United States District Court, D. New Mexico
Martinez United States Attorney Maria Ysabel Armijo Randy M.
Castellano Matthew Beck Assistant United States Attorneys
United States Attorney's Office Albuquerque, New Mexico
Attorneys for the Plaintiff
Richard Sindel Sindel, Sindel & Noble, P.C. Clayton,
Missouri and Brock Benjamin Benjamin Law Firm El Paso, Texas
Attorneys for Defendant Joe Lawrence Gallegos
Patrick J. Burke, P.C. Denver, Colorado and Cori Ann
Harbour-Valdez The Harbour Law Firm, P.C. El Paso, Texas
Attorneys for Defendant Edward Troup
Russell Dean Clark Russell Dean Clark, LLC Las Cruces, New
Mexico Attorney for Defendant Leonard Lujan
& Castle, P.C. Denver, Colorado and Robert R. Cooper
Robert R. Cooper Law Firm, P.C. Albuquerque, New Mexico
Attorneys for Defendant Billy Garcia
Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New
Mexico Attorney for Defendant Eugene Martinez
Phillip A. Linder The Linder Firm Dallas, Texas and Jeffrey
C. Lahann The Lahann Law Firm Las Cruces, New Mexico
Attorneys for Defendant Allen Patterson
Orlando Mondragon Law Office of Orlando Mondragon El Paso,
Texas Attorney for Defendant Christopher Chavez
D. Chambers Nathan D. Chambers LLC Denver, Colorado and Noel
P. Orquiz Noel P. Orquiz Attorney at Law Deming, New Mexico
Attorneys for Defendant Javier Alonso
R. Blackburn Billy R. Blackburn Law Office Albuquerque, New
Mexico Attorney for Defendant Arturo Arnulfo Garcia
Daniel Herrera Law Offices of J.D. Herrera Albuquerque, New
Mexico and Stephen E. Hosford Stephen E. Hosford, P.C. Arrey,
New Mexico Attorneys for Defendant Benjamin Clark
Pineda Pedro Pineda, Attorney at Law Las Cruces, New Mexico
Attorney for Defendant Ruben Hernandez
Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for
Defendant Jerry Armenta
A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret
Strickland McGraw & Strickland Las Cruces, New Mexico
Attorneys for Defendant Jerry Montoya
M. Potolsky Steven M. Potolsky, P.A. Miami, Florida and
Santiago David Hernandez Law Office of Santiago D. Hernandez
El Paso, Texas Attorneys for Defendant Mario Rodriguez
Lorenzo Almanza Steven Almanza Law Firm Las Cruces, New
Mexico Attorney for Defendant Timothy Martinez
Spencer Joe A. Spencer Attorney & Counselor at Law El
Paso, Texas and Mary Stillinger The Law Office of Mary
Stillinger El Paso, Texas Attorneys for Defendant Mauricio
Jacks Law Office of Amy E. Jacks Los Angeles, California and
Richard Jewkes Richard Jewkes, Attorney at Law El Paso, Texas
Attorneys for Defendant Daniel Sanchez
A. Harrison George A. Harrison, Attorney at Law Las Cruces,
New Mexico Attorney for Defendant Gerald Archuleta
Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant
Theresa M. Duncan Theresa M. Duncan, Esq. Albuquerque, New
Mexico and Marc M. Lowry Rothstein, Donatelli, Hughes,
Dahlstrom & Schoenburg, LLP Albuquerque, New Mexico
Attorneys for Defendant Anthony Ray Baca
Charles J. McElhinney McElhinney Law Firm LLC Las Cruces, New
Mexico Attorney for Defendant Robert Martinez
J. Milner Marcia J. Milner, Attorney at Law Las Cruces, New
Mexico Attorney for Defendant Roy Paul Martinez
Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New
Mexico and Christopher W. Adams Charleston, South Carolina
Attorneys for Defendant Christopher Garcia
Michael V. Davis Michael V. Davis, Attorney & Counselor
at Law, P.C Corrales, New Mexico and Carey Corlew Bhalla Law
Office of Carey C. Bhalla, LLC Albuquerque, New Mexico
Attorneys for Defendant Carlos Herrera
R. West Don West Law Orlando, Florida and Ryan J. Villa The
Law Office of Ryan J. Villa Albuquerque, New Mexico Attorneys
for Defendant Rudy Perez
Donavon A. Roberts Donavon A. Roberts, Attorney at Law
Albuquerque, New Mexico Attorney for Defendant Andrew
Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC
Albuquerque, New Mexico Attorney for Defendant Santos
R. Romero The Law Office of Keith R. Romero Albuquerque, New
Mexico Attorney for Defendant Paul Rivera
Arellanes Albuquerque, New Mexico Attorney for Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) the
Defendants' Joint Motion to Vacate March 2017 Trial
Setting, Impose a Discovery Scheduling Order and Request for
a Hearing, filed September 7, 2016 (Doc. 676)(“Motion
to Vacate”); (ii) the Joint Motion for Disclosure and
Production of Confidential Informant, filed September 22,
2016 (Doc. 698)(“Motion to Disclose”); and (iii)
the Joint Motion to Exclude the Prosecution Team from
December 2, 2016 Evidence Viewing, filed November 8, 2016
(Doc. 763)(“Motion to Exclude”). The Court held a
hearing on November 29, 2016. The primary issues are: (i)
whether good cause exists to continue the March, 2017, trial
date because of the amount of discovery and requisite
pretrial preparations; (ii) whether the Defendants'
counsel may view certain physical evidence -- at Southern New
Mexico Correctional Facility (“Southern New
Mexico”) and the police station in Las Cruces, New
Mexico -- without Plaintiff United States of America's
presence; and (iii) whether the United States must disclose a
confidential informant (“CI”) whose report has
implicated various Defendants, but whom the United States
intends to call to testify at trial. Because the Court
concludes that good cause exists to continue the trial, in
light of the lengthy preparations and discovery needed to
adequately facilitate this case, the Court will allow a
continuance of the trial date. Further, because the Court
concludes that it is appropriate under the law for the
Defendants to view the evidence at the upcoming evidence
viewing without the United States' presence, it will
allow the sequestered viewing, and will further require that
the United States not attempt to determine what occurred
while the defense teams attended the viewing. Last, because
the Court is not wholly convinced that all of the Defendants
joining the Motion to Disclose have made the proper showing
to disclose the CI's identity, the Court will at this
time require the United States to disclose the CI's
identity only to Baca, but not to others, under a protective
order limiting disclosure to attorneys and investigator's
eyes only, and will require the other Defendants joining that
Motion to Disclose to make a more substantial showing at a
future date should they still seek disclosure of the CI.
Accordingly, the Court will grant the Motion to Vacate, grant
the Motion to Exclude, and grant in part and deny in part the
Motion to Disclose.
Court takes its facts from the Superseding Indictment. The
facts are largely unchanged from those that the Court
provided in its Memorandum Opinion and Order, filed October
28, 2016 (Doc. 753). See United States v. DeLeon,
2016 WL 7242579 (D.N.M. 2016)(Browning, J.). See also
United States of America v. Angel DeLeon, 2016 WL
3124632 (D.N.M. 2016)(Browning, J.). The Court does not set
forth these facts as findings or the truth. The Court
recognizes that the factual background is largely the United
States' version of events and that the Defendants are all
case deals with crimes that the Syndicato de Nuevo Mexico
(Spanish for Syndicate of New Mexico)(“SNM”)
allegedly committed through its members. See
Superseding Indictment at 2. SNM, through its members,
operated in the District of New Mexico at all relevant times,
and its members engaged in acts of violence and other
criminal activities, “including murder, kidnapping,
attempted murder, conspiracy to manufacture/distribute
narcotics, and firearms trafficking.” Superseding
Indictment at 2. SNM constitutes an enterprise “as
defined in Title 18, United States Code, Section 1959(b)(2),
that is, a group of individuals associated in fact that
engaged in, and the activities of which affected, interstate
and foreign commerce.” Superseding Indictment at 3.
a violent prison gang formed in the early 1980s at the
Penitentiary of New Mexico (“PNM”) after a
violent prison riot at PNM during which inmates seriously
assaulted and raped twelve correctional officers after taking
them hostage. See Superseding Indictment at 3.
During the riot, thirty-three inmates were killed, and over
200 were injured. See Superseding Indictment at 3.
After the PNM riot, SNM expanded throughout the state's
prison system and has had as many as 500 members.
See Superseding Indictment at 3. SNM has
approximately 250 members, comprised of “a
‘panel' or ‘mesa' (Spanish for table) of
leaders who issued orders to subordinate gang members.”
Superseding Indictment at 3. SNM controls drug distribution
and other illegal activities within the New Mexico penal
system, but it also conveys orders outside the prison system.
See Superseding Indictment at 3. Members who rejoin
their communities after completing their sentences are
expected to further the gang's goals, the main one being
the control of and profit from narcotics trafficking.
See Superseding Indictment at 4. Members who fail
“to show continued loyalty to the gang [are]
disciplined in various ways,  includ[ing] murder and
assaults.” Superseding Indictment at 4. SNM also
intimidates and influences smaller New Mexico Hispanic gangs
to expand its illegal activities. See Superseding
Indictment at 4. If another gang does not abide by SNM's
demands, SNM manages to assault or kill one of the other
gang's members to show its power. See
Superseding Indictment at 4. SNM's rivalry with other
gangs also manifests itself in beatings and stabbings within
the prison system. See Superseding Indictment at 4.
SNM further engages in violence “to assert its gang
identity, to claim or protect its territory, to challenge or
respond to challenges, to retaliate against a rival gang or
member, [and] to gain notoriety and show it superiority over
others.” Superseding Indictment at 4-5. To show its
strength and influence, SNM expects its members to confront
and attack any suspected law enforcement informants,
cooperating witnesses, homosexuals, or sex offenders.
See Superseding Indictment at 5. To achieve its
purpose of preserving its power, SNM uses intimidation,
violence, threats of violence, assaults, and murder.
See Superseding Indictment at 7. SNM as an
enterprise generates income by having its members and
associates traffic controlled substances and extort narcotic
traffickers. See Superseding Indictment at 7.
SNM's recent activities in a conspiracy to murder
high-ranking New Mexico Corrections Department Officials
inspired the present investigation. See United States v.
Garcia, No. 15-4275 JB, Memorandum Opinion and Order at
2, filed November 16, 2016 (Doc. 133)(citing United
States' Response to Defendant's Motion to Designate
Complex (Doc. 56) at 1, filed May 3, 2016 (Doc.
