Briseno v. USA
Filing
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OPINION AND ORDER: Defendant Juan Briseno's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. §2255 is DENIED. The Clerk shall enter judgment denying the §2255 motion both in Cause No. 2:18CV74 and Cause No. 2:11CR77. A certificate of appealability is DENIED. Signed by Judge Philip P Simon on 10/01/2019. (jat) (Copy mailed to Petitioner via Certified Mail, receipt # 7018 1830 0001 3190 5210)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
JUAN BRISENO,
Defendant.
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NO. 2:11CR77-PPS
and
No. 2:18CV74-PPS
ORDER
A jury found Juan Briseno guilty of charges including racketeering conspiracy,
drug conspiracy, and multiple murders in aid of racketeering, and I sentenced Briseno
to 7 terms of life imprisonment, plus an aggregate term of 20 years. [DE 1664 at 3.] The
evidence at trial showed that Briseno was a member of the Imperial Gangsters street
gang, whose operations included substantial dealings in illegal drugs and the frequent
use of violence to protect both the drug business and their gang.
Now before me is Briseno’s motion under 28 U.S.C. §2255 making collateral
challenges to his conviction. Section 2255 provides relief for a convicted defendant if
he can demonstrate “that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” Briseno’s grounds for relief are claims of
ineffective assistance of trial counsel. A criminal defendant has a right to the effective
assistance of counsel under the 6th Amendment to the U.S. Constitution. A claim of
ineffective assistance requires a showing that “counsel’s performance was deficient and
[Briseno] was prejudiced as a result.” Felton v. Bartow, 926 F.3d 451, 463 (7th Cir. 2019).1
When considering an ineffective assistance claim, a court “should recognize that
counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Strickland v.
Washington, 466 U.S. 668, 690 (1984). The burden is on the defendant to “identify the
acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment.” Id. I must “judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
Id.
The prejudice prong of an ineffective assistance claim is met if “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This
standard is demanding. More is required than a mere possibility that “reasonable
doubt might have been established if counsel acted differently,” and “[t]he likelihood of
a different result must be substantial, not just conceivable.” Harrington v. Richter, 562
U.S. 86, 111, 112 (2011).
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The government argues that Briseno’s motion can be denied on the basis of the “concurrent sentence”
doctrine, which permits a court to deny a collateral challenge that is made only to some counts of conviction, when
other counts which are not challenged separately account for the entire length of a concurrent sentence. [DE 2008 at
14.] I decline to consider application of the doctrine, and will address Briseno’s motion on the merits.
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Briseno first argues that he is entitled to a new trial because his counsel failed to
challenge various witnesses’ unreliable identifications of Briseno as the shooter in
several murders. Briseno reviews the identification evidence pertaining to the murders
of Harris Brown, Latroy Howard, Michael Sessum, and Miguel Mejias, contending
generally that “counsel failed to explore the false identifications made by witnesses.”
[DE 1949 at 10.] Briseno characterizes the identification evidence without citations to
the transcript, and without offering any facts or arguments concerning counsel’s
performance in attempting to impeach or rebut the testimony Briseno deems unreliable.
Briseno fails to develop any challenge to the adequacy of counsel’s cross-examinations
or rebuttal evidence. Instead, Briseno’s ground for relief is ultimately that counsel was
ineffective for failing to call an expert witness on eyewitness identification. [DE 1949 at
13.]
In support of his general contention that eyewitness identification is unreliable,
Briseno cites studies published at www.innocenceproject.org. [DE 1949 at 12.] The
report of the National Academy of Science offers best practices recommendations for
law enforcement policies and procedures to obtain accurate eyewitness identifications,
as well as recommendations to strengthen the value of eyewitness identification
evidence in court. Identifying the Culprit: Assessing Eyewitness Identification,
https://www.innocenceproject.org/wp-content/uploads/2016/02/NAS-Report-ID.
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pdf, at pp.21-23 (2014). One of these recommendations is that judges “have the
discretion to allow expert testimony on relevant precepts of eyewitness memory and
identifications.” Id. at 23.
Briseno cites no legal authority on the subject of such expert testimony.
