United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE JAMES A. PARKER JUDGE.
March 9, 2018, Defendant Jesus Francisco Fernandez filed a
Motion for Order to Show Cause and Request for Evidentiary
Hearing (Motion). (Doc. 25). In his Motion, Defendant
requests that the Court order non-party Greyhound Lines, Inc.
(Greyhound) to show cause why it should not be held in
contempt for allegedly disobeying a subpoena, and requests an
evidentiary hearing to determine whether an agency
relationship exists between Greyhound and the Drug
Enforcement Administration (DEA) and whether Greyhound
destroyed exculpatory evidence. (Doc. 25 at 1). Greyhound
filed a Response to the Motion and it is fully
briefed. The United States, though taking no
position on the Motion, filed a brief addressing
Defendant's agency argument. (Doc. 31). The Court held an
evidentiary hearing on June 19, 2018. Having considered the
parties' briefing,  arguments, and relevant case law, the
Court will deny Defendant's Motion.
November 15, 2017, a federal grand jury returned an
indictment charging Defendant with unlawfully, knowingly and
intentionally possessing with intent to distribute a
controlled substance, 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A). (Doc. 10). On October 25, 2017, DEA Special Agent
(SA) Jarrell Perry arrested Defendant while conducting drug
interdiction at the Greyhound bus terminal in Albuquerque,
New Mexico. (Doc. 21 at 2, 4). SA Perry discovered
methamphetamine inside Defendant's black duffel bag after
Defendant allegedly consented to a search of the bag. (Doc.
21 at 4). SA Perry's initial seizure of the bag and
evidence obtained subsequent to the seizure are the subjects
of a separate motion to suppress that Defendant filed.
(See Doc. 21).
November 21, 2017, Defendant's counsel sent a letter to
Greyhound asking Greyhound to preserve “[a]ll Greyhound
surveillance security video and audio recordings made from
8:00 am to 1:00 pm on October 25, 2017 at the Albuquerque
Greyhound bus terminal at 320 1st St. SW.”
(Doc. 25-1; Def. Ex. G). In addition to this general request,
Defendant's counsel specified locations at the bus
terminal and on the bus from which he wanted video and audio
recordings. (Id.). Defendant's counsel further
requested a copy of the passenger manifest listing passengers
on board the bus at the time it arrived in and departed from
Albuquerque on October 25, 2017. (Id.).
November 21, 2017, Defendant filed an ex parte motion for a
subpoena duces tecum to the Custodian of Records for
Greyhound Lines, Inc., see Doc. 12, which the Court
granted on December 11, 2017, see Doc. 16. The
subpoena was served on December 21, 2017.(Doc. 25 ¶
2). Greyhound responded to the subpoena on January 26, 2018
by producing five compact discs with surveillance video files
and two discs with computer files related to the specific bus
Defendant had taken. (Doc. 25 ¶ 4). Written on the discs
Greyhound produced containing the surveillance video was
“U.S. Department of Justice Drug Enforcement
Administration” and “For Official Use
Only.” (Def. Ex. D).
counsel determined that the production was incomplete. (Doc.
25 ¶ 5). By letter dated March 6, 2018, Greyhound
explained that the Albuquerque bus terminal has 4 DVR
machines recording video from a total of 52 cameras, but
noted that a number of cameras were not properly functioning
or did not record. (Ex. 2 to Doc. 30). Greyhound further
explained that Ms. Marie Avila-Gomez,  Customer
Experience Manager for Greyhound Albuquerque, was under the
impression that she did not need to capture certain cameras,
but “[i]t is not known at this time how she came to
this understanding.” (Doc. 25 ¶ 7; Ex. 2 to Doc.
30). As a result, the only footage provided was downloaded
from DVR 1, cameras 1, 8, 9, 10, 11, 13, 14, 15 and 16. (Ex.
2 to Doc. 30). In an affidavit, Ms. Avila stated that she
believed she had downloaded all of the requested footage from
operational DVRs and only realized when later notified that
footage from DVRs 2 and 3 failed to properly download. (Ex. 1
to Doc. 30). She further noted that the video surveillance
system retains footage for twenty-eight to forty-five days,
depending on the amount of activity, before the system
overwrites the footage. (Ex. 1 to Doc. 30). Consequently,
footage that was not retained in Ms. Avila's initial
download is likely not retrievable. (Ex. 2 to Doc. 30).
19, 2018, the Court held an evidentiary hearing addressing
the incomplete production, and heard testimony from DEA
Agents Perry and Jeffrey Armijo, Ms. Avila, and David
Streiff, the Security Operations Manager for Greyhound in
North America. The United States asserted privilege under the
Department of Justice's Touhy regulations to a
number of the questions defense counsel posed to SA Perry.
the hearing, Ms. Avila clarified that she was under the
impression from Mr. Streiff that she did not need to comply
with preservation requests. (Tr. 28:24-29:4). Rather, Mr.
