Free Response in Opposition - District Court of Colorado - Colorado

Case 1:00-cr-00481-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal File No. 2000-cr-00481-WYD UNITED STATES OF AMERICA, Plaintiff, v. ROD SCHULTZ, Defendant _____________________________________________________________________________ RESPONSE OF THE UNITED STATES ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 _____________________________________________________________________________ ISSUES PRESENTED 1. Whether this Court should vacate Schultz's conviction based on his claim of ineffective assistance of counsel based on counsel's decision not to call the victim, Pedro Castillo, to testify, where there is no reasonable probability that Castillo's testimony would have altered the outcome of the trial. 2. Whether this Court should vacate Schultz's conviction based on Schultz's allegation that the government destroyed exculpatory evidence where the court of appeals has already rejected that claim. INTRODUCTION This Court should deny Schultz's motion to vacate his conviction without holding a hearing. Schultz's motion merely recycles arguments that have already been rejected by this Court, the Court of Appeals, or both. Schultz has not shown why this Court should revisit these

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issues. PRIOR PROCEEDINGS This Honorable Court is well familiar with proceedings giving rise to Schultz's conviction. The prosecution arose out of an investigation of widespread abuse of prisoners and falsifying records to cover up that abuse at the United States Penitentiary, Florence, Colorado. On February 6, 2001, Schultz and six other corrections officers were charged in a superseding indictment with one count of violating 18 U.S.C. 241 (conspiracy to deprive the inmates of their rights) and nine counts of violating 18 U.S.C. 242 (deprivation of rights under color of law). On June 24, 2003, the jury convicted Schultz on the conspiracy count and one count of violating Section 242. That count charged Schultz with unlawfully beating inmate Pedro Castillo on April 5, 1996. Schultz was acquitted on two other counts. On November 21, 2003, this Court sentenced Schultz to 41 months' imprisonment. Schultz appealed his conviction and sentence. On June 14, 2004, while the appeal from his conviction was pending, Schultz filed a motion for a new trial under Rule 33, Federal Rules of Criminal Procedure, based on newly discovered evidence. Doc. 1537. The proffered newly discovered evidence was a statement from Pedro Castillo indicating that Castillo did not believe that Schultz was one of the guards who assaulted him. On September 14, 2004, Schultz filed an amended motion for new trial, adding a claim that the government had suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), by failing to produce a videotape made on April 6, 1996, the day after the assault on Castillo. Doc. 1564. On October 4 and December 6, 2004, this Court held hearings on the new trial motions and heard testimony from Castillo and other witnesses. By order dated December 10, 2004, this -2-

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Court denied the motions for a new trial, Doc. 1615, citing three reasons: First, the Court found that Schultz had not been diligent in obtaining this evidence. Doc. 1615 at 4. Second, the Court found that even if Schultz had been diligent, the newly discovered evidence was merely impeaching. Doc. 1615 at 5. And, third, this Court found that there was not a reasonable probability that Castillo's testimony would result in an acquittal because Castillo's testimony was inconsistent with Schultz's defense, Castillo's own prior statements, and the testimony of the two corrections officers who testified at trial. Doc. 1615 at 6. This Court also denied Schultz's motion for new trial based on the alleged Brady violation. Doc. 1615 at 7. Schultz appealed. On October 21, 2005, while his appeals were pending, Schultz filed another motion for a new trial based on more supposedly newly discovered evidence. Doc. 1661. Schultz alleged that the government had falsely accused the defendants of destroying the videotape of the April 5, 1996, assault on Castillo. Schultz had raised this issue in his direct appeal, but had not previously raised it in this Court. On February 28, 2006, the Tenth Circuit affirmed Schultz's convictions, rejecting the arguments Schultz had raised on appeal regarding the destruction of the April 5, 1996, videotape. See United States v. LaVallee, 439 F.3d 670, 701 (10th Cir. 2006). The Court of Appeals affirmed this Court's denial of the 2004 motion for new trial on the ground that Schultz had not shown due diligence. Id. at 700-701. The Tenth Circuit also found no Brady violation for failing to produce the April 6, 1996, videotape. Id. at 699. On August 24, 2006, this Court then denied Schultz's 2005 motion for new trial. Doc. 1679 (Appendix A). On April 19, 2007, Schultz filed a motion to vacate his conviction under 18 U.S.C. 2255, Doc. 1680, and this Court ordered the United States to respond, Doc. 1681. -3-

