United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
October 15, 2018, Defendant Jesus Francisco Fernandez filed a
Motion to Compel Discovery (Motion) (Doc. 76) asking the
Court to compel the United States to disclose certain
impeachment materials pertaining to Drug Enforcement
Administration (DEA) Special Agent Jarrell Perry. The United
States opposes the Motion and it is fully
briefed. After considering the parties' briefs
and relevant law, the Court finds that Defendant's Motion
should be granted in part and denied in part.
November 15, 2017, a federal grand jury returned an
indictment charging Defendant with unlawfully, knowingly and
intentionally possessing with intent to distribute 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). The charges
arise from an encounter Defendant had with DEA Special Agent
Perry on a Greyhound bus during a layover at the Greyhound
Bus Terminal in Albuquerque, New Mexico on October 25, 2017.
On February 12, 2018, Defendant filed a motion asking the
court to suppress evidence obtained as a result of the
October 25, 2017 encounter. (Doc. 21). The Court denied the
motion to suppress on October 9, 2018. (See Doc.
74). The factual background is fully detailed in the
Court's October 9, 2018 Memorandum Opinion and Order
(Doc. 74), and the Court will not repeat it here.
preparation for trial, Defendant filed the present Motion
asking the Court to compel the United States to disclose
materials relating to a DEA Office of Professional
Responsibility (OPR) investigation into Agent Perry that
stemmed from concerns raised by the United States Court of
Appeals for the Tenth Circuit regarding Agent Perry's
conduct in United States v. de la Campa-Rangel, 519
F.3d 1258 (10th Cir. 2008). In particular, Defendant seeks
disclosure of the DEA OPR report, as well as any written or
recorded statements made by Agent Perry regarding his
involvement in the de la Campa-Rangel prosecution
and the resulting DEA OPR investigation. (Doc. 76; Doc. 92).
Alternatively, Defendant asks that the Court order the United
States to produce the material to the Court for in camera
review. (Doc. 76 at 1; Doc. 92 at 1).
de la Campa-Rangel case, the Tenth Circuit abated
the defendant's appeal to allow him to file a 28 U.S.C.
§ 2255 motion for the district court to consider whether
the Government knowingly relied on perjured testimony by
Agent Perry who was the case agent and the chief
law-enforcement witness at trial. 529 F.3d at 1259. The issue
of possible perjury arose because of alleged contradictions
between various sworn statements by Agent Perry. Id.
The defendant filed a § 2255 motion which resulted in
the U.S. Magistrate Judge reopening discovery. See U.S.
v. de la Campa-Rangel, No. CR 5-1154 JAP, Doc. 101. But
before the Government produced the requested discovery and
before the Court could address the merits of the § 2255
motion, the Government agreed to vacate the sentence and
resentence Defendant to a sentence of time served. See
U.S. v. de la Campa-Rangel, No. CR 5-1154 JAP, Docs. 108
contends that the Government is aware of the de la
Campa-Rangel case and the OPR investigation, as
demonstrated by reference to both in other pending
cases. (Doc. 76 at 3). Yet, claims Defendant,
despite his specific written request in this case for
production of information pertaining to the OPR investigation
into Agent Perry, the Government did not even acknowledge the
de la Campa-Rangel matter in its October 15, 2018
response letter to the production request. (See Ex.
B to Mot., Doc. 76-2).
United States opposes Defendant's Motion, asserting that
Defendant has failed to demonstrate that the information
sought is material and that Defendant's request is
overbroad because it effectively seeks to “wade
through” Agent Perry's entire personnel file - a
file to which defendant is not entitled. (Doc. 79 at 4-5).
The United States acknowledges its duty under Brady,
Giglio, and Federal Rule of Evidence 16, indicating that
to the extent impeachment material is contained in a federal
employee's personnel file it will be provided to
Defendant as part of the normal discovery process. (Doc. 79
at 5). Indeed, the United States represents in its Response
to Defendant's Motion that it has initiated an official
request with the DEA's Giglio officer, as
required by Department of Justice policy, to search for any
Giglio material pertaining to Agent Perry. (Doc. 79
at 6-7). The United States indicates that if DEA Headquarters
advises the United States that Giglio material
exists, it will disclose those results as required by law.
(Doc. 79 at 7).
a criminal prosecution, the Federal Rules of Criminal
Procedure and the United States Constitution impose upon the
United States an obligation to disclose certain evidence to a
criminal defendant.” U.S. v. Harmon, 871
F.Supp.2d 1125, 1147 (D.N.M. 2012). Specifically,
“[d]ue process mandates disclosure by the prosecution
of all evidence that favors the defendant and is material
either to guilt or to punishment.” U.S. v.
