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United States v. Luna-Gomez

United States District Court, D. New Mexico

May 9, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
DAVID LUNA-GOMEZ, Aka Sergio Sauzameda, Defendant.

          MEMORANDUM OPINION AND ORDER

         On March 21, 2018, Defendant David Luna-Gomez (“Defendant”) filed an Amended Motion for Order Compelling Specific Discovery (ECF No. 71). The Court, having considered the amended motion, briefs, arguments, and applicable law, concludes that Defendant's request to order the Government to preserve the law enforcement reports and notes of the interview of co-Defendant Elizabeth Ordonez-Ochoa will be granted, but the motion will otherwise be denied.

         I. BACKGROUND

         On May 20, 2016, Senior United States District Judge James A. Parker authorized the interception of wire and electronic communications over a phone number (“Romero Phone 4”). After that interception ceased, Judge Parker issued another order authorizing the interception of wire and electronic communications over another phone number (“Luna-Gomez Phone 1”) for a period of 30 days.

         A federal grand jury returned a three-count indictment charging Defendant Luna-Gomez with two counts: (1) conspiracy to distribute 50 grams and more of methamphetamine from on or about May 23, 2015, and continuing to on or about December 19, 2016; (2) conspiracy to distribute 1 kilogram and more of heroin from on or about June 1, 2016, and continuing to on or about June 22, 2016. In Count 2, the Government charges that Defendant Luna-Gomez conspired with co-Defendants Emigdio Villanueva, Olivia Ceniceros-Favela, and Elizabeth Ordonez-Ochoa. Count 3 additionally charges Ms. Ordonez-Ochoa and Ms. Ceniceros-Favela with possession with intent to distribute 1 kilogram and more of heroin on June 22, 2016.

         The Government asserts that it has disclosed all applications, affidavits in support thereof, and orders regarding the wire and electronic interceptions to Defendants. Defendant acknowledges the Government has disclosed “a significant amount of discovery.” Def.'s Mot. 2, ECF No. 71. Defendant Luna-Gomez nonetheless filed a motion seeking four specific items of discovery he had not received to which he claims he is entitled: (1) all reports on Ms. Ordonez-Ochoa's June 22, 2016 arrest for the charged crimes; (2) all interview reports and law enforcement notes regarding Ms. Ordonez-Ochoa; (3) the audio recording of Ms. Ordonez-Ochoa's interview; and (4) the GPS Search Warrant regarding Mr. Luna-Gomez's Phone 1. In support of his request, Defendant Luna-Gomez provided a partial Drug Enforcement Administration investigative report containing the following information from the interview with Ms. Ordonez-Ochoa:

[Ms. Ordonez-Ochoa] stated that she was recruited by a person named Carlos Omar Cervantes-Hernandez. Ordonez stated that this was the seventh occasion she had transported heroin and was going to deliver the heroin to a person [in] Albuquerque, NM. Ordonez stated that she has delivered to “Emilio” on 3 occasions along with Carlos Omar. Ordonez stated that [she] also delivered to “Emilio” by herself twice. Ordonez stated that she has delivered to an unk[n]own male called “El Viejon” by herself once. Ordonez stated that she had also delivered heroin to Albuquerque on three different occasions by herself with the instruction of Carlos Omar Cervantes-Hernandez. Ordonez stated that she and her husband live next to Carlos Omar Cervantes-Hernandez in Juarez, Mexico.

         Def.'s Ex. A, ECF No. 74-1. According to Defendant, the report contains exculpatory material because Ms. Ordonez-Ochoa did not identify Mr. Luna-Gomez as a person to whom she had allegedly delivered drugs in Albuquerque prior to her arrest, nor did she identify Mr. Luna-Gomez as a person she had met in the past. Because the contents of the report relate to Count 2 in which he is charged, Defendant Luna-Gomez argues that the report and interview are items material to his defense and subject to Rule 16 and Brady disclosure.

         The Government asserts that it is unaware of any audio recording of the post-arrest interview of Ms. Ordonez-Ochoa. It also states that it moved to unseal the warrant affidavit for the Luna-Gomez Phone 1 and, after the Court granted the motion, disclosed it, so only Defendant's first and second requests remain at issue. The Government argues that neither the law enforcement reports nor the notes are discoverable under Rule 16 or Brady/Giglio.

         II. GENERAL LAW ON DISCOVERY

         Federal Rule of Criminal Procedure 16(a)(1)(E) provides that the government must disclose to the defendant, upon his request, papers and documents, “if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). The term “defense” means a defendant's response to the prosecution's case-in-chief, i.e., an argument that refutes the government's claims that the defendant committed the crime charged. United States v. Armstrong, 517 U.S. 456, 462 (1996).

         A defendant must make a prima facie showing of materiality before he is entitled to obtain Rule 16 discovery. United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990). “Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is in possession of information helpful to the defense.” Id. To show materiality under Rule 16(a)(1)(E), the evidence must “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993). This materiality requirement is not a heavy burden; rather, evidence is material as long as there is a strong indication it would enable the defendant to significantly alter the quantum of proof in his favor. United States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996).

         Rule 16(a)(2) limits the scope of discoverable materials: “this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” Fed. R. Crim. P. 16(a)(2). The Supreme Court has described Rule 16(a)(2) as protecting “Government work product in connection with [the] case.” Armstrong, 517 U.S. at 463. Rule 16(a)(2) also clarifies that Rule 16 does not authorize the disclosure of statements made by prospective witnesses, except as provided in 18 U.S.C. § 3500, the Jencks Act. The Jencks Act requires the United States to disclose to the defendant the statements of its witnesses after the witness has testified on direct examination at trial, but the term “statement” is limited to written statements made by the witness and signed or otherwise adopted or approved by her, or to recordings or substantially verbatim recitals of the witness's oral statements and recorded contemporaneously with the making of such oral statement. See 18 U.S.C. § 3500(a), (b), (e).

         The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87 (1963), “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” The “touchstone of materiality is a ‘reasonable probability' of a different result, ” which exists “when the government's evidentiary suppression ‘undermines confidence in the outcome of the trial.'” Trammell v. McKune, 485 F.3d 546, 551 (10th Cir. 2007) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Impeachment evidence affecting a witness's credibility falls under Brady when the reliability of a given witness may be determinative of a defendant's guilt or innocence. Giglio v. United States, 405 U.S. 150, 154 (1972).

         III. ...


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