70)(“United States' Garcia Response”)). The
other relevant facts giving rise to this case are as follows.
March of 2014, a Doña Ana County, New Mexico, grand
jury indicted Defendants Jerry Montoya and Jerry Armenta on
charges of first-degree murder and four other felonies
related to the death of Javier Enrique Molina, Montoya and
Armenta's fellow inmate during their incarceration at the
Southern New Mexico state prison. See United States v.
DeLeon, 2016 WL 7242579, at *3. The New Mexico Third
Judicial District Attorney's Office accused Montoya and
Armenta of fatally stabbing Molina with a shank in a
gang-related attack. See United States v. DeLeon,
2016 WL 7242579, at *3. That grand-jury indictment charged
Montoya and Armenta with: (i) Molina's murder; (ii)
possessing a deadly weapon; (iii) tampering with evidence;
and (iv) two counts of conspiracy. See United States v.
DeLeon, 2016 WL 7242579, at *3. The Doña Ana
County District Attorney then dismissed the charges against
Montoya and Armenta -- as well as separate charges against
alleged accomplice and Defendant Mario Rodriguez, who had
been charged with possession of a deadly weapon by a
prisoner, tampering, and conspiracy -- in November of 2015.
See United States v. DeLeon, 2016 WL 7242579, at *3.
“A spokesperson for the District Attorney's Office
indicated the charges were dismissed because the cases were
going to be prosecuted at the federal court level.”
See United States v. DeLeon, 2016 WL 7242579, at *3.
United States now brings this case against thirty Defendants,
charging them with a total of fifteen counts. See
Superseding Indictment at 1. All Defendants are accused of
participating in the operation and management of the
enterprise and committing unlawful activities “as a
consideration for the receipt of, and as consideration for a
promise and an agreement to pay, anything of pecuniary value
from SNM and for the purpose of gaining entrance to and
maintaining and increasing position in SNM, an enterprise
engaged in racketeering activity.” Superseding
Indictment at 6-31. Defendants Arturo Arnulfo Garcia, Gerald
Archuleta, Benjamin Clark, Mario Rodriguez, Anthony Ray Baca,
Robert Martinez, Roy Paul Martinez, and Daniel Sanchez are
the alleged leaders of the enterprise. See
Superseding Indictment at 6. The other twenty Defendants are
allegedly members or associates who acted under the direction
of the enterprise's leaders. See Superseding
Indictment at 6. The SNM gang enterprise, through its members
and associates, allegedly engaged in: (i) racketeering
activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1)
defines that term; (ii) murder and robbery in violation of
New Mexico law; (iii) acts, indictable under 18 U.S.C.
§§ 1503, 1512 and 1513, “involving
obstruction of justice, tampering with or retaliating against
a witness, victim, or an informant;” and (iv) offenses
involving trafficking in narcotics in violation of 21 U.S.C.
§§ 841 and 846. Superseding Indictment at 9. In
all, the indictment alleges fifteen different counts against
the various Defendants.
the Superseding Indictment provides that, on March 26, 2001,
Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard
Lujan, and Billy Garcia allegedly murdered “F.C.”
Superseding Indictment at 9. On the same day, Defendants
Lujan, B. Garcia, Eugene Martinez, Allen Patterson, and
Christopher Chavez allegedly murdered “R.G.”
Superseding Indictment at 12. On June 17, 2007, Defendants
Javier Alonso, Troup, A.A. Garcia, Clark, and Ruben Hernandez
allegedly murdered “F.S.” Superseding Indictment
at 15. On November 12, 2012, Defendants J. Gallegos and
Andrew Gallegos allegedly conspired to murder
“A.B.” Superseding Indictment at 18. On the same
day, Defendants J. Gallegos and A. Gallegos allegedly
murdered A.B. See Superseding Indictment at 19. In
March 2014, Defendants Jerry Armenta, Montoya, Rodriguez,
Timothy Martinez, Baca, Mauricio Varela, Sanchez, Carlos
Herrera and Rudy Perez allegedly conspired to murder
“J.M.” Superseding Indictment at 20-21. On March
7, 2014, Defendants Armenta, Montoya, Rodriguez, T. Martinez,
Baca, Varela, Sanchez, Herrera and Perez allegedly murdered
J.M. See Superseding Indictment at 21.
starting in or around 2003 -- and until about July 13, 2015
-- Defendants Baca, Archuleta, and Conrad Villegas allegedly
conspired to commit assault resulting in serious bodily
injury to “J.R.” Superseding Indictment at 27.
Starting “on a date uncertain, but no later than 2013,
” and until the date of the Superseding Indictment --
April 21, 2014 -- Defendants Baca, R.P. Martinez and Robert
Martinez allegedly conspired to murder “D.S.”
Superseding Indictment at 28. During the same period of time,
Defendants Baca, R.P. Martinez, R. Martinez and Christopher
Garcia allegedly conspired to murder “G.M.”
Superseding indictment at 28. On November 29, 2015, Defendant
C. Garcia, a convicted felon, allegedly unlawfully possessed
a firearm. See Superseding Indictment at 29. On the
same day, Defendant C. Garcia, a convicted felon, allegedly
knowingly used and carried a firearm in relation to a charge
of conspiracy to murder. See Superseding Indictment
March 17, 2015, Defendant J. Gallegos allegedly committed
assault with a dangerous weapon against “J.G.”
Superseding Indictment at 30. From February 1, 2016, until
February 27, 2016, Defendants J. Gallegos, Santos Gonzalez,
Paul Rivera, Shauna Gutierrez “and others known and
unknown to the grand jury, ” allegedly conspired to
murder “J.G.” Superseding Indictment at 30. The
final count alleges that, on February 27, 2016, Defendants J.
Gallegos, Gonzalez, Rivera and Gutierrez allegedly attempted
to murder J.G., and committed assault with a dangerous weapon
and assault resulting in serious bodily injury to J.G.
See Superseding Indictment at 31.
fuller context, there are four cases before the Court related
to SNM's alleged criminal activity. In a related case --
United States of America v. Anthony Baca, No. CR
16-1613 JB (D.N.M.)(Browning, J.), the United States names
twelve defendants, all alleged SNM members or associates, who
have allegedly engaged in a racketeering conspiracy, under 18
U.S.C. § 1962(d). See United States v. Baca,
No. CR 16-1613, Sealed Indictment, filed April 21, 2016 (Doc.
There is also a prosecution of one Defendant for drug crimes,
see United States v. Garcia, No. 15-4275 JB
(D.N.M.)(Browning, J.), and of four defendants for further
alleged conduct, as is alleged in the present case,
constituting Violent Crimes in Aid of Racketeering activity,
under 18 U.S.C. § 1959, see United States v.
Varela, No. 15-4269 JB (D.N.M.)(Browning, J.).
December 1, 2015, a federal grand jury indicted twenty-four
Defendants for the crimes of Murder (under 18 U.S.C. §
1959(a)(1)); Violent Crimes in Aid of Racketeering and U.S.C.
§ 2: Principals), Conspiracy to Murder (under 18 U.S.C.
§ 1959(a)(5); and Conspiracy to Commit Assault Resulting
in Serious Bodily Injury (under 18 U.S.C. § 1959(a)(6)).
See Indictment at 1. The Defendants are all
allegedly members, prospects, or otherwise associated with
SNM, which constitutes an enterprise as 18 U.S.C §
1959(b)(2) defines that term. See Indictment at 2.
April 21, 2016, a grand jury, in a Superseding Indictment,
indicted thirty Defendants -- twenty-four of whom were
Defendants in the original Indictment. See
Superseding Indictment at 1. In addition to the new
Defendants, the Superseding Indictment also contains new
charges under modified count numbers. See
Superseding Indictment at 9-31. The Superseding Indictment
contains fifteen counts for: (i) the Murder of F.C.
(“Count 1”); (ii) the Murder of R.G.
(“Count 2”); (iii) the Murder of F.S.
(“Count 3”); (iv) Conspiracy to Murder A.B.
(“Count 4”); (v) the Murder of A.B. (“Count
5”); (vi) Conspiracy to Murder J.M. (“Count
6”); (vii) the Murder of J.M. (“Count 7”);
(viii) Conspiracy to Commit Assault Resulting in Serious
Bodily Injury to J.R. (“Count 8”); (ix)
Conspiracy to Murder D.S. (“Count 9”); (x)
Conspiracy to Murder G.M. (“Count 10”); (xi)
Felon in Possession of a Firearm (“Count 11”);
(xii) Using and Carrying a Firearm During and in Relation to
a Crime of Violence (“Count 12”); (xiii) Assault
with Dangerous Weapon of J.G. (“Count 13”); (xiv)
Conspiracy to Murder J.G. (“Count 14”); and (xv)
Attempted Murder of J.G., Assault with a Dangerous Weapon
Upon J.G., Resulting in Serious Bodily Injury to J.G.
(“Count 15”). See Superseding Indictment
at 9-31. At the time of the Superseding Indictment's
filing, some of the Defendants were death-penalty eligible.
See The United States' Notice of Intent Not To
Seek a Sentence of Death, filed June 6, 2016 (Doc.
567)(stating that it would not seek a death sentence against
twenty-one Defendants). The Honorable Ken Gonzales, District
Judge for the United States District of New Mexico, initially
presided over the case until it was reassigned to the Court
on March 30, 2016. See Judge Update, filed December
1, 2015, and Notice of Case Reassignment, filed March 30,
2016 (Doc. 351). Given the large number of Defendants and the
safety concerns at issue in these cases, the Court has
entered a Protective Order regulating discovery, and the
Defendants receive their discovery on tablets that a
coordinated discovery management firm
maintains. See Protective Order, filed June
16, 2016 (Doc. 589)(“Protective Order”).
Motion to Vacate.
filed the Motion to Vacate, and J. Gallegos, Troup, Lujan, B.
Garcia, Patterson, Chavez, Alonso, A.A. Garcia, Clark,
Montoya, Rodriguez, Varela, Sanchez, Villegas, Baca, R.
