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United States v. Deleon

United States District Court, D. New Mexico

March 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL DELEON; JOE LAWRENCE GALLEGOS; EDWARD TROUP, a.k.a. “Huero Troup;” LEONARD LUJAN; BILLY GARCIA, a.k.a. “Wild Bill;” EUGENE MARTINEZ, a.k.a. “Little Guero;” ALLEN PATTERSON; CHRISTOPHER CHAVEZ, a.k.a. “Critter;” JAVIER ALONSO, a.k.a. “Wineo;” ARTURO ARNULFO GARCIA, a.k.a. “Shotgun;” BENJAMIN CLARK, a.k.a. “Cyclone;” RUBEN HERNANDEZ; JERRY ARMENTA, a.k.a. “Creeper;” JERRY MONTOYA, a.k.a. “Boxer;” MARIO RODRIGUEZ, a.k.a. “Blue;” TIMOTHY MARTINEZ, a.k.a. “Red;” MAURICIO VARELA, a.k.a. “Archie, ” a.k.a. “Hog Nuts;” DANIEL SANCHEZ, a.k.a. “Dan Dan;” GERALD ARCHULETA, a.k.a. “Styx, ” a.k.a. “Grandma;” CONRAD VILLEGAS, a.k.a. “Chitmon;” ANTHONY RAY BACA, a.k.a. “Pup;” ROBERT MARTINEZ, a.k.a. “Baby Rob;” ROY PAUL MARTINEZ, a.k.a. “Shadow;” CHRISTOPHER GARCIA; CARLOS HERRERA, a.k.a. “Lazy;” RUDY PEREZ, a.k.a. “Ru Dog;” ANDREW GALLEGOS, a.k.a. “Smiley;” SANTOS GONZALEZ; PAUL RIVERA and SHAUNA GUTIERREZ, Defendants.

          Damon 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 & 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

          Nathan 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

          Billy R. Blackburn Billy R. Blackburn Law Office Albuquerque, New Mexico Attorney for Defendant Arturo Arnulfo Garcia

          Jerry 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

          Pedro Pineda Pedro Pineda, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Ruben Hernandez

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta

          Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya

          Steven 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

          Steven Lorenzo Almanza Steven Almanza Law Firm Las Cruces, New Mexico Attorney for Defendant Timothy Martinez

          Joe A. 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 Varela

          Amy E. 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

          George A. Harrison George A. Harrison, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Gerald Archuleta

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorney for Defendant Conrad Villegas

          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

          Marcia J. Milner Marcia J. Milner, Attorney at Law Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez

          Amy 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

          Donald 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 Gallegos

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorney for Defendant Santos Gonzalez

          Keith R. Romero The Law Office of Keith R. Romero Albuquerque, New Mexico Attorney for Defendant Paul Rivera

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL BACKGROUND

         The 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 presumed innocent.

         This 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.

         SNM is 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.

         In 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.

         The 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.

         Specifically, 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.

         Further, 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 at 29.

         On 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.

         For 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. 1).[1] 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.).

         PROCEDURAL BACKGROUND

         On 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.

         On 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.[2] 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.[3] See Protective Order, filed June 16, 2016 (Doc. 589)(“Protective Order”).

         1. Motion to Vacate.

         Perez 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.

         The 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).

         2. Motion to Disclose.

         Perez 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.

         The 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.

         The 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.

         In 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 disclose explains:

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.)).

         The 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.

         3. Motion to Disclose Response.

         The 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 [698], 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.

         4. Motion to Disclose Reply.

         Troup, 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.

         The 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 J.M.'s death.

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.

         Accordingly, 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.

         Last, 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.

         5. Second Motion to Disclose Reply.

         Montoya 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 3.

         6. Third Motion to Disclose Reply.

         Defendant 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.

         7. Motion to Exclude.

         Perez 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 prosecution.

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.

         8. Motion to Exclude Response.

         The 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.

         9. The November 29, 2016, Hearing.

         The 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).

         The 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 summer, 2017.

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).

         Perez 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).

         The 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).

         With 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 60:3-19 (Fox-Young).

         The 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).

         Perez 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).

         The 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).

         Troup then argued:

[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 paperwork.

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).

         The 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 issue.

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).

         Herrera 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).

         Montoya then took up argument on his Second Motion to Disclose Reply, and explained:

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 right now.

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).

         The 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, explained:

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. Montoya's request.

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.

         10. Baca's Supplemental Brief.

         Defendant 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 at 5.

         Baca's 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.

         Baca's 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.

         Baca's 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 1261).

         11. United States' Supplement.

         The United States' Supplement in Response to Opposition to the Joint Motion for Disclosure and Production of Confidential Informant [698], 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 explains:

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.

         United 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.

         The 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. 2008)).

         LAW REGARDING THE SPEEDY TRIAL ACT, 18 U.S.C. § 3161

         “The 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).

         The 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 ...

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