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United States v. Garcia

United States District Court, D. New Mexico

May 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER GARCIA, Defendant.

          Damon P. Martinez Maria Y. Armijo Randy M. Castellano Matthew M. Beck Las Cruces Attorneys for the Plaintiff Christopher W. Adams Law Offices of Christopher W. Adams, P.C.

          Amy Sirignano Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the Defendant's Motion to Compel Disclosure of Discoverable Materials, filed February 25, 2017 (Doc. 163)(“Motion to Compel”); and (ii) the Defendant's Motion for Discovery and Inspection Concerning Government's Use of Informants and Cooperating Individual; Disclosure and Notice of Exculpatory Evidence Requested Concerning Government's Use of Informants and Cooperating Individuals, filed February 28, 2017 (Doc. 181)(“CI Motion”). The Court held a hearing on April 13, 2017, which continued onto April 14, 2017. The primary issues are: (i) whether the Court should compel Plaintiff United States of America to disclose certain materials and documents that Defendant Christopher Garcia asserts are in its possession, custody, and control, in accordance with rule 16 of the Federal Rules of Criminal Procedure, and all other federal laws regulating discovery in criminal cases; and (ii) whether the Court should order disclosure of the identities of, and other information regarding, certain confidential informants (“CIs”) assisting the United States in this prosecution. At the hearing, the Court addressed each specific discovery and disclosure request, and made specific rulings with respect to the requests that the parties did not resolve before or during the hearing. Accordingly, the Court will grant in part and deny in part the Motion to Compel and the CI Motion.

         FACTUAL BACKGROUND

         The Court takes its recitation of the facts regarding Garcia's standalone drug case from the Redacted Superseding Indictment, filed March 16, 2016 (Doc. 49)(“Redacted Superseding Indictment”). The Court recognizes that the facts are largely the United States' version, and that Garcia is presumed innocent. First, however, the Court will provide the facts from the cases related to Garcia's drug case, so the reader has the fuller context of all of the relevant background information.

         1. United States v. DeLeon.

         The Court first, then, takes its facts from the first Superseding Indictment in 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”)). Some other relevant facts giving rise to the federal prosecution of 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.

         2. United States v. Baca.

         Next, the Court discusses the facts of another related SNM case. The Court, here, takes its recitation of facts from the Redacted Grand Jury Indictment in United States v. Baca, No. CR 16-1613 JB, filed Apr. 23, 2016 (Doc. 2)(“Indictment”), and notes that some of the facts are virtually identical to those giving rise to United States v. DeLeon. Again, the Court does not adopt the facts as findings or truth. SNM is a prison gang that controls drug distribution and other illegal activities within the New Mexico prison system, and is similarly involved in narcotics trafficking occurring outside of the prison system. See Indictment ¶ 3, at 2. It is alleged that SNM's leaders, members, prospects, and associates constitute an enterprise as is defined under 18 U.S.C. §§ 1959(b)(2) and 1961(4), which provide that an enterprise constitutes a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce. See Indictment ¶ 2, at 2. The Indictment thus provides that SNM constitutes “an ongoing organization whose members/prospects/associates function[] as a continuing unit for the common purpose of achieving the objectives of the enterprise.” Indictment ¶ 2, at 2. Accordingly, the Indictment alleges that Defendants Anthony Ray Baca, Christopher Garcia, Manuel Jacob Armijo, Frederico Munoz, Sergio Loya Rodriguez, Manuel Benito, Vincent Garduño, Mandel Lon Parker, Daniel Archuleta, Daniel Sanchez, Anthony Cordova, and Richard Gallegos, committed: (i) Racketeering Conspiracy under 18 U.S.C. § 1962(d); (ii) Violent Crimes in Aid of Racketeering (Murder) under 18 U.S.C. § 1959(a)(1); (iii) Aiding and Abetting under 18 U.S.C. § 2; and (iv) Violent Crimes in Aid of Racketeering (Conspiracy to Murder) under 18 U.S.C. § 1959(a)(5). See Indictment at 1.

         SNM was formed after the February, 1980, prison riots at the New Mexico Penitentiary in Santa Fe, New Mexico. See Indictment ¶ 3, at 2. During the prison riot, thirty-three inmates were killed; more than 200 inmates were injured; and certain inmates held hostage, assaulted, and raped twelve correctional officers. See Indictment ¶ 3, at 2. Since the prison riot, SNM has expanded throughout the New Mexican prison system and has an estimated 250 members. See Indictment ¶ 4, at 2-3. SNM's main goals include controlling and profiting from narcotics trafficking. See Indictment ¶ 5, at 3. SNM members are often expected to confront and attack suspected informants, cooperating witnesses, homosexuals, and sex offenders. See Indictment ¶ 8, at 4.

         Despite prison officials' close scrutiny, SNM leaders communicate orders to members and associates throughout and outside of the prison system by a variety of means, including secret notes, coded letters, and messages that complicit visitors deliver. See Indictment ¶ 5, at 3. SNM members are expected to remain loyal to the gang when they are released from prison. See Indictment ¶ 5, at 3. SNM disciplines members who fail to show continued loyalty in a variety of ways, including assault and murder. See Indictment ¶ 5, at 3. SNM members might display affiliation and loyalty with the Zia symbol, [1] the letters “SNM”, the letter “S, ” and the numbers “19” and “505”[2] in tattoos, graffiti, drawings, and on clothing. Indictment ¶ 9, at 4-5.

         SNM also operates outside of the prison system in the streets of New Mexico, influencing and intimidating smaller New Mexico gangs to establish a larger network for its illegal activities. See Indictment 6, at 3. Accordingly, SNM does not always have to use violence to assert its control outside of prison, because the smaller gangs often fear that SNM members will assault or kill their compatriots should they be incarcerated. See Indictment 6, at 3. SNM thus retains a large membership and powerful reputation which subdues rival gangs and prevents victims and witnesses from assisting authorities. See Indictment ¶ 8, at 4.

         The Indictment alleges that SNM 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, to gain notoriety and show its superiority over others, and to send a message to others that it is strong, powerful, and not to be provoked.

Indictment ¶ 8, at 4. SNM “members and associates commit, conspire, attempt, and threaten to commit acts of violence, including murders and assaults to protect and expand the enterprise's criminal operations.” Indictment ¶ 13(a), at 6. If the gang had a weak reputation, it would lose its membership and dissolve. See Indictment ¶ 8, at 4.

         3. United States v. Garcia.

         Turning, now, to the relevant facts of the case at hand, the Redacted Superseding Indictment, Garcia, on August 7, 2015, in the County of Bernalillo, State of New Mexico, charges that Garcia distributed a detectable amount of heroin. See Redacted Superseding Indictment at 1. On that same day, in the County of Bernalillo, State of New Mexico, it is alleged that Garcia also distributed a detectable amount of cocaine. See Redacted Superseding Indictment at 1-2. Then, on August 11, 2015, in the County of Bernalillo, State of New Mexico, Garcia distributed a detectable amount of heroin. See Redacted Superseding Indictment at 2. On September 10, 2015, in the County of Bernalillo, State of New Mexico, Garcia distributed 100 grams and more of a detectable amount of heroin. See Redacted Superseding Indictment at 2. On December 3, 2015, in the County of Bernalillo, State of New Mexico, Garcia possessed with intent to distribute 100 grams and more of a detectable amount of heroin, and possessed with intent to distribute marijuana. See Redacted Superseding Indictment at 2.

