916 F.3d 919
10th Cir.2019Background
- Deputies stopped a pickup and seized 41.3 grams of methamphetamine, currency, a firearm component, and a SIM/flash drive; Gregory Orozco was charged with conspiracy and possession with intent to distribute methamphetamine.
- At trial several witnesses (including Jose Ruiz and the Eastlands) implicated Orozco; Orozco intended to call Jose Ruiz’s brother, Ruiz‑Salazar, to rebut a collateral matter about who sold a Camaro.
- AUSA Terra Morehead met briefly (≈5 minutes) with Ruiz‑Salazar’s counsel and warned that Ruiz‑Salazar could face perjury consequences if he lied; Ruiz‑Salazar subsequently declined to testify, citing advice from his counsel after that meeting.
- Orozco testified and was convicted on drug counts; he moved for a new trial alleging prosecutorial interference with his Sixth Amendment right to present witnesses.
- The district court held hearings, found Morehead’s comments went beyond a proper perjury warning, concluded the conduct was in bad faith and caused prejudice (Ruiz‑Salazar would have testified), granted a new trial, vacated convictions, and dismissed the indictment with prejudice.
- The government appealed; the Tenth Circuit affirmed the finding of a Sixth Amendment violation but reversed the dismissal with prejudice, remanding for the district court to allow retrial and to tailor remedies.
Issues
| Issue | Plaintiff's Argument (Orozco) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Whether AUSA Morehead’s contact unlawfully interfered with defendant’s Sixth Amendment right to present a witness | Morehead’s statements intimidated Ruiz‑Salazar and caused him to refuse to testify, violating Orozco’s right to present a defense | The government disputed characterization and contended any warning was a routine perjury admonition and not coercive | Court: No clear error in district court’s finding that the prosecutor’s conduct violated Orozco’s Sixth Amendment right |
| Appropriate remedy for the constitutional violation: new trial vs. dismissal with prejudice | Dismissal with prejudice was necessary because Ruiz‑Salazar still faced consequences in his WDMO case and later was convicted, so harm could not be remedied by retrial | Government argued dismissal was an abuse of discretion and that less drastic, tailored remedies (e.g., delay, limiting impeachment) would suffice | Court: Dismissal with prejudice was an abuse of discretion; remanded for retrial and for district court to craft narrower remedies to cure the violation |
Key Cases Cited
- United States v. Orozco, 291 F. Supp. 3d 1267 (D. Kan. 2017) (district court opinion detailing findings of prosecutorial misconduct and dismissal)
- United States v. Morrison, 449 U.S. 361 (1981) (remedies for Sixth Amendment violations must be tailored and respect society's interest in administration of justice)
- United States v. Apodaca, 820 F.2d 348 (10th Cir. 1987) (dismissal of an indictment is an extraordinary remedy reserved for serious prosecutorial misconduct)
- United States v. Pino, 708 F.2d 523 (10th Cir. 1983) (discussing dismissal of indictments for prosecutorial misconduct)
- United States v. Gonzales, 164 F.3d 1285 (10th Cir. 1999) (abuse of discretion to impose most severe sanction without considering narrower alternatives)
- United States v. Duong, 848 F.3d 928 (10th Cir. 2017) (standard of review for dismissal of indictment)
- United States v. Walker, 930 F.2d 789 (10th Cir. 1991) (testimony that is collateral/excludable may limit prejudice from omission)