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Enzo Cestoni

Other Federal California Exonerations,%20Enzo%20photo.jpg
On the night of July 7, 2015, 49-year-old Derek Peralta was attacked and beaten by two men, one of whom had long hair, in the bathroom of Blondie’s Bar in San Francisco, California. Not long after, he and a friend, Jose Cruz, left the bar.

Outside, Peralta saw one of the men who had beaten him and demanded to know why he was attacked. When the man responded by revealing a handgun in the waistband of his pants, Peralta walked away and flagged down a police car. He pointed to the man, who was still standing on the sidewalk with another man and two women. The police detained all four and found a loaded .38-caliber revolver in the purse of Selena Lennox.

Police took Lennox and the other three—her husband, Claudio Maciel; 28-year-old Enzo Cestoni and his girlfriend, Nancy Sanchez—to the police station. An ambulance that was taking Peralta for treatment of head injuries pulled up outside. Officers walked Cestoni, who had long hair, to the door of the ambulance. Peralta identified him as the man who had displayed the gun in the waistband of his pants.

In August 2015, a federal grand jury indicted Cestoni on a charge of being an illegal alien in possession of a firearm and indicted Maciel on a charge of being a felon in possession of a firearm.

In February 2016, Maciel pled guilty. The following month, 12 days before Cestoni was scheduled to go to trial, the grand jury returned a superseding indictment adding a second alien in possession of a weapon charge against Cestoni. This charge was based on a photograph posted to Cestoni’s Instagram account on July 4, 2015—three days before the incident at Blondie’s. The photograph showed a person’s hand with a red star tattoo resting on a table next to a box of Winchester ammunition and a revolver that resembled the gun recovered from Lennox’s purse. Cestoni has a red star tattoo on his hand.

On April 3, 2016, the day before Cestoni’s trial, Assistant U.S. Attorneys Andrew Dawson and Laurie Kloster Gray filed a motion asking for permission to introduce several photos out of hundreds of photos from Cestoni’s Instagram account to prove that he had a habit of posting photos shortly after they were taken. The handful of photos each happened to have a date visible in them and indeed had been posted Instagram shortly after the date shown in the photos.

U.S. District Court Judge William Alsup told the prosecutors that if they were going to survey all Instagram photos posted by Cestoni to find those with a visible date, they also had to include in their survey “every single” photograph with a date and not “cherry pick” the ones with “convenient” dates.

On April 4, Cestoni went to trial before a jury in U.S. District Court in San Francisco. The prosecutors contended that the proximity of the July 4 photograph showing ammunition and a .38-caliber revolver was circumstantial evidence that the gun recovered from Lennox’s purse was his.

Peralta testified and identified Maciel—not Cestoni—as the man who had the gun in his waistband. He admitted that video surveillance film from the bar showed that Maciel was holding hands with Lennox. Peralta also testified that when he first emerged from the bar, the man with the gun was already there and that the other man who assaulted him in the bathroom was not outside.

Peralta’s friend, Cruz, testified that he never saw the gun, but claimed that it was Cestoni that Peralta had confronted—not Maciel. Cruz admitted that the video surveillance tape confused him and he had no explanation for why he believed Cestoni was outside when the tape showed it was Maciel. Further, DNA tests performed on the gun taken from Lennox’s purse had Maciel’s DNA and no DNA from Cestoni.

FBI agent Panya Somnhot testified that he reviewed 333 photos posted to Cestoni’s Instagram account in 2014 and 2015 and that eight of them had a date visible. He went through each photo and testified that the longest gap between the date visible in the photo and the date that the photo was posted was eight days.

However, on cross-examination, Cestoni’s defense lawyer, Ellen Leonida, showed Somnhot a photograph with the date of October 24, 2012 that had been posted to Cestoni’s account on May 25, 2014—a gap of more than 19 months. Somnhot explained that the photo was a photograph of a memorial card for someone who had died instead of “something that would be more current.”

During closing argument, Leonida told the jury that the prosecution and the photo analysis were deceptive. Prosecutor Gray responded during her rebuttal argument that Leonida was engaging in “sleight of hand.”

On April 11, 2016, the jury convicted Cestoni on both counts. Before sentencing, Leonida filed a motion seeking an acquittal or a new trial. In a sworn statement, Leonida said that on the afternoon of April 6, 2016, after the jury had been instructed and the proceedings were concluded for the day, Lennox’s attorney, Juliana Drous, told Leonida that Lennox had made statements to the U.S Probation office that were evidence of Cestoni’s innocence. Lennox was interviewed as the probation office was preparing a presentence report prior to Maciel’s sentencing.