In a 2005 decision, the Court of Appeals noted a “long line of Seventh Circuit cases”
affirming the exclusion of expert testimony regarding the reliability of eyewitness
identifications based on findings that such testimony would not have been of assistance
to the jury. United States v. Carter, 410 F.3d 942, 950 (7th Cir. 2005). These cases include
United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999), in which the Seventh Circuit
observed that “the credibility of eyewitness testimony is generally not an appropriate
subject matter for expert testimony because it influences a critical function of the jury.”
See also United States v. Welch, 368 F.3d 970, 974 (7th Cir. 2004) (concluding that proffered
expert testimony only addressed issues of which the jury is already generally aware).
In 2012, the Seventh Circuit affirmed a district court’s rejection of an expert on the
fallibility of voice identifications, asking the question “If jurors are told merely that
voice identifications frequently are mistaken, what are they to do with this
information?” United States v. Schiro, 679 F.3d 521, 529 (7th Cir. 2012).
Briseno’s description of the substance and purpose of such expert testimony in
his case is brief: “to explain to the jury why these witnesses had unreliable memories,
and why their identifications should not be accepted without question.” [DE 1949 at 13.]
The argument is too thin to hold water. What would the qualifications of such a
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witness be? What specific expertise and opinions would be offered about the
observation and memory that underlie eyewitness identifications generally? How
would that expertise have been pertinent to the jury’s assessment of the particular
identification witnesses at Briseno’s trial? Why would (or should) expert testimony that
“these witnesses had unreliable memories” have been allowed, even if it had been
proffered?
“Someone who proposes expert testimony must show how the findings apply to
the litigation at hand.” United States v. Bartlett, 567 F.3d 901, 907 (7th Cir. 2009). Briseno
has failed to do this, and so has not demonstrated that his trial counsel were deficient
for failing to offer an expert witness on the reliability of eyewitness identification.
“Whether expert testimony regarding witness perception, memory, reliability, and
deception could assist a properly-instructed jury in its task of evaluating trial testimony
is controversial.” Jimenez v. City of Chicago, 732 F.3d 710, 722 (7th Cir. 2013). Against this
legal backdrop (which Briseno does not acknowledge), it was necessary for Briseno to
persuade me not only that it was error for his counsel not to proffer such a witness, but
that I would have admitted the testimony if offered. The case law I have reviewed
suggests that it would have been within my discretion to exclude an eyewitness
identification expert where the majority of eyewitnesses knew Briseno and where more
than one witness identified Briseno in each murder. Bartlett, 567 F.3d at 906-07; Carter,
410 F.3d at 950; Hall, 165 F.3d at 1107.
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Pertinent to Briseno’s case, a frequently cited Seventh Circuit opinion affirming
the exclusion of such expert testimony pointed out that “studies do not suggest that
people who have known one another for weeks or years are apt to err when identifying
them in court.” Bartlett, 567 F.3d at 906. Instead, “[s]tudy after study has shown very
high error rates in the identification of strangers.” Id. (emphasis added). As the
government points out, even the National Academy of Science report relied on by
Briseno defines “eyewitness identification” as “recognition by a witness to a crime of a
culprit unknown to the witness.” NAS-Report-ID.pdf at 1, n.1 (emphasis added).
The government reviews the evidence relevant to the Latroy Howard murder,
which included a video of the murder and five witnesses who identified Briseno –
Feliciano, Wallberg, Baldazo, Weaver, and Torres. [DE 2008 at 16.] Expert testimony of
the kind Briseno invokes is not shown to be (or even contended to be) helpful to the
jury’s own assessment of the shooter in the video. And the five individuals who
identified Briseno with respect to this shooting all knew him. [Id.] A sixth individual,
Rodriguez, was not familiar with Briseno[id.], but as against the corroborating
testimony of five other identification witnesses who knew Briseno, expert testimony
about stranger identification would have had little value. Bartlett, 567 F.3d at 907
(“scholarly findings about eyewitnesses have only limited application when multiple
witnesses identify the same person”).
Similarly, with respect to the murders of Mejias and Sessum, Briseno was
identified by Vincent Garza, who testified that he helped commit the murders, and
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Weaver, who also knew Briseno beforehand. [DE 2008 at 16.] The stranger
identification by witness Haryasz [id. at 17] would have been the only testimony
subject to challenge by an identification expert, and the “limited application” of the
expert testimony in those circumstances, even if admitted by the court, does not
support a conclusion that trial counsel was ineffective for failing to attempt it.
