Ray Valas Petition Filed 08/17/17

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ) ) RAYMOND R. VALAS, III ) Defendant-Petitioner, ) Civil Case No: ) Criminal Case No.: 5:13-CR-00806-FB v. ) ) District Court: Biery, JF. UNITED STATES OF AMERICA ) Plaintiff-Respondent ) ) ) PETITIONER RAYMOND VALAS'S MOTION FOR NEW TRIAL PURSUANT TO RULE 33 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE AND PETITION PURSUANT TO 28 US.C. § 2255 Warren Alan Wolf Craig M. Cooley LAW OFFICE OF WARRAN ALAN WOLF COOLEY LAW OFFICE 115 Travis, Ste. 746 1308 Plumdale Court San Antonio, TX 78205 Pittsburgh, PA 15239 Tel: (210) 225-0055 Tel: (919) 228-6333 Wwolf711@aol.com craig:m.cooley@gmail.com Pro Hac Vice Motion Pending S. Amy Spencer SHAHEEN & GORDON, PA 107 Storrs Street P.O. Box 2703 Concord, NH 03302-2703 Tel: (603) 225-7262 saspencer@shaheengordon.com Pro Hac Vice Motion Pending Attorneys for Defendant, Raymond R. Valas, ITTTABLE OF CONTENTS I PROCEDURAL HISTORY... Il INTRODUCTION... lL STATEMENT OF FACTS... A. The Investigation and Pre-Trial Discovery. 1. __ Phone Records Clearly Established that T.J. Was Texting and Talking with Third Parties During the Moments She Claimed to Be Having Sex with Mr. Valas: Trial Counsel Was Ineffective in His Use of These Records.. 4 2. _T.J.’s Journal: Trial Counsel Was Ineffective in Failing to Cross-Examine ‘TJ. on When the Joumal Was Created, Why It Was Created, and at Whose Instruction. Furthermore, Mr. Valas Is Not of Mexican Descent. All of this Was Ignored by Trial Counsel.21 3. Additional Call and Text Records... 28 4. Trial Counsel Refused to Follow Mr. Valas’s Instruction that the Theory of the Defense Be a Singular One: There Was No Sex.. 232, 5. Trial Counsel Failed to Contact and Interview Proposed Defense Witnesses Who Corroborated Mr. Valas’s Defense and Otherwise Failed to Prepare a Constitutionally Adequate Defense. 34 B. Trial. 1. Opening Statements. 2. T.J.’s Direct-Examination.... 3. T.J.’s Cross-Examination.. 4. Defense Case... a. Mr. Valas’s testimony. b. _Alibi witness for the August 26th alleged sexual encounter... ©. ‘Witnesses who confirmed Mr. Valas’ research... d. Witnesses who called T.J.’s reputation into question. .5. Charge Conference, Jury Charge, and Closing Arguments. 59 C. Direct Appeal and Post-Conviction Investigation .. IV. LEGAL ARGUMENT.. 64 A. Mr. Valas Is Entitled to a New Trial Based on the Newly Discovered Statement of Amber Doak Pursuant to Rule 33 of the Federal Rules of Criminal Procedure. .. 64 1. Mr. Valas’s Post-Conviction Investigation Revealed New Evidence Unknown and Unavailable to Him Prior to Trial. 2. Mr. Valas Is Entitled to a New Trial Under Rule 33... B. Trial and Appellate Counsel Provided Ineffective Assistance of Counsel Prejudicial to Mr. Valas’s Defense and Direct Appeal... 72 C. Trial Counsel’s Failure to Cross-examine TJ. and SA Gutierrez Regarding the Structure and Substance of T.J.’s “Journal” or Walk Through the Timeline of T.J.’s Alleged Encounters with Mr. Valas Using Her Phone Records Constituted Ineffective Assistance of ‘Counsel that Prejudiced Mr. Valas. oe 215 1, Trial Counsel Failed Use Information in His File Pretrial to Impeach T.J. and SA Gutierrez... 75 2, T..'s Jounal Contained Internal and External Peculiarities and Inconsistencies. 8 a, The contents, structure, and timing of disclosure of the joumal gave rise to pre-trial investigation obligations on the part of trial counsel... - 8 b. Trial counsel failed to use the joumnal effectively to cross examine TJ. and SA Gutierrez... 82 3. ‘The Text Message and Call Records from T.J.’s Work and Play Phones Undermine the Narrative in Her Journal and Testimony Regarding Her Encounters with Mr. Valas. 87 a. T.J.’s testimony is undermined by the records as to both the August 26th date and the August 27/28th date .... +88 i. August 26" Records.. ii, August 27th and August 28" Records. ii4, Trial Counsel's Failure to Adequately Cross Examine T.J. and SA Gutierrez Prejudiced Mr. Valas Such that He Is Entitled to a New Trial. 04 D. Trial Counsel’s Implicit Admission of Guilt in His Inconsistent Defense Theory that Mr. Valas Had Sex with TJ. Believing that She Was over the Age of 18 Constituted Ineffective Assistance of Counsel that Prejudiced Mr. Valas... 105 E, Trial Counsel’s Failure to Object to AUSA Barr’s and AUSA Richardson’s in Several Respects Constituted Ineffective Assistance of Counsel that 108 1, AUSA Barr’s Improper Closing Argument Prejudiced Mr. Valas Such that He Is Entitled to a New Trial. 108 2. AUSA Richardson’s Improper Arguments Prejudiced Mr. Valas Such that He Is Entitled to a New Trial. lll F, __ Trial Counsel’s Failure to Move for a Continuance Prior to Trial Even Though He Knew that He Was Unprepared to Proceed Constituted Ineffective Assistance of Counsel Prejudicial to Mr. Valas’s Defense... 3 G. Trial Counsel's Failure to Pursue Mr. Valas’s Preferred Theory of Defense—that He Met with TJ. to Interview Her for a Future Publication Rather than to Have Sex with Her— by Investigating and Presenting Critical Witnesses with Personal Knowledge of Mr. Valas’s Research Constituted Ineffective Assistance of Counsel that Prejudiced Mr. Valas.... 116 1, Mr. Valas Has Always Maintained His Innocence and Provided Trial Counsel with a List of Relevant Witnesses Pretrial... 116 2. Trial Counsel Failed to Contact, Interview, or Present Mr. Valas’s Supervising Professor, Issac Kfir. 116 3. Other Research Witnesses Trial Counsel Failed to Contact or Properly Subpoena Prejudicing Mr. Valas’s Defense... 118 4. Trial Counsel's Failures to Contact, Interview, and/or Properly Present Professor Kfir, Agent Edmunds, and Other Law Enforcement Witnesses Prejudiced Mr. Valas’s Defense. wel 21 H. Appellate Counsel Failed to Raise the Meritorious Issue, Raised and Preserved by Trial Counsel, that the Trial Court Erred When It Refused to Provide a Modified Unanimity Instruction. . 122 1. The Government Created a Duplicity Issue When It Introduced Evidence iiiof Two Encounters Between Mr. Valas and TJ. in an Effort to Convict Him on a Single Count Indictment. 122 2. A Duplicitous Indictment Is Unconstitutional When It Risks a Nonunanimous Verdict... 31 a. An indictment is unconstitutionally duplicitous like in this case when the government must prove dissimilar facts to prove each incident charged... os 132 b. _A specific unanimity instruction is required when there is genuine risk of juror confusion like in this case.. 134 3. Mr. Valas Was Prejudiced by Appellate Counsel’s Failure to Challenge the District Court’s Denial of Trial Counsel’s Properly Preserved Request for a Specific Unanimity Instruction on Direct Appeal... “135 1. The Government Violated Its Statutory and Constitutional Discovery Obligations When it Failed to Disclose All the Reports Summarizing the Interviews T.J. Had With the Government and it Agents.. 138 1. Mr. Valas Has Reason to Believe that the Government Has Violated Its Obligations under Brady in this Case.. 138 2. Mr. Valas Has Satisfied the Necessary Showing Under Brady in this Case. ese 140 a. The evidence withheld by the government is favorable to Mr. Valas. . 142 ». The Government suppressed the statements TJ. made to it after she had disclosed her joumal, and her statements were material. 144 J The Cumulative Prejudice from Trial Counsel’s Multiple Errors and the Government's Pervasive Misconduct Rendered Mr. Valas’s Trial Fundamentally Unfair Requiring Reversal of Mr, Valas’s Conviction.. .. 145 1, Errors, Even When Not Individually Prejudicial, Can Nonetheless Prejudice a Defendant’s Case When Considered Cumulatively.. 145 2. Cumulative Errors Prejudiced Mr. Valas in this Case. 146 V. MR. VALAS IS ENTITLED TO AN EVIDENTIARY HEARING IN THIS CASE..147 VI. MR. VALAS RESERVES THE RIGHT TO AMEND HIS PETITION... 148. ivVII. CONCLUSION.1, Pursuant to Rule 33 of the Federal Rules of Criminal Procedure and 28 U.S.C. § 2255, Defendant-Petitioner, Raymond Valas, by and through his attomeys, respectfully files this Motion for New Trial and § 2255 Petition, which is presented in good faith and based on the following facts and points of authority. 1. PROCEDURAL HISTORY 2. On May 7, 2014, the Government filed a superseding indictment charging Ray Valas with one count of knowingly recruiting, harboring, and having sexual relations with T.J., a female under the age of 18 years, in violation of 18 U.S.C. §§ 1591(a) and 1591(b)(2).! The indictment alleged Mr. Valas recruited, harbored, and had sexual relations with T.J. on or about only one day: August 26, 2013. The indictment also charged Marcus Wright, Malcolm Copeland, and Amber Doak with child sex trafficking and child pornography. 3. On May 18, 2014, federal authorities arrested Mr. Valas. 4, Mr. Valas retained John Convery who entered his appearance on May 30, 2014, 5. Mr. Valas's, Marcus Wright's, Amber Doak’s, and Malcolm Copeland’s cases were assigned to the Honorable Fred Biery. 6. Mr. Valas pled not guilty and elected a jury trial, which began on November 17, 2014. Assistant U.S. Attomeys Bettina J. Richardson and Geoffrey I. Barr prosecuted Mr. Valas. The jury found Mr. Valas guilty of one count of 18 U.S.C. § 1591 on November 21,2014, 7. On February 27, 2015, the Court sentenced Mr. Valas to 15 years in prison. 8. On March 11, 2015, the Court entered judgment. 9. On March 24, 2015, Mr. Valas appealed. Phillip Lynch and John Convery represented him con appeal. "Ex. 1.10. On May 20, 2016 the Court of Appeals affirmed.” 11, Mr. Valas did not seek review from the Supreme Court, making his conviction final on August 18, 2016. 12. This petition was timely filed on August 16, 2017. tL INTRODUCTION 13. Mr. Valas’s conviction is based on two fundamental constitutional violations: prosecutorial misconduct and trial and appellate counsel's ineffectiveness. 14. In terms of prosecutorial misconduct, the Government withheld interview reports and notes from meetings with TJ. between February 10, 2014 and November 17, 2014 during which time she altered her story. At first she reported that she met with Mr. Valas only once on August, 26, 2013. Her story then substantively changed. She then reported that she met Mr. Valas twice, once on August 26, 2013 and once either in the night or early morning on August 27 or 28, 2013, During this delayed period of disclosure, she made other statements exculpatory to Mr. Valas regarding her use of two cell phones to talk and text out while she claimed to have been engaged in sexual conduct with him. Finally, during closing arguments, the Government also repeatedly improperly vouched for the veracity of TJ. Il. STATEMENT OF FACTS A. The Investigation and Pre-Trial Discovery 15. On August 19, 2013, TJ., a 15-year-old, ran away from home. On August 28, 2013, San Antonio police officers (“SAPD”) detained J. and another juvenile at a hotel in San Antonio. TJ. had been reported as a missing person and had outstanding juvenile warrants for her arrest for probation violations. T.J. told the SAPD that a pimp named Marcus Wright had held her 2 Bx. 2.against her will, raped her, beat her, and prostituted her for the last week. T.J. also accused ‘Malcolm Copeland and Amber Doak of assisting Wright by training her how to prostitute and scheduling and facilitating sessions with paying customers. 16. On August 29, 2013, Edward Russell, a SANE nurse, interviewed and examined T.J., * who said she had “slept” with seven to eight men during the “ten days” she had prostituted for Wright. She also said the last time she had sex with a paying client was Tuesday, August 27th between 11:00 p.m. and midnight. peidme, We tron my money Apgtorsmedely 10 dey 5 ago, Ts thar uhm fon | Yet up witty hin? “Yes. © How many of Ht Ohon guys hud Sex withyoul?” “tor rememiper, Seven of Ci6KK” Cohan oy he laat Hme Someone MiL| — DEE WS you?" “Tesdey (8-27-15) lode, Vike 00 ert200," Wes Hede Oye Paying guys 2" UR heh (yes)’ Wheks Marcy race? Africa. |s f 17. T.J. also told Russell that the SAPD took her phone, that the phone had the numbers of all the paying clients she had met and had sex with, and that she had sex with one guy twice: atiemers fe do things. He bits a. hts Scary." Amy tring ese you Wine! Teshovrd Yrow? “Tre Police hove wy Gnome. Ski hee He numbels Oven Anse SuyS inte ghone.” Ary of Hwse guys haw sa with Now more nag once”. “Oye guy fwiee” 6 18. On August 29, 2013, SAPD Task Force Officer (“IFO”) Peter Sweeney interviewed T.J. at the Bexar County Juvenile Detention Center. During the interview, T.J. said she did “one outcall to the Hilton by the airport, room 420.” because COPELAND told her that she would not know what to say. JOHNSON remembers doing one out-call to the Hilton by the airport, room 420. All,19, Sweeney recorded T.’s interview. The recording reveals Sweeney did not ask for additional information regarding the Hilton “out-call.” 20. When the SAPD detained TJ,, it seized two cell phones from her. TJ. said Wright had given her both phones. She described one cell phone as the “work” phone, i.e., the phone she had used to communicate with potential paying customers. The number for the “work” phone was 254-368-7129. T.J. described the second phone as the “play” phone, i.e., the phone she had ‘used to communicate with friends. The number for the “play” phone was 830-281-0117." 21. The Federal Bureau of Investigation (“FBI”) intervened and spearheaded the investigation. The Government's discovery established that between August 2013 and October 2013, the FBI interviewed TJ. on three separate dates: September 10, 2013,” September 12, 2013," and October 13, 2013." During these interviews, T.J. never once mentioned Ray Valas or the Hilton outcall mentioned in TFO Sweeney's report. Also, according to the reports, the FBI never went through T-J.’s phones with her or asked her to identify the phone numbers of the ‘men who had paid to have sex with her. 1. Phone Records Clearly Established that T.J. Was Texting and Talking with ‘Third Parties During the Moments She Claimed to Be Having Sex with Mr. Valas: Trial Counsel Was Ineffective in His Use of These Records. 22. TJ.’s credibility was the critical issue at trial. 23. As set forth below, over the course of six months, the Government in a drip-like fashion released various Phone Examination Reports and records of all calls and text messages to and from TJ.’s work and play phones. These reports were critical to the defense, as theydemonstrated what T.J. was doing during the specific times she claimed to be having sex with Mr. Valas. The records, when closely reviewed, convincingly demonstrated that TJ. was texting out and talking at the precise times she claimed to be having sex with Mr. Valas in a variety of positions. This evidence was mostly ignored by trial counsel and not used during cross examination of T.J. 24, On September 9, 2013, the Government received the Phone Examination Report that detailed all text_messages sent to and from T.J.’s work phone (254-368-7129). The Government did not disclose this report to trial counsel until June 26, 2014.'? The report identified the following text messages between Mr. Valas and T.J. on August 26, 2013 and August 27, 2013: Texts Message Between T.J.’s Work Phone and Mr. Valas’ ‘Government-Issued Black Berry August 26th and 27th DateandTime | Originating | Dialed Number | Text Message ‘Number 8/26/13 (4:27 | 603-568-9883 254-368-7129 “(text from pm) Mr. Valas to T.J. work phone) 8/26/13 (4:57 | 254-368-7129 603-568-9883 “Yes” (text from pm) T.J. work phone to Mr. Valas) B63 (4:58 | 603-568-9883 254-368-7129 |" (text from pm) Mr. Valas to TJ. work phone) 82613 (4:59 | 254-368-7129 | 603-568-9883 | “Yea” (text from pm) J. work phone to Mr. Valas) 826713 (8:55 | 254-368-7129 | 603-568-9883 | “Are you in a pm) house” (text from T.J. work phone to Mr. Valas) 8/26/13 (8:55 | 603-568-9883 (254-368-7129 “7 (text from pm) Mr. Valas to T.J. PEx.6. "9 Ex. 24, There is no explanation for this 9 month delay. 5‘work phone) S263 (8:56 | 254-368-7129 | 603-568-9883 |“Whats your pm) room — number” (text from TJ. work phone to Mr. Valas) 82613 (8:57 | 603-568-9883 | 254-368-7129 |?” (text from pm) Mr. Valas to T.J. work phone) BAM 3:02 | 603-568-9883 | 254-368-7129 | “Are you pm) available at 5:30 today?” (text, from Mr. Valas to TJ. work phone) S273 G:19 | 254-368-7129 | 603-568-9883 | “Yes” (ext from pm) TJ. work phone to Mr. Valas) 82713 (5:51 | 603-568-9883 | 254-368-7129 “Hi are you pm) around tonight?” (text fom) Mr. Valas to TA. ‘work phone) 82713 (6:12 [254-368-7129 | 603-568-9883 __|“Yes I am hun” pm) (text from TJ. work phone to Mr. Valas”) 25. According to the discovery the Government provided trial counsel, there are no “statements” from or audio recordings of T.J. indicating she had communicated or met with Mr. Valas any time before August 26, 2013 or after August 28, 2013. 26. The Phone Examination Report also showed that T.J.’s work phone sent the following text messages to people other than Mr. Valas between 9:00 p.m. and 10:45 p.m. on August 26, 2013:"4 ‘Text Messages from T.J.’s Work Phone to Other People August 26th — 9:00 p.m. to 10:45 p.m. Dateand Time | Originating [ Number Text ContentNumber 82613 O:16 | 603-568-9883 | 858-232-1264 | “Around 1030 pm) boo” (text from T.J. work phone to unknown) 8/26/13 (9:24 | 254-368-7129 858-232-1264 “200 a br 150 pm) half hr 120 for 15 mins” (text from T.. work phone unknown) 8/26/13, (9:25 | 254-368-7129 210-883-7829 “What do you pm) mean” (text from T.J. work phone to unknown) 82613 (9:27 | 254-368-7129 | 210-883-7829 | “How much” pm) (text fiom TJ. work phone to unknown) BR6MS 0:28 | 254-368-7129 [210-883-7829 -~["120 is the pm) lowest I do” (text from TJ. work phone to unknown) 8/26/13 (9:30 | 254-368-7129 858-232-1264 “That's my pm) donation how long you want” (text from TJ. work phone to unknown) 8/26/13 (9:34 | 254-368-7129 858-232-1264 “Yes” (text from pm) TJ. work phone to unknown) 8/26/13 (9:38 | 254-368-7129 | 858-232-1264 |“Anywhere but pm) those 2” (text from T.J. work phone to unknown) 27. On September 9, 2013, the Government also received the Phone Examination Report regarding all text messages sent to and from T.J.”s play phone (830-281-0117) that she had notdeleted.'® ‘The Government did not disclose this report to trial counsel until August 27, 2014.!¢ ‘The report identified countless text messages sent from T.J.’s play phone to people other than Mr. Valas, between 8:52 p.m. and 9:52 p.m. on August 26, 2013.'7 Text Messages from T.J.’ Play Phone to Other People ‘Number Texted Content 8/26/13 (8:52 pm) | 830-281-0117 | 210-209-0350 | “I Love You My Everything” (text from TJ. play phone to boyfriend) B2EMS (8:54 pm) | 830-281-0117 [210-717-0313 | “611 northwest loop 410 hilton” (text from TJ. play phone to Malcolm Copeland) 8/26/13 (8:54 pm) | 830-281-0117 | 210-717-0313 | “hotel” (lext from TJ. play phone to Malcolm Copeland) 8/26/13 (8:54 pm) | 830-281-0117 | 832-332-3530 __ | “Bout to Eat, Did You Get The Pic” (text from T.J. play phone to Treyveon Rhonne) 8/2613 (8:57 pm) | 830-281-0117 | 210-209-0350 | “I Want This Forevermore” (text from TI. play phone to boyfriend) 8/26/13 (9:01 pm) | 830-281-0117 | 210-209-0350 | “Babe I Wanna Have Kids” (text from TJ. play phone to boyfriend) 'S Bx. 11, pp. 36-38. '© px. 24, There is no explanation for this 11 month delay. "TEx. 11, pp. 36-38.8/26/13 (0:02 pm) 830-281-0117 210-606-2959 “People” (text from TJ. play phone to unknown) 8/26/13 (9:02 pm) 830-281-0117 210-209-0350 “Later On Babe Loll” (text from T.J. play phone to boyfriend) 8/26/13 (9:04 pm) 830-281-0117 210-606-2959 “Na you a Bullshitter Boo IM Not Bout To Get My Hopes Up for Nun Sorry” (text from T.J. play phone to unknown) 8/26/13 (9:06 pm) 830-281-0017 210-606-2959 “I Don’t Believe You Sorry” (text, from TJ. play phone to unknown) 8/26/13 (9:06 pm) 830-281-0017 210-209-0350 “Okay :) And Kall Me Back Faget” (text from TJ. play phone to boyfriend) 8/26/13 (9:07 pm) ‘830-281-0017 210-209-0350 “Kall Babe” (text from TJ. play phone to boyfriend) 8726/13 @:16 pm) 830-281-0017 210-409-6433, “Heeyy, My Bad I was Doin Sum” (text TJ. play phone to Brenda Dobbins 8/26/13 (9:51 pm) | 830-281-0017 _| 832-332-3530 | “Thanks” (text from TJ. play phone to Treyvonne Rhone) 8/26/13 (9:52 pm) | 830-281-0017 | 210-409-6433 | “Loll I Try” (text from TJ. play phone to Brenna | Dobbins)28. The report also identified countless text messages sent from T.J.’s play phone to people other than Mr. Valas between 10:00 p.m. on August 27, 2013 and 1:37 a.m, on August 28, 2013." ‘Text Messages from T.J.’ Play Phone to Other People 10:00 p.m. (August 27th) to 1:37 a.m. (August 28th) Date and Time Number Texted | Content r 8/2713 (9:59 pm) | 830-281-0117 | 210-620-9483 | “When Chris Get Off” (text from TJ. play phone to LaDerrick Smith) 8/27/13 (10:00 | 830-281-0117 _| 210-620-9483 | “Ugh” (text from pm) T.J. play phone to LaDerrick Smith) 82713 (10:02 | 830-281-0117 | 210-620-9483 __| “Im Ready Like pm) Frit (text from T.J. play phone to LaDerrick Smith) 8/27/13 (10:03 | 830-281-0117 | 210-514-2712 | “She Said Yeah” pm) (text from TJ. play phone to unknown) 8/2713 (10:05 | 830-281-0117 | 210-461-1266 | “I Think My Life pm) Is Over, Im Done Living” (text from T.J. play phone to unknown) 8273 (10:06 | 830-281-0117 | 210-620-9438 | “Ight” (text from pm) T.. play phone to unknown) 8/2713 (10:06 | 830-281-0117 | 210-209-0350 | “I Couldn't Here pm) Nothing” (text from TJ. play phone to boyfriend) 8273 (10:10 | 830-281-0117 | 210-209-0350 |“ Call Yu ym) Back” (text from "8 Id, pp. 86-97. 10TJ. play phone to boyfriend) 8273 (10:23 | 830-281-0117 | 256-914-9127 | “Crying” (text pm) from TJ. play phone to Nunn Shaquille) 82713 (10:24 | 830-281-0017 _| 210-439-5841 | “No” (text from pm) T.J. play. phone to Brandon Smith) 8/27/13 (10:24 | 830-281-0017 | 210-763-9074 _| “Ight” (text from pm) TJ. play phone to unknown) 82713 (10:26 | 830-281-0017 | 210-461-1266 “Ima Call Yu" pm) (text from T.J. play phone to unknown) 8273 (10:26 | 830-281-0017 | 210-514-2712 | “Ok” (text from pm) TJ. play phone to unknown) 8713 (10:37 | 830-281-0017 [210-439-5841 | 1t" (text from pm) TJ. play phone to Brandon Smith) 82713 (10:40 | 830-281-0017 | 210-439-5841 “I Was Flicking pm) ‘You Office” (text from T.J. play phone to Brandon Smith) 8/27/13 (10:44 | 830-281-0017 210-209-0350 “Babe” (text pm) from TJ. play phone to boyfriend) 8/27/13 (10:44 | 830-281-0017 210-209-0350 “Wya” (text from pm) T.. play phone to boyfriend) 8/27/13 (10:46 | 830-281-0017 210-209-0350 “So What We pm) Gone Do Tonight” (text from TJ. play phone to boyfriend) 827713 (10:46 | 830-281-0017 | 210-209-0350 |“Wyd” (text pm) from TJ. play phone to boyfriend) W8273 (10:46 ] 830-281-0017 | 210-209-0350 | “OW” (text from pm) TJ. play phone to boyfriend) 8/27/13 (10:48 | 830-281-0017 210-209-0350 “Im Trying” (text pm) from TJ. play phone to boyfriend) 82713 (10:49 | 830-281-0017 | 210-763-9074 | “Bookiiee Im pm) Doing Something My love, Yu Comin witt Me Tonight fifi right?” (text from TJ. play phone to unknown) 8/2713 (10:51 | 830-281-0017 | 210-209-0350 |“Yeah Friday pm) need to hurry up” (text from T.J. play phone to boyfriend) 82713 (10:54 | 830-281-0017 | 210-209-0350 | “IKnoo” (text pm) from T.J. play phone to boyfriend) 8273 (10:54 | 830-281-0117 | 256-914-9127 | “Long Story” pm) (text from TJ. play phone to ‘Nunn Shaquille) 8/27/13 (10:54 | 830-281-0017 210-439-5841 “T Do” (text from pm) T.J. play phone to Brandon Smith) 82713 (10:56 | 830-281-0117 | 256-914-9127 | “Yeah” (text pm) from TJ. play phone to Nunn Shaquille) 8/273 (11-08 | 830-281-0017 | 210-209-0350 |“Awww Baby” pm) (text from TJ. play phone to boyfriend) 82713 (11:09 | 830-281-0017 | 210-620-9438 | “Oshawnda Said pm) She Coming” (text from TJ. play phone to LaDerrick 12Smith) 2713, pm) (1:10 830-281-0017 210-620-9438 “ight” (lext from T.J. play phone to LaDerrick Smith) 273 pm) (1:09 830-281-0017 210-620-9438 “The One We Went Too And She Didn't Come I talked to her” (text from TJ. play phone to LaDerrick Smith) 8/27/13 pm) nz 830-281-0017 210-620-9438 “Yeaa” (text from TJ. play phone to LaDerrick Smith) BATS pm) 3 830-281-0017 210-620-9438 “Yea Want Me To put Her On 3Way” (text from TJ. play phone to LaDerrick Smith) Gus 830-281-0017 210-763-9074 “What Happen” (text from TJ. play phone to unknown) nis 830-281-0017 210-620-9438 “What Happen” (text from TJ. play phone to LaDerrick Smith) (1:18 830-281-0117 256-914-9127 “Kinda” (text from TJ. play phone to Nunn Shaquille) 2713 pm) no 830-281-0017 210-439-5841 “Lol” (text from TJ. play phone to Brandon Smith) B73 pm) as 830-281-0017 210-309-6568 “Heyy” (text from TJ. play phone to Damareon) 138/27/13 (11:20 | 830-281-0017 | 210-620-9438 “Wyd” (text pm) from TJ. play phone to LaDerrick Smith) 8/27/13 (11:20 | 830-281-0117 | 256-914-9127 “No” (text from pm) TJ. play phone to ‘Nunn Shaquille) 8/28/13 (12:15 | 830-281-0117 | 210-620-9483 “Juss Finish am) Hiting This Lick Omw Back to Hotel” (text from T.J. play phone to LaDerrick Smith) 8/28/13 (12:16 | 830-281-0117 | 229-288-9650 | “Heeyy” (text am) from T.J. play phone to Jordan Moore) 8/28/13 (12:32 | 830-281-0117 | 210-620-9483 “Wya” (text from am) TJ. play phone to LaDerrick Smith) 8/28/13 (12:55 | 830-281-0017 210-209-0350 “Yes My Love” am) (text from TJ. play phone to boyfriend) 8/28/13 (12:56 | 830-281-0117 256-914-9127 “Ridin “Why” am) (text from TJ. play phone to Nunn Shaquille) _| 8/28/13 (12:56 | 830-281-0117 229-288-9650 “Yu in Texas? am) (text from TJ. play phone to Jordan Moore) 8/28/13 (12:57 | 830-281-0117 256-914-9127 “Can I Come” am) (text from TJ. play phone to ‘Nunn Shaquille) 8/28/13 (1:22 am) | 830-281-0117 256-914-9127 “Later” (text from TJ. play phone to Nunn Shaquille) 8/28/13 (1:23 am) | 830-281-0117 | 210-439-5841 “Riding” — (text from T.J._play 14phone to Brandon Smith) 8/28/13 (1:23 am) 830-281-0117 256-914-9127 “Cause Im Busy” (text from TL. play phone to ‘Nunn Shaquille) 8/28/13 (1:23 am) 830-281-0117 210-439-5841 “Around” (text from T.J. play phone to Brandon Smith) 8/28/13 (1:23 am) 830-281-0117 256-914-9127 “Riding” (text from TJ. play phone to Nunn Shaquille) 8/28/13 (1:24 am) 830-281-0117 210-454-1957 “Way Booklies™ (text from TJ. play phone to unknown) 8/28/13 (1:25 am) 830-281-0117 256-914-9127 “Juss Around” (text from TJ. play phone to ‘Nunn Shaquille) 8/28/13 (1:25 am) 830-281-0117 210-454-1957 “Wyd Over There” (text from TJ. play phone ‘to unknown) 8/28/13 (1:25 am) 830-281-0117 256-914-9127 “My Sis” (ext from TJ. play phone to Nunn Shaquille) 8/28/13 (1:26 am) 830-281-0117 210-454-1957 “Like? Then Were Yu Goin” (text from TJ. play phone to unknown) 8/28/13 (1:26 am) 830-281-0117 210-439-5841 “Yea” (text from TJ. play phone to Brandon Smith) 8/28/13 (1:26 am) 830-281-0117 256-914-9127 “Yeaa” (text from TJ. play phone to Nunn Shaquille) 8/28/13 (1:27 am) 830-281-0117 210-454-1957 “At My Siss House Yu gone Pick Us Up” 15(ext fom TT. play phone to unknown) 8/28/13 (1:27 am) 830-281-0117 256-914-9127 “Awwweee” (text from TJ. play phone to Nunn Shaquille) 8/28/13 (1:28 am) 830-281-0117 210-439-5841 “Fri” (text from T.I. play phone to Brandon Smith) 8/28/13 (1:28 am) 830-281-0117 210-454-1957 “[Am” (ext from TJ. play phone to unknown) 8/28/13 (1:28 am) 830-281-0117 256-914-9127 “Yu Are Too” (text from TL. play phone to Nunn Shaquille) 8/28/13 (1:30 am) 830-281-0117 210-454-1957 “Whatever” (text from TJ. play phone to unknown) 8/28/13 (1:30 am) 830-281-0117 256-914-9127 “Welcome” (text from TJ. play phone to Nunn Shaquille) 8/28/13 (1:30 am) 830-281-0117 210-439-5841 “Awwwwweee” (text from TJ. play phone to Brandon Smith) 8/28/13 (1:31 am) 830-281-0117 210-454-1957 “Lol So Wassup” (text from TJ. play phone to unknown) 8/28/13 (1:31 am) 830-281-0117 256-914-9127 “Hell No” (text from T.J. play phone to Nunn Shaquille) 8/28/13 (1:31 am) 830-281-0117 210-439-5841 “Yeaaa” (text from T.J. play phone to Brandon Smith) 8/28/13 (1:35 am) 830-281-0117 210-454-1957 “Like” (text from T.J. play phone to unknown) 168/28/13 (1:35 am) | 830-281-0117 | 210-454-1957 | “How Does A Hr Sound Bae?” (lext from TJ. play phone to unknown) 8/28/13 (1:37 am) | 830-281-0117 | 210-454-1957 | “IGotchu” (text from TJ. play phone to unknown) 29. On September 9, 2013, the Government also received the Phone Examination Report for T.J.’s play phone detailing all calls to and from the play phone."? The Government did not disclose this report to trial counsel until November 11, 2014, less than a week before trial.” The report indicates TJ. made numerous calls from her play phone to people other than Mr. Valas between 8:00 p.m. and 11:56 p.m. on August 26, 2013.7" Calls from T.J.’s Play Phone to People other than Mr. Valas August 26th — 8:00 p.m. and 11:00 p.m. Dateand Time | Originating | Number Duration Number 26/13 (8:11 pm) | 830-281-0017 | 210-209-0350 | 31 mins 4 secs (call from TJ. play phone to boyfriend) 8/26/13 (9:52 pm) | 830-281-0017 | 210-209-0350 | 35 mins 4 secs seconds (call from TJ. play phone to boyfriend) 82613 (10:39 | 830-281-0017 | 210-209-0350 [2 seconds (call pm) from TJ. play phone to boyfriend) 8/26/13 (10:39 | 830-281-0017 | 210-209-0350 [2 seconds (call pm) from TJ. play phone to ° Ex.7. 2° Bx. 24. There is no explanation for this 14 month delay or why the report was not turned over in May or June 2014. See Ex. 7. 7! Bx. 7, p. 24. 17boyfriend) 8/26/13 (10:40 | 830-281-0017 210-209-0350 2 seconds (call pm) from TJ. play phone to boyfriend) 8/26/13 (10:42 | 830-281-0017 210-371-2470 27 seconds (call pm) from TJ. play phone to unknown) 82613 (11:15 | 830-281-0017 | 210-620-9438 | 41 seconds (call pm) from TJ. play phone to LaDerrick Smith) 826/13 (11:56 | 830-281-0017 | 210-683-3639 [3 mins 30 secs pm) (call from TJ. play phone to Tarik Ross) 30. The report also indicates TJ. made several calls from her play phone to people other than ‘Mr. Valas between 10:40 p.m. on August 27, 201 and 12:30 a.m. on August 28, 2013.” Calls from T.J.’s Play Phone to Other People 10:40 p.m. (August 27th) to 12:30 a.m. (August 28th) Date and Time | Originating | Number Dialed [ Duration Number 82713 (10:49 | 830-281-0017 | 210-702-8376 | 6 seconds (call pm) from T.J. play phone to Rainbow Kidd) B23 (10:55 | 830-281-0017 | 210-461-1266 [1 second (call pm) from T.J. play phone to unknown) BAIS (10:58 | 830-281-0017 | 210-763-9074 [3 mins 52 secs pm) (call from TJ. play phone to uknown) 8/27/13 (11:02 | 830-281-0017 210-514-2712 1 min 20 secs pm) (call from TJ. play phone to unknown) 2 Id., pp. 19-20. 18S273 (114 | 830-281-0017 | 210-620-9438 | 50 seconds (call pm) from TJ. play phone to LaDertick Smith) 82713 (11:14 | 830-281-0017 _| 210-763-9074 | 42 seconds (call pm) from T.J. play phone to unknown) B/2713__ (11:16 | 830-281-0017 | 210-620-9438 | 3 seconds (call pm) from T.J. play phone to ‘LaDerrick Smith) 82713 (11:16 | 830-281-0017 | 210-620-9438 | 1 minute 14 secs pm) (all from TI. play phone to LaDerrick Smith) 82713 (11:17 | 830-281-0017 | 210-763-9074 [38 seconds (call pm) from T.J. play phone to unknown) S273 (11:18 | 830-281-0017 | 210-514-2712 | 29 seconds (call pm) from T.J. play phone to unknown) 8/2713 (11:27 | 830-281-0017 | 210-209-0350 | 11 seconds (call pm) from TJ. play phone to boyfriend) 82713 (11:27 | 830-281-0017 | 210-209-0350 | N/A (call from pm) TJ. play phone to boyftiend) 8273 (11:29 | 830-281-0017 | 210-763-9074 | 10 seconds (call pm) from TJ. play phone 0 unknown) 8273 (11:39 | 830-281-0017 [210-514-2712 | 13 seconds (call pm) from T.J. play phone to unknown) 8/28/13 (12:12 | 830-281-0017 | 210-717-0313 17 seconds (call am) from T.J. play phone to number associated _ with 19Marcus Wright) 31. Based on the discovery the Government provided trial counsel, FBI Special Agent (“SA”) Femando R. Gutierrez interviewed T.J. again on February 10, 2014.” TJ. mentioned and tersely described three of her paying clients. SA Gutierrez took contemporaneous notes, and he made these notes regarding the Hilton outcall: V Hj Moa by alroectt1 20 on 2] 26/20/28 Leone live 14 MESO $15 32. According to SA Guiterrez’s notes, TJ. told him she only met with the man from the Hilton once, on August 26, 2013. SA Guiterrez’s February 10, 2014 report, moreover, mentions no details regarding what exactly T.J. and the man from the Hilton allegedly did for 30 minutes for $150, what time the encounter/appointment occurred, and whether T.J. had sex with him inside his hotel room. This report also states there will be follow up interviews between the FBI and TJ. 33. On February 24, 2014, the FBI obtained records from the Hilton identifying Ray Valas as the occupant of Room 420 on August 26, 2013.27 On March 7, 2014, SA Gutierrez showed T.J. an 8-man photo array with Mr. Valas’s photograph.* After first seemingly identifying another individual, T.J. identified Mr. Valas as the paying customer from Room 420, SA Gutierrez’s report did not provide a detailed accounting of what allegedly occurred between T.J. and Mr. 2 Bx, 8. 7 Bx.12, 8 id. 6 Id. 77 Bx.13. Bx. 14, 20‘Valas on August 26, 2013. It also did not provide a detailed accounting of how SA Gutierrez presented the photo array and how TJ. ultimately came to identify Mr. Valas. Trial counsel raised no objection to T.J.’s identification of Mr. Valas in this photo array and failed to cross- examine her on this point at trial. 34, On March 12, 2014, Amber Doak pled guilty to one count of child sex traflicking.