Martinez, R.P. Martinez, C. Garcia, and Herrera joined the
Motion to Vacate. See Motion to Vacate at 1. The
Motion to Vacate begins by arguing that the SNM prosecution
might be the largest and most complicated prosecution the
District of New Mexico has ever seen. See Motion to
Vacate at 1. Accordingly, the Motion to Vacate explains that
discovery in each of the separate indictments bleeds
together, that the discovery is being undertaken in a wholly
unique -- and slow -- manner, and that trial preparation will
likely take “twice as long” as normal. Motion to
Vacate at 1-2. The Motion to Vacate Defendants thus
“request the Court vacate the trial date and schedule a
hearing so the parties can discuss a realistic timetable for
all discovery to be produced by the government, and for
defendants to review said discovery.” Motion to Vacate
at 2. In support of the request, the Motion to Vacate again
highlights the case's complexity and breadth, the
multiple indictments, a protective order restricting
discovery, and the use of a coordinated discovery management
firm. See Motion to Vacate at 2-5. Discovery,
because of the use of the coordinated discovery management
firm, is thus variable, the Motion to Vacate argues, because
some Defendants have to date received more or less than
others. See Motion to Vacate at 3-4.
Motion to Vacate reiterates, then, that discovery is still
ongoing -- and enormous --making the present timetable for
trial untenable. See Motion to Vacate at 6-7. The
Motion to Vacate thus argues that “pursuant to the
requirements of 18 U.S.C. § 3161(h)(7)(B), and
consistent with the holding in United States v.
Toombs, 574 F.3d 1262');">574 F.3d 1262 (10th Cir. 2009), good grounds
exist for the continuance . . . .” Motion to Vacate at
7. Beyond the discovery's complexity, the pretrial
preparations will, according to the Motion to Vacate, be of
such a nature that a continuance will be necessary.
See Motion to Vacate at 8-9. In sum, the
“Defendants who join this Motion agree that they cannot
be prepared to try a case of this complexity by the March
trial date and a continuance is needed.” Motion to
Vacate at 9. The United States opposes the Motion to Vacate,
but only to the extent that the Defendants in the
“parallel RICO indictment in 16-cr-1613 do not oppose a
continuance of their trial date in July.” Motion to
Vacate at 9. Ultimately, the United States did not file a
response to the Motion to Vacate. See Notice of
Completion of Briefing, filed September 30, 2016 (Doc. 707).
Motion to Disclose.
filed the Motion to Disclose,
pursuant to Fed. R. Crim. 12(b)(1), Giglio v. United
States, 405 U.S. 150 (1972); and Roviaro v. United
States, 353 U.S. 53 (1957) [to move] the Court for an
order requiring the United States to disclose the identity of
a confidential informant and all information concerning the
use of this informant during the investigation and
prosecution of Mr. Perez' case.
Motion to Disclose at 1. The requests in the Motion to
Disclose “includ[e] but [are] not limited to, the
informant's name, addresses, statements given in this
proceeding and others, criminal history, past cooperation as
an informant, and any consideration, such as promises,
inducements, or payments, extended to and/or received by this
informant.” Motion to Disclose at 1. Troup, Sanchez,
Montoya, Baca, Gallegos, and Herrera join the Motion to
Disclose. See Motion to Disclose at 1.
Motion to Disclose is primarily concerned with Counts 6 and 7
of the Superseding Indictment, which allege that Perez,
Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela,
Sanchez, and Herrera, “conspired to and did murder
Javier Molina on March 7, 2014.” Motion to Disclose at
1-2. According to the Motion to Disclose, at the time of
J.M.'s murder, all Defendants named in Counts 6 and 7 and
J.M. -- also alleged to be a SNM member -- were inmates at
Southern New Mexico. See Motion to Disclose at 2.
J.M. was murdered in his cell in pod 1A-B, and multiple
shanks were recovered “from trash cans and shower
drains” in the investigation thereafter. Motion to
Disclose at 2. The Motion to Disclose contends that Perez,
who uses a wheel chair, was in his cell on pod 1A-B's
bottom level when J.M. was murdered on the upper level.
See Motion to Disclose at 2. Indeed, the Motion to
Disclose provides, the defense “has found only one
document that contains information suggesting Mr. Perez
assisted in killing Mr. Molina.” Motion to Disclose at
2 (citing FBI Confidential Human Source Reporting (dated
February 11, 2016), filed September 22, 2016 (Doc. 698-1)).
The Motion to Disclose explains that a CI alleges that Perez
“provided his walker to make shanks that were used in
the murder.” Motion to Disclose at 2.
Motion to Disclose then explains that, in the CI's
report, the informant discusses attempting to purchase heroin
from another SNM member's mother, which Perez contends
indicates that the same CI was involved in the December SNM
indictments giving rise to this case. See Motion to
Disclose at 2-3 (providing that the similarity between the
informant's report regarding heroin purchases from the
SNM family member is important). The Motion to Disclose also
recounts that Armenta, “a co-defendant and cooperating
witness, ” neglected to implicate Perez in the murder
underlying Counts 6 and 7. Motion to Disclose at 3-4.
Accordingly, where Perez argues that the only allegation
tying him to J.M.'s murder is that his walker was used to
make shanks, and the Motion to Disclose provides that
“[t]he vague statement made by the informant regarding
Mr. Perez's role offers little insight into the basis of
the informant's knowledge, making his identity
critical.” Motion to Disclose at 4. The Motion to
Disclose further explains that “the informant will
provide key testimony for the prosecution, and he possesses
information that would benefit Mr. Perez's
defense.” Motion to Disclose at 4.
support of its request, the Motion to Disclose provides that
disclosure of CIs can be required where that source “is
a participant in and a material witness to the alleged
crime.” Motion to Disclose at 6 (citing Roviaro v.
United States, 353 U.S. at 59-61). Then, citing to the
Court's opinion in United States v. Rivas, 26
F.Supp. 1082, 1120 (D.N.M. 2014)(Browning, J.), the Motion to
Three broad categories of cases involving [CIs] exist: At one
extreme are the cases where the informant is a mere tipster,
and disclosure is not required. At the other extreme are
cases such as Roviaro itself where the informant has
played a crucial role in the alleged criminal transaction,
and disclosure and production of the informant are required
to ensure a fair trial. In addition, there are cases where
there is a slight possibility a defendant might benefit from
disclosure, but the government has demonstrated a compelling
need to protect its informant.
Motion to Disclose at 6. Here, the Motion to Disclose argues
that “the informant in this case may have played a
crucial role in the alleged criminal transaction based on the
allegations he is making, requiring disclosure of his
identity.” Motion to Disclose at 6. “The Tenth
Circuit's take on this analysis is well-known.”
Motion to Disclose at 6. Further, the Motion to Disclose
provides, “[w]hen a confidential source plays an active
role in the government's investigation, the court must
consider: ‘(1) the crime charged, (2) the possible
defenses, (3) the possible significance of the informer's
testimony, and (4) other relevant factors.'” Motion
to Disclose at 7 (citing United States v. Padilla,
2010 WL 4337819, at * 7 (D.N.M. 2010)(Browning, J.)).
Motion to Disclose, accordingly, argues that “Mr.
Perez's right to prepare his defense outweighs the United
States' interest in keeping the informant's identity
confidential.” Motion to Disclose at 7. This case is
one where Perez' interest outweighs the United
States', the Motion to Disclose argues, because -- at
least for Perez -- a great weight of evidence does not
support the allegations against him, and it appears that the
CI is the single source of evidence against Perez who the
United States will seek to use at trial. See Motion
to Disclose at 7-9. And, further, because the CI appears to
have been an integral part of the murder of J.M., the Motion
to Disclose contends that disclosure is well within the
Court's discretion. See Motion to Disclose at
7-9. In conclusion, the Motion to Disclose suggests:
Disclosing the informant's identity is essential to the
fair adjudication of Mr. Perez's case and outweighs the
government's interest in keeping it confidential.
Learning the identity of the informant at the earlier stage
of discovery will be critical given this is the only witness
who links Mr. Perez to the crime charged.
Motion to Disclose at 14.
Motion to Disclose Response.
United States responded to the Motion to Disclose with the
United States' Response in Opposition to the Joint Motion
for Disclosure and Production of Confidential Informant
, filed October 17, 2016 (Doc. 741)(“Motion to
Disclose Response”). The Motion to Disclose Response
informs the Court that “the United States and
Perez's counsel agreed to disclosure of the [CI]'s
identity under a protective order. Perez's counsel agrees
that the United States' agreement to disclosure under the
protective order satisfies Perez's requests under the
Disclosure Motion.” Motion to Disclose Response at 4.
Yet, for the other Defendants purporting to join the Motion
to Disclose, the United States objects to disclosure of this
CI, because “there is no basis on which the Court may
properly conclude that the particular circumstances of the
case, including the crime charged, the possible defenses, and
the significance of the informer's testimony may be
helpful to those remaining Defendants.” Motion to
Disclose Response at 4 (citing United States v.
Rivas, 26 F.Supp. at 1114)(internal quotation marks and
alterations omitted). The United States thus requests that
the Court deny the Motion to Disclose for overbreadth as it
pertains to any Defendant besides Perez. See Motion
to Disclose Response at 4.
Motion to Disclose Reply.
Sanchez, Baca, and Herrera replied in support of the Motion
to Disclose with their Reply to Government's Response to
Joint Motion for Disclosure and Production of Confidential
Informant (Doc. 698), filed November 7, 2016 (Doc.
762)(“Motion to Disclose Reply”). The purpose of
the Motion to Disclose Reply is to “provide . . .
background to assist the Court in determining whether the
Confidential Human Source's (CHS) identity should be
disclosed.” Motion to Disclose Reply at 2. With respect
to Troup, the Motion to Disclose Reply explains that Troup
“has been indicted in Counts 1 and 3 with the murders
of F.C. and F.S., ” and that “this is a case
where there appears to be no physical or scientific evidence
nor any objective witness implicating Mr. Troup in these
crimes.” Motion to Disclose Reply at 2. The Motion to
Disclose Reply then continues its explanation that
“F.S. was a known informant, ” and that,
according to the CI at issue in this motion, “paperwork
relating to F.S. was delivered by ‘Cheech.'”
Motion to Disclose Reply at 2. Yet, the Motion to Disclose
Reply argues, another inmate named Kyle Lynn Dwyer has
admitted to being the individual who delivered the paperwork
-- in fact, Dwyer was disciplined and sent to “PNM
Level VI” as a result of delivering the paperwork, with
“paperwork” meaning something that indicates that
the subject of whichever paperwork has cooperated with law
enforcement. Motion to Disclose Reply at 3. The Motion to
Disclose Reply thus argues that, regarding any potentially
contrary information this CI might have, Troup is entitled to
discover the CI's “identity to ascertain, among
other things, if such information is exculpatory, especially
given Mr. Dwyer's unavailability [now deceased].”