         The Court has already, on multiple occasions, provided a detailed explanation of the charges and the history of the investigations giving rise to this case. See United States v. Christopher Garcia, No. CR 15-4275 JB, 2016 WL 7257190 (D.N.M. November 16, 2016); United States of America v. Angel DeLeon, et al., No. CR. 15-4268 JB, 2016 WL 724579 (D.N.M. Oct. 28, 2016)(Browning, J.). Essentially, in March, 2015, the Federal Bureau of Investigations (“FBI”) renewed investigation of the SNM prison gang. United States v. Garcia, 2016 WL 7257190, at *1. “SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the investigation, which included both old murders and new murder conspiracies, in addition to the racketeering activities of current gang members that were out of custody.” 2016 WL 7257190, at *1.

         PROCEDURAL HISTORY

         In response to the renewed SNM investigation, Garcia has been indicted in three cases. In this case -- what the Court calls the drug case -- the grand jury originally charged Garcia with four counts for charges of: (i) Distribution of Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (ii) Distribution of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); and (iii) Distribution of 100 Grams and More of Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). See Redacted Indictment at 1-2, filed December 1, 2015 (Doc. 2)(“Garcia Indictment”). On March 17, 2016, a federal grand jury returned a superseding indictment in this case against Garcia, alleging six charges of: (i) Distribution of Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (ii) Distribution of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); (iii) Distribution of 100 Grams and More of Heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (iv) Possession with Intent to Distribute 100 Grams and More of Heroin, and Aiding and Abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 18 U.S.C. § 2; and (v) Possession with Intent to Distribute Marijuana, and Aiding and Abetting, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 18 U.S.C. § 2. See Redacted Superseding Indictment at 1-2.

         In the related case -- United States v. DeLeon -- which the Honorable Ken Gonzales, United States District Judge for the United States District of New Mexico, declared complex on January 11, 2016, Garcia is a Defendant, and has been indicted and charged with: (i) Violent Crimes in Aid of Racketeering (“VICAR”)(Conspiracy to Murder), in violation of 18 U.S.C. §§ 1959(a)(5); (ii) Felon in Possession of a Firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (iii) Using and Carrying a Firearm During and in Relation to a Crime of Violence Conspiracy to Commit Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. § 924(c). See United States v. DeLeon, No. CR. 15-4268 JB, Superseding Indictment passim, filed April 21, 2016 (Doc. 367). Judge Gonzales initially presided over these cases until they were reassigned to the Court on March 30, 2016. See Judge Update, filed December 1, 2015, and Notice of Case Reassignment, filed March 30, 2016 (Doc. 351). Given the large number of Defendants and the safety concerns at issue in these cases, the Court has entered a Protective Order regulating discovery in those cases, 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”). That case names thirty Defendants, all alleged SNM members or associates, who have allegedly engaged in Violent Crimes in Aid of Racketeering activity, under 18 U.S.C. § 1959 -- making it the “VICAR” case -- whereas, again, the present case solely makes allegations related to Garcia's involvement in drug trafficking. Some of the Defendants in that case were death-penalty eligible and have had learned counsel appointed. See United States v. DeLeon, No. CR. 15-4268 JB, 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 death-penalty eligible Defendants).

         Garcia has also been indicted in United States v. Baca, No. CR 16-1613 JB (D.N.M.)(Browning, J.), which names twelve Defendants, all SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d) -- making it the “racketeering case.” United States v. Baca, No. CR 16-1613, Sealed Indictment, filed April 21, 2016 (Doc. 1). The indictment in United States v. Baca also makes allegations of Violent Crimes in Aid of Racketeering activity; Garcia is charged with: (i) Racketeering Conspiracy, in violation of 18 U.S.C. § 1962(d); and (ii) Violent Crimes in Aid of Racketeering (Murder), in violation of 18 U.S.C. § 1959(a)(1). See United States v. Baca, No. CR 16-1613, Sealed Indictment, filed April 21, 2016 (Doc. 1). Garcia, along with two other Defendants named in United States v. Baca, were originally death-penalty eligible, and the Court appointed learned counsel for them. See United States v. Baca, No. CR 16-1613, The United States' Notice of Intent Not To Seek a Sentence of Death, filed September 13, 2016 (Doc. 210)(stating that it would not seek a death sentence against the three Defendants). The Court has declared that case complex. See United States v. Baca, No. CR 16-1613, 2016 WL 6404772, at *1 (D.N.M. October 20, 2016)(Browning, J.).

         Unlike the related cases in United States v. DeLeon and United States v. Baca, the Court has declined -- on two occasions -- to similarly declare this standalone drug case against Garcia complex. See United States v. Garcia, 2016 WL 7257190, at *1; Memorandum Opinion and Order at 1, filed December 19, 2016 (Doc. 144)(“MOO”). The Court concluded in those opinions that complexity inherent to the SNM racketeering allegations was not similarly applicable in this standalone drug prosecution. See United States v. Garcia, 2016 WL 7257190, at *1; MOO at 1.

         1. The Motion to Compel.

         The Motion to Compel begins by explaining that Garcia sent written notice to the United States on November 20, 2016, “requesting copies of the documents and materials that are listed below.” Motion to Compel at 1. According to Garcia, “[s]ince sending that request, the Government has not provided all the documents at issue, nor has the Government indicated to counsel whether they intend to produce most these documents.” Motion to Compel at 1. The Motion to Compel then argues that, under rule 16, Garcia is entitled to disclosure of, or access to, certain items which the United States is yet to disclose that, Garcia argues, are material to his case and, on good-faith belief, will assist him in preparing his defense. See Motion to Compel at 1. The requested items roughly fall into eleven general categories, with the first category seeking “items relating to specific incident dates, ” with those items from each incident entailing, for the most part, “incident reports, search warrants, affidavits, records, reports, video/audio recordings, witness statements, photographs, evidence inventories and chain of custody reports, laboratory or forensic reports [and] any other investigative materials, documents, or data.” Motion to Compel at 3, 9. Those specific incidents are: (i) a May 6, 2014 -- or 2015 -- incident; (ii) a July 13, 2015, incident; (iii) an August 7, 2015, incident (distribution of heroin and cocaine, Count 1 and 2, see Redacted Superseding Indictment at 1-2); (iv) an August 11, 2015, incident (distribution of heroin, Count 3, see Redacted Superseding Indictment at 2); (v) a September 10, 2015, incident (distribution of heroin, Count 4, see Redacted Superseding Indictment at 2); a November 18, 2015, incident; (vi) a December 3, 2015, incident (intent to distribute heroin and possession of marijuana, Count 5 and 6, see Redacted Superseding Indictment at 2-3); and (vii) thirty other dates which generally relate to certain overt acts alleged in United States v. DeLeon and United States v. Baca. See Motion to Compel at 3-11.

         The second category of items that Garcia requests is “scientific reports and related items, ” Motion to Compel at 12, and the third category is “telephone records used by all confidential human sources, ” Motion to Compel at 13. Garcia's fourth category is “witness information and miscellaneous items, ” such as “a list of lay and expert witnesses that the Government intends to call at trial in each case, ” and “any and all law enforcement agency Reports of Investigation . . . regarding allegations in the indictments. Motion to Compel at 13-19. The fifth category the Motion to Compel provides is a request to view “drug evidence, and all laboratories that conducted the drug testing, and independent testing of all the drug evidence.” Motion to Compel at 19-20.