* 35. On May 7, 2014, the Government filed a one count superseding indictment charging Mr. ‘alas with knowingly recruiting, harboring, and having sexual relations with T.J., a female under 18, in violation of 18 U.S.C. §§ 1591(a) and 1591(b)(2). The indictment alleged Mr. Valas recruited, harbored, and had sexual relations with TJ. “on or about” August 26, 2013.7” 36. On May 18, 2014, Customs and Border agents arrested Mr. Valas in Alexander Bay, New York when he crossed the U.S.-Canadian border. SA Brian Tonkovich and SA Alix Skelton interviewed Mr. Valas, but refused to inform him of the underlying charges, prompting Mr. Valas to invoke his right to counsel. Tonkovich and Skelton seized Mr. Valas’ government issued Blackberry. The number for the Blackberry was 603-568-9883." 37. Mr. Valas retained John Convery, who entered his appearance on May 30, 2014. 2, TJ.’ Journal: Trial Counsel Was Ineffective in Failing to Cross-Examine T.J. on When the Journal Was Created, Why It Was Created, and at Whose Instruction. Furthermore, Mr. Valas Is Not of Mexican Descent. All of this Was Ignored by Trial Counsel. 38. On July 17, 2014, the Government disclosed a 52-page document to Maleolm Copeland’s trial attorney, John Economidy, and described the document as T.J.’s “joumnal.”*? There are 52 single pages in the journal, but because T.J. wrote on the front and back of each page, the o United States v. Amber Lynn Doak, No. i3-cr-00806-FB-3 (W.D. Tex.) (docket no. i02). Ex.1. 3 Bx. 15. ? Ex, 16, 21document, when printed and scanned, totals 107 pages.°? The journal has two parts. Pages 2 thru 15 represent PART 1, while pages 16 thru 106 represent PART 2. a. PART 1 allegedly chronicles T.J.’s time with Wright, Copeland, and Doak, and the Johns she had sex with between August 19, 2013 and August 27, 2016. The last John T.J. identified in PART 1 was “a guy” she had met on August 24th who “lived in [the] apartments by ‘Sea World.” TJ. described her encounter with the “Sea World” guy like this: [were just deciioas 1Qot one ovlcol | From a irae Douiin Hat Road From Wis Q Per dNegt ui a u 1nd de Anja + ‘ n 3 Bx. 5. ¥ Ex. 5, pp. 13-14, 22b. PART 1 mentioned nothing about meeting or communicating with the guy from the Hilton hotel near the airport on August 26, 2013 and August 27, 2013. PART 1 also never ‘mentioned or identified a man who scheduled two appointments with TJ. c. In PART 2, TJ. re-wrote the narrative she had written in PART 1, but with far greater detail. For instance, PART 2 contained two sections discussing her two encounters with the person she described as the “Mexican guy” from the Hilton. According to TJ., she first met the “Mexican guy” from the Hilton on August 26, 2013. Mr. Valas is not of Mexican or Latino descent. T.J. described the August 26th encounter like this: T got a outcall that night I the same dress Benny had let 10 me borrow. KeeKee came to pick ups up and Benny stayed with Malcolm and Diamond. The call. Was located at the Hilton by the ‘Aimport. Marcus stayed in the car with KeeKee and her Friends while I went by myself. The Room number was #420 when I got off the elevator it was right there. I knocked and a Mexican guy opened it he let me in. All he had on was a towel. I walked in and went by the bed he was amazed with me he thought I was unreal he started telling me how beautiful I was. I asked him to go to the restroom when I finished I went back to him. He wanted 30 minutes but he payed me $150. I put it in my purse then we started. He started kissing my neck and slowly started undressing me, He asked if I had a condom I said No and he didnt either. He layed me on my back and removed his towel. He asked me to suck him up I did for about 2 minutes then I moved he layed me down and started putting his penis on my breast he was just having sex with my breast he turnt me over and I told him plead don’t do it in ‘my butt because I dont do that he said he wouldn’t He put his penis, on top of my butt and just kept playing with my butt with his penis he came on the bottom of my [illegible]. After he cleaned it up with his towel he told me he wanted to see me again the next day. I told him to just text me then I left.> d. TJ. wrote that Wright drove her to the Hilton on August 26th. KeeKee and KeeKee’s friends were also in the car. T.J. wrote that after her appointment at the Hilton, she 35 Bx, 5, pp. 75-76. 23exited the hotel, walked to Wright’s car, and gave him the $150 she received from the customer.** ©. T.J. wrote she also met the Mexican guy from the Hilton on August 27th and described the encounter this way: A little Tater I got an outeall it was the guy from the day before who was at the Hilton, Chatter Box’s Pimp said he would take me. I knew this was going to be my last outcall... When I went to Room #420 the same man answer. With just pants on this time. He let me in then went to the bed. He payed me $150 then he pulled a condom out and put it on. I took me clothes off. He layed ‘me down on the bed and put his penis in me the whole time thats all we did. When we were done I started putting on my clothes. ‘The guy was telling me how he wanted me to go with him to New York, he asked me if | would let him fly me down there one day. I just kept telling him we will see, we hugged then I left.°” f. After finishing her appointment at the Hilton, T.J. wrote that Wright was not outside waiting for her, so she called him from her work phone, and she waited in the lobby until he picked her up. T.J. wrote that she charged her play phone and texted “LaDerrick” while she waited for Wright. When Wright picked her up, he took her to the store where she bought snacks.”* g. Toward the end of the journal, T.J. wrote about her arrest and her statements to the arresting officers and TFO Sweeney. According to TJ., once SAPD officers arrested and interviewed her on August 28, 2013, she allegedly told them everything she had written about in PART 2: About fifteen minutes later there was a huge knock on the door I thought it was people arriving from the kickback. I asked “who is it” then they said “the Police.” Me and Ashanda both paniced. ‘There were beer cans that were left so Oshanda tried to put them in Ex. 5, p. 76. 37 Ex. 5, pp. 84, 85-86. Bx. 5, p. 86. 24the tub. I ran to the restroom and pretended 1 was using it then Oshanda opened the door. The cop asked Oshanda who she was and who else was there. Oshanda said “My Sister.” The cop told her “where is she” then I came out. I saw 2 cops. My mom and My aunts. The cop arrested us thet night took us in to the building with fingerprintr. I told them about what happened to me.? 1h. Likewise, according to T.J., when TFO Sweeney interviewed her at Bexar County Juvenile Detention Center, she also allegedly told him everything she had described and discussed in Part 2: ‘That same night they took me to Juvinille. I had to stay but that same night I met my investigator Mr. Swinnie I told him everything that happened to me. i. Officer Coleman was one of the officers who arrested T.J. on August 28, 2013. Coleman wrote a report summarizing her arrest, and it mentions nothing about T.J. having two sexual encounters with a Mexican man from the Hilton.“ SA Gutierrez also wrote a report summarizing TEO Sweeney's interview with T.J. on August 29, 2013, and it mentions nothing about T.J. having two sexual encounters with a Mexican man from the Hilton.” j. After writing her “story”, at the very end of the journal, T.J. made a bullet-point “Time Line” from (Monday) August 19, 2013 to (Wednesday) August 28, 2013. For instance, TJ. wrote the following for August 26th: August 26, 2013 Monday— Me and Benny Goes swimming 1st Hilton Hotel outeall- $130 KeeKee takes us Marcus give her $20 for ‘gas out of the money he got from me 10 KeeKee Drops us back off *° Bx. 5, pp. 93-94. Bx. 5, p. 94, “Bx 17, ? Ex.3. 25© “Hospital” k, For August 27th T.J. wrote: August 27, 2013 Tuesday- Early Morning go back to the Days Inn Marcus and Benny got a new hotel upstairs Me and Benny about to fight T go to the pool alone Marcus tells me to get upstairs ‘Me and Benny Make up Me and Benny go to Malcolm and Diamond hotel to chill ‘Marcus Hits me and Benny then he ends Business with Malcolm I get ready and tell Benny the truth about me and tell her im leaving for good Chatter Box Give me $80 Marcus takes it from me ‘Marcus talks to me about money then give me it 2nd outcall at Hilton Hotel Chatter Box Pimp takes Me and Marcus LaDerrick comes gets me from Days Inn when I got back We go get Oshanda ‘LaDerrick and Chris Apartment Oshandas Boyfriend Tays Trap House 1. After her bullet-point, day-to-day timeline, T.J. wrote a section titled “Things to Remember & Know”: ‘Things to Remember & Know Outeall — Ihave to go to the person Incall - the person has to come to me Roses/Conation — Money GFE — Girlfriend Experience Independent — By Myself Supported - Had a pimp 1 hour ~ $200 30 minutes ~ $150 15 minutes ~ $120 Backdoor — Annal sex © Bx. 19, p. 100. * Bx. 5, pp. 100-101. 26m. After her “Things to Remember & Know” list, T.J. then wrote a section titled “Locations I can remember”: Locations I can remember Days Inn- Across from Randolph Park & Ride Citi Trens ~ Walzem BBQ Place — Walz« Hair Supply Store — Walzem Hilton-Airport - Room #420 Motel- by highway? Malcolm Hotel Apartments — By Sea World Sunrise Dollar General — By Candlewood** 39. On July 19, 2014, two days after he had received T.J.’s journal from the Government, Economidy (Copeland’s attorney) emailed trial counsel and told trial him that AUSA Bettina Richardson had disclosed to him a 52-page handwritten “statement” from T.J. Economidy said that AUSA Richardson denied that the journal represented Brady material. Economidy also told trial counsel that T.J.’s written statement alleges she “had sex” with Mr. Valas “on two different dates.“ 40. After receiving Economidy’s email, trial counsel never contacted the U.S. Attorney's Office and asked for (1) T.J.’s 52-page statement, (2) all FBI 302s and/or memos from the U.S. Attomey’s Office where the FBI and/or the U.S. Attomey’s Office interviewed TJ. regarding the alleged second sexual encounter with Mr. Valas, (3) all FBI 302s and/or memos from the U.S. Attomey’s Office where the FBI and/or the U.S. Attomey’s Office interviewed ‘TJ. regarding her journal, and (4) all audio/visual recordings of T.J. discussing the alleged second sexual encounter with Mr. Valas. Nor was a similar request made to SAPD. 45 Bx, 5, p. 104. “Ex.16. 2741. Trial counsel also never asked the U.S. Attomey’s Office (1) when T.J. had written her journal, (2) where she had written her journal, (3) when T.J. had disclosed the journal to the U.S. Attomey’s Office and/or the FBI or state authorities, (4) why she had written the journal, (5) ights advocate, whether she had any assistance in writing the journal or was aided by a victims? or (6) whether the U.S. Attomey’s Office intended to file an amended superseding indictment to add the alleged second sexual encounter with Mr. Valas. 42, When trial counsel received T.J.’s journal from the Government on August 27, 2014, he continued to ignore its contents and failed to inquire of the Government as to the circumstances of its creation.” Nor did he make a specific inquiry as to whether the U.S. Attomey’s Office intended to file an amended superseding indictment to add the alleged “second” sexual encounter with Mr. Valas, 3. Additional Call and Text Records 43.On July 21, 2014, AT&T produced a Mobility Usage Report for the Government identifying all calls made to and from T.J.’s work phone (254-368-7129). The report identifies the following calls between Mr. Valas and T.J. on August 26, 2013 and August 28, 2013: Calls To and From T.J.’s Work Phone Between Mr. Valas and T.J. August 26th and 27th Dateand Time | Originating | Number Dialed | Duration ‘Number ‘8/26/13 (3:25 pm) | 603-568-9883 | 210-209-0350 | Voicemail _ (call from Mr. Valas to TJ. work phone) 8/26/13 (3:26 pm) | 603-568-9883 | 254-368-7129 | 8 seconds (call from Mr. Valas to TJ. work phone) {8/26/13 (8:52 pm) | 603-568-9883 | 254-368-7129 | 72 seconds (call 47 Bx, 24, Bx, 18, pp. 16-17. 28fom Mr. Valas to TJ. work phone) B/27/13 (9:12 pm) | 603-568-9883 [254-368-7129 | 48 seconds (call from Mr. Valas to TJ. work phone) 8/2713 (10:04 | 603-568-9883 _| 254-368-7129 | Voicemail (call pm) from Mr. Valas to TJ. work phone) B23 (10:04 | 603-568-9883 | 254-368-7129 | 7 seconds (call pm) from Mr. Valas to TJ. work phone) B/2713__(10:06 | 254-368-7129 | 603-568-9883 __| 40 seconds (call pm) from TJ. work phone to Mr. ‘Valas) BATI3 (11:04 [254-368-7129 | 603-568-9883 __| 16 seconds (call pm) from TJ. work phone to Mr. Valas) 8/27/13 (11:50 | 254-368-7129 603-568-9883 29 seconds (call pm) from TJ. work phone to Mr. Valas) 8/2813 (12:03 [254-368-7129 | 603-568-9883 | (call fiom TT. am) work phone ignored by Mr. Valas)"* 28/13 (12:50 | 254-368-7129 | 603-568-9883 [(call fiom TJ. am) work phone ignored by Mr. Valas)” © This cal? is not reflected in the AT&T Mobility Usage Report, Ex. 18, but itis reflected Verizon Mobility Usage Report regarding all incoming and outgoing call from Mr. Valas’ Blackberry. See Ex.19, p. 5 Id. 2944. The report also identified the following calls made by T-J.'s work phone, not to Mr. Valas, between 9:00 p.m. and 10:00 on August 26, 2013:! Calls From T.J.’s Work Phone to People Other Than Mr. Valas August 00 p.m. to 10:00 p.m, Dateand Time | Ori ‘Number Dialed | Duration Number 8/26/13 (9:02 pm) | 254-368-7129 | 806-252-3554 | 20 second (call from T.J. work phone to Tommy) 8/2613 (9:25 pm) | 254-368-7129 | 210-883-7829 | 2 seconds (call from TJ. work phone to unknown) 8/26/13 (8:39 pm) | 254-368-7129 | 210-862-2832 | 28 seconds (call from TJ. work phone to unknown) 45. The report also identified the following calls made by T.J.’s work phone, not to Mr. Valas, between 10:00 p.m. on August 27, 2013 to just after midnight on August 28, 2013:°* Calls From T.J.’s Work Phone to People Other Than Mr. Valas August 27th — 10:00 p.m. to August 28th 12:12 a.m. Dateand Time | Originating | Number Dialed ‘Duration Number 8/2713 (10:04 | 254-368-7129 | 817-799-9302 | 8 second (call pm) from TJ. work phone to unknown) 28/13 (12:11 | 254-368-7129 | 210-717-0313 [23 seconds (call am) from TJ. work phone to number associated with Marcus Wright) S' Bx. 18, p. 16. 2 Td,p.17. 3046.On July 21, 2014, Malcolm Copeland’s trial started. Copeland’s attomey, John Economidy, believed that the T.J.’s “journal” represented a “statement” as to what allegedly happened to her during the week she had worked as one of Marcus Wright’s prostitutes rather than a contemporaneously written journal. When Economidy cross-examined T.J. regarding the “journal” he described the “journal” a “52-page statement,” prompting AUSA Bettina Richardson to object to his characterization because, to her and the Government, the 52-page document represented T.J.’s “journal” that she wrote contemporaneously or shortly after the SAPD had taken her into custody on August 28, 2013: Economidy: Did you write a 52-page statement? Excuse me? Did you write a 52-page statement? ‘When? When? Oh, I don’t know when you wrote it, but did you write a statement at any time? I don’t recall. ‘Your Honor, can we approach? (At the bench) Richardson: ‘These are journal entries. They are not a formal statement, And so he’s confusing her. She doesn’t understand the legal terminology. This is a journal that she showed us. And out of the abundance of caution and cooperation I provided it to defense counsel so that he would have it. But it’s actually a diary or a journal that she wrote. It’s not {aw enforcement.” * Ex. 20, vol. 2, U.S. v, Malcolm Copeland, NT, Trial, 7/21/2014, pp. 314-315. 3147. Economidy continued cross-examining T.J., but he never asked (1) when she had written the “journal,” (2) if she had written it while she was in custody, or (3) if the FBI, SAPD, or the US. Attomey’s Office had asked her to write the “journal” discussing the men she met and had sex with during her time with Wright, Copeland, and Doak. AUSA Richardson also never asked TJ. these questions on direct-examination, 48. When AUSA Richardson moved to admit T.J.’s journal into evidence as Government Exhibit 52, Economidy objected: “The defense would object on the grounds, number one, it’s hearsay. And, number two, it’s not made contemporaneous with the event. It’s made about a month later.”** AUSA Richardson remained silent when Economidy argued that T.J. had not written the journal entries contemporaneously to when the events had allegedly occurred. The ‘Court overruled Economidy’s objection and entered T.J.’s journal into evidence.** 49.On direct-examination at Copeland’s trial, TJ. testified she had a total of five (5) “appointments” with four (4) paying customers. She had two “appointments” with a man at the Hilton hotel: one on August 26th and one on August 27th. 50. On August 18, 2014, Marcus Wright's trial began. TJ. testified and said she had five (5) “appointments” with four (4) paying customers. She had two “appointments” with a man at the Hilton: one on August 26th and one on August 27th.” 4. Trial Counsel Refused to Follow Mr. Valas’s Instruction that the Theory of the Defense Be a Singular One: There Was No Sex. 51. On August 20, 2014, trial counsel expressed his doubts to Mr. Valas about Mr. Valas’s innocence. Trial counsel told Mr. Valas he had talked to his (trial counsel's) barber about the ¥ Bx. 20, vol. 2, U.S. v. Malcolm Copeland, NT, Trial, 7/21/2014, p. 328. 55 Ex. 20, vol. 2, U.S. v. Malcolm Copeland, NT, Trial, 7/21/2014, p. 328. ° Ex, 20, vol. 2, U.S. v. Malcolm Copeland, NT, Trial, 7/21/2014, pp. 294-295. 57 Bx. 21, vol._2, U.S. v. Marcus Wright, NT, Trial, 8/19/2014, p. 267. 32case and said his barber was skeptical of his (Valas’s) innocence.** The next day, August 21st, ‘Mr. Valas underwent a polygraph examination at trial counsel’s behest. Sabino Martinez, Jr., an experienced and qualified polygraph examiner, conducted the examination and concluded that Mr. Valas showed no signs of deception when he repeatedly denied having any sort of sexual contact with T.J. on August 26th or Angust 27th.” Martinez drove Mr. Valas back to his hotel after the examination. On the drive back, trial counsel called Martinez. When Martinez told trial counsel Mr. Valas passed the polygraph exam with “flying colors,” trial counsel replied, “Really, are you sure?” 52. The day after Mr. Valas took and passed his polygraph examination, trial counsel spoke with Mr, Valas about the results and specifically told him that the results were inadmissible and could not be introduced at trial to prove his innocence. Trial counsel also told Mr. Valas that this Court would not break new ground, legally, and admit the polygraph results at his trial.°! 53. Before trial, Mr. Valas repeatedly told trial counsel he was innocent and therefore wanted him to present an actual innocence defense. Trial counsel, however, told Mr. Valas he intended to present two defense theories: one was actual innocence, while the other was that T.J. looked over 18, Trial counsel told Mr. Valas that even if he had sex with TJ, if he reasonably believed she looked over 18, he could not be convicted of the offense charged in the indictment. Mr. Valas repeatedly told trial counsel the age issue was irrelevant and prejudicial because it would easily confuse the jury. The confusion, Mr. Valas told trial counsel, came from the fact the two defense theories were inconsistent with one another. The actual innocence defense argued, “Mr. Valas never had sex with TJ,” while “she looked over 18” defense argued, “Mr. Valas may have ay 22 opez3 © Bx. 22,99. © Bx, 22,912. 33had sex with TJ, but if he did, he did so because he reasonably believed she was 18 or over.” ‘The inconsistency, Mr. Valas told trial counsel, would not only confuse the jurors, it would make it more likely than not they would find his overall defense disingenuous.” 54, Trial counsel refused to follow Mr. Valas’s instruction. 5. Trial Counsel Failed to Contact and Interview Proposed Defense Witnesses ‘Who Corroborated Mr. Valas’s Defense and Otherwise Failed to Prepare a Constitutionally Adequate Defense. Trial Counsel Failed to Contact and Interview Proposed Defense Witnesses Who Corroborated Mr. Valas’s Defense and Otherwise Failed to Prepare a Constitutionally Adequate Defense 55. Also, prior to trial, trial counsel met and communicated with Mr. Valas and his wife, Kris ‘Valas, regarding potential witnesses who could support Mr. Valas’s defense that he met with T.J. to interview her for ongoing research and did not have sexual relations with her. Mr. Valas identified Professor Isaac Kfir, a respected professor affiliated with the Institute for National Security and Counter-terrorism (“INSCT”) who was a visiting professor at Syracuse University when Mr. Valas was a graduate student there. Professor Kfir reviewed Mr. Valas’s research at several stages, co-presented with Mr. Valas at the Maxwell Conference on post-conflict ion, and asked Mr. Valas if he would co-author a book with him on MS-13 and reconci reconciliation. After Mr. Valas had been arrested, Kris Valas asked trial counsel if she or Mr. Valas should contact Professor Kfir. Professor Kfir emailed Kris Valas and confirmed that he and Mr. Valas “had discussed writing a book about MS-13 and reconciliation.”* Kris Valas sent this email to trial counsel. Trial counsel never contacted, interviewed, or subpoenaed Kfir to testify in Mr. Valas’s defense. 3456, Despite telling Mr. Valas that the polygraph results were inadmissible at trial, trial counsel filed a motion on October 8, 2014 notifying the Government and the Court of his intent to present Sabino Martinez, Jr. as an expert witness to discuss the results of Mr. Valas’s polygraph results. The Government filed a motion in limine on October 15, 2014, asking the Court to exclude the polygraph results as well as any mention of them during trial.°’ On October 16, 2014, the Court heard arguments regarding the polygraph results, during which trial counsel repeatedly argued why the results were admissible.* The Court excluded the polygraph results.” 57. Before trial, trial counsel told Mr. Valas he had every intention of creating large charts to display the calls and text messages TJ. sent from her work and play phones during the times on August 26th and August 27th she claimed to have been having sex with Mr. Valas. To assist trial counsel, Mr. Valas independently reviewed the call and text message records from T.J.’s work and play phones and created an excel spreadsheet that comesponded with the timeline as set out in T.J.’s journal. This chart demonstrated that during the times T.J. claimed in her journal she was with Mr. Valas on August 26th and August 27th, she sent countless text messages from both phones and made multiple calls from both phones. The chart also demonstrated that when TI. claimed in her journal to be with other paying clients, the call and text message records showed periods of inactivity that corroborated her journal entries. Mr. Valas emailed this excel spreadsheet to trial counsel in the fall of 2014, well before his trial started.”” © Bx. 28. &T Bx. 29. & Bx. 30, U.S. v. Raymond Valas, Motion Hearing, 11/16/2014, pp. 46-73. id, p. 73. ™ Bx. 22, 9 1-5. The chart that Mr. Valas created was not included in the paper file trial counsel provided to the undersigned counsel. The undersigned counsel requested trial counsel’s electronic file, including his electronically stored emails, but trial counsel refused. 3558. On November 17, 2014, immediately before trial was scheduled to begin, trial counsel ‘wrote, “Not ready,” in his trial notes.”” When the Court asked if he needed a continuance that day, trial counsel met with Mr. Valas and Kris Valas and assured them he was ready. Based on trial counsel’s representation, Mr. Valas and Kris agreed to move forward.” B. Trial 1. Opening Statements 59. On November 17, 2014, Mr. Valas’s trial began. During AUSA Richardson's opening statements, she told the jury T.J. had gone to the Hilton shortly before 9 p.m. on August 26th, that Mr. Valas had paid her $150 for thirty (30) minutes of her time, that Mr. Valas briefly entered his penis into T.J.’s vagina before withdrawing it and asking T.J. for oral sex, that after performing oral sex on him, Mr. Valas flipped her over doggy style and thrust his penis between T.J.’s butt checks until he ejaculated on her back.” For the second encounter, AUSA Richardson told the jury that T.J. went to Mr. Valas’s room at 1:00 a.m. on August 28th that Mr. Valas paid her another $150 for thirty (30) minutes of her time, that Mr. Valas had vaginal sex with T.J. after he put on a condom, and that after having sex with her, Mr. Valas told her wished he could bring her back to New York with him.” 60. During trial counsel’s opening statements, he told the jury Mr. Valas was not guilty because Mr. Valas never had sex with T.J. and because T.J. looked over 18: ‘And what the evidence is going to show is that [T.J.] at that time is what I would characterize as out of control and presents herself as, 1a person who's over 18. So you have, she’s advertised as over 18. She presents herself as over 18. And what do I mean by that? I mean hair, makeup, jewelry, dress, suggestiveness, attitude, % Bx. 32, U.S. v. Raymond Valas, vol. 1, NT, Trial, 11/17/2014, p. 6-26. ™ Bx. 32, vol. 1, pp. 128-129. ™ Td., p. 129. 36demeanor, all of those things, you know. I think the evidence will show, just as out on the street that there are people who are mistaken — there are siblings, one who’s 15 and one who's over 18, and people think the younger is older and the older is younger. ‘There are ranges of things.”> 2. T.J.’s Direct-Examination 61. T.J. testified she was on probation when she began prostituting. T.J. had a probation officer who told her that one of the conditions of her probation was that she had to live at home.” T.J. disregarded the conditions of her parole, ran away from home, and began prostituting. 62. In regards to the alleged incidents with Mr. Valas, T.J. said she arrived at Hilton room 420 at 9:00 p.m. on August 26th. She said Marcus Wright and a female friend had driven her to the Hilton and dropped her off in the parking lot. When Mr. Valas answered the door, TJ. said he was bare-chested and had a towel wrapped around his waist. She testified that Mr. Valas escorted her into his room, opened the nightstand in between the two beds and removed $150, and handed the $150 to her for thirty (30) minutes of sex. T.J. put the $150 in her purse, excused herself to use the bathroom briefly, and then placed her purse on one of the two beds when she retuned.” T.J. said she had the work phone and play phone with her when she entered Mr. Valas’s room.”* 63. TJ, testified that Mr. Valas began kissing her on the neck while removing her dress and underwear, but not her bra. TJ. testified that Mr. Valas then removed his towel while simultaneously removing her dress and underwear. He then laid her down on the bed opposite the one with her purse and mentioned to her that he did not have a condom, prompting her to tell 1s i, puida, 7 Bx, 32, vol. 2, pp. 315-316. 7” Id., pp. 297-300. * Id., pp. 289-290. 37him that she also did not have a condom. With no condom, Mr. Valas asked for oral sex. ‘T.J. said she gave him oral sex while she was seated on the bed and he was standing. TJ. said Mr. ‘Valas did not have an erection when he initially put his penis into her mouth.” 64. T.J. testified that Mr. Valas then laid T.J. down against the bed with her back to the bed and placed his penis between her legs, but, contrary to AUSA Richardson’s opening argument, he did not penetrate her vagina. Instead, he tuned her over (stomach first) and rubbed his penis between her butt checks until he ejaculated onto her back. TJ. said his penis never penetrated her rectum, and she never removed her bra. After ejaculating, Mr. Valas picked up his towel from the floor and wiped down her back to remove the semen.*” 65. While humping her, T-J. said they did not engage in any dialogue, but did so after he had ejaculated. TJ. testified that once he cleaned the semen from her back, she got dressed. Once dressed, Mr. Valas told her he wanted to see her again, but TJ. could not recall if he was naked or clothed when he made this request. TJ. told him to text her if he wanted to see her again. When she left, she said that she walked to the Hilton parking lot where she met Wright and gave ‘him the $150 Mr. Valas had given her.** 66, On August, 27th, TJ. called Mr. Valas at 10:06 p.m. from her work phone and spoke with him for 40 seconds.” When AUSA Richardson asked why she had called Mr. Valas, T.J. said she had no idea why she would have called Mr. Valas and could not recall the content of their conversation. T.J. also called Mr. Valas with her work phone at 11:06 p.m., 11:50 p.m. (August 27th), 12:03 a.m., and 12:50 a.m. (August 28th)."? After acknowledging that she had, in fact, ” Id., pp. 300-303. © id., pp. 04. "! Td., pp. 304-306. © Bx. 18, pp. 17. *® Ex. 32, vol. 2, pp. 306-309; Ex. 18, pp. 17. 38made these calls to Mr. Valas, AUSA Richardson asked TJ, “[DJo you remember it being that late [ie., near 1:00 a.m.] before you arrived to the Hilton on the 2[8th]?” T.J. replied, “I don’t remember.” AUSA Richardson then asked the following questions: Richardson: Okay. When you got there on the 27th, did you, just like on the 26th, go directly to his room? TL: Yes. thardson: So it’s approximately 1:00 a.m. Who dropped you off in the middle of the night on the 27th? Marcus and another pimp.** 67. TJ. said Wright never indicated to her whether he intended to stay in the Hilton parking lot when he dropped her off on August 28th. 'T.J. said she knocked on Mr. Valas’s door “at 1:00 a.m.” on August 28th and said the “same man” she had met on August 26th answered the door. TJ. said that Mr. Valas had on jeans, but no shirt. TJ. entered his room and saw the $150 on the nightstand this time. ‘T.J. testified that Mr. Valas handed her the $150 for thirty (30) minutes of sex. T.J. placed the $150 in her purse.* 68. At this point, T.J. said that Mr. Valas produced a condom, they both got fully naked, and Mr, Valas put the condom on because, unlike their August 26th encounter, Mr. Valas had an erection when they began their sexual contact T.J. Mr. Valas penetrated her vaginally in the missionary position until he ejaculated, at which point he got up and put his pants back on, while she also got dressed. TJ. could not recall when Mr. Valas had removed the condom, Once both were fully dressed, T.J. said that Mr. Valas told her he was in town for work and that he wanted Bx. 32, vol. 2, p. 309. 8S Id., p. 309. *° Id., pp. 309-311. 39to fly her back to New York with him, T.J. left shortly thereafter, called Wright with her work phone, and waited in the hotel lobby for him.'” 3. TJ's Cross-Examination 69. On cross-examination, T.J. said she had arrived at the Hilton on August 26th at 9:00 p.m., that she was with Mr. Valas for 20 to 30 minutes, and that she did what Mr. Valas wanted her to do during this period. T.J. denied that Mr. Valas had told her she was late and that he could not meet her because he had to be somewhere at 9:00 p.m.®* In terms of the alleged sexual encounter ‘on August 28th, when trial counsel questioned her about the 1:00 a.m. time period, T.J. said, “That was a guess.” When trial counsel asked, “On the 28th. You said it was 1:00 am., correct?” T.J. replied, “T didn’t say that. I didn’t say ~ those weren't my exact words.” Trial counsel then asked, “What were you exact words?” T.J. replied, “I didn’t have exact words.” Trial counsel then asked, “Okay. Because the prosecutor... at some location wrote down 1:00 ‘am, for the second meeting. And you're saying no, that—” T.J. interrupted and said, “I said it was just a guess.” Trial counsel then asked, “So you simply don’t know. Is that a more accurate, fair statement?” T.J. replied, “Yes. Thank you.”*” 70, After trial counsel asked another question, T.J. said, “It was just a guess, a round guess, around that time, around that area.” Trial counsel then asked, “But you can see that if you put 1:00 a.m, and you publish it at 1:00 a.m., that everybody could mistakenly think that it’s 1:00 am.?” TJ. replied, “It does not say 1:00 am. in my journal.” Trial counsel then asked, “What does it say in your journal?” T.J. responded, “I have no clue.”*° ""id., pp. 311-313. °8 Id, pp. 331-332. ° Id., pp. 333-334. % Id., p. 334. 4071. T.J. denied that Mr. Valas, during either encounter, had told her he was a researcher and that he wanted to speak with her regarding his research project. TJ. also denied having a discussion with Mr. Valas, during either encounter, involving her drug use and why she could not quit prostituting. T.J. also denied that Mr. Valas did not pay her for both encounters.°* 72. Rather than using the phone records, trial counsel first attempted to discredit T.J.’s credibility by suggesting she had a drug problem. TJ, admitted she had done drugs before, but denied having a drug problem. Trial counsel presented no evidence suggesting or proving she, in fact, had a drug problem.” 73, Trial counsel next attempted to undermine her credibility by asking her about her about a fight she had had with her mother, suicidal ideations, and prior suicide attempts. TJ. denied having suicidal ideations and denied she had previously attempted to kill herself, Trial counsel presented no evidence suggesting or proving she, in fact, had such thoughts or had attempted suicide previously.” 