Motion to Disclose Reply at 3. In addition, the Motion to
Disclose Reply contends that the informant in question states
that Troup and another Defendant, “Weno, ”
“saw that these two individuals were taking too long
and killed F.S.” themselves. Motion to Disclose Reply
at 3. Apparently, according to the Motion to Disclose Reply,
this informant's report thus “implicates two,
unindicted individuals as alternate suspects and provides a
motive that otherwise has not been produced in discovery,
” and Troup therefore needs the CI's
“identity to investigate . . . veracity, ability to
perceive, ability to contradict other government informants,
and to otherwise adequately prepare his defense to the
charges.” Motion to Disclose Reply at 3.
Motion to Disclose Reply then turns to argument by Sanchez,
who “has been indicted in Counts 6 and 7 with
conspiracy to murder J.M. and the murder of J.M.”
Motion to Disclose Reply at 3. Because Sanchez is implicated
in the same murder as Perez is charged, the Motion to
Disclose Reply argues that Sanchez should be entitled to the
CI's identity so he can investigate the aspects of the
crime involving Perez. See Motion to Disclose Reply
at 3. The Motion to Disclose Reply then makes the same
argument on behalf of Baca, who has been implicated in
J.M.'s murder, because the CI “may very well have
been a participant in and a material witness to the
crime.” Motion to Disclose Reply at 4. The Motion to
Disclose Reply clarifies that the CI does not directly
implicate him in J.M.'s murder, but that the CI suggests
that Baca orchestrated narcotics facilitation in the prison.
See Motion to Disclose Reply at 4. Further, Baca
explains that he was not at Southern New Mexico at the time
of J.M.'s murder, meaning that
any witnesses that the United States intends to call in an
attempt to connect Mr. Baca to J.M.'s death must be
disclosed so that Mr. Baca may adequately prepare for and
defend against the inevitable testimony on the critical issue
of whether Mr. Baca was involved in any capacity with
Motion to Disclose Reply at 5. To that point, the Motion to
Disclose Reply contends that the United States has not
provided the defense with admissible evidence, yet, that Baca
was involved in the murder; so far, the United States'
case rests only on differing statements from Armenta
implicating Baca as the orchestrator of J.M.'s murder.
See Motion to Disclose Reply at 5-6.
for Baca, the Motion to Disclose Reply provides that Baca is
in the same position as Perez regarding the information this
CI has divulged. See Motion to Disclose Reply at 6.
regarding Herrera, who “has been indicted in Counts 6
and 7” regarding J.M.'s murder, the Motion to
Disclose Reply argues that Herrera was not in J.M.'s pod
during the murder and that he is implicated only because
Armenta has suggested Herrera was involved. Motion to
Disclose Reply at 6. Further, the Motion to Disclose Reply
thus contends that, because Armenta has given conflicting
statements at different times in the aftermath of J.M.'s
murder, that the informant's statements at issue here
could be exculpatory and thus Herrera should be entitled to
the CI's identity for investigation. See Motion
to Disclose Reply at 7. The CI, according to the Motion to
Disclose Reply, also implicates Herrera's mother with
involvement in “trafficking and racketeering.”
Motion to Disclose Reply at 7. The Motion to Disclose Reply
thus concludes by requesting that the Court order disclosure
of the CI's identity to Troup, Sanchez, Baca, and
Herrera. Motion to Disclose Reply at 7-8.
Second Motion to Disclose Reply.
replied in support of the Motion to Disclose with his
Supplement to Joint Motion for Disclosure and Production of
Confidential Informant (Doc. 698), filed November 11, 2016
(Doc. 768)(“Second Motion to Disclose Reply”).
The Second Motion to Disclose Reply argues that Montoya, whom
the United States “alleges . . . used a shank provided
by co-defendant Rudy Perez in order to murder Javier Molina,
” is implicated only by the CI at issue's
statements linking him to the murder. Second Motion to
Disclose Reply at 2. According to Montoya, the United States
“alleges that an inmate in Santa Fe named Jesse Sosa
transferred information to imprisoned SNM members [in] Las
Cruces, and that information was the motive for killing
Javier Molina.” Second Motion to Disclose Reply at 2.
Montoya argues that the CI has information about Jesse Sosa.
See Second Motion to Disclose Reply at 2-3. Montoya
also argues that the CI has divulged information to the
United States with respect to SNM and drug traffickers that
“were working off their own charges.” Second
Motion to Disclose Reply at 3. In light of this arrangement,
Montoya argues, the CI may be such a drug trafficker, and he
otherwise might have information “likely to lead to
information critical to the defense, ” necessitating
discovery of his identity. Second Motion to Disclose Reply at
Third Motion to Disclose Reply.
Richard Gallegos, a Defendant in United States v.
Baca, and C. Garcia, have submitted the Sealed Reply
Supporting Sealed Opposed Motion to Compel the Production of
Unredacted Discovery and the Identification of Confidential
Informant, filed November 28, 2016 (Doc. 778)(“Third
Motion to Disclose Reply”). The Third Motion to
Disclose Reply is broader than the Motion to Disclose, and
was filed in United States v. Baca and United
States v. Garcia in addition to the present case,
United States v. DeLeon. See Third Motion
to Disclose Reply at 1-2. The Third Motion to Disclose Reply,
at the outset, highlights Gallegos and Garcia's unique
position, because the United States' prosecution of them
has resulted in a trial date sooner than that of the large
group of Defendants in United States v. DeLeon.
See Third Motion to Disclose Reply at 1-2.
Accordingly, the Third Motion to Disclose Reply argues that,
for the discovery provided to date to Garcia and Gallegos,
“many of the redactions obscure obviously important
discoverable information, ” information that, in fact,
Gallegos and Garcia contend has been disclosed to other
Defendants. Third Motion to Disclose Reply at 3-4.
Accordingly, the Third Motion to Disclose Reply argues that
the redactions are improper, and thus, for twenty-seven
different discovery documents and CI reports, now requests
copies of those documents and reports sans redaction.
See Third Motion to Disclose Reply at 4-7. The Third
Motion to Disclose Reply does not specifically address the
Motion to Disclose's contents, but instead appears to
have been filed as a reply to the Motion to Disclose -- as
well as to other motions in the other cases -- to provide
Gallegos and Garcia's arguments regarding the legal
standard for disclosing the identities of CIs. See
Third Motion to Disclose Reply at 7-12. Accordingly, the
Third Motion to Disclose Reply explains:
The Tenth Circuit's analysis on disclosure of a
confidential informant's identity, as articulated by this
Court, involves, [t]he balancing of the public interest in
protecting the flow of information in a manner necessary for
effective law enforcement against an individual's right
to prepare his defense. In making the determination as to
whether disclosure is necessary, the court must consider the
particular circumstances of the case, including the crime
charged, the possible defenses, and the significance of the
informer's testimony. Where it is clear that the
informant cannot aid the defense the government's
interest in keeping secret his identity must prevail over the
defendant's asserted right of disclosure.
Aguilar, [2010 WL 2977708, at *16-17 (D.N.M.
2010)(Browning, J.)], citing, United States v.
Sinclair, 109 F.3d 1527, 1538 (10th Cir. 1997); See
United States v. McKenzie, No. CR 08-1669 JB, 2010 U.S.
Dist. LEXIS 13362 *3-4 (D.N.M 2010) (Browning, J.)(quoting
Sinclair at 1538). “The defendant must present
more than mere speculation about the possible usefulness of
an informant's testimony.” Aguilar, at 17,
citing United States v. Morales, 908 F.2d 565, 567
(10th Cir. 1990). None of these documents Defendants are
requesting are cumulative in nature.
Third Motion to Disclose Reply at 10-11. The Third Motion to
Disclose Reply then concludes, stating that Garcia and
Gallegos agree that the Court requires a case-by-case
analysis regarding disclosure of CIs, and also that the
Defendants bear the burden of explaining why the United
States' privilege should be defeated in any given case.
See Third Motion to Disclose Reply at 12. Here, the
Third Motion to Disclose Reply argues, the burden is met.
See Third Motion to Disclose Reply at 12.
Motion to Exclude.
filed the Motion to Exclude to request “the Court to
order the prosecution team, including employees of the Office
of the United States Attorney and agents of the Security
Threat Intelligence Unit of the Department of Corrections
(‘STIU'), be precluded from attending the evidence
viewing scheduled for December 2, 2016.” Motion to
Exclude at 1. Baca, Gallegos, S. Gutierrez, Herrera, T.
Martinez, Montoya, and Sanchez joined the Motion to Exclude.
Motion to Exclude at 1. The Motion to Exclude explains that
the Defendants charged in the Superseding Indictment's
Counts 6 and 7 are planning to view certain evidence and tour
Southern New Mexico, and that the information they receive is
going to be work product which they wish be protected from
disclosure to the prosecution. See Motion to Exclude
at 1-2. The reason that the Motion to Exclude gives to
support that work product will entail from the evidence
viewing is that
members of the respective defense teams, including counsel,
investigators and experts [will] view, discuss, document, and
record evidence and their impressions of that evidence. The
resulting processes, discussions, notations, recordings,
measurements, photographs and other tangible things that will
be generated and created by the respective defense teams
constitute work product and are not discoverable by the
Motion to Exclude at 3. In addition, the Motion to Exclude
contends that the “Defendants are therefore entitled to
a prosecution-free zone in which to view, record and discuss
evidence.” Motion to Exclude at 4-5. The Motion to
Exclude further contends that excluding the prosecution will
not otherwise compromise the evidence or the evidence's
custody and control, as the Defendants do not seek to exclude
supervisory agents who are not aligned with the prosecution.
See Motion to Exclude at 5.
Motion to Exclude Response.
United States responded to the Motion to Exclude with its
United States' Response to Defendant's Joint Motion
to Exclude the Prosecution Team from December 2, 2016
Evidence Viewing, filed November 25, 2016 (Doc.
775)(“Motion to Exclude Response”). The United
States primarily opposes the Motion to Exclude, because
(1) Defendant fails to demonstrate that the work-product
privilege applies, (2) public policy disfavors
Defendant's motion to exclude . . ., (3) the presence of
agents and correctional officers at the evidence viewing
negates any interest in Defendant's claim to privacy
under the work-product doctrine, and (4) Defendant's
claim to a “Prosecution Free Zone” is unfounded.
