United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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
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.
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.
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.
[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,
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.
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.
GENERAL LAW ON DISCOVERY
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).
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).
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).
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,