74, Trial counsel then mentioned T.J.’s journal. When trial counsel asked if investigators or prosecutors “urged” her to write the journal, TJ. said, “I did it on my own." There were no other probing questions on this subject. Trial counsel then focused on the journal entries where ‘TJ. mentioned doing drugs.” Trial counsel never asked T.J. why the journal had two distinct parts (PART | and PART 2). In terms of PART 1, trial counsel never asked when, where, and why she had written this part of the joumal. ‘Trial counsel also never asked her why she had written nothing in PART 1 regarding her alleged trysts with Mr. Valas or the guy from the ° Id., pp. 334-337. ° id., pp. 313-16. % Id., pp. 316-319. % id., p. 321. % Id., pp. 321-324. 41Hilton, Trial counsel never asked whether, when she initially presented her journal to the Government, it only consisted of PART 1, but after speaking with the Government, she realized her journal had to include more details, particularly those details regarding her alleged encounters with Mr. Valas. 75. In terms of PART 2, trial counsel never asked her who or what prompted her to write this, section and when and where she had written this section. ‘Trial counsel never asked why PART 2 contained so much more detail than PART 1 and whether investigators and/or prosecutors urged her to re-write PART 1, but with much greater detail, including details regarding her alleged encounters with Mr. Valas, Trial counsel also never asked her when she first gave the journal to the Government or what the Government said about it when it initially received it. Trial counsel also never asked if she had met with the Government to discuss the journal, and if so, how often and when she had met with the Government. 76. In terms of T.J.’s work and play phones, trial counsel did not ask T.J. a single question regarding the numerous text messages and calls she made, sent, and received during both alleged encounters with Mr. Valas, Trial counsel never presented TJ. with a demonstrative exhibit detailing these calls and text messages and asked her to explain how she could have possibly ‘made these calls or sent these text messages when she was allegedly having sexual relations with Mr. Valas. While cross-examining T.J,, trial counsel did not introduce all pertinent call and text messaging records from August 26th, 27th, and 28th, and have them published so the jury could ‘meaningfully examine them and decide whether the pertinent records supported or discredited T.J.’s testimony against Mr. Valas. 4, Defense Case a. Mr. Valas’s testimony 4277. Mr. Valas testified. At the time of his testimony and the alleged encounters with T.J., Mr. Valas was a Lieutenant Colonel with the New Hampshire National Guard. In August of 2013, Mr. Valas was a fellow with the Army War College (“AWC”). As an AWC fellow, Mr. Valas had academic requirements that required him to focus on a particular research area. His research focused on addressing and tackling transactional organized crime such as gangs and their activities.” 78, Mr. Valas said he was working on a paper regarding law enforcement’s role in addressing ‘gangs and their peripheral actors such as drug mules, lookouts, and prostitutes. Part of his research involved attempting to speak with and speaking with prostitutes to obtain a better understanding of why they have a difficult time escaping their lifestyle and how these peripheral actors and law enforcement play a role in their inability to escape their high risk life style. As part of his research, he also sought out prostitutes because he wanted to get in contact with gang members and/or drug dealers. Because he could not look up drug dealers and gang members on the Internet, he contacted prostitutes online because they commonly associate with gangs and drug dealers. Mr. Valas said he had contacted several prostitutes even before he had arrived in San Antonio in August of 2013. When Mr. Valas contacted or attempted to contact a prostitute, he did so for research purposes only, not for commercial sexual services. Mr. Valas said he had spoken with others, like Mjr. Brian Femandes, Scott Lance, and Eugene Tangney, regarding interviewing prostitutes for his AWC research.” 79. Mr. Valas said he traveled to San Antonio to participate in the After Action Report (“AAR”) conference following a humanitarian mission he had recently served in El Salvador. He checked into the Hilton at 2:15 p.m. on August 26th. Once checked in, he made plans to meet °° Bx. 32, vol. 3, pp. 409-413. °" Id., pp. 414-416, 420. 4Bin the conference room at 6 p.m. to practice his 150 slide presentation regarding the Joint Action Report. Presentation practice, he said, went from 6:00 p.m. to 8:05 p.m. The presentation ‘group agreed to meet at the Texas Roadhouse restaurant at 9 p.m. for dinner. The restaurant was located in the hotel lobby.” 80, Mr. Valas said he contacted TJ. once he had checked into the Hilton and asked if she could meet at 5:30 p.m., before presentation practice. T.J., he said, agreed to meet at 5:30 p.m., but she never came to his room at that time. A 9:00 p.m., while he was preparing to head down to the Texas Roadhouse to meet the presentation group, Mr. Valas said T.J. knocked on his door. He opened the door fully clothed and politely told T.J., who never entered the room, he had to be somewhere at 9:00 p.m. He asked her if they could reschedule. Mr. Valas said T.J. appeared annoyed, but she agreed to meet later. When she tumed and walked away, she told him to “keep it legit” because she “had people waiting[.]” At that point, Mr. Valas shut the door and walked back into his room where he grabbed his wallet and put on his shoes before heading down to the Texas Roadhouse restaurant. Mr. Valas said he exited his room no more than two minutes after TJ. had knocked on his door. Mr. Valas denied having sex or any sort of sexual contact with TJ. during their very brief encounter. Mr. Valas said he was at the Texas Roadhouse restaurant from 9:00 p.m. to 10:30 p.m. with the presentation group and that TJ. did not return that evening." 81. Mr. Valas contacted T.J. the next day, August 27th, at 3:00 p.m. and wanted to schedule a 5:30 p.m. interview with her. The 5:30 p.m. time slot, however, fell through due to his time conflicts, Mr. Valas contacted 'T.J. later that day to see if she could meet between 10:00 p.m, and ° Id., pp. 418-419. °° Td., pp. 422-423. 1 Td., pp. 423-424,11:00 p.m. TJ. agreed and came to his room between 10:00 p.m. and 11:00 p.m. on August 27th. Mr. Valas said he was wearing blue jeans and a blue and white button down shirt when he invited T.J. into his room, TJ. sat on the comer of the bed while he sat on the swivel chair in front of the T.V. facing T.J.'"" 82. When T-J. sat down and asked him what he “wanted to do,” Mr. Valas told her he just wanted to talk. Based on his experience, establishing a rapport with someone like T.J. was difficult because people who engage in illegal activity generally do not like to talk with strangers about their illegal activities. Mr. Valas asked TJ. if she was from San Antonio. She said she was. She then asked him if he was from San Antonio, Mr. Valas told her he was a writer from New York who was traveling through the area. Mr. Valas did not tell her he was a researcher because he did not want to scare her off.'" 83. Mr. Valas asked her if she knew of any gangs in the area. T.J. mentioned some gangs, including the Pistoleros, but said she did not know about MS-13 or Barrio 18. Based on her answers, he eventually concluded she knew very little, if anything, about the local gangs. When he asked how long she had been prostituting, she said only a short time because she had only recently turned 18. She told him she had “girlfriends” who did what she did and they shared rides sometimes when they were going to meet a John. When he asked why prostitutes stay in the profession, T.J. said, “Well, what if you got no place to go?” When he asked why prostitutes do not seek assistance from churches, schools, or the police, J. said, “If you're high, you ain’t tos going to the cops. 101 7d., pp. 426-430. 102 Td., pp. 430-431. 193 Td., pp. 432-434, 4584, Their conversation lasted no more than 15 minutes. Toward the end, when she asked him for money and he refused to give her money because all they had done was talk, he said her demeanor quickly changed. She then asked for cab money, When he told her he did not think she needed cab money because she shared rides with her girlfriends, she became “highly irritated” and walked out of the room. Mr. Valas denied having sex or any sort of sexual contact with T.J. during their August 27th interview.’ 85. After interviewing T.J., Mr. Valas memorialized his thoughts of the interview on the Hilton stationary in his room. He kept his notes in a folder on his desk at Syracuse University. His notes indicated that the interview had occurred in San Antonio in August 2013, that T.J. was not a citable or reliable source, that T.J. had no knowledge of Latin American gangs like MS-13 or Barrio 18, that T.J.’s Backspace name was Barbie, that T.J. was unwilling to provide her real name, and that T.J. appeared to be a drug addict.'°* Mr. Valas also wrote this on the Hilton stationary, “Who was prosecuted? Victims?” When trial counsel asked how this comment related to T.1.’s interview, he said: Well, that goes directly to the statement that she made, “If you're high, you ain’t going to the cops.” Why would you not go to the cops? Because you feel they would arrest you. And so that’s a direct correlation, basically. And so if there's a fear of prosestin, then we might have victims that are afraid to come 86, After the AAR conference, Mr. Valas said he returned to the AWC and continued his research, He never intentionally called T.J. after returning, and she never called him.'” He said he had no idea he was the subject of a criminal investigation or that there was a warrant out for '* ig., pp. 436, 453-454, 443. 105 id., pp. 438-439, 442. 106 id., p. 440, 107 Td., p. 464.his arrest until his arrest at the border in May 2014. He said he was never interviewed by the FBI or any law enforcement agency regarding T.J.’s accusations. '°* 87. Mr. Valas again denied having sex or any sexual contact with T.J. during his two brief encounters with her on August 26th and 27th. He also said he had never had sex with an under- aged girl and that he has been happily married to his wife since 1997.' be Alibi witness for the August 26th alleged sexual encounter 88. Trial counsel presented Cmd. Sgt. Mjr. Jason Speltz, Speltz was in the Joint Force Headquarters Unit with Mr. Valas and attended the “Beyond the Horizons” exercise in San Antonio on August 26th. Speltz actually flew to San Antonio with Mr. Valas on August 26th and checked into the Hilton at the same time Mr. Valas did. Once checked in, he prepared the conference room for his presentation, and rehearsed his presentation from 6:00 p.m. to 8:00 p.m. He then met Mr. Valas and a small group of people in the Texas Roadhouse (lobby) restaurant at 9:00 p.m. for dinner. Dinner lasted until 10:30 p.m. and Mr. Valas was present the entire time.'!” Speltz also said Mr. Valas’s reputation in the community for decency and morality was “beyond reproach." ¢. Witnesses who confirmed Mr. Valas’ research 89, Trial counsel presented witnesses who corroborated Mr. Valas’s testimony regarding his research. Mjr. Brian Femandes testified. Fernandes was a major in the New Hampshire ‘National Guard and had known Mr. Valas for 9 years. Femandes was a AWC fellow and knew of Mr. Valas’s sex trafficking research. Femandes said he had a conversation over lunch with 108 id., pp. 443-446. 109 id. pp. 442-443, 448. 0 7., pp. 392-396. ™ 7d., p. 405. 47Mr. Valas in December 2013 regarding his research. During the conversation, Mr. Valas told him he had interviewed a prostitute while in San Antonio for the AAR conference.'"? 90. Scott Lance testified. Lance said he had known Mr. Valas for 18 years and that both served at Fort Drum in the 10th Mountain Division. After their service together, Lance and Mr. ‘Valas stayed in contact. During one of their many conversations, Mr. Valas told him he wanted to interview prostitutes and street people in the United States. During another conversation, Mr. ‘Valas told him he had interviewed a prostitute while he was in San Antonio. Mr. Valas, Lance said, never mentioned having sex with the prostitute. Lance also said Mr. Valas had a reputation of the highest integrity within the community for decency and morality." 91. Mjr. Mark Bradley Patterson testified. Patterson was the Deputy Inspector General for the ‘New Hampshire National Guard and had served with Mr. Valas. Patterson testified that he had attended Mr. Valas’s presentation at Syracuse University in March of 2014 entitled “Not Just a Gang Anymore.” The presentation discussed gangs, prostitution, and MS-13. The presentation, Patterson recalled, also discussed strategies to address prostitution and the nexus it had with gangs. Patterson also said Mr. Valas had a reputation of the highest integrity within the community for decency and morality.!"* 92, Eugene Tangney testified. He said he attended Xaverian Brothers High School with Mr. Valas and that the two had remained close friends since graduating high school. ‘Tangney recalled a conversation he had with Mr. Valas, prior to August of 2013, where Mr. Valas had discussed doing street research with prostitutes in connection with his gang research. Tangney "2 Tq., pp. 515-16. "3 Tq., pp. 524-526. ™4 id., pp. 528-530. 48also said Mr, Valas had a reputation of the highest integrity within the community for decency and morality.'!® 93. Special Agent Edwin Edmunds testified. Agent Edmunds had been an F-B.I. agent for 15 years when he testified and said he had known Mr. Valas for 23 years. Agent Edmunds knew about Mr. Valas’s acceptance into the AWC as well as his gang and prostitution research. To assist him with his research, Agent Edmunds said he had helped Mr. Valas arrange ride-alongs with different law enforcement agencies. Agent Edmunds also said Mr. Valas had a reputation of the highest integrity within the community for decency and morality." After ASUA Richardson objected to Agent Edmunds’s testimony, trial counsel agreed to have it stricken from the record in its entirety because trial counsel did not follow Department of Justice regulations for calling federal employees on behalf of the defense.'"” 4. Witnesses who called T.J.’s reputation into question 94, Trial counsel’s also presented four character witnesses who spoke to T.J.’s lack of honesty and inability to follow the law.’"® 5. Charge Conference, Jury Charge, and Closing Arguments 95, Under the indictment, the Government charged Mr. Valas with having sexual relations with TJ. on or about August 26th. Based on T.J.’s testimony regarding the August 26th alleged encounter, she placed herself inside Mr. Valas’s room between 9:00 p.m. and 9:30 p.m. on August 26th. Jason Speltz’s testimony, though, placed Mr. Valas at the Texas Roadhouse i, pp. 534-537. 16 id., pp. 534-537. 17 7q,, pp. 540-543. U8 id., pp. 381-390, 49restaurant between 9:00 p.m. and 10:30 p.m. on August 26th. Based on Speltz’s testimony, trial counsel moved for an alibi instruction.'"” 96. As trial counsel explained why an alibi instruction was warranted, he also mentioned the Guplicity issue created by the Governments evidence and arguments at trial and the manner in which it charged Mr. Valas in the indictment. The Government offered proof at trial and argued that Mr. Valas had committed two separate sexual assaults against T.J. on two separate dates, August 26th and August 27th/28th, but only charged him in a single count indictment, alleging that the commercial sex act had occurred “on or about” August 26th. Trial counsel identified this problem and said: And it’s not only this--and there’s another issue that I'll address with the Court’s permission in a minute. But keep in mind that the date charged in the indictment is Monday, the 2{6]th. Tuesday, the 2[7]th, is not charged in the indictment.’ And in terms of this charge conference, I’m very concerned about confusion, and I’m very concemed about the jury making a determination where several think that he did it on Tuesday, several think that he did it on Monday, and that that's unacceptable under our law. And I object to that. ‘I'm not exactly sure how the Court needs to fix it. I think it’s a problem with the way that it was indicted, But nonetheless ~- like, for instance, similar acts may ~- what are the similar acts? The similar acts -- the only similar act is Tuesday, the 27th. But this jury needs to be told that they cannot convict him for what happened on -- or what they believe -- if they find beyond a reasonable doubt that anything happened, it could only be used to determine whether the event took place --!2" 97. The trial court denied trial counsel’s request and refused to inform the jury that it could not convict Mr. Valas under the indicted charge if it concluded that Mr. Valas had sexual relations with T.J. on August 27th, but not on August 26th: 9 Bx. 32, vol. 4, pp. 593-594. Trial counsel mistakenly said August 25th and 26th, when he clearly meant to say August 26th and 27th. 1 Bx. 32, vol. 4, p. 594. 50The Court: Well, that’s the standard instruction; that you’re--that he’s on trial for what’s charged in the indictment. And then y’all ean argue the similar acts, and you can argue it has to be on the 26th and so forth, But they’re told that the charge is on or about the 26th. But back to the alibi — Convery: So that’s denied to the extent that that charge would need to be further conformed the way I talked about? The Court: Yes." 98. When the discussion returned to trial counsel’s alibi instruction request, ASUA Richardson briefly commented on the manner in which the Government had charged Mr. Valas in the indictment: “And with regards to the charge in the indictment, the government frequently charges, and then, as the Court is aware, the instructions to the jury and the argument and the law is that it is ‘on or about,’ and that that has been held to be very loosely interpreted.”!”* 99, Trial counsel immediately retorted and argued: Well, that sounds -- may I? That sounds to me like a standup amendment to the indictment. This indictment’s erystal clear with respect to date. What's also crystal clear, I believe, is you can’t allege knowingly the way the evidence is in this case, that it's on or about and then talk about the 26th. But if it didn’t happen on the 26th, then it happened on the 27th, when it’s totally, completely within your power and your purview to allege both dates or to allege within a certain period of time before the statute of limitations. What she’s attempting to now rely on shows, if you will, either a misguided negligence with respect to the indictment or a scheme to confuse the jury. And I object.'* 122 Id., p. 595. 123 Id., p. 596. 14 7d., pp. 596-597. 51100. The trial court then asked trial counsel whether jeopardy attached to the alleged offense on August 27th if the jury retumed a guilty verdict for the August 26th alleged offense. The trial court also asked if jeopardy did not attach to the August 27th incident if Mr. Valas was acquitted: The Court: All right. Well, based on what Ms. Richardson {just said, then T would argue from the defense standpoint that jeopardy has attached on anything that happened on the 27th. On the other hand, if the jury were to find him - under the defense theory if the jury were to find him. not guilty of just the 26th, as opposed to using the ‘on or about,’ then could he not be indicted on what happened on the 27th? Mr. Convery: I don’t believe so, having been put to this, but not for the same reasons, necessarily, that the Court’s talking about. The government had control over that, created this confusion, made it clear to the Court-we brought up the similar acts. We objected earlier in the trial. This is not the time to change the indictment.'?5 101. The trial court ultimately ruled that jeopardy attached to the August 27th alleged encounter, but it denied trial counsel’s request for an alibi instruction and for a specific instruction on unanimity as to the date of the alleged offense.'”* 102. During the jury charge, the trial court first explained to the jury “that any statements, objections or arguments made by the lawyers are not evidence.”"”” The trial court also instructed the jury that the Government did “not have to prove the crime was committed on [an] exact date”: ‘You will note that the defendant [sic] charges that the offense was committed on or about a specified date. The government does not have to prove that the crime was committed on that exact date, so Jong as the government proves beyond a reasonable doubt that the 5 Id., p, 597. 16 T4., pp. 597-598. 127 d., p. 678. 52defendant committed the crime on a date reasonably near the dates stated in the indictment. 8 103. The trial court then gave the following instruction regarding how the jury could consider the evidence regarding the alleged August 27th encounter when deciding the guilt-innocence issue regarding the indicted offense date of August 26th: ‘You are here to decide whether the government has proved beyond 1a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct or offense not alleged in the indictment. Neither are you concemed with the guilt of any other person or persons not on trial as a defendant in this case, except as you are otherwise instructed. You have heard evidence of acts of the defendant which may be similar to those charged in the indictment but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other very limited purposes. If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment, or whether the defendant had a motive or the opportunity to commit the acts charged in the indictment, or whether the defendant acted according to a plan or in preparation for commission of a crime, or whether the defendant committed the acts for which he is on trial by accident or mistake. These are the limited purposes for which any evidence of other similar acts may be considered.!° 104, The trial court then explained the elements the Government had to prove beyond a reasonable doubt in order for the jury to return a guilty verdict. The Government had to prove that on or about August 26th Mr. Valas knowingly engaged in a commercial sex act with TJ., Id, pp. 683-684. 29 7d. pp. 684-685. 53that TJ. had not yet attained the age of 18, and Mr. Valas knew this fact, recklessly disregarded this fact, or had a reasonable opportunity to view T.J.!°° 105. The trial court then gave the following unanimity instruction: Unanimity of theory: You have been instructed that your verdict, whether it is guilty or not guilty must be unanimous. The following instruction applies to the unanimity requirement as to Count 1. Count 1 of the indictment accuses the defendant of committing the crime of sex trafficking of children in three different ways regarding the age of the person TJ. The first way is that the defendant knew that TJ had not attained the age of 18 years. The second way is that the defendant recklessly disregarded the fact that TJ had not attained the age of 18 years. And the third way is that the defendant had a reasonable opportunity to observe TJ when TJ was under 18 years of age. The government does not have to prove all of these for you to return a guilty verdict on Count 1. Proof beyond a reasonable doubt on one way is enough. But in order to return a guilty verdict, for Count 1, all of you must agree that the same way of committing the offense regarding the age of the person TJ has been proved beyond a reasonable doubt for Count 1 To find the government proved the second element of Count 1 beyond a reasonable doubt, all of you must agree that the government proved beyond a reasonable doubt that TJ had not attained the age of 18 years, and all of you must agree that the government beyond a reasonable doubt proved that the defendant knew TJ had not attained the age of 18 years; or all of you must agree that the government proved beyond a reasonable doubt that the defendant recklessly disregarded the fact that TJ had not attained the age of 18 years; or all of you must agree that the government proved beyond a reasonable doubt that the defendant had a reasonable opportunity to observe TJ when TJ was under 18 years of age." Id., pp. 686-687. 131 7d. p. 688. 54106. During AUSA Richardson’s closing argument, she argued to the jury that the “on or about” language in the indictment permitted the jury to convict Mr. Valas, even if it concluded that the alleged sexual encounter had occurred on August 27th: ‘The “on or about” date. There's no — the government indicted on the 26th. As long as you find that the acts, the criminal conduct occurred reasonably near the date of the 26th, then that's good enough. That’s why it says it's on or about. It doesn’t have to be exactly on the 26th, Doesn’t have to be exactly on the 27th. In fact, it doesn’t — it could be on the 25th for that matter, as long as it’s reasonably near the date in question, of the 26th.’” 107. In his closing argument, AUSA Barr repeatedly vouched for T.J.’s credibility when he argued to the jury why he believed her testimony was truthful. For instance, AUSA Barr began his closing argument by declaring, “It is true. It is true. ‘Trevonique Johnson is telling you the truth.” He further argued: Okay. So why is [T-J.] telling the truth? Because her story is indiscriminate and consistent, She has told her story to strangers, to law enforcement, to a sexual assault nurse examiner, to anybody who asked, to you folks, in her journal. And she has always been consistent, and she has always been indiscriminate.'** 108. AUSA Barr also argued that T.J. was credible and her testimony truthful because of the Backspace.com ads, the call and text records, the Hilton records, the SANE report, and her journal.'** 109, In vouching for her credibility and the validity of her testimony, while disparaging Mr. Valas’s credibility and testimony, AUSA Barr repeatedly described TJ. as a “truth-teller”: Valas agrees, right? Because he has to. He has to up to the point where everything corroborates her story. She is a truth-teller. But he wants you to believe that as soon as the documents stop, then he can come out and say she's not telling the truth. How convenient. "2 1d., p. 693. ' Id. p. 694. ™ Td., p. 695. 55He agrees, hey, I called her and I texted her on August ~ and we texted on August 26, 2013. He agrees that we called and texted on August 27th, 2013. He agrees that on August 26, 2013, in his hotel room, at his hotel room, that he made eye contact with her and had a conversation with her. He opened that door, and she was standing there. He’s willing to go up to that point because he knows he can't escape the corroboration. He'll say, yeah, I even saw her on the 27th. And he'll even corroborate, it was about 15 minutes. Well, she’s not -- she said that’s about the time, 15, 20 minutes. He's agreeing. So it's amazing to me how she’s a truth-teller all the way up to all of this, but conveniently, ata certain point in time, she stops being atruth- teller. 110. During trial counsel’s closing arguments, he first argued Mr. Valas had no way of ‘knowing T.J. was under 18, even if he had sexual contact with her, because of the way she was dressed during both encounters.'* Next, trial counsel argued that no forensic evidence corroborated her allegations.'*” Trial counsel then mentioned Jason Speltz’s testimony placing ‘Mr. Valas in the Texas Roadhouse restaurant from 9:00 p.m. to 10:30 pam. on August 26th, before grabbing exhibit D-9,'* the colored table trial counsel created documenting T.J.’s calls and texts on August 26th, and briefly mentioning some of the calls and text messages T.J. made and sent between 9:00 p.m, and 9:27 p.m. on August 26th. Now, you might think — and the prosecutor says, “Ha, you're ‘making it all up. There’s no proof of that whatsoever.” Well, keep looking with me. 9:01, 9:02, 9:02, 9:02, 9:04. This is TJ. at the time. This is T.J. at the time. 9:04, 9:06, y7. And, by the way, there’s texts in the margin. I’m not going through the whole exhibit with you only because of the amount of time that I have to have. But it’s 8/26/13. "35 1d., pp. 697-698. "6 ig. pp. 700-703. 7 id., p. 705. 138 Bx. 33, Trial counsel described this exhibit at Ex. 32, vol. 4, pp. 705-07, 710-11, but did not even direct the jury to trial exhibit D-9 to consider while deliberating. 56‘Now I’m down at the bottom at 9:07. Back to the top, 9:08, 9:09, 9:14, Okay. 9:16, a text from T.J. work phone to someone unknown, At 9:16 another text, 9:20, 9:23, 9:24, 9:25, 9:27. Oh, and another one to T.J. work phone, “how much,” you know, all of the other things that, by the way, are never included in any text with respect to Raymond Valas, with respect to anything that the prosecutor's going to show you.'*? 111. Trial counsel made no mention of the countless text messages and calls TJ. sent and made from her play and work phones between 10:00 p.m. on August 27th to 1:40 a.m. on August, 28th. 112. Trial counsel also stressed to the jury it had to premise its verdict on the charge listed in the indictment and that charge identifies only August 26th and not August 26th and/or August 27th, prompting an objection from ASUA Richardson that the Court ultimately overruled: Convery: Now, the government also wants the benefit of you saying, well, what about the 27th? You know, you can use -- you can use any date near or about, You can do all these things. You take a look at those. But most importantly, please look at what was charged in this case. What ‘was charged in this case is what we just went through, that time period of August the 26th, 2013 -- not either August 26th or August 27" or some other date in the future. Richardson: Your Honor, I object. That’s an inappropriate -- i iate -- an inaccurate statement of 113, During her rebuttal argument, AUSA Richardson told the jury the Government had no legal obligation to prove the exact date of the indicted offense: Several times during Mr. Convery’s statement he said to you: The government wants you to believe blah, blah, blah, whatever he said. Let me tell you exactly what the government wants you to believe. The government has indicted, the United States 139 Ex. 32, vol. 4, p. 707. ° Id.,p. 712. 37114, Contrary to T.J.’s direct-examination testimony, where she admitted that she had both the work phone and the play phone when she went to the Hilton on August 26th,'? AUSA Richardson argued T.J. had her play phone, but not her work phone, when she met with Mr. Valas both times. AUSA Richardson argued that Amber Doak had the work phone and was the ‘government has brought charges against Raymond Valas for the offense of sex trafficking of a minor for traveling into the Wester District of Texas in San Antonio, and then under the anonymity of the intemet and a cell phone, reaching out to four--or three different prostitutes, connecting with one of them not only digitally but physically on two occasions, and that prostitute was 15 years old. That is exactly what the government wants you to believe because that is exactly what the evidence establishes beyond a reasonable doubt. Mr. Convery mentioned to you the issue about August the 26th, 2013. The judge gave you the law, and the law is that the government is not held to establishing or proving the exact date of the offense; that if you find that the defendant did what the ‘government has charged the defendant with - “on or about” could be the 25th, 26th, 27th, 28th, 30th — if you believe he committed that offense, then he is guilty of sex trafficking of a minor. And that is the law.'*" person sending texting message from the work phone during both encounters: " id., p. 723. ' Bx. 32, vol Mr. Convery asked you to look at the defense phone summary, We're okay with their summary, too. They added in [T.J.’s] play phone data. It’s in evidence. [T.J.] told you on the stand, “Yeah, I had my play phone. I had it with me all the time.” But common sense tells you that while she’s on a date, in the midst of sexual activity, people may be texting in, but she's not texting out. [TJ] also told you that she did not manage the work phone. Amber [Doak], also known as Dymond, managed the work phone. Common sense tells you why that is. If you are running a sex trafficking organization, you do not put the work phone on the working girl because it’s going to be down for 30-minute increments at a time, Instead, a different person, usually a git], Dymond [Amber Doak] in this case, referred to as the bottom girl, .2, p. 290. 58manages the work phone. So don't get confused if you get back there and you're looking at those records.'** 115, Trial counsel did not object to AUSA Richardson's factual misstatements regarding TJs testimony. During direct examination, T.J. clearly stated she had both phones when she entered Mr. Valas’s room for both encounters.’ 116. Contrary to her opening statements, where she said T.J. was inside Mr. Valas’s room from 9:00 p.m. to 9:30 p.m. on August 26th, AUSA Richardson now argued the Government was entitled to some wiggle room regarding the alleged time frame. According AUSA Richardson, the August 26th encounter could have occurred between 9:16 p.m. to 9:50 p.m. or 9:50 and 10:43 pam: Now, was it exactly at 9:00? Well, just like the sexual assault nurse examiner, Dr. Ed Russell, told you, it is not only not uncommon. It is very frequent that victims of sexual abuse have a difficult time pinpointing exact hours and moments. But if you look at the phone records, you're going to be able to tell that on August the 26th, 2013, between 9:16 and 9:50 or between 9:50 and 10:43, both of those time spots there are no text messages going out from [T.J.”] phone.'