Motion to Exclude Response at 1. Regarding the
inapplicability of the work-product doctrine, the United
States argues that the request is prospective and that,
because the United States has not attempted to compel
disclosure of Defendants' work-product, the doctrine does
not yet apply. See Motion to Exclude Response at 2.
Thus, according to the United States, “if no work
product has been produced, the rule should not apply.”
Motion to Exclude Response at 3. Also, the United States
contends that “public policy disfavors” the
Motion to Exclude, because “public policy favors an
agreement” amongst the parties as to the parameters of
the United States' presence, as opposed to a total
exclusion. Motion to Exclude Response at 5-6. Last, the
United States argues that, if anyone acting as an United
States agent is there, then the work-product protection is
waived, because it is not a total exclusion. See
Motion to Exclude Response at 7.
The November 29, 2016, Hearing.
Court held a hearing on November 29, 2016. See
Transcript of Hearing (taken November 29, 2016), filed
December 20, 2016 (Doc. 804)(“Tr.”). The Court
first heard argument on the Motion to Vacate. See
Tr. at 15:25-16:3 (Court). The Court provided that, in the
related case United States v. Baca, the Defendants
in that case had agreed to move their trial date, which was
the only contingency noted by the United States in their
Motion to Vacate Response, meaning that there likely were not
any remaining issues in the Motion to Vacate and it should be
granted. See Tr. at 16:3-17 (Court). Perez then
explained that there were no issues remaining, because the
United States no longer opposed the Motion to Vacate, but
that he wanted to reiterate the issues surrounding receipt of
the tablets. See Tr. at 17:3-17 (Villa).
Accordingly, given the massive amount of discovery and some
of the logistical issues with the Defendants' review of
the discovery, Perez requested that -- in addition to moving
the trial date -- the “scheduling order” dates
would move in conjunction with the new trial date. Tr. at
19:1-21:2 (Villa). This, apparently, was an issue for Perez,
because the original scheduling order had garnered agreement
amongst all parties, and he was not sure there was still such
a consensus in that regard at the present time. See
Tr. at 21:5-9 (Villa). Montoya then seconded Perez'
discontent with the tablet discovery process, and suggested
that no new scheduling order dates be set until all discovery
was received by the Defendants. See Tr. at
23:11-25:1 (Hammond). Herrera similarly then asked the Court
“to appreciate the logistics of the discovery issue in
this case.” Tr. at 27:7-15 (Davis). B. Garcia argued,
next, that the related case -- United States v. Baca
-- was less cumbersome and complex, and should be argued
before the present case. See Tr. at 27:23-30:1
(Castle). Additionally, B. Garcia suggested, as did Montoya,
that trial and scheduling order dates not be set in stone
until the discovery had been received by all Defendants.
See Tr. at 27:23-30:1 (Castle). Both Troup and Baca
then parroted their co-Defendants' arguments relating to
the discovery issues, with Baca explaining to the Court that,
on top of the logistical problems in receiving the tablets
and loading them with discovery, it was hard to work on the
tablets with only minimal technological experience.
See Tr. at 31:8-33:22 (Harbour-Valdez, Lowry).
United States then argued, and explained that
we had agreed to the continuance in this case that Mr. Villa
presented, if the other case, the Baca case, was
continued, and that's why we had agreed to the
continuance of the Baca case and we had agreed to
the continuance in this case. And our understanding was at
the time they were just asking that it be continued to next
Tr. at 34:4-11 (Armijo). The United States then commiserated
that the discovery process was more cumbersome than usual,
and explained that discovery would be rolling and that they
were “working very hard on it.” Tr. at
34:12-37:13 (Armijo). The United States maintained that
“we would request that the Court set a trial date . . .
next summer, ” and that regarding a scheduling order
and timetable, “we can change the dates to reflect that
new [trial] date on the discovery order that's already in
place.” Tr. at 37:14-24 (Armijo).
then replied to the United States' argument, and
generally reiterated how logistically complicated, and
expansive, the discovery process has been. See Tr.
at 40:18-42:8 (Villa). C. Garcia reiterated the complicated
nature of the discovery, and argued that the tablet process
-- which the United States suggested and implemented -- is
clearly not working, and that it was disingenuous of the
United States to wash its hands of the problems in getting
the tablets to the Defendants, because it was the United
States idea in the first place. See Tr. at
42:13-44:17 (Sirignano). The Court then ruled that the United
States' “consent here to move this trial is
premised on the fact that we're sliding Baca
back, and DeLeon is going to move forward and sort
of take its place. So I think we had that much of agreement.
. . . So I'm going to set the trial July 10th.” Tr.
at 46:15-25 (Court). The Court noted that it was aware of all
of the discovery issues, and explained that all parties were
going to need to work “extremely hard, ” and that
“we need to stick with the schedule that we hammered
out in this case, hammered out in Baca, and take the
agreement that we have, and see if we can try to move this
case along.” Tr. at 47:1-10 (Court). Thus, the Court
set the trial date for July 10, 2017, and imposed the
scheduling order and deadlines accordingly. See Tr.
at 47:11-14 (Court). The Court, then, at the United
States' request, called the related case -- United
States v. Varela -- to set a new trial date in that case
as well, and then set the trial date for October 2, 2017.
See Tr. at 48:9-49:23 (Court).
Court then specifically addressed Montoya and B. Garcia's
requests that the Court not set a trial date until the
discovery process was complete, and explained that such a
procedure “is just not realistic.” Tr. at 50:6-11
(Court). The Court provided that discovery issues are not
novel -- “it's just part of litigation” --
and that it was the Court's impression that the United
States had already done the bulk of its discovery provision.
Tr. at 50:12-51:9 (Court). The Court then agreed to modify
the scheduling order to reflect a four month difference
across the board. See Tr. at 54:1-4 (Court). The
Court thus granted the Motion to Vacate, and moved to the
Motion to Exclude. See Tr. at 55:12-24 (Court).
respect to the Motion to Exclude, the Court explained that
“sometimes it's normal to have somebody set in
there” when opposing counsel was reviewing discovery
documents in another's law office. Tr. at 56:19-57:9
(Court). However, the Court surmised,
in the particular circumstances of this, where we may have a
large number of defense lawyers there, they are going to
probably be discussing this with each other. . . . And if the
Government lawyers are there I think it's going to
inhibit their ability to do the things they need to do to do
a site visit.
Tr. at 57:9-17 (Court). Further, the Court surmised that
“I think there are work thoughts, their work product
will be disclosed, or . . . it will not take place, ”
given the unique nature of this particular site visit. Tr. at
57: 18-25 (Court). Perez then argued the Motion to Exclude,
and clarified that “we are scheduled, not only to visit
Southern New Mexico Correctional Facility, but also to view
all the evidence in this case, all tangible physical
evidence, ” regarding Counts 6 and 7. Tr. at
58:23-59:13 (Fox-Young). Perez indicated that “there
are easy measures that the Government takes” to use
information against the Defendants, such as serving warrants
using “filter agents, ” which Perez wishes to
avoid by having the Court “order that any discussions,
any work product -- and we think that everything we say,
produce, develop, record, any processes that we employ on
Friday, are work product, and we don't want that
information disclosed to the prosecution team.” Tr. at
United States then responded, and argued that, in all of its
years of experience it had never seen a request like this
before. See Tr. at 61:11-21 (Castellano). The United
States explained its lack of experience with this type of
request was, first, probably because it is a nonissue that
never arises -- indeed, in this case, they have had smaller
evidence viewings where the United States was present, and
when Defendants needed to converse, the United States stepped
back to allow as much. See Tr. at 62:7-63:20
(Castellano). Further, the United States argued, “the
presence of a third party vitiates any issues related to
privilege, ” and because here Defendants were conducive
to the presence of non-prosecution team law enforcement, they
cannot avail themselves of some privilege. Tr. at 63:21-64:19
(Castellano). The Court, however, suggested that might not be
the case, as it often will have United States Marshalls in
the presence of a defendant and defense counsel during a
private conversation, and that did not disavail the defendant
of any type of privilege. See Tr. at 64:21-65:8
(Court). The United States hesitantly agreed, but still
maintained its argument against the Motion to Exclude, and
stated further that “it's just not practical,
because we need to look at the evidence also, and we
don't have that many hours in the day either.” Tr.
at 65:9-66:10 (Castellano). The Court then attempted to
figure out just how long and in depth this evidence viewing
and site visit would be, and why the United States could not
simply go another day. See Tr. at 67:8-13 (Court).
The United States indicated that there was an evidence
viewing in Las Cruces, New Mexico, and also the site visit to
Southern New Mexico, which would take a full day.
See Tr. at 67:14-68:9 (Castellano).
then replied by arguing that he recognizes it “is an
unusual request, but this is also an unusual case.” Tr.
at 68:20-69:1 (Fox-Young). Perez indicated that they were
intent on seeing all of the physical evidence in this case,
and not just the evidence in Counts 6 and 7, because all of
the allegations are interrelated. See Tr. at 69:4-13
(Fox-Young). Perez also reiterated that it was impractical to
do this evidence viewing and site visit with the United
States present, because of all of the moving parts and the
need to confidentially cooperate amongst defense counsel.
See Tr. at 69:14-70:5 (Fox-Young). Further, Perez
explained that the reason the Defendants were seeking to make
such a large group visit and viewing was because the United
States had declined to allow individual defense counsel to
make such a visit and viewing. See Tr. at 71:2-12
(Fox-Young). B. Garcia then argued that, although the Court
was considering the Motion to Exclude in the context of
Counts 6 and 7, he assumed the Court's order on the
Motion to Exclude would dictate the procedures for future
site visits and evidence viewings for other counts.
See Tr. at 71:18-72:12 (Castle). B. Garcia also
argued that the United States, for Counts 1 and 2 Defendants,
had similarly denied individual requests to confidentially
view evidence, and that if the United States was requiring
these joint viewings, it couldn't also maintain its
argument that Defendants were waiving a privilege.
See Tr. at 72:2-22 (Castle). B. Garcia also said
that the only unusual aspect of the Motion to Exclude was the
United States' refusal to allow confidentiality, because
that is the normal course of action in these cases.
See Tr. at 72:23-73:12 (Castle). Baca reiterated
Perez' argument that “this Court should order that
there is no waiver just because other individuals or law
enforcement officers may be present; that that doesn't
vitiate any work product privilege or attorney-client
privilege that would exist.” Tr. at 74:7-16 (Lowry).