         Garcia's sixth category is a request “to view NM D[epartment of Corrections] Level VI cell where Eric Duran allegedly made phone calls to Mr. Garcia.” Motion to Compel at 20. For Garcia's seventh category, he requests “redacted pages of all discovery and immediate identification of all C[onfidential human sources], cooperating informants, [and] cooperating defendants.” Motion to Compel at 20. Garcia's eighth category seeks “NM D[epartment of Corrections (‘NM DOC')] policies, procedures and documentation in effect at the time Mr. Garcia was housed at NM DOC.” Motion to Compel at 21. The ninth category's request is for “Syndicato De Nuevo Mexico[] alleged enterprise evidence, ” Motion to Compel at 21, and Garcia's tenth category is “prior law enforcement contacts with Christopher Garcia, ” Motion to Compel at 21. Garcia's eleventh and final category is “transcripts of audio recordings” of confidential human source (“CHS”) conversations. Motion to Compel at 22.

         2. The Motion to Compel Response.

         The United States responded to the Motion to Compel with the United States' Response in Opposition to Defendant's Supplemental Motion to Compel Discovery (Doc. 163)(“Response”). The Response begins by explaining that the United States responded to Garcia's November 20, 2016, letter making these discovery requests on December 23, 2016, and that it then “requested items from the labs and investigating agencies, and disclosed those items to the defense in subsequent discovery disclosures.” Response at 2. Regarding the Motion to Compel, the United States takes the stance that

much, if not most [of the requests are] wholly irrelevant to Defendant's instant case and will not lead to discovery of admissible evidence. The simple truth is that Defendant's overly broad demand for minutiae is nothing more than a cudgel, a weapon, to burden and harass the government and its witnesses during their pretrial preparation, and to delay the proceedings. Defendant's present demands are not the product of reasoned analysis of possible evidence by counsel and Defendant's retained experts. Rather, Defendant simply laid out a laundry list of boilerplate requests. Indeed, to underscore how overly broad and untargeted these requests are, the United States provided the responsive information before it received these requests. What is most readily apparent in Defendant's discovery demand is that while seeking some material related to Garcia's drug dealings, the Motion is largely a broad demand for general discovery related to offenses charged in other cases.

Response at 2. Ultimately, the United States argues, the “Defendant has either (1) already been provided with the information sought, or (2) is not entitled to the information.” Response at 3. The United States also incorporates its response to Garcia's CI Motion, because “Defendant's boilerplate laundry lists of requests in [the Motion to Compel] resemble and overlap with the boilerplate, overbroad requests presented in the [CI Motion].” Response at 3.

         Regarding Garcia's requests in his first category, which regards items relating to specific incident dates, the United States provides that

[c]opies of all items (including uncharged incidents) which reasonably can be reproduced already have been provided to the defendant in this case (or are in the process of continually being provided as to material related to case numbers CR 15-4268 JB and CR 16-1613 JB). Those which could not be copied are available for review by making an appointment.

Response at 4. According to the United States, “[f]ourteen letters have been sent to defense counsel, detailing and disclosing all the documents in counsel's possession concerning this case, except, of course, certain witness interviews.” Response at 4. Regarding information requested related to CHS disclosure, “the United States will provide Brady and Giglio [4] information for any CHS that the United States will call to testify.” Response at 4. The United States also provides that it has “requested and disclosed the reports relating to a May 2014 incident with the Defendant. It is important to note that the Defendant has not been charged with offenses from that arrest as he agreed to cooperate with law enforcement at that time.” Response at 4. The United States also contends that “[d]iscovery is also complete as to the undercover drug sales that involved the Defendant in 2015, as well as the search warrants that were served in 2015, ” but that “[t]he United States will not return electronic items that were seized pursuant to the search warrant.” Response at 4-5. Further, the United States “will provide to defense counsel the Court orders that were obtained on cellular telephones that were used by CHSs in contact with the Defendant[, and] . . . a copy of the written Miranda [5] waiver executed by the Defendant in this case.” Response at 5. The United States, for Garcia's first category of requested discovery, then concludes that Garcia's request for information related to the other indictments is not relevant to this case, but that it has “provided discovery on the Overt Acts listed in the Indictment in CR 16-1613.” Response at 5.

         Turning to the second category of requests -- scientific reports and related items -- the United States maintains that Garcia already has many of the requested items, and that it “will provide Giglio for testifying witnesses in advance of trial and the United States is, and has been, aware of its obligations under Brady and will continue to discharge those duties as appropriate.” Response at 5-6. Regarding the third category -- CHS telephone records -- the United States “has provided information on the cellular telephones used by the CHSs involved in the charged incidents in this case, and will provide Court orders pertaining to those telephones to the Defense.” Response at 6. Regarding witness information -- the fourth category of Garcia's requested discovery -- the United States indicates that it has already filed its witness list in this case and that it will continue to supplement that list according to the Court's schedule. See Response at 6.

         The United States argues that Garcia's fifth category of requests, to view drug evidence and all laboratories, can be fulfilled, in part, by making an appointment to view the drug evidence with the Assistant United States Attorneys. See Response at 6-7. Regarding viewing the laboratories, however, the United States explains that the Drug Enforcement Administration and the New Mexico State Police oppose Garcia's request. See Response at 7. The United States also does not object to Garcia's sixth category of requests -- viewing Duran's “NM Doc Level VI cell” -- and provides that Garcia's counsel need only go through the normal process to visit the Penitentiary of New Mexico (“PNM”). Response at 7. The United States objects to Garcia's seventh category of requests, arguing that providing unredacted sets of discovery at this time is an attempt to receive Jencks Act material early, which is not allowable under rule 15. See Response at 7.

         The United States also objects to Garcia's eighth and ninth categories of requests -- “NM DOC policies and procedures, ” and “SNM evidence” -- because such requests are irrelevant to this drug trafficking prosecution. Response at 8. The United States argues that Garcia's tenth category of requests for production of prior law enforcement contacts with Garcia is “overbroad and burdensome, ” but that, where the United States has information regarding Garcia's contacts with law enforcement in this case, it has already provided those discovery materials. Response at 8. Last, regarding Garcia's eleventh category of requests, for transcripts of CHS conversations, the United States maintains it has already disclosed those materials. See Response at 8.

         3. The CI Motion.

         Garcia filed his CI Motion on February 28, 2016, requesting

that pursuant to Rule 16 of the Federal Rules of Criminal Procedure, and in accordance with the decisions in Roviaro v. United States, 353 U.S. 53 (1957), Brady v. Maryland, 373 U.S. 83 (1963), and United States v. Bagley, 87 L.Ed.2d 481, 490 (1985), . . . the Court for an order directing the United States to furnish counsel for the accused with the following information concerning the use of informants, confidential informants, witnesses, informers, confidential sources, sources of information, infiltrators, cooperating individuals, security informers or intelligence assets who participated in any way or who are material witnesses to any of the events charged in the indictment.

