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United States v. Ramos-Burciaga

United States District Court, D. New Mexico

April 26, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
DULCE ISABEL RAMOS-BURCIAGA, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTIONS ON DESTRUCTION OF EVIDENCE

         THIS MATTER comes before the Court on Defendant's Motion for Hearing Concerning Destruction of Evidence, filed November 27, 2017 (Doc. 25), and Defendant's Supplemental Brief, filed January 22, 2018 (Doc. 34). Having considered the parties' written and oral arguments, and applicable law, the Court finds that Defendant's motions are not well-taken and, therefore, are DENIED.

         BACKGROUND

         On August 22, 2017, Defendant was indicted with

unlawfully, knowingly, and intentionally possess[ing] with intent to distribute a controlled substance, 1 kilogram and more of a mixture and substance containing a detectable amount of heroin. In violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).

Doc. 12. On August 4, 2017, Defendant was arrested by DEA Agent Jarrell Perry, after exiting a Greyhound bus at the downtown Albuquerque Greyhound station. Doc. 25. Agent Perry allegedly discovered heroin inside Defendant's handbag, after an allegedly consensual search.

         The search is the subject of a separate motion to suppress filed by the Defendant. See Doc. 58.

         On August 9, 2017, Defense counsel sent a preservation request to Greyhound to

“preserve all Greyhound surveillance security video and audio recordings made on August 4, 2017 in and around the Albuquerque Greyhound bus terminal at 320 1st St. SW. This includes surveillance camera video of the lobby, the passenger loading area, the office, the wash bay, the luggage storage areas, the cleaning/'fueling bays that are located one block immediately south of the bus station, as well as any other public areas in the surrounding area that your company surveils. I also request surveillance videos of the Greyhound office, the passenger waiting area, ticketing office, and any on-board video from eastbound Greyhound buses arriving in Albuquerque on Agust [sic] 4, 2017”

Doc. 25-1. The preservation request was sent to the manager of Greyhound's Albuquerque bus terminal, Marie Gomez-Avila, the associate general counsel for Greyhound in Dallas, and local counsel.

         The Court granted Defendant's Motion for ex-parte motion for order for subpoena duces tecum on September 20, 2017 (Doc. 20). The subpoena was served on October 19, 2017. Doc. 21. Greyhound responded to the subpoena on November 17, 2017, (Doc. 21) asserting that the local station manager had not preserved the video at the time she received the preservation request. The station manager mistakenly thought that she did not need to preserve video on the basis of a preservation request, and only had to preserve video when she received a subpoena. See Doc. 21. By the time the subpoena was received, the relevant video had been overwritten.

         Ms. Marie Avila-Gomez is the customer experience manager for Greyhound Albuquerque, in charge of the Albuquerque terminal. She is responsible for overseeing private security guards at the station, and ensuring Greyhound's security procedures are followed. She is also responsible for responding to preservation requests and copying video surveillance.

         All employees go through a security training program. For station managers, the training includes how to engage with local law enforcement and how to engage with local government. This includes training managers on how to ask for assistance from local law enforcement DEA Agent Jarrell Perry works drug interdiction at the Albuquerque Greyhound and Amtrack terminals. He has no office in the Greyhound station, although he has a key to a conference room at the station. Agent Perry was given the key by Ms. Gomez-Avila.

         In April 2017, David Streiff, security operations manager for Greyhound in North America, requested a meeting with DEA agent Perry and Marie Gomez-Avila to discuss the parameters in which law enforcement may operate in the Albuquerque Greyhound terminal. The DEA did not have any input on these procedures. At the meeting, they also discussed the procedure for DEA submitting administrative subpoenas to Greyhound for video recording. Greyhound reiterated that they would need a subpoena for any requests for copies of video surveillance from the DEA. They did not discuss subpoenas or preservation letters submitted by defense counsel. Mr. Streiff expressed that Greyhound wanted the DEA to continue working drug interdiction at the terminal. Mr. Streiff also asked Agent Perry to email a summary of arrests to him, to know what criminal activity occurred on Greyhound property.

         At the end of the meeting, Ms. Gomez-Avila asked Mr. Streiff, in a “side-bar”, how she should respond to preservation requests and subpoenas for video footage. Mr. Streiff told her that she didn't need to act on hand-delivered “legal documents” until attorneys from Greyhound's corporate office advised her. Based on this conversation, Ms. Gomez-Avila mistakenly thought that she did not need to respond to preservation requests until instructed to do so by Greyhound's legal department. Thus, when she received the preservation request from Defense counsel in this case, she did not preserve the video. Ms. Gomez-Avila thought that “preservation request” meant that responding was optional. The Court finds Ms. Gomez-Avila's explanation credible. Greyhound's legal department has since told Ms. Gomez-Avila to comply with all preservation requests without further instruction.

         Mr. Streiff drafted operating procedures that outlined how local and state law enforcement would be allowed to operate in Greyhound terminals. The operating procedures specified where law enforcement could operate at Greyhound terminals, and where they had to be accompanied by Greyhound employees.

         Two years ago, Greyhound received a grant from a federal grant program, Over-the-Road Bus Security Grant Program. Greyhound's grant was earmarked for camera surveillance and video operations. Greyhound did not receive any funds over the last two years, and none of the $468, 000 grant went to the Albuquerque bus terminal. Greyhound also submitted a security plan to the Department of Homeland Security. This security plan is required in order to apply for TSA grant money. However, there were no formal or informal agreements between Greyhound and the DEA. The DEA does not share in the expense of responding to defense counsel preservation requests, or in any of the security costs borne by Greyhound in Albuquerque.

         Agent Perry had previously supplied DVDs for Greyhound's Albuquerque terminal to use to respond to DEA subpoenas for copies of video surveillance. Mr. Streiff has since instructed Ms. Gomez-Avila not to use those DVDs.

         On April 11 and 17, 2018 the Court held evidentiary hearings, and heard testimony from Ms. Gomez-Avila, Mr. Streiff, and four DEA agents. At the hearing, the Government objected to certain questions and asserted certain privileges. The Court sustained the objection, ...


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