Sep 06

Judge’s Order Vacating Daniel Cvijanovich’s Conviction Is Appealed By Prosecutors Who Concealed Snitch Evidence

The U.S. Attorney’s Office is appealing U.S. District Judge Ralph Erickson’s July 8, 2011 Order vacating Daniel Edward Cvijanovich’s 2008 conviction of threatening President Bush. Cvijanovich’s conviction was based on the testimony of a single jailhouse snitch.

Daniel Edward Cvijanovich (Daniel Edward Cvijanovich’s Facebook page)

Daniel Edward Cvijanovich (Daniel Edward Cvijanovich’s Facebook page)

Cvijanovich was arrested in March 2006 based on an anonymous tip that he allegedly threw rocks at the federal building in Fargo, North Dakota in 2001 while protesting Leonard Peltier’s imprisonment. The tipster also alleged that in 2005 Cvijanovich made threats against President Bush.

FBI agents searched Cvijanovich’s residence and thoroughly investigated the alleged threats, but found no evidence corroborating the anonymous accusation. Cvijanovich subsequently pled guilty to misdemeanor counts related to the 2001 rock throwing incident that occurred when he was 20, and he was sentenced to one year in federal prison.

After Cvijanovich pled guilty a cellmate at the Stutsman County Jail, Kyle White, reported to authorities that Cvijanovich confessed to threatening President Bush.

Based on White’s grand jury testimony Cvijanovich was charged with making statements threatening President Bush.

During Cvijanovich’s trial the star witness was White, and in October 2007 the jury convicted Cvijanovich of one count of making threats against the President. During his sentencing hearing Cvijanovich read a statement during which he said in part

“I am innocent of this charge. … Judge Erickson, you have chosen to uphold a wrongful conviction. No sentence you hand down today will be just. And any personal criticism you might offer will be out of line and will carry no weight. I am innocent of this charge, and that says it all.”

Cvijanovich was sentenced to 19 months in prison and 3 years of supervised release. With credit for time served and good-time credits Cvijanovich was released from federal prison on October 15, 2008.

Four months after Cvijanovich’s release his appeal was denied in February 2009 by the federal Eighth Circuit Court of Appeals.

On April 5, 2010 Cvijanovich filed a 28 USC 2255 motion to vacate his conviction based newly discovered evidence that the government failed to disclose Brady evidence prior to or during his trial that impeached White’s credibility — namely that White’s sentence had been enhanced because he obstructed justice and solicited perjury in his own federal case that involved his assault of his own young son.

The government’s defense to Cvijanovich’s motion was he could have obtained the impeachment evidence from sources other than the prosecution, so it had no Brady obligation to provide him with the information.

On July 8, 2011 Judge Erickson — the same judge who presided over Cvijanovich’s trial and sentenced him to prison — granted the 2255 motion and ordered a new trial. The Order stated in part:

“Before his own trial, White wrote a letter to his cousin that establishes he was willing to lie to avoid prison in his own criminal case, he was not reluctant to obstruct justice by suborning perjury, and he was aware of the seriousness of creating a perjured defense. … The information was clearly in the possession of the United States. The information was not disclosed and Cvijanovich did not discover it until after trial. White’s letter was not readily available to defense counsel, and the obstruction of justice enhancement was only explained in White’s Presentence Investigation Report which was not part of the publicly available court file. Cvijanovich did not have equal access to the information and clearly he was not in a position of parity with the government. White’s letter and the obstruction of justice sentencing enhancement are different than other impeachment information used at trial and are not merely cumulative. White was the only direct witness to the charge Cvijanovich was convicted on and this information creates a reasonable probability the outcome of the proceeding would have been different. Consequently, the Court finds that the United States suppressed this information in violation of the Brady doctrine and Cvijanovich’s motion to vacate his conviction is granted.”

On July 20, 2011 Judge Erickson ordered Cvijanovich’s release from supervision, that was scheduled to end in October 2011.

On September 2, 2011 the U.S. Attorney’s Office appealed Judge Erickson’s Order vacating Cvijanovich’s conviction and setting aside his sentence. Since Cvijanovich has completed his prison sentence the issues are whether his felony conviction will be reinstated and he will complete the last three months of supervised release.

Cvijanovich, now 30, is a 2002 graduate of the State University of New York at Buffalo and his website Justice For Dan reports that he has scored highly on the LSAT test and he plans to attend law school and advocate on behalf of prisoners and criminal defendants in some capacity.

Hans Sherrer
Justice Denied

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