The fact that the great majority of identification witnesses knew the defendant
prior to the murders is a significant factor not only in the assessment of their
identification, but in the appropriateness of expert testimony. Welch, 368 F.3d at 974
(“Unlike most eyewitnesses, the eyewitnesses in this case knew the defendant very well
prior to the crime.”) Given the Seventh Circuit’s “long line of cases which reflect our
disfavor of expert testimony on the reliability of eyewitness identification,” Briseno’s
argument that such an expert should have been offered, would have been admitted,
and likely would have produced acquittals constitutes swimming upstream. Hall, 165
F.3d at 1104. And the effort cannot succeed without a more in-depth analysis than has
been offered here.
Another factor militated against the appropriateness of expert testimony on
eyewitness identifications, and has not been addressed by Briseno in support of his
§2255 motion. Two jury instructions given here – No. 9 and No. 15 – are essentially the
same as those favorably approved in United States v. Crotteau, 218 F.3d 826, 832-33 (7th
Cir. 2000), as properly cautioning the jury to “carefully weigh all of the circumstances
surrounding” witness identifications of the defendant as the offender “before reaching
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any conclusion.” In Crotteau, the use of these “clear, concise, and unambiguous
cautionary instructions on the reliability of eyewitness identifications” was a factor in
the Court of Appeals’ conclusion that the district court had not abused its discretion in
excluding expert testimony on the subject. Id. at 833.
Nor am I persuaded that any Strickland prejudice has been (or could be)
demonstrated based on the lack of an expert on the reliability of eyewitness
identification. As the government points out, “multiple witnesses who knew and
recognized Briseno prior to the murder identified him, and the ‘stranger’ identification
corroborated those identifications.” [DE 2008 at 17-18.] Briseno fails to show that the
testimony of an expert on eyewitness identification, which would have only limited
application against all that testimony, would have been admitted or would have created
a substantial likelihood of acquittal on any of the murder charges.
Briseno’s other ground in support of his §2255 motion is another ineffective
assistance of counsel argument. Briseno claims that his trial counsel failed to challenge
the notion that in committing the murders, Briseno was acting as a member of the
racketeering “enterprise” as alleged in the indictment:
At most, the government introduced evidence that Mr. Briseno had killed
people, that he believed were members of rival gangs. However, an
important distinction is the complete lack of evidence that Mr. Briseno
committed these murders with the intent of furthering the IG’s criminal
conspiracy, or to maintain the gang’s power and influence in the
community.
[DE 1949 at 14.] Any assertion that Briseno’s trial counsel overlooked this element in
their presentation to the jury is clearly wrong. I quote from defense counsel’s closing
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argument in the guilt phase of the trial, in which he emphasized and explained what
was necessary to bring these murder charges in federal rather than state court:
Well, the way to get someone charged with a murder in federal court...is
through murder in aid of racketeering.
Why does that matter? Well, because in order to prove that Mr.
Briseno is guilty of any of those counts, the murders, it has to be proven
not just that there was a killing of a person intentionally but that it was
done in aid of racketeering activity.
[DE 1471 at 10-11.]
Counsel then reviewed Instruction No. 28 with the jury, and explained its
requirement that Briseno “knowingly became a member of the conspiracy with the
intent to advance the conspiracy.” [Id. at 11.] Counsel also highlighted to the jury the
possibility of “a gang that is strictly for protecting its own people that are in the gang”
and “people in that organization that are committing crimes but not related to the
actual gang itself.” [Id. at 16.] He used as an illustrative example the murder charges
against Aaron Hernandez, a New England Patriots football player, which were not
thought in any way to be in aid of the Patriots enterprise. [Id. at 16-17.] Then counsel
addressed each murder count separately, and argued that the evidence showed Briseno
did not commit any of those shootings in aid of racketeering but in each instance acted
out of a personal motive that was not shown to be in furtherance of racketeering
activity of the gang enterprise. [Id. at 27-29; 41-45; 48-50; 52-53.] The record clearly
establishes that the defense team did not fail to focus the jury on the argument Briseno
now raises.