> 117. The jury ultimately convicted Mr. Valas of count 1 in the indictment.'“* Cc Direct Appeal and Post-Conviction Investigation 118. Mr. Valas appealed, but the Fifth Circuit Court of Appeals affirmed in a published opinion. United States v. Valas, 822 F.3d 228 (Sth Cir. 2016). In its opinion, the Court of Appeals commented on the duplicity issue created by the way the Government indicted Mr. Valas and how it prosecuted him at trial: Wp * Bx. 32, voi. 4, pp. 725-726. 4 Bx. 32, vol. 2, pp. 289-290. '45 Ex. 32, vol. 4, p. 726. "46 Bx. 32, vol. 5, p. 753. 59We note that the indictment and the Government’s “on or about” argument might have raised a duplicity concern. The Government offered proof at trial and argued that Valas committed two sexual assaults against T.J., but only charged him in a single count indictment, alleging that the commercial sex act occurred “on or about” August 26. Charging two or more distinct and separate offenses in a single count is generally “unacceptable because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both.” Wayne R. LaFave et al., 5 Crim. Proc. § 19.3(d) (4th ed. 2015). However, Valas did not raise this issue on appeal, so it is waived. See Fed. R. App. P. 28(a); Yohey v. Collins, 985 F.2d 222, 224-25 (Sth Cir. 1993). Hd, at 237 0.7. 119, Mr. Valas retained undersigned counsel to conduct a post-conviction investigation and litigate his post-conviction relief. On March 1, 2016, counsel (Spencer) spoke with trial counsel regarding his view of Mr. Valas’s case. Trial counsel related to Spencer that he had told his barber about Mr. Valas’s case, and that his barber was skeptical. Trial counsel then told Spencer that he was surprised when Mr. Valas passed the polygraph test. Spencer inferred from these anecdotes that trial counsel doubted Mr. Valas’s innocence until he received the polygraph results in August 2014, 120. On January 26, 2017, Spencer interviewed trial counsel regarding Amber Doak. Trial counsel stated that before trial, he contacted Ms. Doak’s trial attomey, Judge Terrence McDonald, because he (trial counsel) wished to speak with Ms. Doak in preparation for Mr. Valas’s trial and knew that he required Judge McDonald’s approval to speak with Ms. Doak, Judge McDonald told trial counsel he could not speak with Ms. Doak because she was cooperating with the Government. When trial counsel pressed him, Judge McDonald also told ‘aim Ms. Doais did not have information ineipfui to Mr. Vaias. Based on his discussion with Judge McDonald, and his ethical duty not to speak to a represented party without her counsel’s 60consent, trial counsel did not interview or attempt to interview Ms. Doak before Mr. Valas’s trial” 121. On April 26, 2017, Mr. Valas’s post-conviction investigators located and interviewed Ms. Doak as an unrepresented individual and memorialized her statement into a formal affidavit.'** Ms. Doak mentioned the following regarding her recollections of T.J. a, First, TJ. always had both phones with her, the work phone and play phone. Ms. Doak said, “T.J. was very insistent that she wanted to answer her own calls[.]”"? Ms. Doak also said, “I was not answering calls or texts on the flip phone for T.J. while she was on out calls. TJ. had the phone and was communicating with the potential clients, including Ray Valas, ‘whom I knew as ‘the guy at the Hilton,’ herself.""%" . Second, Ms. Doak said, “When T.J. heard from the guy at the Hilton, who I now know as Ray Valas, in the afternoon on Monday, August 27, 2013, I heard her say that ‘the guy ‘wants to see me again, he just wants to talk.’”!S! Ms. Doak also said, “When I heard T.J. say that the guy at the Hilton just wanted to talk, I did not think that was unusual because I had clients that just wanted to talk. I was not paid to have sex, I was paid for my ‘time’; I actually had one client who would make dinner for me and just talk.”"* 122. On April 27, 2017, Mr. Valas’s post-conviction investigators interviewed T.J. in Houston, Texas. During the interview, J. discussed her journal at length. T.J., for instance, said she had written the journal while incarcerated at the juvenile detention center a couple of ™7 On March 23, 2017, counsel (Spencer) contacted Judge McDonald who confirmed trial counsel’s statement to her that trial counsel had requested to interview Doak and that Judge McDonald had declined his request. M8 bx. 34, \* ia, 97. 19 14.,4)9. ‘Td, 411. 132 14.413. 61‘months after her August 28th arrest.'* T-J. also said she had written the journal over a period of time and that she showed it to AUSA Richardson, AUSA Barr, and TFO Sweeney when she met with them on several occasions before Mr. Valas’s trial.'** 'T.J. said she wrote the journal in her ‘own words, not the Government’s, but she answered ambivalently when asked if the Government had ever asked her to re-write portions of it or to provide more detail regarding certain situations, Johns, and encounters. When asked these very specific questions, T.J. replied, “No, I’m not sure, yea I’m not sure.”"*> Moreover, when asked why she had re-written PART 1, T.J. said, “I guess to put it more in detail.”"*° When asked if she had incorporated the additional facts and details for herself or the prosecutors, TJ. said, “[FJor them I guess, so it would be easier.”!®” T.J., in other words, did not definitively reject the notion she may have written PART 2 of the journal at the Government's behest. The ambivalence and opaqueness of her testimony would have made for robust cross-examination—all directed at her credibility. 123 ‘As discussed above, the journal’s structure is quite peculiar because there are two distinct parts to it. PART 1 begins with a 15-page narrative that allegedly recounts what she did each day during her brief stint as a prostitute. PART 1 makes no reference to Mr. Valas, the “guy at the Hilton,” or an outcall at the Hilton. PART 2 starts on page 16 and is titled “My Story... In Details.” PART 2 is 80 pages, contains far more detail than PART 1, and mentions the two alleged encounters T.J. had with Mr. Valas on August 26th and August 27th. PART 2 discussed many of the activities and Johns mentioned in PART 1, but with significantly more detail. TJ., in other words, re-wrote PART 1 for some reason. PART 2°s written narrative goes 62from pages 16 to 95. At page 96, T.J. began a bullet-point timeline that chronicled each day she ‘was a prostitute, Under each date are bullet-points identifying the people, areas, encounters, and Johns she recalled from that day. Like a fictional story, PART 2 ends with the words, “The End." 124, On August 7, 2017, undersigned counsel interviewed Mr. Valas at FCI-Fort Dix and obtained an affidavit from him detailing his communications with trial counsel before and during trial and expressing his opinions regarding trial counse!’s advocacy and decision-making.’ Mr. \Valas firmly thinks trial counsel did not believe in his innocence until late August 2014, after he passed the polygraph results “with flying colors.”"' Trial counsel’s skepticism toward his innocence, Mr, Valas said, “impacted the way in which he prepared for [his] trial and actually litigated [his] trial.”"' Mr. Valas also expressed frustration at trial counsel’s closing arguments where he argued that he (Valas) could not be convicted for count one if he (Valas) reasonably believed T.J. look over 18. This greatly frustrated Mr. Valas because the “she looked over 18” defense was inconsistent with his primary defense of actual innocence. This defense also represented an implicit admission that Mr. Valas had sex with TJ." 125. Mr. Valas also expressed great frustration at trial counsel's attempt to have his polygraph results admitted at trial, Mr. Valas said trial counsel spent more time on the polygraph issue than any other issue at trial. ‘This confused Mr. Valas because the day after he had taken and passed his polygraph exam, trial counsel specifically told him the results were inadmissible at trial.'®* Mr. Valas was also extremely disappointed and angered when trial counsel never created the 158 Bx. 5. 1 Ex, 22, 38 14.49. ‘6! 14.47. ‘2 14.46. 18 1d, 9] 9-13. 63large charts, he had discussed before trial, highlighting all the text messages and calls TJ. had sent and made with her work and play phones during the times she claimed to have been with him on August 26th and 27th. 126, More egregious to Mr. Valas was that trial counsel failed to confront T.J. with the phone records and to have her explain how she could have been having sex with him while she was simultaneously sending countless text messages to her boyfriend, friends, and other Johns on her play and work phones. Mr. Valas created a detailed excel spreadsheet regarding the text ‘messages and calls that he emailed to trial counsel before trial that trial counsel ignored. Trial counsel responded to Mr. Valas’s email and confirmed receipt of the excel spreadsheet, but Mr. ‘Valas said he had no idea how or if trial counsel even used the spreadsheet to prepare for his defense.’ What is known is that trial counsel failed to present dynamic and conclusive evidence that in order to find the Mr. Valas guilty, the jury would have to believe that TJ. was talking and texting on her two phones while having sex with Mr. Valas. ‘Trial counsel failed to alert the jury to these inconsistencies and challenge T-J.’s credibility with the Government's exhibits. This was not a strategic decision. It was a failure of constitutional dimensions. IV. LEGAL ARGUMENT. A. — Mr. Valas Is Entitled to a New Trial Based on the Newly Discovered Statement of Amber Doak Pursuant to Rule 33 of the Federal Rules of Criminal Procedure. 1. Mr. Valas’s Post-Conviction Investigation Revealed New Evidence Unknown and Unavailable to Him Prior to Trial. 127, Before trial, trial counsel attempted to speak with Amber Doak, one of Mr. Valas’s co- defendants, t0 see if she knew anything about T.J. that could be favorable to Mr. Valas’s trial. ‘Ms. Doak’s trial attorney, Judge Terrence McDonald, prohibited trial counsel from speaking 14 See id., 41-5.with her because, at the time, she was cooperating with the Government. Based on Judge ‘MeDonald’s denial and state ethics rules, trial counsel could not ethically speak with Ms. Doak before Mr. Valas’s trial. This is so because while Ms. Doak pled guilty in March 2014, she was not sentenced under February 2015, meaning she was represented throughout Mr. Valas’s pre~ trial proceedings and trial. 128. Had trial counsel been permitted to interview Ms. Doak before trial, however, trial counsel would have learned what undersigned counsel learned when their agents interviewed Ms, Doak in April 2017 and obtained an affidavit from her. According to Ms. Doak, she clearly recalled August 27, 2013 when T.J. had told her she had heard from the guy at the Hilton again and that all he wanted to do was talk.'®* 129. This “he said, she said” case hinged on how the jury viewed and weighed T.J.’s and Mr. Valas’s credibility. T.J, testified Mr. Valas never stated his purpose in being with her was to talk. Instead, she said Mr. Valas had contacted her solely to have sexual relations with her and that she, in fact, had sexual relations with him on August 26th and August 28th. 130. Mr. Valas, on the other hand, testified that he made it clear to T.J. that all he wanted was to talk with her. This was the crux of Mr. Valas’s defense at trial. He admitted meeting with TJ. twice, once very briefly on August 26th and once on August 27th for 15 minutes, but he adamantly denied having sex or sexual contact with her on either occasion. In terms of the August 27th encounter, Mr. Velas testified in great detail regarding the conversation he had with TJ. as she sat on the comer of his hotel bed. He also presented the contemporaneous notes he had written shortly after his interview with TJ. indicating she was not a citable witness due to her lack of knowledge regarding the local gangs. 165 Bx. 34, 11. 65131. The then “unknown” evidence that was not presented to the jury supported Mr. Valas’s testimony and challenged T.J.’s, T.J. told Ms. Doak that the guy at the Hilton “just want[ed] to talk.” 'T.J.’s trial testimony was far different. The absence of Ms. Doak’s statement was prejudicial. 132. This was a case of credibility. ‘There was no forensic evidence or surveillance footage that supported the Government's case. Mr. Valas admitted that T.J. came to his hotel room. The sole question was—what happened in the room? Sex or not? When balancing the competing testimonies, it is more likely than not that had Ms. Doak informed the jury that T.J. told her on ‘August 27th that Mr. Valas only wished to talk with T.J. and not have sex with her, the jury would have voted for acquittal. Ms. Doak’s testimony would have been doubly beneficial to Mr. Valas, compounding the prejudice he suffered due to its absence. 133. First, it would have undermined T.J.’s credibility because it represented convincing evidence T.J. had lied on the stand, Based on this sharp discrepancy, the jury could have readily rejected the parts of T.J.’s testimony where she described in graphic detail what Mr. Valas allegedly did to her sexually on August 26th and August 27th. In other words, if she lied about the content of her conversations with Mr. Valas, she could have easily fabricated the parts of her testimony describing the sexual relations she allegedly had with Mr. Valas on August 26th and August 27th.'” 134, Second, it would have bolstered Mr. Valas’s credibility because it represented persuasive evidence, outside his own testimony, that he told T.J. he only wanted to speak with her and not 166 14, ‘St Bx. 32, vol. 4, pp. 680. The Court instructed the jury that it is “the soie judgef ] of the credibility or the believability of each witness and the weight to be given to the witness’ testimony,” and that it “should decide whether [it] believed] all or part of what each person had to say and how important that testimony was.”) 66have sex with her. Ms. Doak’s testimony would also have bolstered the testimony of the other defense witnesses who testified that Mr. Valas had discussed with them that he intended to and had interviewed prostitutes and street people as part of his research studies. Accordingly, had the jury been presented with Ms. Doak’s testimony, the “he said, she said” dynamic would have changed, as Ms. Doak’s testimony supported Mr. Valas and undermined TJ. The absence of this testimony prejudiced Mr. Valas, as it supported a jury determination that Mr. Valas’s testimony was credible and truthful and that TJs testimony was not. This finding would have then served 1s a basis to acquit Mr. Valas. Mr. Valas, therefore, is entitled to a new trial based on this newly discovered evidence. 2 Mr. Valas Is Entitled to a New Trial Under Rule 33. 135. Under Rule 33, a defendant is entitled to a new trial based on newly discovered evidence when (1) “the [new] evidence... was unknown to the defendant at the time of trial,” (2) the “failure failure to detect the [new] evidence was not due to a lack of diligence by the defendant,” (B) the new evidence is “material,” but (4) not “merely cumulative or impeaching,” and (5) the new evidence “would probably produce an acquittal” if introduced at a new trial. United States v. Franklin, 561 F.3d 398, 405 (Sth Cir. 2009). Mr. Valas satisfies this standard. 136, First, the content of Ms. Doak’s statement was unknown to trial counsel and Mr. Valas at the time of trial. As noted, trial counsel attempted to interview Ms. Doak before trial, but was prevented from doing so by Ms. Doak’s trial attomey. The inability to interview Ms. Doak rendered her current statement unavailable and unknown to trial counsel, 137. United States v, Gharbi, 347 Fed. Appx. 997 (Sth Cir. 2009) is instructive, In Gharbi, the new evidence was the testimony of a fugitive who was unavailable to testify at the time of trial. Jd. The defendant claimed he did not testify in his own defense because this particular 67witness was unavailable to corroborate his testimony. /d. The Fifth Circuit reasoned that, based on the defendant's admission, he had to have known the substance of the fugitive witness's statement before or during trial, and therefore the fugitive witness’s statement did not constitute newly discovered evidence, /d. at 998. Unremarkably, the Fifth Circuit held, when the defendant is aware of the exculpatory testimony before or during trial, whether the witness is unavailable due to his fugitive status or because he invoked the Fifth Amendment, the testimony does not constitute newly discovered evidence. Id. 138. Here, Mr. Valas was unaware of Ms. Doak’s conversation with TJ. regarding T.J.’s interactions with him and that she could have provided exculpatory testimony in support of his defense, Further, Ms. Doak was unavailable because her trial attomey instructed trial counsel not to speak with his client because she was cooperating with the Government, and counsel did not want to adversely impact Ms. Doak’s relationship with the Government. 139, Second, while “[d]ue diligence is a highly factual inquiry,” United States v, Piazza, 647 F.3d 559, 569 (Sth Cir. 2011), trial counsel diligently sought to interview Ms. Doak before trial, but ethically could not once Ms. Doak’s attomey instructed trial counsel not to speak with her. Ms. Doak, importantly, was represented by counsel through her sentencing in February 2015, well after Mr. Valas’s trial. 140. Once Ms. Doak’s attorney told trial counsel that he was not permitted to speak with Ms. Doak, trial counsel was bound by Texas Rule of Professional Conduct 4.02, which prohibited him from contacting Ms. Doak personally or through an agent to interview her regarding her knowledge of T.J.’s interactions with Mr. Valas. See Tex. Rule Prof. Conduct 4.02 (prohibiting an attorney, or an agent of an attorney, from communicating with someone “the lawyer knows to 68be represented by another lawyer regarding that subject, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”). 141. United States v, Piazza, 647 F.3d 559 (Sth Cir. 2011) is instructive. In Piazza, the Fifth Circuit Court of Appeals affirmed the district court’s decision to grant a new trial based on newly discovered evidence. Id. at 563-564, In Piazza, the defendant was convicted of being a felon in possession of a firearm based on evidence that he sold stolen guns to a neighbor. Id. at 559. Subsequent to the defendant’s conviction, a witness came forward with evidence that firmly supported the defense theory that the defendant’s brother had actually sold the guns. Id. at 563. 142, The witness in Piazza was unavailable to testify at the defendant's trial because he had been incarcerated shortly after the transaction was completed, and he had never been informed that the defendant was on trial in connection with the sale, although his (the witness’s) brothers and wife knew. Jd. The defendant was able to demonstrate he had no reason to believe this witness would be able to testify in this fashion because his only mode of discovering this exculpatory testimony — through the testimony of a third party, his other brother — was significantly hindered by his other brother’s unwillingness to talk with his attomey and was not due to a lack of diligence on the part of the defendant despite defense counsel’s failure to subpoena him. Id, 563-64. 143. The Fifth Circuit Court of Appeals found that the failure to interview the exculpatory witness was not the product of legal strategy, but because the defendant did not know about the existence of his brother's exculpatory testimony until after he was convicted because his other brother, who would have known about the exculpatory testimony, would not cooperate with the defense. Id. at 568. Because defense counsel called and attempted to contact the third party witness and interview him multiple times to no avail and even attempted to lure the third party 69witness to a meeting using other family members as a ruse without success, the court found that the defense had satisfied the due diligence requirement. Id. at 569. 144, Trial counsel exercised due diligence and sought to interview Ms. Doak. His effort to conduct an interview was rejected by Ms. Doak’s attomey and the exculpatory information she possessed was unknown and unavailable until she was approached as an unrepresented party by ‘Mr. Valas’s post-conviction investigators. Also, like the defendant in Piazza, Mr. Valas had no way of knowing that Ms. Doak had spoken with T.J. regarding her encounters with him and that the content of those conversations was exculpatory. 145. Third, Ms. Doak’s statement is “material.” Evidence “qualifies as material when there is any reasonable likelihood it could have affected the judgment of the jury.” Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (internal quotations and citations omitted). As explained supra, it is reasonably likely Ms. Doak’s statement “could have” easily “affected” the jury’s verdict because it bolstered Mr. Valas’s innocence narrative and undermined T.J.’s incriminating narrative. 146. Fourth, Ms. Doak’s statement is not “merely cumulative or impeaching.” A synonym of “merely” is “solely.”'* While Ms. Doak’s statement impeaches T.J.’s testimony and credibility, it does far more than this. In other words, the materiality of Ms. Doak’s statement is not based . To the contrary, “solely” on the fact it significantly impeaches TJ.’s testimony and credibi Ms. Doak’s statement is also exculpatory to the extent it corroborates Mr. Valas’s testimony that he only spoke with TJ. on August 26th and August 27th. Consequently, because Ms. Doak’s statement is not singularly impeaching and bolsters Mr. Valas’s exculpatory narrative, this factor is satisfied. 168 www.thesaurus.com/browse/merely (last visited August 1, 2017). 70147. Fifih, Ms. Doak’s testimony “would probably produce an acquittal” at retrial. The “would probably produce an acquittal” standard is equivalent to the preponderance, more likely than not, standard. United States v. Piazza, 647 F.3d 559, 563-564 (Sth Cir. 2011). Piazza is again instructive. ‘The new evidence in Piazza satisfied this standard. To answer this question, though, the Fifth Circuit first examined the trial evidence, particularly the defense evidence and whether it directly connected the defendant’s brother to the illegal guns or to the sale, At trial, the Fifth Circuit noted, the defendant's primary defense was that his brother was the person who actually sold the illegal guns. The defendant, however, presented no evidence directly connecting his brother to the illegal guns or to the sale, The newly discovered witness, however, would have provided direct evidence connecting the brother to the illegal guns, which, according to the Fifth Circuit, would have “greatly strengthened” the defendant’s primary defense at trial, making it more likely than not that the defendant would have been acquitted at trial had the new witness testified. Id. at 565-570. 148, Based on the Fifth Circuit's analysis in Piazza, Ms. Doak’s statement warrants relief. TJ's and Mr. Valas’s trial testimony corresponded on many of the factual issues at trial. For instance, Mr. Valas agreed that he texted and called T.J. on August 26th and 27th, agreed that TJ. came to his room on August 26th at about 9:00 pm., and agreed that TJ. came to and entered his room on August 27th. TJ.’s testimony comported with these aspects of Mr. Valas’s testimony. 149, The critical dispute at trial, however, was whether Mr. Valas had sexual relations with T.J. on August 26th and 27th or simply talked with her on both dates. T.J. claimed they had sexual relations, while Mr. Valas claimed they only talked. The only evidence supporting T.J.’s nm“we had sex” narrative was her own testimony, while the only evidence supporting Mr. Valas’s “we only spoke” narrative was his own trial testimony. 150. This case, therefore, is a classic “he said, she said” case, These cases often tum on the jury’s assessment of the accuser’s and defendant's credibility and truthfulness. One variable can often impact this assessment and ultimately impact the jury’s guilt-innocence determination. Napue v. Iinois, 360 US 264, 269 (1959) (“The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence”). 151. Here, that variable is Ms. Doak’s newly discovered statement that TJ. told her on ‘August 27th that the “guy from the Hilton” only wanted to talk. This new testimony, had it been presented at trial, would have significantly undermined T.J.’s credibility and truthfulness regarding the “we had sex” narrative and “greatly strengthened” Mr. Valas’s “we only spoke” narrative. 152. By greatly strengthening Mr. Valas’s “we only spoke” narrative, it is probable the jury would have found the defense witnesses credible, particularly Mr. Valas and those witnesses who said Mr. Valas had discussed with them that he intended to and had interviewed prostitutes and street people as well as those who described Mr. Valas as a person of the highest moral character. Likewise, by weakening T.J.’s “we had sex” narrative, it is probable the jury would have found the substance of her journal as well as her testimony regarding her journal less persuasive and more a trial prop than a factual remembrance. Collectively, had the jury made these findings based on Ms. Doak’s newly discovered evidence, it is more likely than not it would have acquitted Mr. Valas. B. Trial_and Appellate Counsel Provided Ineffective Assistance of Counsel Prejudicial to Mr. Vaias’s Defense and Direct Appeal,153. Mr. Valas has a right to effective trial counsel. U.S. Const. amend. 6; Martinez v. Ryan, 566 U.S. 1, 12 (2012) (“The right to the effective assistance of counsel at trial is a bedrock principle in our justice system.”). This right is “fundamental” because it “assures the fairness, and thus the legitimacy, of our adversary process.” Kimmelman y. Morrison, 477 U.S. 365, 377 (1986). Trial counsel’s purpose is to “test{] the prosecution’s case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged.” Martinez v. Ryan, 566 U.S. at 12. The right to effective representation, consequently, is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 (1984). Trial counsel, as a result, “has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Strickland v, Washington, 468 U.S. 668, 688 (1984). Consequently, unless a defendant receives effective representation, “a serious risk of injustice infects the trial itself.” Cuyler v. Sullivan, 446 U.S. 330, 343 (1980). 154, To prevail on an ineffectiveness claim, Mr. Valas must demonstrate trial counsel's performance was deficient and the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. at 687. The deficiency prong “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. This prong is “necessarily linked to the practice and expectations of the legal community: ‘The proper measure of attomey performance remains simply reasonableness under prevailing professional norms.” Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quoting Strickland v. Washington, 466 U.S. at 688). Thus, when a court reviews an ineffectiveness claim, “the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland v, Washington, 466 U.S. at 688. 3155. The prejudice prong requires showing a reasonable probability that, but for trial counsel's errors, the proceeding’s results would have been different. A reasonable probability ‘is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S at 694, This “is not a stringent” standard and is “less demanding than the preponderance standard.” Hall v. Kyler, 190 F.3d 88, 110 (3d Cir. 199); accord Kyles v, Whitley, 514 U.S. 419, 435 (1995); Nix v. Whiteside, 475 U.S. 157, 175 (1986). 156, “Judicial scrutiny of counsel’s performance must be highly deferential,” Strickland v. Washington, 466 U.S. at 689, meaning “a court must indulge a strong presumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Jd. The defendant has the burden of overcoming this presumption. Id. at 689. 157, If counsel’s decision is considered “strategic” his decision is “virtually unchallengeable.” Strickland v. Washington, 466 U.S. at 690. However, a decision cannot be considered “strategic” and “virtually unchallengeable” if it was “so ill chosen that it permeates the entire trial with obvious unfaimess.” Koon v. Cain, 277 Fed. Appx. 381, 385 (Sth Cir. 2008). Likewise, there is constitutionally significant “distinction between strategic judgment calls and plain omissions, and [the Court] [is] not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no decision at all.” Jd. 385-386 (alterations added) (citing Virgil v. Dretke, 446 F.3d 598, 611 (Sth Cir. 2006)); accord Loyd v. Whitley, 977 F.2d 149, 158 (Sth Cir. 1992); Moore v. Johnson, 194 F.3d 586, 604 (Sth Cir. 1999); Richards v. Quarterman, 556 F.3d 553, 564 (Sth Cir. 2009) (same). 158, Lastly, when determining whether trial counsel’s decision-making was objectively unreasonable, the Court must examine the evidence and information known to trial counsel 4before he made the challenged decision or omission. Rompilla v. Beard, 545 U.S. 374, 384-386 (2005) (the scope of trial counsel’s mitigation investigation was objectively unreasonable because trial counsel knew the Commonwealth intended to seek the death penalty and would do so by relying on Rompilla’s prior rape and assault convictions; despite this knowledge, trial counsel never obtained Rompilla’s rape and assault conviction case file); Wiggins v. Smith, 539 US. 510, 525 (2003) (“The scope of [trial counsel's] investigation was also unreasonable in light ‘of what counsel actually discovered in the DSS records.”). CQ ‘Trial Counsel’s Failure to Cross-examine T.J. and SA Gutierrez Easariing the Structure and nce of T.J.’s “Journal” or Wal the Timelin s Alleged Encounters with Mr. Valas Using Her Phone Records Constituted Ineffective Assistance of Counsel that Prejudiced Mr. Valas. 1. Trial Counsel Failed to Use Information in His File Pretrial to Impeach T.J. and SA Gutierrez. 159. This is a classic “he said, she said” case where every bit of evidence impacting a critical witness’s credibility and truthfulness can mean the difference between conviction and acquittal. ‘There was no more important Government witness to impeach than the accuser herself, TJ While it was imperative trial counsel presented Mr. Valas in a credible and truthful way, attacking, undermining, and discrediting T.J.’s credibility and truthfulness was far more imperative. If the jury disbelieved T.J.’s “we had sex” narrative, the likelihood of an acquittal increased exponentially to a point of near certainty. During pretrial discovery, trial counsel obtained two forms of evidence that raised substantial questions regarding T.J.’s credibility and truthfulness and serious doubts regarding her “we had sex” narrative regarding the August 26th and August 27th/28th encounters with Mr. Valas: (1) TJs journal and (2) the phone records regarding TJ.’s work and play phones. 15160, To expose the substantial questions regarding T.J.’s credibility, trial counsel had to present these documents to her on cross-examination and have her answer a plethora of difficult, yet illuminating, questions regarding the journal’s structure, creation, and the timing of its disclosure, as well as the timing and quantity of the text messages and calls she sent and made at the relevant times she was with Mr. Valas. Cross-examination, as the U.S. Supreme Court has recognized, “[is] the greatest legal engine ever invented for the discovery of truth{.]” California ¥, Green, 399 USS. 149, 158 (1970). Outside of DNA evidence, this is absolutely true, but only if trial counsel effectively uses each arrow in his quiver during cross-examination to methodically deconstruct and undermine the witness’s-or in this case, the accuser’s-accusation against his client. 161. Here, trial counsel’s quiver was fully stocked when trial began. When trial ended, however, his quiver was still fully stocked because he failed to present the journal and phone records to TJ. on cross-examination. Trial counsel failed to ask numerous fundamental questions regarding the joural’s peculiar structure, disclosure, and factual allegations. Likewise, trial counsel failed to ask TJ. to explain how she was able to send at least 15 text messages between 9:00 p.m. and 9:30 p.m. on August 26th, with never more than eight minutes without an outgoing text or call, if she was engaging in a commercial sex act with Mr. Valas during this period. These records do not lie. The simplest of questions would have undercut her credibility, beginning with a laying of a foundation that because Mr. Valas was paying for sex, she provided him with her complete attention and that their 30 minutes was uninterrupted by other distractions. Then, trial counsel should have walked through the multitude of calls and texts and asked if while she was in the sexual positions she described, she had in each hand her play and work phones and was quickly responding to texts and answering calls. Additionally, trial 16counsel failed to ask T.J. to explain how she was able to send at least 27 text messages and make at least 3 calls between 10:00 p.m, and 11:00 p.m. on August 27th, which is the time frame Mr. Valas said he met with TJ. for 15 minutes, with never more than ten minutes without an ‘outgoing text or call. Lastly, trial counsel failed to ask T.J. to explain how she was able to send at least 20 texts messages between 1:00 am, and 1:30 a.m. on August 28th, which is the time frame TJ. claimed on direct examination that she was engaging in a commercial sex act with Mr. ‘Valas, with never more than four minutes without an outgoing text or call. 162. Trial counsel made no effort to use the telephone records to undermine T-J.’s credibility or to bolster Mr. Valas’ testimony. Trial counsel never asked Mr. Valas if T.J. was talking and texting while they were together. 