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United States v. Briseno

United States District Court, N.D. Indiana, Hammond Division

October 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN BRISENO, Defendant.

          ORDER

          PHILIP P. SIMON, JUDGE

         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).

         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. 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 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.

         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 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 ...


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