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United States v. Tsosie

United States District Court, D. New Mexico

June 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
THEISMAN TSOSIE, Defendant.

          John C. Anderson United States Attorney Allison Jaros Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff

          Mallory Margaret Gagan Office of the Federal Public Defender Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the United States' Opposed Motion for a Protective Order, filed April 4, 2018 (Doc. 19)(“Motion”). The primary issue is whether the Court should enter a protective order requiring Defendant Theisman Tsosie to return to Plaintiff United States of America or destroy discovery containing medical records and personal identifying information relating to children within sixty days of this case's conclusion. The Court concludes that it will enter a protective order that limits disclosure of medical records and personal identifying information, but it will not order Tsosie to return or destroy the discovery materials. Accordingly, the Court denies in part and grants in part the Motion.

         FACTUAL BACKGROUND

         According to the Criminal Complaint, filed February 22, 2018 (Doc. 1), Tsosie became upset with his girlfriend's six year old son -- “John Doe” -- on the morning of February 21, 2018, because “Doe spent ‘coins' in a zombie game on an Amazon Fire/Kindle device.” Criminal Complaint ¶ 6, at 3. Doe's mother -- “M.M.” -- “heard a noise coming from the bathroom and then John Doe crying.” Criminal Complaint ¶ 6, at 3. M.M. entered the bathroom, and saw Doe laying on his side with blood around his mouth and nose. See Criminal Complaint ¶ 6, at 3. Doe said that Tsosie slapped him in the face and kicked him in the ribs. See Criminal Complaint ¶ 6, at 3. M.M. took Doe to Indian Health Services (“IHS”), and IHS doctors sent Doe to the University of New Mexico Hospital. See Criminal Complaint ¶ 6, at 3. Doe had “patterned bruising, a linear bruise on the jaw, and a skull fracture.” Criminal Complaint ¶ 4, at 1.

         PROCEDURAL BACKGROUND

         On March 13, 2018, a Grand Jury returned an Indictment charging Tsosie with “knowingly, intentionally, and recklessly, and without justifiable cause, caus[ing] John Doe, an Indian child under the age of 18, to be placed in a situation that may have endangered the child's life and health and to be cruelly tortured and cruelly punished, resulting in great bodily harm, ” in violation of 18 U.S.C. § 1153 and N.M. Stat. Ann. § 30-6-1(D). Indictment at 1, filed March 13, 2018 (Doc. 13). Tsosie was arraigned on March 19, 2018, see Clerk's Minute Sheet, filed March 19, 2018 (Doc. 15), and the Honorable Karen B. Molzen, United States Magistrate Judge, entered a discovery order later that day, see Order, filed March 19, 2018 (Doc. 16).

         1. The Motion.

         In the Motion, the United States seeks a Protective Order, pursuant to rule 16(d)(1) of the Federal Rules of Criminal Procedure, restricting certain evidence's use. See Motion at 5-6. The first proposed term is that the medical records of Doe and Doe's siblings, and video and audio recordings with “personally identifying information” -- which the United States refers to as “confidential material” -- cannot be disclosed to anyone other than Tsosie, Tsosie's attorney, the attorney's employees, witnesses and their counsel, potential witnesses and their counsel, or experts or consultants assisting in this action. Motion at 5-6. The second proposed term is that the confidential material provided to Tsosie be used “solely for the purposes of this action, ” but that restriction would not limit either party from disclosing material in this action or related proceedings, provided that the personal information is redacted pursuant to rule 49.1 of the Federal Rules of Criminal Procedure. See Motion at 6. The third proposed term is that, within sixty days from this action's conclusion, Tsosie returns the confidential material to the United States or notifies the United States that he has destroyed the confidential material. See Motion at 7.