Robinson, 39 F.3d 1115, 1118 (10th Cir. 1994) (internal
quotation marks and citation omitted). “Evidence is
‘favorable to the defense' if it is exculpatory or
impeaching.” Browning v. Trammell, 717 F.3d
1092, 1094 (10th Cir. 2013). And “evidence is
‘material' within the meaning of Brady
when there is a reasonable probability that, had the evidence
been disclosed, the result of the proceeding would have been
different.” Smith v. Cain, 565 U.S. 73, 75
(2012) (internal quotation marks and citation omitted). The
Court's “materiality review does not include
speculation. The mere possibility that evidence is
exculpatory does not satisfy the constitutional materiality
standard.” Banks v. Reynolds, 54 F.3d 1508,
1519 (10th Cir. 1995) (internal quotation marks and citation
evidence is exculpatory for Brady purposes.”
U.S. v. Smith, 534 F.3d 1211, 1222 (10th Cir. 2008);
see also Giglio v. U.S., 405 U.S. 150, 154 (1972)
(“When the reliability of a given witness may well be
determinative of guilt or innocence, nondisclosure of
evidence affecting credibility falls within this general
rule.” (quotation marks omitted)). “Generally,
even matters outside the present case may potentially be
exculpatory and discoverable if it affects the credibility of
a testifying case agent.” U.S. v. Kenja Treron
Thomas, No. CR 18-458 WJ, 2018 WL 5268203, at *3 (D.
N.M. Oct. 23, 2018); see also Denver Policeman's
Protective Ass'n v. Lichenstein, 660 F.2d 432, 436
(10th Cir. 1981) (“[W]hen the only prosecution
witnesses are the police officers involved, anything that
goes to their credibility may be exculpatory.”).
asks the Court to compel the United States to produce: (1)
“the contents and results of the OPR investigation into
whether SA Perry committed perjury or other misconduct in the
De la Campa-Rangel matter, ” and (2)
“any statements either written or recorded made by SA
Perry regarding his involvement in the De la
Campa-Rangel prosecution and the resulting DEA OPR
investigation.” (Docs. 76, 92). Certainly, any evidence
indicating perjury or affecting the credibility of Agent
Perry as the case agent and likely chief law enforcement
witness at Defendant's trial may potentially be
exculpatory for Brady purposes and discoverable. But
generally, there is no Brady right for a defendant
to review the entire contents of a testifying law enforcement
officer's personnel file to independently make a
materiality determination. See Pennsylvania v.
Ritchie, 480 U.S. 39, 59 (1987) (“A
defendant's right to discover exculpatory evidence does
not include the unsupervised authority to search through the
[Government's] files…this Court has never
held…that a defendant alone may make the determination
as to the materiality of the information[.]”). Rather,
“[i]n the typical case where a defendant makes only a
general request for exculpatory material under
Brady… it is the [Government] that decides
which information must be disclosed.” Id.
United States v. Henthorn, the United States Court
of Appeals for the Ninth Circuit addressed the
Government's obligation to disclose personnel files of
law enforcement witnesses for impeachment purposes. 931 F.2d
29, 30 (9th Cir. 1991). The court noted that the Government
has an obligation, upon request from a defendant, to review
the personnel files to determine whether they contain
information material to a defendant's case. Id.
at 31. In response to the Henthorn opinion, the
Department of Justice developed a process for review of
personnel files for Giglio material. Under this
policy, DEA attorneys or staff examine the federal
agent's personnel file and produce any Brady or
Giglio materials to the federal prosecutor who then
determines whether to disclose the information to the
defendant or to request an in camera review by the Court.
See U.S. v. Jennings, 960 F.2d 1488, 1491-92 (9th
Cir. 1992) (“adherence to this procedure would indicate
that the AUSA is fulfilling his responsibility for ensuring
Government compliance with Brady”).
least two other courts in this district have addressed nearly
identical requests for production of possible impeachment
evidence related to Agent Perry's conduct in the de
la Campa-Rangel prosecution. In United States v.
Grobstein, the court determined that the defendant had
properly identified authority “that raises the spectre
that Agent Perry engaged in conduct that would cast doubt on
his credibility, and has pinpointed specific files that he
speculates may contain evidence of such misconduct.”
No. CR 13-663 MV, 2013 WL 12328891, at *3 (D. N.M. Sept. 3,
2013). However, because the defendant did not identify
specific exculpatory evidence withheld by the government, the
court determined that it was within the “sole province
of the government to determine what material is exculpatory
and thus subject to mandatory disclosure.” Id.
Accordingly, the court denied the defendant's motion,
while also directing the government to review all of Agent