wishy-washy," 4 Trial Tr. (Doc. 339) at 701:9-702:6-indicated that she did not have the personal knowledge to support what she had previously said to the grand jury, did not remember what she had said or what she was thinking when she said it, and was trying to answer Seykora's questions without admitting perjury. See, e.g., 4 Trial Tr. (Doc. 339) at 633:13-634:21, 640:10-641:22, 644:2-646:13.

         But Anderson could not suggest a reason why W28, after refusing to testify one day, testified the next.[9] Neither he nor the jury knew she and the United States "understood" she would not be prosecuted if she testified.

         4. W02's Testimony and "Immunity"

         The United States had no duty to explain to the jury what "immunity" meant. It did, however, have a duty to correct false testimony. See, e.g., Alcorta v. Texas, 3555 U.S. 28, 31-32 (1957) (per curiam); Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).

         W02 gave the jury an incorrect interpretation of the scope of his immunity:

Q. And you're testifying under a grant of immunity?
A. Yes.
Q. And they've agreed not to charge you?
A. In the conspiracy, yes. Well, I received a use of immunity [sic] letter that said they couldn't use the interview that I did with them against me. That's all. If-
Q. Right.
A. If they wanted to, they could still charge me with the conspiracy.

2 Trial Tr. at 336:10-18 (emphases added).

         W02 was correct that "they could still charge me." But in his plea agreement, the United States promised not to use against him any information he provided in debriefing or in testimony. See Plea Agreement (Doc. 22) at 10 ¶ 15(a), (b), United States v. W02, No. CR xx-xx-BLG-JDS (D. Mont, xxxx, 20xx). Whether W02 understood this or not was not relevant to the United States' duty to correct the record. See Hayes, 399 F.3d at 980-81. Saying that the United States could not use his interview against him but he could still be prosecuted implied that he was taking a risk and "just doing the right thing" by testifying at trial. In fact, he incurred no risk by testifying at trial. His testimony was protected as much as his interview. Seykora did not correct W02's false testimony. Cf. Order (Doc. 746) at 5-11, United States v. Garcia, No. CR 04-87-BLG-RFC (D. Mont. Sept. 30, 2011).

         More than that, W02's plea agreement conferred derivative use immunity.[10] See United States v. Plummer, 941 F.2d 799, 803, 804-06 (9th Cir. 1991). The United States could not use W02's words as evidence, nor could it use those words "to uncover other incriminating evidence, focus the investigation, decide to initiate prosecution, interpret other evidence, or otherwise plan trial strategy." United States v. Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995). The reach of derivative use immunity gives a witness incentive to say as much as possible. A witness willing to lie can use such immunity to please the prosecutor, who is making his own decision about the witness's credibility. See Schoneberg, 396 F.3d at 1041-42 (explaining witness testifies to trial jury and also in "mini-trial" with prosecutor as jury). A witness can also use his immunity to protect himself, in the event he is charged, by interposing a burden of proof the prosecutor must meet in a Kastigar hearing. See Dudden, 65 F.3d at 1468-69 (a Seykora case); see also Kastigar v. United States, 406 U.S. 441, 459-61 (1972).

         Failure to correct W02's testimony was a relatively minor error in the scheme of the trial, but W02 was not the only witness whose immunity was unclear. So far as the Court is aware, some witnesses, including W26, W22, and W12, see, e.g., 2 Trial Tr. at 305:11-306:20, 308:11-309:2; 3 Trial Tr. at 498:12-499:19, 552:3-4, gave self-incriminating testimony with no immunity of any kind. Witnesses of this sort are likely to appear more forthright and credible. W17, W09, W20, and Wl 8 appeared to be on the same footing, because their immunity did not come up as an issue. But their plea agreements, like W02's, conferred derivative use immunity.[11]

         All that said, an immunity agreement holding a witness harmless for what he says to an agent or a jury is not the same thing as rewarding a witness for what he says to an agent or jury. Non-prosecution agreements, which provide transactional immunity, see, e.g., United States v. Brown, 979 F.2d 1380, 1381 (9th Cir. 1992) (per curiam), and sentence reductions are the two highest-value benefits a prosecutor can deliver to a witness. The United States provided benefits of that value to 12 witnesses and failed to disclose all of them.

         C. Test for Materiality

         The United States argues that the undisclosed Giglio information was immaterial. It asserts that, even if the testimony of the Giglio witnesses is excised from the record, the evidence against Anderson remains "overwhelming." See U.S. Brief (Doc.498) at 23.

         This analysis is wrong. See Strickler v. Greene, 527 U.S. 263, 289-90 (1999). The United States' approach assumes the non-Giglio witnesses were all credible and describes only those portions of their testimony that favored the United States. See U.S. Brief (Doc. 498) at 6-13. This approach would be appropriate if the question was whether the United States presented sufficient evidence to support conviction. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). But the Jackson test defers to the jury's decision of the case. See Id. at 326. Here, the question is whether the prosecutor interfered with the jury's ability to assess the witnesses' credibility. There is no justification for deferring to the jury's verdict if the jury was deprived of important information that might have led it to a different verdict.

         So, as the Supreme Court explains, "materiality... is not a sufficiency of evidence test." Kyles v. Whitley,514 U.S. 419, 434 (1995) (explaining United States v. Bagley,473 U.S. 667 (1985)). "One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435. The analysis ...

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