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Media Alerts - United States v. Lee Vang Lor--Tenth Circuit
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February 20, 2013
  United States v. Lee Vang Lor--Tenth Circuit
Headline: Tenth Circuit refuses to vacate sentence after newly discovered evidence involving impeachment material of arresting officer is found in case with arguable Fourth Amendment issues.

Area(s) of Law:
Criminal law

Issue(s) Presented:
Based upon newly discovered evidence on a motion to vacate sentence under 28 U.S.C. 225, whether Defendant (1) had a full and fair opportunity to litigate his Fourth Amendment claim because he was not provided the evidence needed to impeach the government's sole witnesses establishing reasonable suspicion, and (2) is Defendant entitled to an evidentiary hearing to determine whether the Government violated Brady v. Maryland by not disclosing exculpatory material prior to trial.

Brief Summary:
Defendant learned after his unsuccessful suppression hearing that the officer who had stopped him and conducted a search of his vehicle was terminated for falsifying a police report in a different case. Not being given this information at an earlier date, Defendant appealed, claiming that his sentence should be vacated because he was deprived of a full and fair opportunity to litigate the validity of the officer's traffic stop and because the government violated Brady v. Maryland.

The court disagreed with Defendant on both claims, holding on the first claim that "[a] defendant is not deprived of a full and fair opportunity to litigate simply because he does not discover all potentially relevant evidence until after his suppression hearing." The court dismissed the Brady claim on account that it was not properly preserved below and was thus forfeited.

Extended Summary:
Lee Thao and his passenger Lee Vang Lor ("Defendant") had their vehicle stopped by Wyoming Highway Patrol tropper Ben Peech for speeding. Upon questioning by Trooper Peech, Defendant and Thao disclosed that they were traveling from Reno, Nevada, but gave different reasons for being there. The men were issued a speeding ticket, and upon request by Trooper Peech, Thao consented to a search of the vehicle. However, before Trooper Peech has begun his search, Thao asked if he had the ability to refuse consent for the search. Trooper Peech stated that he could "absolutely refuse," to which Thao then revoked his consent for the search. Trooper Peech then advised that both men would be detained until a unit with a drug dog could arrive to conduct a search of the vehicle. Feeling the pressure of Trooper Peech's statement, both men then re-consented to a search of the vehicle. The subsequent search, which Trooper Peech and three additional officers conducted, uncovered two pounds of methamphetamine.

During a suppression hearing, Thao and Defendant testified that they had yelled at the troopers to stop the search of the vehicle while the search was in progress. All four officers offered testimony that differed from Thao's and Defendant's. The officers testified that neither man made any attempt to revoke their consent to search the vehicle while the search was ongoing. The judge denied suppression, and defendants appealed. During that appeal, and relevant here, the Tenth Circuit Court of Appeals noted and relied upon the trial judge's statement that "I was more impressed with the truthfulness and testimonies of the sworn peace officers than I am of an individual who has had numerous encounters in a confrontation situation with peace officers all over and who is a convicted felon."

After Defendant had initiated his appeal, he learned that Trooper Peech had been fired from the Wyoming Highway Patrol for falsifying a report for a traffic stop. Trooper Peech's false report alleged that an individual was stopped for suspected DWI, rather than being stopped for suspicion of carrying drugs.

With this new evidence in hand, Defendant argued to the district court that because the main issue during the suppression hearing was one of credibility, which was heavily relied upon, that the outcome would have been different had this evidence been presented during that hearing. The district court denied this argument, asserting that because the newly discovered evidence was from an unrelated incident that "at best, [it only] might have provided a basis for impeaching trooper Peech's credibility," the judge's ruling would have been the same. This appeal followed.

On appeal, the Defendant made two arguments: (1) that he did not have a full and fair opportunity to litigate his Fourth Amendment claim because he did not have the evidence needed to impeach the government's sole witness establishing reasonable suspicion, and (2) that he is entitled to an evidentiary hearing to determine whether the Government violated Brady v. Maryland by not disclosing the exculpatory material prior to trial.

Addressing Defendant's first argument, the court stated that "[a] defendant is not deprived of a full and fair opportunity to litigate simply because he does not discover all potentially relevant evidence until after his suppression hearing." The court's holding was based in part on Stone v. Powell, 428 U.S. 465, which held that absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim. Because there was no evidence that the government withheld or concealed the information, Defendant was not deprived of a full and fair evidentiary hearing. In support of its holding, the court stated that "allowing evidence of Trooper Peech's false report to be introduced on collateral review would do little or nothing to deter future Fourth Amendment violations. Allowing the evidence would therefore be contrary to the purposes of the exclusionary rule...."

Defendant's second argument, concerning Brady, was not considered by the court because in his § 2255 petition, he failed to mention Brady or request an evidentiary hearing. Thus, the district court did not discuss the Brady issue, and because the issue was not properly preserved, this court held that the issue was forfeited because it did not properly raise the Brady issue.

Thus, the district court's denial of the Defendant's § 2255 petition was affirmed.

To read the full opinion, please visit: http://www.ca10.uscourts.gov/opinions/12/12-8024.pdf

Panel:
Judges Hartz, Baldock, Murphy

Date of Issued Opinion:
February 5, 2013

Docket Number:
12-8024

Decided:
Affirmed

Counsel:
Jonathan W. Rauchway (Eric C. Reese with him on the brief), Davis Graham & Stubbs LLP, Denver, Colorado, for Defendant-Appellant

David A. Kubichek, Assistant United States Attorney (Christopher A.Crofts, United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.

Author:
Judge Baldock

Circuit:
Tenth

Case Alert Author:
Charles B. Kraft, UNM School of Law, Class of 2013.

Case Alert Circuit Supervisor:
Dean Barbara Bergman, UNM School of Law

    Posted By: Dawinder Sidhu @ 02/20/2013 11:53 AM     10th Circuit  

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