Streiff instructed her to wait to act until she received a
subpoena. (Tr. 19:8-14). Ms. Avila testified that the DEA
never instructed her on how to address preservation requests
or subpoenas initiated by defense attorneys, nor did the DEA
provide any type of training to Greyhound employees on video
preservation or otherwise. (Tr. 64:14-24; 75:14-17). All
training for Greyhound employees comes from Greyhound itself.
Avila explained that the DEA “Official Use Only”
discs had been in her office since before she started working
with Greyhound, and she used them because they were the only
discs she had available to her to record footage. (Tr.
43:1-7). Ms. Avila had previously used the DEA discs to
download footage unrelated to a preservation request or a
subpoena, such as when an individual was injured after a fall
and when a child was abandoned at the terminal. (Tr.
43:10-13). SA Perry confirmed that he provided a prior
Greyhound manager with compact discs as a courtesy, when, in
response to SA Perry's request for video related to a DEA
investigation, the manager responded that he did not have any
discs. (Tr. 162:7-163:1). SA Perry intended for the manager
to use the discs for whatever he needed, in addition to using
the discs to respond to DEA requests. (Tr. 163:2-9).
Streiff's behest, Ms. Avila scheduled a meeting between
DEA Agents Perry and Armijo, Mr. Streiff, and herself, which
took place in April 2017. Mr. Streiff's email to Ms.
Avila indicates that he wanted to meet with DEA agents
“to discuss these Defendants Attorney's requests
for video and information and what are [sic] future responses
will be. We want to insure [sic] continued partnership with
them but we need to go over some understandings with
them.” (Def. Ex. A). Ms. Avila was not directed to
invite any other law enforcement agencies to the meeting.
(Tr. 121:11-16; 122:2-20). Ms. Avila described the actual
meeting as more of a “rapport building, getting to
know” one another opportunity. (Tr. 39:21-40:6). She
spoke with Mr. Streiff on the side about preservation
requests and subpoenas and believes that the DEA agents may
have overheard the conversation. (Tr. 66:25-67:14). Mr.
Streiff also recalls this conversation as “almost an
after effect as we were walking off.” (Tr. 96:10-14).
employee breakroom at the Greyhound bus station was made
available to law enforcement officers. (Tr. 48:4-7). Ms.
Avila made copies of the breakroom key for law enforcement
officials, and SA Perry had a copy of the breakroom key. (Tr.
48:8-14; 154:16-18). Ms. Avila gave “verbal ongoing
permission” to law enforcement officers to enter
nonpublic areas of the terminal and warehouse unescorted, but
also indicated that there generally was always an employee in
every location of the terminal to observe an officer's
movements. (Tr. 50:3-24). Ms. Avila would allow SA Perry back
in the office area to visit with her. (Tr. 49:2-8). On one
occasion near the holidays, SA Perry gave Ms. Avila a DEA
patch and at some point he also gave her a DEA coin. (Tr.
49:6-11). Ms. Avila did not feel obligated to conduct her job
in a certain way because SA Perry had given her these items.
would be a violation of Greyhound policy to provide law
enforcement officers like SA Perry with access to a passenger
manifest. (Tr. 102:15-17). Ms. Avila never provided the
passenger manifest to SA Perry, nor did she ever witness
another employee give a copy of the manifest to SA Perry.
(Tr. 54:2-5, 14-18). Ms. Avila is also unaware of any
employees at the Albuquerque Greyhound station receiving
financial compensation from law enforcement officers. (Tr.
55:2-5). And she herself has never received money from the
DEA in exchange for information and is not a DEA informant.
(Tr. 75:18-24). Yet, despite Greyhound policy and Ms.
Avila's assertions, SA Perry confirmed that he receives
copies of the passenger manifest. (Tr. 167:24-168:8). He also
testified that on at least one past occasion he used an
employee's computer to check his email. (Tr. 167:2-12).
Streiff indicated that while Greyhound currently receives
federal money through the “Over-the-Road Bus Security
Grant Program, ” none of that money is allocated for
Albuquerque. (Tr. 80:10-81:19; 115:7-16). In fact,
Albuquerque does not receive any federal funding for
security. (Tr. 115:18-25). Greyhound created a Law
Enforcement Operating Procedure to define the parameters of
law enforcement conduct applicable to Greyhound facilities
throughout the United States. (Tr. 89:10-17; 92:12-18;
Gov't Ex. 2). This procedure was created by Mr. Streiff
entirely without input from outside law enforcement agencies.
(Tr. 104:4-15). Mr. Streiff testified that one objective of
the April 2017 meeting with local Albuquerque DEA agents was
to discuss the parameters where agents could and could not
operate within the Greyhound facility. (Tr. 93:13-16). The
DEA never instructed anyone at Greyhound on how to respond to
preservation letters or subpoenas, and this matter was not
discussed during the April 2017 meeting. (Tr. 110:4-19;
111:3-7). Mr. Streiff further stated that under the Greyhound
Law Enforcement ...