United States v. Francisco Colorado Cessa
861 F.3d 121
5th Cir.2017Background
- Francisco Colorado Cessa (Colorado), a Mexican businessman who owned ADT Petro Services, was charged with conspiring to launder Los Zetas drug proceeds by buying, breeding, and selling quarter horses in the U.S. and Mexico.
- Colorado was convicted at a second trial after this Court reversed his first conviction in United States v. Cessa (Cessa I) for an improper jury instruction; the superseding indictment expanded the alleged conspiracy start date from 2008 to 2004.
- At the second trial, cooperating witness Carlos Nayen testified; the Government had prepared multiple FBI FD‑302 memoranda of interviews with Nayen that the district court reviewed in camera but withheld from defense counsel.
- The jury convicted Colorado; the district court sentenced him to 200 months, ordered forfeiture of property, and entered a $60 million money judgment.
- On appeal Colorado raised six principal claims: Brady/Giglio nondisclosure of Nayen interview memoranda; error in a commingling jury instruction; prejudicial prosecutorial closing argument; double jeopardy/collateral estoppel from Cessa I; prosecutorial misconduct before the grand jury; and challenges to forfeiture/money judgment.
- The Fifth Circuit remanded for further district‑court findings on suppression and materiality of the Brady/Giglio materials, rejected Colorado’s other claims, and declined to reach the forfeiture challenge pending resolution of the Brady issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Brady/Giglio nondisclosure of FD‑302s and related notes | Colorado: the withheld 302s and notes contained exculpatory and impeachment material (e.g., that Colorado bought horses with his own money and feared the Zetas) and thus must be disclosed; materiality requires vacatur if not disclosed | Government: district court properly reviewed and found 302s not helpful to defense (not favorable/material) and some statements were not suppressed or material | Court: district court clearly erred by assessing only favorability; 302s were favorable (exculpatory and impeaching). Remanded for district court to decide suppression and cumulative materiality (and consider prosecutor notes in camera if appropriate). |
| 2) Jury instruction on commingling of funds | Colorado: instruction improperly allowed inference of intent to conceal from commingling and previously was deficient for lacking permissive language; now still allegedly unsupported or unconstitutional | Government: permissive commingling inference is lawful and supported by evidence of ADT account commingling and purchases | Court: amended instruction was permissive, supported by evidence, and consistent with precedent; no abuse of discretion. |
| 3) Prosecutor’s closing argument (commingling statement) | Colorado: prosecutor converted the permissive inference to a mandatory rule and broadened it to prove the whole conspiracy, warranting a new trial | Government: statement was argument inviting a permissible inference and consistent with the instruction and record | Held: remark was not improper in context and did not render verdict unreliable; any error harmless given instructions and strength/context of evidence. |
| 4) Double jeopardy / collateral estoppel from Cessa I | Colorado: Cessa I’s statements that Government failed to prove purchase of horses with illegal proceeds preclude retrial on that theory | Government: Cessa I reversed for instructional error and did not establish necessarily decided facts that would bar retrial | Held: double jeopardy/collateral estoppel does not bar retrial because reversal was for trial error and no ultimate fact was necessarily decided against Colorado. |
| 5) Prosecutorial misconduct before the grand jury | Colorado: prosecutor misstated prior appellate history, presented misleading testimony, and used impermissibly leading questions, so indictment should be dismissed | Government: statements had factual bases or were immaterial; leading questions are permissible in grand jury and witnesses were sworn; prosecutor stressed grand jury independence | Held: no material misconduct or prejudice to grand jury; indictment properly retained. |
| 6) Forfeiture and money judgment challenges | Colorado: challenges to forfeiture and $60M judgment (contingent) | Government: (responded below) | Held: Court did not resolve forfeiture because outcome depends on Brady remand and any potential reversal; forfeiture claim reserved. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material exculpatory/impeachment evidence)
- Giglio v. United States, 405 U.S. 150 (1972) (Brady rule includes impeachment evidence; materiality standard)
- United States v. Cessa, 785 F.3d 165 (5th Cir. 2015) (Cessa I) (earlier reversal for improper jury instruction on commingling)
- United States v. Brown, 650 F.3d 581 (5th Cir. 2011) (standard of review when district court conducts in‑camera Brady review)
- Skilling v. United States, 554 F.3d 529 (5th Cir. 2009) (Brady cumulative analysis; review of in‑camera Brady rulings)
- Francis v. Franklin, 471 U.S. 307 (1985) (permissive inferences must be justified by reason and common sense)
- Burks v. United States, 437 U.S. 1 (1978) (double jeopardy bars retrial after reversal for insufficiency but not for trial error)
- Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) (dismissal of indictment for grand jury error requires showing of prejudice or substantial influence)