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STATEMENT OF THE FACTS 1. The Beating of Inmate Pedro Castillo

Since the Court is well-versed in the facts of this case, the government will not describe in detail all the evidence presented at trial concerning Schultz's role in the beating of inmate Castillo. At trial, Officers Charlotte Gutierrez and Kenneth Mitchell testified regarding the beating of Castillo and Schultz's role in it. Castillo did not testify. The Tenth Circuit summarized the essential facts as follows: Pedro Castillo, another inmate in the [Special Housing Unit], was an orderly in that unit and responsible for cleaning as directed by the officers. During an argument with Ms. Gutierrez on the morning of April 5, 1996, Mr. Castillo threw a mop and bucket of water onto the floor. Because of this, Mr. Castillo lost his job as an orderly as well as the freedom associated with the job; he was forced to return to 23-hour lockdown. The Government presented evidence at trial that later that day, several officers met to discuss how they would further punish Mr. Castillo for his behavior that morning. According to the Government, the officers resolved to concoct a story that Mr. Castillo was cutting himself-he was a known self-mutilator-which would require them to perform a forced-cell move. The officers assigned roles to each other in the ensuing assault. Because a video camera was perched outside Mr. Castillo's cell, Mr. Schultz's role in the assault was to knock the camera over so that it would not record the officers entering the cell. After doing so, several officers entered the cell, pulled Mr. Castillo off his top bunk, put him on the floor, and restrained him with handcuffs. Additional testimony demonstrated that the officers then took Mr. Castillo to a holding cell where Mr. Schultz and Mr. LaVallee each struck him two or three times in the back with their fists while Mr. Mitchell held Mr. Castillo against the wall. Mr. Mitchell then released Mr. Castillo and walked back to the officers' station approximately twenty feet away; he could hear the sound of the blows as the officers continued to beat Mr. Castillo. Ms. Gutierrez then entered the cell and Mr. LaVallee told her to kick Mr. Castillo, which she did. After the assault, Mr. LaVallee told Ms. Gutierrez that they had beaten Mr. Castillo on her behalf. Following the incident, the officers again fabricated false reports to justify the forced-cell move. The officers reported that Mr. Castillo had been cutting himself and that when the officers entered the cell to subdue him, Mr. Schultz -4-

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slipped and knocked down the camera. The reports also stated that once the officers were inside the cell, Mr. Castillo punched one of them in the head. None of the reports mentioned that Mr. Castillo was beaten. United States v. LaVallee, 439 F.3d 670, 679 (10th Cir. 2006). 2. Post-Trial Proceedings

Schultz's June 14, 2004, motion for a new trial included an affidavit from a private investigator asserting that he had interviewed Pedro Castillo in February 2004, after looking for him for six weeks. According to the affidavit, Castillo told the investigator that Rod Schultz never beat him and that Schultz was not at the USP-Florence on April 5, 1996, when Castillo was beaten by corrections officers. Doc. 1537, Braun Aff. at 1-2 (Appendix B). In response to this motion, government attorneys and an FBI Special Agent interviewed Pedro Castillo and his brother, Reinaldo, both of whom executed affidavits that were submitted to this Court. Doc. 1552. Pedro Castillo stated in his affidavit that he did not believe that Schultz had participated in beating him on April 5, 1996, because Schultz had not been present that day. Doc. 1552, Pedro Castillo July 19, 2004, Aff. at 7 & 9 (Appendix C). At the October 4, 2004, hearing on the new trial motions, Pedro Castillo and his brother Reinaldo testified. Pedro testified that Schultz did not beat him and that Schultz was not present on April 5, 1996, when he was beaten by corrections officers. Oct. 4, 2004, Tr. Hr'g at 35, 3738, 45-46 (Appendix D). On December 6, 2004, three FBI agents who had been involved in the interviews of Pedro Castillo in 2000 testified. The agents described the circumstances of those interviews and what Castillo had told them. See Dec. 6, 2004, Tr. Hr'g at 143-205, 211-215, 227-243.