The Court then granted the Motion to Exclude, explaining that
the “prosecution team should not go in the next day or
any other time and try to elicit information about what the
defense lawyers did while they were there. And if approached
by anyone with the Corrections Department or State Police --
if that's where the viewing of the other evidence takes
place -- with information, they should not take that
information without . . . consulting with coordinating
counsel, and seeing if it can be worked out.” Tr. at
74:20-75:6 (Court). The Court further held that
If the Government wishes to challenge, down the road, that
there is not work product here, they can raise that down the
road in the specific context of the information that
they're trying to get ahold of, or saying that's been
waived, rather than us trying to decide that today in a
vacuum . . . I think I am trying to preserve the
defendants' ability to talk while they're there, and
do what they need and can do there. So I'd be inclined to
continue to protect it down the road, whether it fits neatly
into some recognized privilege or protection, or just my
ability to control the discovery in this case.
Tr. at 75:12-24 (Court).
Court then turned argument to the Motion to Disclose, which
Perez had initially filed, but thereafter had entered into a
disclosure agreement regarding the CI whose identity he
sought by the Motion to Disclose. See Tr. at 79:8-14
(Villa). The Court then took up Troup's arguments in the
Motion to Disclose Reply, with Troup arguing that there had
been discovery that F.S. -- Freddie Sanchez, the victim of
Counts 1 and 2 -- was a known informant who's
“paperwork” proving his informant status had been
circulated to inmates at Southern New Mexico. Tr. at 83:7-11
(Harbour-Valdez). According to Troup, the CI at issue in the
Motion to Disclose is the first person who indicates
“that someone by the name of Cheech delivered that
paperwork to Southern New Mexico.” Tr. at 83:24-84:2
(Harbour-Valdez). This is relevant to Troup, he argued,
because another gentleman -- named Kyle Dwyer, now deceased
-- had been disciplined by the prison system for his
admission that he was the person who delivered paperwork from
“PNM in Santa Fe down to Southern New Mexico.”
Tr. at 84: 3-11 (Harbour-Valdez). Troup also explained that
Kyle Dwyer had appealed his discipline by the prison system
for this admission, but that the result of that appeal was as
of then unknown. See Tr. at 85:2-11
(Harbour-Valdez). Troup argued that “if in fact Mr.
Dwyer was exonerated, perhaps someone named Cheech is
responsible. We would very much like to know who Cheech is,
or [who] was at PNM at the time and knows about the
paperwork.” Tr. at 85:12-22 (Harbour-Valdez). The
informant's identity, then, who discusses this person
named Cheech and the relevant paperwork, is important because
he has provided “an alternate suspect, who perhaps had
a hand in this incident.” Tr. at 84: 20-22
(Harbour-Valdez). The Court then asked Troup to explain the
United States' case against him, to which Troup replied
that the United States alleges that Troup and a number of
other individuals killed “Mr. Sanchez, after this
paperwork was circulated in the pod.” Tr. 86:20-23
(Harbour-Valdez). Troup thus argued that investigating into
Cheech and the CI could lead to exculpatory information for
Troup, because the CI talks about Cheech, who apparently may
have delivered paperwork from PNM, and also “the Rascon
brothers, ” who apparently were in bad standing with
SNM and took too long to carry out the hit that Troup is now
alleged to have undertaken. Tr. at 87:20-88:11
(Harbour-Valdez). The United States then argued, and
explained that it matters whether a CI is a testifying
witness or a nontestifying confidential human source, because
the analysis pertaining disclosure will differ accordingly.
See Tr. at 92:20-93:4 (Beck). If they are a
testifying witness, then the Jencks Act applies to the
CI's disclosure, whereas in the case of no intention to
testify, a separate calculus will apply. See Tr. at
94:5-22 (Beck). And, although Troup agreed that that was the
correct phrasing of the applicable law, Montoya then argued
that “the law is not black and white on this. I believe
the law is that, even with a testifying CI, if there are
reasons presented why the identity of the CI needs to be
known now for investigative purposes, and preparation
purposes of -- particularly if the CI himself may have been a
participant in the crime, I believe that courts have ordered
that CI information be produced well in advance of the Jencks
deadlines.” Tr. at 96:17-97:5 (Hammond). The United
States maintained argument that there are district courts
which agree with Montoya's position, primarily because
the defendant is going to know the testifying CI's
identity at some time, and they will just need to wait.
See Tr. at 98:13-20 (Beck). The United States also
explained that it would disclose its testifying CIs in due
time, and that it did not anticipate calling all of its CIs
-- meaning, it would not, in all likelihood, be an
unmanageable Jencks Act disclosure. See Tr. at
99:12-15 (Beck). The United States then suggested that the
most fair approach to the CIs' disclosure, generally,
would be for the Court to “go ahead and make the
determination as to whether the CI should be disclosed, and
then -- but they wouldn't be disclosed immediately,
because [the United States] is planning to call them at trial
-- but if it's -- for some reason [the United States is]
not going to call that witness . . . then [it] would
immediately disclose that . . . .” Tr. at 101:2-20
(Beck, Court). The United States then specifically argued why
the Court should not order the CI's identity disclosed to
Troup, because while the information about Cheech and the
paperwork might be helpful to Troup, that is not the
standard; instead, the standard is that “the Court must
consider the particular circumstances of the case, including
the crime charged, the possible defenses, and the
significance of the informer's testimony, ” where,
here, the CI is planning to testify. Tr. at 102:15-103:10
(Beck). The Court then asked if the United States could ask
the CI who Cheech is and then give that information to Troup.
See Tr. at 104:1-4 (Court). The United States said
that request was possible and agreed to ask the CI.
See Tr. at 104:14-18 (Court). The Court then asked
the United States to clarify its theory with respect to
Troup, which the United States explained was that “at
some point, there was paperwork . . . passed to two people.
And then, we believe that . . . the Rascon brothers were
ordered to hit Freddie Sanchez, and that Troup was one of the
people who did it at Southern New Mexico Corrections
Facility.” Tr. at 105:11-17 (Beck).
[O]bviously, the CHS is going to testify. What we're
trying to determine is whether he was, in fact, a witness or
participant; whether he was one of the people in this pod at
Southern, or was in the pod at PNM, from which the paperwork
allegedly -- and the hit allegedly derived.
Tr. at 107:23-108:5 (Harbour-Valdez). Essentially, Troup
argued, “the identity of the CHS” would help him
“find out if he was, in fact there; if he was an active
participant.” Tr. at 108:12-16 (Harbour-Valdez). The
Court was not convinced, however, and pushed Troup to explain
why, beyond potentially being present, this CI was different
than anyone “else on the planet.” Tr. at
108:17-22 (Court). The Court concluded:
I'm not going to order the production of the CHS at the
present time. I'm first going to determine whether the CI
analysis is obviated if, in fact, the person is going to be a
testifying witness. . . . I'm going to require the
Government to go ahead and give you Cheech, figure out who he
is; maybe you'll be able to bulk up your request.
Tr. at 109:18-110:9 (Court). The Court continued,
at the moment, it seems to me the CHS, as far as Troup, may
be a little bit on the periphery of just somebody that -- you
know, obviously, everybody would like to know who is there.
But if I start saying I'm going to disclose every CI to
see if they were there, I think I've just pretty much
required every CI to be disclosed. So I think it's got to
be higher than that.
Tr. at 110:10-17 (Court). Thus, “I'm inclined to
leave this one on the Jencks disclosure list, but maybe you
can bulk it up with what you get with Cheech. . . . I'm
not making a final final here, because I don't have to
because of this Jencks issue.” Tr. at 110:18-23
(Court). Sanchez then indicated that he was not interested in
the identity of the same CI as Troup, so he did not argue in
favor of the Motion to Disclose Reply at that time.
See Tr. at 111:22-112:10 (Jewkes). Accordingly, Baca
took up argument, and explained that the theory of his
involvement was that he was able to issue paperwork that went
from Level 6 to Level 5 at PNM, and then
was couriered from Level 5 of PNM down to Southern in order
to give the authority to murder Mr. Molina. And according to
the discovery, and what we know about Molina, the
Government's allegations of the Molina murder, that
paperwork arrived on a Friday, and Mr. Molina was killed --
well, the paperwork arrived on a Thursday; it didn't get
into the hands of the people in Mr. Molina's pod until
Friday, and then Mr. Molina was allegedly killed based on the
Tr. at 113:6-23 (Lowry). Baca argued, however, that the
“confidential human source indicates . . . something
entirely different . . . that there was a plot to kill Mr.
Molina some time before the paperwork ever arrived, was in
the equation, or anything.” Tr. at 113:24-114:3
(Lowry). Baca bases this argument in the fact that he does
not think Perez could have provided his walker for the shanks
used in Molina's murder in such a short time span of
about twenty-four hours. See Tr. at 114:10-21
(Lowry). Baca then reiterated that, for the United
States' theory of a conspiracy -- opposed to random
jailhouse murder -- to hold water, Perez must have provided
his walker in accordance with orders and paperwork, making
the time frame all the more relevant. See Tr. at
116:16-117:2 (Lowry). Montoya then argued in support of Baca,
and himself, by explaining:
We are in the same count with Mr. Baca. The story that Mr.
Lowry recounted is a story that, in one version of the
Government's case, results in a shank being in the hands
of our client, and that shank being used to carry out this
killing. We have seen discovery in this case that says that
the shank or shanks came from the walker. We have seen other
discovery that says that the shank or shanks did not come
from the walker. For us, we think it's as important for
our client -- who is alleged to have been directly involved
in the homicide -- to know exactly what Mr. Perez is finding
out; who is this CI, and what information does he have that
would suggest that in some way that there had been a
coordinated plot or plan to kill Mr. Molina? The only
evidence we have, other than from a cooperating defendant, is
that this homicide was not an ordered hit from on high, but
was a result of a beef between two inmates. That would be
very important in this case. And as far as I can tell, other
than the one cooperating defendant, who is sitting here to my
right, there is no other witness that we have been told about
who would say that there was a plan or a plot. And so for us,
in the defense of our client, we very much need to know, just
as Mr. Perez needs to know, who is saying that these shank or
shanks were part of a coordinated plot?
