Testimony by Albuquerque police officer Tank Guenther helped federal prosecutors obtain a guilty plea from a man charged as a felon in possession of a firearm in 2010.
But that felon, Mark L. Sedillo, 32, is now a free man after his sentence was dramatically cut.
The reason? Unbeknownst to prosecutors, APD officer Guenther was facing his own criminal charges - sexually abusing a 12-year-old - when he testified against Sedillo. At the time he testified in June 2009, Guenther had been placed on leave and ordered not to wear his badge or uniform and not to present himself as an officer.
That raised questions of whether Guenther perjured himself by appearing at the hearing as an officer.
Originally sentenced to more than eight years in federal prison and three years of supervised release, Sedillo's amended agreement is for a sentence of time served, 38 months, and one year of supervised release. Sedillo agreed to give up appeal rights.
Court documents say Louis Valencia, the assistant U.S. attorney who handled Sedillo's prosecution, learned in October 2010 from an article in the Journal that Guenther had been indicted and assig ned to ad m in ist rative duty after a girl reported alleged sexual abuse to authorities in spring 2009. Guenther was then placed on administrative leave and fired last December. Guenther, who graduated at the top of his cadet class in 2001, had been called as a witness at the June 19, 2009, hearing. Although APD had placed
Guenther on administrative leave a few days earlier, Guenther had not informed Valencia of that, and he also identified himself at the hearing as "officer Tank Guenther."
APD provided the information about Guenther's status to the U.S. Attorney's Office in February 2011, after "multiple requests" and "several delays," court filings say.
Sedillo's lawyer, Assistant Federal Defender Benjamin Gonzales, asked the 10th Circuit Court of Appeals to send the case back to the district court to reconsider its ruling in light of the new information concerning Guenther.
He later claimed Sedillo's conviction was obtained through the use of perjured testimony, because Guenther had misrepresented his status at the hearing.
That hearing was held when questions were raised about the search warrant Guenther had requested after stopping Sedillo on a traffic stop. Sedillo lost his bid to have all evidence excluded and ended up pleading guilty to being a felon in possession of a shotgun and ammunition.
Federal prosecutors disputed the merits of Sedillo's motion to set aside his conviction on several grounds, including whether Guenther's misrepresentation led District Judge James O. Browning to mistakenly conclude the officer was credible. The 10th Circuit Court of Appeals agreed to let Sedillo's legal challenge proceed, leading to his resentencing.
Browning, who had refused to exclude evidence in the case after hearing testimony from Guenther and Sedillo, noted the discovery of Guenther's pending criminal case created problems.
Guenther "should have informed the court of his administrative assignment and duties when he testified ... ," Browning said. Attorneys agreed to submit the issue to a federal magistrate judge to make proposed findings.
Chief Magistrate Judge Karen Molzen made recommendations then adopted by Browning, and Sedillo's plea agreement was amended.
The criminal case against Guenther is being prosecuted by the 1st Judicial District Attorney's Office in Santa Fe.
Guenther was a Marine linguist for 20 years before he retired as a master sergeant and attended the police academy. He was a patrol officer working mostly in the Northeast Heights and Foothills before his reassignment. Sedillo was serving his sentence at a federal prison in Texas, when his release was ordered.
Copyright 2011 Albuquerque Journal