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ARGUMENT In 28 U.S.C. § 2255, Congress created a mechanism for a defendant to challenge his sentence on specific grounds and also to raise any permitted collateral attacks on his judgment of conviction. See 28 U.S.C. § 2255. A motion under Section 2255 does not serve as an alternative to a direct appeal nor as a forum to recycle issues already raised and decided. A defendant may not raise issues that could have been raised on direct appeal unless he can show cause excusing the default and prejudice. United States v. Bolden, 472 F.3d 750, 751-752 (10th Cir. 2006). Also, arguments rejected on direct appeal will not be reviewed on a Section 2255 motion absent an intervening change in law. United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989). 1. SCHULTZ CANNOT PROVE INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE FAILURE TO CALL PEDRO CASTILLO WAS NOT PREJUDICIAL Schultz first argues (Doc. 1680, Attach. C at 1-7) that he was denied his Sixth Amendment right to effective assistance of counsel because his trial counsel did not interview Pedro Castillo or call him as a witness at trial. Schultz alleges that "[t]o the best of his knowledge his counsel neither contacted, nor interviewed, Castillo. His counsel did not advise him or suggest that it would [be] wise not to contact or subpoena Castillo as a matter of strategy, or tactics, or for any other reason." Doc. 1680, Attach. C at 1. To establish a claim of ineffective assistance of counsel, a defendant must: (1) show that "his counsel's representation fell below an objective standard of reasonableness," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." United States v. Taylor, 454 F.3d 1075, 1079 (10th Cir. 2006) (internal quotation marks omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, -6-

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694 (1984)). If the Court concludes that one of the elements has not been proven, it may deny relief without addressing the other. United States v. Orange, 447 F.3d 792, 796-797 (10th Cir. 2006). Even where evidence is potentially exculpatory, counsel's failure to present it does not establish the prejudice element of an ineffective assistance of counsel claim unless there is a reasonable probability that it would have altered the outcome of the trial. See Snow v. Sirmons, 474 F.3d 693, 729-730 (10th Cir. 2007) (court examined totality of evidence pointing to defendant's guilt and concluded there was no reasonable probability the exculpatory witness statements would have resulted in acquittal). Schultz's 2004 motion for a new trial was based, in part, on Castillo's post-trial statement. After a hearing at which Castillo testified, this Court addressed the likely effect of Castillo's testimony on a new trial.1 In its December 10, 2004, Order, this Court concluded that Castillo's testimony in a new trial would not likely result in Schultz's acquittal: First, Castillo's new statement that Schultz was not there on the day in question is inconsistent with Schultz's defense that he was on duty that day and that no one who was on duty beat him. Second, Castillo's new statement is inconsistent with other statements given to the FBI (that all of the officers who moved him on the day in question beat him and/or that he does not know if Schultz beat him). [Third], two correctional officers testified that Schultz did beat Castillo. Given the inconsistencies, even in Castillo's own statements, I find that an acquittal would not probably result from Castillo's statements. Doc. 1615 at 6. This Court also questioned Castillo's credibility based on his emotional instability. Doc. 1615 at 6 n.1. Because there is no reasonable probability that Castillo's testimony would have

1

This Court found that Castillo's direct testimony was exculpatory, but noted that on cross-examination,

Castillo's testimony was somewhat muddled. Doc. 1615 at 4.