163. Precise and focused questioning would have been embarrassing but illuminating, if strategically performed. The sexual positions that T.J. so graphically and effectively described in in the Government's case could be lampooned on cross-examination with TJ. being forced to explain how she was having sex and monitoring her phones at the same time, never mind digitally typing her responses or inquiries. 164. If trial counsel's purpose is to “test{] the prosecution's case to ensure that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged,” Martinez v, Ryan, 566 U.S. 1, 12 (2012) (emphasis added), that did not happen in Mr. Valas’s case, not even close. Likewise, if the right to effective representation is “the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing,” United States v. Cronic, 466 U.S. 648, 656 (1984), that too did not happen in Mr. Valas’s case, not even close. 11165. In the end, the right to effective representation is the “great engine by which an innocent man can make the truth of his innocence visible[.]” Luis v. United States, 136 8. Ct. 1083, 1089 (2016) (quotations and citation omitted). Here, by not forcing T.J. to answer countless questions regarding the journal and phone records, trial counsel fell woefully short of making the “truth” of Mr, Valas’s “innocence visible.” Jd. Mr. Valas, therefore, is entitled to a new trial because the failure to cross-examine T.J. regarding the journal and phone records undermines confidence in the jury's verdict. Put differently, had trial counsel thoroughly questioned TJ. regarding these items of evidence, it is reasonably probable her answers or non-answers “would have altered at least one juror’s assessment” of the Government's and T.J.’s “we had sex” narrative, requiring reversal. Cone v, Bell, 556 U.S. 449, 452 (2009). 2. TJs Journal Contained Internal and External Peculiarities and Inconsistencies. a, The contents, structure, and timing of disclosure of the journal gave rise to pre-trial investigation obligations on the part of trial counsel. 166. When T.J. underwent her SANE examination on August 29, 2013, she mentioned to Dr. Russell that she had had sex with one guy twice.’ T.J., though, never described this man or mentioned that he was the guy from the Hilton, That same day, August 29th, when TFO ‘Sweeney interviewed T.J., she said she had one outcall to room 420 at the Hilton by the airport on August 26th. The FBI interv and spearheaded the investigation. Based on the pretrial discovery, between August 2013 and October 2013, the FBI interviewed T.J. on three separate dates: September 10, 2013,!” September 12, 2013," and October 13, 2013.' During these ‘eptem! 16 Bx. 4, p. 29. 18 Bx. 3, p. 3. Bx. 8. 1? Ex. 9. 8 Ex.10, Binterviews, T.J. never once mentioned Ray Valas or the Hilton outeall mentioned in Sweeney's report. When the FBI re-interviewed her a fourth time on February 10, 2014, T.J. mentioned ‘one out call to room 420 at the Hilton on August 26th.'* 167. On May 7, 2014, the Government filed a one count indictment charging Mr. Valas with knowingly recruiting, harboring, and having sexual relations with T.J., a female under 18, in violation of 18 U.S.C. §§ 1591(a) and 1591(b)(2). The indictment alleged Mr. Valas recruited, harbored, and had sexual relations with T.J. “on or about” August 26, 2013.'"> The indictment made no allegations regarding August 27 or 28, 2013. 168. On July 17, 2014, Malcolm Copeland’s attomey, John Economidy, received T.J.’s “journal” from the Government.' Economidy quickly read the journal and learned that, contrary to allegations made in Mr. Valas’s indictment, the entries in T.J.’s journal clearly indicated she allegedly had sex with Mr. Valas on two separate occasions that occurred on two separate dates: August 26th and August 27th. Economidy emailed trial counsel on July 19, 2014 and informed trial counsel of this significant variance between the indictment and what was alleged in T.J.’s journal.'” 169. The journal’s structure is quite peculiar, to say the least, because there are two distinct parts to it. PART 1 begins with a 15-page narrative that allegedly recounts what she did each day during her brief stint as a prostitute. PART 1 makes no reference to Mr. Valas, the “guy at the Hilton,” or an outcall at the Hilton.'’ PART 2 starts the narrative over again on page 16 and 1 Bx. 12, p.3. *5 Bx. 1. 178 xs. 16, 5. "7 Bx. 16. 178 Bx, 5, pp. 1-15.is titled “My Story... In Details.” PART 2 is 80 pages, contains far more detail than PART 1, and mentions the two alleged encounters T.J. had with Mr. Valas on August 26th and August 27th." PART 2 discussed many of the activities and Johns mentioned in PART 1, but with significantly more detail. T.J., in other words, started over and re-wrote PART 1 for some reason. PART 2°s written narrative goes from pages 16 to 95. At page 96, TJ. began a bullet- point timeline that chronicled each day she was a prostitute. Under each date are bullet-points identifying the people, areas, encounters, and Johns she recalled allegedly from that particular day. Like a fictional story, PART 2 ends with the words, “The End.”"*! 170. The substance of T. s journal, particularly as it relates to Mr. Valas’s prosecution and indictment, raises this fundamental question: If the Government possessed T.J.’s journal before May 7, 2014, when it indicted Mr. Valas, why did it not file a two count indictment against Mr. Valas, one count for each separate commercial sex act that allegedly occurred on August 26th and August 27th? T.J.’s journal clearly notes Mr. Valas twice paid her $150 for 30 minutes of sex. Two separate commercial sex acts on two separate days constitute two separate criminal offenses chargeable under two separate counts. 171, The most reasonable answer is that T.J. tumed her journal over to the Government sometime after May 7, 2014, but this raises additional questions. For instance, when did T.J. first tum over her journal to the Government? When she first turned it over to the Government, did it only consist of the first 15 pages? Did the Government read the journal? If so, when did the Government first read the joumnal? For instance, did the Government photocopy the journal the day it received it from TJ. and then read the photocopied version at a later date? Or did the "7d. p. 16. 180 7d., pp. 16-95, 75-77, 84-86. 181 7d., pp, 94-102, 95. 80Government read the journal in one sitting with T.J.2. If the Government read the journal, did it make notes regarding the journal’s entries? Once the Government read the journal, did it meet with T.J, again to discuss the journal? If so, how often did the Government meet with T.J.? What did the Government say about the journal during these meetings? Did the Government ask TJ. to provide more detail regarding each day she prostituted? Were there prior drafts of the journal? A reasonable trial attomey would have thought of all these questions based on the sequences of events, the Superseding Indictment’s factual allegations, and the factual allegations made in T.J.’s journal. Long story short, a reasonably competent trial attomey would have been on high alert that something was amiss regarding the joumal’s substance and the timing of its disclosure to the Government and then the defense. Trial counsel, unfortunately, did not think of, ask, or pursue any of these or other questions regarding the journal 172, At Malcolm Copeland’s trial, Economidy believed that the T.J.’s “journal” represented a “statement” as to what allegedly happened to her during the week she had worked as one of ‘Marcus Wright’s prostitutes. When Economidy cross-examined T.J. regarding the journal he described the journal as a “52-page statement,” prompting AUSA Bettina Richardson to object to his characterization because, to her and the Government, the 52-page document represented TJs joumal that she had written contemporaneously or shortly after the SAPD had taken her into custody on August 28, 2013: Economidy: Did you write a 52-page statement? Excuse me? Did you write a 52-page statement? ‘When? When? Economidy: Oh, I don’t know when you wrote it, but did you write a statement at any time? 81Th 1 don’t recall. Richardson: Your Honor, can we approach? Court: Yes (At the bench) Richardson: These are joprnal entries. They are not a formal statement. And so he’s confusing her. She doesn’t understand the legal terminology. This is a journal that she showed us. And out of the abundance of caution and cooperation I provided it to defense counsel so that he would have it. But it’s actually a diary or a journal that she wrote. It’s not law enforcement.'*” 173. When AUSA Richardson moved to admit T.J.’s journal into evidence, Economidy objected: “The defense would object on the grounds, number one, it’s hearsay. And, number two, it’s not made contemporaneous with the event. It’s made about a month later.” AUSA Richardson remained silent when Economidy argued that TJ. had not written the “joumal” entries contemporaneously to when they had allegedly occurred. The Court overruled Economidy’s objection and entered T.J.’s journal into evidence.'** 174,On August 27, 2014, the Government disclosed a copy of T.J.’s joumal to trial counsel.'** The journal, as explained, contained substantial impeaching evidence that trial counsel could have used to methodically and powerfully cross-examine T.J. and SA Gutierrez. Trial counsel, though, inexplicably and inexcusably failed to cross-examine T.J. or Agent Gutierrez using both the journal’s structure and factual allegations. b. TJs testimony is undermined by the records as to both the August 26th date and the August 27/28th date. "82 nx, 20, voi. 2, pp. 314-3) 18 1d., p. 328. "4 Td., p. 328. "5 Dx. 24, pp. 1-2. 82175. On cross examination, trial counsel introduced T-J.’s journal and used it to question her. Trial counsel, though, ignored key aspects of the journal that he should have used to impeach her narrative. For instance, the only question trial counsel asked regarding when exactly TJ. had written the joumal was one the Government would have wanted to ask her: “And you wrote that journal way before sitting here today?” To which T.J. replied, “Yes, I did.”"** 176, Trial counsel did not ask the obvious follow-up questions: (1) “when exactly did you write the journal?” (2) “August 20137”; (3) “September 20137"; (4) “October 20137”; (5) “November 20137” (6) “December 20137”; (7) “January, February, March, April, May, June, or July of 20142”"*7 Also, because the journal has two distinct parts (PART 1 and PART 2), trial counsel failed to ask a single question regarding this peculiar aspect of the journal. For instance, trial counsel failed to ask when she had written PART 1 and when she had written PART 2. Furthermore, PART 2 of the journal is basically a retelling of PART 1, but with greater detail. Based on this distinction, trial counsel failed to ask why she felt so compelled to re-write PART 1 with so much more detail in PART 2. This should have then led to questions regarding whether the Government directly asked her or indirectly suggested to her that she re-write PART "86 Bx. 20, vol. 2, pp. 323-324. "87 In a post-conviction interview with Mr. Valas’s investigators on April 27, 2017, T.J. said she wrote the joumal when she was incarcerated at the juvenile detention center a couple months after her August 28, 2013 arrest. Ex. 35,8. Had trial counsel asked this question and received this answer, her answer begs the question of whether the FBI asked or suggested to her that she write a “journal” detailing her time as a prostitute. ‘TJ. also told Mr. Valas’s investigators that she wrote the journal over a period of time and that she met with AUSA Richardson, TFO Sweeney, and AUSA Barr and showed them the journal when she met with them. While she denied that they told her what to write, she answered ambivalently when asked if the Government ever asked her to write more during any of the times that she met with them, saying, “no, I’m not sure, yea I’m not sure.” Ex. 28. This line of questioning, like all others mentioned above, would have set the foundation for impeaching both the journal and T.J., as well as the prosecutors. 831 with much more detail, including details from her two alleged encounters with Mr. Valas. ‘Trial counsel also failed to ask T.J. where she had written PART | and PART 2. 177. Speaking of content, PART 1, as noted, did not mention a single word about Mr. Valas or the guy from the Hilton. Trial counsel, however, failed to ask T.J. why she mentioned nothing about her two sexual encounters with the guy at the Hilton in PART 1, but mentioned a great number of facts about these two alleged encounters in PART 2. Again, this begs the question of whether the Government prompted T.J. to re-write PART 1 of the joumal with much more detail, including those regarding Mr. Valas. 178. Trial counsel could have further explored the content issue by asking TJ. why PART 1 and particularly PART 2 of her journal contained so much more detail than her initial statements to Dr. Russell, the SANE examiner, and TFO Sweeney. Indeed, PART 2 of her journal contains countless details regarding her two alleged sexual encounters with Mr. Valas that are not mentioned during her interviews with Dr. Russell or TFO Sweeney the day after she was arrested. The same can be said regarding T.J.’s four (documented and disclosed) interviews with the FBI. These interviews contained almost no information regarding the guy from the Hilton. ‘The only time T.J. mentioned the guy at the Hilton to the FBI was during her February 10, 2014 interview when she said she had one outcall to the Hilton 420 on August 26th. 179, The lack of detail in her statements regarding the guy from the Hilton raises additional questions as to when exactly TJ. wrote PART 1 and PART 2 of her journal. If she had written the journal shortly after her arrests, like in September, October, November, or even December of 2013, one would assume she would have conveyed all the details contained in her journal to the FBI during her interview with TFO Sweeney on August 29, 2013, or during her four interviews with the FBI between September (2013) and February (2014). Again, this would have been a 84productive avenue of cross-examination for trial counsel, but trial counsel failed to ask any such «questions as to why her statements lacked the same detail as contained in PART 2 of her joumal. 180. In terms of organization, a noticeable structural abnormality is T.J.’s bullet-point timeline toward the very end of PART 2.'* Journals that claim to memorialize the events of a particular day are generally written chronologically in narrative form, not bullet-point form. This, then, begs the question of whether the Government prompted T.J. to re-write PART 1 of the joumnal and fo use this type of format to quickly and efficiently highlight what she did and ‘who she met each of the 10 days she was a prostitute. 181, Trial counsel also failed to ask T.J. when she first gave the journal to the Government, ‘The Superseding Indictment’s factual allegations (or lack thereof) represent strong evidence that the Government had yet to receive and review PART 2 of the joumal before May 7, 2014 (or the day it indicted Mr. Valas)."" If the Government had received PART 2 of the journal before May 7, 2014, the Government surely would have filed a two count indictment charging him with two separate and distinet commercial sex acts with T.J., one on August 26th and one on August 27th, This, consequently, begs the question of why TJ. failed to disclose PART 1 and PART 2 of journal to the Government before May 2014, 182, A related question trial counsel failed to ask is whether the journal only contained PART 1 when she initially disclosed it to the Government, and if so, why did she re-write PART 1 in much greater detail in PART 2? When TJ. disclosed the “journal” to the Government, did the Government immediately go over the journal’s contents with her, or did the Government take 188 Ex. 5, pp. 96-102. 18° Because PART 1 of the journal contains no factual allegations against Mr. Valas or the guy from the Hilton, it is entirely plausibie T.J. turned over hner journal to the Government sometime before May 7, 2014. However, because PART 2 of the journal contains numerous graphic details of T.J.’s alleged sex acts with Mr. Valas on August 26th and August 27th, it is reasonable to say the Government did not have and had not read PART 2 before it filed the indictment. 85custody of the journal, read it, and then bring her back into the office and go over it with her there? If the Government discussed the journal with T.J., how often did it discuss the journal with her and what did it tell her about the journal? For instance, because all of TJ.’s (disclosed) statements fail to mention two separate sexual encounters with Mr. Valas, did the Government ask her why her journal discusses two separate sexual encounters with him? Likewise, did the Government coach her as to how she should answer questions regarding the journal? If the Government explicitly asked or implicitly suggested that she re-write PART 1 of the journal, when did this conversation occur and when did T.J. actually write PART 2 of the joumal? Again, all these questions had the very real potential of undermining the journal’s factual allegations, which in turn would have painted T.J. as someone willing to fabricate a story simply to get out of trouble for her probation violations and be seen as a victim in the Government's and jury’s eyes. 183. Trial counsel also failed to cross-examine T.J. on material inconsistencies between her prior statements and the journal. For example, in her August 29, 2013 interview with TFO Sweeney, she said Ms. Doak had given her condoms and that she (T.J.) had used a condom on every date.'® However, in her journal and on the stand, T.J. said neither she nor Mr, Valas had a condom during the commercial sex act on August 26th.'*' Trial counsel failed to expose this material inconsistency. Likewise, in her journal, when describing the August 26th encounter with Mr. Valas, she wrote that Mr. Valas “put his penis on [her] breasts, [and] he was just having sex with my breasts.”!%* At trial, however, T.J. said she did not remove her bra during the August 26th encounter with Mr. Valas, raising the question of how Mr. Valas could repeatedly 19 Bx. 3, p.3. 19) Bx. 5, p. 76; Ex. 32, p. 302. 12 Bx. 5, p. 76. 86penetrate his penis between her breasts if she was wearing a bra.'% Had trial counsel cross- examined her on these inconsistencies, AUSA Barr could not have argued during closing argument that T.J.’s journal was “consistent” with her testimony.'** 184, Collectively, therefore, trial counsel’s utter failure to ask an assortment of probative and impactful questions regarding the journal, deprived the jury of significant impeachment evidence that would have discredited T.J.’s character, testimony, and “we had sex” narrative. 185. Moreover, probing these inconsistencies would have called into question whether the ‘Government purposely refused to amended the indictment out of concem that by doing so would have automatically called into question T.J.’s overall credibility regarding her alleged encounters with Mr. Valas. The Government, as convincingly explained above, did not have the journal — or at least PART 2 of the journal — before it indicted Mr. Valas, because if it had had PART 2, it would have filed a two count indictment, not a one count indictment against Mr. Valas because PART 2 of the journal clearly identifies and discusses two separate commercial sex acts between Mr. Valas and T.J. However, if the Government would have amended the indictment, after it had received the joumal or PART 2 of the journal, a reasonable trial attorney would have highlighted that the FBI and state authorities interviewed T.J. at least five times before the Government filed its one count indictment on May 7, 2014, and T.J. had disclosed only one commercial sex act at the Hilton with someone she believed was Mexican. Had she provided sufficient details regarding a second alleged commercial sex act on August 27th, the Government ‘would have filed a two count indictment on May 7, 2014, not a one count indictment. 3. The Text Message and Call Records from T.J.’s Work and Play Phones Undermine the Narrative in Her Journal and Testimony Regarding Her Encounters with Mr. Valas. 193 Bx. 32, vol.2, p. 301. 14 Bx. 32, vol. 4, p. 695. 87186, Trial counsel also rendered prejudicially ineffective assistance by failing to confront T.J. with the text message and call records from her work phone and play phone and forcing her to explain how she was able to send so many text messages and make and receive various calls from both phones while allegedly having sexual relations with Mr. Valas. The text message and call records, therefore, represented powerful exculpatory and impeachment evidence. They are exculpatory because based on the timing and quantity of the text messages and calls, it is painfully obvious to any lay person reviewing them that T.J. could not have engaged in commercial sex acts with Mr. Valas between 9:00 p.m. and 9:30 p.m. on August 26th, between 10:00 p.m. and 11:00 p.m. on August 27th, or between 1:00 a.m. and 1:30 a.m. on August 28th. ‘The nature and number of text messages and calls are impeaching because they are so obviously exculpatory. Had trial counsel methodically and comprehensively questioned TJ. regarding every relevant text message and phone call, the jury would have easily concluded that T.I.’s “we had sex” narrative was a farce, that T.J. was blindly adhering to the seript of her journal, and that she was willing to falsely implicate an innocent man, a. TJ's testimony is undermined by the records as to both the August 26th date and the August 27/28th date. i August 26th Records 187. At trial, on direct-examination, TJ. testified she arrived at Mr. Valas’s room at 9:00 p.m. on August 26th, TJ. also clearly said, on direct, she had both the work phone and play phone when she entered the Hilton and entered Mr. Valas.'** T.J. also testified, on direct, she answered Mr. Valas’s calls or text messages to her work phone and called him from her work phone.!% 185 Ex. 32, vol. 2, pp. 282, 289-290. 196 id., pp. 308-309. 88Mr. Valas also testified that T.J. came to his room no later than 9:02 p.m.’ Thus, the undisputed relevant time frame for the August 26th alleged commercial sex act is between 9:00 pam, and 9:30 pm. The text message and call records disclosed to trial counsel showed that T.J. sent 15 texts messages from her play phone and work phone during this time period. Indeed, the trial counsel created exhibit, D-9, a table/chart chronicling T.J.’s phone usage for August 26th. Here are the 15 text message T.J. sent between 9:00 p.m. and 9:34 p.m.:'* Duration/Message ‘Date and Time ‘Number Di ‘Number 8263 (8:54 ] 830-281-0017 | 210-717-0813 | “611 northwest pam.) loop 410 hilton” (text from T.J. play _ phone to Copeland) B63 (8:54 | 830-281-0017 | 210-606-2959 | “hotel” (text from pam.) T.l. play phone to unknown) “Bout to Fat. Did you Get The Pi 8/26/13 (8:54 | 830-281-0017 pm.) (text trom TJ. play phone to Rhone fe me Treyveon) 726/13 56 | 830-281-0017 | 210-209-0350 | “You're my p.m.) Everything Daddiie” (text from TJ. play phone to boyfriend) 8/26/13 830-281-0017 [210-209-0350 [“I want This p.m.) Forevermore” (text 197 Ta, p, 423. 198 Exs. 6,7, 11, 18. Yellow shading indicates a call or text from T.J.’s play phone. Red shading indicates a text from T.J.’s work phone, Green shading indicates a cali trom T.5.'s work phone. ‘The report produced by the Government detailing T.J.’s work texts stops at 6:12 p.m. on August 27, 2013. Trial counsel did not obtain the texts from T.J.’s work phone into August 28 Although Mr. Valas’s post-trial investigators attempted, they were unable to obtain from AT&T. 89from Ti. play = = phone to boyfriend) B63 (9:01 | 830-281-0017 | 210-209-0350 [~Babe 1 Wanna pm) Have Kids” (text from TJ. _ play ae phone to boyfriend) | 8/26/13 (9:02 | 830-281-0017 210-606-2959 “People” (text from pam.) T.J. play phone to unknown) 8/26/13 (9:02 | 830-281-0017 | 210-209-0350 On Babe p.m.) Lol” (ext from T.I. play phone to boyfriend) :04 | 830-281-0017 | 210-606-2959 |“Na you a pan.) Bullshitter Boo Im Not Bout To Get My Hopes Up for Nun Sorry” (text from TJ. play ___| phone to unknown) 8/2613 (9:06 | 830-281-0017 | 210-606-2959 [I Don't Believe pm.) You Sorry” (text from TJ. play il : _ _____| phone to unknown) 8/26/13 (9:06 | 830-281-0017 | 210-209-0350 | “Okay:) And Kall pm.) Me Back Faget” (text from TJ. play ae phone to boyfriend) 8/26/13 (9:07 | 830-281-0017 | 210-209-0350 | “Kall Babe” (text p.m.) from Tu. play phone to boyfriend) 830-281-0017 {210-409-6433 | “Heyy. My Bad p.m.) was Doin Su (text from TJ. play phone to Brenna Dobbiwork) jplione’ uknawa) SIGNS ‘254-368-7129 “What do ~ “vou pam) mean™ ‘(text from Tak work phune to ‘anksown) SIS O27 | BA SOR TI | T10-895-7829 | HO ALERT ew pam) from TL work jong 6 uaknowit} SA0IS AS] S4SORAIT | DIOSSS- 7820" | 20 is the lowest I pink) Sots OBO) EIT | Se BA EA pam) donation ‘how love you Want” ext from TL. work _plione fo uaknown) S2G1T (O34) Ase). PSI ed | “Ves” (ext om pm) TAL wok phone unknown) 188. During closing arguments AUSA Richardson argued contrary to T.J.’s testimony that Amber Doak had T.J.’s work phone.” AUSA Richardson’s argument not only misrepresented the trial evidence, because T.J. clearly said she had both phones when she entered Mr. Valas’s room, the text message that T.J. sent at 8:56 p.m. from her work phone to Mr. Valas, “What's your room number,” debunks AUSA Richardson's argument. If TJ. did not know Mr. Valas’s room number and needed to contact Wright, Copeland, or Ms. Doak to send her the room number, T.J. would have either called or texted Wright, Copeland, or Ms. Doak from her (T.J.’s) play phone. Wright’s, Copeland’s, and Ms, Doak’s numbers, however, are noticeably absent from T.J.’s phone records, so too are any calls or texts to T.J.’s play phone from the work 1° Bx, 32, vol. 4, pp. 725-726. 91phone. More importantly, if Ms. Doak was the person who sent the 8:56 p.m. text message to Mr. Valas asking for his room number, Ms. Doak (Wright or Copeland) would have then had to text Mr. Valas’s room number to T.J.’s play phone or would have had to call T.J.’s play phone and give her Mr. Valas’s room number. Any such call or text from Ms. Doak, Wright, or Copeland is noticeably absent from T.J.’s phone records. Therefore, the call records indisputably support T.J.’s testimony and Ms. Doak’s affidavit that TJ. had both phones when she went to the Hilton. 189, Remarkably and inexplicably, despite the fact trial counsel created exhibit D-9 before trial and got it pre-admitted as evidence, trial counsel never confronted T.J. with D-9."" Thus, trial counsel never asked her to explain how she could have possibly been engaged in a commercial sex act with Mr. Valas between 9:00 p.m. and 9:30 pm. when she was simultaneously sending text message after text message to her friends, her boyfriend, and other prospective clients. Because the phone records were indisputable and in black and white, there ‘was no strategic reason for not confronting T.J. with these records and forcing her to explain how it was possible she was doing both at once, especially after Mr. Valas had allegedly paid her $150 for 30 minutes of her undivided attention. 190. Had trial counsel confronted T.J. with these records and methodically questioned her regarding cach and every text message, it strains credulity to believe that a reasonable jury could find Mr. Valas guilty of the indicted offense beyond a reasonable doubt when T.J. sent 15 text 200 If Ms. Doak had the work phone, it is entirely plausible she communicated with T.J. by using the work phone. However, if this were true, T.J.’s call and text records wouid have reveaied incoming calls and text messages from the work phone. No such calls or text are listed in T.I.’s call and text records. 21 Ex. 33. 92messages between 9:00 p.m. and 9:34 p.m. Moreover, the text messages were evenly spaced out over this 34 minute period, meaning she was sending text messages every few minutes. 191. This is especially so because when asked during the post-trial investigation if she remembered taking any calls or texting while she was with Mr. Valas or with any client, TJ. confidently answered, “No.” A post-trial analysis of T.J.’s phone records confirmed that when TJ. reported being with other clients, there were periods of time with no phone activity on either phone to correspond with the times she alleged that others paid for her time. No such periods of inactivity existed when she claimed to have been with Mr. Valas.””* 192. In other words, to believe TJ.’s “we had sex” narrative, the jury would have had to believe T.J. was simultaneously sending text messages and making and receiving calls from two different phones while giving Mr. Valas a blowjob, allowing Mr. Valas to repeatedly thrust his penis between her breasts (while wearing her bra), and allowing him to hump her from behind to the point of ejaculation while she lay face down on his bed, and that Mr. Valas had no qualms with her telephonic distractions, even though he allegedly paid $150 for 30 minutes of her undivided attention, which, when asked by Mr. Vala’s post-trial investigators, T.J. admitted she did not do. No reasonable jury would have made this assumption or come to this conclusion had it been properly and thoroughly presented with this exculpatory evidence. 193. These records had exculpatory value, Trial counsel, however, completely failed in ‘making this exculpatory value visible, tangible, and impactful to the jury. Yes, trial counsel grabbed exhibit D-9 during closing arguments and quickly identified some of the text messages TJ. had sent between 9:00 p.m. and 9:30 p.m. on August 26th,”™ but trial counsel's very short, 202 By. 35, Ff 25, 34. 2 Bx. 36, 0 Bx, 32, vol. 4, p. 707. 93decontextualized argument was too little, too late. It would be like counsel in the OJ Simpson trial simply saying during closing argument, “There is also the glove,” and nothing more. The context in which these calls and texts were made and sent drove home their exculpatory nature, but trial counsel failed to provide any sort of context when briefly discussing the calls on August 26th, 194, To begin with, the jury could not substantively consider trial counsel's closing arguments because the jury was properly instructed that attomey statements and arguments are not considered evidence. Next, counsel had to hope that jurors would actually review D-9 during its deliberations. However, had trial counsel methodically covered D-9 with T.J. on cross-examination, trial counsel would have been able to ensure that the jury knew and understood the significance and exculpatory value of text messages listed in D-9 as well as viewed TJ.’s responses to the targeted questions on cross examination. And, even if the jury considered D-9 without any context, it only contained T.J.’s texts and calls from the relevant time period on August 26th, which, given the Court’s denial of trial counsel’s request for a unanimity instruction as to the date, see infra section IV-H, the jury was free to consider the conduct alleged on August 27th or 28th as evidence of Mr. Valas’s guilt as to the charge. ii, August 27th and August 28th Records 195. At trial, Mr. Valas testified he met with T.J. on August 27th for 15 minutes or so between 10:00 p.m. and 11:00 p.m.2% ‘TJ, testified equivocally that she arrived at Mr. Valas’s room at 1:00 a.m. on August 28th and that Mr. Valas paid her another $150 for 30 minutes of her undivided attention. According to T.J., Mr. Valas had vaginal intercourse with her in the 5 Bx, 32, vol. 4, p. 678. 206 Ex. 32, vol. 4, p. 429.missionary position until he ejaculated.” Like the text message and call records for August 26th, the records for these two time periods on the 27th and 28th cast substantial doubts on T.J.’s “we had sex” narrative. Here are the text messages and calls from August 27th and 28th between 10:00 p.m. and 12:15 am2"* Number S273 (9:59 pm) | 830-281-0117 [210-620-9483 | “When Chris Get Off (text from TJ. play phone LaDerriek Smith) “Ugh* (text from [8/2713 (10:00 | 830-281-0117 | 210-620-9483 pm) T.. play phone to LaDerrick Smith) 8273 (10:02 ] 830-281-0117 | 210-620-9483 [Im Ready Like pm) Frit (text from TJ. play phone to LaDerrick Smith) BTS (10:03 | 830-281-0117 | 210-514-2712 | “She Said Yeah™ pm) (text from TJ. play shone to unknown) 210-461-1266 [I Think My Life Is Over, Im Done Living” (text from TJ. play phone to unknown) 8/27/13 830-281-0117 pm) 830-281-0117 | 210-620-9438 | “Ight™ (text from T.. play phone to unknown) 207 Bx, 32, vol. 2, pp. 311-313. 208 Exs. 6, 7, 11, 18, 19. 