CI Motion at 1. According to Garcia, the individuals about whom he seeks information are:

(A) Any person or entity furnishing information to the government on a confidential basis, where such information has been obtained as a result of legitimate employment or access to records and is provided consistent with applicable law;
(B) Any other person or entity furnishing information to the government on a confidential basis;
(C) Any other person or entity providing information or substantial operation assistance with some degree of regularity, which may be as infrequent as a few times per year, or as frequent as several times per week.
(D) It is further requested that the information requested be provided specifically as it may relate or pertain to the following individuals:
(1) All confidential sources as described in any affidavits which have been filed in support of requests for electronic surveillance whether such have been revealed or not;
(2) Any individual who has or is expected to furnish information, cooperation, testimony at the grand jury or at trial, or assistance to the government;
(3) All confidential sources referred to in the affidavits in support of the various search warrants which have been or will be provided in discovery;
(4) Individuals whose names were redacted in discovery referencing individuals believed to be inmates or cooperating defendants and co-defendants; and,
(5) Any other person identified in any document which has been or will be provided in this case.

CI Motion at 1-2. For those persons, Garcia then makes thirty-nine requests, with sub-parts, for specific information to which, he argues, he is entitled. CI Motion at 2-10. The specific information that Garcia requests ranges from “[i]nformation tending to show bias/prejudice on the part of any informant, ” to “[i]nformation tending to show that any informant . . . suffers from any material defect in perception, memory, veracity, or articulation.” CI Motion at 4. Garcia's requests also include “[a] full and complete statement of all promises, considerations, rewards or inducements made by the government, ” CI Motion at 6, and “[a]ll approvals for payment for services and/or expenses to an informant utilized in the investigation of this case, ” CI Motion at 8.

         In support of his requests, Garcia argues that, “[i]n Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that due process forbids a prosecutor from suppressing ‘evidence favorable to an accused upon request where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'” CI Motion at 10 (quoting Brady v. Maryland, 373 U.S. at 87 (“Brady”))(citing Giglio v. United States, 405 U.S. 150 (1972)(“Giglio”); United States v. McCrane, 527 F.2d 906 (3d Cir. 1975), aff'd after remand, 547 F.2d 205 (1976); Douglas v. Workman, 560 F.3d 1156, 1172 (10th Cir. 2009)). Garcia reiterates that “the prosecution also has a duty to disclose any favorable evidence that could be used ‘in obtaining further evidence.'” CI Motion at 10-11 (quoting Giles v. Maryland, 386 U.S. 66, 74 (1967)). Garcia also provides that, although the Supreme Court of the United States “has never precisely pinpointed the time at which the disclosure under Brady must be made, ” “[i]t is abundantly clear . . . that delayed disclosure by the government[] may meaningfully alter a defendant's choices or prevent the defense from effectively using the disclosed information.” CI Motion at 11 (internal quotation marks omitted)(citing United States v. Burke, 571 F.3d 1048, 1053-56 (10th Cir. 2009)). Last, even if the United States “is not aware of the existence of the requested information, ” Garcia requests a response indicating that fact so counsel may make independent investigation. CI Motion at 11-12.

         4. CI Motion Response.

         The United States responded to the CI Motion with The United States' Sealed Response to Defendant's Motion for Discovery and Inspection Concerning the Government's Use of Informants and Cooperating Individuals; Disclosure and Notice of Exculpatory Evidence Requested Concerning Government's Use of Informants and Cooperating Individuals, filed March 28, 2017 (Doc. 181)(“CI Motion Response”). In the CI Motion Response, the United States explains that Garcia

asks for a laundry list of information about supposed government informants or cooperating individuals. But the Federal Rules of Criminal Procedure don't entitle criminal defendants to the broad discovery that he requests. Moreover, while Garcia cites to Roviaro v. United States, 353 U.S. 53 (1957) as the basis for his requests, he doesn't cite any specific circumstances or facts that support that Roviaro entitles him to even the identity of any such confidential informants, let alone the additional information.

CI Motion Response at 1. The United States concedes in the CI Motion Response, however, that Garcia is “entitled to the identity of two of the confidential sources who participated in purchasing drugs from Garcia and will disclose those sources to him.” CI Motion Response at 1-2.

         The United States first explains:

Counts 1 and 2 of the superseding indictment . . . charge Defendant with one count of distribution of heroin and one count of distribution of cocaine base . . . for offenses that occurred on or about August 7, 2015. At trial, the United States intends to prove that Confidential Source (“CS”) 1 spoke to Garcia on the telephone [and] arranged to buy narcotics from Garcia. Garcia then obtained the drugs from a relative's residence, packaged them at his residence, and provided them to CS1 in exchange for $2, 860 ($1, 700 for heroin and $1, 160 for the crack cocaine). No one else played a crucial role in the transaction.

CI Motion Response at 2. Count 3, the United States further explains,

charges Defendant with one count of distribution of heroin . . . for an offense that occurred on or about August 11, 2015. At trial, the United States intends to prove that Garcia informed CS1 that he had heroin to sell and that CS1 should come to his house to do the deal. Garcia retrieved the drugs from his relative's house again and ultimately provided CS1 with 3 ounces of heroin in exchange for $2, 400. No one else played a crucial role in the transaction.

CI Motion Response at 2. Then, according to the United States, Count 4

charges Defendant with one count of distribution of 100 grams or more of heroin . . . on or about September 10, 2015. At trial the United States intends to prove that Garcia sold 148.8 grams of heroin to an undercover government employee in exchange for $4300. Garcia and the undercover employee were introduced to each other through CS 2.

CI Response at 2-3.

         The United States then concedes, for those two aforementioned CIs, that “they are witnesses to these transactions: they set up the drug deals and were material participants in the drug sales. So Roviaro entitles Garcia to their identities.” CI Motion Response at 3. The United States also argues, however, that “Garcia's laundry list of requests for additional information about these witnesses should be denied, however, as the requests lack a sound basis in the law.” CI Motion Response at 4. Regarding those requests sounding in Brady and Giglio obligations, the United States maintains that it will provide that information, in accordance with law, before trial. See CI Motion Response at 4-5. The United States concludes by asking the Court to deny the CI Motion, because the United States will already be disclosing the information it must disclose. See CI Motion Response at 4-5.

         5. The April 13-14, 2017, Hearing.

         The Court held a hearing on April 13-14, 2017. See Transcript of Hearing, taken April 13, 2017 (“Tr.”)[6]; Transcript of Hearing, taken April 13, 2017 (“2 Tr.”)[7]; Transcript of Hearing, taken April 14, 2017 (“3 Tr.”). The Court heard a variety of different motions at the hearing, and, regarding the Motion to Compel and the CI Motion, it heard argument on the CI Motion first. See Tr. at 19:3-6 (Adams). Garcia first provided that, “Judge, basically this is a rather broad discovery motion based on Rule 16 and on Brady about what we believe we're entitled to related to informants.” Tr. at 19:16-17 (Adams). Given the CI Motion's admittedly broad nature, then, Garcia specified and narrowed for the Court and the United States precisely what information he wants, beginning with the CI that the FBI had used to buy drugs from Garcia as alleged in Counts 1-4. See Tr. at 19:18-20:3 (Adams). Garcia reiterated his need for this CI by hypothesizing that, should the CI have declined to record a statement about his role, Garcia would want to investigate information like that to perhaps impeach the CI's veracity at trial. See Tr. at 20:5-17 (Adams).