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altered the result of the outcome of the trial, Schultz has not shown that he was prejudiced by counsel's failure to call Castillo as a witness. This failure to prove the prejudice element defeats Schultz's ineffective assistance of counsel claim. Moreover, even if Schultz's counsel had known that Castillo would deny that Schultz had beaten him, it would have been a reasonable decision not to call him as a witness. As this Court noted, Castillo's statement exculpating Schultz was directly contrary to Schultz's defense at trial. A decision to avoid the danger of presenting that evidence is well within the broad discretion afforded trial counsel. As the Tenth Circuit has recognized, where testimony is potentially helpful in one regard but potentially harmful in another, competent counsel may well decide not to present it. See Welch v. Sirmons, 451 F.3d 675, 706 (10th Cir. 2006) (eliciting testimony from witness on cross-examination to suggest she was lying rather than mistaken could have "backfired" and counsel's refusal to elicit such testimony was not ineffective). This Court, however, need not decide whether counsel acted reasonably because the prejudice element has not been proven. This Court should reject Schultz's ineffective assistance of counsel claim. 2. SCHULTZ'S DUE PROCESS ARGUMENTS WERE PREVIOUSLY REJECTED AND ARE THEREFORE BARRED Schultz argues (Doc. 1680, Attach. C at 8-11) that the government violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to produce to him a videotape from April 6, 1996, the day after he and LaVallee assaulted Castillo. This Court rejected that claim, Doc. 1615 at 7, and the Tenth Circuit affirmed, United States v. LaVallee, 439 F.3d 670, 699 (10th Cir. 2006). Schultz also argues (Doc. 1680, Attach. C at 11-18) that the prosecutors falsely claimed that the

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defendants had destroyed a videotape of the April 5, 1996, assault on Castillo. The Tenth Circuit rejected that claim, id. at 701-702, and this Court rejected it in denying Schultz's 2005 new trial motion, Doc. 1679 at 5-6.2 Schultz further argues (Doc. 1680, Attach. C at 21-25) that the government violated his due process rights by failing to preserve the April 5, 1996, videotape. The Tenth Circuit previously rejected this argument. LaVallee, 439 F.3d at 699-700.3 All of Schultz's arguments have been rejected by this Court, the Court of Appeals, or both. Because Schultz has pointed to no subsequent change in the law, the previously rejected claims may not be raised in this collateral proceeding. See United States v. Pritchard, 875 F.2d 789, 791 (10th Cir. 1989).

2

Schultz also argues (Doc. 1680, Attach. C at 17-18) that the prosecutors had an affirmative duty to find

exculpatory evidence which they failed to do by not determining what had happened to the April 5, 1996, videotape. This appears to be the same argument Schultz made on direct appeal. See Appellant's Opening Brief at 50, United States v. Schultz, No. 04-1540 (10th Cir. 2005) ("Brady places an affirmative duty of inquiry on the prosecution.") (Appendix E). If he intends this to be a different argument, he has not shown cause excusing his failure to raise the argument in his direct appeal. See United States v. Bolden, 472 F.3d 750, 751-752 (10th Cir. 2006).
3

Schultz states (Doc. 1680, Attach. C at 18-21) that government counsel threatened witnesses to get them

to change their statements, but he makes no argument relating to that assertion. Schultz also relied on those instances of supposed misconduct in his appeal from the denial of his 2004 motion for new trial. See Appellant's Opening Brief at 52, United States v. Schultz, No. 04-1540 (10th Cir. 2005) (Appendix E). The Tenth Circuit, in ruling on Schultz's claim that the government had destroyed exculpatory evidence, held that the government employees had not acted in bad faith. LaVallee, 439 F.3d at 699-700.

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CONCLUSION This Court should deny Schultz's motion to vacate his conviction without the necessity of a hearing.

Respectfully submitted, WAN J. KIM Assistant Attorney General

JESSICA DUNSAY SILVER KARL N. GELLERT Attorneys U.S. Department of Justice Civil Rights Division Appellate Section ­ RFK 3728 Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 202-353-4441

TROY A. EID United States Attorney District of Colorado By: s/ Robert E. Mydans Assistant United States Attorney United States Attorney's Office 1225 - 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0401 E-mail: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I certify that on this 18th day of June, 2007, I electronically filed the foregoing RESPONSE OF THE UNITED STATES ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. 2255 with the Clerk of the Court using the CM/ECF system. A copy will be mailed to the following by Federal Express:

Neil MacFarlane 9975 Wadsworth Pkwy, K-2 Westminster, CO 80021

By: s/ Charlotte A. Seaton CHARLOTTE A. SEATON Legal Assistant to Robert E. Mydans United States Attorney's Office 1225 - 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0244 Fax: (303) 454-0402 E-mail: [email protected]