Tr. at 118:1-119:4 (Hammond). Montoya also explained that he
had interest in understanding whether the CI is an eyewitness
and that, where the provider of the weapons obtained the
CI's identity, so should the person accused of using the
shank. See Tr. at 119:15-120:7 (Hammond). At this
point, B. Garcia argued:
The problem here is a problem that's going to reoccur
with all these CIs. And that is that the Government's
reports are often devoid of any information as to whether the
confidential source has personal knowledge of that which is
being reported. So there is no way to determine whether
they're an eye and ear witness to a particular thing that
they're recounting, whether they're a hearsay
witness. And so that's a recurring problem. And so one of
the solutions to the problem --and I just offer this -- is
that the Government is probably aware, based upon their
interviews with these witnesses, whether they are, in fact,
percipient witnesses, or whether they're just a witness
that is going to give overall background about the SNM, for
example. So what all these attorneys seem to be getting at
is, we don't know whether this is a percipient witness
under 613, Federal Rule 613, or whether it's not. And,
instead of us all guessing, and finding out perhaps at the
last minute, right before trial, that they were a percipient
witness, they were aware of exculpatory information, or they
heard it through the grapevine, the Government could disclose
to the defense who are the percipient witnesses here in these
materials. It would cut down on the number of motions to
disclose confidential informants considerably.
Tr. at 122:10-123:12 (Castle). Baca concluded by explaining
that this particular CI was providing information that was
very important to the United States' theory that
Molina's murder was part of a conspiracy. See
Tr. at 124:5-15 (Lowry).
Court then questioned the United States whether the time
frame between Baca's order and Perez' provision of
the walker for use as a weapon hurts the United States'
case against Baca, “because the timing becomes a pretty
important issue there.” Tr. at 126:21-25 (Court). The
United States agreed that “it could, ” but that
the “United States' case is that the Molina murder
was outstanding for a number of years. It's not as if
there was paperwork passed on one day and it happened the
next day.” Tr. at 127:23-128:3 (Beck). Further, the
United States argued, this particular CI -- who was providing
information about certain murders, as well as information
that Baca was regaining, or trying to regain, control of SNM
so he could restore it to its former power -- was not one of
the most significant contributors of this information,
because there are multiple sources at play. See Tr.
at 128:4-18 (Beck). The Court decided:
I'm going to have to review this in connection with . . .
Jencks, I'm not going to order the production to Mr. Baca
at this time. I'll study the legal issue, and see if this
requires any CI analysis. But if it does require CI analysis,
I'm going to think about it a little further. But I'm
inclined to order the production here because of this timing
Tr. at 129:19-130:1 (Court). The Court determined to take a
hard look at the issue, because
this information got to him, and then Mr. Perez made shanks
out of his walker all within 24 hours. It seems to me that
may be the only -- since this is the only source of
information to either Mr. Perez or to Mr. Baca, I may need to
require its production if I do the CI analysis.
Tr. at 130:4-13 (Court). The United States quickly countered,
however, that “Tapes have been disclosed in which Mr.
Baca admits his involvement in the Molina murder, ”
undercutting the importance of the CI's identity, and
that the United States' theory is not that Baca ordered
the hit within twenty-four hours, but instead that it was
outstanding for a long time. Tr. at 131:1-3, 14- 20 (Beck).
The Court then ultimately concluded that, because the short
time frame was the reason that it was inclined to order
disclosure to Baca, the parties would need to get the Court
“some particular discovery that you want me to stare at
before I make a final decision on the CI analysis . . . .
[and] something specific, as far as recordings or something
that link Mr. Baca up to the Molina hit orders . . . .”
Tr. at 133:15-21, 133:23-134:6 (Court).
then argued in favor of disclosure to him, explaining that
“he was actually housed in a connecting cell block
called A pod. The murder occurs in B pod.” Tr. at
135:6-15 (Davis). The United States, at the Court's
beckoning, interjected to explain that “Mr. Herrera was
involved -- we have recordings and admissions from him as to
his involvement. He basically sanctioned the hit . . .
.” Tr. at 135:25-136:3 (Armijo). Herrera argued,
however, that in all of the discovery he has reviewed,
despite this CI's characterization of him as a high
ranking SNM leader, nothing else characterizes him as a
leader. See Tr. at 138:12-18 (Davis). According to
Herrera, then, “it's our position that . . . . [i]f
we had the identity of that CS, we could obviously talk to
that person, and, in fact verify that Mr. Herrera is not who
the Government thinks he is.” Tr. at 140:4-10 (Davis).
At this point, the United States explained that it was
fighting the disclosure requests for this CI to protect his
identity, because SNM has a history of killing informants.
See Tr. at 140:20-141:3 (Beck). The United States
also argued that Herrera was seeking this CI's identity
so he could impeach him by omission, with respect to what the
informant did not say in the report, which is something
available to Herrera at trial, but does not factor into this
disclosure analysis. See Tr. at 141:12-142:4 (Beck).
The Court concluded that
I probably am not going to start disclosing CIs because of
what's not in these case reporting documents or CHS
reporting documents. I'm a bit of a proponent of the dog
doesn't bark theory from time to time. But it's
probably got to be stronger than that. So I probably am not
going to make the government disclose CHSs on what's not
in these reports without a stronger showing.
Tr. at 147:16-23 (Court).
then took up argument on his Second Motion to Disclose Reply,
the account that we've seen -- and it's in videos --
is that there was some kind of an altercation in a cell on
the second floor; that after that altercation, Mr. Molina
came out. You can see in the video that there is blood on his
chest. He goes down the steps, both -- my client happens to
come down the steps, Mr. Armenta comes down. My client has a
very brief fist-to-fist encounter at the bottom, no shank.
And Mr. Armenta comes down. And you can't see exactly
what's going on in the corner, because the camera
isn't there. But the bottom line of this is that Mr.
Molina is shanked something like 40-something times. And then
he dies there at the bottom of the steps. Now, the account
that we've been given is that all of that was arranged
essentially overnight; that Mr. Baca had given some order;
that there was paperwork, the paperwork was brought down from
Santa Fe, just as Mr. Lowry summarized it this morning.
Somehow that paperwork had been passed between A pod and B
pod, and the instruction had been given to carry out this hit
Tr. at 150:23-151:20 (Hammond). Montoya, then, maintained
that this factual scenario is more akin to a beef between two
inmates and was not a coordinated hit that SNM orchestrated.
See Tr. at 153:2-19 (Hammond). This CI is relevant
to Montoya's defense, he argued, because “he was
not part of any plan at all . . . he was . . . merely
present, ” and this is a witness, apparently, about
which Montoya did not know about until reading the CI's
report. Tr. at 155:6-24 (Hammond). Montoya concluded by
stating that “We don't have any other eyewitnesses,
other than the defendants in this case. So if there is
somebody there, I'd like to know that. But my primary
concern is with what he has to say about the shank or
shanks.” Tr. at 157:9-18 (Hammond).
Court then questioned the United States, stating
when I've got two people like Mr. Hammond and Mr. Lowry
saying they thought all along that the Government's case
was that this was thought up in compressed period of time,
you know, I guess I would draw from that that there is
something in the record that would support that theory.
Tr. at 158:1-6 (Court). The United States, accordingly,
There are other players. Mr. Sanchez is charged with this
murder, Mr. Herrera. There is a lot of players in this case
that come into play. But our theory is basically that this
hit had been out on Mr. Molina for some time. We have Anthony
Baca admitting to this on a recording, that has been
disclosed, about how this hit had been carried out, and why
it was necessary to carry it out, and his involvement. We
have Mr. Herrera, who his involvement was basically saying he
wanted to make sure and see the paperwork, to make sure that
the hit was a valid hit, because they wanted to basically
make sure it was righteous, so to speak. And we have him on
recording saying that. . . . We believe that Mr. Sanchez went
and told Mr. Armenta and Mr. Montoya: You're doing this
hit. You haven't put in your time, you haven't done
your bones for the SNM. You guys are going to be doing this.
There were three shanks that were actually recovered; not
one, not two, but three shanks during this investigation
afterwards. I believe on the videotape Mr. Montoya is seen
assaulting him. And despite Mr. Hammond's rendition of
it, I believe on the videotape, you can actually see Mr.
Montoya handing a shank over to Mario Rodriguez, who then
goes and hides the shanks. So there is a lot more to the
videotape. We have videotape. We have statements from Mr.
Montoya, Mr. Armenta. After this incident we have cooperators
that occurred -- that have given statements, obviously, like
the one we have here, that know about it. And we have
recordings from three defendants to CHSs that were made, with
them not knowing that they're talking to cooperators
while they're incarcerated. So there is many moving parts
to this. There is three shanks; there is videotapes. And this
order had been outstanding for a long time. With the SNM, an
order can be outstanding for a very long time.
Tr. at 161:4-163:7 (Armijo). After some exchange with the
United States about their theory, the Court allowed Montoya
to reply, and Montoya argued that, if there was no hit from
SNM leaders, then there was no conspiracy and this killing
was simply a jailhouse beef. See Tr. at 176:2-25
(Hammond). Montoya said that an important issue with respect
to the murder and conspiracy is the hit's timing and the
shank's manufacture, because:
If it turns out that Mr. Perez just made shanks for there to
be in the pod -- and frankly, that wouldn't surprise me
if there were shanks in pods all across this state, I
wouldn't be surprised by that. But there is a lot of
difference between having a shank in a pod and having a shank
that is there because someone says that the SNM ordered it to
be there, and to be used for a specific purpose. And that is
what I understand -- at least a piece of that is what this CI
is going to say. And I believe we need to know that.
Tr. at 177:10-20 (Hammond). The Court concluded:
Well, I think that probably Mr. Hammond and Mr. Beck have
probably dragged me back to where I was with Mr. Baca.
I'm inclined to find that the CI should be disclosed.
We've got this Jencks issue that I'm going to have to
deal with as far as timing. But if I, in fact, order CI
disclosed at this time, then I'm inclined to think it
should be disclosed as to Mr. Baca. I'm not convinced as
to Mr. Montoya. I think that -- like I said originally, I
think your situation is more akin to Mr. Troup's back
here. If I start lowering the bar to that level, that we just
want to know whether there is a scheme, or whether we want to
know who is present, probably I'd drop the bar to a point
where almost all these CIs will be disclosed. And I don't
think that's probably what the law requires. So I'll
give it some thought, but I'm not inclined to grant Mr.
Tr. 178:13-179:6 (Court). Last, regarding the Third Motion to
Disclose Reply, C. Garcia stated that he and R. Gallegos
would be providing the Court supplemental briefing, and thus
did not want a final conclusion as to the disclosures they
sought at the time. See Tr. at 183:5-9 (Adams). The
Court thus ended the hearing.
Baca's Supplemental Brief.
