United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION TO COMPEL
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.
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.
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
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.
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.
the DEA's Office of Professional responsibility
apparently investigated the Rangel matter and
determined that no misconduct occurred. Doc.
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.
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
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.
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 ...