         The United States argues that a Protective Order is necessary to protect the material's personal information while avoiding the time-intensive process of redacting audio and video files. See Motion ¶ 3, at 2. The United States contends that the Crime Victims' Rights Act, 18 U.S.C. § 3771(a)(8), obligates the United States and the Court to ensure that Doe's personal information “does not remain in the hands of defense counsel beyond what is necessary.” Motion ¶ 7, at 2-3 (citing Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006); A.L.A. v. W.Valley City, 26 F.3d 989, 990 (10th Cir. 1994); Lankford v. City of Hobart, 27 F.3d 477, 479 (10th Cir. 1994)). The United States also contends that courts regularly approve protective orders requiring that confidential materials be returned or destroyed following a lawsuit's conclusion. See Motion ¶ 10, at 5 (citing United States v. Garcia, No. 12-10089-02-JTM, 2016 WL 4398972, at *1 (D. Kan. Aug. 18, 2016)(Marten, J.)(unpublished); United States v. Aguilar, No. CR 09-3207, 2010 WL 2977708, at *6 (D.N.M. June 28, 2010)(Browning, J.)(unpublished)).

         2. The Response.

         Tsosie opposes the Motion. See Defendant's Response in Oppos[i]tion to the United States' Motion for a Protective Order at 1, filed April 17, 2018 (Doc. 20)(“Response”). Tsosie contends that he has agreed to the proposed protective order's proposed provisions limiting the dissemination of personal information. See Response ¶ 4, at 2. Tsosie argues that the United States has not shown good cause to require Tsosie to return or destroy the confidential material after the case's conclusion. See Response ¶ 5, at 2. Specifically, Tsosie argues that the United States “fails to address how the dignity and privacy of anyone is inadequately protected by the issuance of a protective order that prohibits dissemination” of personal information. Response ¶ 6, at 2. Tsosie contends that, although the United States' proposed protective order request is consistent with civil requirements for such orders under the Health Insurance Portability and Accountability Act, 45 C.F.R. § 164.512(d) (“HIPAA”), those requirements do not apply to materials disclosed in criminal matters. Response ¶ 7, at 2.

         Next, Tsosie argues that, given that Tsosie helped raise Doe and that Doe's siblings are Tsosie's biological children, “there is no reason to think that any of these individuals is in danger, that their safety is threatened, or that their privacy rights are impinged, if the defense were to retain this information in the normal course of the Federal Public Defender's file retention policies.” Response ¶ 8, at 3. Tsosie asserts that the Federal Public Defender's office stores its client's files in a “secure file room” for five years before being stored in a “secure, off-site location.” Response ¶ 9, at 3. Furthermore, Tsosie argues that the United States has not stated why the Federal Public Defender's file storage system risks accidentally disclosing confidential information. See Response ¶ 12, at 6.

         Tsosie asserts that United States v. Garcia, 2016 WL 4398972, and United States v. Aguilar, 2010 WL 2977708, do not support the United States' position, because those cases deal with protecting witnesses' safety in light of retaliation concerns. See Response ¶¶ 9-10, at 3-5.

         Tsosie also asserts that the United States' proposed sixty-day window to return the confidential materials is unclear, because “it is very difficult to estimate when 60 days past the expiration of time for collateral review has passed.” Response ¶ 13, at 6-7.

         3. The Reply.

         The United States replied. See United States' Reply to Defendant's Response to the United States' Opposed Motion for a Protective Order, filed May 1, 2018 (Doc. 23)(“Reply”). The United States argues that rule 16(d)(1) of the Federal Rules of Criminal Procedure's good cause requirement means the same thing in both the civil and criminal context, and that good cause exists when “the harm which might result from unrestricted disclosure outweighs the party's interest in access to that disclosure.” Reply ¶ 1, at 1.

         The United States contends that the “privacy, security, and dignity interests” outweigh Tsosie's interest in holding onto the confidential material indefinitely. Reply ¶ 4, at 2.

         The United States restates its view that redacting personal information would be “unduly and unnecessarily time consuming, ” because Doe's and other minors' personal information appears throughout the record, and the audio and video statements are more than seven hours long in total. Reply ¶ 8, at 3. The United States ...


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