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Briseno also argues that his trial counsel erred by failing to object to the jury
instructions on racketeering as proposed by the government. [DE 1949 at 13.] The brief
is not crystal clear on what error is alleged in the RICO instructions submitted by the
government, or what additional or alternative instructions defense counsel should have
proposed. At one point Briseno argues that the defense failed to submit any instruction
to “explain to the jury that Mr. Briseno is required to have agreed that members of the
IGs would commit acts of racketeering.” [DE 1949 at 15.] Instruction 29 in fact made
clear that the “pattern of racketeering activity” required for a conviction on the
racketeering conspiracy charged in Count One included a requirement that the jury
“find beyond a reasonable doubt that the defendant agreed that some member or
members of the conspiracy would commit at least two acts of racketeering as described
in Count One, and that they were separate acts.” [DE 1500 at 31.] This portion of the
instruction – the Seventh Circuit’s model jury instruction on the pattern requirement of
18 U.S.C. §1962(d) – clearly covers the particular element invoked by Briseno’s
argument.
The government (generously) construes Briseno’s brief to argue that defense
counsel should have proposed jury instructions requiring acquittal if “the government
failed to prove that Mr. Briseno either agreed to join the conspiracy, or agreed to
commit two racketeering acts.” [DE 1949 at 15-16; DE 2008 at 20-21.] The first of these
requirements – agreement to join the conspiracy – is squarely covered by element 2 of
Instruction 28: “the Defendant knowingly became a member of the conspiracy with
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intent to advance the conspiracy.” [DE 1500 at 30.] As the government points out, the
second of Briseno’s suggestions is not an accurate statement of the law, which requires
only Briseno’s agreement that some member of the conspiracy would commit at least
two acts of racketeering (as required by Instruction 29 set out in the previous
paragraph), but not that Briseno himself agree to commit such acts. United States v.
Faulkner, 885 F.3d 488, 492 (7th Cir. 2018) (racketeering conspiracy charge does not
require proof that the defendant was “personally involved in two or more of the
predicate acts”); United States v. Tello, 687 F.3d 785, 793 (7th Cir. 2012) (“[M]aking the
commission of two or more predicate acts by each conspirator an essential element of
the offense...would essentially...render the conspiracy offense set out in subsection (d) a
nullity”).
Finally, Briseno contends that his defense counsel “failed to include an
instruction that if the government did not prove that Mr. Briseno agreed to commit
these murders on behalf of the IGs, he would be acquitted of the racketeering
conspiracy.” [DE 1949 at 16.] Instruction 43, one of the court’s jury instructions
governing all the counts of murder in aid of racketeering, explicitly included the
element that “the defendant’s purpose in committing the murder was to maintain or
increase his position in the Imperial Gangsters enterprise.” [DE 1500 at 51.] Instruction
45 further addressed this element, explaining that it was met if the jury found that “the
defendant committed a murder because he knew it was expected of him by reason of
his membership in the Imperial Gangsters enterprise or that he committed it in
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furtherance of that membership.” [DE 1500 at 54.] These instructions were proper
statements of the applicable law. Faulkner, 885 F.3d at 492; United States v. DeSilva, 505
F.3d 711, 715 (7th Cir. 2007). No deficiency is shown in the performance of defense
counsel with respect to holding the government to its burden on the elements of the
racketeering-related counts of conviction.
Conclusion
Juan Briseno’s motion under §2255 will be denied because he fails to demonstrate
that his trial counsel rendered ineffective assistance. There is no basis for an evidentiary
hearing because “the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief.”‘ 28 U.S.C. §2255(b).
I must also consider whether to grant Briseno a certificate of appealability. “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” RULES GOVERNING SECTION 2255 PROCEEDINGS 11(a). “A
certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). To obtain a
certificate of appealability, Briseno must show that reasonable jurists could debate
whether his petition should have been resolved differently. Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). Briseno has made no such showing. A certificate of appealability will be
denied.
ACCORDINGLY:
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Defendant Juan Briseno’s Motion to Vacate, Set Aside or Correct His Sentence
Pursuant to 28 U.S.C. §2255 is DENIED.
The Clerk shall enter judgment denying the §2255 motion both in Cause No.
2:18CV74 and Cause No. 2:11CR77.
A certificate of appealability is DENIED.
SO ORDERED.
ENTERED: October 1, 2019.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT
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