Leonida said Drous told her “that she was afraid that an innocent person, Mr. Cestoni, was going to be convicted and she was concerned that the government might be withholding…information” of his innocence. Drous said that Lennox told the probation officer that on the night of the incident, “the gun was in her purse and that Peralta was confused.” Drous provided the information to Leonida “with the express instruction that I not reveal the source,” Leonida said in the statement.

Leonida’s motion said that the prosecution had received a draft of the presentence report containing Lennox’s statements during Cestoni’s trial, but did not reveal it to her until April 14—three days after Cestoni was convicted.

According to the statement, Lennox said that while they were in Blondie’s, Maciel went into the bathroom. When he did not immediately return, she asked Cestoni to check on him. Lennox reported that Maciel had tried to leave the bathroom two or three times, but was pulled back in by someone who was attacking him. She said she was already in possession of the gun and carried it because the neighborhood was sketchy. She said Peralta must have been confused because they were the first people he saw when he came outside.

The prosecutors argued that Lennox’s statements were not exculpatory because she did not explicitly say that Cestoni did not have the gun. The prosecutors also said that Lennox’s statement that she was “already in possession of the gun” was sufficiently ambiguous about the time frame that it did not undermine their case against Cestoni.

On May 22, 2016, Judge Alsup vacated Cestoni’s convictions and ordered a new trial. Judge Alsup said that Lennox’s statements were “clearly exculpatory.” The prosecutors received the draft presentence report on the evening of April 5—in the middle of trial—and presented three witnesses on April 6. He said he was “disappointed” that the prosecutors “tried so hard to sweep away a clear-cut…violation” of their duty to turn over favorable evidence to the defense “rather than confess error.”

The judge said that in “case after case,” prosecutors assured “judges on this bench that they are aware of their…obligations and will honor them. This tawdry episode casts doubt on how much we judges can rely on that theme.”

The judge also ruled that the prosecutors had committed “a clear evidentiary violation during trial” relating to the FBI agent’s testimony about the Instagram photos. He found that the prosecution’s evidence relating to the timing of the posting of the photographs to support to the second gun possession charge was “utter speculation.”

The judge noted that Leonida “blew this entire analysis out of the water” by revealing that a photograph with a 14-month gap had been ignored by the agent. The judge said that in granting the prosecution motion to admit the survey, he “relied on the government’s assurance that it had and would review each and every photograph and would include all with a visible date, all this to overcome the small size of the sample and to avoid cherry picking. Had the government actually followed the order…the probative value of the survey would have been diminished and the survey would not have been allowed into evidence in the first place.” The judge criticized the prosecution for accusing the defense of engaging in a sleight of hand since it was the prosecutors—not the defense attorney—who were in the wrong.

In the ruling, the judge also noted that it was the first time in his 17 years on the bench that he had granted such a motion.

In September 2016, while Cestoni was awaiting a retrial, the prosecutors revealed more information that was favorable to the defense. During Cestoni’s trial, the prosecution contended that Cestoni, a native of Honduras, had been ordered deported in September 2013 and this was the basis of the charges that he was an illegal alien in possession of a weapon. The prosecution had provided what it said was Cestoni’s complete immigration file.

Leonida, however, later discovered that the file was incomplete and that Cestoni was not subject to a deportation order. In fact, Cestoni had failed to appear for an immigration hearing and an order of deportation had been issued. But Cestoni’s immigration attorney had filed a motion to set aside that order just days after it was issued, the request had been granted and the deportation order had been set aside. Cestoni’s application for asylum was still pending.

Moreover, the prosecutors also disclosed that sometime between June and August 2015, an attorney in an unrelated investigation told FBI agent Somnhot that the government had charged “the wrong guys” in the case. The attorney, contacted a year later, could no longer remember the details of the conversation.

In November 2016, Cestoni went to trial a second time. On November 10, 2016, a jury acquitted him.

In 2019, Cestoni was charged with possession of narcotics in an unrelated case. He pled guilty in federal court and was sentenced to three years and four months in prison.

In April 2019, Lara Bazelon, a professor at the University of San Francisco School of Law, filed a complaint against prosecutors Gray and Dawson accusing them of ethics violations for failing to disclose the exculpatory evidence to Cestoni’s defense lawyer, violating the judge’s order regarding the photo survey, and giving improper closing arguments.

– Maurice Possley

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Posting Date: 4/26/2019
Most Serious Crime:Weapon Possession or Sale
Additional Convictions:
Reported Crime Date:2015
Sentence:Not sentenced
Age at the date of reported crime:28
Contributing Factors:Mistaken Witness ID, Official Misconduct
Did DNA evidence contribute to the exoneration?:No