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United States v. Fernandez

United States District Court, D. New Mexico

October 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS FRANCISCO FERNANDEZ, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE JAMES A. PARKER JUDGE.

         On 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.[1] The United States, though taking no position on the Motion, filed a brief addressing Defendant's agency argument.[2] (Doc. 31). The Court held an evidentiary hearing on June 19, 2018. Having considered the parties' briefing, [3] arguments, and relevant case law, the Court will deny Defendant's Motion.

         I. BACKGROUND

         On 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.[4] (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).

         On 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.).

         Also on 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.[5](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).

         Defendant's 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, [6] 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).

         On June 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.

         During 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. (Tr. 116:7-15).

         Ms. 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).

         At Mr. 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).

         An 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. (Tr. 70:12-20).

         It 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).

         Mr. 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 ...


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