         Regarding the thirty-nine specific requests for the CIs to whom Garcia argues he is entitled, Garcia maintained that each requested information about potential CIs in this case that must be disclosed under Brady. In support, Garcia explained:

I'll say I've been [in a position] where, again, representing cooperators there has been extensive negotiation back and forth where I've engaged as the lawyer for an individual trying to work out different sort of side benefits to include in the deal. Even information that the defendant through counsel is asking for that ultimately doesn't get included in a final deal, we believe must be disclosed as part of Brady.

Tr. at 22:8-16 (Adams). Under the law, Garcia maintained,

we believe we're entitled to everything even if, even if it's not directly admissible, but may lead to something that's directly admissible as we try to . . . investigate the case for our client and as we try to figure out if we can impeach the confidential human sources that the Government relied on to make this case.

Tr. at 22:19-25 (Adams).

         The United States then argued that “we intend to present one CI to testify at trial, ” and that this CI was indeed the person whom Garcia suspected, and that it was generally only objecting to what information it needed to disclose about that CI at this time. Tr. at 23:7-17 (Beck, Adams, Court). In that regard, the United States provided:

I think much of this information will be provided as Giglio materials. This CI was not charged. He . . . doesn't have a lawyer. So there is a difference between sort of a CI who I guess actively no, an investigation, purchases drugs and in a buy-bust operation or undercover . . . and sort of a historical debrief with a defendant who has decided to plead guilty and come on board.

Tr. at 23:19-24:1 (Beck). The Court then queried the United States “[w]hat is it . . . if you're going to produce this person, you're going to produce Giglio material, what is it in Mr. Adams' long list that you're not wanting to give him or not wanting to track down.” Tr. at 24:2-6 (Court). The United States responded that

I think we're not wanting to give him information that we don't have and to which he's not entitled. So for instance, we don't have I may be corrected and I may be wrong, but I don't believe we have records of whether this person has taken polygraph test and failed polygraph tests . . . .

Tr. at 24:7-13 (Beck). The Court then reiterated that it had held that “the Department of Justice, U.S. Attorney's office can pretty much get w[hat it] wants given [the Secretary of the Department of Corrections] being an alleged target of [SNM, ] they pretty much can pick up the phone and get this information [from the state Department of Corrections].” Tr. at 25:15-20 (Court). To this reality, the United States explained that it did not object to disclosing -- as Giglio information -- “everything that's in the Government's possession, ” Tr. at 25:25-26:1 (Beck), which includes the information it can get from the New Mexico Department of Corrections, and “if . . . for example he's had contact with the FBI or DEA or somebody related to the federal Government, [it] would also give everything in the [federal] corrections department files, ” Tr. at 26:1-4 (Court).

         The Court then attempted to get to the heart of the dispute about the CIs, and posited: “So what you're saying you're not going to do is folks, go search state police, local, county, local DA's that sort of stuff for his criminal history. Is that basically the dividing line[?]” Tr. at 26:13-17 (Court). The United States responded that the Court was correct and that, absent those entities such as the New Mexico Department of Corrections which were part of the joint investigation of SNM, the United States did not have all of the information that unrelated entities might have regarding its CIs. See Tr. at 26:18-25 (Beck). The United States conceded that, “if [the United States] know[s] about it or [has it] the[n it will] produce it but [it is] not going to go out and start doing an investigation trying to find out whether there is something there.” Tr. at 27:1-5 (Court, Beck).

         At this point, the Court said to Garcia: “It seems to me we've gotten pretty close to what I think you're entitled to[, ] Mr. Adams. Where do you see the remaining issues[?]” Tr. at 30:15-17 (Court). Garcia was appeased with the representations that the United States made regarding the information it was going to be able to amass and deliver, stating: “Judge, if they're prepared to produce it ASAP then I think that's right. I mean, this is apparently material separate from Jencks [Act materials].” Tr. at 30:18-20 (Adams). It needed to be disclosed as soon as possible, Garcia argued, because his counsel has “a duty to investigate it.” Tr. at 31:4 (Adams). Garcia further maintained that the United States needs to run a search of state files for the names of persons whom Garcia suspects are “cooperators whose names are not confirmed.” Tr. at 31:12-17 (Adams). The United States agreed to run and disclose summaries of the reports for names of persons that Garcia suspects and, obviously, for the CIs it needed to disclose information regarding. See Tr. at 33:23-34:4 (Beck). The Court then inquired whether the United States' agreements and intentions to disclose much of the requested Giglio information pertaining to the CIs involved in the standalone drug case -- as soon as possible -- satisfies Garcia's requests in the CI Motion, and Garcia agreed. See Tr. at 34:5-9 (Court, Adams). The Court, accordingly, concluded argument on the CI Motion. See Tr. at 34:8-9 (Court).

         The Court heard argument regarding the Motion to Compel later in the hearing. See 3 Tr. at 19:8-11 (Sirignano). Garcia explained that he would go through the Motion to Compel line-by-line, to the extent necessary, to try to “resolve what has been produced and what has not been produced.” 3 Tr. at 21:9-11 (Sirignano). Where the issues were not resolved, the Court made rulings. See 3 Tr. at 21:12 (Court). Garcia first argued regarding “requested items [that] relate . . . to the August 7, 2015 incident . . . but what I was asking for was reports by deputy Matt Chance, which I don't believe we have received. And he was one of the key investigative officers that day.” 3 Tr. at 22:10-18 (Sirignano). The United States responded that “if she hasn't received a report from [Matt Chance] then there isn't a report.” 3 Tr. at 23 6-8 (Armijo). The United States explained that it had “asked for the complete file from [Bernalillo County Sheriff's Office (‘BCSO')] and if there is not one in the discovery, then there is not one, if she says she has not received one.” 3 Tr. at 23:11-14 (Armijo). Apparently, however, Garcia had a report --or outside knowledge that there was a report -- from Chance, and was now looking for the whole file related to his report, causing the Court to order the United States to “talk to [BCSO Deputy Chance and] find out what report or reports he did, and then let's track those down, I think I'd feel more comfortable if the Government produced any report or reports rather than relying upon whatever sources the defendant is getting, has to get it.” 3 Tr. at 25:7-12 (Court).

         Garcia next addressed his request for full laboratory reports from BCSO, “chains of custody we have received a number of the chains of custody and we did review the evidence here in Court which had partial chains of custody but I know for sure I don't have all the chains of custody I need.” 3 Tr. at 25:15-19 (Sirignano). Garcia further clarified that he had the chains of custody from everything going into the BCSO lab, but not everything “coming out of the lab, ” and that he was thus looking whether “there is anybody else other than FBI and BCSO hospital involved in chain of custody.” 3 Tr. at 26:6-15 (Sirignano, Court). The United States then indicated that it had

contacted each of the labs because we have three labs . . . [W]e have southern state lab[, ] we have the APD lab[, ] and we have the DEA lab. I contacted all of the analysts and I asked them for all of the . . . data that they had, all their notes, extensive stems and we received those items and we [dis]closed those items. I also asked for the chain of custodies from the FBI, from BCSO. [T]here is not a lot of chain of custody on the stuff from BCSO because it hasn't really gone . . . anywhere.

