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United States v. Thomas

United States District Court, D. New Mexico

October 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KENJA TRERON THOMAS, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO COMPEL DISCOVERY

         THIS MATTER is before the Court on Defendant's Motion to Compel Discovery, filed on September 13, 2018 (Doc. 38). Having reviewed the Defendant's motion and the applicable law, the Court finds that the Motion is well-taken and is therefore GRANTED IN PART and DENIED IN PART. The Government is directed to examine the specified categories of documents below in Special Agent Jarrell Perry's personnel file for any Brady or Giglio material.

         BACKGROUND

         Defendant is charged with possession with the intent to distribute 50 grams or more of methamphetamine, pursuant to 21 USC § 841(a)(1) and § (b)(1)(A). Doc. 35.

         The Government sent a letter on September 7, 2018 to Defendant disclosing that a prior Tenth Circuit case United States v. Geraldo de la Campa-Rangel, 519 F.3d 1258 (10th Cir 2008) may bear on Agent Perry's credibility. The letter stated as follows:

Pursuant to the United States' discovery obligations, I write to advise you of a published opinion involving the case agent in the aforementioned case, Special Agent Jarrell Perry. The Tenth Circuit opinion in United States v. Geraldo de la Campa-Rangel, 519 F.3d 1258, discusses the testimony of Special Agent Perry and may bear on his credibility as a witness. Special Agent Perry maintains that he did not lie during the course of the de la Campa-Rangel matter, and the DEA Office of Professional Responsibility has investigated this matter and determined Special Agent Perry did not engage in misconduct.
Please note that the United States' disclosure of this information is no waiver or diminution of the United States' right to assert that this information should not be allowed as impeachment at any trial and/or any other proceeding in this case. Please do not hesitate to contact me if you would like to discuss this further.

         Doc. 38-1 (emphasis added). In the Rangel case, the Tenth Circuit remanded for the district court to consider, in a § 2255, allegations that Agent Perry gave perjured testimony. This was based on alleged discrepancies between his testimony at a preliminary hearing and a report he drafted the same day. There were no judicial findings of perjury, but the Government agreed to vacate the sentence and resentence Defendant to a sentence of time served (approximately 4 years), down from ten years.

         Moreover, the DEA's Office of Professional responsibility apparently investigated the Rangel matter and determined that no misconduct occurred. Doc. 38-1.

         In this Motion, Defendant initially requested disclosure of “any and all material including but not limited to the results of the mentioned DEA investigation, that were reviewed in preparing the September 7, 2018 letter.” Doc. 38.Defendant also requested that the Government produce any statements made by Agent Perry in the OPR's investigation. Defendant seemingly narrowed that request in the reply brief, stating that he seeks disclosure only of the OPR report referred to in the September 7, 2018 letter, as well as any statements made by Agent Perry regarding his involvement in the Rangel matter.

         In an amended response, the Government represents that they asked the DEA's Giglio officer to search for, and disclose, any agency finding of misconduct that reflects upon the truthfulness or possible bias of the employee, any pending allegation of misconduct, or any past or pending criminal charge.

         DISCUSSION

         Defendant seeks the production of certain categories of documents from Agent Perry's personnel file, including: “the statements [Agent] Perry made to the OPR and the report the OPR generated as a result of its investigation into whether [Agent] Perry lied under oath.” Doc. 63, p. 4.

         I. Brady Law.

         “Due process mandates disclosure by the prosecution of all evidence that favors the defendant and is ‘material either to guilt or punishment.'” United States v. Robinson,39 F.3d 1115, 1118 (10th Cir.1994)) (quoting United States v. Bagley,473 U.S. 667, 674 (1985)); United States v. Velarde, 485 F.3d 553, 558-59 (10th Cir. 2007). Evidence is favorable if it is exculpatory or impeaching. Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009), citing Bagley, 473 U.S. at 676. “[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” United States v. Cooper, 654 F.3d 1104, 1119 (10th Cir. 2011); see also United States v. Torres, 569 F.3d 1277, 1281 (10th ...


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