Anthony Ray Baca's Supplemental Brief Regarding Timing of
the Disclosure of the Identity of Confidential Informant,
filed January 8, 2017 (Doc. 816)(“Baca's
Supplemental Brief”), addresses “when” the
United States must disclose the CI's identity at issue in
Counts 6 and 7, which deals with J.M.'s murder at
Southern New Mexico in March, 2014. See Baca's
Supplemental Brief at 1. Baca is implicated in J.M.'s
murder given the allegation that he gave paperwork to Varela
“confirming Mr. Molina's cooperation with law
enforcement, and that [he] authorized or
‘green-lighted' the killing.” Baca's
Supplemental Brief at 2. The allegations, then, are that Baca
gave the paperwork to Varela and that Varela, upon his
transport from PNM to Southern New Mexico, delivered that
paperwork to Defendants at Southern New Mexico and that J.M.
was killed within twenty-four hours. See Baca's
Supplemental Brief at 2. Essentially, Baca's Supplemental
Brief argues that, “[o]nce the Court determines that
disclosure of the identity of a confidential informant is
appropriate, the defense must have the opportunity to
interview the witness in order to determine whether to call
him at trial, irrespective of whether the United States plans
to do so.” Baca's Supplemental Brief at 4
(referencing Roviaro v. United States, 353 U.S. at
62). In support, Baca's Supplemental Brief relies on
language from the United States Court of Appeals for the
Seventh Circuit which states that, “[w]hen a criminal
defendant seeks access to confidential informant files, we
rely particularly heavily on the sound discretion of the
trial judge to protect the rights of the accused as well as
the government.” Baca's Supplemental Brief at 5
(citing United States v. Phillips, 854 F.2d 273, 277
(7th Cir. 1988)). Baca's Supplemental Brief, then,
explains that the issue in this case is that the United
States is incorrectly asserting that “the Court cannot
order disclosure of [the CI's] identity prior to trial so
long as the government states an intention to call the
informant as a witness.” Baca's Supplemental Brief
Supplemental Brief thus explains that neither the United
States Court of Appeals for the Tenth Circuit nor the Supreme
Court of the United States of America have “held that
the Roviaro analysis applies only to non-testifying
witnesses” and that, instead, “the better
reasoned decisions from other circuits have held that
Roviaro trumps the witness disclosure rules.”
Baca's Supplemental Brief at 5. Further, Baca's
Supplemental Brief argues that “Baca is not asking the
Court to order the government to disclose the witnesses it
intends to call at trial, but rather identify a particular
person with knowledge that may assist in his defense.”
Baca's Supplemental Brief at 5 (citing United States
v. Norton, 504 F.2d 342, 343 n.1 (8th Cir. 1974)(citing
Roviaro v. United States, and holding that the rules
regarding production of witness lists have no bearing in the
context of CIs)). Baca's Supplemental Brief, accordingly,
argues that, where an appellate court considers that the
failure to disclose a CI “was not error in the
particular circumstances of that case” when that CI
ultimately testifies, such a decision has no bearing on the
defendant's right in a criminal trial to the CI's
identity upon a successful Roviaro v. United
States analysis. Baca's Supplemental Brief at 6-7.
Indeed, according to Baca, that is the factual scenario at
issue in United States v. Pennick, 500 F.2d 184
(1974), which Baca's Supplemental Brief argues the United
States misplaces reliance, because it only held that the
trial court's failure to order disclosure of the United
States' witnesses did not constitute error, where they
testified. Baca's Supplemental Brief at 8 n.4. Further,
Baca's Supplemental Brief explains, the district court,
in that case, had, nonetheless, undergone a Roviaro v.
United States analysis in reaching its decision not to
disclose the testifying CIs' identities. See
Baca's Supplemental Brief at 8 n.4.
Supplemental Brief last addresses the Honorable Judge Brack,
United States District Judge for the District of New
Mexico's, opinion in United States v. Lujan, 530
F.Supp.2d 1224 (D.N.M. 2008), which held that “there is
differentiation between testifying witnesses and confidential
informants who will not testify. And that Roviaro
and that calculus applies only when it's a CHS that will
not testify at trial.” Baca's Supplemental Brief at
8. Baca's Supplemental Brief explains, however:
In that case, the defense filed a motion for disclosure of
information “concerning the Government's witnesses,
informants, confidential sources, etc.” Lujan,
530 F.Supp.2d at 1260. The request included both testifying
and non-testifying informants. Id. In response to
the motion, the government asserted that there was “no
one involved in [the] case who provided information on a
confidential basis who would be considered an informant or
source.” Id. The government further asserted
that it had previously disclosed the identity of two
informants who it intended to call as witnesses at trial.
Id. It then claimed privilege as to any
non-testifying confidential informants. Id. Thus,
the only issues before Judge Brack were (1) whether the
defense was entitled to disclosure of the government's
witness list prior to trial, and (2) whether the
government was required to disclose to the defense any
non-testifying confidential informants.
Supplemental Brief at 8-9 (emphasis added). Baca's
Supplemental Brief thus argues that, where the emphasized
language above is the most pertinent to this case's
facts, Judge Brack determined that “the defendants'
request moot based on the government's representation
that it had previously disclosed the only two people it would
consider to be cooperating individuals. . . . . Judge Brack
also found that the defendants had not ‘demonstrated
the need for any informant's testimony with any
particularity.'” Baca's Supplemental Brief at 9
(quoting United States v. Lujan, 530 F.Supp. at
United States' Supplement.
United States' Supplement in Response to Opposition to
the Joint Motion for Disclosure and Production of
Confidential Informant , filed January 13, 2017 (Doc.
824)(“United States' Supplement”), begins by
explaining the evidentiary basis for Baca's involvement
in J.M.'s murder, which includes recorded statements,
involving potentially two CIs, linking Baca to the order to
kill J.M. See United States' Supplement at 1-6.
There is a recording of Baca speaking to a CI about
Baca's involvement, and Perez speaking to a CI about
Baca's involvement. See United States'
Supplement at 1-6. The United States' Supplement
The Court requested additional evidence linking Anthony Ray
Baca to the murder of J.M., and corroborating that the
‘green light' on J.M. had been outstanding longer
than 24-48 hours, because the Court concluded that additional
corroborating evidence negates that the confidential
informant (CI) at issue has information that is helpful and
‘significan[t]' to Baca's defense.
States' Supplement at 2. The United States'
Supplement then argues against the pretrial disclosure of
testifying CIs, first by arguing that Roviaro v. United
States can be distinguished, because, there, “the
informer . . . did not testify and was the sole participant,
other than the accused, in the transaction charged . . .
[and] the informer was the only witness in a position to
amplify or contradict the testimony of government
witnesses.” United States' Supplement at 6-8. The
United States' Supplement also cites to Smith v.
Illinois, 390 U.S. 129, 133 n.8 (1968), where the
Supreme Court “noted that the Roviaro
confidential informer privilege was not relevant to the
subject matter of a testifying witness, ” United
States' Supplement at 8, and Banks v. Dretke,
540 U.S. 668, 697 (2004), where the Supreme Court stated that
the Roviaro v. United States analysis is limited to
non-testifying CIs, see United States'
Supplement at 8.
United States' Supplement then draws the Court's
attention to United States v. Pennick, where the
Tenth Circuit concluded that “[t]he significant
difference between Roviaro and the instant case is
that in the former the informer did not testify at trial, and
in our case he did. Such ruled out a possibility that the
informer's testimony could somehow be helpful to
Pennick.” United States' Supplement at 10 (citing
United States v. Pennick, 500 F.2d at 187). The
United States' Supplement also explains that the Tenth
Circuit concluded that there was “no persuasive reason
to depart from the . . . general rule that in a case of this
type the Government need not disclose prior to trial the
identity of any of its witnesses.” United States'
Supplement at 10 (citing a number of Tenth Circuit cases
standing for the proposition that there is generally no
requirement that the United States disclose its witness
list). The United States thus argues that “[t]he Tenth
Circuit's Pennick decision stands on the
principle that Roviaro analysis does not apply to a
testifying confidential informer, because production of a
confidential informer as a witness at trial forecloses any
concern for the effect of non-disclosure on the
defendant's right to a fair trial.” United
States' Supplement at 10. The United States'
Supplement then concludes by citing to various out of circuit
cases which, the United States argues, stand for the
proposition that a trial court does not error when refusing
to order disclosure of testifying CIs and that the
Roviaro v. United States analysis was limited to the
case of non-testifying CIs. See United States'
Supplement at 11 (citing United States v. Foster,
815 F.2d 1200, 1202-03 (8th Cir. 1987); United States v.
Perkins, 994 F.2d 1184 (6th Cir. 1993); United
States v. Casseus, 282 F.3d 253, 257 (3d Cir. 2002);
United States v. Glover, 583 F.Supp.2d 5, 12 (D.D.C.
REGARDING THE SPEEDY TRIAL ACT, 18 U.S.C. §
dual purpose of the Speedy Trial Act is to protect a
defendant's constitutional right to a speedy indictment
and trial, and to serve the public interest in bringing
prompt criminal proceedings.” United States v.
Saltzman, 984 F.2d 1087, 1090 (10th Cir. 1993)(quoting
United States v. Noone, 913 F.2d 20, 28
(1st Cir. 1990)). The Speedy Trial Act, 18 U.S.C. §
3161(c)(1), reads in relevant part:
In any case in which a plea of not guilty is entered, the
trial of a defendant charged in an information or indictment
with the commission of an offense shall commence within
seventy days from the filing date (and making public) of the
information or indictment, or from the date the defendant has
appeared before a judicial officer of the court in which such
charge is pending, whichever date last occurs. If a defendant
consents in writing to be tried before a magistrate judge on
a complaint, the trial shall commence within seventy days
from the date of such consent.
18 U.S.C. § 3161(c)(1).
Speedy Trial Act requires “that an accused person's
trial must begin within seventy days of his indictment or
initial appearance, whichever is later.” United
States v. Cano-Silva, 402 F.3d 1031, 1034 (10th Cir.
2006)(citing 18 U.S.C. § 3161(c)(1)). The Speedy Trial
Act provides that certain periods of delay are not included
in computing the time limits for trial. 18 U.S.C. § 3161
states in relevant part:
(h) The following periods of delay shall be
excluded in computing the time within which an information or
an indictment must be filed, or in computing the time within
which the trial of any such offense must commence:
(1) Any period of delay resulting from other
proceedings concerning the defendant, including but not