958/2713 (10:06 | 830-281-0117 [210-209-0350 [“T Couldn't Here | pm) Nothing” (text from TJ. play phone to - | boyfriend) S273 830-281-0117 “fil Call Yu Back” pm) (text from T.J. play | | phone to boyfriend) 82713 (40:23 | 830-281-0117 | 236-914-9127 | “Crying” (text from pm) TJ. play phone to Nunn Shaquille) 8/27/13 (10:24 | 830-281-0017 210-439-5841 “No” (text from pm) TJ. play phone to 7 = Brandon Smith) S273 (10:24 | 830-281-0017 | 210-763-9074 | “Ight” (text from pm) T.J. play phone to 7 —_ unknown) 8/2713 (10:26 | 830-281-0017 | 210-461-1266 | “Ima Call Yu" (ext pm) from TJ. play phone to unknown) 8273 (40:26 | 830-281-0017 [210-514-2712 “Ok” (text from pm) TJ. play phone to unknown) (10:37 | 830-281-0017 | 210-439-5841 Phone to Brandon Smith) (10:40 | 830-281-0017 | 210-439-5847 (lest from Ti. play phone to Brandon td 7 Smith) 827/13 (10:44 | 830-281-0017 | 210-209-0350 | “Babe” (text from pm) ‘T.J. play phone to boyfriend) 82713 (10:44 | 830-281-0017 | 210-209-0350 | “Wya” (text from pm) T.I. play phone to boyfriend) 827/13 (10:46 | 830-281-0017 | 210-209-0350 | “So What We Gone pm) Do Tonight” (text from TJ. play a phone to boyfriend) BITS (10:46 | 830-281-0017 | 210-209-0350 | “Wyd” (text from pm) T.J. play phone to boyfriend) SINS (10-46 | 830-281-0017 _| 310-209-0350 |Oh” (text from pm) T.J. play phone to boyfriend) 96BATS (HAS ] 830-281-0017 | 210-209-0350 [Im Trying” (text pm) from TJ. play a __| phone to boyfriend) | BATS (10:49 210-702-8376 6 seconds — (call pm) from TJ. play phone to Rainbow | Kidd) 8273 (10:49 | 830-281-0017 | 210-763-9074 | “Bool Im pm) Doing Something My love, Yu Comin witt Me Tonight frfr right?” (text from TJ. play phone to unknown) 82713 (10:51 | 830-281-0017 | 210-209-0350 | “Yeah Friday need pm) to hurry up” (text from TJ. play L phone to boyfriend) 8/27/13 (10:54 | 830-281-0017 210-209-0350 “TKnoo” (text from pm) T.J. play phone to . _| boyftiend) S273 (1054 | 830-281-0117 | 256-914-9127 | “Long Story™ (text pm) from TJ. play phone to Nunn z a Shaquille) _ BINS (1084 | KOIVI-0017 | 20FI-S84T—|“T Do” (text from pm) T.J. play phone to 7 [ __| Brandon Smith) 8/27/13 (10:55 | 830-281-0017 210-461-1266 1 second (call from pm) TJ. play phone to unknown) 8/27/13 (10:56 | 830-281-0117 256-914-9127 “Yeah” (text from pm) Ti. play phone to . _ ___| Nunn Shaquille) 8/27/13 (10:58 | 830-281-0017 | 210-763-9074] 3 mins 52 secs (call pm) fiom TJ. play | phone to unknown) AMS (11:02 | 830-2i-0017 | 210-514-2712] 1 min 20 secs (call pm) from TJ. play ___| phone to unknown) 8/27/13 (11:08 | 830-281-0017 | 210-209-0350 | “Awwwww Baby” pm) (text from T.J. play | 97[ phone to boyfriend) 8/27/13 (11:09 | 830-281-0017 210-620-9483 “Oshawnda Said pm) She Coming” (text from TJ. play phone to LaDerrick |_ Smith) B73 (11:10 | 830-281-0017 | 210-620-9483 | “Ight” (ext from pm) TJ. play phone to LaDerrick Smith) 8/27/13 (11:11 | 830-281-0017 210-620-9483 “The One We Went pm) Too And She Didn't? Come 1 talked To Her” (text from T.J. play phone to LaDerrick soecl Smith) | 8/27/13 (11:12 | 830-281-0017 210-620-9483 “Yeaa” (text from pm) TJ. play phone to _ _ | LaDerrick Smith) 82713 (11:13 | 830-281-0017 | 210-620-9483 | “Yea Want Mt To pm) put Her On 3Way” (text from T.J. play | phone to LaDerrick oa ' Smith) __ 8/27/13 (11:14 | 830-281-0017 210-620-9483 50 secs (call from pm) T.J. play phone to LaDerrick Smith) | 8/27/13 (11:14 | 830-281-0017 (210-763-9074 2 secs (call from pm) T.. play phone to = unknown) 8/27/13 (11:15 | 830-281-0017 210-763-9074 “What Happen™ pm) {text from T.J. play ___| phone to unknow: 8273 (4:15 | 830-281-0017 [210-620-0483 “What Happen™ pm) (text from TJ. play i phone to LaDerrick | Smith) S273 (11:16 | 830-281-0017 | 210-620-9483 [3 secs (call from pm) | TJ. play phone to LaDerrick Smith) BANS (116 | 830-281-0017 | 210-620-9483] 1 min 14 secs (call pm) from TJ. play phone to LaDerrick Smith) _| 8/27/13 (11:17 | 830-281-0017 (210-763-9074 38 secs (call from pm) J. play phone to 9882713 (11:18 | 830-281-0017 | 256-914-9172 [~ . pm) T.J. play phone to 7 Shaquille Nunn) BATS (i18 | 830-281-0017 | 210-314-2712 [29 secs (call from pm) TJ. play phone to unknown) 8/27/13 (11:19 | 830-281-0017 210-439-5841 “Lol” (text from pm) T.J. play phone to | Brandon Smith) __| B2TAZ (1:19 | 830-281-0017 | 210-309-6568 | “Heyy” (teat from pm) TJ. play phone to _| Damareon) 8273 (11:20 | 830-281-0017 [210-620-9483 |= Wyd™ (ext trom pm) . play phone to = | ick Smith) B27/3 830-281-0017 [356-914-9172 |“ (ext from T.I. play phone to [Shaquille Nunn) _| TT sees (call from ‘TJ. play phone to boyfriend) e2ms (11:28 310-209-0350 [Call that appears pm) not to have connected (call from TJ. play phone to boyfriend) 10 sees (call. from 82713 (11:29 | 830-281-0017 763-9074 pm) T.J. play phone to unknown) BAIS (1139 | 830-281-0017 [210-514-2712 [13 sees (call from pm) T.J. play phone to unknown) 289 This call is not reflected on T-J.’s work phone call log at Ex. 18; however itis reflected in Mr. Valas’s call log at Ex. 19, p.5. 998/28/13 (12:12 | 830-281-0017 | 210-717-0313 | 7 secs (call from am) TJ. play phone to number associated with Marcus Wright) B83 (12:15 | 830-281-0017 | 210-630-9483 | “Tuss Finish Hiting am) This Lick Omw Back to the Hotel” (text from TJ. play phone to LaDerrick Smith) 196. Here are the text messages from August 28th between 1:00 asm. and 1:37 am! Number ‘8/28/13 (12:55 [830-281-0017 | 210-209-0350 | “Yes My Love™ am) (text from TJ. play phone to boyfriend) ABS (12:56 | 830-281-0117 914-9127 | “Ridin Why” (text am) from TJ. play phone to Nunn _| Shaquille) 8/28/13 (12:56 | 830-281-0117 229-288-9650 “Yu in Texas?” am) (text from TJ. play phone to Jordan H Moore) B83 (12:57 | 830-281-0117 | 256-914-9127 | “Can I Come” (text am) from TJ. _ play phone to Nunn Shaquille) BABS (122 am) | 830-281-0117 | 256-914-9127 | “Later” (text from TJ. play phone to 7 ‘Nunn Shaquille) 28/13 (1:23 am) | 830-281-0117 | 210-430-3841 | “Riding” (text from T.J. play phone to 29 Exs. 6,7, 11, 18. 100yrandon Smith) 8/28/13 (1:23 am) 830-281-0117 256-914-9127 “Cause Im Busy® (text from TJ. play phone to Nunn Shaquille) | 8/28/13 (1:23 am) | | 830-281-0117 210-439-5841 “Around” (text from TJ. play phone to Brandon Smith) 8/28/13 (1:23 am) 830-281-0117 256-914-9127 “Riding” (lext from T.J. play phone to ‘Nunn Shaquille) 828/13 (1:24 am) 830-281-0117 210-454-1957 “Way Booklies” (text from TJ. play phone to unknown) 8/28/13 (1:25 am) 830-281-0117 256-914-9127 “Juss Around” (text from TJ. play phone to Nunn Shaquille) 8/28/13 (1:25 am) 830-281-0117 210-454-1957 “Wyd Over There® (text from T.J. play phone to unknown) 8/28/13 (1:25 am) 830-281-0117 256-914-9127 “My Siss” (text from T.J. play phone to Nunn Shaquille) 8/28/13 (1:26 am) 830-281-0117 210-454-1957 ike? Then Were Yu Goin” (text from TJ. play one to unknown) _ 8/28/13 (1:26 am) 830-281-0117 310-439-5841 ‘eaa” (text from T.J. play phone to Brandon Smith) 8/28/13 (1:26 am) 830-281-0117 256-914-9127 “Yeaa” (text from T.J. play phone to Nunn Shaquille) 8/28/13 (1:27 am) 830-281-0117 210-454-1957 “At My Siss House Yu gone Pick Us Up” (text from T.J. play phone to unknown) 87/28/13 (1:27 am) | 830-281-0117 [256-914-9127 | “Awwweee™ (ext {from TJ. play phone to Nunn Shaquille) J 8728/13 (1:28 am) | 830-281-0117 [210-439-5841 “Frit” (text_trom 101TJ. play phone to Brandon Smith) 8/28/13 (1:28 am) | 830-281-0117 | 210-454-1957 | “TAm™ (lext from T.J. play phone to _ unknown) 8/28/13 (1:28 am) | 830-281-0117 [256-914-9127 | “Yu Are Too” (lext from TJ. play phone to Nunn Shaquille) 8/28/13 (1:30 am) | 830-281-0117 | 210-454-1957 | “Whatever” (text from TJ. play ” ______| phone to unknown) 8/28/15 (1:30 am) | 830-281-0117 | 256-9149127 | “Welcome” (text from TJ. play | phone to Nunn _. Shaquille) 8/28/13 (1:30 am) | 830-281-0117 210-439-5841 “Awwwwweee™ (text from T.J. play phone to Brandon __ Smith) 8728/13 (1:31 am) | 830-281-0117 | 210-454-1957 | “Loll So Wussup™ (text from TJ. play | ly phone to unknown) 8/28/13 (131 am) | 830-281-0117 | 256-914-9127 | “Hell No” (text from TJ. play | phone to Nunn Shaquille) _ 830-281-0117 210-439-5841 “Yeaaa™ (text from T.l. play phone to Brandon Smith) 8/28/13 (1:35 am) | 830-281-0117 | 210-454-1957 | “Like” (text from T.J. play phone to unknown) 8728/13 (1:35 am) | 830-281-0117 | 210-454-1957 | “How Does A Hr Sound Bac?” (text from TJ. play phone to unknown) B/B/13 (1:37 am) | 830-281-0117 | 210-434-1957 | “IGotchu” (text from TJ. play phone to unknown) 197. Based on the timing and quantity of the text messages and calls, to believe that Mr. Valas had foreplay and vaginal intercourse with T.J, for 30 minutes sometime between 10:00 p.m. on 102‘August 27th and 12:11 a.m. on August 28th, when she called Wright from both the work and play phones, or 1:00 a.m. and 1:30 am, on August 28th, one must believe TJ. had vaginal sex with Mr. Valas while simultaneously texting and calling her boyfriend and multiple other people and that Mr. Valas had no problem with this behavior, even though he allegedly paid another $150 for 30 minutes of her undivided attention, This is hard to fathom for most reasonable people. Trial counsel, however, did not produce these records and confiont TJ. with them during cross-examination, Thus, like the August 26th text messages and calls, trial counsel failed in making the exculpatory value of these calls and text messages visible, tangible, and impactful to the jury. 198. Trial counsel’s deficient performance is more significant here because exhibit D-9 did not include any text messages or calls from August 27th or August 28th.”'' Accordingly, while trial counsel mentioned D-9 during closing arguments, D-9 only chronicled the text messages and calls TJ. made on August 26th. Consequently, even if the jury had reviewed D-9 during deliberations, there was no evidence or testimony in the record revealing and/or discussing the exculpatory value of the text messages and calls sent and made on August 27th and August 28th, 199, There was no conceivable or reasonable reason why trial counsel did not confront T.J. with her text message and call records, They were indisputable documentary evidence. Even if she had tried to deny making them or testified that she made them while engaging with Mr. Valas, the jury would have been able to judge the credibility of this testimony using common sense. Thus, trial counsel’s failure to do so was objectively unreasonable and did not advance Mr. Valas’s defense in any meaningful way. To the contrary, it substantially prejudiced his defense because the jury was deprived of significant exculpatory and impeachment evidence. 21 Bx, 33. 1034. Trial Counsel’s Failure to Adequately Cross Examine T.J. and SA Gutierrez Prejudiced Mr. Valas Such that He Is Entitled to a New Trial. 200. In the Fifth Circuit, an attorney’s failure to adequately impeach witnesses is generally not excused as legal strategy and usually constitutes prejudicial ineffective assistance of counsel. For example, in Beltran v. Cockrell, the Fifth Circuit held that trial counsel's failure to impeach several witnesses with their initial identifications identifying the co-defendant as the person who committed the crime was prejudicially ineffective, 294 F.3d 730 (Sth Cir. 2002). Despite the attomey’s testimony that he deliberately tried to prevent the jury from hearing anything about the alleged co-perpetrator to avoid the association of the co-perpetrator with his client, the failure to use this evidence to impeach the witnesses was still ineffective assistance that prejudiced the defendant. Id. Similarly, in Duren v. Quarterman, an attorney committed prejudicial ineffective assistance of counsel when he failed to cross-examine the prosecution’s main witness regarding a prior criminal conviction and her prior sexual relationship with the defendant. 656 P. Supp. 2d 615, 617, 623-24 (N.D. Tex. 2009). 201. An attomey may strategically limit cross-examination when it requires the introduction of evidence prejudicial to the defendant, Kelly v. Cockrell, 72 F. App’x 67, 80 (Sth Cir. 2003). This principle, however, is not applicable here. Cross-examining T.J. regarding the structure and content of her journal, especially as measured against the objective phone records, would not have elicited evidence prejudicial to Mr. Valas. Instead, it would have dramatically eroded the credibility of both T.J.’s journal and her “we had sex” narrative. 202. In short, trial counsel’s decision not to confront T.J. with the journal and phone records ‘was objectively unreasonable. Trial counsel’s deficient performance, moreover, undermines contidence in the jury’s verdict because had trial counsel contronted TJ. with the journal and phone records, it would have put the Government's case in a whole new light. In regards to the 104phone records, it would have created strong evidence that T.J.’s testimony concerning focused sexual encounters was not reasonably possible. Using the journal during effective cross- examination would have created substantial evidence that T.J. gave conflicting statements as to what allegedly occurred between her and Mr. Valas on August 26th and August 27th/28th. This evidence, in tum, would have altered at least one juror’s view of the Governments evidence and T.J.’s testimony, warranting a new trial. Cone v. Bell, 556 U.S. 449, 452 (2009).?? D. i ’ is iIt_in_His Inconsistent Defense ‘Theory that Mr. Valas Had Sex with T.J. Believing that She Was over the Age of 18 Constituted Ineffective Assistance of Counsel that Prejudiced Mr. Valas. 203. Trial counsel unreasonably pursued inconsistent theories of defense. Mr. Valas told trial counsel from the beginning he wished to present an actual innocence defense; he did not have sex with TJ., but rather interviewed her as part of his research regarding gangs and reconciliation. 212 On cross-examination, trial counsel also failed to question T.J. on her initial identification of Mr. Valas in the photo array the SA Gutierrez showed her on March 7, 2014. See Ex. 14. Trial counsel failed to point out that T.J. had identified Mr. Valas as “Mexican” in her journal and then initially selected an individual who appeared to be of Latino descent in the photo array before changing her mark to identify Mr. Valas. Trial counsel was ineffective for failing to undermine the credibility of T.J.’s identification of Mr. Valas, which would have further undermined her credibility as to her “we had sex” narrative. Trial counsel’s failure to undermine T.J.’s credibility on this point prejudiced Mr. Valas. Additionally, trial counsel failed to object to the SANE nurse’s testimony that T.J. tested positive for gonorrhea in her throat and vagina and for chlamydia in her rectum. Ex. 32, vol. 2, pp. 353-54. This inflammatory testimony was not relevant to Mr. Valas’s case, and, as such, it should have been excluded. Fed. R. Evid. 402. Furthermore, trial counsel failed to cross- examine the SANE nurse to establish that a person who had sexual contact with T.J. would have contracted one or more of these STDs. Then, through Mr. Valas or a medical expert, trial counsel failed to establish that Mr. Valas had none of these STDs, for which he was regularly checked as a member of the New Hampshire National Guard. ‘Trial counsel's initial failure to object to the SANE nurse’s testimony and his subsequent failure to use the SANE nurse's testimony to exculpate Mr. Valas clearly prejudiced Mr. Valas’s actual innocence defense. 105204. Mr. Valas testified and proclaimed his innocence, but trial counsel ignored Mr. Valas’s clear instructions when he argued during closing arguments that, even if Mr. Valas had sex with TL, she looked over 18 years old and therefore Mr. Valas could not be convicted. Not only did trial counsel’s “she looked over 18” argument contravene Mr. Valas’s explicit instructions to hhim, trial counsel knew or should have known that the “she looked over 18” defense was not a defense to count one in the indictment, 205. During closing argument, trial counsel told the jury “that this case was about two things, age and sex, age and sex.”*"? He reiterated that T.J. was “dressing up . . . pretending to be over 18 years old . . . in every way possible pretending, sexually . . .,” as he showed the jury photographs of T.J. and argued that she looked over 18."* Trial counsel repeatedly mentioned the age issue.”!S 206. Trial counsel knew or should have known his “she looked over 18” argument was not a defense under 18 U.S.C. §1591. Before trial, trial counsel knew this Court had ruled that 18 ULS.C. §1591 permits a jury to convict a defendant on a finding only that he or she had a reasonable opportunity to view the alleged victim.?" Therefore, any defense related to a belief T.J. was 18 or older was not a defense. Rather, it constituted an implicit admission of guilt inconsistent with the theory of defense Mr. Valas instructed trial counsel to pursue. 207. It is well established that an attorney who admits one or more elements of the offense charged, without a legitimate strategic reason, has provided ineffective assistance prejudicial to 213 Bx. 32, vol. 4, p. 700. 214 Bx. 32, vol. 4, pp. 701-703. 215 Bx. 32, vol. 4, pp. 712, 715, 719. 216 Bx. 37. This exhibit consists of trial counsel's motion to dismiss the indictment on the basis that 18 U.S.C. § 1591 was unconstitutional and the Government’s response. The Court denied Mr. Valas’s motion orally on August 22, 2014. See U.S. v. Raymond Valas, 13-ct-00806-FB-4 (W.D. Tex.) (docket no. 251). 106the defendant’s case. Duren y, Quarterman, 656 F. Supp. 2d 615, 618 (N.D. Tex. 2009) (relying on United States v, Castro, 26 F.3d 557 (Sth Cir. 1994) (establishing that failure to understand the law is not a strategic choice)); see also Gomez v. Beto, 462 F.2d 596, 597 (Sth Cir. 1972) (holding that failure to interview witnesses identified by the defendant and present testimony at trial in support of the defendant’s only real defense, an alibi defense, constituted ineffective assistance of counsel prejudicial to the defendant); Gaines v. Hopper, 575 F.2d 1147, 1148-50 (Sth Cir. 1978) (holding trial counsel was prejudicially ineffective for failing to effectively investigate and present the defendant's preferred theory of defense). 208. Here, before trial, trial counsel knew or should have known the “she looked over 18” argument was not a defense, Thus, trial counsel’s decision to repeatedly argue this point during closing arguments cannot be deemed strategic decision. Indeed, “[aJn attomey’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research ‘on that point is a quintessential example of unreasonable performance under Strickland.” Hinton y, Alabama, 134 S.Ct. 1081, 1089 (2014). 209. Moreover, trial counsel's “she looked over 18” argument presented the jury with two diametrically opposed defenses: when he testified, Mr. Valas made clear to the jury he never had sex with TJ, yet trial counsel’s “she looked over 18” argument constituted an implicit admission that he had sex with her but did so under the reasonable belief she was over 18. This inconsistency all but sealed Mr. Valas’s fate to the jury for at least two reasons: (1) trial counsel’s argument was an implicit admission to an essential clement of the Government's case; that is, if sex occurred, it was “reasonable”; and (2) any traction Mr. Valas may have gained with the jury during his testimony was completely lost because of the incongruent defenses presented by trial counsel. Cf Florida v. Nixon, 543 U.S. 175, 191-192 (2004) (emphasizing the 107importance of presenting consistent defenses during the guilt-innocence and penalty phases of a death penalty trial in order to “avoid a counterproductive course”). 210. Trial counsel’s closing argument was objectively unreasonable and prejudiced Mr. ‘Valas. Had trial counsel stuck with the “actual innocence” defense, as Mr. Valas instructed him to do, and not presented a non-cognizable defense that by implication admitted an essential element of the Government's case, there is a reasonable probability at least one juror’s perceptions of Mr. Valas’s “actual innocence” testimony would have been altered in a way beneficial to him. Cone v, Bell, 556 U.S. 449, 452 (2009). Mr. Valas, therefore, is entitled to a new trial based on trial counsel’s prejudicial ineffectiveness. E. Trial Counsel’s Failure to Object to AUSA Barr’s and AUSA Richardson’s Closing Arguments in Several Respects Constituted Ineffective Assistance of Counsel that Prejudiced Mr. Valas. 211. Trial counsel was ineffective for failing to object during closing arguments when AUSA Barr and AUSA Richardson repeatedly vouched for T.J.’s credibility, knowingly misstated facts in evidence, and presented false argument. 1. AUSA Barr’s Improper Closing Argument Prejudiced Mr. Valas Such that He Is Entitled to a New Trial. 212. In his closing argument, AUSA Barr put on a veritable clinic in vouching for a witness. His very first line was, “It is true, It is true. Trevonique Johnson is telling you the truth.”*!7 ‘Moments later, AUSA Barr told the jury, “Now, we're going to get to the elements and really kind of discuss how Trevonique is telling the truth.”*"* He followed that with, “Okay. So why is ‘Trevonique telling the truth? Because her story is indiscriminate and consistent. She has told her story to strangers, to law enforcement, to a sexual assault nurse examiner, to anybody who 217 Bx. 32, vol. 4, p. 691. 218 Bx. 32, vol. 4, p. 693. 108asked, to you folks, in her journal. And she has always been consistent, and she has always been indiscriminate."*'? He continued to vouch for her truthfulness throughout his entire argument, pleading with the jury, “Why? Why would she have to lie about the details? She wouldn’t.”"*° Next, he stated, “And why lie about two days? I mean, if we're making this up, I mean what’s so significant about two days versus one day?”™”" And, it doesn’t stop, he continues, “Valas agrees, right? Because he has to... . She is a truth-teller.”"” Trial counsel failed to object once. 213, AUSA Bar’s repeated statements vouching for T.J.’s credibility and truthfulness constituted plain error entitling Mr. Valas to a new trial. United States v. Smith, 814 F.3d 268, 274-77 (Sth Cir. 2016). To establish prosecutorial misconduct, the defendant must show that (1) the prosecutor made an improper remark and (2) the remark affected his substantial rights. United States v. Garcia, 522 F.3d 597, 600 n.2 (Sth Cir. 2008). In Smith, the Fifth Circuit recently held vouching for the truthfulness and reliability of government witnesses constituted plain error where the prosecutor told the jury during closing arguments that he was “totally convinced that [the government witness] was truthful,” that the government witness “testified truthfully to what happened,” the he would “try and suggest to you a number of reasons why [he] believe[d] [the government witness] was worthy of believing,” and that a witness was “[u]nequivocally, truthfully.” 814 F.3d 268, 274-77 (Sth Cir. 2016) [alterations added]. In so holding, the Fifth Circuit explained, “Our concer is with the great potential for jury persuasion which arises because the prosecutor's personal status and his role as a spokesman for the government tend to give to what he says the ring of authenticity. We have repeatedly admonished that a prosecutor may not state, “The prosecution’s witnesses are telling the truth’ or Ex. 32, vol. 4, p. 694. 29 Bx. 32, vol. 4, p. 696. 721 Bx, 32, vol. 4, p. 697. Id. 109‘I believe that the prosecution’s witnesses are telling the truth.”” Jd, at 274 (intemal quotation marks and citations omitted). 214, Similarly, in United States v. Garcia, 522 F.3d 597 (Sth Cir. 2008), the Fifth Circuit held that the prosecutor’s bolstering the testimony of government witnesses during closing argument, in a case where the government's case was so dependent on these witnesses’ testimony that the defendant could not have been convicted without it constituted plain error because the “prosecutor's plainly erroneous statements led the jury to substitute the government's credibility assessment of its own agents for the jurors’ independent credibility call, thereby casting serious doubt on [the defendant's} guilty verdict.” United States v. Garcia, 522 F.3d 597, 606 (Sth Cir, 2008). The Fifth Circuit cited to a plethora of other cases finding improper witness bolstering by prosecutors to be plain error. See id. at 605 (citing United States v. Garza, 608 F.2d 659, 665 (Sth Cir. 1979); United States v. Corona, 551 F.2d 1386, 1389 (Sth Cir. 1977); Hodge v. Hurley, 426 F.3d 368, 378-79 (6th Cir.2005); United States v. Francis, 170 F.3d 546, 549 (6th Cir. 1999); United States v. Manning, 23 F.3d 570, 572-75 (Ist Cir.1994); United States v, Dispoz-O- Plastics, Inc., 172 F.3d 275, 287 (3d Cir.1999); United States v. Cotmam, 88 F.3d 487, 500 (7th Cir.1996); United States v. Kerr, 981 F.2d 1050, 1052-54 (9th Cir.1992); United States v. Eyster, 948 F.2d 1196, 1207 (11th Cir.1991)); see also Ward v. Dretke, 420 F.3d 479, 490-98 (Sth Cir. 2005) (recognizing that defense counsel's failure to object to the introduction of damaging evidence and to the prosecutor’s improper statements amounting to prosecutorial misconduct during closing argument constituted ineffective assistance of counsel that may have prejudiced the defendant, but declining to reverse under the highly deferential standard applicable in state habeas petitions). 110215. Like in Smith and Garcia, trial counsel’s failure to object to AUSA Barr's improper arguments vouching for T-J.’s credibility and truthfulness constituted prejudicial ineffectiveness. Even if the Court finds that trial counsel was not ineffective for failing to object to this blatant prosecutorial misconduct, AUSA Barr's egregious and improper arguments entitles Mr. Valas to relief on due process grounds. See Smith, 814 F.3d at 274-77. 2, AUSA Richardson’s Improper Arguments Prejudiced Mr. Valas Such that He Is Entitled to a New Trial. 216. Further, trial counsel also failed to object when AUSA Richardson knowingly made false statements and arguments to the jury. AUSA Richardson knowingly misstated the facts when she claimed Ms. Doak managed the work phone and had it when T.J. met with Mr. Valas on August 26th. T.J. unequivocally testified she had both the “work phone” and the “play phone” as of August 23rd,” that she had the “work phone” when she met with Mr. Valas on August 26th, that Ms. Doak did not go with her to the Hilton on August 26th,”’* and that she answered Mr. Valas’s calls to her work phone and called him from the her work phone. Likewise, in her “journal,” T.J. reported calling Marcus Wright from her work phone to pick her up from the Hilton after she met with Mr. Valas during the late evening of August 27th or early moming of August 28th. This call to Marcus on T.J.’s work phone is corroborated by the phone records227 217. AUSA Richardson’s false statement also allowed her to falsely misrepresent that “on August the 26th, 2013, between 9:16 and 9:50 or between 9:50 and 10:43, both of those time 5 Bx, 32, vol. 4, p. 726. = Bx. 32, vol. 2, p. 282. ®5 By, 32, vol. 2, p. 290. 26 Bx. 32, vol. 2, p. 308-09 27 Bxs, 18, 26. censpots there are not text messages going out from Trevonique’s phone.””** That statement was false in at least two respects. First, AUSA Richardson knew TJ. had repeatedly testified and written in her journal that she had both the work and play phones when she met with Mr. Valas on August 26th. AUSA Richardson also knew the work phone text log and exhibit D-9 reflected ‘outgoing texts from the work phone, which T.J. admitted she had on August 26th, at 9:24, 9:25, 9:27, 9:28, 9:30, 9:34, and 9:38 p.m.” Second, there were, in fact, two outgoing text messages from T.J.’s play phone at 9:51 and 9:52 p.m. and a 35 minute call from TJ. to a contact identified as her boyfriend at 9:52 p.m., which lasted until 10:27 p.m. on August 26th.°” 218. AUSA Richardson also misstated that Mr. Valas had been researching prostitutes for 12 years. The phone records do not support this claim because the records obtained by the Government only dated back to 2012 at the earliest. Likewise, Mr. Valas testified that while he had been studying MS-13 since 2002 or 2003, he did not contact a prostitute until 6 to 12 months before November 2012.7"! AUSA Richardson also misrepresented that all of Mr. Valas’s calls to prostitutes were in the middle of the night.” This is false because it was undisputed at trial that Mr. Valas contacted T.J. on August 26th at 3:25 p.m., 3:26 p.m., 4:58 pm., and 8:51 p.m., not in the middle of the night.” 219. AUSA Richardson’s misstatements constituted plain error. Her misstatements and misrepresentations created a false window of opportunity for the alleged sexual encounter between TJ. and Mr. Valas on August 26th and disparaged Mr. Valas without evidentiary 28 See Ex. 32, vol. 4, p. 726; Exs. 7, 11, 18, 36. % See Ex. 33. 2° See Exs. 7, 11, 18, 33, 36.. 231 See Ex, 32, vol. 3, pp. 473-74. 232 See Ex. 32, vol. 4, pp. 727-28. 25 See Ex. 33. 112support, Therefore, trial counsel’s failure to object to these material misstatements constituted ineffective assistance of counsel that prejudiced Mr. Valas’s defense requiring reversal. F. Trial Counsel’s Failure to Move for a Continuance Prior to Trial Even ‘Though He Knew that He Was Unprepared to Proceed Constituted Ineffective Assistance of Counsel Prejudicial to Mr. Valas’s Defense. 220. During a pretrial hearing regarding a large amount of discovery the Government had turned over the night before, the Court gave trial counsel the opportunity to move for a continuance to review the discovery and confer with an expert who was out of town that week." ‘The Court gave trial counsel time to confer with Mr. Valas and his wife, but tipped its hand that it was “inclined not to grant a...continuance.”™* Trial counsel conferred with Mr. Valas and his wife and told them he was ready to proceed.”° Based on trial counsel's “I’m ready to proceed” representation, Mr. Valas and his wife asked him to move forward with the trial.” Despite trial counsel’s assurances, his trial notes from that day, November 17, 2014, indicate otherwise. The very first line of his notes states, “Not ready,” followed by, “Discovery dump."*** Despite his “not ready” handwritten note, trial counsel did not request a continuance and represented to the Court that Mr. Valas and his family wanted “to go forward.” Trial counsel suggested the parties pick the jury that day and adjourn until the next morning.” The Court limited that day’s proceedings to jury selection and opening statements."" 221. On the third day of trial, the Court heard argument regarding the Government’s 404(b) motion secking to admit evidence that it disclosed to trial counsel on the eve of trial. The Court 24 Bx. 32, vol. 1, p. 25. 235 Iq, Ex. 31. 2 Bx. 32, vol. 1, p. 26. 240 id. 1 Td., p. 27. 113ultimately granted the Government’s motion.” During the argument, trial counsel complained that he needed additional time to review late disclosure with Mr. Valas. The Court rejected trial counsel’s request and reminded him that he (trial counsel) had refused the Court’s invitation to request a continuance two days before.”** 222. The Supreme Court has held that the assistance of counsel is not effective when counsel has insufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 71 (1932); United ‘States v. Bergamo, 154 F.2d 31, 34 (3d Cir. 1946). When an attomey recognizes he has not had time to properly investigate and prepare for trial, but proceeds nonetheless, this can constitute prejudicial ineffectiveness. Johnson v. United States, 328 F.2d 605, 606 (Sth Cir. 1964) (statements of court appointed trial counsel that he had neither time nor inclination to properly investigate and prepare for trial showed denial of defendant's right to counsel and required reversal of his conviction). 223. Trial counsel’s “[n]ot ready” note accurately described his overall advocacy in defending, Mr. Valas against T.J.’s accusations. Trial counsel was “not ready” when he cross-examined T.J. because he failed to asked a litany of critical questions regarding her journal and failed to confront her with exculpatory text messages and call records. ‘The failure to do both, as argued above, was prejudicial. Similarly, trial counsel was “not ready” when he cross-examined SA Guiterrez because he failed to confront him with T.J.’s journal and other reports that called into question the competence and integrity of his and the FBI’s investigation. 224, For instance, the FBI had Mr. Valas’s phone number on August 29, 2013, the day after T.J.’s arrest. Mr. Valas’s cell phone number was listed as “Hilton 420” in T.J.’s work phone. On that same day, August 29th, T.J. mentioned to TFO Sweeney she had an outcall to the Hilton, 28 Ex, 32, vol. 3, pp. 367-373. 283 Id., p. 374. 14Despite this information, SA Guiterrez and the FBI never sought records from the Hilton, including critical surveillance tapes, and did not follow up on the allegation until February 2014. In her February 10, 2014 interview with SA Guiterrez, TJ. again mentioned one out call to the Hilton, but this time she mentioned the date: August 26th. Shortly after this interview, SA Guiterrez finally requested the Hilton records for August 26th and learned that Mr. Valas had ‘occupied the room on that day. However, by February 2014, the Hilton security footage from ‘August 26th thru 28th had been destroyed by Hilton. Had SA Gutierrez and the FBI connected the dots when they should have, in August 2013, the Hilton security footage would have been available to show the times that T.J. had entered and left the Hilton so as to undercut her trial testimony. 