3 Tr. at 27:9-16 (Armijo). Further,

I personally was dealing with all the chemists in this case and getting all of their notes and all of the evidence logs, and they sent us and we made a big, can I go and get the dates of when we disclosed all of that stuff. It was earlier this year.

3 Tr. at 28:2-7 (Armijo). Garcia reiterated that the “discovery was coming in large batches and that some regarded the indictments in United States v. DeLeon and United States v. Baca, and that he did not think that the United States' repeated inability to specifically state what it had disclosed violated Rule 16, and . . . Brady . . . and . . . unfortunately, the Government really hasn't made an effort to know what it has disclosed and what it hasn't disclosed.” 3 Tr. at 28:15-19 (Sirignano).

         At this point, the Court pressed the United States to indicate what it has produced to Garcia. See 3 Tr. at 28:23-29:2 (Court). The United States responded that it has “produced everything that they are telling us that they have on the items, ” meaning that it “contacted the labs and I said . . . I need all the chains of custody.” 3 Tr. at 29:12-23 (Armijo). Accordingly, the Court asked the United States if it could “represent that BCSO and every law enforcement that's touched these drugs has produced every chain of custody, ” 3 Tr. at 20:11-13 (Court), to which the United States responded “I believe so, but I will go back and check, ” 3 Tr. at 30:14-15 (Armijo). The Court then ordered the United States to disclose all of the chain-of-custody information that Garcia sought. See 3 Tr. at 16-17 (Court).

         Next, Garcia argued about his requested investigative reports, providing that

I've got one surveillance report, which was Bates number 6 on this incident. I don't have any other investigative report, and I don't know if it's because the FBI has failed to abide by their 5 day policy or rule to write reports, if reports were written or wasn't written, but when I was in the FBI everybody wrote reports within the five days for the most part. Not every single time and I can't imagine on an undercover drug purchase that all I have is one surveillance FBI report. I don't have any photographs . . . I don't have any photographs or . . . investigative reports on that.

3 Tr. at 20:21-31:8 (Sirignano). Regarding these FBI investigative reports, the United States stated that it had produced all existing reports, but that it would sit with the FBI and ensure that it had indeed made those disclosures. See 3 Tr. at 31:13-18 (Armijo). The Court provided: “All right I'm going to take that as a representation that complete FBI investigative reports on this incident have been produced. If you find that it [has not been] you need to produce it immediately. But I'm going to take that as a representation in case something shows up.” 3 Tr. at 31:19-25 (Court).

         Garcia then addressed the Court:

Your Honor, this incident is the alleged purchase of drugs by Sammy Griego and I don't have any reports or information on him. . . . I don't have any of his statements to law enforcement regarding Mr. Garcia, and anything involving these paid snitches, Your Honor, and that might be a Jencks request. But I've been asking for this . . . and I have not had one response from the Government regarding this letter that I wrote over Thanksgiving . . . other than their response filed March the 27 and so that's why I continue to ask for it.

3 Tr. at 32:2-15 (Sirignano). Garcia at this point clarified that there were two CIs who were participating actively in the drug deals that Garcia made, and two CIs who were on telephones making the introductions necessary for the drug deals to proceed. See 3 Tr. at 33:14-17 (Sirignano). The parties and the Court then confirmed whom the CIs were, because “everybody in the room knows who these people are except” the Court. 3 Tr. at 37:10-11 (Court). The Court had the parties confer and write out the theory of the case -- with respect to the role of CIs or CHSs -- on a large piece of paper, so as to ensure the identities were kept private. See 3 Tr. at 37:10-11 (Court). The Court then solidified that there were four CIs involved in this standalone drug case, and one undercover agent, with the United States intending to call only one of the CIs -- a CI whose identity it had confirmed and disclosed to Garcia earlier in the hearing. See 3 Tr. at 43:6-7 (Beck). Once the Court had clarified whom the players were, it asked the United States if it had “produced all law enforcement reports on” the four CIs and on the undercover agent from the August 7, 2015, incident. 3 Tr. at 43:10-23 (Court). The United States represented to the Court that it had produced all law enforcement reports for all five of the players, and that, for the one CI it intended to call, it had immediately produced the Giglio information for that CI at the Court's request earlier in the hearing. See 3 Tr. at 43:24-44:11 (Armijo). The Court reiterated:

Okay. So if I understand you correctly you will make certain that all law enforcement reports written by or on these five [CI]s will be produced either as Jencks material, Giglio material, or if it's Brady [it] will be produced immediately, but all of it will be produced by Wednesday before trial?

3 Tr. at 44:17-23 (Court). The United States responded that the Court was mistaken, “because we're not calling all those other people. So I think that's where the Roviaro[ v. United States] is going to come in. Is the Court going to require us to provide” that information, even though they are not to be testifying witnesses? 3 Tr. at 44:23-45:1 (Armijo). The United States stated that it has provided all of the requested law enforcement reports for the CI whom it is calling to testify and for the undercover agent, but the remaining three CIs are non-testifying witnesses for the United States' case, so the analysis has to be different regarding Garcia's requests pertaining to them. See 3 Tr. at 47:17-24 (Armijo, Court). Regarding the three non-testifying CIs, however, the United States indicated that it believed that, “given the Court's previous[] ruling in the DeLeon case, ” Garcia was entitled to the identity of the three CIs, and that it was thus in the process of helping Garcia by providing him “the identities of the reports for those CHSs to whose identity they're entitled. So now I hope I've confused you enough to tell you that we're going to disclose these people's identity to them, and also disclose which reports they have from these people.” 3 Tr. at 48:25-49:5 (Beck). That ended the discussion regarding that incident, as Garcia then indicated that “at the moment it seems like [he was] getting everything [to which he is] entitled.” 3 Tr. at 49:17-19 (Court).

         Garcia next addressed his request for transcripts of the recordings from the August 7, 2015, incident, regarding which the United States agreed to “produce all time transcripts all recordings from August 7 that you have, and if there is a doubt about the date, you'll go ahead and just produce it.” 3 Tr. at 51:18-21 (Court, Armijo). More specifically, the Court ordered that the United States will give Garcia its “exhibit list [and the relevant transcripts] . . . but they're giving you a little bit more, probably some transcripts they're not going to use, ” too. 3 Tr. at 52:16-19 (Court). For the transcript's substance, the Court ordered that, “when you maybe send a letter over, could you just tell her that this transcript has CHS-1, CHS 2, CHS 3 and then we use the also chart Mr. Beck made, ” which depicts the relevant CIs and their roles. 3 Tr. at 54:1-4 (Court). The Court summed up the discussion that it and the parties had just had, suggesting: “Well I think that unless you tell me otherwise . . . we've probably gone through everything and with the law enforcement reports . . . the CHSs, so you're probably not entitled to all [other] law enforcement reports unless it falls into Brady, Giglio, [or the] Rule 16 standard.” 3 Tr. at 55:23-56:4 (Court, Sirignano).

         Garcia then turned to his discovery requests related to the August, 11, 2015, incident, to which the Court applied its previous rulings for the August 5, 2015, incident. See 3 Tr. at 58:9-61:2 (Court). Garcia subsequently argued about his request regarding the home surveillance equipment which was at his home during the arrest for these drug charges. See 3 Tr. at 61:7-8 (Sirignano). According to Garcia,

we believe that it contains Brady material or impeachment [material] and this equipment was taken, I believe by the Government during the search warrant. And we'd like to -- I'm asking if a copy or an original to be returned to the defense of that as it's relevant to these alleged drug transactions.

