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United States v. Hall

United States District Court, D. New Mexico

September 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CRYSTAL LACHONNE HALL, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO COMPEL COMPLIANCE WITH RULE 17 SUBPOENA AND FOR SANCTIONS PURSUANT TO THIS COURT'S CONTEMPT AUTHORITY

         THIS MATTER comes before the Court following a hearing upon Defendant's Ex Parte Motion to Compel Compliance with Rule 17 Subpoena and for Sanctions Pursuant to this Court's Contempt Authority Under 28 U.S.C. §636(e), filed June 20, 2018 (Doc. 43).[1] Defendant moves the Court to compel compliance by Greyhound Lines, Inc. with a Rule 17(c) subpoena permitted by this Court or otherwise hold Greyhound in contempt pursuant to Rules 17(g) and 42 of the Federal Rules of Criminal Procedure.[2] Having reviewed the parties' briefs and applicable law, the Court finds that Defendant's motion is not well-taken and, therefore, is denied.

         BACKGROUND

         On February 15, 2018 DEA agents arrested Crystal Lachonne Hall (“Defendant”) while she was onboard a Greyhound Lines, Inc. (“Greyhound”) bus in Albuquerque, New Mexico. Following her arrest, defense counsel mailed a preservation request asking Greyhound to preserve material that would be the subject of a subpoena that she would seek through this Court: surveillance video, a passenger manifest, and any communication between the arresting officer, DEA Agent Perry, and Greyhound by which Agent Perry gained access to the passenger manifest. Ex. A. On February 28, 2018, counsel for Greyhound asked whether defense counsel could narrow the preservation request as it related to the surveillance video. Defense counsel responded that he was just interested in “footage that captures Agent Perry or his partner surrounding the incident.”

         On March 7, 2018, the Court granted Defendant's request for a Rule 17(c) subpoena to serve on Greyhound to obtain the three categories of material listed in the preservation request, finding that the three categories requested were properly included in the subpoena. The Court ordered that the material responsive to the subpoena was to be delivered to Court chambers. Doc. 15.[3] Personal service was effected on a Greyhound employee, and a copy of the subpoena was emailed to Greyhound counsel, Mr. Phil Cheves, on the same day of service.

         According to defense counsel, in mid-April, 2018, Court chambers received four thumb drives containing a surveillance video and what appeared to be a passenger manifest for the bus on which Ms. Hall was arrested. Exs. C & D. Defendant contends that what was submitted in response to the subpoena was inadequate. Initially, Defendant claimed that three categories of material were insufficiently produced: (1) surveillance footage; (2) passenger manifest lists; and (3) communications between Agent Perry and Greyhound or Greyhound employees by which he gained access to passenger manifests. Greyhound turned over all the video footage which stated that it possessed. Greyhound has a total of 52 cameras but footage was available and preserved from only 20 of those cameras. Many hours of video recording were produced, but according to defense counsel, none of the footage included anything related to the investigation or arrest of Ms. Hall; specifically, there was no footage that related to the investigation or arrest of Defendant. Greyhound attributes the problems with the video recording to ongoing systemic and operational issues with the surveillance cameras and DVR's that are responsible for recording different areas of the terminal. Greyhound also provided a passenger manifest to defense counsel, but Ms. Hall's name was not on that list. Greyhound later provided second and third supplemental pre-departure lists to Defendant.

         At the hearing, defense counsel waived any further concern about the first two categories of material, and narrowed the issues in the motion down to these two:

1. communications between Greyhound and Agent Perry; and
2. whether sanctions should be imposed on Greyhound for failure to comply with the subpoena.

         DISCUSSION

         One witness, David O. Streiff, testified at the hearing. Mr. Streiff is the security operations manager for Greyhound, North America. He testified recently on behalf of Greyhound in a similar case in which defense counsel, Mr. Alejandro Fernandez (also representing Mr. Ramos-Burciaga in that case) claimed that Greyhound had failed to preserve video surveillance footage in response to a preservation request. See U.S. v. Ramos-Burciaga, 17-CR-002236 WJ. Following a hearing in that case, the Court determined that Greyhound was not an agent of the Government and concluded that Greyhound's failure to preserve the video tape could not be attributed to the Government. See Ramos-Burciaga, Doc. 66.

         In the instant motion, Defendant revisits what he considers to be a deficiency in Greyhound's response to a Rule 17 subpoena. He contends that Greyhound allows certain company policies to be violated in order to favor law enforcement operations, such as policies regarding disclosure of passenger manifests and the copying of video surveillance footage. Defendants contends that even though the Court has determined that Greyhound is not an agent of the Government, the company on its own continues to frustrate the judicial process by willfully allowing these internal policy violations.

         I. Legal Standard

         The statute governing the punishment of contempt is 18 U.S.C. §401(3) which provides that a district court has the “power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, . . . as “[d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” There are three elements to contempt under §401(3): (1) a reasonably specific order, (2) violation of the order, and (3) the willful intent to violate the order.” United States v. Voss, 82 F.3d 1521, 1525 (10th Cir. 1996).

         Rule 17(g) of the Federal Rules of Criminal Procedure provides allows a court to “hold in contempt a witness who, without adequate excuse, disobeys a subpoena issued by a federal court in that district.” Fed.R.Crim.P. 42(a)(1) affords notice and opportunity to explain why the party has not complied, since willfulness is an element of criminal contempt. See United States v. Greyhound Corp., 508 F.2d 529, 531 (7th Cir. 1974) (“Willfulness is, of course, an element of criminal contempt and must be proved beyond a reasonable doubt”).

         II. Communications Between ...


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