United States District Court, D. New Mexico
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 ...