3 Tr. at 61:9-14 (Sirignano). The United States, however, indicated that it did not take any home surveillance equipment, so the Court ordered -- to be sure -- that the United States talk to the FBI agent who executed the search and arrest warrants to “confirm whether it's on the list or not that there was no surveillance equipment attention and if there is not let Ms. Sirignano know send her an email or letter and tell her you've talked to the agent it's not on the [log] doesn't look like it's in FBI possession.” 3 Tr. at 64:8-13 (Court). The Court further ordered the United States to ask the FBI agent about the other items from his home for which Garcia wants an account, specifically cellular telephones, tablets, and computers. See 3 Tr. at 19-21 (Court). Garcia, however, indicated that he wanted the original cellular telephones, tablets, and computers, because

in my experience, when a search warrant happens, a computer search warrant also is part of that. The evidence is taken to the FBI CART team or a local forensic computer laboratory. The evidence is downloaded if it's relevant to their investigation. Some kind of a report is done of the cellphone evidence. And in other cases . . . I've done with the AUSA is we've discussed either returning an original or a mirror images of the evidence that was seized, the computer evidence or the cellphone evidence, the tablet evidence so the defense isn't being deprived of that evidence. And I'd like to have the FBI CART report or the New Mexico regional forensic . . . report . . . regarding all this technology evidence.

3 Tr. at 66:2-16 (Sirignano). Garcia continued that “I need the original. [T]here is no evidentiary value to the Government on the original, or a mirror image of the data from those devices, and also the CART or the New Mexico regional forensic science center report regarding what was found on those devices.” 3 Tr. at 66:21-67:2 (Sirignano). The United States ultimately agreed that Garcia's counsel could come view the cellular telephones, tablets, and computers if the data mirror images would not accomplish Garcia's same goals. See 3 Tr. at 67:25-68:1 (Armijo).

         Garcia then turned to his discovery requests regarding the September 10, 2015, incident, for which the United States indicated: “Your Honor we will make the same request that we did on the other ones for BCSO, FBI, we will actually this will be like triple checking again and we will certainly do that, Your Honor.” 3 Tr. at 70:3-7 (Armijo). Garcia then argued that one problem he was having was that the BCSO reports and their numbering made it hard to determine what the reports address, so the Court obtained

a representation from the Government they're going to double checks make sure you have all the BCSO reports for this incident as well as the other two that we've talked about, but assuming you have all these, if you have a question about whether one relates to this incident, then shoot an email over to Ms. Armijo and they'll either confirm it does or say it does not.

3 Tr. at 72:4-10 (Sirignano, Armijo, Court). Garcia was not entirely amenable to that solution, arguing that the numbering was still so bad on some of the BCSO documents that it really made his job difficult, and that he was not convinced that the poor numbering and record keeping would make the reports appropriate or admissible at trial. See 3 Tr. at 76:8-77:7 (Sirignano)(“Because I have multiple documents from different investigators with different years on it, so I believe these documents to have been backdated or written after the fact.”). The Court, however, struck a compromise regarding the BCSO documents, ordering the United States:

When you do this triple review, if there [are] any signed copies, produce those, if there are any unsigned copies, produce those, if there is a stray page, produce those. I know you can't be sponges [of] what occurred over at BCSO. But just give her everything and then Ms. Sirignano, you can have fun on cross-examination making your point. But I don't think that probably I can do much more than that. Do you agree with that Ms. Sirignano?

3 Tr. at 77:23-78:7 (Court). Garcia agreed with the solution. See Tr. at 78:8 (Sirignano). Garcia also reiterated that, if the United States finds any FBI reports on this incident, he would expect to receive that in supplemental discovery, which the United States had already agreed to do if the FBI report exists. See 3 Tr. at 78:22-79:9 (Sirignano, Court, Armijo).

         Garcia next stated that, regarding Giglio information for the undercover officer who is going to be called to testify, he had worked out a timetable with the United States to get that information, mooting that request. See 3 Tr. at 79:17-19 (Sirignano). The Court reiterated its request that the United States promptly disclose Giglio information. See 3 Tr. at 80:10-13 (Court)(“If you get anything on Giglio [or] Brady or Rule 16 materials, let's get that over to Ms. Sirignano and the Mr. Adams as soon as possible on that.”). Garcia then addressed his laboratory evidence requests, which Garcia believed were covered by the Court's rulings that the United States needs “go back and produce all the chain of custody materials, ” which the Court confirmed. 3 Tr. at 80:22-81:2 (Court, Sirignano). Regarding law enforcement reports pertaining to the September 10, 2015, incident, Garcia maintained his request “for all records or payments made by and benefits from law enforcement including but not limited to all payments made to this CHS, ” 3 Tr. at 81:16-19 (Sirignano), and the Court initially agreed that a CIs' payment is something that should be in Garcia's hands, see 3 Tr. at 82:5-7 (Court). The United States indicated, however, that it was not going to be calling a CI for this incident -- it was only calling an undercover officer, meaning it did not need to disclose any payments for the CI with whom the undercover officer worked. See 3 Tr. at 82:8-17 (Armijo). Garcia objected to the United States' indication, arguing:

I'm kind of astounded that the Government thinks that they're going to come in and prove their case without the beginning or how this case commenced and the cellphone records and the paid snitch with the cellphone in the jail . . . You know, obviously they're just going to try and say, oh, on September 10th, you know an alleged drug deal occurred between this undercover officer and my client. Well, the story doesn't start there, Your Honor the story starts in the Department of Corrections.

3 Tr. at 83:9-24 (Sirignano). The Court pressed Garcia to explain why payments that the testifying undercover officer may have made leading to his purchase of drugs from Garcia would help him and his defense, to which Garcia explained:

Well, this is something that I really don't think that we need to disclose to the Government or the Court at this time. You know, this is Kyles v. Whitley. This impeaches the integrity of their investigation. Your Honor, it starts from the beginning[] their investigation was tainted from the very beginning, and they want to start in the middle because they know that there was some dirty nonsense going on in the beginning of this case. And they don't want these snitches to testify.

3 Tr. at 84:7-19 (Sirignano). The United States maintained its refusal to disclose payment information for the three CIs that it was not calling, but whom instead Garcia was calling, arguing:

I think that they're just planning on calling them [to im]peach them I don't think that's allowed to call a witness just to impeach a witness unless it provides something. They won't have anything really exculpatory as far as this case goes. It's just like I keep saying this is a simple drug case. You have a search warrant and a lot of times have intros or a search warrants we start the case from on this date we served a search warrant. We don't go into the background of it. Or a lot of times we have in[tros] from CIs, for instance this count we're not getting into the int[r]o. We're trying to keep it clean Your Honor and exactly like she said she may be astounded but that's how we do dr[ug] cases, which is . . . on this date, this person bought th[ese] drugs from this person[] and the that's what we're doing. As to these CHSs, again I think they're using this case to try and get information ahead of time that they're not entitled to for the other cases. And so as to the witnesses that we call, we have no problem providing.