225. Likewise, trial counsel failed to confront SA Guiterrez with TJ.’s journal. Specifically, trial counsel failed to ask SA Guiterrez a single question regarding whether he, the FBI, or the Government interviewed T.J. after she had disclosed her journal. Moreover, trial counsel failed to ask SA Guiterrez the simple questions of whether he had read the journal, particularly PART 2, and if so whether the facts mentioned in PART 2 were consistent or inconsistent with T.J.’s statement to him on February 10, 2014. The facts in PART 2 were inconsistent with her February 14, 2014 statement because she mentioned two out calls to the Hilton in PART 2, but only mentioned one out call to SA Guiterrez on February 14, 2014. 226. Trial counsel’s unpreparedness prejudiced Mr. Valas. Had trial counsel requested a continuance and used the additional time effectively and efficiently, he could have prepared a series of cross-examination questions that would have substantially undermined T.J.’s credibility and the competence of the Government’s investigation. Had trial counsel done this, there is a 1sreasonable probability at least one juror would have altered his or her view of T.J.’s credibility and the Government’s case. Mr. Valas, therefore, is entitled to a new trial. G. Trial Counsel’s Failure to Pursue Mr. Valas’s Preferred Theory of Defense— that He Met with T.J. to Interview Her for a Future Publication Rather than to Have Sex with Her Investis and Presenting Critical Witnesses with Personal Knowledge of Mr. Valas’s Research Constituted Ineffective Assistance of Counsel that Prejudiced Mr. Valas 1. Mr. Valas Has Always Maintained His Innocence and Provided Trial Counsel with a List of Relevant Witnesses Pretrial. 227. From the moment Mr. Valas leamed of the charges against him, he claimed his innocence.“ Mr. Valas acknowledged he contacted T.J. and other prostitutes on backpage.com when he arrived in San Antonio. He also acknowledged arranging a meeting with TJ. for 5:30 p.m. on August 26th. He has always maintained, however, that the meeting’s purpose was not to engage in a commercial sex act with T.J., but to talk with her to determine if she knew the local ‘gangs, why and how she began prostituting, and why she and others found it difficult to leave the “business” if they wanted to do so. As an AWC fellow, Mr. Valas’s research focused, in part, on ‘gangs and how they used prostitutes and other low-level criminal actors to further their criminal enterprise. One aspect of his research involved interviewing prostitutes and asking them about their knowledge and/or connections to local gangs. For this reason, Mr. Valas attempted to contact other prostitutes when he arrived in San Antonio.* Mr. Valas provided trial counsel with a list of witnesses who could confirm his research and his intention to and practice of interviewing prostitutes for his research.”** 2, Trial Counsel Failed to Contact, Interview, or Present Mr. Valas’s Supervising Professor, Issac Kfir, 24 Bx. 22, 96. 245 Bx. 32, vol. 4, pp. 413-16, 422. 6 Bx. 25. 116228. Mr. Valas’s ultimate objective was to publish his findings in a book with Isaac Kfir, an internationally respected professor who was affiliated with the Institute for National Security and ‘Counter-terrorism (“INSCT”). Professor Kfir was a visiting professor at Syracuse when Mr. Valas was an AWC fellow there.*” Professor Kfir reviewed Mr. Valas’s research at several stages, co-presented with Mr. Valas at the Maxwell Conference on post-conflict reconciliation, and asked Mr. Valas to co-author a book with him on MS-13 and reconciliation.* 229. In early August 2014, well before his trial, Mr. Valas informed trial counsel that Professor Kfir had asked him to co-author a book on MS-13 and reconciliation that would include the research he was doing while interviewing prostitutes. Kris Valas had emailed Professor Kfir in early June 2014 asking him about the book he and Mr. Valas were planning to write, On June 6, 2014, Professor Kfir emailed Kris and confirmed that he and Mr. Valas had talked about co-authoring a book on MS-13 and reconciliation.” Kris Valas forwarded Professor Kfir’s email to trial counsel. Mr. Valas, as a result, asked trial counsel to interview Professor Kfir and to present him as a witness at trial to corroborate his (Mr. Valas’s) testimony that for scholarly purposes he contacted and interviewed prostitutes.® Trial counsel failed to contact, interview, or present Professor Kfir. 230. Trial counsel's failure prejudiced Mr. Valas. Professor Kfir’s testimony would not only have corroborated the most significant part of Mr. Valas’s trial testimony—that there were legitimate and prior determined non-sexual purposes for his meeting with TJ in a hotel room. This testimony and Professor Kfir’s background would have significantly undermined the Government's rebuttal witnesses and closing arguments. For instance, during closing arguments, 27 Id; see also http://www.tiu.ac.jp/iis/members/isaac.htmi. 248 Exs, 25, 27. 2 Bx. 27. 250 Bx. 25, 117AUSA Richards improperly argued that “not one piece of paper supported [Mr. Valas’s] research theory.” However, during his direct examination, Mr. Valas produced the notes he had taken immediately after interviewing T.J. on August 27th. The notes mentioned contacting Professor Kfir to discuss the interview Mr. Valas had just conducted with T.J* Had trial counsel interviewed and presented Professor Kfir, he would have confirmed that he and Mr, Valas had had significant discussions about writing a book on MS-13 and reconciliation and how prostitution factored into these two issues. For this research, factual, on-the-ground interviews were required. Also, the Government argued Mr. Valas had presented no one from Syracuse University to confirm his claim that he was working on a book regarding gangs and reconciliation. Again, had trial counsel presented Professor Kfir, his testimony would have entirely blunted this aspect of the Government’s case and closing arguments. 231. These two Government arguments, however, created the false perception that Mr. Valas had fabricated the “I'm writing a book” narrative in an attempt to hoodwink the jury into believing he did not have sex with T.J. Based on the jury’s verdict, the Government's argument effectively discredited Mr. Valas’s research defense. Had trial counsel presented Professor Kfir’s testimony, however, there is a reasonable probability at least one juror would have viewed Mr. Valas’s research testimony differently. Mr. Valas, therefore, is entitled to a new trial. 3. Other Research Witnesses Trial Counsel Failed to Contact or Properly Subpoena Prejudicing Mr. Valas’s Defense. 232. Mr. Valas and Kris Valas identified several law enforcement witnesses with whom Mr. Valas had previously talked about his plan to contact low level criminal actors, including prostitutes, for his reconciliation research. These witnesses included FBI Agents Derek 251 Bx. 32, vol. 4, p. 728. 282 Bx. 32, vol. 3, p. 441. 253 Bx. 32, vol. 4, p. 695. 11gKreitenstein, Andrew Condikey, and Travis Ostream, FBI Analyst Emily Walter, and Deputy Sheriff Stafford VA Brian Storm. Agent Kreitenstein and Analyst Walter would have testified to Mr. Valas’s questioning them about trafficking and extortion from a law enforcement perspective." Trial counsel failed to contact and interview any of these witnesses. 233. Mr. Valas also identified FBI Agent Ed Edmunds, a close friend who had previously reviewed his gang and trafficking research, including his interview of TJ. Agent Edmunds would have testified he put Mr. Valas in touch with Agent Kreitenstein, who then put him in touch with Analyst Walter.°° Mr. Valas also identified Agent Condikey, who debriefed him following his El Salvador mission in 2013, Agent Condikey would have testified regarding Mr. ‘Valas’s gang research in El Salvador, which he (Valas) had conducted shortly before traveling to San Antonio in August 2013.7° 234, Trial counsel contacted and presented Agent Edmunds, however he failed to follow the applicable regulations on presenting an FBI witness on behalf of the defense. This failure prejudiced Mr. Valas, Agent Edmunds had been an F.B.1. agent for 15 years when he testified and said he had known Mr, Valas for 23 years. Agent Edmunds knew about Mr. Valas’s ‘acceptance into the AWC as well as his gang and prostitution research. To assist him with his research, Agent Edmunds said he had helped Mr. Valas arrange ride-alongs with different law enforcement agencies. Agent Edmunds also said Mr. Valas had a reputation of the highest integrity within the community for decency and morality.*” 235. Trial counsel’s unpreparedness and/or inexcusable decision-making, however, surfaced again regarding Agent Edmunds’s testimony. In short, trial counsel failed to follow the 284 x, 25, 281g 26 1g. 257 Bx. 32, vol. 3, pp. 534-537. 119Department of Justice's Touhy regulations, 28 CFR. §§ 16.21-16.26, before presenting Agent Edmunds as a defense witness. United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951). ‘That trial counsel failed to adhere to the Touky regulations is shocking considering his case file contained the Federal Public Defender’s Office’s Towky manual, Touhy case law, and periodical material regarding the Touhy regulations. Trial counsel’s case file also contained his handwritten notes indicating he had reviewed this material and case law and knew what steps he had to take to properly present Agent Edmunds's testimony at Mr. Valas’s trial* Trial counsel’s failure to comply with the Touhy regulations resulted in this Court striking Agent Edmunds in its entirety.’ Trial counsel's failure prejudiced Mr. Valas in at least two ways. 236. First, the Court struck the entirety of Agent Edmunds testimony in front of the jury. Having a key witness's testimony stricken in its entirety before the jury is always harmful because the jury is led to believe the witness’s testimony was unreliable or untruthful. This, in ‘turn, can easily lead to the jury to distrusting the defendant’s other witnesses and the defendant's testimony. Indeed, the Court never explained to the jury why Agent Edmunds’s testimony had to be stricken in its entirety. As a result, the jury was free to speculate. Consequently, trial counsel was also ineffective for not asking the Court to explain to the jury why Agent Edmunds’s testimony had to be stricken. The absence of such an instruction, permitted the jury to potentially draw adverse inferences regarding trial counsel, Mr. Valas, and the other defense witnesses. 237. Second, even if the Court had not struck Agent Edmunds’s testimony, the impact of ‘Agent Edmunds's testimony was blunted by trial counsel’s ineffectiveness. By not adhering to the Touhy regulations, trial counsel limited his questioning of Agent Edmunds to character 258 Bx, 38. 259 Ex. 32, vol. 3, p. 543. 120issues. In other words, because the Touhy regulations were not followed, Agent Edmunds could not provide a detailed accounting of his knowledge regarding Mr. Valas’s research at Syracuse and the AWG, including his interview with T.J. 4. Trial Counsel's Failures to Contact, Interview, and/or Properly Present Professor Kfir, Agent Edmunds, and Other Law Enforcement Witnesses Prejudiced Mr. Valas’s Defense. 238. The Fifth Circuit has repeatedly held that it is ineffective assistance of counsel prejudicial to the defendant’s case when trial counsel fails to investigate, pursue, and present what he knows to be one of the defendant’s only real possible defenses to the charged conduct. Richards v. Quarterman, 566 F.3d 553, 564-68, 570-572 (Sth Cir. 2009); Tenny v, Dretke, 416 F.3d 404 (5th Cir. 2005); Bryant v. Scott, 28 F.3d 1411 (Sth Cir. 1994); Rummel v. Estelle, 498 F. Supp. 793, 797-798 (W.D. Tex. 1980); Gomez v. Beto, 462 F.2d 596, 597 (Sth Cir. 1972). 239. Here, like the court held in Rummel, had trial counsel presented Professor Kfir’s testimony, or even just his email to Kris Valas,”® AUSA Richardson would not have been able to effectively argue that Mr. Valas’s research explanation lacked factual support. Rummel v. Estelle, 489 F, Supp. 793, 797. Also, like Tenny, this “powerful, omitted testimony,” which objectively corroborated Mr. Valas’s research explanation, “would have left the jury with a markedly different landscape, and had the jury been so confronted, there is a reasonable probability that at least one juror would have refused to return a verdict of guilty.” Tenny v. Dretke, 416 F.3d at 410-411. 2 Although without Professor Kfir’s testimony, his email to Kris Valas would have been hearsay. See Fed, K. Evid. 801. However, if Professor Kfir had been unavaiiabie for one of the reasons stated in Fed. R. Evid. 804, including if trial counsel were unable “by process or other reasonable means, to procure,” his testimony, trial counsel should have sought to admit the email under Fed. R. Evid. 807’ residual exception. 121240. Also, had FBI Agents Kreitenstein, Condikey, and Ostream, FBI Analyst Walter, Deputy Sheriff Stafford, and FBI Agent Edmunds testified regarding what they knew about Mr. Valas’s research and his intent to interview prostitutes for his research, there is a reasonable probability their testimony would have altered at least one juror’s assessment of Mr. Valas’s research explanation. Collectively, therefore, had trial counsel interviewed and presented all of the abovementioned defense witnesses, there is a reasonable probability their testimony would have altered at least one juror’s assessment of Mr. Valas’s research explanation. Mr. Valas, therefore, is entitled to a new trial because the absence of this testimony undermines confidence in the jury’s guilty verdict. HL ate Counsel Failed to Raise the Meritorious Issue, Raised and Preserved by Trial Counsel, that the Trial Court Erred When It Refused to Provide a ‘Modified Unanimity Instruction. 241. Mr. Valas had a due process right to effective appellate representation. Evitts v. Lucey, 469 US. 387, 394, 396 (1985). Thus, like trial, direct appeal “require[s] careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments ate not inadvertently passed over.” Penson v. Ohio, 488 U.S. 75, 85 (1988). While appellate counsel need not raise all non-frivolous claims, Jones v. Barnes, 463 U.S. 745, 752-753 (1983), he or she must “examine the record with a view to selecting [and presenting] the most promising issues for review.” Id. at 752. 1, The Government Created a Duplicity Issue When It Introduced Evidence of Two Encounters Between Mr. Valas and T.J. in an Effort to Convict Him on a Single Count Indictment. 242. On May 7, 2014, the Government filed a one count indictment against Mr. Valas alleging that “on or about” August 26, 2013, he engaged “in a commercial sex act” with T.J. in 122violation of Title 18, United States Code, §§ 1591(a) and 1591(b)(2).*' The indictment made no allegations regarding commercial sex acts “on or about” August 27, 2013. 243. On July 19, 2014, Maleolm Copeland’s attorney, John Economidy, emailed trial counsel and told him the Government had just disclosed T.J.’s “journal” and that her journal indicated she had sex with Mr, Valas on two different dates.” Economidy, though, did not disclose the journal to trial counsel. 244, On July 21, 2014, T.J. testified at Copeland’s trial and said she had a total of five (5) “appointments” with four (4) paying customers. She had two “appointments” with a man at the Hilton hotel: one on August 26th and one on August 27th.2° 245, On August 18, 2014, T.J. testified at Marcus Wright’s trial and said she had five (5) “appointments” with four (4) paying customers. She had two “appointments” with a man at the Hilton: one on August 26th and one on August 27th. 246.On August 27, 2014, the Government disclosed T.J."s journal to trial counsel. ‘According to T.J.’s “journal” entries, Mr. Valas allegedly paid to have sex with on two separate dates: August 26th and August 27th.” 247. Despite T.J.’s prior testimony and her journal entries, the Government never filed an amended superseding indictment to include a separate count involving the alleged August 27th commercial sex act. 248. Despite the indictment only alleging a single commercial sex act “on or about” August 26th, during AUSA Richardson’s opening statements, she told the jury that there were, in fact, 251 Bx. 1. 28 Bx. 5. 2 Bx. 20, vol. 2, pp. 294-295. 26 Bx. 21, vol. 2, p. 267. 265 Ex. 24, 266 Ex. 5, pp. 75-77, 84-86. 123two separate commercial sex acts that occurred on two separate dates: one on August 26th and one on August 28th. a, In regards to the August 26th commercial sex act, AUSA Richardson told the jury that TJ. had gone to the Hilton shortly before 9 p.m. on August 26th, that Mr. Valas had paid her $150 for thirty (30) minutes of her time, that Mr. Valas briefly entered his penis into T.J.’s vagina before withdrawing it and asking T.J. for oral sex, that after performing oral sex on him, Mr. Valas flipped her over doggy style and thrust his penis between T.J.’s butt checks until he ejaculated on her back.?*” In regards to the second commercial sex act, AUSA Richardson told the jury that T.J. went to Mr. Valas’s room at 1:00 a.m. on August 28th that Mr. Valas paid her another $150 for thirty (30) minutes of her time, that Mr. Valas had vaginal sex with T.J. after he put on a condom, and that after having sex with her Mr. Valas told he wished he could bring her back to ‘New York with him. 249, When TJ. testified, she described in great detail the two alleged commercial sex acts she had with Mr. Valas on August 26th and 27th. 250. During the charge conference, trial counse! raised a duplicity/unanimity challenge based ‘on how the Government charged Mr. Valas and the evidence it had presented at trial regarding two separate commercial sex acts on two separate days. Specifically, trial counsel requested a modified or supplemental unanimity charge instructing the jury that in order for it to convict Mr. Valas on the indicted offense it had to unanimously agree that Mr. Valas engaged in a 21 Ex. 32, vol. 1, pp. 128-129. 26 id, p. 129. 26 Bx. 32, vol. 2, pp. 296-313. 124commercial sex act with T.J. on August 26th and that it could not substantively rely on the evidence regarding the alleged commercial sex act on August 27th: And it’s not only this~and there’s another issue that I'll address with the Court’s permission in a minute. But keep in mind that the date charged in the indictment is Monday, the 2[6]th. Tuesday, the 2[7}th, is not charged in the indictment.” And in terms of this charge conference, I’m very concerned about confusion, and I'm very concemed about the jury making a determination where several think that he did it on Tuesday, several think that he did it on Monday, and that that's unacceptable under our law. And I object to that, T’'m not exactly sure how the Court needs to fix it. I think it's a problem with the way that it was indicted. But nonetheless -- like, for instance, similar acts may ~ what are the similar acts? The similar acts -- the only similar act is Tuesday, the 27th. But this Jury needs to be told that they cannot convict him for what happened on ~ or what they believe — if they find beyond a reasonable doubt that anything happened, it could only be used to determine whether the event took place?" 251. The trial court denied trial counsel’s request and refused to inform the jury that it could not convict Mr. Valas under the indicted charge if it concluded that Mr. Valas had sexual relations with T.J. on August 27" or 28th, but not on August 26th.” 252. When the discussion returned to trial counsel’s alibi instruction request, ASUA Richardson briefly commented on the manner in which the Government had charged Mr. Valas in the indictment: “And with regards to the charge in the indictment, the government frequently 27 Triai counsel mistakeniy said August 25th and 26th, when he cieariy meani to say August 26th and 27th, 271 Bx. 32, vol. 4, p. 594. 22 Td. p, 595. 125charges, and then, as the Court is aware, the instructions to the jury and the argument and the law is that it is ‘on or about,’ and that that has been held to be very loosely interpreted.”*”> 253. Trial counsel immediately retorted and argued: Well, that sounds -- may I? That sounds to me like a standup amendment to the indictment, This indictment’s crystal clear with respect to date. What's also crystal clear, I believe, is you can't allege knowingly the way the evidence is in this case, that it's on or about and then talk about the 26th. But if it didn’t happen on the 26th, then it happened on the 27th, when it’s totally, completely within your power and your purview to allege both dates or to allege within a certain period of time before the statute of limitations. What she’s attempting to now rely on shows, if you will, either a misguided negligence with respect to the indictment ‘or a scheme to confuse the jury. And I object?” 254. The trial court then asked trial counsel whether jeopardy attached to the alleged commercial sex act on August 27th if the jury retuned guilty verdict for the August 26th alleged commercial sex act. The trial court also asked if jeopardy did not attach to the August 27th incident if Mr. Valas was acquitted: The Court: All right. Well, based on what Ms. Richardson just said, then I would argue from the defense standpoint that jeopardy has attached on anything that happened on the 27th, On the other hand, if the jury were to find him -- under the defense theory if the jury were to find him not guilty of just the 26th, as opposed to using the ‘on or about,’ then could he not be indicted on what happened on the 27th? Mr. Convery: I don’t believe so, having been put to this, but not for the same reasons, necessarily, that the Court’s talking about. The government had control over that, created this confusion, made it clear to the Court-we brought up the similar 27 Id, p. 596. 74 Id., pp. 596-597. 126acts. We objected earlier in the trial. This is not the time to change the indictment.”° 255. The trial court ultimately ruled that jeopardy attached to the August 27th alleged commercial sex act, but it denied trial counsel’s alibi instruction request and his request for a modified unanimity instruction” 256. During the jury charge, the trial court instructed the jury that the Government did “not have to prove the crime was committed on [an] exact date”: ‘You will note that the defendant [sic] charges that the offense was committed on or about a specified date. The government does not have to prove that the crime was committed on that exact date, so long as the government proves beyond a reasonable doubt that the defendant committed the crime on a date reasonably near the dates stated in the indictment?” 257. The trial court immediately followed this instruction with this: “You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct or offense not alleged in the indictment.” 258. The trial court then gave the following instruction regarding how the jury could consider the evidence regarding the alleged August 27th encounter when deciding the guilt-innocence issue ling the indicted offense date of August 26th: ‘You are here to decide whether the government has proved beyond ‘a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct or offense not alleged in the indictment. Neither are you concerned with the guilt of any other person or persons not on trial as a defendant in this case, except as you are otherwise instructed. 2 a. p. 597. 276 T., pp. 597-598. 277 Td., pp. 683-684. 278 Td., p. 684, 127‘You have heard evidence of acts of the defendant which may be similar to those charged in the indictment but which were committed on other occasions. You must not consider any of this evidence in deciding if the defendant committed the acts charged in the indictment. However, you may consider this evidence for other very limited purposes. If you find beyond a reasonable doubt from other evidence in this case that the defendant did commit the acts charged in the indictment, then you may consider evidence of the similar acts allegedly committed on other occasions to determine whether the defendant had the state of mind or intent necessary to commit the crime charged in the indictment, or whether the defendant had a motive or the opportunity to commit the acts charged in the indictment, or whether the defendant acted according to a plan or in preparation for commission of a crime, or whether the defendant committed the acts for which he is on trial by accident or mistake. ‘These are the limited purposes for which any evidence of other similar acts may be considered.” 259. The trial court then explained the elements the Government had to prove beyond a reasonable doubt in order for the jury to return a guilty verdict. The Goverment had to prove that on or about August 26th Mr. Valas knowingly engaged in a commercial sex act with TJ., that T.J. had not yet attained the age of 18, and Mr. Valas knew this fact, recklessly disregarded this fact, or had a reasonable opportunity to view TJ. Count 1: For you to find the defendant guilty of Count 1, you must be convinced that the government has proved each of the following evidence beyond a reasonable doubt. First, that on_or about August 26, 2013, in the Westem District of Texas, the defendant knowingly recruited, enticed, harbored, transported, provided, obtained or maintained by any means a person, TJ, and did cause TY to engage in a commercial sex act.”*° 260. The trial court then gave the following unanimity instruction: Unanimity of theory: You have been instructed that your verdict, whether it is guilty or not guilty must be unanimous. The following instruction applies to the unanimity requirement as to 2” Td., pp. 684-685. Id., pp. 686. 128Count 1. Count 1 of the indictment accuses the defendant of committing the crime of sex trafficking of children in three different ways regarding the age of the person TJ. The first way is that the defendant knew that TJ had not attained the age of 18 years. The second way is that the defendant recklessly disregarded the fact that TJ had not attained the age of 18 years, And the third way is that the defendant had a reasonable opportunity to observe ‘TJ when TJ was under 18 years of age. The government does not have to prove all of these for you to retum a guilty verdict on Count 1. Proof beyond a reasonable doubt on one way is enough. But in order to return a guilty verdict for Count |, all of you must agree that the same way of committing the offense regarding the age of the person TJ has been proved beyond a reasonable doubt for Count 1. To find the government proved the second element of Count 1 beyond a reasonable doubt, all of you must agree that the ‘government proved beyond a reasonable doubt that TJ had not attained the age of 18 years, and all of you must agree that the government beyond a reasonable doubt proved that the defendant knew TJ had not attained the age of 18 years; or all of you must agree that the government proved beyond a reasonable doubt that the defendant recklessly disregarded the fact that TJ had not attained the age of 18 years; or all of you must agree that the government proved beyond a reasonable doubt that the defendant had a reasonable opportunity to observe TJ when TJ was under 18 years of age.” 261. One of the trial court’s final instructions was this: “To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on Count 1 of the indictment”? 262. The trial court did not present a modified or supplemental unanimity charge instructing the jury that in order for it to convict Mr. Valas on the indicted offense it had to unanimously agree that Mr. Valas engaged in a commercial sex act with TJ. on August 26th and that it could 129not substantively rely on the evidence regarding the alleged commercial sex act on August 27th or 28th. 263. During closing arguments, trial counsel again spotted the duplicity and unanimity issue when he stressed to the jury it had to premise its verdict on the charge listed in the indictment and that charge identifies only one commercial sex act on one date, August 26th. Trial counsel’s comments prompted an objection from AUSA Richardson that the Court ultimately overruled: Convery: Now, the government also wants the benefit of you saying, well, what about the 27th? You know, you can use -- you can use any date near or about. You can do all these things. You take a look at those. But most importantly, please look at what was charged in this case. What ‘was charged in this case is what we just went through, that time period of August the 26th, 2013 — not either August 26th or August 27" or some other date in the future. Richardson: Your Honor, I object. That’s an inappropriate ~~ neeespaate -- an inaccurate statement of 264. Despite trial counsel’s repeated statements regarding his duplicity concems as well as his request for a modified or supplemental unanimity requirement, appellate counsel never challenged the trial court’s refusal to issue a modified or supplemental unanimity requirement. 265.On appeal, however, the Fifth Circuit Court of Appeals easily identified the duplicity‘unanimity concem created by how the Government charged Mr. Valas in the indictment and by the evidence it presented at trial: We note that the indictment and the Government’s “on or about” argument might have raised a duplicity concern. The Government offered proof at trial and argued that Valas committed two sexual assaults against T.J., but only charged him in a single count indictment, alleging that the commercial sex act occurred “on or 83 Id, p. 712. 130about” August 26. Charging two or more distinct and separate offenses in a single count is generally “unacceptable because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both.” United States v. Valas, 822 F.3d 228, 237 n.7 (5" Cir. 2016) (quoting Wayne R. LaFave et al., 5 Crim, Proc. § 19.3(d) (4th ed. 2015)).. 266. The Court of Appeals, though, did not address the duplicity/unanimity issue because appellate counsel failed to raise it on direct appeal. Id. 267. Appellate counsel, therefore, was ineffective for not challenging the trial court's refusal to issue a modified or supplemental unanimity charge instructing the jury that in order for it to convict Mr. Valas on the indicted offense it had to unanimously agree that Mr. Valas engaged in a commercial sex act with T.J. on August 26th and that it could not substantively rely on the evidence regarding the alleged commercial sex act on August 27th. Appellate counsel, moreover, did not have a reasonable basis not to raise this preserved and meritorious claim on direct appeal. 2. A Duplicitous Indictment Is Unconstitutional When It Risks a Nonunanimous Verdict. 268. As the Fifth Circuit emphasized in its direct appeal opinion: Charging two or more distinct and separate offenses in a single count is generally unacceptable because it prevents the jury from deciding guilt or innocence on each offense separately and may make it difficult to determine whether the conviction rested on only one of the offenses or both. United States v. Valas, 822 F.3d at 237 n.2 (internal quotations and citation omitted). 269. Duplicity and unanimity, therefore, go hand-in-hand, Both of which go hand-in-hand with the prejudice issue because if there is a genuine risk the jury may have been confused as to what factual predicate(s) could form the basis of their conviction under the indicted charge, then 131prejudice is established because it is reasonably likely not all jurors premised their verdicts on the same factual predicate(s) violating the defendant's Sixth Amendment right to a unanimous jury verdict. a An indictment is unconstitutionally duplicitous like in this case when the government must prove dissimilar facts to prove each incident charged. 270. “An indictment may be duplicitous if it joins in a single count two or more distinct offenses. If an indictment is duplicitous and prejudice results, the conviction may be subject to reversal.” United States v. Baytank (Houston), Inc., 934 F.2d 599, 608 (Sth Cir. 1991) (intemal citations omitted). However, actions that “represent a single, continuing scheme,” may be charged in a single count, “provided the indictment (1) notifies the defendant adequately of the charges against him; (2) does not subject the defendant to double jeopardy; (3) does not permit prejudicial evidentiary rulings at trial; and (4) does not allow the defendant to be convicted by a nonunanimous verdict.” Jd. at 609. Prejudice results when there is a risk that the jury could render a non-unanimous verdict. United States v. Holley, 942 F.2d 916, 925-29 (Sth Cir. 1991); Bins v, United States, 331 F.2d 390, 393 (Sth Cir. 1964). 271. For purposes of the requirement that separate offenses joined in the same indictment be stated in separate counts, Fed.R.Crim.P. 8(a), it is well settled that the test for determining whether several offenses are involved is whether identical evidence will support each of them, and if any dissimilar facts must be proved, there is more than one offense. United States v. Holley, 942 F.2d 916, 928 (Sth Cir. 1991); United States v, Bins, 331 F.3d at 393. 