CLICK TO READ United States v. Julius Cerdes, Jr., Docket # 23-30141

In September 2006, Defendant pleaded guilty pursuant to a written plea agreement to conspiracy to distribute marijuana after DEA agents observed him receiving a shipment of 17 pounds of marijuana based on a confidential informant’s tip.  When Defendant was arrested, he was carrying a handgun. 

The plea agreement required more than just Cerdes’ plea of guilty to the conspiracy charge. It also required him to waive his right to appeal or collaterally attack in any post-conviction proceeding his conviction and sentence. Furthermore, Cerdes was required to withdraw a formal complaint he had made to the DEA regarding misconduct by DEA Agent Scott. Specifically, Cerdes asserted that the marijuana found in his vehicle at the time of his arrest was not his, but had been planted there by Agent Scott, among other serious misconduct.

Years later, it came to light that Agent Scott and members of his taskforce that targeted drug trafficking were themselves breaking the law. In October 2017, Agent Scott was arrested and later indicted on numerous federal charges for acts he committed while leading the task force. After two trials in 2019 and 2021, Agent Scott was convicted of falsifying government records, obstructing justice, perjury, conspiracy to convert property and to remove property to prevent seizure, and property conversion by a federal officer. He was sentenced to 160 months in prison.  Defendant testified as a witness against Agent Scott at Scott’s sentencing.

In January 2020, Cerdes filed a petition for a writ of coram nobis seeking to vacate his conviction for conspiracy to distribute marijuana. He asserted that his guilty plea was the product of “extraordinarily abusive, over-reaching, and unconstitutional tactics” by Agent Scott.  The district court denied Cerdes’s petition for coram nobis relief, after determining that Cerdes did not meet his burden of establishing sound reasons for his failure to seek relief earlier.  Cerdes appealed.

The Fifth Circuit reversed.  The Court held that the Defendant’s actions in waiting to file his petition until after his sentence was completed was grounded in the belief that if he took some action contrary to the plea agreement, such as filing a direct appeal or habeas petition based on Scott’s misconduct, then there would be adverse consequences or reprisals against him by Scott. He asserts that reasonable fear and apprehension on his part persisted until it became clear that the Government had finally come to recognize Scott as a bad actor. The evidence adduced at Scott’s trial and the testimony offered at Scott’s sentencing hearing in particular demonstrated just how powerful and dangerous Scott was as a rogue DEA agent.  Under the unique and extraordinary circumstances of this case, the Court concluded that Cerdes met his burden of establishing sound reasons for not seeking appropriate relief earlier and that the district court thus erred in finding otherwise.

Vacated and remanded for further proceedings.

CLICK TO READ United States v. Robert Brumfield III and Jeremy Esteves, Docket # 22-30238

This appeal arises from a 2013 armed robbery of a Loomis armored truck in New Orleans. One Loomis truck guard, Hector Trochez, was shot and killed during the attack. In total, six people were indicted in connection with the robbery and attendant conspiracy. A jury convicted Robert Brumfield III and his cousin Jeremy Esteves for their roles in the crime. Two days into trial, Brumfield and Esteves learned that the Government had failed to disclose two pieces of evidence: (1) phone recordings about the Loomis robbery between an FBI informant and cooperating witness Jamell Hurst; and (2) the FBI’s informant file on Hurst, which contained an agreement between Assistant United States Attorney (AUSA) McMahon and the Orleans Parish District Attorney’s Office not to extradite Hurst in connection with a 2013 aggravated burglary warrant.

Hurst was the key witnesses for the Government at trial, and had been an FBI informant since 2014.  As to the benefits Hurst received for testifying, Hurst testified that the government told him it would inform the Baton Rouge district attorney or judge overseeing his pending sexual battery charges that he was cooperating with the Loomis investigation. He also testified that the FBI gave him $1,200 to help buy a new phone and move back to New Orleans and that he was interested in the $50,000 reward for the information he provided.

Brumfield and Esteves moved for a mistrial based on the newly disclosed evidence. The district court continued trial to allow the defendants to review the evidence. It heard argument and orally denied the motions, holding that Brumfield and Esteves were not prejudiced by the Government’s failure to disclose the evidence because they had a continuance to review the evidence before cross-examining Hurst.  After the guilty verdict, the Defendants received additional evidence about benefits that Hurst and another Government witness, Lydell Hinton, obtained for cooperating with the Government. Brumfield and Esteves moved for a new trial, arguing that the Government violated Brady and Giglio. The District Court denied the motion, holding that the new evidence was immaterial in light of the entire trial record.

The Fifth Circuit reversed the conviction as to Defendant Estevez only.

To prevail on a Brady claim, ‘a defendant must show: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the prosecution; and (3) the evidence was material.’” For evidence to be material, there must be “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  “A reasonable probability’ is established when the failure to disclose the suppressed evidence ‘could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’”

Here, the evidence was favorable to Defendant Estevez and highly material because it impacted Hurst’s credibility.  Because the District Court never considered whether the evidence was suppressed by the prosecution, the case was remanded for a new determination of the Brady claim.