3 Tr. at 86:22-87:17 (Armijo). The Court was inclined to agree with the United States, in that Garcia was not entitled to information regarding payments that the testifying undercover officer may have made to persons in the lead up to the September 10, 2015, drug buy from Garcia without making a showing that “these witnesses you're calling are going to provide some . . . evidence, and if you're calling them and then you're wanting to impeach your own witness that's fine, but I guess I'm wondering if you need to make a showing before you get that evidence from the Government that it [is not just a] fishing expedition and that in fact it's going to be Giglio or Brady information.” 3 Tr. at 87:18-88:4 (Court). Garcia responded:

I don't think anyone would dispute that would be an area that we could [impeach] law enforcement[]'s lack of efforts to provide the best evidence in Court. I don't think anybody would dispute that we could ask about that. I think we are allowed to go further under Kyles v. Whitley and that was a 1995 Supreme Court case it's a Brady case and I've always thought it was really interesting because it was right [around the time of the] O.J. [trial], so and a lot of [people] where I lived were up[set] that O.J. got [aquitt]ed and . . . they thought it was unfair and right around that same time Kyles came out[. The] Supreme Court . . . said you know attacking the credibility of the police investigation is a time honored and legitimate defense strategy. . . . [W]e're allowed to talk about all the other things in their investigation that they did not do and the choices that they did do to try to develop a case against Chris Garcia and I think part of that is going to be the bank rol[l] that they put into . . . custody [and to the] person with the telephone and to other people. I mean we get, if they're going to put . . . agents on the stand we . . . attack the lack of full investigation as we see it to the extent the Court finds it [permissible] at this point we want discovery on it so we can make those tactical choices. But we certainly anticipate challenging them on what . . . choices they did make in the investigation and choices they did not make in the investigation. And I think this falls squarely under Kyles v. Whitley, whether or not the Government chooses to call the witness and in Kyles v. Whitley the key witness was a guy named Bingaman [and] he was never called as a witness in the case but there was whole bunch of information that was never turned over to the defense that the defense could have used to further investigate and that could have led to admissible lines questioning of the law enforcement officer.

3 Tr. at 88:10-90:22 (Adams). The Court posited that,

well, I guess my problem here is that these are witnesses . . . you're calling, [and] the Government is not calling. It seems to me that once that occurs I've got to run it through . . . Brady and Giglio, and it's getting pretty attenuated to get out there and start talking about payments to CIs they're not calling in this case. I'm not restricting your ability to question them on the stand about that.

3 Tr. at 90:22-91:4 (Court). The Court then concluded that it would:

just warn the Government that if they've made payments and I'm going to allow these questions to be asked, which I am, you better have the material somewhat ready or have the officers ready to [speak about it] because I do think that I'll allow the question, but I'm not necessarily going to order the Government to produce all of it right at the moment. Because I'm not seeing the Brady, Giglio or other, it seems, it's a fact, and assuming that the Government's witnesses say accurately what occurred, . . . but have it ready. If you don't want to produce it now [fine, ] but it may all of a sudden become relevant because the Government doesn't want to be in a position where its got witnesses up here that are not being accurate. So have it ready to go but I won't order its production now[, ] I think probably we know what happened so it's probably not a secret.

3 Tr. at 91:11-92:3 (Court). Next, the United States explained that it was going to disclose the information Garcia requests regarding the “cellular phone information” relating to Duran's use of a cell phone in custody at PNM. 3 Tr. at 92:7-18 (Armijo). At this point, Garcia withdrew the rest of the Motion to Compel's requests regarding the September 10, 2015, incident. 3 Tr. at 93:12-15; 93:19-21 (Sirignano).

         Garcia then jumped to the Motion to Compel's category of requests regarding scientific reports and related items. See 3 Tr. at 94:5-95:2 (Sirignano). Garcia placed Janine Arvizu on the stand for inter vivos testimony. Arvizu is a “chemist who works as a laboratory auditor, ” who works

for clients who use laboratory test results to make very important decisions and . . . need to understand whether or not a given result or given set of results was generated in accordance with the laboratory's own pro[cedures] and then whether those procedures meet national and international standards for that type of work.

3 Tr. at 95:16-17; 96:9-15 (Arvizu). Garcia, ultimately, elicited testimony from Arvizu regarding what she still needs from the United States to “generate a proper report.” 3 Tr. at 97:20-21; 99:1-5 (Sirignano). Arvizu stated:

The records that have been received to date from the Albuquerque police department laboratory and from the New Mexico Department of Public Safety laboratory appear to both be good faith effort to provide all the available items of discovery that were listed in your request. I can't obviously ask the[m to] produce a record that doesn't exist. But it appears that they have made a good faith effort to produce all the requested materials. The records that have been provided to date from the DEA laboratory are wholly insufficient for this kind of an independent assessment. They are very, very limited. And the, I believe the only records to date []received from the FBI laboratory relate to their written procedures for doing latent print testing. So I don't actually have any case specific records just their latent print procedure.

3 Tr. at 99:6-22 (Arvizu). Arvizu stated that she needs the FBI laboratory data “to make an assessment as to whether or not the reported results can be considered scientifically reliable for an important forensic use in court.” 3 Tr. at 99:24-100:2 (Arvizu). Arvizu clarified that “fingerprint work” was a component of the FBI data. See 3 Tr. at 100:8 (Arvizu).

         On cross examination, the United States indicated that it had made a request from the FBI laboratory for the data that Arvizu may need and that the DEA has denied further requests for information. See 3 Tr. at 100:10-25; 110:2-4 (Castellano). The United States also presented Arvizu with documents disclosed as discovery in this case, of which “a number of them are from the FBI laboratory's and it includes chain of custody records for evidence, communication logs, some information a report produced by the FBI lab and statement of qualification for analysts. . . . In this case it's latent print case notes.” 3 Tr. at 112:13-22 (Arvizu). After concluding Arvizu's testimony, the United States reiterated that it had given Arvizu what it had regarding the FBI laboratory data, and that it had even given data to Garcia already which Arvizu had not yet incorporated into her analysis, and that

if there is a specific request then DEA is going to take issue with that, and . . . because DEA's position is as Mr. Castellano indicated . . . is that the criminal discovery rules do not require it; . . . she argues that the [DEA] denied several requests made by this, Ms. Arvizu, saying that what the defense wanted was civil discovery.

3 Tr. at 124:6-16 (Armijo). The Court indicated that it was

not inclined to grant the motion. It seems to me that unless the defendant can point to some problem that it's a fishing expedition and it goes beyond what Brady and Giglio and Rule 16 require. So I'm not inclined to order anything further. I do think that if your expert, Ms. Arvizu, wants to look at the new [data she had not seen in the United States' disclosures] and make a more refined request, Ms. Armijo is not shutting the door of sending that to the DEA. But my reaction or initial impression is that most of this is just fishing to see if they can find a problem rather than there being something that gives the Court some concern that we need to go that direction.

3 Tr. at 129:20-130:7 (Court). The Court then concluded argument on the Motion to Compel, with Garcia asking the Court to address that Motion to Compel immediately after the parties left the hearing on April 14, 2017. See 3 Tr. at 135:8-9 (Sirignano).

         LAW REGARDING THE UNITED STATES' DUTY TO ...


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