272. In Bins, for instance, the defendant was charged on two counts of making a false statement for the purpose of obtaining a loan from the Federal Housing Administration. Each count alleged the making of a faise statement on two separate foan application forms, meaning the defendant made four separate false statements on four separate loan applications. Under 132Fed.R.Crim.P. 8(a), the Fifth Circuit held that the Government should have charged the defendant with four separate counts in the indictment because “the filing of each false document... constitute[d] a crime[.]” United States v. Bins, 331 F:3d at 393. The Fifth Circuit noted that although such a duplicitous indictment can be cured by a limiting jury instruction, none was issued by the trial court. The absence of a limiting instruction required the Fifth Circuit to reverse the defendant’s conviction and to grant a new trial. Id. 273. In Holley, the Government filed an indictment against the defendant charging him with ‘two counts of perjury based on four depositions the defendant gave on December 21, 1988, December 22, 1988, and January 9 and 10, 1989. In each count, a section of the defendant's deposition testimony was quoted and portions of this quoted testimony were underlined. Each count charged that in the deposition the defendant knowingly made the false and material declarations that were the underlined portions of the quoted testimony. In the first count, testimony from the defendant’s deposition taken on December 22, 1988, is quoted and material in four of his responses is underlined. In the second count, testimony from statements the defendant made on January 10, 1990, is quoted and material in eleven of his responses is underlined, United States v. Holley, 942 F.2d at 922. 274. The Fifth Circuit found the indictment duplicitous because “the government was required to prove dissimilar facts to show the knowing falsity of each statement.” Id. at 928, Due to the risk that the jury may have retumed a nonunanimous verdict on one or more of the counts due to the duplicity issue, the Fifth Circuit analyzed the unanimity instruction given by the trial court, Jd. at 928-929. The instruction was the standard instruction that to “reach a verdict, all of you must agree. Your verdict must be unanimous on each count of the indictment.” d, at 929. ‘The Fifth Circuit found this instruction insufficient to guard against the possibility that the jury 133could have convicted the defendant on a nonunanimous verdict: “The instruction does not... require that all of the jurors concur in the knowing falsity of at least one particular statement.” Id. Based on that, the Fifth Circuit concluded “that there was a reasonable possibility that the jury ‘was not unanimous with respect to at least one statement in each count,” and ordered a new trial. Id. 275. Based on Holley and Bins, the Government, without question, had a constitutional duty to file two separate counts against Mr. Valas alleging that he engaged in two separate commercial sex acts with T.J. on two separate dates because the Government did not charge him with a “scheme” to engage in commercial sex trafficking, b. A specific unanimity instruction is required when there is genuine risk of juror confusion like in this case. 276. It is “settled” that a federal criminal defendant has a Sixth Amendment right “to a unanimous jury verdict.” United States v. Gipson, 553 F.2d 453, 456 (Sth Cir. 1977); accord Apodaca v. Oregon, 1972, 406 U.S. 404 (1972); Fed. R. Crim. P. 31(a) (jury verdict must be unanimous). “[IJn federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeals are in general agreement that unanimity... means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specified offense.” McKoy v. North Carolina, 494 U.S. 433, 449 n.5 (1990) (Blackmun, J., concurring). The Fifth Circuit described the unanimity rule this way: the unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does iittle to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant's course of action is also required. 134United States v. Gipson, 553 F.2d at 456. 277. Normally, “a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability.” United States v. Holley, 942 F.2d at 925-926 (intemal quotations and citation omitted). However, such an instruction will be inadequate to protect the defendant’s constitutional right to a unanimous verdict where there exists a “genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts.” United States v. Holley, 942 F.2d at 926 (quoting United ‘States v. Duncan, 850 F.2d 1104, 1114 (6th Cir. 1988). The Court’s “task is to determine, in light of the allegations made and the statute charged, whether the potential for juror confusion existed.” United States v. Beros, 833 F.2d 455, 461 (3d Cir. 1987). The Court, therefore, “need not... satisfy [itself] that the jury was in fact confused.” Id. 3. Mr. Valas Was Prejudiced by Appellate Counsel’s Failure to Challenge the District Court’s Denial of Trial Counsel’s Properly Preserved Request for a Specific Unanimity Instruction on Direct Appeal. 278. There is a reasonable probability that had appellate counsel challenged the trial court’s refusal to issue a modified or supplemental unanimity requirement, the Fifth Circuit would have granted relief on the claim because there was a genuine risk the jury was confused regarding what evidence it could substantively consider when determining whether Mr. Valas engaged in a commercial sex act with T.J. on August 26th. 279. A review of the trial evidence strongly suggests jurors may have and probability did substantively consider the August 27th/August 28th evidence to answer the guilt-innocence question regarding the charged offense on August 26th. Stated differently, of the two alleged commercial sex acts the jury heard, the evidence regarding the August 27th/August 28th alleged 135encounter was stronger than the evidence regarding the August 26th alleged encounter for the following reasons: a. First, T.J. testified she was inside Mr, Valas’s room on August 26th between 9:00 pam. and 9:30 p.m. Mr. Valas testified T.J. arrived at his room at 9:00 p.m., that he told her he could not meet ‘with her then because he had to be somewhere else right then, that he immediately went down to the Texas Roadhouse after his brief encounter with her, where he stayed until 10:30 p.m. Mr, Valas, moreover, presented an alibi witness, Cmd. Sgt. Maj. Jason Speltz, placing him at the Texas Roadhouse restaurant between 9:00 p.m. and 10:30 p.m. b. Second, before trial, trial counsel created and introduced exhibit D-9, which was a chart detailing the calls and text made to and from T.J.’s work and play phones.” T.J. testified she had both phones with her when she allegedly entered Mr. Valas’s room.** The multitude of calls and texts that T.J. made and sent on August 26th from 8:54 p.m. to 9:34 p.m. are set out ina chart at §| 187 of this petition. ©. Although trial counsel never cross-examined T.J. regarding these calls and text messages, he showed the jury exhibit D-9, during closing arguments and argued that TJ. could not have been engaging in a commercial sex act with Mr. Valas between 9:00 p.m. and 9:30 p.m. He also urged the jury to review exhibit D-9, although he did not refer to it as such, when it began deliberating. 4, Based on the timing and quantity of the text messages sent from T.J.’s play phone and work phone, as well as T.J.’s and Mr. Valas’s testimony that T.J. arrived at his room at 9:00 pm., it strains credulity to believe that a reasonable jury could find Mr. Valas guilty beyond a 28 Bx, 33, *85Ex_ 32, vol. 2, pp. 289-290. 286 Bx. 32, vol. 4, p. 707. 136reasonable doubt when T.J. sent 15 text messages between 9:00 p.m. and 9:34 p.m, Moreover, the text messages are evenly spaced out over this 34 minute period, meaning she was sending text messages every few minutes. To believe T.J.’s “we had sex” narrative, then, the jury would have had to believe T.J. was simultaneously sending text messages and engaging in phone calls on two different phones while having sex with Mr. Valas, and that Mr. Valas would have consented to this type of behavior after spending $150 for 30 minutes of T.J.’s undivided attention. . Third, in regards to the August 27th/August 28th encounter, Mr. Valas testified that T.J., in fact, entered his room on August 27th between 10:00 p.m. and 11:00 p.m.” Mr. ‘Valas, though, denied having sex with T.J. and said he only spoke with her for 15 minutes or so before he realized she knew little, if anything, regarding the local gangs. T.J. also testified she entered his room, but said she did not arrive to his room until 1:00 a.m. on August 28th, and that Mr. Valas paid her $150 for 30 minutes of sex. Thus, unlike the August 26th encounter where Mr. Valas had a credible alibi, Mr. Valas clearly places himself in the same room with TJ. alone on August 27th, £ Fourth, although trial counsel urged the jury to review the calls and text messages from August 26th identified in exhibit D-9, D-9 listed no calls or text messages from August 27th or 28th, Consequently, while the jury could have and may have actually relied on D-9 to evaluate the August 26th alleged sexual encounter, it could not do so for August 27th and 28th. In other words, D-9 did not present powerful exculpatory evidence regarding the August ‘27th/28th encounter. 287 Bx, 32, vol. 3, pp. 426-430. 137280. In the end, the evidence regarding the alleged commercial sex act on August 26th was far ‘weaker than the evidence regarding the alleged commercial sex act on August 27th/28th. Indeed, as mentioned, in order for the jury to have premised its guilty verdict solely and unanimously on the August 26th evidence, it would have had to conclude that T.J. was texting and talking with her friends, her boyftiend, and other Johns while she was having sexual relations with Mr. Valas and that Mr. Valas would have been fine with this conduct even though he allegedly paid her $150 for 30 minutes of her undivided attention. Thus, there is a reasonable possibility some of the jurors premised their guilty verdicts on the August 27th/28th evidence-violating Mr. Valas’s Sixth Amendment right to a unanimous jury verdict on the charged offense. 281. There is also a genuine risk the jury was confused based on the trial court’s instructions, particularly its instructions regarding unanimity and how and when it could consider the evidence from August 27th/28th, As discussed above, the trial court's unanimity focused solely on the mens rea aspect of the charged offense. The trial court, therefore, never explained to the jury that it could not consider the August 27"/28th evidence as substantive evidence of guilt when considering the guilt-innocence issue regarding the August 26th charged offense. 282. The Court, therefore, must vacate Mr. Valas’s conviction and grant a new trial. I. _ The Government Violated Its Statutory and Constitutional Discovery Obligations When it Failed to Disclose All the Reports Summarizing the Interviews T.J. Had With the Government and it Agents. 1. Mr. Valas Has Reason to Believe that the Government Has Violated Its Obligations under Brady in this Case. 283. The SAPD arrested T.J. on August 28, 2013. Between August 2013 and March 2014, the SAPD and/or FBI interviewed T.J. 5 times.* On August 29, 2013, T.J. mentioned one out 288 Bxs. 3, 8, 9, 10, 12, 17. 138call to the Hilton by the airport. T.J. did not mention the Hilton or the man from the Hilton again until her February 10, 2014 interview with the FBI. In her February 10, 2014 interview, T.J. again mentioned only one out call to the Hilton.” At the end of this interview, SA Gutierrez wrote: “[IJnterview was terminated and it was explained to JOHNSON that the interview would continue at another time.””' The FBI produced 302 reports for each of these five interviews, including the interview conducted by TFO Sweeney, between August 2013 and February 2014. 284. On March 10, 2014, at the FBI’s request, T.J. viewed a photo array with Mr. Valas’s photograph. TJ. initially identified the first photo in the array, not Mr. Valas, but then changed her answer to identify Mr. Valas.* Although trial counsel received the photo array and sheet indicating T.].’s selections, trial counsel never received a 302 report describing and discussing the identification process and the manner in which T.J. identified Mr. Valas. Indeed, the last 302 report provided to trial counsel was the February 10, 2014 report where T.J. mentioned one outcall to the Hilton and where SA Gutierrez said he “would continue” T.J’s interview “at another time.” On May 7, 2014, the Government filed a one count indictment against Mr. ‘Valas alleging he engaged in a commercial sex act with T.J. on August 26, 2013.7 285. On July 17, 2014, the Government disclosed T.J.’s journal to Malcolm Copeland’s attorney, John Economidy.”"° T.J. unequivocally and graphically described two commercial sex acts with Mr. Valas in her journal: one on August 26th and one on August 27. The Government 2 Bx, 3, 2 Ex. 12. 21 Id. at 4. 22 Exs, 3, 8,9, 10, 12. 23 Bx, 14. 24 Bx, 12, 25 Bx. 1. 25 Ex. 16. 139disclosed T.J.’s journal to trial counsel on August 27, 2014. T.J.’s joumal, therefore, differed significantly from her initial 4 statements to the SAPD and the FBI. Despite the obvious and significant differences, according to the discovery the Government provided trial counsel, neither the FBI nor the U.S, Attomey’s Office spoke with TJ. once the Government came into possession of and actually read T.J.’s journal. We know this because trial counsel received no 302 reports or reports indicating any communications with T.J. from the U.S. Attomey's Office after February 10, 2014, 286. Based on its disclosures, the Government never interviewed T.J. after February 10, 2014, even after it received and read her journal. This defies logic and good trial practice to believe the Government never met with and interviewed TJ. in the nine months leading up to Mr. Valas’s trial, It also strain credulity to believe the Government never asked T.J., at least once, why her journal mentioned two commercial sex acts with Mr. Valas, when her prior statements only mentioned one. 287. The Government interviewed TJ. multiple times after February 10, 2014. We know this because Mr. Valas’s post-conviction investigators interviewed TJ. on April 27, 2017 in Houston, Texas. According to T.J., she showed and discussed her joumal with the Goverment and specifically recalled discussing it with AUSAs Richardson and Barr and TFO Sweeney.” Based on T..’s statements to Mr. Valas’s post-conviction investigators, it was clear she met with the Government more than once to discuss her journal. It is on these bases that Mr. Valas believes the Government suppressed notes and/or reports. 2. Mr. Valas Has Satisfied the Necessary Showing Under Brady in this Case. 27 Bx. 35,99. 140288. To establish a Brady violation, Mr. Valas must make three showings: the government (1) suppressed (2) favorable evidence and the suppression (3) prejudiced him. United States v. Sipe, 388 F.3d 417, 477 (Sth Cir. 2004) (citation omitted). A defendant need not demand material evidence before trial; instead, the prosecution has an “affirmative duty” to disclose favorable evidence “regardless of request.” Kyles v. Whitley, 514 U.S. 419, 432-433 (1995). And Brady encompasses material evidence “known only to police investigators and not to the prosecutor,” id. at 438; accord Youngblood v, West Virginia, 547 U.S. 867, 869-870 (2006), and applies “irrespective of” the prosecutor's “good faith or bad faith.” Brady v, Maryland, 373 U.S. 83, 87 (1963). Likewise, Brady evidence encompasses both exculpatory and impeachment evidence that undermines a Government witness's credibility. Smith v. Cain, 565 U.S. 73, 74-76 (2012) (granting Brady relief based on numerous suppressed documents that impacted the State’s key witnesses at trial); Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016) (same); Giglio v. United States, 405 U.S. 150, 154 (1972) (Brady evidence includes “evidence affecting” witness “credibility,” where the witness’ “reliability” is likely “determinative of guilt or innocence”). 289. In terms of prejudice, favorable evidence is subject to constitutionally mandated disclosure when it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 417, 435 (1995); accord Banks v. Dretke, 540 U.S. 668, 698-699 (2004); Strickler v. Greene, 527 U.S. 263, 290 (1999). The Court must consider all items that were suppressed cumulatively, not individually. Smith v. Cain, 565 US. at 75 (2012); United States v. Sipe, 388 F.3d at 480-493 (affirming new trial grant based on cumulative Brady claim where one of the suppressed items of evidence was a memorandum in which a key witness’s statement was summarized in a manner inconsistent with the witness’s grand jury testimony and an undisclosed witness statement). Consequently, if itis 141reasonably probable the suppressed evidence “would have altered at least one juror’s assessment” of T.J.’s credibility, prejudice is established, and Mr. Valas is entitled to a new trial. Cone v. Bell, 556 U.S. 449, 452 (2009). 290. Here, the case against Mr. Valas came down to whether the jurors found TJ. credible, Also, the Government presented no physical evidence to corroborate T.J.’s testimony of a sexual encounter. Outside of her self-serving hearsay “journal”, there is no evidence corroborating T.1.'s “we had sex” narrative, 291. In such a case, where corroboration was weak or non-existent and where the jury’s assessment of the accuser’s credibility was the “determinative” decision regarding the guilt- innocence issue, full disclosure is imperative and constitutionally mandated. Giglio v. United States, 405 U.S. at 154 (“When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule.”), As the Fifth Circuit has held, “if the impeaching evidence would seriously undermine the testimony of a key witness on an essential issue or there is no strong corroboration, the withheld evidence has been found to be material.” United States v. Sipe, 388 F.3d at 477 (internal quotations and citation omitted); accord Mahler v. Kaylo, 537 F.3d 494, 504 (Sth Cir. 2008) (holding that “the suppressed statements directly undermine the prosecution witnesses” testimony” and therefore “the jury was entitled to know of the withheld evidence in making its credibility determinations”). a. The evidence withheld by the government is favorable to Mr. Valas. 292. The Government had to have interviewed TJ. after February 10, 2014, especially after she disclosed her journai, The journal's content relating to her two aiieged commercial sex acts with Mr. Valas is significantly different than her August 29, 2013 statement to TFO Sweeney 142and February 10, 2014 statement to SA Gutierrez. Both statements mentioned only one out call to the Hilton, while the February 10th statement said that the one out call occurred on August 26th. Consequently, there is no doubt the prosecution and its agents interviewed T.J. and asked her about her prior statements and why she never mentioned two out calls to the Hilton, T.J.’s responses to these questions would have, no doubt, been inconsistent with her prior statements because none of her prior statements mentioned two out calls to the Hilton. Thus, T.J.’s interviews with the Government, after she disclosed her journal, would have without question contained significant impeachment evidence because these interviews would have discussed ‘T.1.’s reasoning to law enforcement for failing to mention the second out call to the Hilton in her prior statements. 293. These interviews would have been impeaching in another respect. As argued previously, there are a plethora of unanswered questions regarding the journal. For instance, where, where, and why did T.J. write the journal? Why is the journal written in two parts? When did T.J. write PART | and PART 2 of the journal? Did T.J. write PART 2 of the journal after meeting with the Government? Did the Government review PART 1 of the joumal and then explicitly ask or implicitly suggest to T.J. that she re-write PART 1 with more detail? Why didn’t PART 1 of the journal mention a single word about the Hilton or the guy from the Hilton? There is no doubt the Government asked many of these questions when it interviewed T.J. after receiving her “journal”. Consequently, the content of these interviews would have contained substantial impeachment evidence regarding the journal because they would have addressed these questions with T.J., and TJ, would have had to answer them, 294, The Government had a constitutional duty to disclose the substance of this impeachment evidence to Mr. Valas and trial counsel. Specifically, the Government had a constitutional duty 143to memorialize each of its post-journal interviews with T.J.s into a formal report, like a 302 report, and to disclose these reports to Mr. Valas and trial counsel. If the Government ‘memorialized its post-journal interviews with TJ. into reports, then there have to be additional reports from the FBI, SAPD, or U.S. Attomey’s Office detailing T.J.’s answers to the abovementioned questions regarding the journal, whether her initial statements were truthful, and why she never mentioned the second out call to the Hilton during her August 29, 2013 statement and February 10, 2014 statement. TJs answers to these questions are favorable to Mr. Valas and material. Had the jury known that T.J.’s “we had sex” narrative evolved overtime or that T.J. wrote PART 2 of the journal after the Government had reviewed the “journal” and spoken to her regarding the “journal”, there is a reasonable likelihood it could have affected the jury's judgment. Giglio v. United States, 405 U.S. at 154 (evidence qualifies as “material” when there is “any reasonable likelihood” it could have “affected the judgment of the jury”). b. The Government suppressed the statements T.J. made to it after she had disclosed her journal, and her statements were material. 295. The Government's suppression is obvious. The Government interviewed T.J. after February 10, 2014, particularly after she disclosed her journal. ‘T.J. had to have given statements inconsistent with her initial statements. The discovery provided to trial counsel before and during trial, however, contained no reports discussing the substances of these post-February 10th interviews." Although Mr. Valas alleges the Government willfully suppressed T.J.’s post- February 10th statements, whether the Government acted willfully or negligently is irrelevant under Brady. The only issue is whether material evidence was suppressed, not why the evidence was suppressed. 28 Ex. 39. Mr. Valas has filed multiple FOIA requests for this and other information from the USAO and the FBI. The FBI has identified 3,994 responsive pages, and Mr. Valas is still ‘waiting for the FBI to process and produce these documents as of the date of this filing. 1d. 144296. Materiality is also apparent, The fact the Government suppressed T.J.’s post-February 10th statements prove they were material — or too material for the Government's liking. The Government knew, as it should have, its case hinged entirely on T.J.’s credibility. It also knew T.ls credibility going into trial was not something it could hang its hat on due to her prior criminal record and drug use. Thus, the Government had every incentive to protect T.J.’s credibility. What better way to protect T.J. than to suppress her post-February 10th statements that had to have contained inconsistencies when compared to her initial statements and revealing answers regarding the many unanswered questions about her journal? 297. Put differently, the reason the Government suppressed these statements is because, had the jury learned of their substance, this knowledge would have put T.J.’s credibility and the Government’s case under whole new lights. It is reasonably probable that the substance of the suppressed statements would have created significant doubts in the jurors’ minds regarding T.J.’s credibility, generally, and her “we had sex” testimony, specifically, and that at least one juror would have viewed these credibility issues differently had it known of the suppressed statements. Moreover, if TJ.’s post-February 10th statements were immaterial and did not damage her credibility and/or the Government's case, the Government surely would have disclosed these immaterial statements, just as it had disclosed thousands upon thousands of documents to trial counsel that had little to no materiality. Disclosing another 10 to 20 pages of immaterial documents summarizing T.J.’s irelevant statements would not have burdened the Government. 298. Mr. Valas, therefore, is entitled to a new trial. J ‘The Cumulative Prejudice from Trial Counsel’s Multiple Errors and the Government's Pervasive Misconduct Rendered Mr. Valas’s Trial Fundamentally Unfair Requiring Reversal of Mr. Valas’s Conviction. a. Errors, Even When Not Individually Prejudicial, Can Nonetheless Prejudice a Defendant's Case When Con: i 145299. The cumulative effect of prejudice from a range of different claims may collectively provide a basis for relief whether or not the effect of individual deficiencies warrants relief. Kyles v. Whitley, 514 US. at 436-437 (cumulative prejudice from state’s failure to reveal ‘multiple pieces of exculpatory evidence undermined faimess of trial and entitled defendant to relief); Taylor v. Kentucky, 436 U.S. 478, 488 (1978) (cumulative prejudicial effect of prosecutor's misstatements and improper jury instructions undermined fairness of trial, necessitating relief); Donnelly v. DeChristoforo, 416 U.S. 637, 639 (1974); United States v. Riddle, 103 F.3d 423 (Sth Cir. 1997) (holding that although no particular error sufficiently prejudiced the defendant to require reversal, two or more errors, when considered together, “so fatally infect the trial that they violated the trial’s fundamental faimess,” requiring reversal); United States v. Delgado, 672 F.3d 320, 344, n.31 (Sth Cir. 2012). 2. Cumulative Errors Prejudiced Mr. Valas in this Case. 300. The Government's case against Mr. Valas came down to credibility, specifically T.J.’s and Mr. Valas's credibility. A single item of evidence had the potential to alter the jury's credibility assessments. It was imperative, therefore, for the jury to hear all relevant evidence pertaining to T.J.’s and Mr. Valas’s credibility and that the parties not misrepresent the facts during closing arguments to hoodwink the jury into finding their client more credible than the record evidence truly suggested. Neither occurred during Mr. Valas’s trial. Although Mr. Valas believes each of the abovementioned claims/errors warrant relief individually, he also believes the cumulative prejudice produced by these errors rendered his trial fundamentally unfair. 301. Trial counsel, for instance, (1) failed to present a comucopia of exculpatory and impeachment evidence he had in his own case file, e.g., the text and phone records and the obvious problems with T.J.’s journal, and (2) failed to present numerous defense witnesses, 146whom he knew of, who would have corroborated Mr. Valas’s research explanation. The Government, on the other hand, (1) suppressed statements made by T.J. that contradicted her initial statements, (2) impermissibly vouched for TJ. numerous times during closing arguments, and (3) knowingly misrepresented the record facts during closing arguments. 302. Again, the primary prejudice created by each of these errors was that they either deprived the jury of credible and probative evidence regarding the credibility issue or hoodwinked the jury into believing the facts were such that T.J.’s “we had sex” narrative” was far more credible and believable than Mr. Valas’s research explanation. The combination of both, without question, rendered the jury’s verdict fundamentally unfair because had trial counsel effectively represented Mr. Valas and had the Government not committed the abovementioned misconduct, itis reasonably probable the outcome of Mr. Valas’s trial would have been different. ‘Mr. Valas, therefore, is entitled to a new trial. V. MR. VALAS IS ENTITLED TO AN EVIDENTIARY HEARING IN THIS CAS 303. When a § 2255 motion is filed, the district court must first conduct a preliminary review. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the district court must order the government to file a response or to take other appropriate action, Id. After reviewing the government's answer, any transcripts and records of prior Proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8, ‘An evidentiary hearing must be held unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). No evidentiary 147hearing is required, however, if the prisoner fails to produce any “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (Sth Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (Sth Cir. 1998)).. 304. Mr. Valas’s 2255 petition contains “independent indicia” demonstrating the “likely merit of [his] allegations.” United States v, Edwards, 442 F.3d at 264, Stated differently, his § 2255 petition and the record do nor conclusively show his claims of relief are facially meritless. To the contrary, Mr. Valas presented a wealth of evidence that strongly supports his belief that trial counsel rendered inadequate representation that undermined confidence in the jury’s verdict and that the Government engaged in a pattern of misconduct that rendered his trial fundamentally unfair. Neither his claims nor allegations, in other words, are conclusory; rather, they are supported by numerous credible facts. Cf United States v, Auten, 632 F.2d 478, 480 (Sth Cir. 1980) (noting that mere conclusory allegations are not sufficient to support an evidentiary hearing request). The Court, therefore, must hold an evidentiary hearing. MR. VALAS RESERVES THE RIGHT TO AMEND HIS PETITION, 305. Pursuant to Rule 12 of the Rules Governing § 2255 Cases and Rule 15 of the Federal Rules of Civil Procedure, Mr. Valas reserves the right to timely amend his § 2255 petition by incorporating new claims for relief and amending existing claims based on new facts developed as a result of undersigned counsel's continued post-conviction investigation as well as any discovery the Government provides to undersigned counsel during the course of Mr. Valas’s § 2255 proceedings. VILCONCLUSION 306. WHEREFORE, based on the abovementioned facts and authorities, Mr. Valas respectfully request the following relief: 1481, An order granting Mr. Valas a new trial based on his claim pursuant to Rule 33. of the Federal Rules of Criminal Procedure; 2. An order granting Mr, Valas relief pursuant to 28 U.S.C. § 2255; 3. An order requiring the Government to file an answer, motion, or other responsive pleading, Rules Governing § 2255 Proceedings, R. 4(b); 4, An order granting Mr. Valas the discovery he requests under Rule 6;2% 5. An order granting Mr. Valas an evidentiary hearing on the claims raised and fairly presented in his § 2255 petition, Rules Governing § 2255 Proceedings, R. 8; 6. Any other relief the Court deems necessary and just to ensure Mr. Valas’s § 2255 proceedings are fundamentally fair. Respectfully submitted this the 16th day of August, 2017, Be ‘Warren Alan Wolf Craig M. Cobley, jar No. 315673 ‘Texas Bar No. 218535500 COOLEY LAW OFFICE Law Office of Warren Alan Wolf 7461308 Plumdale Court 115 E. Travis Street, Suite 746 Tel: (210) 225-0055 Fax: (210)225-0061 Wwolf711@aol.com Pittsburgh, PA. 15239 Tel: 919-228-6333 S. Amy Spéncer, NH Bar No. 266617 SHAHEEN & GORDON, PA 107 Storrs Street P.O. Box 2703 Concord, NH 03302-2703 Tel: (603) 225-7262 ‘saspencer@shaheengordon.com Pro Hac Vice Motion filed with this petition ® after filing this § 2255 petition, undersigned counsel intends to file a comprehensive discovery motion under Rule 6 of the Rules Governing Section 2255 Proceedings for the United States District Courts. 149CERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing Motion for New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure and Petition Pursuant to 28 U.S.C. 2255 has this 16th day of August, 2017, been forwarded to Richard L. Durbin, Jr., United States Attomey for the Western District of Texas, 601 N.W. Loop 410, Suite 600, San Antonio TX 78216. re Amy SpeniVERIFICATION STATE OF NEW HAMPSHIRE) COUNTY OF MERRIMACK +). On this date appeared before me, a Notary Public in and for the State of New Hampshire, S. Amy Spencer, who after being duly sworn upon his oath, deposed and stated as follows: My name is Suzanne Amy Spencer. I am an attomey licensed to practice in the States of ‘New Hampshire, California, New York, and Massachusetts, and in the United States District Courts of New Hampshire, the Easter District of New York, and the Souther District of New York. I currently have an application for admission pro hac vice and for admission pending in the United States District Court for the Western District of Texas. 1 am representing Mr. Raymond R. Valas, II, a person in Federal Custody pursuant to a judgment in Federal Court in United States v. Raymond R. Valas, III, No. 5:13-CR-00806 (W.D. Tex.). I swear that the factual statements contained in the above and foregoing Motion for New Trial Pursuant to Rule 33 of the Federal Rules of Criminal Procedure and Petition Pursuant to 28 U.S.C. § 2255 are true and f the correct, and that the exhibits are true and correct copii documents. Suzanne Amy Spencer SUBSCRIBED AND SWORN TO BEFORE ME, A Notary Public in and for the State of ‘New Hampshire, on this |S day of August, 2017. Notary Public State of New Hampshire My Commission expires: ‘AEBECCALL BURKE, Notary Pubic ‘ty Commiesion Expires May 17, 2022

Ray Valas Petition Filed 08/17/17

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