571 F. App'x 724
10th Cir.2014Background
- Pablo was convicted by jury of aggravated sexual abuse of a minor, kidnapping, assault, and carjacking.
- On remand, the district court denied a motion for a new trial based on allegedly newly-discovered medical evidence and Brady violations.
- Appointed counsel filed an Anders brief and moved to withdraw, asserting no nonfrivolous issues on appeal.
- This court conducted an Anders review and agreed the appeal had no nonfrivolous issues.
- The court concluded the asserted fourchette-tears evidence was not newly-discovered and any Brady issue was unavailing, and it dismissed the appeal with withdrawal of counsel.
- The prior convictions and trial record underpin the court’s decision to uphold the convictions and deny relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the fourchette-tears evidence was newly discovered | Pablo argues the SAER/doctor notes were newly discovered | Government contends evidence was not newly discovered; earlier notice to defense | No; not newly discovered evidence |
| Whether there was a Brady violation | Suppressed favorable evidence prejudiced Pablo | Notes were provided to defense before trial | No Brady violation |
| Whether defense waived or forfeited objections and whether cross-examination cured error | Defense failed to timely object or request continuance | No improper objection; cross-examination cured any issue | Waiver/forfeiture and cure; no error warranting new trial |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (duty to appoint counsel when frivolous appeal is filed; withdrawal permitted)
- United States v. Hill, 737 F.3d 683 (10th Cir. 2013) (test for newly-discovered evidence in a new-trial motion)
- Pablo II, 696 F.3d 1280 (10th Cir. 2012) (affirmed convictions on remand after Williams v. Illinois ruling)
- Pablo I, 625 F.3d 1285 (10th Cir. 2010) (initial affirmance of convictions)
- United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012) (definitions of waived vs forfeited claims)
- Reese v. United States, 745 F.3d 1075 (10th Cir. 2014) (Brady material must be favorable, suppressed, and material)